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AGO 1987 No. 18 - July 23, 1987
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

INCORPORATION ‑- COUNTY ROADS ‑- ROAD CONSTRUCTION OR REPAIR ‑- DISCONTINUATION BY COUNTY PRIOR TO DATE OF INCORPORATION

RCW 35.02.220 does prohibit a county from discontinuing construction or repair of county roads which lie within the boundaries of a proposed city or town, prior to the official date of incorporation, for the reason that incorporation has been approved by the voters.

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                                                                    July 23, 1987

Honorable Louise Miller
State Representative, 45th District
17005 ‑ 191st Avenue N.E.
Woodinville, Washington 98072 

Cite as:  AGO 1987 No. 18                                                                                                                

Dear Representative Miller:

             By letter previously acknowledged, you have requested our opinion regarding the effect of RCW 35.02.220 on county road construction and repair projects.  RCW 35.02.220 addresses the provision of services by counties to areas in which incorporation as a city or town has been approved by the voters.  It provides in part:

             The approval of an incorporation by the voters of a proposed city or town, and the existence of a transition period to become a city or town, shall not remove the responsibility of any county, road district, library district, or fire district, within which the area is located, to continue providing services to the area until the official date of the incorporation.

             We paraphrase your question concerning RCW 35.02.220 as follows:

             Does RCW 35.02.220 prohibit a county from discontinuing construction or repair of county roads which lie within the boundaries of a proposed city or town, prior to the official date of incorporation, for the reason that incorporation has been approved by the voters?

            [[Orig. Op. Page 2]]

            We answer your question in the affirmative, for the reasons set forth in the following analysis.

                                                                     ANALYSIS

             Our analysis begins with a brief overview of relevant statutory provisions concerning the incorporation of cities and towns.

             Chapter 234, Laws of 1986 established a uniform procedure for the incorporation of cities and towns.  A prominent feature of this uniform incorporation process is a substantial period between voter approval of incorporation and the official date of incorporation.  See RCW 35.02.130.1/

               During this interim period, newly elected city or town officials are authorized to take certain actions which will facilitate a smooth transition from an unincorporated area to an incorporated city or town.  See RCW 35.02.130.  Under the statutory scheme, the city or town becomes officially incorporated on a date from 180 to 360 days following the election in which incorporation was approved.2/

              RCW 35.02.220, the statute about which you have inquired, addresses the provision of county services to the proposed city or town during the period between voter approval of incorporation and the official date of incorporation.  Repeated here for ease of reference, it provides in part:

              [[Orig. Op. Page 3]]

            Theapproval of an incorporation by the voters of a proposed city or town, and the existence of a transition period to become a city or town,shall not remove the responsibility of any county, road district, library district, or fire district, within which the area is located, to continue providing services to the area until the official date of the incorporation.

 (Emphasis added.)  That counties retain responsibility for county roads prior to the official date of incorporation also seems evident from RCW 35.02.180, which states in part:

             The ownership of all county roads located within the boundaries of a newly incorporated city or town shall revert to the city or town and become streets as of the official date of incorporation.

             Several statutes charge counties with responsibility for construction and maintenance of county roads.  See, e.g., chapter 36.75 RCW).  However, the basic responsibility of the counties in this regard is set forth in RCW 36.32.120(2).  It provides:

             The legislative authorities of the several counties shall:

            . . .

             (2) Lay out, discontinue, or alter county roads and highways within their respective counties, and do all other necessary acts relating thereto according to law, except within cities and towns which have jurisdiction over the roads within their limits;

            . . .

             These statutes establish two principles relevant to your inquiry.  First, roads within an area approved for incorporation remain county roads until the official date of incorporation.   [[Orig. Op. Page 4]]  Second, the county retains the responsibility for providing road construction and maintenance services in an area approved for incorporation during the period preceding the official date of incorporation.3/

              On the basis of these principles and the language of RCW 35.02.220, it is our opinion that a county may not, prior to the official date of incorporation, terminate road construction or maintenance services where the reason for the termination is approval of incorporation.  In our view, such an action by the county would be directly contrary to RCW 35.02.220, which dictates that approval of incorporation shall not relieve the county from road construction and maintenance responsibilities.

             This is not to say, however, that a county is prohibited from discontinuing road construction or maintenance in an area approved for incorporation for reasons other than pending incorporation.  Our courts consistently have recognized that decisions concerning road construction and repair, including decisions to discontinue those activities, are subject to the fairly exercised discretion of proper authorities.  State ex rel. Clark v. Seattle, 137 Wash. 455, 242 P. 966 (1926); State ex rel. Good Hope Gold & Copper Mining & Dev. Co. v. Morgan, 117 Wash. 214, 200 P. 1085 (1921); Burg v. Seattle, 32 Wn. App. 286, 647 P.2d 517,review denied, 98 Wn.2d 1007 (1982).  On the strength of this principle, our courts repeatedly have refused to compel the construction or maintenance of particular roads or streets.  Morgan,supra; Burg, supra.

             In summary, although counties have considerable discretion in making road construction and repair decisions, including the discretion to discontinue such activities, RCW 35.02.220 places a limitation on that discretion.  It removes approval of incorporation as a legitimate basis upon which a county may terminate road construction or repair services, during the transition period following approval of incorporation.

              [[Orig. Op. Page 5]]

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MAUREEN HART
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/Under prior statutes, incorporation generally was effective as soon as the results of the election on the question of incorporation were certified by the county.  See, e.g., Laws of 1967, 1st Ex. Sess., ch. 119, §§ 35A.03.120-35A.03.130,repealed by Laws of 1986, ch. 234, § 41.

 2/The newly elected governing body may set an official date of incorporation by resolution.  RCW 35.02.130.  In the absence of such a resolution, RCW 35.02.130 fixes the official date of incorporation as 360 days following the incorporation election.

 3/Although your inquiry focuses on county responsibilities prior to the official date of incorporation, we note, as a related matter, that under RCW 35.02.220(2), the county must also provide road maintenance services for a limited period, not to exceed sixty days, following the official date of incorporation.  Thereafter, the newly incorporated city or town is authorized to contract with the county for the provision of services.  RCW 35.02.225.

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