CITIES AND TOWNS ‑- ZONING ORDINANCES ‑- PRIVATELY OWNED OFF-STREET PARKING FACILITIES ‑- IMPOSITION OF EXCISE TAX
RCW 35.86A.070, which prohibits certain cities from regulating parking facilities not owned by the city does not prevent such a city from imposing its zoning ordinance in the case of such parking facilities or from imposing a business and occupation or similar excise tax upon the operators of those parking facilities.
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September 20, 1973
Honorable Paul Kraabel
State Representative, 46th District
7728 29th N.E.
Seattle, Washington 98115
Cite as: AGLO 1973 No. 95
By recent letter you have directed our attention to certain language appearing in RCW 35.86A.070 and have asked for our advice as to whether this statute presently restricts the ability of the city of Seattle (1) to enforce its current zoning ordinances in the case of any privately owned off-street parking facilities; (2) to impose a business and occupation or similar excise tax upon the operators of such privately owned parking facilities; or (3) to serve as an arm of the federal Environmental Protection Agency in issuing permits for the construction of new parking facilities under certain proposed federal regulations?
We respond to this request in the manner set forth in our analysis.
RCW 35.86A.070 codifies § 7, chapter 204, Laws of 1969, Ex. Sess. It deals, basically, with the powers and duties of a municipal parking commission and provides as follows ‑ with the language about which you are concerned being underscored:
"The parking commission is authorized and empowered, in the name of the municipality by resolution to:
"(1) Own and acquire property and property rights by purchase, gift, devise, or lease for the construction, maintenance, or operation of off-street parking facilities, or for effectuating the purpose of this chapter; and accept grants-in-aid, including compliance with conditions attached thereto;
[[Orig. Op. Page 2]]
"(2) Construct, maintain, and operate parking facilities, and undertake research, and prepare plans incidental thereto subject to applicable statutes and charter provisions for municipal purchases, expenditures, and improvements: Provided, That the provisions of chapter 35.86 RCW as now or hereafter amended shall not apply to such construction, operation or maintenance;
"(3) Establish and collect parking fees, make exemption for handicapped persons, lease space for commercial, store, advertising or autombile accessory purposes, and regulate prices and service charges, for use of and within and the aerial space over parking facilities under its control;
"(4) Subject to applicable city civil service provisions, provide for the appointment, removal and control of officers and employees, and prescribe their duties and compensation, and to control all equipment and property under the commission's jurisdiction;
"(5) Contract with private persons and organizations for the management and/or operation of parking facilities under its control, and services related thereto, including leasing of such facilities or portions thereof;
"(6) Cause construction of parking facilities as a condition of an operating agreement or lease, derived through competitive bidding, or in the manner authorized by chapter 35.42 RCW;
"(7) Execute and accept instruments, including deeds, necessary or convenient for the carrying on of its business; acquire rights to develop parking facilities over or under city property; and to contract to operate and manage parking facilities under the jurisdiction of other city departments or divisions and of other public bodies;
[[Orig. Op. Page 3]]
"(8) Determine the need for and recommend to the city council:
"(a) The establishment of local improvement districts to pay the cost of parking facilities or any part thereof;
"(b) The issuance of bonds or other financing by the city for construction of parking facilities;
"(c) The acquisition of property and property rights by condemnation from the public, or in street areas;
"(9) Transfer its control of property to the city and liquidate its affairs, so long as such transfer does not contravene any covenent or agreement made with the holders of bonds or other creditors; and
"(10) Require payment of the excise tax hereinafter provided.
"The city shall not have any power to regulate parking facilities not owned by the city. Parking fees for parking facilities under the control of the parking commission shall be maintained commensurate with and neither higher nor lower than prevailing rates for parking charged by commercial operators in the general area." (Emphasis supplied.)
