B-136952, OCTOBER 7, 1959, 39 COMP. GEN. 264

B-136952, OCTOBER 7, 1959, 39 COMP. GEN. 264

BRIDGES - CONSTRUCTION - TOLL REIMPOSITION PROHIBITION FEDERAL GRANTS MADE BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS OR THE PUBLIC WORKS ADMINISTRATION PURSUANT TO SECTION 202 AND 203 OF THE NATIONAL INDUSTRIAL RECOVERY ACT FOR PUBLIC WORKS PROJECTS, INCLUDING CONSTRUCTION AND REPAIR OF PUBLIC HIGHWAYS AND PARKWAYS, ARE SEPARATE AND DISTINCT FROM THE GRANTS MADE BY THE BUREAU OF PUBLIC ROADS TO THE STATE HIGHWAY DEPARTMENTS UNDER SECTION 204 WHICH CONTAINS A RESTRICTION AGAINST THE IMPOSITION OF TOLLS OR BRIDGES CONSTRUCTED FROM SECTION 204 GRANTS; THEREFORE, A PUBLIC WORKS GRANT FOR THE CONSTRUCTION OF A BRIDGE PROJECT IS NOT SUBJECT TO THE TOLLS RESTRICTION APPLICABLE TO FEDERAL-AID HIGHWAY FUNDS. DECISIONS OF THE COMPTROLLER GENERAL ON THE AVAILABILITY OF FEDERAL FUNDS FOR EXPENDITURE OR ON THE PROPRIETY OF EXPENDITURES ALREADY MADE OFTEN REQUIRE DETERMINATIONS OF WHAT CONDITIONS, IF ANY, BOTH PRECEDENT AND SUBSEQUENT, ATTACH TO EXPENDITURES OF FEDERAL FUNDS, AND SUCH DETERMINATIONS ARE BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE RESTRICTION IN SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT AGAINST THE IMPOSITION OF TOLLS IS A CONDITION SUBSEQUENT TO AN EXPENDITURE OF FEDERAL FUNDS, AND A DETERMINATION OF WHETHER THE RESTRICTION ATTACHES TO A PARTICULAR EXPENDITURE OF FEDERAL-AID HIGHWAY FUNDS IS WITHIN THE JURISDICTION OF THE COMPTROLLER GENERAL AND SUCH DECISION IS BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. ALTHOUGH THE PRINCIPLE IN 38 COMP. GEN. 495, THAT THE USE OF FEDERAL AID HIGHWAY FUNDS FOR LANDSCAPING ROADS WHICH ARE NOT EXCLUSIVELY USED FOR ACCESS TO A BRIDGE, DOES NOT CONSTITUTE THE USE OF FEDERAL FUNDS FOR CONSTRUCTION OF A BRIDGE APPROACH WITHIN THE MEANING OF THE RESTRICTION AGAINST IMPOSITION OF BRIDGE TOLLS, ITS APPLICATION DEPENDS ON WHETHER THE LANDSCAPING PRIMARILY BENEFITED THE APPROACH ROADS--- A FACTUAL MATTER IN DISPUTE--- THEREFORE, IN THE ABSENCE OF A JUDICIAL DETERMINATION, THE ADMINISTRATIVE VIEW THAT THE PROHIBITION IS NOT APPLICABLE TO THE PARTICULAR PROJECT WILL NOT BE QUESTIONED. 38 COMP. GEN. 495, MODIFIED.

TO THE SECRETARY OF COMMERCE, OCTOBER 7, 1959:

REFERENCE IS MADE TO OUR DECISIONS TO YOU DATED OCTOBER 3, 1958, AND JANUARY 14, 1959, PUBLISHED AT 38 COMP. GEN. 266 AND ID. 495, RESPECTIVELY, AND TO SUBSEQUENT CORRESPONDENCE, RELATIVE TO THE QUESTION OF THE REIMPOSITION OF TOLLS ON THE LAKE WASHINGTON BRIDGE, SEATTLE, WASHINGTON.

