B-136799, AUGUST 22, 1958, 38 COMP. GEN. 143

B-136799: Aug 22, 1958

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WHICH PRECLUDES THE USE OF APPROPRIATIONS FOR THE IMPROVEMENT OF RENTED PREMISES IN EXCESS OF 25 PERCENT OF THE RENT FOR A YEAR IS NOT APPLICABLE TO UNIMPROVED LANDS LEASED BY THE GOVERNMENT. IF THE LEASE IS FOR IMPROVED LAND. THE LIMITATION IS FOR APPLICATION IRRESPECTIVE OF WHETHER IMPROVEMENTS ARE TO THE LAND. YOUR LETTER IS. WHICH IS USED AS THE SITE FOR OUR DOUGLAS MONITORING STATION. ACCESS TO THIS PROPERTY FROM THE NEAREST HIGHWAY IS VIA A COMPLETELY UNIMPROVED ROADWAY OF ABOUT A THOUSAND FEET IN LENGTH. OUR PRESENT AUTHORITY TO CROSS THIS STRIP IS BY WAY OF ORAL PERMISSION FROM THE STATE AUTHORITIES. WHENEVER IT RAINS AND (AND THIS AREA IS SUBJECT TO CLOUDBURSTS). THE ROAD IS IMPASSABLE FOR PERIODS OF SEVERAL HOURS.

B-136799, AUGUST 22, 1958, 38 COMP. GEN. 143

PROPERTY - LEASED BY GOVERNMENT - IMPROVEMENTS - UNIMPROVED LAND THE LIMITATION IN SECTION 322 OF THE ECONOMY ACT OF 1932, 40 U.S.C. 278A, WHICH PRECLUDES THE USE OF APPROPRIATIONS FOR THE IMPROVEMENT OF RENTED PREMISES IN EXCESS OF 25 PERCENT OF THE RENT FOR A YEAR IS NOT APPLICABLE TO UNIMPROVED LANDS LEASED BY THE GOVERNMENT; HOWEVER, IF THE LEASE IS FOR IMPROVED LAND, I.E., LAND AND BUILDINGS, THE LIMITATION IS FOR APPLICATION IRRESPECTIVE OF WHETHER IMPROVEMENTS ARE TO THE LAND, THE BUILDINGS OR BOTH. ALTHOUGH THE AUTHORITY GRANTED IN SECTION 4 (G) OF THE COMMUNICATIONS ACT OF 1934, 47 U.S.C. 154 (G), TO MAKE EXPENDITURES FOR LAND FOR RADIO MONITORING STATIONS AND RELATED FACILITIES DOES NOT PERMIT EXPENDITURES FOR PERMANENT-TYPE IMPROVEMENTS TO LEASED PROPERTY, THE EXPENDITURE OF A SMALL AMOUNT FROM APPROPRIATED FUNDS TO ASSIST IN THE IMPROVEMENT OF A ROADWAY OVER STATE-OWNED PROPERTY LEASED BY THE FEDERAL COMMUNICATIONS COMMISSION FOR ACCESS TO A MONITORING STATION APPEARS TO BE IN THE INTEREST OF THE GOVERNMENT.

TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, AUGUST 22, 1958:

YOUR LETTER OF JULY 8, 1958 (YOUR REFERENCE 3200), CONCERNS THE USE OF APPROPRIATED FUNDS TO IMPROVE AN ACCESS ROADWAY WHICH YOU PROPOSE TO LEASE AND PRESENTS TWO QUESTIONS IN CONNECTION THEREWITH FOR OUR CONSIDERATION.

