Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1959 No. 7 - Feb 9 1959
Attorney General John J. O'Connell


The state cannot enter into a lease to private parties of air rights over the Tacoma-Seattle‑Everett Freeway in the absence of adequate enabling legislation.

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                                                                 February 9, 1959

Honorable Julia Butler Hansen
Chairman, Joint Fact-Finding Committee
on Highways, Streets and Bridges
House Highways Committee Room
Legislative Building
Olympia, Washington                                                                                                   Cite as:  AGO 59-60 No. 7

Dear Mrs. Hansen:

            You requested an opinion of this office on a question which may be paraphrased as follows:

            May the state lease air rights over the Tacoma-Seattle‑Everett Freeway to private parties for the construction and operation of parking facilities?

            We answer your question in the negative, subject to the qualifications contained in the analysis.


            1. There is no statutory authority for leasing of air rights over the Tacoma-Seattle‑Everett Freeway to anyone for parking facilities at the present time.  RCW 47.12.120 provides in part as follows:

            "The director may rent or lease any lands, including improvements thereon, which are held for state highway purposes and are not presently needed therefor, upon such terms and conditions as he may determine, . . ."

             [[Orig. Op. Page 2]]

            RCW 43.27.100 vests in the state highway commission all powers of the director.  RCW 47.12.070 authorizes leases of land to cities and counties only for terms not exceeding four years.  Note that RCW 47.12.070 and RCW 47.12.120 apply only to "lands" without reference to interests therein.  In view of the holding ofState ex rel. Veys v. Superior Court, 33 Wn. (2d) 638, 206 P. (2d) 1028, refusing to permit condemnation of rights of access, light, view and air where statutory authority extended only to "land," we conclude that RCW 47.12.120 authorizing leasing of "lands" cannot be construed as permitting leasing of air rights.

            The general powers and duties of the state highway commission are enumerated in RCW 43.27.020, including:

            "(5) Exercise all the powers and perform all the duties necessary, convenient, or incidental to the laying out, locating, relocating, surveying, constructing, altering, repairing, improving, and maintaining of any state highway, and of any bridges, culverts, and embankments necessary or important therefor, or for the protection or preservation thereof, and channel changes therefor . . ."

            As to limited access facilities, RCW 47.52.020 indicates that the commission:

            ". . . may plan, designate, establish, regulate, vacate, alter, improve, construct, maintain, and provide limited access facilities . . ."

            In addition, RCW 47.32.160 provides:

            "The director may adopt reasonable rules and regulations and issue permits, not inconsistent with previous laws in effect, for the construction of any approach road, facility, thing, or appurtenance, upon state highway rights-of-way.  Such rules and regulations and such permits may include, but need not be limited to, provisions for construction of culverts under approaches, requirements as to depth of fills over culverts, and requirements for such drainage facilities in so far as the said director may deem any of such provisions or requirements to be necessary, and any such permit issued may contain such terms and conditions as may be prescribed.  All such construction shall be  [[Orig. Op. Page 3]] under the supervision of the director and at the expense of the applicant.  After the completion of the construction of the particular approach road, facility, thing, or appurtenance, the same shall be maintained at the expense of the applicant and in accordance with the directions of the director."

            We note that the statute merely authorizes the issuance of permits and not leases.  Inasmuch as the usual meaning of permit is a revocable license, Lanham v. Forney, 196 Wash. 62, 81 P. (2d) 777, it would appear that this statute is not broad enough to authorize the leasing of air rights for parking facilities, nor does it appear that the word "facility" is used in the statute in its broadest sense, but relates primarily to approach roads, drainage construction and maintenance of access ways to the highway.

            It does not appear to be necessary or reasonably implied in the performance of these enumerated duties relating to state highways that the commission have authority to permit construction of parking facilities which will have no direct connection or result in any direct benefit to the state highway involved except for rental receipts.  We therefore conclude that the proposed leasing is not authorized under any statute defining the general powers of the commission.

            The right of way of the freeway is not "public lands" or "state lands" as defined by RCW 79.01.004.  See the formal opinion of the attorney general to the Washington state highway commission dated November 25, 1953, (AGO 53-57 No. 176), and State v. Superior Court, 91 Wash. 454, 157 Pac. 1097.  Full jurisdiction and control to and over limited access facilities following purchase and construction by the state vests in the state highway commission.  RCW 47.24.020 (2), RCW 47.52.090.  Therefore, RCW 79.01.244 relating to the leasing of "public lands" would not apply to this situation.