AS YOU WERE PREVIOUSLY ADVISED, THERE HAVE BEEN SUBMITTED, THROUGH THE HONORABLE THOR C. TOLLEFSON, HOUSE OF REPRESENTATIVES, EXTENSIVE BRIEFS OF FACTS AND LAW IN OPPOSITION TO OUR DECISION IN 38 COMP. GEN. 495 THAT TOLLS MAY BE REIMPOSED ON THE BRIDGE. COPIES OF THE BRIEFS HAVE BEEN FORWARDED TO YOU AND TO THE GENERAL SERVICES ADMINISTRATION; AND THE BRIEFS, TOGETHER WITH YOUR RESPECTIVE REPORTS THEREON, HAVE RECEIVED OUR CAREFUL CONSIDERATION. THE BRIEFS SET FORTH NUMEROUS ALLEGATIONS OF FACT, DISCUSS THE APPLICABLE LAWS, QUESTION THE BINDING EFFECT OF OUR DECISION IN 38 COMP. GEN. 495, AND PRESENT THE FOLLOWING SPECIFIC QUESTIONS:

1. IS THE PUBLIC WORKS ADMINISTRATION GRANT IN THE AMOUNT OF $3,934.875 TO THE LAKE WASHINGTON BRIDGE PROJECT SUBJECT TO THE CONDITION OF SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 204 AGAINST THE IMPOSITION OF TOLLS UPON A FACILITY WHEN FULLY PAID FOR?

2. IS THE FEDERAL AID EXTENDED TO THE EASTERN BRIDGE APPROACH AS PROJECT SN-FAP 283-F (1) SUBJECT TO THE SAME CONDITION OR THAT EXPRESSED IN THE OLDFIELD ACT: MARCH 3, 1927, 44 STAT. 398?

3. IF THE ANSWER TO EITHER OF THE FOREGOING QUESTIONS IS IN THE AFFIRMATIVE, MAY SUCH CONDITION NOW BE AVOIDED BY THE WASHINGTON STATE HIGHWAY COMMISSION BY THE CONSTRUCTION OF AN OTHERWISE UNNECESSARY NEW OFF -RAMP SO AS TO RENDER THE ENTIRE PORTION OF THE BRIDGE APPROACH AIDED BY PROJECT SN-FAP 283-F (1) SUBJECT TO USE BY LOCAL NON-BRIDGE TRAFFIC?

SECTION 204 OF THE NATIONAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 203, 40 U.S.C. 404, AUTHORIZED THE PRESIDENT TO MAKE GRANTS TO STATE HIGHWAY DEPARTMENTS TO PROVIDE FOR EMERGENCY CONSTRUCTION OF PUBLIC HIGHWAYS RELATED PROJECTS. GRANTS MADE UNDER THIS SECTION WERE REQUIRED TO BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921, AS AMENDED AND SUPPLEMENTED, EXCEPT AS PROVIDED IN SAID SECTION, WHICH INCLUDED THE SUBSECTION (G) REFERRED TO IN QUESTION ONE, AS FOLLOWS:

(G) HEREAFTER IN THE ADMINISTRATION OF THE FEDERAL HIGHWAY ACT, AND ACTS AMENDATORY THEREOF OR SUPPLEMENTARY THERETO, THE FIRST PARAGRAPH OF SECTION 9 OF SAID ACT SHALL NOT APPLY TO PUBLICLY OWNED TOLL BRIDGES OR APPROACHES THERETO, OPERATED BY THE HIGHWAY DEPARTMENT OF ANY STATE, SUBJECT, HOWEVER, TO THE CONDITION THAT ALL TOLLS RECEIVED FROM THE OPERATION OF ANY SUCH BRIDGE, LESS THE ACTUAL COST OF OPERATION AND MAINTENANCE, SHALL BE APPLIED TO THE REPAYMENT OF THE COST OF ITS CONSTRUCTION OR ACQUISITION, AND WHEN THE COST OF ITS CONSTRUCTION OR ACQUISITION SHALL HAVE BEEN REPAID IN FULL, SUCH BRIDGE THEREAFTER SHALL BE MAINTAINED AND OPERATED AS A FREE BRIDGE.