As you will readily note from a reading of this act in its entirety,1/ it is simply an enabling law authorizing the establishment and operation of publicly owned off-street parking facilities by first, second and third class cities. Unless, however, a particular city has by affirmative action of its city council or other legislative authority established a parking commission as contemplated by §§ 2 and 5 of the act and, thereby, has proceeded to exercise the powers with respect to the establishment of such parking facilities which were granted by this legislation, the correlative restriction upon its [[Orig. Op. Page 4]] authority to regulate private parking facilities which is contained in § 7 (RCW 35.86A.070), supra, will have no application to that city at all.
Bearing this point in mind we immediately checked, upon receiving your letter, the current status of this new law as related to the city of Seattle ‑ and upon doing so we discovered that this city has, in fact, taken the foregoing requisite affirmative action. By Ordinance No. 98247, adopted on October 8, 1969, and now codified as chapter 1.89 of the Seattle Municipal Code, it created a parking commission and otherwise provided for its powers and duties in a manner consistent with the state act. From this it necessarily follows, in accordance with the foregoing, that this city is now subject to the restraint of that portion of § 7 which you have cited in your letter and we have underscored above; it, therefore, ". . . shall not have any power to regulate parking facilities not owned by the city." But does this mean that this city may not (1) enforce its zoning ordinances in the case of such parking facilities; (2) impose a business and occupation or similar excise tax upon the operators of these parking facilities; or (3) serve as an arm of the federal Environmental Protection Agency in issuing Permits for the construction of new parking facilities under certain proposed federal regulations?
For reasons which we will explain below, we believe that the first two parts of this question are answerable in the negative ‑ and, hopefully, this answer will be of some assistance in connection with part (3) as well. In the final analysis, however, the question of whether Seattle can qualify for such federal approval of it as a permit issuing agency under the Environmental Protection Agency's proposed regulations which are cited in your letter2/ - notwithstanding RCW 35.86A.070, supra ‑ [[Orig. Op. Page 5]] is not one which can be determined by this office in an attorney general's opinion. Instead, it is one to be decided by the federal agency involved on the basis of the city's own application for such a designation and its presentation (presumably including a statement of legal authority prepared by its own legal counsel) in support thereof. [[Orig. Op. Page 6]]
In view of that factor, this part of your question falls within the purview of our long-standing office policy of refraining from issuing legal opinions on questions involving interpretation or application of federal statutes or regulation (as distinguished from the statutes of our own state) dealing with matters which are under the jurisdiction of a federal regulatory agency. See, e.g., letter dated November 28, 1972, to State Representative John Martinis [[an Informal Opinion AIR-72596]], copy enclosed. As explained therein, the basic reason for this policy is that where federal legislation or regulations are involved, and where (as in the instant case) this legislation is administered by a federal agency, no opinion from this office could have any possible force or effect on the actual administration or enforcement of that legislation by the federal agency having jurisdiction.
As for parts (1) and (2) of your question, however, no such policy considerations are involved ‑ quite obviously. Those parts involve nothing more than the interpretation of an existing state statute (RCW 35.86A.070) in terms, here, of its impact upon a municipal corporation over which our legislature has, essentially, plenary jurisdiction.3/ In other words they involve, simply, an acertainment of legislative intent.
In determining such intent it is well established that statutory provisions such as the here critical sentence of § 7, chapter 204, supra, are not to be read in isolation but, instead, are to derive their meaning from the over-all context in which they appear. Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948). Likewise, as stated by the court in State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963):
"The intention of the legislature, in the enactment of a regulatory measure, must be determined from a consideration of all of [[Orig. Op. Page 7]] the provisions of the act. It is the duty of the court to adopt a construction of the statute that is reasonable, and in furtherance of the obvious and manifest purpose of the legislation. State v. Rinkes, 49 Wn.2d 664, 667, 306 P.2d 205 (1957), and case cited."
