AGO 1971 No. 36 - Nov 26 1971
OFFICES AND OFFICERS ‑- STATE ‑- TOLL BRIDGE AUTHORITY ‑- RESERVING OF ONE LANE OF EVERGREEN POINT BRIDGE FOR EXCLUSIVE BUS TRANSIT AND CAR POOL USE
(1) The Washington toll bridge authority resolution authorizing issuance of bonds for the Evergreen Point Toll Bridge does not prohibit the highway commission from reserving a lane of the bridge for exclusive transit use.
(2) RCW 47.52.025 authorizing the highway authorities of the state, counties, and cities to regulate, restrict, and prohibit the use of limited access facilities by the various classes of vehicles or traffic empowers the state highway commission to restrict the use of a highway lane across the Evergreen Point Toll Bridge for exclusive transit use.
(3) Additional legislation will be required to authorize the highway commission to give preferential use of lanes to cars carrying a specified minimum number of passengers.
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November 26, 1971
Honorable G. K. Jeff Douthwaite
State Representative, District 32A
5518 ‑ 31st N.E.
Cite as: AGO 1971 No. 36
You have asked for an opinion of this office regarding the legality of reserving one lane of the Evergreen Point Bridge for exclusive bus transit and for car pool use. You have specifically inquired (a) whether any of the covenants of the Washington toll bridge authority resolution authorizing the issuance of bonds for financing construction of the Evergreen Point Bridge would prohibit the assignment of a bridge lane for exclusive transit or car pool use; and (b) whether the highway commission possesses the requisite authority so to regulate the use of this facility.
We conclude that both the statutes authorizing the construction and operation of the Evergreen Point Toll Bridge [[Orig. Op. Page 2]] and the bond resolution would permit the highway commission to reserve one lane of the bridge for exclusive bus transit use. However, additional legislation will be required to authorize the commission to give preferential use of lanes to cars carrying a specified minimum number of passengers.
The second Lake Washington toll bridge, commonly referred to as the Evergreen Point Toll Bridge, was authorized by chapter 266, Laws of 1957, now codified as RCW 47.56.281 ‑ 47.56.286. Pursuant to the legislative act, the toll bridge authority passed Resolution No. 341 on November 9, 1959, authorizing the issuance of $30 million in revenue bonds to be used to pay the cost of constructing the bridge.
The only portion of the toll bridge authority resolution which may pertain to your question is section 17, which provides in part:
". . . so long as any Bonds are outstanding, said bridge, including its connecting approaches, shall be lawfully and efficiently managed, operated and maintained as a revenue‑producing undertaking. . . . In order to assure adequate funds being available at all times, it is hereby specially covenanted and agreed that so long as any Bonds remain outstanding and unpaid, the schedule of tolls for traffic over the second Lake Washington bridge will be fixed and maintained so as to produce revenues each year which, with any other income received from other sources for payment of operation, maintenance, and repair expenses, will be sufficient to pay all costs of operation, maintenance, and repair of the bridge (including all insurance costs), and in addition thereto to permit payment into the 'Principal Account' in the Bond Fund . . . [specified annual principal payments through the year 1999] together with the amounts required to be paid into the 'Interest Account' in the Bond Fund to meet the interest requirements for each such year."
[[Orig. Op. Page 3]] Currently the toll for buses crossing the Evergreen Point Bridge is 50 cents for 2-axle buses and 75 cents for 3-axle buses with no additional charge for passengers. The toll for automobiles is 35 cents with no additional charge for passengers. The commuter rate for automobiles of 19 1/2 cents likewise provides no additional charge for passengers. Assuming that there was no change in tolls, it is obvious that any decision by the highway commission to close one lane of traffic to automobiles in order to make the lane available exclusively for transit vehicles would tend to reduce the revenue from the operation of the bridge because of the reduced capacity of the bridge to accommodate automobile traffic.1/ Even assuming a substantial increase in transit patronage, the additional revenue resulting from extra transit vehicles using the exclusive lane would be extremely limited because of the small toll of 50 or 75 cents per bus with no additional toll for the passengers. The loss of revenue resulting from the reduction in automobiles using the bridge would almost certainly substantially exceed the slight increase in revenue from transit vehicles.