MONEYS APPROPRIATED FOR THE PURPOSES OF SECTION 204 WERE TRANSFERRED TO THE BUREAU OF PUBLIC ROADS, AND ALL GRANTS THEREUNDER WERE MADE BY THAT BUREAU AND NOT BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS OR ITS SUCCESSOR, THE PUBLIC WORKS ADMINISTRATION. WHILE SECTION 204 (G), 40 U.S.C. 404 (G) (1946 USED.), OR 23 U.S.C. 9B (1952 USED.), CLEARLY IS APPLICABLE TO GRANTS MADE BY THE BUREAU OF PUBLIC ROADS UNDER SECTION 204 OF THE ACT, IT IS NOT APPLICABLE TO GRANTS MADE BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS OR THE PUBLIC WORKS ADMINISTRATION UNDER OTHER SECTIONS OF THE ACT. SECTION 202 OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 40 U.S.C. 402, REQUIRED THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS TO PREPARE A COMPREHENSIVE PROGRAM OF PUBLIC WORKS, INCLUDING, AMONG MANY OTHER THINGS," CONSTRUCTION, REPAIR , AND IMPROVEMENT OF PUBLIC HIGHWAYS AND PARKWAYS, PUBLIC BUILDINGS, AND ANY PUBLICLY OWNED INSTRUMENTALITIES AND FACILITIES.' SECTION 203 OF THE ACT, 40 U.S.C. 403, AUTHORIZED THE ADMINISTRATOR TO MAKE GRANTS TO STATES, MUNICIPALITIES, OR OTHER PUBLIC BODIES FOR THE CONSTRUCTION, REPAIR, OR IMPROVEMENT OF ANY PROJECT INCLUDED IN THE PROGRAM PREPARED UNDER SECTION 202. THE PROGRAM CONTEMPLATED BY SECTIONS 202 AND 203 OBVIOUSLY IN SEPARATE AND DISTINCT FROM THAT CONTEMPLATED BY SECTION 204 AND THE TWO PROGRAMS WERE ADMINISTERED BY SEPARATE AND DISTINCT AGENCIES. THAT THE CONGRESS CONSIDERED SAID PROGRAMS SEPARATE AND DISTINCT IS CONFIRMED BY THE WORDING OF SECTION 204 (F), 40 U.S.C. 404 (F), WHICH REQUIRED THE GRANTING OF RIGHTS-OF-WAY OVER OR THROUGH FEDERALLY OWNED LANDS " WHENEVER, IN CONNECTION WITH THE CONSTRUCTION OF ANY HIGHWAY PROJECT UNDER THIS SECTION (204) OR SECTION 202 OF THIS ACT.' SUCH RIGHT-OF WAY IS NEEDED. ( ITALICS SUPPLIED.) SECTION 204 (G) BY ITS OWN TERMS IS APPLICABLE ONLY "IN THE ADMINISTRATION OF THE FEDERAL HIGHWAY ACT, AND ACTS AMENDATORY THEREOF OR SUPPLEMENTARY THERETO.' IN VIEW OF THE TREMENDOUS SCOPE OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE DIVERSITY OF THE NUMEROUS PROGRAMS INAUGURATED THEREBY, THE PRESENCE OF SECTION 204 THEREIN CANNOT BE CONSIDERED AS RENDERING THE ENTIRE ACT AMENDATORY OF OR SUPPLEMENTARY TO THE FEDERAL HIGHWAY ACT. LIKEWISE, THE MERE FACT THAT THE VAST COMPREHENSIVE PROGRAM PREPARED UNDER SECTION 202 AND GIVEN FINANCIAL AID UNDER SECTION 203 INCLUDED PUBLIC HIGHWAYS IN ADDITION TO MANY OTHER TYPES OF PUBLIC WORKS DOES NOT RENDER THOSE SECTIONS AMENDATORY OF OR SUPPLEMENTARY TO SUCH ACT. THE PROGRAM OF GRANTS BY THE PUBLIC WORKS ADMINISTRATION AND ITS PREDECESSOR EXTENDED OVER A LONG PERIOD OF YEARS AND INCLUDED A LARGE NUMBER OF PROJECTS. MANY OF SUCH GRANTS APPEAR TO HAVE INVOLVED TOLL FACILITIES AND WERE MADE WITHOUT ANY INDICATION THAT A RESTRICTION ON TOLLS WAS INCURRED BY THE ACCEPTANCE AND EXPENDITURE OF SUCH GRANTS. FOR OUR OFFICE TO RULE AT THIS LATE DATE THAT SUCH GRANTS WERE SUBJECT TO SECTION 204 (G) AND THUS UPSET THE LONG-ESTABLISHED ADMINISTRATIVE PRACTICE MANY YEARS AFTER THE TERMINATION OF THE PROGRAM WOULD REQUIRE EXCEEDINGLY CONVINCING EVIDENCE THAT SUCH SUBJECTION WAS INTENDED; MUCH MORE THAN IS FURNISHED BY AN ATTEMPT TO READ SPECIAL SIGNIFICANCE INTO THE FACT THAT THE CONGRESS USED THE WORDS " ACTS AMENDATORY THEREOF OR SUPPLEMENTARY THERETO" IN SECTION 204 (G) INSTEAD OF "AS AMENDED OR SUPPLEMENTED.'

