dissenting.
In order to deny motor vehicle and fuel taxes for funding the facilities here in dispute, though they are designed to be used by motor vehicles and for pedestrian access to motor vehicles, the majority constructs a faulty and obscure constitutional formula and needlessly complicates traffic management by state and local agencies.
Lane County and the City of Eugene agreed to use some of the county’s share of state funds from motor vehicle and fuel taxes for “expenditures allowable under Oregon Constitution, Art. IX, sec. 3a,” in order to construct entry and exit roads, a parking area, and a covered walkway from the parking area to the airport terminal. Article IX, section 3a, allows the use of such funds for “the construction, reconstruction, improvement, repair, maintenance, operation and use of public highways, roads, streets and roadside rest areas in this state.” The majority holds that these terms do not allow funding the parking area or the walkway. I believe that this holding misapplies the constitutional text.
Public officials and others who apply the laws governing permissible and impermissible uses of highway funds will not find clear guidance in the opinion. The majority’s formula for using motor vehicle and fuel tax funds for “improvement, * * * operation and use of public highways, roads, streets and roadside rest areas” has two parts: (1) that the projects or purposes “primarily and directly facilitate motorized vehicle travel,” and (2) that these “projects or purposes” be “within or adjacent to a highway, road, street or roadside rest area right-of-way.” The majority then characterizes the expenditures in this case as being “primarily for the operational convenience of an airport, rather than for a project or purpose within or adjacent to a highway, road, street *550or roadside rest area right-of-way that primarily and directly facilitates motorized vehicle travel.”
The formula is inadequate for several reasons. Whenever a court falls back on elastic qualifiers like “primarily” and “directly,” it in effect declines to lay down firm criteria and reserves future factual variations to case-by-case decisions. Under the formula, today’s holding decides no more than this case. To make funding decisions so doubtful and prone to litigation is not in the interest of efficient planning and public administration.
Second, the reference to location “within or adjacent to” a right-of-way is arbitrary and unexplained. If a “project” or a “purpose” otherwise is eligible as “primarily and directly” (to use the majority’s words) serving or improving the operation and use of a highway, road, street, or roadside rest area, why does it matter whether it is within or adjacent to the right-of-way? The constitutional text does not refer to any “right-of-way.” Making this a part of the test may simply push agencies into acquiring otherwise unneeded rights-of-way to accommodate the location of such facilities. Besides, the formula invites future disputes about what it means for a “purpose” to be within or adjacent to a right-of-way, and how close is “adjacent.”
The majority’s formula, however flawed and inadequate it is for situations not now in the court’s contemplation, is designed to exclude funding in this particular case. The narrow holding is that this parking lot is an “airport parking lot,” which the court finds to be “primarily” for the airport, not “primarily and directly” for facilitating “motorized vehicle travel,” and this “covered walkway” leads to an airport terminal and therefore does not primarily aid motorized travel. The majority does not explain why public facilities for parking vehicles driven on public roads to a public airport differ from facilities for parking vehicles on or near a street or road at any other location. There is no apparent reason to distinguish parking, for instance, at mass transit stations, or wherever needed to allow vehicles to move on crowded city streets. People ordinarily drive a vehicle in order to get to a destination where they intend to park and leave the vehicle. Does the majority believe that the drafters of Article IX, section 3a, meant to provide motor vehicles with support under *551their wheels only as long as they remained in motion, doomed like the Flying Dutchman never to settle into any port? Anyone who has been trapped in a car for lack of a parking space may doubt that this was the drafters’ intent.
Yet the majority unaccountably singles out the present project as an airport parking lot. Is this because parking at an airport, as distinct from other locations, relates to another mode of transportation? The majority says that the disputed parking area is designed “primarily” to serve the airport rather than motor vehicle traffic. But the parking area is not for airplanes. It is not a terminal building for passengers. The parking area is for motor vehicles. If people cannot efficiently reach or use a location — an airport, a convention center, a coastal park, a ski resort, or any other — by motor vehicle because they cannot park and get out of their vehicles, then construction of an improved vehicle parking facility “directly” and “primarily” (in the majority’s words) serves and improves the “operation and use” of the streets and roads by motor vehicles to, from, and at that location. If people cannot park and leave their vehicles, they have little reason to drive them on the streets and roads, the “operation and use” that is the object of Article IX, section 3a. The majority’s use of its adverbs to announce the opposing holding only demonstrates the vagueness of its formula.
