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B-148946, JULY 3, 1962, 42 COMP. GEN. 6

B-148946 Jul 03, 1962
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ETC. - DISASTER LOANS - ELIGIBILITY AS PUBLIC FACILITY BUILDINGS AT A COUNTY AIRPORT RENTED TO COMMERCIAL ENTERPRISES TO PROVIDE REVENUE FOR THE MAINTENANCE AND OPERATION OF THE AIRPORT AND VACANT BUILDINGS REPRESENTING A POTENTIAL INCOME SOURCE WHICH WERE DAMAGED DURING A HURRICANE ALONG WITH THE BUILDINGS DIRECTLY USED FOR AIRPORT FUNCTIONS ARE SUFFICIENTLY INTEGRAL AND ESSENTIAL TO THE AIRPORT TO BE CONSIDERED "PUBLIC FACILITIES" ELIGIBLE FOR FEDERAL FINANCIAL ASSISTANCE UNDER 42 U.S.C. 1855-1855G. FOR EMERGENCY REPAIRS IN VIEW OF THE RECORD WHICH INDICATES THAT WHEN THE SUPPORT BUILDINGS WERE DEEDED TO THE COUNTY BY THE FEDERAL GOVERNMENT THE AGREEMENT REQUIRED THAT THEY BE KEPT IN GOOD REPAIR AND THAT THE INCOME FROM ALL OF THE BUILDINGS IS ESSENTIAL TO THE MAINTENANCE AND OPERATION OF THE AIRPORT WHICH CAN BE RE-USED BY THE FEDERAL GOVERNMENT IN EVENT OF NATIONAL EMERGENCY.

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B-148946, JULY 3, 1962, 42 COMP. GEN. 6

STATES - FEDERAL AID, GRANTS, ETC. - DISASTER LOANS - ELIGIBILITY AS PUBLIC FACILITY BUILDINGS AT A COUNTY AIRPORT RENTED TO COMMERCIAL ENTERPRISES TO PROVIDE REVENUE FOR THE MAINTENANCE AND OPERATION OF THE AIRPORT AND VACANT BUILDINGS REPRESENTING A POTENTIAL INCOME SOURCE WHICH WERE DAMAGED DURING A HURRICANE ALONG WITH THE BUILDINGS DIRECTLY USED FOR AIRPORT FUNCTIONS ARE SUFFICIENTLY INTEGRAL AND ESSENTIAL TO THE AIRPORT TO BE CONSIDERED "PUBLIC FACILITIES" ELIGIBLE FOR FEDERAL FINANCIAL ASSISTANCE UNDER 42 U.S.C. 1855-1855G, FOR EMERGENCY REPAIRS IN VIEW OF THE RECORD WHICH INDICATES THAT WHEN THE SUPPORT BUILDINGS WERE DEEDED TO THE COUNTY BY THE FEDERAL GOVERNMENT THE AGREEMENT REQUIRED THAT THEY BE KEPT IN GOOD REPAIR AND THAT THE INCOME FROM ALL OF THE BUILDINGS IS ESSENTIAL TO THE MAINTENANCE AND OPERATION OF THE AIRPORT WHICH CAN BE RE-USED BY THE FEDERAL GOVERNMENT IN EVENT OF NATIONAL EMERGENCY; THEREFORE, NO EXCEPTION WILL BE TAKEN TO THE USE OF FEDERAL FUNDS FOR EMERGENCY REPAIRS TO THE AIRPORT BUILDINGS.

TO THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, JULY 3, 1962:

BY LETTER OF MAY 17, 1962, YOU REQUESTED ADVICE AS TO WHETHER WE WOULD TAKE EXCEPTION IF FINANCIAL ASSISTANCE WERE PROVIDED UNDER PUBLIC LAW 875, 81ST CONGRESS, ON PROJECT APPLICATIONS SUBMITTED BY VICTORIA COUNTY, TEXAS, FOR EMERGENCY REPAIRS TO BUILDINGS ON THE VICTORIA COUNTY AIRPORT WHICH WERE DAMAGED DURING HURRICANE CARLA IN 1961.

