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AGLO 1971 No. 114 - September 30, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              September 30, 1971
Honorable Robert L. Charette
State Representative, 19th District
P.O. Box 63
Aberdeen, Washington                                                        Cite as:  AGLO 1971 No. 114 (not official)
Dear Sir:
            You have requested the opinion of this office on three questions relating to parking and business improvement areas under chapter 45, Laws of 1971, 1st Ex. Sess.  We paraphrase your questions as follows:
            (1) Does § 1 (1) (b) of chapter 45, Laws of 1971, 1st Ex. Sess., in using the term "public place," mean a place open to the public regardless of ownership, or only a place which is owned by the public?
            (2) Does § 1 (2) of the above act, in referring to "special assessments on all businesses," authorize such assessments to be imposed on specially benefited businesses themselves, or does it only authorize assessments to be made against the lands and buildings where such businesses are located?
            (3) Assuming that the intent of the statute is that the assessments may be made on the specially benefited businesses themselves, how does a municipality go about imposing these assessments and, afterward, collecting them?
            We answer each of these questions in the manner set forth in our analysis.
            Chapter 45, Laws of 1971, 1st Ex. Sess., is an enabling act dealing with the establishment and maintenance of "parking and business improvement areas" by counties, cities and towns.  The basic authorization contained in the act is spelled out in § 1, as follows:
            "The legislature hereby authorizes all counties and all incorporated cities and towns, including unclassified cities and towns operating under special charters:
             [[Orig. Op. Page 2]]
            "(1) To establish parking and business improvement areas, hereafter referred to as area or areas, for the following purposes:
            "(a) The acquisition, construction or maintenance of parking facilities for the benefit of the area;
            "(b) Decoration of any public place in the area;
            "(c) Promotion of public events which are to take place on or in public places in the area;
            "(d) Furnishing of music in any public place in the area;
            "(e) The general promotion of retail trade activities in the area;
            "(2) To levy special assessments on all businesses within the area and specially benefited by a parking and business improvement area to pay in whole or in part the damages or costs incurred therein as provided in this act.
            "(3) To provide in accordance with any applicable provisions of the Constitution or statutory authority for the issuance and sale of revenue bonds to finance the cost of any parking and business improvement area."
            Question (1):
            Your first question inquires as to the scope and meaning of the term "public place," as used in § 1 (1) (b), supra, relating to the "Decoration of any public place in the [parking and business improvement] area."  Does this term denote public ownership, or merely public access?
            We begin our response by noting that this term is not defined anywhere within the act; in fact, the only words or phrases appearing in § 1, supra, which are specially defined by the act are "business" and "legislative authority" ‑ defined in § 2 as follows:
            "(1) 'Business' as used in this act means all types of business, including professions.
             [[Orig. Op. Page 3]]
            "(2) 'Legislative authority' as used in this act means the legislative authority of any city or town including unclassified cities or towns operating under special charters or the legislative authority of any county."
            Moreover, unless it is specially defined by a statute in which it appears ‑ as, for example, in RCW 66.04.010 (24) with respect to the consumption or sale of intoxicating liquor ‑ the term "public place" is not very susceptible to precise definition.  Most courts would agree with the Supreme Court of Iowa, which stated that "The term 'public place' is relative, and depends for its meaning largely on the context in which it is used.  . . ."  In re Assessment of Walnut Street Bridge v. City of Des Moines, 220 Iowa 55, 59, 261 N.W. 781 (1935).
            On the other hand, a check of the cases in which the term has been construed ‑ a large number of which are collected in the legal encyclopedia "Words and Phrases" ‑ suggests that there is no special disposition on the part of the courts to confine its application to publicly owned places.  As is said in another legal encyclopedia,
            ". . . the term suggests a place open to the general public and available for use by the general public without limitation except such as may be required in the interest of safety and good order.  However, a 'public place' is not necessarily devoted solely to the uses of the public, and it is the actual use by the public and not the legal right of the public to continue in the use, that makes a place public.  . . ."  70 C.J.S., "Place," p. 1095.
            Two Washington cases construing the term "public place" have assumed that in the context of particular laws, this term meant privately owned places frequented by the public.  See, Goodwin v. Georgian Hotel Co., 197 Wash. 173, 84 P.2d 681, 119 A.L.R. 788 (1938); and Whitworth v. McKee, 32 Wash. 83, 72 Pac. 1046 (1903).
