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AGO 1975 No. 17 - August 05, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- HIGHWAYS ‑- ROADS ‑- POLICE POWER ‑- MANDATORY REMOVAL OF SIGHT OBSTRUCTIONS FROM PRIVATE PROPERTY

(1) A county ordinance adopted under Article XI, § 11 of the state constitution may not require the owner of land abutting a county road intersection, without compensation, to remove preexisting trees and other vegetation or structures from within a prescribed distance of the intersection in order to provide an unobstructed view across the owner's land for vehicles approaching the intersection.

(2) A county may, however, secure the removal of such sight obstructions at an intersection by exercising its constitutional powers of eminent domain.

                                                              - - - - - - - - - - - - -

                                                                  August 5, 1975

Honorable Arthur R. Eggars
Prosecuting Attorney
Walla Walla County
401 Drumheller Building
Walla Walla, Washington 99362

                                                                                                                 Cite as:  AGO 1975 No. 17

Dear Sir:

            By letter previously acknowledged you have requested our opinion on three questions which we paraphrase as follows:

            (1) May a county by ordinance adopted under Article XI, § 11 of the state constitution require the owner of land abutting a county road intersection, without compensation, to remove preexisting trees, other vegetation or structures from within a prescribed distance of the intersection in order to provide an unobstructed view across the owner's land for vehicles approaching the intersection?

            (2) If the answer to question (1) is in the affirmative, may the ordinance provide that upon failure of the owner to remove such vegetation, structures, or equipment from his land within the prescribed distance of the intersection after appropriate notice and hearing, the county will be authorized to accomplish such work and impose a lien  [[Orig. Op. Page 2]] upon the land for the costs it has incurred?

            (3) If the answer to question (1) is in the negative, could a county secure removal of such obstructions in order to improve the sight distance at an intersection by exercising its powers of eminent domain?

            We answer your first question in the negative and your third in the qualified affirmative; consideration of your second question is thereby rendered unnecessary.

                                                                     ANALYSIS

            Counties are authorized by RCW 36.86.020 to establish minimum standards for the construction of county roads and, accordingly, can properly establish minimum sight distances at intersections as is proposed in your opinion request.  Your questions essentially ask whether, insofar as preexisting conditions are concerned, such sight distances may be secured by a police power type regulation; or, instead, would such action require the acquisition of property by purchase or by condemnation under applicable statutes and Article I, § 16 of our state constitution which provides that:

            ". . .  No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, . . ."

            Question (1):

            There is no specific statutory authority for counties to restrict the use of private property adjacent to road intersections for the purpose of maintaining sight distances for vehicles approaching the intersection.  However, Article XI, § 11 contains a direct grant of police power to counties and cities in the following language:

             [[Orig. Op. Page 3]]

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            As was said inSeattle v. Ross, 54 Wn.2d 655, 659, 344 P.2d 216 (1959):

            "The police power of a municipality is derived through Art. XI, § 11, of the state constitution.  Commenting upon that provision of the constitution, this court said in Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462:

            "'This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself.  It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.'"

            The central question remains, however, as to whether a regulation requiring the removal of preexisting sight obstructions from private property constitutes a valid police power regulation or is, instead, a taking or damaging of private property requiring the payment of compensation.

            The proposed county ordinance which you have described poses an extremely close question and we have found no Washington decisions which provide a direct answer.  In considering the breadth of police power, Justice Douglas noted in Berman v. Parker, 348 U.S. 26, 32, 99 L.ed. [[L.Ed.]]27, 75 S.Ct. 98 (1954):

            ". . .  An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts.  The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . ."

             [[Orig. Op. Page 4]]

            The use of this power to control and regulate the use of private property has found its greatest extension in the law of zoning, the purposes of which are to stabilize the use and value of property and to preserve the character of neighborhoods.  McNaughton v. Boeing, 68 Wn.2d 659, 414 P.2d 778 (1966).  InLenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964), the court quoted with approval from Highway 100 Auto Wreckers v. West Allis, 6 Wis.2d 637, 96 N.W.2d 85, 97 N.W.2d 423 (1959), which upheld a general 150 foot setback from a street line.  Similar ordinances providing for general setback lines have often been adopted by Washington cities and counties as a part of their general zoning ordinances.  In our view, however, the court's approval of such general land use and zoning controls, the purpose of which is to stabilize the use and value of property and preserve the character of neighborhoods, does not control the question presented here.

