Authority of school district to purchase real estate to eliminate a potential health risk to students

SCHOOLS ‑- DISTRICTS ‑- SCHOOL PROPERTY ‑- SCHOOL FUNDS ‑- CHILDREN ‑- HEALTH ‑- DONATIONS ‑- Authority of school district to purchase real estate to eliminate a potential health risk to students

1.   A school district has the authority to purchase real estate not needed for immediate or future school purposes in order to eliminate a potential health risk and liability stemming from the property.

2.   In purchasing the property a district cannot pay more than the fair market value of the property, unless the district is receiving additional consideration,e.g., seller will provide something in addition to the title to the property such as demolishing structures on the property.

3.   A district may accept donations designated to pay the difference between the appraisal price of the property and the selling price.

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                                                               December 16, 1991

Dear Senator West:

            By letter previously acknowledged, you asked our opinion concerning the authority of a public school district to purchase real estate.  From information provided to us by you and by Spokane School District No. 81, we understand that you have asked three questions which we paraphrase as follows:

             [[Orig. Op. Page 2]]

            1.         May a school district purchase real estate not needed for immediate or future school purposes in order to eliminate a potential health risk and liability from radio towers situated on the property?

            2.         If the answer to question 1 is yes, may a school district pay a price for the property in excess of the appraised value?

            3.         If the answer to question 1 is yes, may a school district accept donations from a parents' advisory group for payment of the difference between the appraised price and the selling price of the property?

            For the reasons stated in this opinion, we answer your first question in the affirmative, your second question as set forth below and your third question in the affirmative.

                                                                BACKGROUND

            In 1976, Spokane School District No. 81 (District) constructed the Mullan Road Elementary School.  Two 50,000 watt AM radio towers operated by a local radio station have been located on property approximately 500 feet from the school site since prior to 1976.  Although no health concerns were raised at the time of construction, the electric and magnetic fields resulting from the towers caused shocks and interference at the school.  Initial costs to rectify the problem were in the range of $100,000.  Since that time some costs have been incurred due to the problem, but such costs have not been substantial.

            The Parent Advisory Committee at Mullan Road Elementary School recently raised concerns regarding the potential health hazard to students, particularly in terms of cancer, that might result from the children's prolonged exposure to the tower's electromagnetic fields.  The parents requested the District to negotiate with Price Broadcasting, the owners of the property and the towers, to purchase the property upon which the towers are located and to have them removed.

            The District has indicated that the scientific consensus pertaining to the dangers of radio low frequency exposures is inconclusive at this time although some scientists have advised "prudent avoidance" of electromagnetic fields.  Since the radio frequency exposure levels at Mullan Road Elementary School are in compliance with government standards, the District states that it cannot declare the site unsafe.

             [[Orig. Op. Page 3]]

            The District, Price Broadcasting and the Parent Advisory Committee have been negotiating the purchase of the property and the relocation of the towers.  Price Broadcasting stated it would agree to sell the property and move the towers for a price of $240,000.  The District tentatively indicated that it will purchase the property for its appraised value so long as that value does not exceed $240,000.  If the appraisal is less than $240,000, the Parent Advisory Committee agreed to donate to the District the difference between the appraised value and the selling price of $240,000.

                                                                     ANALYSIS

            Question 1:

            May a school district purchase real estate not needed for immediate or future school purposes in order to eliminate a potential health risk and liability from radio towers situated on the property?

            Washington school districts are considered to be quasi-municipal corporations.  RCW 28A.320.010 (Supp. 1990); Bellevue Sch. Dist. 405 v. Brazier Constr., 100 Wn.2d 776, 779, 675 P.2d 232 (1984);Howard v. Tacoma Sch. Dist. 10, 88 Wash. 167, 152 P. 1004 (1915).  They are created by the Legislature and can exercise only such powers expressly granted or necessarily implied from the expressly granted powers.  Seattle High Sch. Ch. 200 v. Sharples, 159 Wash. 424, 293 P. 994 (1930).

