                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                     December 6, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
 JOHN LEY; WILLIAM CISMAR; DAN                                    No. 48715-2-II
 COURSEY; MARK ENGELMAN; CARL
 GIBSON; TOM HANN; JOHN JENKINS,
 SHARON LONG; LARRY MARTIN; GREG
 NOELCK; HARVEY OLSON; LARRY
 PATELLA; BRIAN PECK; BRIAN
 PEABODY; FRAN RUTHERFORD; GARY
 SCHAEFFER; TOM SHARPLES; CHARLES
 STEMPER; and DON YINGLING,

                       Appellants,

        v.                                                   PUBLISHED OPINION

 CLARK COUNTY PUBLIC
 TRANSPORTATION BENEFIT AREA, a
 Washington Public Transportation Benefit
 Area,

                       Respondent.

       MAXA, A.C.J. – The board of directors of the Clark County Public Transportation Benefit

Area (C-TRAN) adopted resolutions in 2005 and 2011 that proposed ballot measures authorizing

an increase in sales and use taxes available to C-TRAN to fund public transportation. Voters

passed both ballot measures. In 2012, C-TRAN’s board approved a $53 million Fourth Plain

Bus Rapid Transit (BRT) project, which is designed to provide more efficient bus service along

Fourth Plain Boulevard between downtown Vancouver and Westfield Vancouver Mall.
No. 48715-2-II


Revenues from the 2005 and 2011 tax measures potentially were available to fund C-TRAN’s

share of the BRT project.

       John Ley and other taxpayers in the transit area (collectively Ley) filed suit against C-

TRAN, alleging that using revenues from the 2005 and 2011 ballot measures for the BRT project

would violate article VII, section 5 of the Washington Constitution. Article VII, section 5 states

that “every law imposing a tax shall state distinctly the object of the same to which only it shall

be applied.” The trial court granted summary judgment in favor of C-TRAN and dismissed the

lawsuit.

       Ley appeals the trial court’s summary judgment order. He argues that revenue from the

2005 and 2011 ballot measures cannot lawfully be used to fund the BRT project because (1) the

enabling resolutions for the tax measures stated that the purpose of the increased taxes was to

fund specific public transportation plans not including the BRT project, and (2) using the tax

revenues to fund the BRT project would represent a substantial deviation from funding those

specific plans. C-TRAN argues that the enabling resolutions for the ballot measures stated that

that the purpose of the increased taxes was more generally to fund the preservation of local

service levels and that the BRT project will preserve service levels along the Fourth Plain

corridor.

       We hold that C-TRAN can lawfully use the revenue from the 2005 and 2011 ballot

measures to fund the BRT project because that project is consistent with the goals of the tax

measures as stated in the enabling resolutions – to preserve local transit service. Accordingly,

we affirm the trial court’s grant of summary judgment in favor of C-TRAN.




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No. 48715-2-II


                                              FACTS

       C-TRAN is a public transportation benefit area that was organized in 1980 pursuant to

chapter 36.57A RCW. C-TRAN’s service area includes the cities of Vancouver, Washougal,

Camas, Battle Ground, Ridgefield, and La Center; the town of Yacolt; transportation corridors

connecting the city limits of Battle Ground, Ridgefield, La Center, and Yacolt; and the

unincorporated areas surrounding Vancouver.

       C-TRAN is funded in part by retail sales and use taxes. At its inception in 1980, voters

approved a tax measure allowing C-TRAN to impose a 0.3 percent sales tax. In 1999, C-TRAN

lost state matching funds that represented a significant portion of its annual budget. As a result,

C-TRAN cut back services in 2000.

2005 Tax Measure

       In 2005, C-TRAN’s board passed resolution BR-05-021 (2005 resolution) in an effort to

address its reduced funding and service cutbacks. This resolution requested that the Clark

County auditor place a ballot measure on the 2005 election ballot authorizing the imposition of

“an additional 0.2 percent sales and use tax for the purpose of funding C-TRAN’s Service

Preservation Plan, which preserves current service levels and restores innovative services to

areas that lost service in 2000.” Clerk’s Papers (CP) at 1282. The 2005 resolution also asked the

auditor to consider specific ballot language, which stated that the tax increase was “to preserve

C-TRAN local fixed route, commuter, and demand response service” in Vancouver and certain

areas and restore service to other areas. CP at 1283.

