Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1976 No. 76 -
Attorney General Slade Gorton


A public transportation benefit area organized pursuant to chapter 36.57A RCW has the authority to construct, on its own or in connection with other governmental agencies, a roadway for use exclusively by transit vehicles, transit access ramps associated with a new or existing roadway; or, with qualifications, a central passenger facility for use by various modes of travel; such an agency does not, however, have the authority to construct a roadway for general use by private automobiles.

                                                                  - - - - - - - - - - - - -

                                                               December 20, 1976

Honorable Jim Boldt
State Representative, 8th District
4416 West Rio Grande Avenue
Kennewick, Washington 99336                                                                                                               Cite as:  AGLO 1976 No. 76

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question pertaining to the powers of a public transportation benefit area, hereinafter referred to as a "PTBA," as provided in chapter 36.57A RCW.  Your question is as follows:

            "Does a PTBA have the authority to construct on its own or in conjunction with other governmental agencies:

            "1. A roadway for use exclusively by transit vehicles and/or for general use by the public;

            "2. Transit access ramps associated with a new or existing roadway;

            "3. A central passenger facility for use by various modes of travel which might include intra-city buses, inter-city buses, rail facilities, and autos?"

            We answer the foregoing question in the manner set forth in our analysis.


            A public transportation benefit area is defined by RCW 36.57A.010(1) as a "municipal corporation of the state of Washington" which may be created by the legislative authority of any county in accordance with procedures set forth in RCW 36.57A.020 ‑ 36.57A.070 to provide public transportation services to residents of the area.  The governing body of a PTBA is referred to as a "public transportation benefit area authority.  See, RCW 36.57A.010(2).

             [[Orig. Op. Page 2]]

            The two provisions of chapter 36.57A RCW1/ with which your question is primarily concerned are RCW 36.57A.080 and 36.57A.090, which provide, in relevant part, as follows:

            RCW 36.57A.080:

            "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, orfor the design, construction or operation of transportation facilities.  In additiona public transportation benefit area may contract with any governmental agency or with any private person, firm or corporationfor the use by either contracting party of all or any part of the 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. . . ."  (Emphasis supplied.)

            RCW 36.57A.090:

            "A public transportation benefit area authority shall have the following powers in addition to the general powers granted by this chapter:

            ". . .

            "(2) To acquire by purchase, condemnation,  [[Orig. Op. Page 3]] 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 peoplemoving systems, terminal and parking facilities and properties, together with all lands, rights of way, property, equipment and accessories necessary for such systems and facilities. . . ."  (Emphasis supplied.)

            With these provisions in mind we turn, first, to so much of your question as asks whether a PTBA has the authority, on its own or in conjunction with other governmental agencies, to construct ". . . a roadway for use exclusively by transit vehicles and/or for general use by the public . . ."

            The power to ". . . construct, . . . operate and regulate the use of transportation facilities and properties . . .," as set forth in RCW 36.57A.090, supra, clearly gives a PTBA the authority on its own to construct either a roadway or rail facilities for the exclusive use of transit vehicles.  In addition, it is also readily to be concluded that a PTBA may, jointly with a city, a county or the state highway commission, plan, construct and maintain a joint use facility consisting of a city street, county road, or state highway together with facilities to be used exclusively by public transit vehicles.  This conclusion is based both upon the express authority to enter into contracts as set forth in RCW 36.57A.080, supra, for the joint use of facilities and upon the broad statement of policy contained in RCW 47.04.083 which declares that:

            "The separate and uncoordinated development of public highways and urban public transportation systems is wasteful of this state's natural and financial resources.  It is the public policy of this state to encourage wherever feasible the joint planning, construction and maintenance of public highways and urban public transportation systems serving common geographical areas as joint use  [[Orig. Op. Page 4]] facilities.  To this end the legislature declares it to be a highway purpose to use motor vehicle funds, city and town street funds or county road funds to pay the full proportionate highway, street or road share of the costs of design, right of way acquisition, construction and maintenance of any highway, street or road to be used jointly with an urban public transportation system."

            This statutory authority is ample to permit a PTBA to enter into a contract for the development of such a joint use facility under which the city, county or highway commission would pay the cost of the conventional street, road or highway which is open to general motor vehicle travel and the PTBA would pay for the cost of such exclusive public transit facilities as would be included as a part of the facility.2/

             On the other hand it is our opinion, insofar as the remainder of this part of your question is concerned, that PTBA construction of a roadway for the general use of the public was not contemplated or intended by the legislature.  In this regard we refer you to RCW 36.57A.010(8), which defines the term "public transportation service" to mean:

            ". . . the transportation of packages, passengers and their incidental baggage by means other than by chartered bus, sightseeing bus, together with the necessary passenger terminals and parking facilities or other properties necessary for passenger and vehicular access to and from such people moving systems: . . ."