YOUR LETTER IS, IN PERTINENT PART, AS FOLLOWS:

THE COMMISSION OWNS CERTAIN PROPERTY, AND LEASES CERTAIN OTHER PROPERTY CONTIGUOUS THERETO, IN THE VICINITY OF DOUGLAS, ARIZONA, WHICH IS USED AS THE SITE FOR OUR DOUGLAS MONITORING STATION. ACCESS TO THIS PROPERTY FROM THE NEAREST HIGHWAY IS VIA A COMPLETELY UNIMPROVED ROADWAY OF ABOUT A THOUSAND FEET IN LENGTH, WHICH LIES ON GRAZING LAND OWNED BY THE STATE OF ARIZONA AND LEASED TO FARMERS; OUR PRESENT AUTHORITY TO CROSS THIS STRIP IS BY WAY OF ORAL PERMISSION FROM THE STATE AUTHORITIES. THE USE OF THIS ROADWAY ENTAILS CONSIDERABLE INCONVENIENCE TO GOVERNMENT PERSONNEL REQUIRED TO USE IT. SINCE THIS ROADWAY AMOUNTS TO NOTHING MORE THAN A CAR PATH ACROSS GRAZING LANDS, WHENEVER IT RAINS AND (AND THIS AREA IS SUBJECT TO CLOUDBURSTS), THE ROAD IS IMPASSABLE FOR PERIODS OF SEVERAL HOURS, THUS HAMPERING INGRESS TO AND EGRESS FROM THE STATION. MOREOVER, ONE USING THIS ROAD MUST OPEN AND SHUT THE CATTLE GATES EACH TIME THE ROAD IS USED.

THE STATE OF ARIZONA HAS PROPOSED TO LEASE THIS STRIP TO THE COMMISSION FOR USE AS AN ACCESS ROADWAY, FOR AN INDEFINITE PERIOD OF TIME AND AT A NOMINAL RENT OF FIVE ($5.00) DOLLARS PER YEAR. THE STATE HAS ALSO AGREED TO IMPROVE THIS ROADWAY, PROVIDED THE COMMISSION WILL SHARE PART OF THE COST. THE STATE HAS AGREED TO LAY GRAVEL ON THE ROAD AND TO ERECT CATTLE GUARDS THEREON, IF THE COMMISSION, AS ITS PART, WOULD FURNISH THE GRAVEL AND LAY CONCRETE BASES FOR NECESSARY CATTLE GUARDS. WE ESTIMATE THAT OUR SHARE OF THE EXPENSES WOULD BE IN THE NEIGHBORHOOD OF $1000.

THE FIRST PROBLEM YOU HAVE IN CONNECTION WITH THE FOREGOING IS WHETHER THE LIMITATION ON AN AGENCY'S AUTHORITY TO SPEND FUNDS FOR THE IMPROVEMENT OR ALTERATION OF UNIMPROVED LAND IS GOVERNED BY 41 U.S.C. 12, RATHER THAN BY THE PROVISIONS OF SECTION 322 OF THE ECONOMY ACT OF 1932, 47 STAT. 412, 40 U.S.C. 278A.

YOU SAY THAT YOUR REASON FOR SEEKING CLARIFICATION OF THIS INITIAL POINT IS THAT IN 29 COMP. GEN. 279, WE RULED THAT THE PROPOSED CONSTRUCTION OF ROADWAYS AND WALKWAYS ON LAND THE COMMISSION HAD LEASED FOR MONITORING STATIONS FELL SQUARELY WITHIN THE PLAIN AND UNQUALIFIED LANGUAGE OF SECTION 322 AND, HENCE, THAT EXPENDITURES FOR IMPROVEMENTS COULD NOT EXCEED THE 25 PERCENT LIMITATION OF THAT SECTION. YOU ADVISE THAT ON FURTHER EXAMINATION IT NOW APPEARS THAT THE COMMISSION ERRONEOUSLY ASSUMED THAT SECTION 322 MIGHT APPLY TO THE FACTS INVOLVED IN THE MENTIONED DECISION, EVEN THOUGH THE PROPOSED IMPROVEMENTS IN NO WAY INVOLVE THE IMPROVEMENT OR ALTERATION OF LEASED BUILDINGS.

SECTION 322 OF THE ECONOMY ACT OF 1932 PROVIDES, IN PERTINENT PART, AS FOLLOWS--- QUOTING FROM THE CODE:

* * * NO APPROPRIATION SHALL BE OBLIGATED OR EXPENDED FOR THE RENT OF ANY BUILDING OR PART OF A BUILDING TO BE OCCUPIED FOR GOVERNMENT PURPOSES AT A RENTAL IN EXCESS OF THE PER ANNUM RATE OF 15 PERCENTUM OF THE FAIR MARKET VALUE OF THE RENTED PREMISES * * * NOR FOR ALTERATIONS, IMPROVEMENTS, AND REPAIRS OF THE RENTED PREMISES IN EXCESS OF 25 PERCENTUM OF THE AMOUNT OF THE RENT FOR THE FIRST YEAR OF THE RENTAL TERM * * *. ( ITALICS SUPPLIED.)