       The ballot measure placed on the ballot was identical to the language proposed in the

resolution. The voters’ pamphlet sent to voters contained the ballot measure, the full text of the



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No. 48715-2-II


2005 resolution, and statements for and against the ballot measure. The voters approved the

ballot measure providing for the 0.2 percent tax increase in the 2005 election.

2011 Tax Measure

       In 2011, C-TRAN again faced financial difficulties in part due to the recession. C-

TRAN’s board passed resolution BR-11-004 (2011 resolution). This resolution requested that

the Clark County auditor place a ballot measure on the 2011 election ballot authorizing the

imposition of “an additional 0.2 percent of the sales and use tax available to [C-TRAN] for the

purpose of funding a Core Bus and C-Van Preservation Ballot Measure.” CP at 458. The 2011

resolution also asked the auditor to consider specific ballot language, which stated that the tax

increase was “to preserve C-TRAN local fixed route, limited, commuter and Connector service”

in Vancouver and certain areas and to meet the current and projected growth for paratransit

service. CP at 458.

       The ballot measure placed on the ballot was identical to the language recommended in

the resolution. The voters’ pamphlet sent to voters contained the ballot measure, the full text of

the 2011 resolution, and statements for and against the ballot measure. The voters approved the

ballot measure providing for the 0.2 percent tax increase in the 2011 election.

BRT Project

       In 2012, C-TRAN’s board passed resolution BR-12-006, which supported the BRT

project. The BRT project is intended to address transit needs along the Fourth Plain corridor in

Vancouver. The project will replace Fourth Plain bus routes 4 and 44 with a new route for 5.9

miles between downtown Vancouver and the Westfield Vancouver Mall. The BRT route will

use longer buses, operate with greater frequency, and include other improvements. Other



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No. 48715-2-II


existing fixed routes that travel near the BRT route will be modified to better complement the

BRT route. The net result of the project will be to reduce travel time between the two areas by

up to 10 minutes.

       The BRT project will require the purchase of 10 new buses that are longer than the

current buses used. The project also will involve upgrades to existing stations to allow level

boarding for those in wheelchairs to board easily. Other features of the BRT project are ticket

machines at every station, transit signal priority, and additional bus bays. The total estimated

cost of the BRT project is $53,120,000. C-TRAN’s actual cost will be $7.4 million, with the

remaining funds coming from state and federal grants.

       In 2014, C-TRAN’s board approved allocating most of its financial contribution to the

BRT project from C-TRAN’s uncommitted cash and investment reserves. The record does not

clearly indicate whether C-TRAN actually has used revenues from the 2005 and 2011 tax

measures to fund the BRT project.1

Challenge to BRT Spending

       In December 2014, Ley filed a lawsuit against C-TRAN, seeking declaratory relief that

revenue from the 2005 and 2011 tax measures could not be spent on the BRT project.2 C-TRAN

moved for summary judgment. The trial court granted summary judgment in favor of C-TRAN.




1
  The Department of Revenue provides C-TRAN with one lump payment per month reflecting
the total 0.7 percent sales and use tax revenue without segregating funds based on the different
propositions. C-TRAN has not segregated the funds received from the different tax measures.
2
  Ley’s complaint also asserted that (1) the BRT project violated statutes governing high capacity
transportation systems, (2) the BRT project was ultra vires, and (3) taxpayers were entitled to an
equitable accounting of C-TRAN. Ley does not address these claims on appeal.


                                                 5
No. 48715-2-II


       Ley appeals the trial court’s summary judgment order.