            The statutes relevant to the district's authority to purchase property state as follows:

                        The board of directors of each school district shall have exclusive control of all school property, real or personal, belonging to the district; said board shall have power, subject to RCW 28A.335.120, in the name of the district, to convey by deed all the interest of their district in or to any real property of the district which is no longer required for school purposes.  Except as otherwise specially provided by law, and RCW 28A.335.120, the board of directors of each school district may purchase, lease, receive and hold real and personal property in the name of the district, and rent, lease or sell the same, and all conveyances of real estate made to the district shall vest title in the district.

RCW 28A.335.090.

             [[Orig. Op. Page 4]]

                        Any school district may execute an executory conditional sales contract with any other municipal corporation, the state or any of its political subdivisions, the government of the United States or any private party for the purchase of any real or personal property, or property rights, in connection with the exercise of any powers or duties which they now or hereafter are authorized to exercise . . . .

RCW 28A.335.200.  These provisions authorize a school district to purchase property necessary to carry out the district's purposes.

                        The above‑cited provisions contain no restriction, on the amount of property which the school district may purchase.  This authorization is in contrast to RCW 28A.335.220 which grants to the district the power to condemn property for school district purposes.  The condemnation statute limits the number of areas which a school district may condemn.  The relationship of the condemnation statute to other statutes authorizing school districts to purchase property was considered in State ex rel. Tacoma Sch. Dist. 10 v. Stojack, 53 Wn.2d 55, 330 P.2d 567 (1958).  The court reviewed the history of the two types of acquisition and stated:

            First, the power of school districts to acquire land by purchase, free of any acreage limitation, came into existence prior to the right of acquisition by eminent domain; and, second, the right of school districts to acquire property by eminent domain (which at first had no acreage limitation) was established as an independent, additional method of acquiring property.  The power of condemnation was not an amendment to the statutory power of a district to purchase property, nor is it a limitation thereof, in the absence of an expressed intent of the legislature.

Id.at 62.

            The issue before the court was whether the school district could condemn a three‑acre portion of property when the school district previously had purchased 73 acres of land.  The statute in effect at that time stated that the school district could condemn property not to exceed 40 acres for a senior high school.  RCW 28.58.070 (Laws of 1957, ch. 155) (now codified as RCW 28A.335.220 (Supp. 1990)).  The court reasoned that the amount of property obtained through purchase must be considered separate from that obtained through condemnation.  53 Wn.2d at 63.  Since the school district sought to condemn only three acres, this amount did not exceed the 40-acre limitation contained in the statute.  Id.

             [[Orig. Op. Page 5]]

            The trial court also concluded that the amount of land desired by the school district was not required or necessary for the proposed senior high school.  Turning to that issue, the Supreme Court stated:

                        Public education is a public use for which private property may be appropriated under the power of eminent domain.  If an attempt is made to take more property than is reasonably necessary to accomplish the purpose, then the taking of excess property is no longer a public use, and a certificate of public use and necessity must be denied.

Id.at 63-64.  Addressing this issue, the court stated that the board of directors of the school district had the authority to determine what amount of land was reasonably necessary to accomplish its purposes.  This determination would not be disturbed except for a manifest abuse of discretion, violation of law, fraud, improper motives or collusion.  Id. at 64.

            As with property condemned, property purchased must also be for a public purpose.  Const. art. 7, § 1.  (Funds obtained through taxation only may be expended for public purposes.)  Thus, although there is no statutory restriction on the amount of property which may be purchased, all such property must be obtained for a public use.

            Turning then to the present inquiry, the District has the power to purchase property necessary to accomplish its purposes.  The next inquiry is whether the proposed purchase of the present property is for public and school uses.  The District asserts that it wishes to purchase the property to protect the school children from a potential health risk which may exist due to the electromagnetic fields emitted by the radio towers.

            The relationship between a school district and its students is not a voluntary relationship because the child is compelled to attend school.  McLeod v. Grant Cy. Sch. Dist., 42 Wn.2d 316, 319, 255 P.2d 360 (1953).  Because of this compulsory relationship, a school district must determine reasonably anticipated dangers and take precautions to protect its students from such dangers.  Id. at 319-20.  See also Briscoe v. School Dist. 123, 32 Wn.2d 353, 201 P.2d 697 (1949); AGO 1968 No. 24 (school district's liability for transporting students to and from school).