            No doubt there are special situations in which the context of a particular law might demand that "public place" be construed to mean only a publicly owned place.  Still, this has not been the most usual meaning of this term and, of course, it is the common and usual meaning of  [[Orig. Op. Page 4]] this language which must be regarded as having been within the contemplation of the legislature in the absence of any special definition or other evidence of legislative intent to the contrary.  See, 2 Sutherland, Statutory Construction (3rd ed.), § 4919, p. 424; also, State v. Vosgien, 82 Wash. 685, 144 Pac. 947 (1914).
            Although chapter 45, Laws of 1971, 1st Ex. Sess., appears to contemplate a variety of purposes for a parking and business improvement area, the words "public place" are used only three times in the act; in §1 (1) (b), to which you have referred, and also in subsections (c) and (d), of this section relating to the promotion of public events and to the furnishing of music.
            It might well be that in order to carry out any of these provisions, and thus fulfill legislative intent, the municipal legislative authority would deem it approporiate to (1) decorate, or (2) facilitate the conduct of public events, or (3) furnish music not only within publicly owned areas, but, as well, privately owned areas which are open to the public.  It is possible, of course, that in carrying a project of this kind into effect, a legislative authority might offend some private right, or violate some constitutional provision such as Article VIII, § 7 of the Washington constitution, prohibiting municipal gifts or loan of credit, or otherwise exceed its powers.  In the absence of a particular set of circumstances alleged to consitiute such a transgression, however, and especially in view of the elastic nature of the term "public place," we are not prepared to assume this or to suggest that such a project would inevitably be contrary to law.
            We conclude, therefore, that "public place," as used in § 1 (1) (b) and (d) of this 1971 act, means any place that is open to the public, regardless of whether it is in public or private ownership.
            Question (2):
            Next you have asked whether § 1 (2) of the subject act, in referring to "special assessments on all businesses" (emphasis supplied), authorizes such assessments to be imposed on specially benefited businesses themselves, or does it only authorize assessments to be made against the lands and buildings where such businesses are located?
            In other words, what did the legislature mean in this statute when it spoke of levying "special assessments on all businesses?"
             [[Orig. Op. Page 5]]
            After reading the statute as a whole, it appears clear to us that the legislature intended that a charge somewhat in the nature of an excise tax be levied upon the operating businesses themselves, and not that "special assessments" be made upon the property whereon these businesses functioned.  In § 2, the definition section, "business" is explicitly defined as meaning ". . . all types of business, including professions."  Section 17 provides that "Businesses established after the creation of an area within the area may be exempted from the special assessments imposed pursuant to this act for a period not exceeding one year from the date they commenced business in the area."
            Clearly the reference in these sections is not to land or buildings, and, moreover, § 17 denotes an exemption from a periodic, recurring charge rather than a "one shot" assessment.  Accord, § 14, which also contemplates periodic changes in the assessment rate as follows:
            "Changes may be made in the rate or additional rate of special assessment as specified in the ordinance establishing the area, by ordinance adopted after a hearing before the legislative authority.
            "The legislative authority shall adopt a resolution of intention to change the rate or additional rate of special assessment at least fifteen days prior to the hearing required by this section.  This resolution shall specify the proposed change and shall give the time and place of the hearing:  PROVIDED, That proceedings to change the rate or impose an additional rate of special assessments shall terminate if protest is made by businesses in the proposed area which would pay a majority of the proposed increase or additional special assessments."
            Our answer to this question is strongly reinforced by the legislative history of the act, to which resort may properly be made in interpreting its provisions.1/   In its original version, § 1 of the bill2/ which ultimately became chapter 45, Laws of 1971, 1st Ex. Sess., would have authorized  [[Orig. Op. Page 6]] municipalities "to levy special assessments on all property specially benefited by a parking and improvement area."  (Emphasis supplied.)
            However, when the bill was reported out by the Senate Committee on Cities, Towns and Counties, to which it was initially referred, the word "property" was replaced by the word "businesses."  This language was retained in the final version of the bill; i.e., Reengrossed Senate Bill No. 130 as amended by the Free Conference Committee.