                                            ANALYSIS

A.     STANDARD OF REVIEW

       1.   Summary Judgment Standard

       We review a trial court’s order granting summary judgment de novo. Keck v. Collins,

184 Wn.2d 358, 370, 357 P.3d 1080 (2015). We review the evidence and all reasonable

inferences from the evidence in the light most favorable to the nonmoving party. Id. Summary

judgment is appropriate where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Keck, 184 Wn.2d at 370.

       2.    Interpretation of Tax Measures

       Ley and C-TRAN disagree over the appropriate standards governing review and

interpretation of the tax measures. Ley argues that we should apply the principles of contract

construction, relying on Sane Transit v. Sound Transit, 151 Wn.2d 60, 69, 85 P.3d 346 (2004)

(stating without analysis that interpreting an enabling resolution for a proposition approved by

voters is a question of contract construction). C-TRAN argues that we should apply principles of

statutory interpretation, relying on the general rule that courts apply “the same rules of statutory

construction to municipal ordinances as to state statutes.” City of Wenatchee v. Owens, 145 Wn.

App. 196, 202, 185 P.3d 1218 (2008). As a practical matter, the standard we use makes little

difference in this case because both require us to look to the plain meaning of the language used.

       The primary objective in contract interpretation is to ascertain the parties’ intent, which

we determine by focusing on the reasonable meaning of the contract language. Viking Bank v.

Firgrove Commons 3, LLC, 183 Wn. App. 706, 712-13, 334 P.3d 116 (2014). We give words



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No. 48715-2-II


their ordinary, usual, and popular meaning unless the agreement clearly demonstrates a different

intent. Id. at 713. If the contract language is clear and unambiguous, we must enforce the

contract as written. RSD AAP, LLC v. Alyeska Ocean, Inc., 190 Wn. App. 305, 316, 358 P.3d

483 (2015), review denied 185 Wn.2d 1023 (2016).

       Similarly, the purpose of statutory interpretation is to determine and give effect to the

enacting body’s intent. Gray v. Suttell & Assocs., 181 Wn.2d 329, 339, 334 P.3d 14 (2014). To

determine intent, we first look to the plain language of the statute, considering the text of the

provision, the context of the statute, related provisions, and the statutory scheme as a whole. Id.

If a statute is unambiguous, we apply the statute’s plain meaning as an expression of intent

without considering other sources of such intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317

P.3d 1003 (2014).

       3.    Construction of Ambiguities in Tax Measures

       Ley also argues that we must construe any ambiguity in the resolution language against

C-TRAN. Ley cites various cases to support the general proposition that ambiguity in a taxing

statute is construed against the taxing power and in favor of the taxpayer. In re Estate of

Bracken, 175 Wn.2d 549, 563, 290 P.3d 99 (2012); Dep’t of Revenue v. Hoppe, 82 Wn.2d 549,

552, 512, P.2d 1094 (1973).

       However, the cases Ley cites differ from this case because they all involve the collection

of taxes from taxpayers, and not a public entity’s expenditure of taxes that already have been

collected.3 Ley has not provided any authority that ambiguities must be construed in favor of the



3
 Ley does not challenge C-TRAN’s collection of the taxes relating to the 2005 and 2011 tax
measures.


                                                  7
No. 48715-2-II


challenging party in tax expenditure cases. Therefore, we do not construe any ambiguities in

favor of Ley and against C-TRAN.

B.     LEGAL PRINCIPLES

       1.    Constitutional Requirements for Taxes

       Article VII, section 5 of the Washington Constitution states that no tax can be levied

unless authorized by law and that “every law imposing a tax shall state distinctly the object of

the same to which only it shall be applied.” (Emphasis added.) The “state distinctly”

requirement is directed to the relationship between the tax and the purpose of the tax. Sheehan v.

Cent. Puget Sound Reg’l Transit Auth., 155 Wn.2d 790, 804, 123 P.3d 88 (2005). An action is

unconstitutional if it diverts taxes assessed for purposes stated in the enabling law into some

“wholly unrelated project or fund.” Id.