             [[Orig. Op. Page 6]]

            This duty to protect students was discussed in AGO 61-62 No. 117.  The question posed in that Opinion was whether school districts have the power to construct bomb shelters in school buildings.  Based upon the authority contained inBriscoe, the Opinion noted that school districts are charged with the care and custody of children during school hours and further stated:

            In our opinion it necessarily follows that the school district may and should consider the safety of the school children and if, in an exercise of its discretion, it finds that the international situation justifies the construction or remodeling of school facilities so as to provide a protection factorto the children in such school, we believe that the court would uphold such a determination.

Id.at p. 4 (original emphasis).

            We believe that a similar analysis is called for under the present circumstances.  The District is charged with the protection of its students from reasonably anticipated dangers.  If, in the exercise of its discretion, the District determines that the proximity of the radio towers to the school building poses unacceptable health risks to the students, the District may undertake actions to alleviate such dangers.  Actions undertaken to accomplish this goal would have the public and school purposes of protecting the children.  Since the District has the general authority to purchase property, it could exercise this power in furtherance of its need to protect students by purchasing the land upon which the towers are located and having the towers removed.  The alleviation of the hazard would constitute a public and school purpose and, therefore, the District would have the authority to make such a purchase regardless of whether it has an anticipated need for use of the property for any other school purpose.

            Whether the radio towers actually constitute a health hazard to the Mullan Road School students is a factual question which we are not in a position to answer.  Moreover, what action should be taken to alleviate such a hazard, if one does exist, is a matter within the informed discretion of the District.  Accordingly, we are not in a position to state whether the purchase of the property in the present context is, in fact, appropriate.  Rather, we merely state that if the District, in the exercise of its discretion, determines that the proximity of the towers to the school presents an unacceptable health risk to the students and that the purchase of the property is necessary to alleviate this risk, the District has statutory authority to undertake such an action.

             [[Orig. Op. Page 7]]

            Question 2:

            If the answer to question [1] is yes, may a school district pay a price for the property in excess of the appraised value?

            You also inquire as to whether the District may pay a price in excess of the appraised fair market value of the property.  We believe that such an action would not be permissible if the price being paid is only to obtain title to the property.  Payment of an amount above the appraised value for which the District obtains no consideration would be a gift of public funds in violation of article 8, section 7 of the Washington Constitution.  If, however, in exchange for the funds which exceed the appraised price, the District receives some other type of benefit, a gift would not occur.  For example, if the payment in excess of the appraised value is in exchange for the removal of the towers rather than just for the title to the property, the payment would not be a gift.  From the information presented to us, we are unable to make this determination.

            Question 3:

            If the answer to question 1 is yes, may a school district accept donations from a parents' advisory group for payment of the difference between the appraised price and the selling price of the property?

            The final inquiry is whether the District may accept donations from the Parents Advisory Committee designated to pay the difference between the appraisal price and the selling price.  As a general rule, a municipal corporation may accept donated funds subject to reasonable conditions imposed by the grantor.  10 E. McQuillan,Municipal Corporations § 28.16 (3d rev. ed. 1990).  We are not aware of any statute which would prohibit the District from accepting the funds in question.1/

            Accordingly, the District could receive and expend monies donated for the purchase of the property.

             [[Orig. Op. Page 8]]

                                                                 CONCLUSION

            For the above reasons, we conclude that a school district has the authority to purchase property in excess of current or anticipated needs if such a purchase is undertaken to alleviate health risks posed to its students.  Additionally, we conclude that a school district may not pay a price in excess of the appraised value for the purchase of the property unless the school district receives some additional consideration from the party receiving the funds.  Finally, a school district may accept and expend funds donated for the purchase of the property.

            We trust this opinion will be of assistance to you.

KENNETH O. EIKENBERRY
Attorney General

STACIA E. REYNOLDS
Assistant Attorney General

*** FOOTNOTES ***

1/RCW 28A.320.030 authorizes a school district to accept and administer for scholorship and student aid purposes donations for the use and benefit of the school district or its students.  Since we find there is general authority for the District to accept donations, we need not reach the question whether the present funds would be utilized "for scholarship and student aide purposes" within the meaning of RCW 28A.320.030.