            The only difficulty with the conclusion we have reached is that the phrase "special assessments," at least in the understanding of most tax specialists, is a term of art which refers only to special assessments on property.  As one legal encyclopedia puts it, "A special assessment can be levied only on land."  48 Am.Jur., "Special and Local Assessments," § 3, p. 566.  Or, as our supreme court has stated, quoting from another legal encyclopedia:
            "'Special assessments are special charges imposed by law on land to defray the expenses in whole or in part of a local improvement made by a municipality, on the theory that the owner of the property has received special benefits from the improvement in excess of the benefits accruing to the general public.  . . . '"  In re Local Improvement District No. 1, 195 Wash. 439, 81 P.2d 289 (1938).
            The legislature, however, may do what it likes within the limits imposed upon it by the federal and state constitutions.  If it desires to impose what amounts to an excise tax upon benefited businesses in order to support such projects as the parking and business improvement areas with which the present act deals, and to call this charge a "special assessment," there is nothing to prevent it from doing so.  That is what appears to have happened here.  In this situation, of course, some of the case law developed in such decisions as Heavens v. King Cy. Rural Libr. Dist., 66 Wn.2d 558, 404 P.2d 453 (1965), involving special assessments on property, may well apply; other such case law may not as, for example, the general rule that it is on the property assessed, and not on the owner thereof, that liability for a special assessment primarily attaches.  See, City of Seattle v. H. L. Yesler, 1 Wash. Terr. 571, 27 Pac. 923 (1878).
             [[Orig. Op. Page 7]]
            Question (3):
            The plan of what is termed "assessment" of the funds "to pay in whole or in part the damages or costs" (§ 1 (2)) incurred under the provisions of chapter 45, Laws of 1971, 1st Ex. Sess., is, by explicit direction of the act, to be established by the legislative authority of the municipality concerned.  Sections 8 and 9 in particular deal with this matter, as follows:
            Section 8:
            "For purposes of the special assessments to be imposed pursuant to this act, the legislative authority may make a reasonable classification of businesses, giving consideration to various factors, including the degree of benefit received from parking only."
            Section 9:
            "The special assessments need not be imposed on different classes of business, as determined pursuant to section 8 of this act, on the same basis or the same rate:  PROVIDED, HOWEVER, That the special assessments imposed for the purpose of the acquisition, construction or maintenance of parking facilities for the benefit of the area shall be imposed on the basis of benefit determined by the legislative authority after giving consideration to the total cost to be recovered from the businesses upon which the special assessment is to be imposed, the total area within the boundaries of the parking and business improvement area, the assessed value of the land and improvements within the area, the total business volume generated within the area and within each business, and such other factors as the legislative authority may find and determine to be a reasonable measure of such benefit."
            The same is true of the plan of collection of such assessments.  Section 13 of the act provides that,
            "Collections of assessments imposed pursuant to this act shall be made at the same time and in the same manner as otherwise prescribed by Title 35 RCW or in such other manner as the legislative authority shall determine."  (Emphasis supplied.)
             [[Orig. Op. Page 8]]
            Though these relevant sections set forth guidelines to be followed in imposing and collecting the subject "special assessments," much discretion is left to each municipal legislative authority regarding the particular manner in which this is to be done.  Presumably, different municipalities, faced with different local situations, might wish to adopt different procedures.  It would be presumptuous for this office to dictate to each separate legislative authority the precise method it should employ in carrying out these and other provisions of the act, particularly as each of these legislative authorities has access to legal counsel who can advise it as to details.  Of course, if the selected mode of apportionment of assessments is palpably arbitrary and capricious or constitutes a plain abuse, it may be condemned as violative of the concepts of justice embodied in the 14th Amendment of the Federal Constitution.  Accord, Hargreaves v. Mukilteo Water Dist., 43 Wn.2d 326, 261 P.2d 122 (1953), and authorities cited therein.  Should a municipality adopt a plan of assessment or collection unconstitutional in this or any other respect, or not in accord with the statutory guidelines, or repugnant to other relevant laws, the courts are always available to a plaintiff who is injured thereby.

            We trust that the foregoing will be of assistance to you.
Very truly yours,
John S. Robinson
Special Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, Ayers v. City of Tacoma, 6 Wn.2d 545, 108 P.2d 348 (1940).
2/Senate Bill No. 130.
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