PUBLIC LAW 875 OF THE 81ST CONGRESS, APPROVED SEPTEMBER 30, 1950, 64 STAT. 1109, AS AMENDED, 42 U.S.C. 1855-1855G, PROVIDES FOR FEDERAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS TO "ALLEVIATE SUFFERING AND DAMAGE RESULTING FROM MAJOR DISASTERS, TO REPAIR ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS, AND TO FOSTER THE DEVELOPMENT OF SUCH STATE AND LOCAL ORGANIZATIONS AND PLANS TO COPE WITH MAJOR DISASTERS AS MAY BE NECESSARY.' SUBSECTION (D) OF SECTION 3 OF THE ACT, AS AMENDED, 42 U.S.C. 1855B, AUTHORIZES FEDERAL AGENCIES, WHEN DIRECTED BY THE PRESIDENT, TO PROVIDE ASSISTANCE IN ANY MAJOR DISASTER BY "MAKING EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES OF LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER * * * AND AND MAKING CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTS * * *" FOR SUCH PURPOSES.

YOUR LETTER OF MAY 17 STATES THAT UNDER THE ESTABLISHED PROCEDURES FOR PROVIDING FEDERAL FINANCIAL ASSISTANCE TO LOCAL GOVERNMENTS UNDER THIS ACT, PROJECT APPLICATIONS ARE SUBMITTED BY THE LOCAL GOVERNMENT WITH THE APPROVAL OF THE DESIGNATED STATE OFFICIAL. THIS OFFICIAL IS DESIGNATED BY THE GOVERNOR OF THE STATE UNDER A FEDERAL-STATE DISASTER ASSISTANCE AGREEMENT WHICH IS EXECUTED AFTER THE PRESIDENT DECLARES THE EXISTENCE OF A MAJOR DISASTER. AUTHORITY TO APPROVE SUCH PROJECT APPLICATIONS ON BEHALF OF THE FEDERAL GOVERNMENT HAS BEEN DELEGATED TO THE EIGHT AREA OFFICE DIRECTORS OF THE OFFICE OF EMERGENCY PLANNING. BECAUSE OF THE EMERGENCY NATURE OF THE WORK TO BE PERFORMED AFTER A MAJOR DISASTER, PROJECT APPLICATIONS FOR ELIGIBLE PROJECTS CAN BE APPROVED EVEN AFTER THE WORK HAS BEGUN OR HAS BEEN COMPLETED.

ON SEPTEMBER 16, 1961, THE PRESIDENT DECLARED A MAJOR DISASTER IN TEXAS AS A RESULT OF DAMAGE OCCURRING DURING AND FOLLOWING HURRICANE CARLA, AND SUBSEQUENTLY MADE AN ALLOCATION OF FEDERAL FUNDS TO COVER FINANCIAL ASSISTANCE UNDER THE PROVISIONS OF PUBLIC LAW 875. THE VICTORIA COUNTY AIRPORT SUSTAINED EXTENSIVE DAMAGE DURING HURRICANE CARLA, AND SUBSEQUENT TO THE PRESIDENT'S DECLARATION THE COUNTY MADE APPLICATION FOR ASSISTANCE IN THE EMERGENCY REPAIR OF CERTAIN BUILDINGS LOCATED AT THE AIRPORT. THIS APPLICATION WAS APPROVED BY THE APPROPRIATE STATE OFFICIAL AND SUBMITTED TO THE AREA OFFICE OF THE OFFICE OF EMERGENCY PLANNING IN DENTON, TEXAS. REPRESENTATIVES OF THE AREA OFFICE INSPECTED THE DAMAGED BUILDINGS AND, AFTER CONSULTING WITH COUNTY OFFICIALS, ADVISED THEM THAT THE APPLICATION HAD BEEN APPROVED; THAT THE REQUESTED ASSISTANCE WOULD BE FURNISHED; AND THAT THE COUNTY OFFICIALS SHOULD PROCEED IMMEDIATELY TO HAVE THE REPAIR WORK DONE. ALSO, THE AREA OFFICE REPRESENTATIVES SUGGESTED THAT THE COUNTY FILE SUPPLEMENTAL APPLICATIONS TO COVER THE EMERGENCY REPAIR OF ADDITIONAL BUILDINGS NOT INCLUDED IN THE ORIGINAL APPLICATION, AND THE COUNTY COMPLIED. THE WORK WAS PERFORMED BUT THE NATIONAL HEADQUARTERS OF THE OFFICE OF EMERGENCY PLANNING REJECTED THE COUNTY'S APPLICATIONS FOR FINANCIAL ASSISTANCE ON ALL BUT SEVEN OF THE BUILDINGS, WHICH WERE COVERED BY THE ORIGINAL APPLICATION, ON THE BASIS THAT THE REMAINING BUILDINGS WERE NOT ESSENTIAL PUBLIC FACILITIES.