       “When voters approve taxes for a public project, major deviations to the project are not

within the government’s lawful power.” Larson v. Seattle Popular Monorail Auth., 156 Wn.2d

752, 765, 131 P.3d 892 (2006). “While minor details in a public project may be changed by the

governing agency, taxpayer funds may not be used to construct a substantially different project

than the one approved by voters.” Sane Transit, 151 Wn.2d at 68. However, a substantial

deviation is lawful if the enabling legislation for the tax measure authorizes the public entity to

make such a deviation. Id. at 69.

       2.    Enabling Legislation

       When a tax is imposed by proposition, the starting point for applying article VII, section

5 is identifying the law imposing the tax. See id. The Supreme Court in Sane Transit held that

the relevant law was the resolution enabling the ballot measure. Id. at 69, 72-73.



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No. 48715-2-II


       In Sane Transit, the court was faced with determining whether Sound Transit’s

acknowledged substantial deviation from its approved light rail plan was permitted by the

enabling legislation. Id. at 69. The substantial deviation was Sound Transit’s decision to shorten

the proposed light rail route and to take longer than 10 years to complete the project. Id. at 68-

69.

       The court first had to determine what document constituted the enabling legislation

imposing the tax. Id. at 69-71. Sound Transit had passed resolution 75, which authorized a

ballot measure seeking a tax increase to implement a regional rail and express bus system as

provided in the Sound Move plan. Id. at 64-65. The voters received a pamphlet titled “Sound

Move: The Ten-Year Regional Transit System Plan,” which summarized the 36-page Sound

Move plan. Id. at 65. The voters also received a voters’ pamphlet that included the ballot

measure, an explanatory statement, and statements for and against the measure. Id. The voters’

pamphlet noted that voters could review the complete text of resolution 75 at the county

auditor’s office. Id.

       The court held that resolution 75 was the enabling legislation, not the Sound Move

pamphlet, ballot measure, or voters’ pamphlet. Id. at 69, 71-73. Because resolution 75 was the

enabling legislation and it contained a clause granting Sound Transit discretion to modify the

light rail plan, the court held that Sound Transit’s substantial deviation was permitted. Id. at 81-

82. The court noted that although the Sound Move pamphlet sent to voters stated repeatedly that

the project would take 10 years to complete, those statements were simply “[d]eclarations of

principles, purposes, and aims” and “not operative rules of action and do not give rise to

enforceable rights or create legal obligations.” Id. at 76.



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No. 48715-2-II


        Here, under article VII, section 5 we must compare the purposes of the 2005 and 2011 tax

measures as stated in the enabling resolutions with the details of the BRT project. We then must

determine whether the BRT project falls within the stated purpose that voters approved or is a

substantial deviation from that purpose.

C.      2005 TAX MEASURE

        The parties agree, based on Sane Transit, that the 2005 resolution is the enabling

legislation that we examine to determine the purpose of the 2005 tax measure. Id. at 69, 72-73.

Under article VII, section 5, revenues from the 2005 tax measure must be applied only to the

object of that tax as stated in the resolution.

        Ley and C-TRAN disagree over the “object” of the tax measure as expressed in the 2005

resolution. Ley argues that the resolution’s purpose is specifically to fund C-TRAN’s Service

Preservation Plan and that the BRT project represents a substantial deviation from that plan. C-

TRAN argues that the purpose is more generally to fund the preservation of current transit

service levels and that the BRT project is consistent with preservation of service.

        We hold that the purpose of the 2005 tax measure was to fund C-TRAN’s Service

Preservation Plan in order to achieve the broader goal of preserving C-TRAN’s current service

levels. And we hold that the BRT project is consistent with that purpose.

        1.   Resolution Language

        The 2005 resolution contained an introductory clause, seven “whereas” clauses, and three

resolution clauses. The introductory clause stated that the purpose of the 2005 resolution was to

authorize a request that the county auditor place on the ballot “a proposition which authorizes the

imposition of up to an additional 0.2 percent of the sales and use tax available to [C-TRAN] for



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No. 48715-2-II


the purpose of funding a Service Preservation Plan.” CP at 1282 (emphasis added). One

whereas clause stated that C-TRAN’s board of directors had “approved a Service Preservation

Plan that preserves current service levels and restores innovative services to areas that lost

service in 2000.” CP at 1282 (emphasis added).