THE PUBLIC WORKS ADMINISTRATION GRANT OF $3,934,875 TO THE LAKE WASHINGTON BRIDGE PROJECT WAS MADE FROM FUNDS APPROPRIATED BY THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, 52 STAT. 816. THAT ACT APPROPRIATED FUNDS TO BE EXPENDED FOR "THE MAKING OF LOANS OR GRANTS, OR BOTH, TO STATES, TERRITORIES, POSSESSIONS, POLITICAL SUBDIVISIONS, OR OTHER PUBLIC BODIES" FOR PUBLIC WORKS PROJECTS "OF THE KIND AND CHARACTER WHICH THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS * * * HAS HERETOFORE FINANCED OR AIDED IN FINANCING, PURSUANT TO TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT * * *.' THERE IS NOTHING IN THIS APPROPRIATION ACT WHICH WOULD RENDER GRANTS MADE THEREFROM BY THE PUBLIC WORKS ADMINISTRATION SUBJECT TO THE PROVISIONS OF SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT. WHILE THE ORIGINAL PROJECT AGREEMENT IS NOT AVAILABLE, AN EXAMINATION OF THE TERMS AND CONDITIONS OF THE TYPE OF PROJECT AGREEMENT UNDER WHICH THE GRANT FOR THE BRIDGE WAS MADE FAILS TO REVEAL ANY REFERENCE TO OR INDICATION OF ANY RESTRICTION ON TOLLS. FURTHERMORE, IN LETTER DATED MAY 22, 1959, THE GENERAL SERVICES ADMINISTRATION REPORTS:

MOREOVER, A CAREFUL EXAMINATION OF THE MICROFILM RECORDS OF THIS PROJECT FAILS TO REFLECT ANY LIMITATION OR CONDITION IMPOSED IN THE GRANT TO THE WASHINGTON TOLL BRIDGE AUTHORITY WITH RESPECT TO ANY USE AND/OR OPERATION BY THE WASHINGTON TOLL BRIDGE AUTHORITY, INCLUDING THE REIMPOSITION OF TOLLS ON THE LAKE WASHINGTON BRIDGE, NOR ANY REQUIREMENT OF THE UNITED STATES EITHER AS A CONDITION TO THE APPROVAL OF THE PROJECT OR AS A CONDITION OF THE GRANT OR AS A LIMITATION ON THE GRANT TO THE WASHINGTON TOLL BRIDGE AUTHORITY THAT THE BRIDGE BE OPERATED AS A FREE BRIDGE AFTER THE LIQUIDATION OF THE INDEBTEDNESS REPRESENTED BY THE REVENUE BONDS OUTSTANDING AND UNPAID WHEN THE BRIDGE WAS OPENED TO PUBLIC TRAVEL.