THE LETTER OF MAY 17, 1962, STATES THAT THE APPLICATIONS COVERED THREE CATEGORIES OR GROUPS OF BUILDINGS. THE FIRST CATEGORY CONSISTED OF SEVEN BUILDINGS OCCUPIED BY AIRPORT SERVICES, SUCH AS MAINTENANCE SHOPS, TERMINAL BUILDINGS, AND OTHER FACILITIES DIRECTLY RELATED TO THE OPERATION OF THE AIRPORT. THE SECOND GROUP CONSISTED OF 24 BUILDINGS RENTED TO COMMERCIAL ENTERPRISES NOT RELATED TO THE OPERATION OF THE AIRPORT. THE INCOME FROM THIS GROUP OF BUILDINGS WAS USED TO SUPPORT AIRPORT OPERATIONS. THE THIRD GROUP CONSISTED OF 39 VACANT BUILDINGS WHICH WERE POTENTIALLY INCOME-PRODUCING AND THE INCOME FROM WHICH WOULD BE USED TO SUPPORT AIRPORT OPERATIONS. YOUR LETTER STATES THAT IT IS BELIEVED THAT FINANCIAL ASSISTANCE PROPERLY CAN BE MADE AVAILABLE FOR THE EMERGENCY REPAIRS TO GROUP ONE, AND THAT, AFTER FURTHER CONSIDERING THE UNUSUAL CIRCUMSTANCES IN THIS CASE, YOUR OFFICE IS NOW INCLINED TO PROVIDE SUCH ASSISTANCE FOR THE EMERGENCY REPAIRS TO THE SECOND AND THIRD GROUPS. HENCE, INQUIRY IS MADE AS TO WHETHER WE WOULD TAKE EXCEPTION IF SUCH ASSISTANCE WERE PROVIDED.

SINCE NO DETAILS ARE FURNISHED AS TO THE NATURE OF THE REPAIRS EFFECTED, WE ARE ASSUMING FOR THE PURPOSE OF ANSWERING THE QUESTION PRESENTED THAT SUCH REPAIRS WERE EMERGENCY REPAIRS ELIGIBLE FOR ASSISTANCE UNDER THE ACT. HENCE, THE QUESTION DEPENDS UPON THE INTERPRETATION OF THE TERM ,PUBLIC FACILITIES OF LOCAL GOVERNMENTS" AS THAT PHRASE IS USED IN SECTION 3 (D) OF THE ACT, AND WHETHER THE BUILDINGS INVOLVED MAY BE CLASSIFIED AS ESSENTIAL PUBLIC FACILITIES WITHIN THE MEANING AND PURPOSE OF THE ACT.