Would such a decision resulting in a reduction in revenue violate either of the provisions of the bond resolution quoted above? We do not believe that the mandate that the bridge be efficiently operated as a revenue‑producing undertaking would preclude the assignment of a traffic lane for transit vehicles. The only real measure of efficient operation "as a revenueproducing undertaking" found in the bond resolution is the requirement that the tolls be fixed and maintained so as to produce revenues sufficient to pay the costs of operation, maintenance and repair expenses and in addition thereto sufficient sums to pay interest and principal on the bonds. So long as the revenues are sufficient to meet minimum annual debt-service requirements, the general requirement that the bridge be operated efficiently "as a revenue‑producing undertaking" would be satisfied.
[[Orig. Op. Page 4]] Our next inquiry is whether there exists adequate statutory authority for the highway commission, which is charged by law with the operation of toll bridges, to reserve a traffic lane of the bridge for the exclusive use of (a) transit vehicles or (b) car pool use.
The Evergreen Point Toll Bridge is a part of state Route 520 (RCW 47.17.720) and has been established as a limited access facility pursuant to the provisions of chapter 47.52 RCW.
RCW 47.52.025 authorizes the highway authorities of the state, counties, and cities to regulate, restrict, and prohibit the use of limited access facilities by the various classes of vehicles or traffic. This statute contains general authority for the state highway commission to establish classes of vehicles and traffic and then restrict any part of a limited access facility for exclusive use by one or more of the classes of vehicles or traffic established. Transit buses are clearly an identifiable class of vehicles. Such a classification is reasonable and within the power of the highway commission to make under RCW 47.52.025. See, also, RCW 47.52.070 authorizing agreements for use of limited access facilities by an urban public transportation system.
We note also that RCW 47.56.256 authorizes the highway commission to grant franchises to persons or public agencies to use any portion of a toll bridge for maintenance of various utility lines for "any structures or facilities which are part of the urban transportation system" in the manner of granting franchises on state highways. It would appear that the principal purpose of this statute is to permit the erection of transit facilities such as stations on toll bridge authority property pursuant to a franchise and does not specifically relate to the allocation of highway lanes for exclusive transit use.
Reservation of a bridge lane for cars carrying a specified minimum number of passengers as in the case of car pools presents a more difficult question. RCW 47.52.025 speaks of restricting or prohibiting use of limited access facilities "by various classes of vehicles or traffic." A class of vehicles by the usually understood meaning of the term relates to type of vehicle such as passenger cars, trucks or buses. It cannot fairly be said that the number of passengers in an automobile at a particular time would distinguish that automobile as a "class of vehicle" or for that matter a class of traffic. In context, the word "traffic" used in the statute [[Orig. Op. Page 5]] means simply the movement of vehicles upon the highway. Ballentine's Law Dictionary, 1290. Thus, traffic could properly be classified by the commission as "slow moving" or "under 35 miles per hour" for example. Again, in the context of the statute, the number of passengers in an automobile would not represent a class of traffic.
We therefore believe that more explicit legislation is required to authorize the highway commission or cities or counties to prohibit use of limited access facilities within their respective jurisdictions to cars containing less than a specified number of passengers.
For the above reasons we conclude that the highway commission does have the authority to restrict the use of a highway lane across the Evergreen Point Bridge for exclusive transit use providing that in so doing the revenues derived from the operation of the bridge are not reduced to below the minimum debt-service requirements as defined in the bond resolution. We do not believe, however, that the existing statutes authorize the allocation of highway lanes across the Evergreen Point Bridge for the exclusive use of automobiles transporting a specified number of passengers.
We trust the foregoing will be of assistance to you.
Very truly yours,
THOMAS R. GARLINGTON
Senior Assistant Attorney General
*** FOOTNOTES ***
1/See, RCW 47.56.032 with regard to the authority of the toll bridge authority to ". . . determine all fares, tolls and other charges for its facilities . . ." Under this statute there is no doubt that the authority could meet any diminution in revenues from tolls charged for use of the Evergreen Point Bridge as a result of this plan by increasing the tolls to be paid for buses.