B-111240, OCTOBER 6, 1952, 32 COMP. GEN. 168

B-111240: Oct 6, 1952

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH AUTHORIZES THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO RENT ANY DISTRICT OF COLUMBIA PROPERTY WHICH IS NO LONGER NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED. 1952: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5. IT IS STATED IN YOUR LETTER THAT THE NUMBER OF STANDS IN USE IN THE MARKET AND THE NUMBER OF FARMERS USING THE CURB LINES HAVE STEADILY DECREASED OVER THE YEARS AND THAT THE BUILDING IS QUITE OLD. MAINTENANCE COSTS HAVE BEEN SUBSTANTIAL. PARKING FACILITIES ARE NEEDED IN THE NEIGHBORHOOD OF THE MARKET AND THE COMMISSIONERS HAVE BEEN APPROACHED BY VARIOUS GROUPS AND INDIVIDUALS SEEKING TO PURCHASE OR LEASE THE MARKET SITE IN ORDER TO ERECT A PARKING FACILITY COMBINED WITH OTHER COMMERCIAL ACTIVITIES.

B-111240, OCTOBER 6, 1952, 32 COMP. GEN. 168

LEASES - PROPERTY OWNED OR ACQUIRED BY THE DISTRICT OF COLUMBIA THE ACT OF DECEMBER 20, 1944, WHICH AUTHORIZES THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO RENT ANY DISTRICT OF COLUMBIA PROPERTY WHICH IS NO LONGER NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED, CONTEMPLATES THE LEASING OF MUNICIPAL PROPERTY WHICH WOULD OTHERWISE STAND IDLE AND DOES NOT AUTHORIZE THE EXECUTION OF A LEASE FOR THE PURPOSE OF REPLACING EXISTING NEEDED MARKET FACILITIES WITH A NEW STRUCTURE COMBINING MARKET AND PARKING FACILITIES. THE DISTRICT OF COLUMBIA MOTOR VEHICLE PARKING FACILITY ACT OF 1942, AS AMENDED, WHICH AUTHORIZES THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO ACQUIRE, CREATE AND OPERATE PUBLIC OFF-STREET PARKING FACILITIES, CONTEMPLATES CONSTRUCTION OR LEASING OF BUILDINGS OR FACILITIES LIMITED TO PURPOSES INCIDENTAL TO THE PARKING OF VEHICLES AND DOES NOT AUTHORIZE THE EXECUTION OF A LEASE INVOLVING THE CONSTRUCTION OF BOTH MARKET AND PARKING FACILITIES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, OCTOBER 6, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1952, REQUESTING, IN EFFECT, TO BE ADVISED WHETHER, IN MY OPINION, DISTRICT-OWNED PROPERTY, KNOWN AS THE WESTERN MARKET AND LOCATED AT TWENTY-FIRST AND K STREETS, NORTHWEST, PROPERLY MAY BE LEASED FOR THE PURPOSES AND UPON THE TERMS HEREINAFTER DESCRIBED.

IT IS STATED IN YOUR LETTER THAT THE NUMBER OF STANDS IN USE IN THE MARKET AND THE NUMBER OF FARMERS USING THE CURB LINES HAVE STEADILY DECREASED OVER THE YEARS AND THAT THE BUILDING IS QUITE OLD, AND MAINTENANCE COSTS HAVE BEEN SUBSTANTIAL. BECAUSE OF THE TRAFFIC SITUATION IN THE DISTRICT OF COLUMBIA, PARKING FACILITIES ARE NEEDED IN THE NEIGHBORHOOD OF THE MARKET AND THE COMMISSIONERS HAVE BEEN APPROACHED BY VARIOUS GROUPS AND INDIVIDUALS SEEKING TO PURCHASE OR LEASE THE MARKET SITE IN ORDER TO ERECT A PARKING FACILITY COMBINED WITH OTHER COMMERCIAL ACTIVITIES. IN VIEW OF THE FOREGOING AND INASMUCH AS THE COMMISSIONERS HAVE APPRECIATED THE NEED FOR DEVELOPMENT OF THIS SITE BUT HAVE FELT AN OBLIGATION TO CONTINUE THE OPERATION OF THE MARKET, AT LEAST UNTIL THE DEMAND FOR SUCH FACILITIES HAVE SUBSTANTIALLY DECREASED, IT IS PROPOSED TO LEASE THIS SITE FOR A TERM NOT EXCEEDING 50 YEARS TO SUCH PERSON OR GROUP OF PERSONS AS WOULD REMOVE THE EXISTING BUILDING AND ERECT A MODERN PARKING FACILITY ON THE SITE AND PROVIDE ACCOMMODATIONS FOR THE MARKET.