       The first resolution clause stated:

       NOW, THEREFORE BE IT RESOLVED by the C-TRAN Board of Directors that
       a proposition be placed on the September 20, 2005 primary ballot, authorizing the
       imposition of up to an additional 0.2 percent sales and use tax for the purpose of
       funding C-TRAN’s Service Preservation Plan, which preserves current service
       levels and restores innovative services to areas that lost service in 2000, including
       the cities of La Center and Ridgefield, the Town of Yacolt, and the Washington
       State University Vancouver campus.

CP at 1282 (emphasis added). The second resolution clause asked the Clark County auditor to

consider specific ballot language:

       C-TRAN, Clark County Public Transportation Benefit Area Authority, in adopting
       Resolution #BR-05-021, authorizes a proposition to increase the sales and use tax
       by 0.2 percent, or two cents on a $10.00 purchase, to preserve C-TRAN local fixed
       route, commuter, and demand response service (C-VAN and the Camas Connector)
       in the City of Vancouver and its urban growth boundary, and the city limits only of
       Camas, Washougal, and Battle Ground; and to restore service to the cities of La
       Center and Ridgefield, the Town of Yacolt, and the WSU - Vancouver campus.

CP at 1283 (emphasis added).

       The third resolution clause directed C-TRAN staff to provide to citizens of Clark County

(1) a document that “describes the services included in the Service Preservation Plan, which

preserves current transit service and restores services lost to areas in 2000”; and (2) information

about a Service Reduction Plan that would be implemented if voters rejected the proposition. CP

at 1283.




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No. 48715-2-II


       2.   Purpose of 2005 Resolution

       The introductory clause and the first resolution clause of the 2005 resolution stated that

the tax measure’s purpose was to fund a specific transportation plan – the Service Preservation

Plan. In addition, the third resolution clause directed that the Service Preservation Plan be

distributed to the citizens of Clark County. The Service Preservation Plan clearly was a focus of

the 2005 resolution.

       On the other hand, the ballot language C-TRAN proposed in the 2005 resolution did not

mention the Service Preservation Plan. The proposed ballot language – which was identical to

the ballot measure the voters approved – stated that the tax measure’s purpose was to “preserve

C-TRAN local fixed route, commuter, and demand response service.” CP at 1283. And the first

resolution clause stated that the purpose of the tax increase was to fund “C-TRAN’s Service

Preservation Plan, which preserves current service levels.” CP at 1282 (emphasis added). A

whereas clause included the same description of the Service Preservation Plan. The language of

these provisions suggests that the one of the 2005 resolution’s primary goals was the

preservation of current service levels and that the Service Preservation Plan was the specific plan

designed to implement that goal.

       We must interpret the language of the 2005 resolution as a whole. Gray, 181 Wn.2d at

339 (statutory interpretation); Viking Bank, 183 Wn. App. at 713 (contract interpretation).

Further, we interpret statutes and contracts to give effect to all the language used and without

rendering any portion meaningless. Veit v. Burlington N. Santa Fe Corp., 171 Wn.2d 88, 113,

249 P.3d 607 (2011) (statutory interpretation); Snohomish County Public Trans. Benefit Area

Corp. v. FirstGroup Am., Inc., 173 Wn.2d 829, 840, 271 P.3d 850 (2012) (contract



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No. 48715-2-II


interpretation). Here, these principles mean that the Service Preservation Plan cannot be viewed

in isolation from the goal of that plan as stated in the 2005 resolution.

          We interpret the 2005 resolution to give effect to both its specific purpose, to fund the

Service Preservation Plan, and its broader goal, to preserve current transit service levels.

Therefore, we hold that an unambiguous purpose of the 2005 tax measure was to fund C-

TRAN’s Service Preservation Plan in order to achieve the goal of preserving current service

levels.