The same applies to the “covered walkway.” That a walkway is “covered,” of course, is no more relevant than that a road, a tunnel, or a bridge is covered, and I do not understand the majority opinion to exclude sidewalks and other pedestrian walkways as long as they can be described as part of the street or road. Of course, if a walkway (for instance, a new pedestrian bridge) is built some distance from the existing vehicular bridge in order to separate and improve vehicle traffic, it may run afoul of the majority’s “right-of-way” or “adjacent” criterion, unless the state or local agency can find space for the pedestrian span within an existing right-of-way or if it is foresighted enough to anticipate such improvement when acquiring new rights-of-way.
I would like to think that the formula does not exclude a pedestrian overpass or underpass across rather than alongside a street or road, which clearly serves its use by motor vehicles, regardless whether the crossing can be described as *552“part of’ the street or road. But why not a walkway at an airport? Suppose that an airport is served by a rail transit system easily accessible from inside the terminal, as some metropolitan airports are, but that motor vehicles can be reached only by crossing surface streets, often in dark, cold, or stormy conditions. Again, a covered walkway “directly” serves travel by automobile, not “primarily” air travel, just as an overpass or underpass across a busy highway or city street serves vehicle traffic.
In sum, the disqualification of the intended projects is not explained by the fact that they provide parking, or walkways, or a cover over a walkway, or that they are located at an airport or are not within a road or street right-of-way. This lack of a premise that can consistently apply in other situations indicates that the decision is wrong.
The complications which the majority regrettably creates for state and local planners are quite unnecessary. The words of Article IX, section 3a, here at issue in fact were unchanged from the previous section 3, adopted in 1942, except that “roadside rest areas” were added and “policing” was deleted. Assuming, as the court does, that the scope of section 3a is elucidated by the explanations accompanying its amendment in 1980,1 see nothing in the materials quoted in the majority opinion that excludes funding for structures designed to facilitate the operation and use of streets and roads by motor vehicles. There is no dispute that this was the object of the 1980 measure. The dissatisfaction that led to the measure, as the majority states, was with the use of motor vehicle and fuel taxes for funding police, parks, and scenic and historic places. Funds for policing, while certainly important to motor vehicle traffic, were diversions from structures to salaries and other costs of police services. Motor vehicle and fuel taxes used for Oregon’s state parks and, in smaller amounts, for historic and scenic places, largely went into physical properties, but properties not designed to serve transportation by motor vehicles. These diversions — to nonstructural police services and to property expenditures that did not make motor vehicle travel safer, easier, more efficient or convenient — were the issue in the debates leading to the 1980 amendment. The use of motor vehicle and fuel tax funds for structures designed to improve the operation and use of streets and roads by motor vehicles was not a debated issue, and the *553amendment did not change the permissible scope of those uses.
The test whether a structure improves the operation and use of a highway, road, street, or roadside rest area is far more accurate and workable than the majority’s elastic adverbs “directly” and “primarily.” The test allows funding facilities for use by motor vehicles while stationary as well as while they are in motion. It does not, like the majority opinion, invite meaningless dispute whether a public parking area or similar facility is built “primarily” to serve the destination of people traveling in motor vehicles or “primarily” to serve these people in driving the motor vehicles to that destination. The purpose of allocating tax funds to one rather than another project is, after all, for government policymakers to say; if the legislature, a state agency, or a local government, to satisfy the majority, recites that construction of a project is needed “primarily and directly” to facilitate the use of a street or road by motor vehicles, I suppose its view will deserve the degree of deference ordinarily given governmental decisions of that kind. The best thing to be said for today’s decision by a 3-2 majority is that it only holds that the Eugene airport project fails the majority’s formula, leaving future cases indeterminate. This leaves room for fiiture reconsideration of the formula, though at needless cost to the present project and to the state and local agencies charged with planning and managing traffic in this state.
Because I disagree both with the formula and with its application in this case, I dissent.