IT IS NOT NECESSARY TO SET FORTH HERE ALL THE TERMS OF THE PROPOSED LEASE. HOWEVER, IT PROVIDES THAT THE BUILDING, AS CONSTRUCTED, WOULD BE THE PROPERTY OF THE DISTRICT OF COLUMBIA SUBJECT TO THE LEASEHOLD INTEREST AND OTHER RIGHTS OF THE LESSEE AS SET FORTH THEREIN AND THE SALVAGE VALUE OF THE PRESENT BUILDING COULD BE USED TOWARD PAYING OR REDUCING THE COST OF REMOVING THE BUILDING AND OF NEW CONSTRUCTION. THE NEW CONSTRUCTION WOULD BE COMPLETED IN ACCORDANCE WITH PLANS APPROVED BY THE COMMISSIONERS AND WITHIN A SPECIFIED TIME. PROVISION IS MADE FOR A MINIMUM ANNUAL RENTAL AND FOR THE PAYMENT OF RENT IN SEMI ANNUAL INSTALLMENTS EQUAL TO THREE PERCENT OF THE GROSS RECEIPTS OF THE LEASED PREMISES AS DEFINED THEREIN.

YOU STATE THE CORPORATION COUNSEL HAS ADVISED THE BOARD OF COMMISSIONERS THAT, IN HIS OPINION, THE PROPOSED LEASING OF THIS SITE IS AUTHORIZED BY SECTION 1 (C) OF THE ACT OF DECEMBER 20, 1944, 58 STAT. 819, 821, D.C. CODE, SEC. 1-244 (C), AND ALL OTHER PROVISIONS OF LAW WHICH MIGHT BE APPLICABLE ARE, OR WOULD BE, COMPLIED WITH UNDER THE TERMS OF THE LEASE.

THE ACT REFERRED TO ABOVE PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED AND EMPOWERED WITHIN THEIR DISCRETION * * * * * * * *

(C) TO RENT ANY BUILDING OR LAND BELONGING TO THE DISTRICT OF COLUMBIA OR UNDER THE JURISDICTION OF THE COMMISSIONERS, OR ANY AVAILABLE SPACE THEREIN, WHENEVER SUCH BUILDING OR LAND, OR SPACE THEREIN, IS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED, AND TO RENT ANY USED PERSONAL PROPERTY BELONGING TO THE DISTRICT OF COLUMBIA WHICH IS NOT THEN NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED: * * *

THE FOREGOING PROVISION AUTHORIZES THE LEASING OF A BUILDING OR LAND WHICH IS NO LONGER NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED. WHILE IT IS A MATTER PRIMARILY FOR DETERMINATION BY THE COMMISSIONERS WHETHER PROPERTY "IS NOT THEN REQUIRED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED," IT APPEARS THAT IN THE PRESENT CASE ONE OF THE PURPOSES OF THE NEW BUILDING WOULD BE TO PROVIDE MARKET FACILITIES TO REPLACE THOSE NOW CONTAINED IN THE OLD BUILDING. ASIDE FROM THAT QUESTION, HOWEVER, THE AUTHORITY OF THE COMMISSIONERS UNDER THE CITED PROVISION IS MERELY TO RENT ANY BUILDING OR LAND BELONGING TO THE DISTRICT OF COLUMBIA OR ANY AVAILABLE SPACE THEREIN. THERE IS NO IMPLICATION EITHER IN THE ACT OR IN ITS LEGISLATIVE HISTORY THAT THE QUOTED PROVISION WOULD AUTHORIZE, UNDER THE GUISE OF A RENTAL AGREEMENT AND AS PART OF THE RENTAL CONSIDERATION, THE CONSTRUCTION OF A NEW BUILDING, TITLE TO WHICH WOULD VEST IN THE DISTRICT OF COLUMBIA. ON THE CONTRARY, THE PURPOSE OF THE LEGISLATION AS STATED IN LETTER OF JULY 2, 1943, FROM THE PRESIDENT, BOARD OF COMMISSIONERS, AND QUOTED IN S.1REP. NO. 1200, 78TH CONGRESS, WAS TO "ENABLE THE DISTRICT OF COLUMBIA TO OBTAIN INCOME FROM VARIOUS MUNICIPAL PROPERTY WHICH WOULD OTHERWISE STAND IDLE.'