THE TERM "PUBLIC FACILITIES" IS NOT DEFINED IN THE ACT ITSELF. HOWEVER, THERE IS NOTHING IN THE BASIC ACT OR ITS LEGISLATIVE HISTORY TO INDICATE A CONGRESSIONAL INTENT TO ASCRIBE ANY SPECIAL OR TECHNICAL MEANING TO THE TERM. HENCE, TO EFFECTUATE THE POLICY WHICH THE CONGRESS HAS FORMULATED WITH REFERENCE TO THE OPERATION OF THIS PROGRAM, SUCH TERM MUST BE INTERPRETED IN ITS ORDINARY AND POPULAR SENSE AS RELATING TO ESSENTIAL PUBLIC FACILITIES WHICH PRIMARILY ARE DESIGNED TO SERVE THE PUBLIC AT LARGE.

THE OWNERSHIP AND OPERATION OF AN AIRPORT BY A LOCAL GOVERNMENT (MUNICIPALITY, COUNTY, ETC.) HAS FREQUENTLY BEEN HELD BY THE COURTS TO BE A PROPER GOVERNMENTAL FUNCTION AND A PUBLIC PURPOSE. SEE IMPERIAL PRODUCTION CORP. V. CITY OF SWEETWATER (TEXAS), 210 F.2D 917; ABBOTT V. CITY OF DES MOINES, 298 N.W. 649; ERICKSON V. KING, 15 N.W.2D 201; PRICE V. STORMS, 130 P.2D 523; STATE EX REL HELSEL V. BOARD OF COMMISSIONERS OF CUYAHOGA COUNTY, OHIO, 79 N.E.2D 698; JONES V. KECK, 74 N.E.2D 644; DYSART V. CITY OF ST. LOUIS, 11 S.W.2D 1045. MOREOVER, THE MUNICIPAL AIRPORT ACT OF TEXAS, UNDER THE AUTHORITY OF WHICH THE AIRPORT HERE IN QUESTION IS OWNED AND OPERATED BY VICTORIA COUNTY, SPECIFICALLY DECLARES IN ARTICLE 46D-15 THEREOF THAT:

THE ACQUISITION OF ANY LAND OR INTEREST THEREIN PURSUANT TO THIS ACT THE PLANNING, ACQUISITION, ESTABLISHMENT, DEVELOPMENT, CONSTRUCTION, IMPROVEMENT, MAINTENANCE, EQUIPMENT, OPERATION, REGULATION, PROTECTION AND POLICING OF AIRPORTS AND AIR NAVIGATION FACILITIES INCLUDING THE ACQUISITION OR ELIMINATION OF AIRPORT HAZARDS AND THE EXERCISE OF ANY OTHER POWERS HEREIN GRANTED TO MUNICIPALITIES AND OTHER PUBLIC AGENCIES TO BE SEVERALLY OR JOINTLY EXERCISED ARE HEREBY DECLARED TO BE PUBLIC AND GOVERNMENTAL FUNCTIONS EXERCISED FOR A PUBLIC PURPOSE AND MATTERS OF PUBLIC NECESSITY; AND IN THE CASE OF ANY COUNTY ARE DECLARED TO BE COUNTY FUNCTIONS AND PURPOSES AS WELL AS PUBLIC AND GOVERNMENTAL; AND IN THE CASE OF ANY MUNICIPALITY OTHER THAN A COUNTY, ARE DECLARED TO BE MUNICIPAL FUNCTIONS AND PURPOSES AS WELL AS PUBLIC AND GOVERNMENTAL. ALL LAND AND OTHER PROPERTY AND PRIVILEGES ACQUIRED AND USED BY OR ON BEHALF OF ANY MUNICIPALITY OR OTHER PUBLIC AGENCY IN THE MANNER AND FOR THE PURPOSES ENUMERATED IN THIS ACT SHALL AND ARE HEREBY DECLARED TO BE ACQUIRED AND USED FOR PUBLIC AND GOVERNMENTAL PURPOSES AND AS A MATTER OF PUBLIC NECESSITY, AND, IN THE CASE OF A COUNTY OR MUNICIPALITY, FOR COUNTY OR MUNICIPAL PURPOSES, RESPECTIVELY.

