Rogers v. City of South Charleston

• Decision Date: 28 June 1979
• Docket Number: No. 14437,14437
• Parties: Gary D. ROGERS v. The CITY OF SOUTH CHARLESTON, etc., et al.
• Court: West Virginia Supreme Court

Page 557

256 S.E.2d 557

163 W.Va. 285

Gary D. ROGERS v. The CITY OF SOUTH CHARLESTON, etc., et al.

No. 14437.

Supreme Court of Appeals of West Virginia.

June 28, 1979.

Dissenting Opinion July 11, 1979.

Syllabus by the Court

1. A Board of Park and Recreation Commissioners exceeds its statutory authority by giving a private or special interest exclusive, irrevocable rights to purchase in the future real property held for park and recreation purposes and such an option agreement is therefore void.

2. A Board of Park and Recreation Commissioners is empowered to sell or convey real property acquired for municipal park and recreation purposes only upon a determination that such property is of no advantage in the establishment, construction, maintenance, development or improvement of the park system and only upon unanimous vote of the Board members. W.Va. Code § 8-21-9 (1969).

3. In the absence of express statutory authorization regarding the manner of sale, a city Board of Park and Recreation Commissioners, a public corporation, walks in the shadow of the City and any sale or conveyance of such property to a private or special interest must be accomplished by means of a public auction held upon proper notice as provided in W.Va. Code § 8-12-18(b) (1973).

Steven L. Miller, Larry G. Kopelman, South Charleston, for appellants.

Hoyer, Hoyer & Berthold, Eugene R. Hoyer, Robert V. Berthold, Jr., Charleston, for appellee.

McGRAW, Justice:

This appeal requests dissolution of a permanent injunction which restrains the City of South Charleston and the Board of Park and Recreation Commissioners of the City of South Charleston from carrying out the terms of an agreement entered into between the Board of Park and Recreation Commissioners and George D. Zamias, a private individual. In the argreement the Board of Park and Recreation Commissioners granted Zamias an irrevocable and exclusive option to purchase a 120 acre tract of real estate located in Little Creek Park, a municipal recreation area. Appellants' major contention is that the circuit court erred in ruling that the option agreement was beyond the scope of the statutory authority of the Board of Park and Recreation Commissioners. We do not agree and we affirm the holding of the circuit court on this point. Appellee Rogers cross-appeals from the lower court's finding that the Board of Park and Recreation Commissioners may sell real property without a public auction. On this point we reverse.

On April 22, 1968, the City of South Charleston acquired, in fee simple, by purchase, approximately 270 acres of undeveloped woodland adjacent to the city limits which became known as Little Creek Park. On February 15, 1973, the South Charleston City Council, pursuant to W.Va.Code § 8-21-1, created by ordinance the Board of Park and Recreation Commissioners (hereinafter referred to as the Board), a public corporate body.

On December 7, 1973, the City conveyed to the Board the 270 acres of undeveloped land acquired on April 22, 1968, subject to the condition that it be used ". . . solely and exclusively for public parks and recreation and the recreation system of the City of South Charleston." The deed also stated that upon dissolution of the Board the property would revert to the City. By unanimous vote, the Board, on August 11, 1976, declared that 120 acres of the 270 acre tract was surplus, and that same day executed an option to sell the 120 acres to Mr. George Zamias for the private development of a shopping mall. The option agreement was conditioned upon the approval of the City Council, the removal by City Council of the restriction requiring use of the property for park and recreational purposes and the City's release of its reversionary interest. The term of the option was for six years or for two years after the date of completion of the proposed Corridor G highway, whichever was earlier. On September 2, 1976, the Board amended the option agreement to provide that all consideration paid for the option be non-refundable. On that day, the City Council also held a public hearing upon Ordinance No. 1166, which sought to enable the sale under the option agreement.

Ordinance No. 1166 became law on September 9, 1976. This ordinance determined, among other things, that the 120 acre tract was incapable of development for recreational use and that a shopping mall constructed on the property would be of benefit to the City. The ordinance also "unconditionally released" the Board from the restriction requiring recreational use of the 120 acres and conveyed to the Board the City's reversionary interest. A formal release implementing Ordinance No. 1166 was executed by the Mayor of South Charleston on February 16, 1977.

