LEASING LAND WITHIN STATE PARKS

LEASING LAND WITHIN STATE PARKS

State Park and Recreation Commission has authority to lease land within a state park to a private company for the purpose of building a hotel.

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                                                                 January 24, 1950

Mr. John R. Vanderzicht
Acting Director
State Parks and Recreation Commission
Administration Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 205

Dear Sir:

            We have your letter of December 19, 1949, asking the following question:

            Does the State Parks and Recreation Commission have authority to lease land within a state park to a private company for the purpose of building a hotel?

            We have concluded and advise you that you do have that authority.

                                                                     ANALYSIS

            You have the care, charge, control and supervision of state parks with authority to fix rentals.  Section 1, chapter 148, Laws of 1929 (Rem. Rev. Stat. 10942).  A lease of a portion of a public park is not inconsistent with the public use for a park.

                        9 Am.Jur. 820.

                        Harter v. San Jose, 141 Cal. 659 75 Pac. 344

                        Gushee v. New York, 26 Misc. 287, 56 N.Y.S. 1002, aff'd. 42 App. Div. 37, 58 N.Y.S. 967.

                        Vale v. City of San Bernardino, 100 Cal. App. 102, 292 Pac. 689.

             [[Orig. Op. Page 2]]

            In the case last cited the court said:

            "'It is a matter of public knowledge that the erection of hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and the like in public parks is common.  Spires v. City of Los Angeles, 150 Cal. 64, 66, 11 Ann. Cas. 465, 87 P. 1026.  The court was not, at the time that case was before it, nor has it since been, "pointed to any authority where it has been regarded as a diversion of the legitimate uses of the park to establish them, but, on the contrary, their establishment has been generally recognized as ancillary to the complete enjoyment by the public of the property set apart for their benefit."'"  (Emphasis Supplied)

            In your letter you advise that you have not decided the question of ownership of the hotel.  This and similar questions will confront you if, after studying the history of such ventures, you find it to be to the best interests of the state to enter into such a lease.

            While we hold that you have authority to enter into such a lease on such terms as in your discretion seem to be for the best interests of the state, this does not mean that you should enter into any specific lease without further opinion from us.  For instance, our opinion must be limited to land lying in state parks and should not be extended to school lands, even though they may be used as state parks.

            Other situations which we cannot anticipate may arise and it is therefore customary for us to conclude opinions such as this one with an invitation to you to ask for further advice as to specific situations, meaning that you should not always apply a general opinion to a specific case.

            As an illustration, on December 8, 1949, [[Opinion No. 49-51-175 to State Parks and Recreation Commission]]we rendered an opinion at your request, holding that you had authority to use money appropriated for the purchase of lands as an option payment.  This opinion was correct but we did not mean to hold  [[Orig. Op. Page 3]] that you have authority to take an option on lands, the purchase of which requires specific legislative authority, without such authority (subsection (7), section 10942 Rem. Rev. Stat.), or to use moneys for that purpose when not available for expenditure, in view of the express prohibition contained in chapter 242, Laws of 1949, page 953, as follows:

            "(Expenditures from Parks and Parkway Fund shall not exceed cash on hand and available for expenditure.)"

Very truly yours,

SMITH TROY
Attorney General

E. P. DONNELLY
Assistant Attorney General