          3.   Consistency with 2005 Resolution’s Purpose

          Ley argues that funding the BRT project is a substantial deviation from the purpose of the

tax increase that voters approved in the 2005 tax measure. We disagree.

          Ley argues that neither the 2005 resolution nor the Service Preservation Plan authorized

C-TRAN to use revenue from the tax measure to fund a significant capital project like the BRT

project. Because the 2005 resolution’s purpose involved both funding the plan and preserving of

transit service, we must analyze the issue from both perspectives.

               a.   Service Preservation Plan

          Whether funding the BRT project constitutes a substantial deviation from funding the

Service Preservation Plan depends on the scope and provisions of that plan. The Service

Preservation Plan was a relatively short (13 pages including attachments) staff report that

emphasized C-TRAN’s ability to finance its current operations without running a deficit. The

plan focused on two major principles: (1) “[preserving] current transit service levels” and (2)

restoring service lost in 2000 in certain areas. CP at 1286.




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No. 48715-2-II


       Significantly, the Service Preservation Plan was goal specific rather than project

specific.4 The plan did not outline any specific construction projects. Instead, it was “a new

service and funding plan that preserve[d] transit service levels and balance[d] C-TRAN’s

budget.” CP at 1285. As stated in the 2005 resolution, the clear goal of the plan was to preserve

local transit service levels while adding voter-approved tax revenue to fund those levels.

       The plan proposed almost no changes to urban bus routes. But it required C-TRAN to

“achieve high service performance standards.” CP at 1286. And the plan assumed that C-TRAN

would make “[s]ervice efficiencies and ridership improvements each year beginning 2007 with

specific service performance standards identified for each service type.” CP at 1287. Finally,

the plan’s description of fixed route service provided that “[l]ocal fixed route service standards

will be consistent with the goals set by the Board of Directors.” CP at 1287. These excerpts

indicate that the plan anticipated that C-TRAN would implement some improvements to

maintain a properly functioning system in order to serve the plan’s first major principle of

preserving service levels.

       Ley emphasizes that the Service Preservation Plan did not identify any substantial capital

improvements. But the plan did reference capital projects, stating that the “Service Preservation

Plan capital requirements are addressed in the Prioritized Capital Projects List approved by the

Board in March 2004.” CP at 1292. That list of capital projects is not in the record. However,

nothing in the plan suggests that it would preclude C-TRAN from initiating any capital projects

in order to preserve local service.



4
  The nature of the plan is one of the distinguishing factors between this case and Sane Transit,
in which the tax measure was designed to fund a specific project. 151 Wn.2d at 64-65.


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No. 48715-2-II


       Ley also argues that the plan did not contemplate a capital project with the scale and cost

of the BRT project. But the plan included a spread sheet that provided income and expenditure

projections, which included a line for “Capital Local Share.” CP at 1295. C-TRAN projected

capital expenditures in this category of over $8.8 million in 2005, over $9 million in 2006, and

over $13.5 million in 2011. All of these projections exceed C-TRAN’s $7.4 million capital share

for the BRT project. Therefore, the plan arguably did contemplate capital expenditures similar to

those that C-TRAN will incur for the BRT project.

       We hold that funding the BRT project is not inconsistent with the Service Preservation

Plan. Therefore, the ultimate issue is whether the BRT project falls within the plan’s general

goal of preserving current transit service levels.

             b.   Preserving Current Service Levels

       Ley argues that even if the purpose of the 2005 resolution was generally to preserve

current service levels, the BRT project was a substantial deviation from that purpose. In

response, C-TRAN argues that “preserving” current service levels necessarily includes some

changes and improvements to maintain the level of service. C-TRAN claims that the BRT is

necessary to preserve the current level of service on Vancouver’s busiest corridor. We agree

with C-TRAN.

       First, Ley argues that there are questions of fact regarding whether the BRT project

relates to service preservation. This argument turns in part on the issue of whether

“preservation” can include making necessary improvements to a system to maintain current

service levels.