CONGRESS IS EMPOWERED UNDER THE CONSTITUTION TO ENACT LEGISLATION GOVERNING THE DISTRICT OF COLUMBIA AS THE SEAT OF THE GOVERNMENT OF THE UNITED STATES AND, IN THIS CONNECTION, ENACTS REVENUE MEASURES AND APPROPRIATES MONEY TO CARRY ON THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. A REVIEW OF THE VARIOUS APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA DISCLOSES NUMEROUS INSTANCES IN WHICH THE CONGRESS HAS SPECIFICALLY AUTHORIZED AND APPROPRIATED FUNDS FOR THE CONSTRUCTION OF BUILDINGS FOR THE DISTRICT OF COLUMBIA. THE CONCLUSION TO BE DRAWN FROM THESE AND OTHER PERTINENT STATUTES IS THAT THE CONSTRUCTION OF NEW BUILDINGS BY OR FOR THE DISTRICT OF COLUMBIA REQUIRES AUTHORITY, EITHER SPECIFICALLY EXPRESSED OR NECESSARILY IMPLIED, IN SOME CONGRESSIONAL ENACTMENT.

WITH RESPECT TO THAT PART OF THE PROPOSED PLAN WHICH RELATES TO THE CONSTRUCTION BY THE LESSEE OF PARKING FACILITIES AS A PART OF THE BUILDING TO BE ERECTED ON THE LEASED SITE, THE FOLLOWING PROVISIONS OF THE DISTRICT OF COLUMBIA MOTOR VEHICLE PARKING FACILITY ACT OF 1942, 56 STAT. 90, AS AMENDED, 62 STAT. 565, ARE PERTINENT:

SEC. 3. THE COMMISSIONERS, WITHIN THE LIMITS OF APPROPRIATIONS BY CONGRESS THEREFOR, ARE*AUTHORIZED TO EXERCISE ALL POWERS NECESSARY AND CONVENIENT TO CARRY OUT THE PURPOSES OF THIS ACT, THE SAID PURPOSES BEING HEREBY DECLARED TO BE THE ACQUISITION, CREATION, AND OPERATION, IN ANY MANNER HEREINAFTER PROVIDED, UNDER PUBLIC REGULATION, OF PUBLIC OFF-STREET PARKING FACILITIES IN THE DISTRICT AS NECESSARY INCIDENT TO INSURING IN THE PUBLIC INTEREST THE FREE CIRCULATION OF TRAFFIC IN AND THROUGH SAID DISTRICT. SUCH POWERS SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THE POWERS HEREINAFTER ENUMERATED: * * * * * * *