VERNON'S ANNOTATED REVISED CIVIL STATUTES OF THE STATE OF TEXAS, ARTICLE 46D-15. THUS THERE IS NO DOUBT THAT THE AIRPORT AND ALL BUILDINGS USED DIRECTLY IN CONNECTION THEREWITH ARE ESSENTIAL PUBLIC FACILITIES ELIGIBLE FOR FEDERAL FINANCIAL ASSISTANCE UNDER PUBLIC LAW 875.

THERE MAY BE SOME QUESTION AS TO WHETHER BUILDINGS LOCATED ON THE AIRPORT BUT NOT USED DIRECTLY IN CONNECTION WITH THE AIRPORT FUNCTIONS OR ANY OTHER PUBLIC OR GOVERNMENTAL FUNCTION--- IN THIS INSTANCE, GROUPS TWO AND THREE--- MAY BE CONSIDERED AS ESSENTIAL PUBLIC FACILITIES UNDER THAT ACT. HOWEVER, THE RECORD BEFORE OUR OFFICE STATES THAT THE VICTORIA COUNTY AIRPORT FORMERLY BELONGED TO THE UNITED STATES GOVERNMENT AND WAS TRANSFERRED TO VICTORIA COUNTY ON JUNE 1, 1961, UNDER AN AGREEMENT REQUIRING THE COUNTY TO OPERATE AND MAINTAIN IT FOR TWO PURPOSES (1) AS A PUBLIC AIRPORT FOR THE USE AND BENEFIT OF THE PUBLIC, AND (2) FOR RE-USE BY THE UNITED STATES IN THE EVENT OF ANY NATIONAL EMERGENCY. UNDER THIS AGREEMENT, THE COUNTY IS REQUIRED TO MAINTAIN RUNWAYS FAR IN EXCESS OF ITS NEEDS, AND TO KEEP ALL BUILDINGS DEEDED TO IT WITH THE AIRPORT IN GOOD REPAIR. THE RECORD INDICATES THAT THE BUILDINGS IN QUESTION WERE DEEDED TO THE COUNTY SPECIFICALLY FOR THE PURPOSE OF PROVIDING REVENUE FOR THE MAINTENANCE AND OPERATION OF THE IRPORT; THAT RENTAL FROM SAID BUILDINGS CONSTITUTES THE MAJOR REVENUE AVAILABLE FOR SUCH PURPOSE; THAT SUCH REVENUE IS ESSENTIAL TO THE MAINTENANCE AND OPERATION OF THE AIRPORT; THAT EVERY ONE OF THE SAID BUILDINGS IS VITALLY NECESSARY TO PRODUCE SUFFICIENT REVENUE; AND THAT ALL REVENUE PRODUCED THEREBY IS, AND IS REQUIRED BY LAW (ARTICLE 46D-11 OF THE TEXAS MUNICIPAL AIRPORT ACT, SUPRA), TO BE USED EXCLUSIVELY FOR THE OPERATION AND MAINTENANCE OF THE COUNTY AIRPORT.

IN VIEW OF THE ABOVE, THERE APPEARS TO BE A REASONABLE BASIS IN THE PRESENT CASE FOR CONSIDERING THE BUILDINGS IN GROUPS TWO AND THREE AS BEING SUFFICIENTLY INTEGRAL AND ESSENTIAL PARTS OF THE VICTORIA COUNTY AIRPORT AS TO BE DEEMED ESSENTIAL PUBLIC FACILITIES ELIGIBLE FOR FEDERAL FINANCIAL ASSISTANCE UNDER PUBLIC LAW 875, 81ST CONGRESS. HENCE, WE WOULD NOT TAKE EXCEPTION TO THE EXPENDITURE OF FUNDS TO PROVIDE FINANCIAL ASSISTANCE TO VICTORIA COUNTY FOR THE EMERGENCY REPAIRS TO THE BUILDINGS IN GROUPS TWO AND THREE, IF OTHERWISE PROPER. THE NECESSITY FOR SUCH EXPENDITURES IN THE CIRCUMSTANCES HERE INVOLVED IS ONE PRIMARILY FOR ADMINISTRATIVE DETERMINATION.

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