ALSO, WE ATTACH NO SIGNIFICANCE TO THE FACT THAT THE BRIDGE APPARENTLY BECAME PART OF THE FEDERAL-AID HIGHWAY SYSTEM DURING THE NEGOTIATIONS FOR THE PUBLIC WORKS ADMINISTRATION GRANT. THE ONLY EFFECT OF DESIGNATION AS PART OF SUCH SYSTEM WAS TO RENDER THE BRIDGE ELIGIBLE TO RECEIVE FEDERAL- AID HIGHWAY FUNDS; IT DID NOT RENDER THE BRIDGE INELIGIBLE TO RECEIVE ANY OTHER FEDERAL MONEY OR CAUSE ANY OTHER FEDERAL MONEY EXPENDED THEREON TO BECOME SUBJECT TO RESTRICTIONS AND CONDITIONS APPLICABLE TO FEDERAL-AID HIGHWAY FUNDS.

IN VIEW OF THE ABOVE, QUESTION ONE MUST BE ANSWERED IN THE NEGATIVE.

QUESTION TWO WAS THE SUBJECT OF OUR DECISION OF JANUARY 14, 1959, PUBLISHED AT 38 COMP. GEN. 495. WE HELD IN THAT DECISION THAT, WHILE THE AID EXTENDED UNDER THE THREE PROJECTS LISTED THEREIN WAS SUBJECT TO THE RESTRICTION AGAINST TOLLS IF SUCH AID HAD BEEN EXPENDED UPON THE BRIDGE OR ITS APPROACHES, THE INFORMATION BEFORE OUR OFFICE AT THE TIME INDICATED THAT THE AID HAD NOT BEEN EXPENDED ON THE BRIDGE ITSELF AND THAT THE AREAS LANDSCAPED UNDER THE THREE PROJECTS WERE SO LOCATED THAT THE AID NEED NOT BE CONSIDERED AS HAVING BEEN EXPENDED UPON APPROACHES TO THE BRIDGE. THE BINDING EFFECT OF THIS DECISION HAS BEEN QUESTIONED IN THE BRIEFS SUBMITTED.

THE BINDING EFFECT ON THE EXECUTIVE BRANCH OF THE GOVERNMENT OF OUR DECISIONS RELATIVE TO THE AVAILABILITY OF FEDERAL FUNDS FOR EXPENDITURE, OR THE PROPRIETY OF EXPENDITURES ALREADY MADE, IS UNQUESTIONED. SUCH DECISIONS OF NECESSITY INVOLVE THE DETERMINATION OF WHAT CONDITIONS, IF ANY, BOTH PRECEDENT AND SUBSEQUENT, ATTACH TO EXPENDITURES OF FEDERAL FUNDS. THE MATTER OF THE BRIDGE WAS FIRST PRESENTED TO OUR OFFICE AS A QUESTION CONCERNING THE PROPRIETY OF THE ACCEPTANCE BY YOUR DEPARTMENT OF A PROPOSED REFUND OR TRANSFER OF PREVIOUSLY EXPENDED FEDERAL-AID HIGHWAY FUNDS FOR THE PURPOSE OF RELIEVING THE BRIDGE OF THE CONDITION SUBSEQUENTLY CONTAINED IN SECTION 204 (G). THE SUBMISSION WAS PREDICATED UPON THE ASSUMPTION BY ALL PARTIES CONCERNED THAT THE FUNDS INVOLVED HAD BEEN EXPENDED UPON THE BRIDGE OR ITS APPROACHES AND THAT, HENCE, THE CONDITION ATTACHED. OUR DECISION THEREIN, PUBLISHED AT 38 COMP. GEN. 266, WAS TO THE EFFECT THAT THE PROPOSED REFUND OR TRANSFER COULD NOT BE ACCEPTED AND THE CONDITION COULD NOT BE RELEASED. THE SECOND PRESENTATION OF THE MATTER WAS BASED UPON INFORMATION AND EVIDENCE FURNISHED YOUR DEPARTMENT BY THE STATE OF WASHINGTON PURPORTING TO INDICATE THAT THE FUNDS INVOLVED IN THE THREE PROJECTS HAD NOT BEEN EXPENDED UPON THE BRIDGE OR ITS APPROACHES. THUS, THE SECOND PRESENTATION INVOLVED A QUESTION AS TO WHETHER THE RESTRICTION OR CONDITION SUBSEQUENTLY CONTAINED IN SECTION 204 (G) ATTACHED TO PARTICULAR EXPENDITURES OF FEDERAL-AID HIGHWAY FUNDS, A MATTER CLEARLY WITHIN OUR JURISDICTION. SINCE THE LAW WAS CLEAR THAT SUCH CONDITION DID ATTACH IF THE FUNDS HAD BEEN EXPENDED UPON APPROACHES TO THE BRIDGE, IT BECAME NECESSARY TO DETERMINE WHETHER THE FUNDS HAD BEEN SO EXPENDED. THIS OF NECESSITY INVOLVED AN INTERPRETATION OF WHAT CONSTITUTED AN APPROACH AS THAT WORD WAS USED IN THE ACT. HENCE, WE BELIEVE OUR DECISION OF JANUARY 14, 1959, 38 COMP. GEN. 495, IS WITHIN OUR JURISDICTION AND BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT.

