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AGO 1988 No. 20 - September 29, 1988
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

PUBLIC TRANSPORTATION BENEFIT AREA ‑- STREETS ‑- ROADS ‑- INTERLOCAL COOPERATION ACT 

A public transportation benefit area may not use its funds for improvements or maintenance of public roads and streets by means of an interlocal cooperation agreement with cities and/or counties, because the public transportation benefit area is not legally responsible for road and street construction or maintenance.

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                                                              September 29, 1988

 The Honorable Dennis DeFelice
Franklin County Prosecuting Attorney
P. O. Box 1160
Pasco, WA 99301-1160 

Cite as:  AGO 1988 No. 20                                                                                                                

 Dear Mr. DeFelice:

             Recently you requested our opinion on several questions concerning the contractual authority of public transportation benefit areas under chapter 36.57A RCW.  We have paraphrased your questions as follows:

             1.         May a public transportation benefit area (PTBA) enter into contracts with cities and counties within its boundaries for the purpose of providing funds to be used for the improvement and maintenance of public streets within the respective cities and counties?

             2.         If the answer to question 1 is in the affirmative, may sales tax monies collected by a PTBA pursuant to RCW 82.14.045(1) be utilized for the payments established in such contracts?

             3.         If the answer to question 1 is in the affirmative, may motor vehicle excise tax monies received by a PTBA pursuant to RCW 82.44.150 be utilized for the payments established in such contracts?

              [[Orig. Op. Page 2]]

             For the reasons discussed below, we answer your first question in the negative and therefore do not reach the issues posed by your second and third questions.

                                                                 BACKGROUND

            We understand from background information you have provided that the proposed undertaking contemplated by your question would involve a cooperative arrangement under which the Ben Franklin Transit Authority (a PTBA formed under chapter 36.57A RCW) would voluntarily agree to contribute to the expense of maintaining and repairing public streets.1/

             The basis of the proposed agreement would be the mutual interest of the contracting parties to maintain and improve the streets upon which the transit authority's buses run.  While the parties assume the transit authority has an interest in the provision of well-maintained streets and roadways to facilitate safe and comfortable transportation, the parties also recognize that legal responsibility to maintain and repair public streets rests with the cities and counties and that the transit authority has no such legal duty in this context.  These assumptions and understandings are reflected in the draft Interlocal Cooperation Act agreement you provided with your letter.

            We also understand from our review of the proposed contract that the city or county would not be obligated to use the funds provided by the transit authority to make any particular improvement or to maintain any particular streets.  Finally, a provision of the proposed contract specifies that "nothing herein should be construed as to require the (city or county) to use the funds received from the PTBA to supplement rather than supplant existing funds used for street and roadway improvements in the (city or county)."  In other words, the city or county may use the transit authority's funds for any road repair or maintenance within its jurisdiction, and the city or county may substitute funds provided by the PTBA for its own, presumably to free its own for other uses.

              [[Orig. Op. Page 3]]

                                                                      ANALYSIS

            Your questions concern the scope of authority of public transit benefit areas.  PTBA's are created pursuant to statute under chapter 36.57A RCW.  They are a form of municipal corporation and, as such, they derive their authority, powers, and duties from the Legislature.  Meadowdale Neighborhood Comm. v. Edmonds, 27 Wn. App. 261, 616 P.2d 1257 (1980).  Their powers are strictly limited to those expressly conferred by statute, those necessarily implied by the express grant, and those essential for the accomplishment of the Legislature's declared purpose.  Moses Lake Sch. Dist. 161 v. Big Bend Comm'ty College, 81 Wn.2d 551, 503 P.2d 86 (1972);Barendreqt v. Walla Walla Sch. Dist. 140, 26 Wn. App. 246, 611 P.2d 1385 (1980).  This rule is applied with special force when the public treasury will be affected directly by the action in question.  State ex rel. Bain v. Clallam Cy. Bd. of Cy. Comm'rs, 77 Wn.2d 542, 463 P.2d 617 (1970).

             To answer your first question, we must examine the statutes authorizing the creation of public transportation benefit areas and defining their purpose and powers.  RCW 36.57A.030 authorizes the formation of public transportation benefit areas.  A PTBA may encompass one or more counties or parts thereof and the cities within the PTBA's boundaries.  RCW 36.57A.050 specifies the composition of the PTBA's governing board as consisting of elected officials designated by and serving at the pleasure of the governing bodies of the cities and counties within the PTBA.

