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B-136952, JANUARY 14, 1959, 38 COMP. GEN. 495

B-136952 Jan 14, 1959
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BRIDGES - CONSTRUCTION - TOLL REIMPOSITION PROHIBITION 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 PROHIBITION AGAINST THE REINSTATEMENT OF BRIDGE TOLLS IN 23 U.S.C. 129 (C). IN THE ABSENCE OF A SHOWING THAT FEDERAL FUNDS WERE USED IN CONSTRUCTION OF THE BRIDGE OR FOR A PORTION OF THE ROAD WHICH MUST BE CONSIDERED A BRIDGE APPROACH. THE TOLL PROHIBITION WILL NOT PREVENT A STATE FROM REIMPOSING A TOLL ON SUCH BRIDGE. 38 COMP. WAS BASED UPON THE PREMISE THAT FEDERAL-AID HIGHWAY FUNDS HAD BEEN EXPENDED UPON THE CONSTRUCTION OF THE APPROACHES TO THE BRIDGE AND THAT.

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B-136952, JANUARY 14, 1959, 38 COMP. GEN. 495

BRIDGES - CONSTRUCTION - TOLL REIMPOSITION PROHIBITION 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 PROHIBITION AGAINST THE REINSTATEMENT OF BRIDGE TOLLS IN 23 U.S.C. 129 (C); THEREFORE, IN THE ABSENCE OF A SHOWING THAT FEDERAL FUNDS WERE USED IN CONSTRUCTION OF THE BRIDGE OR FOR A PORTION OF THE ROAD WHICH MUST BE CONSIDERED A BRIDGE APPROACH, THE TOLL PROHIBITION WILL NOT PREVENT A STATE FROM REIMPOSING A TOLL ON SUCH BRIDGE. 38 COMP. GEN. 266, MODIFIED ON THE BASIS OF ADDITIONAL INFORMATION.

TO THE SECRETARY OF COMMERCE, JANUARY 14, 1959:

BY LETTER OF DECEMBER 29, 1958, WITH ENCLOSURES, HONORABLE GEORGE T. MOORE, ASSISTANT SECRETARY, FURNISHED ADDITIONAL INFORMATION RELATIVE TO THE QUESTION OF REINSTATEMENT OF TOLLS ON THE EXISTING LAKE WASHINGTON BRIDGE, SEATTLE, WASHINGTON, SUBJECT OF OUR DECISION TO YOU DATED OCTOBER 3, 1958, 38 COMP. GEN. 266.

OUR DECISION OF OCTOBER 3, RENDERED ON THE BASIS OF THE INFORMATION PRESENTED TO OUR OFFICE AT THAT TIME, WAS BASED UPON THE PREMISE THAT FEDERAL-AID HIGHWAY FUNDS HAD BEEN EXPENDED UPON THE CONSTRUCTION OF THE APPROACHES TO THE BRIDGE AND THAT, HENCE, SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 204, 23 U.S.C. 9B--- RELATING TO TOLL- FREE BRIDGES--- WAS APPLICABLE THERETO. THEREFORE, WE HELD THAT THERE WAS NO LEGAL AUTHORITY TO ACCEPT A REFUND FROM THE WASHINGTON STATE HIGHWAY COMMISSION OF THE AMOUNT OF FEDERAL-AID HIGHWAY FUNDS SO EXPENDED AND RELIEVE THE STATE FROM THE PROHIBITION AGAINST REIMPOSING TOLLS ON THE BRIDGE. THE ASSISTANT SECRETARY NOW ADVISES THAT THE WASHINGTON STATE HIGHWAY COMMISSION STATES THE FEDERAL AID FUNDS WERE USED FOR LANDSCAPING AND HAS FURNISHED INFORMATION TENDING TO INDICATE THAT THE ROADS WHICH WERE LANDSCAPED WITH THE AID OF SUCH FUNDS WERE NOT APPROACHES TO THE BRIDGE AS THAT TERM IS USED IN FEDERAL-AID HIGHWAY LEGISLATION AND THE DECISIONS OF OUR OFFICE. NATURALLY, IF THIS POSITION CAN BE MAINTAINED, AND NO OTHER FEDERAL FUNDS SUBJECT TO THE FEDERAL-AID HIGHWAY LEGISLATION OR SIMILAR RESTRICTION WERE EXPENDED ON THE BRIDGE OR ITS ACTUAL APPROACHES, THE PROHIBITION AGAINST IMPOSITION OF TOLLS ON BRIDGES CONTAINED IN THE FEDERAL-AID HIGHWAY LEGISLATION IS NOT APPLICABLE TO THIS BRIDGE.