With these principles in mind we believe it quite significant to note that both the sentence here under consideration and the one which follows it with respect to parking fees were simultaneously added to the original text of § 7 of the then bill (House Bill No. 709) by a single House of Representatives Committee amendment. See, House Journal (1969), pp. 1091 and 1212. Repeated here for ease of reference, the full text of this amendatory paragraph reads as follows:
"The city shall not have any power to regulate parking facilities not owned by the city. Parking fees for parking facilities under the control of the parking commission shall be maintained commensurate with and neither higher nor lower than prevailing rates for parking charged by commercial operators in the general area."
The placement of this two sentence paragraph at this particular point in § 7, dealing with the regulatory and other powers of a parking commission ‑ rather than as an additional section somewhere else in the bill4/ - strongly suggests to us that in its use of the word "regulate," the legislature was thinking only of those sorts of powers which such a commission was itself to have with regard to potentially competitive publicly owned off-street parking facilities; in other words, such things, in particular, as the regulation of user parking fees and service charges, etc.
Without this over-all amendment it would potentially have been possible for a city to build its own public off-street parking facilities and then to drive off [[Orig. Op. Page 8]] private competition by undercutting the fees of private parking lots either by means of its own fee schedule or its regulation of the fees and charges imposed by the operators of those private lots. In order to prevent this it was necessary for the bill not only to require the parking commission to establish its own fees at the same level as the ". . . prevailing rates for parking charged by commercial operators in the general area" but, in addition, to bar the city from regulating those competing rates ‑ and this we discern to have been the underlying purpose of the two sentences of this amendment in combination with each other. Thus read, it follows that the first of these two sentences restraining the city's power to "regulate parking facilities not owned by the city" does not go to the question of whether a city to which it applies may, in the exercise of its constitutionally granted police power function of zoning,5/ exclude all parking lots from given geographic areas; and it most certainly does not go to the question of taxation of private commercial operators for the privilege of doing business in the same general manner (as by a municipal "B & O" tax) as other commercial activities are similarly taxed.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/We are enclosing a Xerox copy of the act for your immediate reference.
2/See F.R. Dec. 73-14270, a proposed amendment to part 52 of chapter 1, Title 40, CFR. This regulation, if adopted, would apply in all counties included in the Puget Sound Interstate Air Quality Control Region and would provide, in pertinent part, as follows:
"(c) No person, after the date of this regulation, shall commence construction of any new parking facility or modification or enlargement of any existing parking facility until he has first received from the Administrator or from an agency approved by the Administrator a permit stating that construction, modification or enlargement of such facility will not interfere with attainment or maintenance of applicable Federal air quality standards.
"(d) In order for any agency to be approved by the Administrator for purposes of issuing permits for construction of any new parking facility or any modification or enlargement of any existing parking facility, such agency shall demonstrate to the satisfaction of the Administrator that:
"(1) Requirements for permit applications and issuance have been established. Such requirements shall include but not be limited to a requirement that before a permit may be issued the following findings of fact or factually supported projections must be made:
"(i) The location of the facility. "(ii) The total motor vehicle capacity before and after the construction, modification, or enlargement of the facility. "(iii) The normal hours of operation of the facility and the enterprises and activities which it serves. "(iv) The number of people using or engaging in any enterprises or activities which the facility will serve. "(v) The number of motor vehicles using the proposed facility on an average hourly basis and a peak hour basis. "(vi) A projection of the geographic areas in the community from which people and motor vehicles will be drawn to the facility. Such projections shall include data concerning the availability of public transit from such areas.
". . ."
3/While Seattle, as a first class charter city, is not dependent upon the legislature for grants of authority it is, nevertheless, subject to any restraints upon its powers which the legislature may establish. See, Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein; cf., Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964).
4/Contrast this placement with that of another House Committee amendment which was also added to the bill at this same time. That amendment, denominated § 12 and now codified as RCW 35.86A.120, constituted an entire new section the gist of which was to prohibit cities establishing parking facilities under the act from themselves operating those facilities; instead, this amendment required those cities to contract for their operation with private concerns.
5/See, Wash. Const., Article XI, § 11 and such cases as State ex rel. Miller v. Cain, 40 Wn.2d 216, 242 P.2d 505 (1952).