(F) THE POWER TO LEASE ON COMPETITIVE BIDS FOR TERMS NOT EXCEEDING FIFTY YEARS, ANY PROPERTY ACQUIRED PURSUANT TO THIS ACT, OR ANY OTHER PROPERTY HERETOFORE OR HEREAFTER ACQUIRED BY THE DISTRICT IF NO LONGER NEEDED FOR THE PURPOSE FOR WHICH IT WAS ACQUIRED, AND TO STIPULATE IN ANY SUCH LEASE THAT THE LESSEE SHALL ERECT AT HIS OR ITS EXPENSE A STRUCTURE OR STRUCTURES ON THE LAND LEASED, WHICH STRUCTURE OR STRUCTURES AND PROPERTY SHALL BE USED, MAINTAINED, AND OPERATED FOR THE PURPOSES OF THIS ACT, INCLUDING PURPOSES INCIDENTAL THERETO, SUBJECT TO REGULATION, AS PROVIDED IN PARAGRAPH (D) OF THIS SECTION, EXCEPT THAT THE RATES FOR USE OF SPACE IN PARKING FACILITIES COVERED BY ANY SUCH LEASE SHALL BE FIXED AND REGULATED BY THE COMMISSIONERS SO AS TO ALLOW TO THE LESSEE A FAIR RETURN, AS FIXED BY THE COMMISSIONERS, ON THE COST OF SUCH STRUCTURE OR STRUCTURES, TOGETHER WITH AN AMOUNT SUFFICIENT TO AMORTIZE WITHIN THE TERM OF ANY SUCH LEASE THE COST OF SUCH STRUCTURE OR STRUCTURES. EVERY SUCH LEASE SHALL BE ENTERED INTO UPON SUCH TERMS AND CONDITIONS AS THE COMMISSIONERS SHALL IMPOSE INCLUDING, BUT NOT LIMITED TO, REQUIREMENTS THAT SUCH STRUCTURE OR STRUCTURES SHALL CONFORM WITH PLANS AND SPECIFICATIONS APPROVED BY THE COMMISSIONERS, THAT SUCH STRUCTURE OR STRUCTURES SHALL BECOME THE PROPERTY OF THE DISTRICT UPON TERMINATION OR EXPIRATION OF ANY SUCH LEASE; THAT THE LESSEE SHALL FURNISH SECURITY IN THE FORM OF A PENAL BOND OR OTHERWISE TO GUARANTEE FULFILLMENT OF HIS OR ITS OBLIGATIONS, AND ANY OTHER REQUIREMENT WHICH, IN THE JUDGMENT OF THE COMMISSIONERS, SHALL BE RELATED TO THE ACCOMPLISHMENT OF THE PURPOSES OF THIS ACT.

THE QUOTED STATUTE APPEARS TO CONTEMPLATE SPECIFICALLY THE TYPE OF LEASE HERE PROPOSED, INSOFAR AS SUCH LEASE RELATES TO THE PURPOSES OF THE ACT OR THOSE INCIDENTAL THERETO, EXCEPT THAT THE PROPOSED LEASE DOES NOT PROVIDE FOR REGULATION OF PARKING RATES, AS REQUIRED IN THE ACT. MOREOVER, IF THIS ACT WERE RELIED UPON FOR CONSTRUCTION OF THE PROPOSED BUILDING, ITS USE WOULD NECESSARILY HAVE TO BE LIMITED TO PURPOSES INCIDENTAL TO THE PARKING OF VEHICLES. ACCORDINGLY, IT IS ASSUMED FROM WHAT IS STATED IN YOUR LETTER AND FROM CONVERSATIONS INFORMALLY HAD WITH OFFICIALS OF THE DISTRICT GOVERNMENT, THAT SAID 1942 ACT IS NOT RELIED ON AS AUTHORITY FOR THE PROPOSED LEASE.

THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 19, 1948, WHICH ADDED SECTION 3 (F) TO THE DISTRICT OF COLUMBIA MOTOR VEHICLE PARKING FACILITY ACT OF 1942, INDICATES THAT ITS PURPOSE WAS TO PROVIDE AUTHORITY WHICH DID NOT OTHERWISE EXIST FOR THE EXECUTION OF LEASES AS DESCRIBED THEREIN. OBVIOUSLY, IT WAS CONSIDERED THAT SUCH LEASES WERE NOT AUTHORIZED BY THE THEN EXISTING ACT OF DECEMBER 20, 1944, SUPRA. AND, IF THE ACT OF DECEMBER 20, 1944, DID NOT AUTHORIZE THE EXECUTION OF A LEASE INVOLVING THE CONSTRUCTION OF PARKING FACILITIES, IT FOLLOWS THAT IT CANNOT BE CONSTRUED TO AUTHORIZE A LEASE WHICH WOULD REQUIRE CONSTRUCTION OF BOTH MARKET AND PARKING FACILITIES AS WELL AS UNSPECIFIED COMMERCIAL OR OTHER SPACE.

IN VIEW OF THE FOREGOING, IT IS MY CONCLUSION THAT AUTHORITY TO ENTER INTO THE PROPOSED LEASE IS NOT GIVEN THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA BY THE ACT OF DECEMBER 20, 1944, BY THE DISTRICT OF COLUMBIA MOTOR VEHICLE PARKING FACILITY ACT OF 1942, AS AMENDED, OR BY ANY OTHER STATUTE WHICH HAS COME TO MY ATTENTION.