OUR DECISION OF OCTOBER 29, 1926, 6 COMP. GEN. 320 (RENDERED PRIOR TO THE ENACTMENT OF LEGISLATION AUTHORIZING USE OF FEDERAL-AID HIGHWAY FUNDS, WITH RESTRICTIONS, UPON TOLL BRIDGES AND THEIR APPROACHES), DEFINED A BRIDGE APPROACH FOR PURPOSES OF FEDERAL-AID HIGHWAY LEGISLATION AS THAT PORTION OF A HIGHWAY LEADING TO A BRIDGE WHICH HAS NO REASONABLE USE OTHER THAN AS A MEANS OF APPROACH TO THE BRIDGE. IN THAT DECISION WE SAID:

* * * WHAT PORTION OF THE HIGHWAY LEADING UP TO A TOLL BRIDGE OR FERRY SHOULD BE CONSIDERED AS THE APPROACH IS, OF COURSE, FOR DETERMINATION ON THE CONDITIONS AND CIRCUMSTANCES DISCLOSED IN EACH PARTICULAR CASE. FOR INSTANCE, IF THE BRIDGE OR FERRY IS AN ESSENTIAL PART OF THE HIGHWAY ON BOTH SIDES AND THERE ARE NO OTHER HIGHWAYS LEADING UP TO THE BRIDGE OR FERRY, FEDERAL AID SHOULD NOT BE GIVEN FOR THE CONSTRUCTION OF ANY PORTION OF THE HIGHWAY ON EITHER SIDE OF THE BRIDGE OR FERRY BACK TO A POINT UP TO WHICH A REASONABLE USE WOULD BE MADE OF THE HIGHWAY OTHER THAN AS A MEANS OF APPROACH TO THE BRIDGE OR FERRY, SUCH AS AN INTERSECTING HIGHWAY GIVING A CHOICE OF DIRECTION, OR A TOWN, VILLAGE, ETC.* * * IN NO CASE MAY FEDERAL FUNDS LEGALLY BE USED TO CONSTRUCT OR AID IN THE CONSTRUCTION OF SUCH PORTION OF ANY SUCH HIGHWAY AS WOULD BE OF NO SUBSTANTIAL BENEFIT AS A PUBLIC HIGHWAY OTHER THAN AS AN APPROACH TO THE BRIDGE OR FERRY * * *.

* * * APPROACHES AS HERE USED MEANING THAT PORTION OF THE ROAD LEADING TO THE BRIDGE THE SOLE OBJECTIVE OF WHICH IS THE BRIDGE OR WHICH WOULD BE USED AS A PUBLIC HIGHWAY ONLY IN CONNECTION WITH THE CROSSING OF THE BRIDGE.

THE TERM "APPROACH" HAS BEEN DEFINED BY THE COURTS IN VARYING WAYS IN INTERPRETING VARIOUS LAWS. SEE 11 C.J.S. BRIDGES SECTION B, AND WORDS AND PHRASES," APPROACHES.' SEE ALSO STATE EX REL. WASHINGTON TOLL BRIDGE AUTHORITY, ET AL. V. YELLE, 84 P.2D 688. HOWEVER, THE INTERPRETATION IN OUR DECISION, 6 COMP. GEN. 302, WAS ADOPTED IN ESSENCE BY THE CONGRESS IN THE ENACTMENT OF SECTION 113 (B) OF THE FEDERAL-AID HIGHWAY ACT OF 1956 AND SUBSEQUENTLY RESTATED IN THE CODIFICATION OF TITLE 23 OF THE U.S.C. 72 STAT. 885, 903, AS SECTION 129 (C), WHICH READS:

(C) FUNDS AUTHORIZED UNDER PRIOR ACTS FOR EXPENDITURE ON ANY OF THE FEDERAL-AID HIGHWAY SYSTEMS, INCLUDING THE INTERSTATE SYSTEM, SHALL BE AVAILABLE FOR EXPENDITURE ON PROJECTS APPROACHING ANY TOLL ROAD, BRIDGE OR TUNNEL TO A POINT WHERE SUCH PROJECT WILL HAVE SOME USE IRRESPECTIVE OF ITS USE FOR SUCH TOLL ROAD, BRIDGE OR TUNNEL.

THUS IT WOULD APPEAR THAT THE DEFINITION OF APPROACH AS STATED IN 6 COMP. GEN. 302 IS PROPERLY FOR APPLICATION HERE.