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No. 48715-2-II


          The dictionary definition of “preserve” includes “to keep safe from injury, harm, or

destruction” and to “protect.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1794

(2002). Under this definition, preserving a system does not merely contemplate taking no action

and spending no money as a system declines or becomes less efficient. Maintaining the status

quo necessarily includes pursuing new projects that will keep the system running at current

levels. For example, C-TRAN points out that replacing an outdated bus may be necessary to

preserve current service levels. Therefore, the 2005 resolution cannot be interpreted as requiring

C-TRAN to keep the fixed route service exactly as it was in 2005. And in fact, Ley

acknowledged at oral argument that preserving service includes expenditures for new buses and

other improvements.

          Here, in adopting the BRT project C-TRAN noted that Fourth Plain Boulevard “is Clark

County’s highest ridership corridor; with bus overcrowding becoming more common, coupled

with diminishing trip reliability and increasing transit travel times.” CP at 26. C-TRAN

projected an increase of demand of up to 40 percent through 2035 because of projected

population and job growth. Such growth would “overtake C-TRAN’s ability to adequately serve

the Fourth Plain Corridor with existing bus service.” CP at 26. It follows that if C-TRAN did

not improve the Fourth Plain routes, the level of fixed route service on the Fourth Plain corridor

would decline.

          The BRT project’s purpose and need statement provided that the purpose of the project

was to:




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No. 48715-2-II


       cost-effectively increase transit ridership as well as enhance transit’s comfort,
       convenience and image by reducing transit travel time, improving trip reliability,
       and increasing transit capacity to meet current and long-term transit travel demand,
       while also enhancing the safety and security of the corridor.

CP at 27. To achieve the purpose of preserving fixed route service along the Fourth Plain

corridor, C-TRAN decided to make the improvements that comprise the BRT project.

       The record shows that the BRT project intends to improve transit along the Fourth Plain

corridor in order to prevent overcrowding, which will prevent harm to that bus route and protect

the efficient operation of that route. Therefore, the record is sufficient to establish that the BRT

project is consistent with preserving current service along the Fourth Plain corridor.

       Second, Ley argues that the BRT project’s cost and scale are inconsistent with

preservation. As noted above, Ley acknowledges that preserving service includes expenditures

for new buses and other improvements. But he argues that the term “preserve” cannot include

the expenditure of millions of dollars for the largest capital project in C-TRAN’s history.

However, whether a project is designed to preserve something cannot depend on the cost of the

project. As C-TRAN points out, projects designed to restore damaged transit infrastructure after

a natural disaster – regardless of how costly – obviously would fall within the meaning of

preserving service levels.

       The 2005 resolution places no spending limits on furthering its goal of preserving current

service levels. As noted above, the Service Preservation Plan projected future annual capital

expenditures that were greater in some years than C-TRAN’s $7.4 share of the BRT project.

Therefore, we reject Ley’s argument that the cost of the BRT project necessarily means that it is

a material deviation from the purpose of the 2005 resolution.




                                                 17
No. 48715-2-II


             c.   Summary

        We hold that funding the BRT project is consistent with the 2005 resolution’s purpose of

funding C-TRAN’s Service Preservation Plan in order to achieve the goal of preserving current

service levels. Therefore, we hold that C-TRAN is able to lawfully use revenue from the 2005

tax measure to fund the BRT project.

D.      2011 TAX MEASURE

        The parties agree, based on Sane Transit, that the 2011 resolution is the enabling

legislation that we examine to determine the purpose of the 2011 tax measure. 151 Wn.2d at 69,

72-73. Under article VII, section 5, revenues from the 2011 tax measure must be applied only to

the object of that tax as stated in the resolution.

        Ley and C-TRAN disagree over the “object” of the tax measure as expressed in the 2011

resolution. Ley argues that the resolution’s purpose is specifically to fund the Core Bus and C-

VAN Preservation Plan and that the BRT project represents a substantial deviation from that

plan. C-TRAN argues that the purpose is more generally to fund the preservation of local fixed

route service and that the BRT project is consistent with preservation of service.