            The cases considering the limits of authority of the state or municipalities to regulate private land use which are most instructive for our present purposes relate to controls associated with the construction, maintenance, or operation of highways.  InMarkham Advertising Co. v. State, 73 Wn.2d 405, 439 P.2d 248 (1968), the court approved the Highway Advertising Control Act as a valid exercise of the state's police power.  Specifically, the court held that the act (requiring the removal of certain signs within 660 feet of designated highways) bore a reasonable and substantial relation to a proper legislative purpose which included the promotion of traffic safety.

            The line between a taking of property for which compensation must be paid and a police power regulation has been marked out with some particularity with respect to control of access to public highways.  The owner of land abutting upon a conventional highway has an easement of ingress and egress.  This has been treated as a property right, attached to the land.  Such an owner is entitled to just compensation if this easement or property right is taken or damaged.  State v. Calkins, 50 Wn.2d 716, 314 P.2d 449 (1957).  But inKahin v. Seattle, 64 Wn.2d 872, 395 P.2d 79 (1964), the court held that the installation on a street of traffic regulatory markers which interfered with an abutting owner's ingress and egress would constitute a taking or damaging of property only where the interference was unreasonable.  The court concluded that such interference was not  [[Orig. Op. Page 5]] unreasonable where it resulted from the regulation of the general direction, flow, or diversion of all traffic on the street as long as the owner's practical access rights were not entirely cut off.  Likewise, inWalker v. State, 48 Wn.2d 587, 295 P.2d 328 (1956), the court held that the rerouting and diversion of traffic by a center line barrier is a proper object of a police power regulation and that the circuity of travel resulting from such an exercise of this power is an incidental result of a lawful act and not the taking or damaging of a property right within the meaning of Article I, § 16 of the state constitution,supra.

            On the other hand, inUlery v. Kitsap County, 188 Wash. 519, 523, 63 P.2d 352 (1936), it was held that the construction of a county road which caused adjacent private property to be flooded by surface waters constituted a taking and damaging under Article I, § 16 and therefore required the payment of compensation for the damages sustained.  In so holding the court observed:

            "The construction of highways by a county is lawful; but a county has no right to construct a highway to the damage of a private citizen of the county, and any use of land for a public purpose which inflicts an injury upon adjacent land, such as would have been actionable by a private owner, is a taking and damaging within the constitution, and the fact that it was not condemned in advance does not absolve it from liability where no negligence is charged in the performance of a governmental duty. . . ."  [Citing cases.]

            Accord,Harkoff v. Whatcom County, 40 Wn.2d 147, 241 P.2d 932 (1952).

            It may thus be seen that the question under consideration cannot easily be answered either by reference to the conventional definition of police power ‑ i.e., those laws enacted in furtherance of public safety, morals, health and welfare ‑ or to the usual description of an exercise of the power of eminent domain, to-wit, the taking of property or a right in property from a private owner for the public use.  There can be no doubt that an ordinance  [[Orig. Op. Page 6]] requiring the removal of preexisting sight obstructions from private property adjacent to a road intersection would have a direct relationship to traffic safety and if that were the only test it would qualify as a valid exercise of the police power.  At the same time a governmental restriction which would require such action must, in practical terms at least, be seen to deprive the owner of the most important attributes of ownership of the affected property.

            The boundary between police power and eminent domain, while difficult to discern, is discussed in 16 Am.Jur.2d 518, Constitutional Law, § 264:

            "The boundary line which divides the police power of the state from the other functions of government is often difficult to discern, but it is distinguishable from taxation, and, although its exercise and the exercise of eminent domain have much in common, the police and eminent domain powers are also essentially distinct.  Thus, under the police power, many restrictions may be imposed without compensation being given, whereas under the power of eminent domain compensation is required.  A further and more important distinction lies in the fact that in eminent domain, property or a right in property is taken from the owner and transferred to a public agency to be enjoyed by it as its own, whereas under the police power, although it may, and often does, take property in the constitutional sense so that it must be paid for, this is not accomplished by a transfer of ownership, but by destroying the property or impairing its value. . . ."

            Or, as stated more explicitly by our own court in Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377 (1921), while the police power permits regulation of private property even to its destruction under the necessity of the public health, peace, or welfare, when private property rights are taken from the individual and are conferred upon the public for public use eminent domain principles are applicable.  And specifically applicable to the question presented here is the holding ofBoitano v. Snohomish County, 11 Wn.2d 664, 668, 120 P.2d 490 (1941), that:

             [[Orig. Op. Page 7]]

            "The taking or damaging of property to the extent that it is reasonably necessary to the maintenance and operation of other property devoted to a public use is, likewise, a taking or damaging for a public use. . . ."

            See, also,Anderson v. Port of Seattle, 49 Wn.2d 528, 304 P.2d 705 (1956).

