Number 15. July 31, 1967

Number 15. July 31, 1967. Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com- mission Dear Commissioner Whitmore: — You have requested an opinion as to whether certain ramps that are to be built in connection with a high-level bridge to be constructed by the Metropolitan District Commission (MDC) over the Charles River from Leverett Circle in Boston to City Square in Charlestown are "necessary approaches" to the bridge within the meaning of the statute. Chapter 682 of the Acts of 1 964 (cited as Chapter 682), providing for its construction. The question is important, since it concerns the source of the funds to be used for payment of the ramps. If the ramps are "necessary approaches," the Massachusetts Port Authority may contrib- ute to the cost of their construction. Otherwise, the MDC must bear the en- tire cost itself. 60 P.D. 12 Section 1 of c. 682 provides: "In order to relieve congestion, to expedite the flow of vehicular traffic, and to promote the public safety, the metropolitan district commission, hereinafter referred to as the commission, is hereby authorized and directed to construct and maintain a high level bridge over the Charles river from Leverett circle in the city of Boston northeasterly over said river, over mainline tracks of the Boston and Maine Railroad Company, and over the proposed re- located mainline tracks of the Metropolitan Transit Authority, then back to grade to intersect with the proposed reconstructed Rutherford avenue in the vicinity of City Square in the Charles- town district of said city, together with the necessary approaches thereto. '^ (Emphasis supplied.) Accompanying your request for an opinion is an engineering firm's report of a preliminary study of the project, containing drawings as well as verbal descriptions. From Plate 3 of the drawings it appears that at the Leverett Circle end of the bridge, as part of a new intersection, there will be four ramps, designated as D, J, K and L, respectively. None of the ramps, how- ever, lead traffic on or off the bridge. Instead, as you state in your letter, "They divert traffic around it." An explanation of the need for the bridge and the ramps and the manner in which they will relieve traffic congestion appears in the introduction to the engineering firm's report. After describing the expanding sources of traffic across the lower end of the Charles River, the report states: "It is obvious that the resulting congestion will be intolerable unless something is done about it. . . The proposed high level bridge will divert traffic from the worst trouble spot, namely, the Fitzgerald Expressway Bridge, and will bring relief to all of the expressways connected to it. . . The approach on the Leverett Circle side includes a completely remodeled intersection with all movements handled at grade, designed to carry traffic estimated for [the year] 1990." (pp. 1-2.) The report also states: "In the Leverett Circle area, the public facilities to be taken consist of a police station and adjacent recreational and parking areas owned by the Metropolitan District Commission; also park- ing areas owned by the Commonwealth of Massachusetts and used by the Department of Public Works. A narrow strip of land is required from the property on which high rise apartments are located, but the taking will not affect the buildings or appurte- nances. Another property affected consists of land on the north side of Nashua Street, formerly occupied by some of the tracks in the North Station. This land is owned by the Massachusetts Gen- eral Hospital and is now used for parking." (p. 17.) I turn now to the term "necessary approaches" in § 1 of c. 682. A strict interpretation of the word "approaches" might confine it to ways that are directly connected to each of the ends of the bridge. Such an interpretation was used in Whitcher v. Somerville, 138 Mass. 454, which was an action against a city for personal injuries resulting from a defect in a road running under a railroad bridge. The city unsuccessfully asserted in defense that it P.D. 12 61 was not liable since the road was an "approach" to the bridge and therefore came within a statutory responsibility of railroads to maintain and keep in repair railroad bridges, "with their approaches." There was evidence that the road has been lowered by the railroad when the bridge was built. In re- jecting the city's contention that the road was an "approach" to the bridge, the Court said, at page 455, "The approaches to a bridge are the ways at the ends of it, which are a part of the bridge, or are appendages to it. . . By the com- mon law, the duty to keep a bridge in repair carried with it the duty to keep in repair, as a part of the bridge, the highway at each end of it, for a space of three hundred feet. . . This limit of space has not been adopted in this Commonwealth, but the highways at the ends of a bridge have been recognized as, and called the ap- proaches to it, in several decisions. . . As the bridge in the present case was not a part of the highway, but was a part of the railroad track, and crossed the highway over the level thereof, the ap- proaches to it did not include any part of the highway, and the city was not relieved of its liability to keep in repair that portion of the highway where the accident happened." Although I have found no later Massachusetts decisions dealing with the question of what constitutes an "approach" to a bridge, I am nevertheless of the opinion that the statement in Whitcher v. Somerville, quoted above, that "The approaches to a bridge are the ways at