             RCW 35.57A.080 sets forth the general powers of a public transportation benefit area.  It provides in part:

             In addition to the powers specifically granted by this chapter a public transportation benefit area shall have all powers which are necessary to carry out the purposes of the public transportation benefit area.  A public transportation benefit area may contract with the United States or any agency thereof, any state or agency thereof, any other public transportation benefit area, any county, city, metropolitan municipal corporation, special district, or governmental agency, within or without the state, and any private person, firm or corporation for the purpose of receiving gifts or grants or securing loans or advances for preliminary planning and feasibility studies, or for the design, construction or operation of transportation facilities.  In addition, a public transportation benefit area may contract with any governmental agency or with any private person, firm or corporation for the use by either contracting party of all or any part of the  [[Orig. Op. Page 4]] facilities, structures, lands, interests in lands, air rights over lands and rights of way of all kinds which are owned, leased or held by the other party and for the purpose of planning, constructing or operating any facility or performing any service which the public transportation benefit area may be authorized to operate or perform, on such terms as may be agreed upon by the contracting parties. . . .

             RCW 36.57A.090 sets forth additional powers of public transportation benefit areas.  It provides in part that a PTBA is empowered

             To acquire by purchase, condemnation, gift, or grant and to lease, construct, add to, improve, replace, repair, maintain, operate, and regulate the use of transportation facilities and properties within or without the public transportation benefit area or the state, including systems of surface, underground, or overhead railways, tramways, buses, or any other means of local transportation except taxis; and including escalators, moving sidewalks, or other people‑moving systems, passenger terminal and parking facilities and properties, and such other facilities and properties as may be necessary for passenger and vehicular access to and from such people‑moving systems, terminal and parking facilities and properties, together with all lands, rights of way, property, equipment, and accessories necessary for such systems and facilities.  Public transportation facilities and properties which are owned by any city may be acquired or used by the public transportation benefit area authority only with the consent of the city council of the city owning such facilities.  Cities are hereby authorized to convey or lease such facilities to a public transportation benefit area authority or to contract for their joint use on such terms as may be fixed by agreement between the city council of such city and the public transportation benefit area authority, without submitting the matter to the voters of such city.

           These statutes define the powers of a public transportation benefit area in terms of its purpose.  Its express powers are related to the planning, construction or acquisition, and operation of a transit system to provide public transportation services within the area.  While the quoted language does convey authority for a PTBA to enter into contracts with the enumerated entities, including cities and counties, the purposes specified for such contracts all relate to the planning, construction or acquisition, or operation of the transportation system.  Thus, for example, a PTBA could contract with another municipal entity  [[Orig. Op. Page 5]] for the acquisition of a facility or the right to use an interest in land belonging to the other entity.  In our opinion, however, there is no language in these statutes that could be construed as an express grant of authority for a public transportation benefit area to enter into voluntary cooperative agreements with cities and counties for the purpose of contributing to the expense of repairing and maintaining public streets.

             Nor do we believe that a PTBA has the implied authority to contribute to the cost of city or county street repairs.  Cities and counties have express responsibility for repairing and maintaining streets within their jurisdiction.  See, e.g.,Boeing Co. v. State, 89 Wn.2d 443, 572 P.2d 8 (1978); RCW 35.22.280(7).  Conversely, a public transportation benefit area has no legal responsibility for street maintenance and repair.  Therefore, contributing to such maintenance is not necessary to the accomplishment of a PTBA's declared purpose, and a PTBA has no implied legal authority to expend its funds for such maintenance.

            Having concluded that there is no statutory authority for public transportation benefit areas to enter into agreements such as those described in your first question, we do not reach your second and third questions.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

SALLY P. SAVAGE
Sr. Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/You have assumed that cities and counties do not have the authority to prohibit a PTBA from running its buses on public streets within their jurisdictions or to condition such use on the payment of fees.  We therefore are not here concerned with the issues raised by any arrangement whereby a city or county might seek to unilaterally impose fees upon a public benefit transit area for the use of public streets.  Nor are we concerned here with a situation where damage might be caused to a city or county street by an act of negligence for which a PTBA is responsible and therefore liable in damages.

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