THAT DECISION HOWEVER, WAS BASED UPON THE INFORMATION AVAILABLE TO OUR OFFICE AT THE TIME IT WAS RENDERED. WE ARE NOW FACED WITH A DIRECT CONFLICT BETWEEN THE ALLEGATIONS OF FACT PRESENTED BY THE STATE OF WASHINGTON THROUGH YOUR DEPARTMENT AND THE ALLEGATIONS OF FACT PRESENTED THROUGH MR. TOLLEFSON WITH RESPECT TO ONE OF THE THREE PROJECTS INVOLVED. NO QUESTION IS RAISED REGARDING PROJECT SN-FAP 283 E (1) ON THE WEST, OR SEATTLE, SIDE OF THE BRIDGE, OR PROJECT SN-FAP 283-G (1) ON THE EAST, OR MERCER ISLAND, SIDE, AND THE VALIDITY OF OUR INTERPRETATION WITH REGARD THERETO APPEARS TO HAVE BEEN ACCEPTED. THE ALLEGATIONS OF FACT CONCERNING THE THIRD PROJECT, SN-FAP 283-F (1), COVERING LANDSCAPING ALONG A 10.421 MILE SECTION RUNNING EAST FROM A POINT NEAR THE EASTERN END OF THE BRIDGE TO THE WESTERN END OF PROJECT SN-FAP 283-G (1) AND INCLUDING THE FORMER TOLL PLAZA AND THE OVERPASS AND FRONTAGE ROD COMPLEX, ARE COMPLETELY IN CONFLICT. THE ALLEGATIONS OF FACT PRESENTED THROUGH YOUR DEPARTMENT INDICATE THAT THE LANDSCAPING COVERED BY SAID PROJECT BENEFITED THE FRONTAGE ROADS AT LEAST AS MUCH AS, IF NOT MORE THAN, THE MAIN ROAD CROSSING THE BRIDGE, WHEREAS THE BRIEFS ALLEGE THAT THE LANDSCAPING PRIMARILY BENEFITED THE MAIN ROAD WITH MERE INCIDENTAL BENEFIT TO THE FRONTAGE ROADS. AS AN EXAMPLE OF THE DIRECT CONFLICT OF EVIDENCE FURNISHED, THE BRIEFS STATE THAT THE HOLLY HEDGES ON BOTH SIDES OF THE MAIN HIGHWAY WERE BY FAR THE MOST COSTLY ITEM INVOLVED IN THE LANDSCAPE PROJECT IN QUESTION AND PRIMARILY BENEFITED THE MAIN ROAD, WHEREAS THE DOCUMENTS FURNISHED THROUGH YOUR DEPARTMENT STATE THAT THE HOLLY HEDGES WERE IN EXISTENCE PRIOR TO THE LANDSCAPING PERFORMED UNDER THE PROJECT IN QUESTION AND IN FACT SCREEN MUCH OF THE LANDSCAPING ACTUALLY PERFORMED UNDER THAT PROJECT FROM TRAVELERS ON THE MAIN ROAD. ALSO, THE DOCUMENTS FURNISHED THROUGH YOUR DEPARTMENT STATE THAT THE FRONTAGE ROADS ARE SUBJECT TO EXTENSIVE TRAFFIC, WHEREAS THE BRIEFS STATE THAT THE TRAFFIC THEREON IS SLIGHT. THUS IT WILL BE SEEN THAT THE QUESTION AS TO WHETHER THE REPORTED FEDERAL AID EXPENDITURE OF $6,900 UNDER PROJECT SN-FAP 283-F (1) MUST BE CONSIDERED AS HAVING BEEN EXPENDED ON AN APPROACH TO THE BRIDGE AND, HENCE, SUBJECT TO THE CONDITION IN SECTION 204 (G) IS NOW DEPENDENT UPON FACTS IN DISPUTE BETWEEN THE INVOLVED PARTIES.