            In the instant case it appears to us that the proposed county regulation requiring the removal ofexisting sight obstructions from private property adjacent to a road intersection can only be justified as a measure necessary for the maintenance and operation of the existing county roads which are properly devoted to a public use.  Accordingly, we must conclude that the taking of the property rights of a private owner for such a purpose must in itself constitute a taking or damaging for a public use within the meaning of Article I, § 16.1/

             [[Orig. Op. Page 8]]

            Question (2):

            Because of the above negative answer to question (1) no answer is required to your second question.

            Question (3):

            Assuming the foregoing negative response to your first question, you have finally asked whether a county may exercise its powers of eminent domain to control the use of lands adjacent to a road intersection in order to maintain minimum sight distance.

            As noted at the outset, RCW 36.86.020 authorizes counties to establish minimum standards for the construction of county roads.  Such standards may include provision for minimum sight distance at intersections.  The necessary clearing of property adjacent to such intersections can be accomplished either by acquiring in fee the zone to be maintained free of obstructions or by acquiring an easement which would require the zone to be so maintained.  Existing statutes contain ample authority to acquire such property or right in property by purchase or condemnation.

            RCW 36.75.040 provides, in part, as follows:

            "The board of county commissioners of each county, in relation to roads and bridges, shall have the power and it shall be its duty to:

            "(1) Acquire in the manner provided by law property real and personal and acquire or erect structures necessary for the administration of the county roads of such county;

            ". . .

            "(3) Acquire land for county road purposes by purchase, gift, or condemnation, and exercise the right of eminent domain as by law provided for the taking of land for public use by counties of this state;

            "(4) Perform all acts necessary and proper  [[Orig. Op. Page 9]] for the administration of the county roads of such county as by law provided;

            ". . ."

            RCW 36.85.010 also provides, in pertinent part:

            "Whenever it is necessary to secure any lands for a right-of-way for any county road or for the drainage thereof or to afford unobstructed view toward any intersection or point of possible danger to public travel upon any county road or for any borrow pit, gravel pit, quarry, or other land for the extraction of material for county road purposes, or right-of-way for access thereto, the board may acquire such lands on behalf of the county by gift, purchase, or condemnation. . . ."  (Emphasis supplied.)

            RCW 8.08.010 authorizes counties generally to condemn land and property within their boundaries for public use.  Finally, RCW 8.08.020 provides that:

            "Any condemnation, appropriation or disposition intended in RCW 8.08.010 through 8.08.080 shall be deemed and held to be for a county purpose and public use within the meaning of RCW 8.08.010 through 8.08.080 when it is directly or indirectly, approximately or remotely for the general benefit or welfare of the county or of the inhabitants thereof."

            InKing County v. Theilman, 59 Wn.2d 586, 369 P.2d 503 (1962), it was held that as a general rule the acquisition of private property for the purpose of constructing and maintaining a county road is for a "public use", within the constitution and RCW 8.08.020.  The court added, however, that "in the determination of public use of a piece of property sought to be taken, is an element of public necessity.  The rule must be applied to the facts of each case."  The court then quoted fromState ex rel. Church v. Superior Court, 40 Wn.2d 90, 91, 240 P.2d 1208 (1952),  [[Orig. Op. Page 10]] relating to the determination of necessity as follows:

            "'. . .  The rule is well settled in this state that a declaration of necessity by the proper municipal authorities is conclusive, in the absence of actual fraudor such arbitrary or capricious conduct as would amount to constructive fraud. . . .'"  (59 Wn.2d 595.)

            In our opinion the acquisition of private property deemed necessary by a board of county commissioners to establish sight distances at road intersections in conformity with adopted minimum road standards would, subject to the narrow limitations contained in the rule set forth in the Church case, constitute a public use.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


THOMAS R. GARLINGTON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In so concluding on the basis of the pertinent observations and reasoning to be found in the above cited Washington cases, we also appear to have struck a line of demarcation between police power and eminent domain similar to that which was drawn recently by the court of appeals of Maryland in Stevens v. City of Salisbury, 240 Md. 556, 214 A.2d 775 (1965).  There the court upheld as a proper exercise of the police power a portion of a city ordinance restricting future conditions on private property which would constitute intersection sight obstructions; however, at the same time it invalidated other portions of the same ordinance which, without compensation, would have required the removal of preexisting structures.  Although the court in so holding did allow the city to require the trimming of existing trees and hedges without payment to the property owner, it did so only to the extent that the trimming ". . . will not destroy the usefulness of the object trimmed or result in substantial loss to the property owner."  Id., p. 784.  We are enclosing a copy of this Maryland case for your immediate reference and consideration.

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