THE 25 PERCENT LIMITATION IN SECTION 322 OF THE ECONOMY ACT OF 1932 IS NOT REGARDED AS APPLICABLE TO UNIMPROVED LANDS LEASED AS SUCH TO THE GOVERNMENT. SEE WESTCHESTER COUNTY PARK COMMISSION V. UNITED STATES, 143 F.2D 688, FOOTNOTE ON PAGE 693, AND B-126950, MARCH 12, 1956. HOWEVER, IF THE LEASE IS FOR IMPROVED LAND, I.E., LAND AND BUILDINGS, THEN THE 25 PERCENT LIMITATION OF SECTION 322 WOULD BE FOR APPLICATION WHETHER THE REPAIRS, ALTERATIONS OR IMPROVEMENTS ARE TO THE LAND, THE BUILDINGS THEREON OR BOTH, SINCE THE LIMITATION IS APPLICABLE TO THE RENTED ,PREMISES.' GENERALLY, THE WORD "PREMISES" HAS BEEN HELD TO MEAN LAND WITH THE BUILDINGS AND STRUCTURES THEREON. SEE M. M. ROWE CO. V. WALLERSTEIN, 133 S.E. 669; MCSHERRY V. HEIMER, 156 N.W. 130; AND STATE V. JACKSON, 131 S.E. 11.

ASSUMING THAT SECTION 322 OF THE ECONOMY ACT IS NOT APPLICABLE TO IMPROVEMENTS MADE ON LEASED UNIMPROVED LAND, YOU REQUEST A DECISION AS TO WHETHER, IN THE LIGHT OF OUR DECISIONS CONSTRUING 41 U.S.C. 12, THE COMMISSION HAS SUFFICIENTLY SPECIFIC AUTHORITY TO MAKE THE IMPROVEMENTS IN QUESTION ON LEASED STATE-OWNED LANDS IN VIEW OF THE PROVISIONS OF SECTION 4 (G) OF THE COMMUNICATIONS ACT OF 1934, AS AMENDED BY THE COMMUNICATIONS ACT AMENDMENTS OF 1953, 47 U.S.C. 154 (G). THIS SECTION PROVIDES:

4 (G)THE COMMISSION MAY MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR RENT AND PERSONAL SERVICES AT THE SEAT OF GOVERNMENT AND ELSEWHERE, * * * FOR LAND FOR USE AS SITES FOR RADIO MONITORING STATIONS AND RELATED FACILITIES, AND INCLUDING LIVING QUARTERS WHERE NECESSARY IN REMOTE AREAS, FOR THE CONSTRUCTION OF SUCH STATIONS AND FACILITIES, AND FOR THE IMPROVEMENT, FURNISHING, EQUIPPING, AND REPAIRING OF SUCH STATIONS AND FACILITIES AND OF LABORATORIES AND OTHER RELATED FACILITIES (INCLUDING CONSTRUCTION OF MINOR SUBSIDIARY BUILDINGS AND STRUCTURES NOT EXCEEDING $25,000 IN ANY ONE INSTANCE) USED IN CONNECTION WITH TECHNICAL RESEARCH ACTIVITIES, AS MAY BE NECESSARY FOR THE EXECUTION OF THE FUNCTIONS VESTED IN THE COMMISSION AND AS FROM TIME TO TIME MAY BE APPROPRIATED FOR BY CONGRESS.