HENCE, WHILE WE BELIEVE THAT THE PRINCIPLE STATED IN OUR DECISION OF JANUARY 14, 1959, 38 COMP. GEN. 495, IS CORRECT, THE EFFECT OF ITS APPLICATION TO PROJECT SN-FAP 283-F (1) DEPENDS ON A RESOLUTION OF THE FACTUAL QUESTION OR NOT THE LANDSCAPING PRIMARILY BENEFITED THE APPROACH ROADS. OUR OFFICE IS NOT IN A POSITION TO DETERMINE CONCLUSIVELY DISPUTED QUESTIONS OF FACT OF THE NATURE HERE INVOLVED; AND IT HAS LONG BEEN THE RULE THAT WE ACCEPT THE ADMINISTRATIVE VERSION THEREOF UNLESS CLEARLY ERRONEOUS. BECAUSE OF THE ADMINISTRATIVE VERSION OF THE FACTS, AS STATED IN YOUR LETTERS OF DECEMBER 29, 1958, AND JULY 8, 1959, WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE VIEW THAT THE PROHIBITION AGAINST THE IMPOSITION OF TOLLS CONTAINED IN THE FEDERAL-AID HIGHWAY LEGISLATION IS NOT APPLICABLE TO THIS BRIDGE. AS YOU ARE AWARE, HOWEVER, OUR VIEWS IN THE MATTER DO NOT PRECLUDE PARTIES IN INTEREST FROM SEEKING JUDICIAL DETERMINATION OF THE MATTER, IF OTHERWISE PROPER.

SINCE NEITHER QUESTION ONE NOR QUESTION TWO WAS ANSWERED IN THE AFFIRMATIVE, NO REPLY TO QUESTION THREE IS REQUIRED. IT SHOULD BE NOTED THAT, WHILE THE QUESTION ASSUMES THAT THE PROPOSED NEW OFF-RAMP IS "OTHERWISE UNNECESSARY," THAT FACT LIKEWISE IS IN DISPUTE. THE DOCUMENTS FURNISHED THROUGH YOUR DEPARTMENT ALLEGE THAT THE TRAFFIC ON MERCER ISLAND HAS INCREASED SO THAT THE NEW RAMP IS REALLY NECESSARY, WHEREAS THE BRIEFS ALLEGE THE EXACT OPPOSITE. IT MAY BE STATED, HOWEVER, THAT THE NECESSITY OR NONNECESSITY OF THE PROPOSED OFF-RAMP IS IMMATERIAL. IT IS OUR VIEW THAT, IF THE SITUATION AT THE TIME FEDERAL AID HIGHWAY MONEY WAS EXPENDED ON THE PROJECT WAS SUCH THAT THE CONDITION CONTAINED IN SECTION 204 (G) ATTACHED, THE ADDITIONAL AT THIS TIME OF A NEW OFF-RAMP, WHETHER NECESSARY OR NOT, WOULD NOT RELEASE SUCH CONDITION.