December 16, 2019

King County Wins Lawsuit Upholding Broad County Franchise Authority

Along with the King County Prosecutor’s Office, Pacifica Law Group attorneys Matthew Segal, Jessica Skelton, Kymberly Evanson, and Sarah Washburn successfully represented King County in a declaratory judgment lawsuit confirming the County’s authority to require franchise agreements and reasonable compensation for use of public rights-of-way by public and private utilities.

Consistent with longstanding precedent recognizing municipal authority to charge compensation for utility use of public streets, the Washington Supreme Court on December 5, 2019 unanimously held that counties like King County have authority to require compensation for use of the public rights-of-way as a condition of granting a franchise, unless forbidden by statute or contrary to public policy.  The Court first confirmed that such compensation was not an unauthorized tax, noting that the charge is part of a bargained-for exchange and is intended to compensate the County for the value of the franchise.  The Court then held that no state constitutional provision or statute explicitly barred the County from requiring compensation for utility use of its rights-of-way.  In doing so, the Court noted that while the legislature has limited the amounts cities, towns, and the state can charge in conjunction with a franchise, it has not so limited counties.  The Court also emphasized that regardless of whether they “own” the rights-of-way within their jurisdictions, counties have broad and independent statutory authority to grant or deny franchises under RCW 36.55.010.  By virtue of that authority, counties have discretion to charge compensation for the grant of a franchise if doing so is in the public interest.

The Court also unanimously held that public water-sewer districts and private utilities have no general right to use the County’s rights-of-way without a franchise agreement.  The Court determined that the water-sewer districts’ authorizing legislation did not grant those districts the unfettered right to occupy public rights-of-way.  The Court also rejected the public and private utility defendants’ argument that public road dedications grant utilities free use of public rights-of-way.  In sum, absent an easement or other specific right to use county rights-of-way, public water-sewer districts and private utilities must obtain a franchise.

Seven justices of the Court also agreed that franchising local rights-of-way is a local affair that falls within King County’s broad legislative authority as a home rule county.  The majority opinion is an important decision on county home rule authority, confirming that (1) home rule counties may exercise powers that do not violate a constitutional provision or statute and (2) counties have been delegated absolute control over county roads, including the ability to grant franchises, meaning the County has broad control over those subjects by virtue of its home rule powers.