YOU SAY THAT IN THE COMMISSION'S OPINION THE LAST QUOTED SECTION AMOUNTS TO CLEAR AUTHORITY TO ACQUIRE, BY LEASE OR PURCHASE, LAND FOR MONITORING STATIONS AND RELATED FACILITIES AND TO IMPROVE THE SAME WHERE THIS IS NECESSARY TO YOUR FUNCTIONS. YOU ADVISE THAT THE FACT THAT THE IMPROVEMENTS WOULD BE MADE ON LEASED PROPERTY WOULD APPEAR TO BE IMMATERIAL BECAUSE NOTHING IN SECTION 4 (G) REQUIRES THE COMMISSION TO CHOOSE BETWEEN EXERCISING ITS AUTHORITY TO THE FULLEST EXTENT (I.E., TO ACQUIRE FULL TITLE TO THE ROADWAY) OR NOT AT ALL.

THE WELL-ESTABLISHED RULE IS THAT APPROPRIATED FUNDS ORDINARILY MAY NOT BE USED FOR IMPROVEMENTS TO PRIVATE PROPERTY UNLESS SPECIFICALLY AUTHORIZED BY LAW. 5 COMP. DEC. 478; 6 ID. 295; 2 COMP. GEN. 606; 15 ID. 761; 20 ID. 927; 29 ID. 279. THIS RULE IS BASED UPON THE FACT THAT NO GOVERNMENT OFFICIAL IN THE ABSENCE OF SPECIFIC LEGISLATION IS AUTHORIZED TO GIVE AWAY GOVERNMENT PROPERTY.

THE LEGISLATIVE HISTORY OF SECTION 4 (C) OF THE COMMUNICATIONS ACT AMENDMENTS OF 1952 (66 STAT. 711), WHICH AMENDED SECTION 4 (G) OF THE COMMUNICATIONS ACT OF 1934, DISCLOSES THAT THE PURPOSE (AMONG OTHERS) OF THE AMENDMENT WAS TO GRANT AUTHORITY TO THE COMMISSION TO MAKE EXPENDITURES FOR LAND FOR MONITORING STATIONS AND RELATED FACILITIES. HOUSE REPORT NO. 1750 (PAGE 5), ON THE BILL WHICH BECAME THE COMMUNICATIONS ACT AMENDMENTS, 1952, STATES THAT THE AMENDMENT IN QUESTION MODIFIES SECTION 4 (G) "SO AS TO AUTHORIZE THE COMMISSION TO ACQUIRE LAND FOR RADIO MONITORING STATIONS AND RELATED FACILITIES; " BUT THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE SECTION TO INDICATE THAT THE CONGRESS INTENDED TO AUTHORIZE THE CONSTRUCTION OF PERMANENT-TYPE IMPROVEMENTS ON LEASED PROPERTY, EVEN THOUGH SECTION 4 (G) DOES AUTHORIZE EXPENDITURES FOR RENT.

HOWEVER, IN THE INSTANT CASE, WHILE THE CONCRETE BASES FOR THE CATTLE GUARDS MIGHT BE CONSIDERED PERMANENT-TYPE IMPROVEMENTS, SURFACING OF THE ROADBED WITH GRAVEL WOULD NOT APPEAR TO FALL IN THAT CATEGORY. MOREOVER, IT APPEARS FROM YOUR LETTER THAT IMPROVEMENT OF THE ROADWAY IS ESSENTIAL IN ORDER THAT THE COMMISSION'S EMPLOYEES MAY REACH THE DOUGLAS MONITORING STATION IN BAD WEATHER, AND THEREFORE IN THE GOVERNMENT'S INTEREST. ALSO, THE RENT FOR THE LAND INVOLVED WILL BE NOMINAL ($5 PER YEAR) AND THE STATE HAS AGREED TO SHARE IN THE COST OF IMPROVING THE ROADWAY, EVEN THOUGH IT DOES NOT APPEAR THE IMPROVEMENTS WILL NECESSARILY RESULT IN A BENEFIT TO THE STATE. FURTHERMORE, IT APPEARS THAT THE COST TO THE COMMISSION OF IMPROVING THE ROADWAY WILL BE RELATIVELY SMALL AND NOT DISPROPORTIONATE TO THE NEEDS OF THE GOVERNMENT. ACCORDINGLY, IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES, WE WILL NOT OBJECT TO THE PROPOSED EXPENDITURE TO IMPROVE THE ROADWAY IN THE MANNER SET FORTH IN YOUR LETTER. SEE 35 COMP. GEN. 715.