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Bob Ferguson

AGLO 1974 No. 32 - Mar 15 1974
Attorney General Slade Gorton


To the extent that House Bill No. 1295 (chapter 141, Laws of 1974, 1st Ex. Sess.) is constitutionally valid, it permits municipalities to use gasoline tax revenues for the construction of bicycle paths.

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                                                                  March 15, 1974

Honorable Jeff Douthwaite
State Representative, 43rd District
5518 31st N.E.
Seattle, Washington 98105                                                                                                               Cite as:  AGLO 1974 No. 32

Dear Sir:

            This is written in response to your recent letter inquiring as to whether the passage of House Bill No. 1295 during the current legislative session will now permit gasoline tax revenues to be used for construction of the Burke‑Gilman Trail in northeast Seattle.

            We respond to this question in the manner set forth in our analysis.


            House Bill No. 1295, entitled "AN ACT Relating to bicycle routes and bicycles; . . ." was passed by the legislature earlier this year and signed into law by the governor on February 16, 1974.  It contains, in § 15, an emergency clause so that, except for § 13 which was vetoed by the governor, the remainder of the act became effective on that date.  Accord, AGLO 1974 No. 22 [[to A. Ludlow Kramer, Secretary of State, an Informal Opinion AIR-74522]], copy enclosed.

            Insofar as your question is concerned, there are two separate portions of the act which might be considered as possible sources of funding for the Burke‑Gilman Trail.  First, §§ 3 through 5 provide for an extension of the responsibilities of the urban arterial board to include the adoption of standards for bicycle routes, the authorization of two pilot programs to be conducted in cities and counties designated by the board, and an appropriation of fifty thousand dollars for those pilot programs from the urban arterial trust account of the state motor vehicle fund.

            Secondly, and somewhat independently, § 10 of the act contains the following authorization:

             [[Orig. Op. Page 2]]

            "Any city or town may use any funds available for street or road construction, maintenance, or improvement for building, improving, and maintaining bicycle paths, lanes, roadways, and routes, and for improvements to make existing streets and roads more suitable and safe for bicycle traffic:  PROVIDED, That any such paths, lanes, roadways, routes, or streets for which any such street or road funds are expended shall be suitable for bicycle transportation purposes and not solely for recreation purposes."

            By virtue of various preexisting statutes, including RCW 46.68.100, et seq., the funds which are available to a city or town for street or road construction include portions of the revenues derived from the state excise tax on motor vehicle fuel, as provided for in chapter 82.36 RCW.  And, as you know, Article II, § 40 (Amendment 18) of the state Constitution restricts the expenditure of those revenues to what are referred to therein as "highway purposes."  The rationale for § 10,supra, thus must be deemed to be a legislative determination that the construction of bicycle paths under that section will constitute a highway purpose.

            To the extent that this legislative determination is constitutionally valid,1/ it thus follows that a city or town may now use, interalia., its share of state gasoline tax revenues for the construction, maintenance or improvement of bicycle paths ‑ subject, however, to the important qualification contained in the proviso to § 10,supra,

            ". . .  That any paths, lanes, roadways, routes, or streets for which any such street or road funds are expended shall be suitable for bicycle transportation purposes and not solely for recreation purposes."

            Insofar as the constitutionality of this new law is concerned, we must at this time attach to it a presumption of constitutionality in accordance with the long-standing policy considerations outlined in our  [[Orig. Op. Page 3]] earlier letter to you of March 7, 1972, a copy of which is also enclosed for your immediate reference.  As for the question of whether the Burke‑Gilman Trail as it is to be constructed will meet the requirements of the foregoing proviso, this is, essentially, a factual question upon which we would have to refer you to those personnel of the city of Seattle who are currently engaged in planning this particular facility.

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

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969).