            This definition indicates to us that a PTBA was intended by the legislature only to be concerned with peoplemoving systems to provide for the movement of passengers, packages and incidental baggage.  We do not believe that a PTBA is intended to serve the general motoring public and the movement of private automobiles other than as related to their  [[Orig. Op. Page 5]] "access to and from such people moving systems."  Therefore, we must conclude that a PTBA may not construct, either on its own or in conjunction with others, streets or roads for general automobile use.  It may, however, construct a roadway for the exclusive bus use since this is a facility that is passenger oriented and falls within the concept of "public transportation service" as defined by RCW 36.57A.010,supra.

            Next, we turn to so much of your question as pertains to the construction of transit access ramps associated with a new or existing roadway.  In response to that question we believe that the power to contract with other governmental agencies for the use of their facilities and structures, as provided in RCW 36.57A.080,supra, gives a PTBA the power to contract for the preferential or exclusive use of access ramps which are under the jurisdiction of those other agencies.  Cf.,Peden v. Seattle, 9 Wn.App. 106, 510 P.2d 1169 (1973).3/

             Finally, in response to your inquiry concerning the construction of a central passenger facility for various modes of travel, it seems to us beyond question that this type of thing comes squarely within the purview of so much of RCW 36.57A.090(2), supra, as empowers a PTBA to construct and operate a ". . . passenger terminal and parking facilities."  Accordingly, we believe that such a facility also may be constructed by a PTBA, either on its own or in conjunction with other governmental agencies in accordance with RCW 36.57A.080, supra.

            In so concluding, however, we must note the limitations upon the use of the state motor vehicle fund, county road funds and city street funds imposed by the 18th Amendment to the state constitution which provides that:

            "All fees collected by the State of Washington  [[Orig. Op. Page 6]] as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes."

            See and compare,State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969), andHighway Commission v. O'Brien, 83 Wn.2d 878, 523 P.2d 190 (1974).  In the first of these two cases the court held it to be a violation of the 18th Amendment for the funds to which it applies to be used for studies incident to the preparation of a comprehensive public transportation plan for the metropolitan Seattle area.  In thus ruling the court defined a public transportation system as

            ". . . a number of buses, trains, or other carriers each holding a number of passengers, which may travel upon the highways or may travel upon rails or water, or through the air, and which are owned and operated, either publicly or privately, for the transportation of the public. . . ."4/

             and then went on to hold that even if those vehicles traveled over the highways or relieved the highways of vehicular traffic such would not make their construction, ownership, operation or planning a highway purpose within the meaning of the constitution, supra.

            In theO'Brien case, on the other hand, the court upheld the use of motor vehicle funds for the construction of park and ride facilities.  The rationale for that ruling was that the facilities in question were to be developed in order to increase the efficient utilization of the highways themselves by permitting motorists to transfer from private autos to public transportation buses for travel to downtown metropolitan area.  Thus, the court found the particular park and ride facilities which were there involved to be an "integral part of the highway system"5/ rather than an adjunct  [[Orig. Op. Page 7]] to public transportation systems as described inSlavin, supra.

            What this means is that the constitutional ability of a participating public agency to use funds restricted by the 18th Amendment, supra, in connection with a project such as that with which this final part of your question is concerned must be decided on a case‑by-case basis ‑ applying the criteria established by the court in theSlavin andO'Brien cases to the facts of each particular case as it arises.

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

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Originally enacted by chapter 270, Laws of 1975, 1st Ex. Sess.

2/To the extent that the procedures authorized by the interlocal cooperation act (chapter 39.34 RCW) may facilitate such a joint undertaking, the parties planning such a joint use facility could also avail themselves of the provisions of that statute in planning and constructing such a joint project.   See, AGLO 1976 No. 74 [[to Al Henry, State Senator, on December 3, 1976, an Informal Opinion, AIR-76574]], copy enclosed.

3/Note that this authority parallels other statutory sections which (1) authorize cooperative agreements between the highway authorities of the state or local governments and municipalities operating an urban public transportation system (RCW 47.52.090); (2) allow the exclusive or preferential use of limited access facilities by public transportation vehicles (RCW 47.52.025); and (3) permit motor vehicle funds of the state, counties and cities to be used for the payment of the proportionate cost of constructing a highway, road or street intended for joint use with an urban public transportation system (RCW 47.04.083).

4/75 Wn.2d at p. 560.

5/83 Wn.2d at p. 883.