THE MAPS AND DATA PRESENTED WITH THE LETTER OF DECEMBER 29, SHOW THAT THE FEDERAL-AID HIGHWAY FUNDS IN QUESTION WERE EXPENDED UPON THREE LANDSCAPING PROJECTS ALONG PRIMARY STATE HIGHWAY NO. 2 (WHICH IS CARRIED ACROSS LAKE WASHINGTON BY THE BRIDGE HERE INVOLVED), DESIGNATED AS PROJECTS SN-FAP 283 -E/1), SN-FAP 283-F (1), AND SN-FAP 283-G (1). PROJECT SN-FAP 283-E (1) COVERED LANDSCAPING ALONG A 10.663 MILE SECTION OF THE HIGHWAY ON THE WEST SIDE OF THE LIKE, RUNNING FROM RAINIER AVENUE IN SEATTLE TO A POINT NEAR THE WEST END OF THE BRIDGE PROPER. PROJECT SN-FAP 283-G (1) COVERED LANDSCAPING ALONG A 3.316 MILE SECTION OF THE HIGHWAY ON THE EAST SIDE OF THE BRIDGE, RUNNING EAST FROM A POINT APPROXIMATELY HALF A MILE INLAND FROM THE EAST END OF THE BRIDGE PROPER. THE MAPS FURNISHED CLEARLY SHOW THAT THESE PORTIONS OF THE ROAD HAVE MANY POINTS OF INGRESS AND EGRESS AND ARE SUBJECT TO EXTENSIVE USE BY LOCAL NONBRIDGE TRAFFIC. PROJECT SN-FAP 283-F (1) COVERED LANDSCAPING ALONG A 10.421 MILE SECTION RUNNING WEST FROM THE WESTERN END OF PROJECT SN-FAP 283-F (1) TO A POINT NEAR THE EAST END OF THE BRIDGE. WHILE THE EASTERN PORTION OF THIS SECTION IS SUBJECT TO LOCAL NONBRIDGE TRAFFIC, THE WESTERLY END RUNS CONSIDERABLY BEYOND THE LAST ACCESS ROAD AND IS PRESENTLY USABLE ONLY BY BRIDGE TRAFFIC. HOWEVER, IT IS STATED IN THE LETTER AND IS APPARENT FROM THE MAPS THAT THE LANDSCAPING SERVES NOT ONLY PRIMARY STATE HIGHWAY NO. 2, WHICH CROSSES THE BRIDGE, BUT ALSO SERVES ADJACENT FRONTAGE ROADS, WHICH WERE CONSTRUCTED AS AN INTEGRAL PART OF THE MAIN ROAD, ARE A PART OF THE FEDERAL-AID HIGHWAY SYSTEM, AND ARE SUBJECT TO EXTENSIVE USE BY LOCAL NONBRIDGE TRAFFIC. MOREOVER, THE WASHINGTON STATE HIGHWAY COMMISSION HAS ADVISED YOUR DEPARTMENT THAT THE POPULATION ON MERCER ISLAND AT THE EAST END OF THE BRIDGE AND THE CONSEQUENT TRAFFIC IN THAT AREA HAVE INCREASED TO THE EXTENT THAT IT IS NOW NECESSARY TO CONSTRUCT A NEW OFF RAMP BETWEEN THE EXISTING OFF-RAMP AND THE EASTERN END OF THE BRIDGE. THIS WILL BE DONE PRIOR TO REIMPOSITION OF TOLLS ON THE BRIDGE AND WILL RENDER THE ENTIRE PORTION OF PRIMARY STATE HIGHWAY NO. 2 WHICH WAS LANDSCAPED BY PROJECT SN- FAP 283-F (1) SUBJECT TO USE BY LOCAL NONBRIDGE TRAFFIC.

IT IS APPARENT FROM THE INFORMATION NOW FURNISHED AND THE PRINCIPLE ESTABLISHED BY 6 COMP. GEN. 302 THAT THE PORTIONS OF ROAD ON WHICH FEDERAL -AID HIGHWAY FUNDS WERE EXPENDED UNDER THE THREE PROJECTS CITED ABOVE NEED NOT BE CONSIDERED AS APPROACHES TO THE BRIDGE AS THAT PHRASE IS USED IN THE FEDERAL-AID HIGHWAY LEGISLATION. ACCORDINGLY, IF NO OTHER FEDERAL FUNDS SUBJECT TO THE FEDERAL-AID HIGHWAY LEGISLATION OR SIMILAR RESTRICTIONS WERE EXPENDED ON THE BRIDGE OR SUCH PORTION OF THE ROAD AS MUST BE CONSIDERED APPROACHES THERETO, THE PROHIBITION AGAINST THE IMPOSITION OF TOLLS CONTAINED IN THE FEDERAL-AID HIGHWAY LEGISLATION IS NOT APPLICABLE TO THIS BRIDGE, AND TOLLS MAY BE REINSTATED THEREON.

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