            As indicated by the foregoing, there are no statutes authorizing the state to lease as indicated in your request.  Such enabling legislation appears necessary.  Camden Plaza Parking v. City of Camden, 107 A. (2d) 1.

            2. The law in this state is not clear as to the leasing of public property acquired by eminent domain for private use.  Some cases have held such leasing unconstitutional.  Reed v. Seattle, 124 Wash. 185, 213 Pac. 923; Anderson v. Nichols, 152 Wash. 315, 278 Pac. 161.  See Washington Toll Bridge Authority v. State, 49 Wn. (2d) 520, 304 P. (2d) 676;Motor-ramp Garage Co. v. Tacoma, 136 Wash. 589, 241 Pac. 16.  The recent case ofWinkenwerder v. Yakima, 152 Wash. Dec. 547 [[52 Wn. 2d 617]], approving a  [[Orig. Op. Page 4]] leasing of advertising space on parking meters, indicated that leasing of public property to a private party was constitutional if the use allowed were public in nature and did not constitute an unreasonable encroachment.  Other jurisdictions have recognized the legality of statutes which included leasing of off-street parking facilities to private parties.  Lowell v. Boston, 79 N.E. (2d) 713 (Mass. 1948); Court Street Parking Co. v. Boston, 143 N.E. (2d) 683 (Mass. 1957);Cleveland v. Detroit, 37 N.W. (2d) 625 (Mich. 1949);Omaha Parking Authority v. Omaha, 77 N. W. (2d) 862;Poole v. City of Kankakee, 94 N.E. (2d) 416 (Ill. 1950); City of San Francisco v. Linares, 106 P. (2d) 369 (Calif. 1940);Barnes v. City of New Haven, 98 A. (2d) 523 (Conn. 1953);Foltz v. City of Indianapolis, 130 N.E. (2d) 650 (Ind. 1955).

            In view of theWinkenwerder case, supra, and those elsewhere specifically concerned with off-street parking, we are inclined to conclude that the leasing which is the subject of this opinion, pursuant to proper enabling legislation, would be constitutional.

            3. The above conclusion that the state has power to lease upon passage of proper enabling legislation is subject to the following qualifications:

            A. Any leasing must not interfere with the principal public purpose of the public improvement encroached upon.  Winkenwerder v. Yakima, supra; City of San Francisco v. Linares, supra; Zachry v. City of San Antonio, 296 S.W. (2d) 299 (Texas 1956).  SeeState v. Superior Court, supra.

            B. Legislation and leases must provide controls as to the manner and method of operation to insure continuation of the public purpose of the parking facility and its operation for a public good rather than primarily private gain or benefit.  Zachry v. City of San Antonio, supra; Omaha Parking Authority v. Omaha, supra; City of San Francisco v. Ross, 279 P. (2d) 529 (Calif. 1955).

            C. The lease cannot result in an "unreasonable encumbrance" upon abutting property.  Winkenwerder v. Yakima, supra.  It is doubtful if there will be any encroachment on private air rights as the freeway through most of its length will be a new limited access facility; abutting owners have no air rights to such a facility.  State v. Calkins, 50 W. (2d) 716, 314 P. (2d) 449.  Where the freeway follows the route of an existing highway, the state will probably have acquired abutters' air rights in its right of way acquisition.  Abutters who are specially damaged may object to non-public uses such as service stations(Reed v. Seattle, supra) or markets (Anderson v. Nichols, supra).  SeeWashington Toll Bridge Authority v. State, supra.

             [[Orig. Op. Page 5]]

            D. Requirements of the Federal Bureau of Public Roads must be met.  RCW 47.10.702 contemplates construction of the Tacoma-Seattle‑Everett Freeway with federal matching funds and satisfying federal standards and specifications.  Bureau of Public Roads Cherry Memorandum 31, dated April 8, 1957, a copy of which accompanied your request for this opinion, is the latest general statement of the requirements of the Bureau of Public Roads regarding parking facilities on federal interstate routes.

            In view of the foregoing, we conclude that the state cannot lease air rights to private parties for the construction and operation of parking facilities over the Tacoma-Seattle‑Everett Freeway in the absence of adequate enabling legislation.

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

Very truly yours,

Attorney General

Assistant Attorney General