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...