the ends of it . . ." does not control the answer to the question that you have presented. In the present case, we have a bridge that forms part of a general plan, stated in § 1 of c. 682, quoted above, "to relieve congestion, to expedite the flow of vehicular traffic, and to promote the public safety. . . ." The Whitcher case, on the other hand, involved simply a railroad bridge, which, as the Court noted, was "not a part of the highway, but was a part of the railroad track . . ."; and the bridge and the road that passed beneath it plainly did not form a part of any larger traffic design. With regard to a bridge that forms part of a general plan to expedite the flow of automobile traffic, there is, in my opinion, no simple test to deter- mine the "approaches" thereto. The question is rather essentially one of fact, to be determined in each case primarily by the agency charged with the execution of the particular project. I find support for this view in the case of State v. Zcmgerle, 43 Ohio App. 30, 182 N.E. 644 (1932), where the court was called upon to construe the term "necessary approaches" to a bridge, in a controversy involving the meaning of that term in a resolution authorizing a bond issue to finance the construction. County commissioners had determined that certain streets in the immediate vicinity of the bridge should be improved for the purpose of diverting travel to the bridge. Rejecting an objection that these streets did not constitute "necessary approaches," the court said: "A bridge without adequate approaches, such as to assure the fullest and most convenient use of such bridge, would be of little avail and would almost defeat the purpose of its erection. Those who are by law directed and empowered to carry out the will of the people ... are under a mandatory duty not only to build the bridge, but also to build the necessary approaches thereto in or- der to afford the fullest use of the monumental structure. . . . 62 P.D. 12 "All the contending parties are agreed that the officers now sought to be enjoined are acting in good faith, and that it is mere- ly a question of want of power to make the expenditures. There- fore, the county commissioners having studied the situation in good faith, as it is now conceded, and having determined that cer- tain improvements are necessary as approaches to the bridge in order to provide maximum use thereof, this court cannot substi- tute its judgment for the judgment of the commissioners." 43 Ohio App. at page 37. Like deference for the judgment of the public officials charged with res- ponsibility for construction of a bridge was expressed by a majority of the Supreme Court of Washington in State v. Yclle, 197 Wash. I 10, 84 P.2d 688 (1938). That case involved the construction by the Washington Toll Bridge Authority of a toll bridge "together with approaches thereto wherev- er the same is considered necessary or advantageous or practicable." In or- dering a writ of mandamus to issue to compel approval of certain vouchers relating to certain work that the Authority regarded as constituting "ap- proaches," the court stated, "There is no question of bad faith urged in this action; thus it remains only to consider whether the Authority abused its discre- tion in the determination of the meaning and extent of the approaches. ". . . In considering the question presented we must view the project as a whole and ascertain the purpose sought to be accom- plished. . . "It was a manifest intention of the legislature to give to the Au- thority all those powers necessary to cope with the intricate ques- tions incident to our modern and complex problems of transpor- tation, and to vest in the Authority a wide discretion in the exer- cise of those powers." 197 Wash, at pages 1 17 and 122. For like reasons, in a complex factual situation such as the present one, I believe that it would be inappropriate for me to attempt to make an inde- pendent determination of whether the ramps involved in the construction of the Leverett Circle bridge are "necessary approaches" thereto. Moreover, the Legislature appears to have lodged with the MDC and the Boston Port Authority the right to make the determination themselves. Thus § 4 of c. 682 provides: "No monies shall be expended by the [MDC| under this act unless the [Massachusetts Port Authority] shall have entered into an agreement with the [MDC] , approved as to form by the attor- ney general, to pay to the [MDC] a sum equal to one half the cost of the construction authorized in section one [for the bridge and necessary approaches ] , if the total cost thereof does not ex- ceed three million dollars; and if the total cost of said construc- tion exceeds three million dollars, to pay to the [MDC] that part of such total cost which is in excess of one and one half million dollars. "The 1 Massachusetts Port Authority] is hereby authorized to enter into such agreement and do all things necessary under this act, notwithstanding any contrary provision of chapter four P.D. 12 63 hundred and sixty-five of the acts of nineteen hundred and fifty- six [the act creating the Authority] ." You ask whether — if the question is, as I regard it to be, one of fact — the MDC and the Authority may resolve the matter in their interagency agree- ment to be executed under the foregoing section. It is my opinion that such a resolution would indeed be appropriate and that the interagency agree- ment, entered into in good faith and not in an abuse of discretion, will be a final determination of the matter. Very truly yours, Elliot L. Richardson, Attorney General