On June 1, 1978, appellee Gary Rogers, a citizen, taxpayer, voter and real property owner of the City of South Charleston, commenced this action for injunctive relief. He claimed that the option agreement was void as exceeding the statutory authority of the Board and as restraining future Boards from exercising their authority over park lands, that any sale of Board property must be had by public auction, and that the consideration agreed to by the Board in the option was grossly inadequate.

The Circuit Court of Kanawha County found that the option agreement executed by the Board and the ordinance passed by city council purporting to implement it were void and entered a permanent injunction restraining the City and the Board from exercising the terms of the option agreement. It is from this decision that the City and the Board appeal. The appellee cross-appeals from the finding of the lower court that the Board was not required to sell the property in question at public auction.

I.

Appellants contend that the lower court erred in finding that the Board was not authorized to execute an option agreement entitling a private individual to purchase the park land as much as six years in the future. They point to W.Va.Code § 8-21-2, vesting the Board with authority to purchase, hold and sell real property, and say that it is clear that the Board has been granted the power to contract and to be contracted with to the same extent as a private corporation, including the power to execute an option to purchase real property. ¹ We do not see the merit in these arguments.

The Board is not unlimited in its power to contract or to convey real property. The authority of the Board to purchase or to hold property is granted only for the purpose of ". . . establishing, constructing, improving, extending, developing, maintaining and operating a city public park and recreation system." ² Clearly, the Board may not enter into contracts or purchase or hold land for any other purpose.

Furthermore, parks are for the benefit of, and are held in trust by the Board for, the municipality and the public. 10 McQuillan, Municipal Corporations § 28.52 (3d ed. 1966); Quinn v. Dougherty, 58 App.D.C. 339, 30 F.2d 749 (1929); Paepcke v. Public Building Commission, 46 Ill.2d 330, 263 N.E.2d 11 (1970); Gallagher v. Omaha, 189 Neb. 598, 204 N.W.2d 157 (1973). The Board may hold the title to such lands but it holds the property for the municipality and the usufruct is in the public. Board of Park Comm'rs v. Shanklin, 304 Ky. 43, 199 S.W.2d 721 (1947). Thus the Board's power is also limited to contracts and conveyances that are in the best interests of the public and the municipality.

Finally, by its very nature as a public corporate body, the Board is limited in regard to its power to contract and convey property. It is well settled that a public corporation created by statute is vested only with such powers and authority as are expressly given by the Legislature or as fairly arise by necessary implication from the express statutory grant or as are requisite to enable the corporation to carry out the function. Evans v. Hutchinson, W.Va., 214 S.E.2d 453 (1975) (board of education); Mohr v. County Court, 145 W.Va. 377, 115 S.E.2d 806 (1960) (county court); Law v. Phillips, 136 W.Va. 761, 68 S.E.2d 452, 33 A.L.R.2d 95 (1952) (municipal corporations); Dooley v. Board of Education, 80 W.Va. 648, 93 S.E. 766 (1917) (board of education). W.Va.Code § 8-1-7 relaxes the common law rule of strict construction somewhat but it does not lift all restrictions on the exercise of power by the Board. ³

Appellants, however, point out that the statute vests the Board with the power to perform ". . . any and all things and acts which may be necessary, appropriate, convenient or incidental to carry out and effectuate the purposes and provisions of this article. . . ." ⁴ They maintain that this provision alone enables the Board to act to the same extent as a private corporation. We do not agree. The Board may be authorized to exercise such powers, but it may do so only within the scope of the aforementioned limitations. Nothing in the statute indicates an intent on the part of Legislature to free the Board from these general limitations placed on all similar public corporate bodies and differentiating them from private corporations.

Plainly, the Board does not have the power to contract or to convey property to the same extent as a private corporation. The Board's power is limited by its statutory purpose and by its character as a public corporation and a trustee. And since any contract entered into by a public corporate body which is beyond the scope of its statutory powers is void, ⁵ it is necessary to determine if the limited statutory grant of general powers confers upon the Board the power to execute an option agreement.

Here there is no express grant of power to the Board to enter into option agreements. The Board is given the power to "sell or convey" its real property, but several cases have held that a statutory grant of authority to a public body to sell, convey or dispose of property does not include the authority to give a private corporation or individual an exclusive option to purchase...