        We hold that the purpose of the 2011 tax measure was to preserve C-TRAN’s local fixed

route transit service. And we hold that the BRT project is consistent with that purpose.

        1. Resolution Language

        The 2011 resolution consisted of an introductory clause, 11 whereas clauses, and two

resolution clauses. The introductory clause stated:




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No. 48715-2-II


       A RESOLUTION REQUESTING the Clark County Auditor to place on the
       November 8, 2011 general election ballot, a proposition which authorizes the
       imposition of up to an additional 0.2 percent of the sales and use tax available to
       the Clark County Public Transportation Benefit Area (C-TRAN) for the purpose of
       funding a Core Bus and C-VAN Preservation Ballot Measure.

CP at 458 (emphasis added). One whereas clause stated that C-TRAN’s board “determined that

a 0.2 percent sales and use tax increase will preserve C-TRAN’s existing local fixed route,

limited, commuter and connector service.” CP at 458. None of the whereas clauses referenced a

specific plan to be funded.

       The first resolution clause asked the Clark County auditor to consider specific ballot

language:

       C-TRAN . . . in adopting Resolution BR-11-004, authorizes a proposition to
       increase the sales and use tax by 0.2 percent, or two pennies on a ten dollar
       purchase, to preserve C-TRAN local fixed route, limited, commuter and Connector
       service in the City of Vancouver and its 2005 Urban Growth Boundary, and the city
       limits only of Camas, Washougal, Battle Ground, La Center, Ridgefield, and the
       town of Yacolt; and to meet the current and projected growth for Paratransit service,
       C-VAN.

CP at 458 (emphasis added). The second resolution clause directed C-TRAN staff to

disseminate a description of services in the Core Bus and C-VAN Preservation Plan.

       2.   Purpose of 2011 Resolution

       Unlike the 2005 resolution, the 2011 resolution did not state that the purpose of the 2011

tax measure was to fund a specific plan. The 2011 resolution’s introductory clause stated that

the purpose of the tax measure was to fund the “Core Bus and C-VAN Preservation Ballot

Measure,” not the plan itself. CP at 458 (emphasis added). The whereas clauses did not mention

the plan, and instead referenced the general goal of preserving local service. The proposed ballot

language – which was identical to the ballot measure the voters approved – stated that the tax



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increase in part was “to preserve C-TRAN local fixed route . . . service” in Vancouver and other

areas without referencing any specific plan. CP at 458.

       The second resolution clause did mention a Core Bus and C-VAN Preservation Plan. But

it did not state that the purpose of the tax increase was specifically to fund that plan. Instead, the

resolution language made it clear that the plan was one of the means by which C-TRAN hoped to

achieve its goal of preserving local fixed route service.

       We hold that the purpose of the 2011 tax increase was to fund the ballot measure, and the

unambiguous purpose of the ballot measure was to preserve C-TRAN’s local fixed route service.

       3.    Consistency with 2011 Resolution’s Purpose

       As with the 2005 tax measure, Ley argues that even if the purpose of the 2011 resolution

was generally to preserve C-TRAN’s local fixed route service, the BRT project was a substantial

deviation from that purpose. We already analyzed and rejected this argument in discussion of

the 2005 tax measure. We hold that funding the BRT project is consistent with the 2011

resolution’s purpose of preserving C-TRAN’s local fixed route service. Therefore, we hold that

C-TRAN is able to lawfully use revenue from the 2011 tax measure to fund the BRT project.5




5
 Ley requested his attorney fees on appeal based on the common fund doctrine. However, we
do not address that issue because we hold that C-TRAN can use both the 2005 and 2011 tax
measure revenues to fund the BRT project and therefore Ley did not create a common fund.


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                                         CONCLUSION

       We hold that C-TRAN’s use of revenues from the 2005 and 2011 tax measures would not

violate article VII, section 5 of the Washington Constitution. Accordingly, we affirm the trial

court’s grant of summary judgment in favor of C-TRAN.



                                                     MAXA, A.C.J.



 We concur:




WORSWICK, J.




MELNICK, J.




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