Harrah, 060618 WVAGO, AGO 060618

Docket Nº:AGO 060618
Case Date:June 06, 2018
Court:West Virginia
 
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Larry E. Harrah, II
AGO 060618
No. 060618
West Virginia Attorney General Opinion
State of West Virginia Office of the Attorney General
June 6, 2018
         Larry E. Harrah, II          Fayette County Prosecuting Attorney          108 East Maple Avenue          Fayetteville, West Virginia 25840          Dear Prosecutor Harrah:          You have asked for an Opinion of the Attorney General concerning the authority of a county commission to lease real property with the understanding that the land will be used to operate a for-profit business. This Opinion is being issued pursuant to W.Va. Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based upon the factual assertions provided in your correspondence with the Office of the Attorney General.          You explain that the Fayetteville Convention and Visitors Bureau ("Fayetteville CVB") previously leased county-owned property from the Fayette County Commission ("Commission"), and that the property has historically been used as a jail and law enforcement museum. The Fayetteville CVB would like to renew the lease as either a joint lessee with Epic Pories ("Epic"), the owner of the for-profit company Epic Escape Game New River Gorge, or as the sole lessee, but with an intent to form a "partnership agreement" or sublease with Epic. Under either arrangement, Epic would operate a for-profit escape room game facility at the site. In exchange for access to and management of the property, Epic would pay the Fayetteville CVB a percentage of the fees it charges each participant.          Your letter raises the following legal question:
Whether a county commission has authority to lease county-owned property to a governmental entity and a for-profit business as joint lessees, or to the governmental entity alone where it intends to enter into a subletting or similar arrangement designed to allow the company to operate a for-profit enterprise on the property?
         We conclude that, under the facts you have described, neither type of lease would be permissible under West Virginia Code Sections 7-1-3hh and 7-1-3k.          Discussion          A county commission is "possessed only of such powers as are expressly conferred by the Constitution and the legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. Pt. 4, State ex rel. W.Va. Parkways Auth. v. Barr, 228 W.Va. 27, 716 S.E.2d 689 (2011); see generally W.Va. Const., art. 9, § 11 ("Powers of county commissions"). With respect to lease agreements, a county commission's express authority flows from two statutory provisions. First, it may lease "county-owned buildings, lands, and...

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