B-116938, OCTOBER 7, 1953, 33 COMP. GEN. 148

B-116938, OCTOBER 7, 1953, 33 COMP. GEN. 148

PUBLIC PROPERTY - LAND - DISPOSITION UNDER SURPLUS PROPERTY ACT - RELEASE FROM TERMS AND CONDITIONS OF DEED WHILE THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, AUTHORIZES THE SECRETARY OF THE INTERIOR TO GRANT RELEASES FROM TERMS AND CONDITIONS IN ANY INSTRUMENT WHICH CONVEYS FEDERAL LAND FOR USE AS A PUBLIC PARK OR RECREATIONAL AREA, LAND CONVEYED TO A MUNICIPALITY UNDER SECTION 13 OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, BY A DEED CONTAINING A CONDITION WHICH PROVIDES THAT THE PROPERTY AS USED ONLY FOR PUBLIC PARK AND RECREATIONAL PURPOSES UNLESS ABROGATION OF SUCH CONDITION IS SECURED BY PAYMENT OF THE UNAMORTIZED PORTION OF THE PUBLIC BENEFIT ALLOWANCE GRANTED THE MUNICIPALITY--- WITH A REVERTER CLAUSE UPON BREACH OF CONDITION--- MAY NOT BE USED TO ERECT A CITY HALL AND PUBLIC LIBRARY EXCEPT UPON COMPLIANCE WITH THE ABROGATION PROVISION IN THE DEED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, OCTOBER 7, 1953:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 2, 1953, FROM THE ASSISTANT SECRETARY REQUESTING TO BE ADVISED CONCERNING CERTAIN PROVISIONS IN A DEED CONVEYING TO THE CITY OF VANCOUVER, WASHINGTON, APPROXIMATELY 13 ACRES OF SURPLUS LAND.

IT APPEARS THAT PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 350, 50 U.S.C.A. APP., 1622 (H), THE UNITED STATES, THROUGH THE GENERAL SERVICES ADMINISTRATOR, CONVEYED THE PROPERTY TO THE CITY OF VANCOUVER BY DEED DATED MARCH 16, 1950. THE PROPERTY WAS CONVEYED SUBJECT TO CERTAIN RESERVATIONS AND TO THE CONDITION, AMONG OTHER THINGS, IN THE DEED THAT FOR A PERIOD OF 20 YEARS FROM THE DATE THEREOF THE PROPERTY SHALL BE CONTINUOUSLY USED AND MAINTAINED "AS AND FOR PUBLIC PARK AND PUBLIC RECREATIONAL AREA PURPOSES, FOR INCIDENTAL PURPOSES PERTAINING THERETO, BUT FOR NO OTHER PURPOSES.' THE DEED CONTAINED A REVERTER PROVISION APPLICABLE IN THE EVENT OF BREACH OF THE CONDITION.

THE SECTION OF THE ACT REFERRED TO ABOVE PROVIDES, IN PARAGRAPH (2) THEREOF, THAT CONVEYANCES FOR PARK OR RECREATIONAL PURPOSES MADE PURSUANT THERETO SHALL BE MADE AT A PRICE EQUAL TO 50 PERCENTUM OF THE FAIR VALUE OF THE PROPERTY CONVEYED DETERMINED AS THEREIN PROVIDED. THE DEED INDICATES THAT THE PROPERTY WAS VALUED AT $19,500 AND THAT THE CONSIDERATION PAID WAS 50 PERCENT THEREOF, OR $9,750. CONDITION 4 OF THE DEED PROVIDES THAT THE CITY MAY DURING THE 20-YEAR PERIOD SECURE ABROGATION OF THE CONDITION REFERRED TO, AS WELL AS OTHER CONDITIONS IN THE DEED, UPON THE PAYMENT OF THE UNAMORTIZED PORTION OF THE 50 PERCENT PUBLIC BENEFIT ALLOWANCE GRANTED THE CITY FROM THE CURRENT MARKET VALUE OF $19,500.

UNDER SECTION 203 (K) (2) (C) OF THE FEDERAL PROPERTY AND 66 STAT. 593, 40 U.S.C.A. 484 (K) (2) (C), THE SECRETARY OF THE 66 STAT. 593, 40 U.S.C.A. 484 (K) (2) (C), THE SECRETARY OF THE INTERIOR IS AUTHORIZED, SUBJECT TO THE DISAPPROVAL OF THE GENERAL SERVICE ADMINISTRATOR WITHIN 30 DAYS AFTER NOTICE TO HIM OF ANY ACTION TO TAKEN THEREUNDER, TO DETERMINE AND ENFORCE COMPLIANCE WITH THE TERMS AND CONDITIONS OF ANY INSTRUMENT BY WHICH SUCH TRANSFERS OF PROPERTY FOR USE AS A PUBLIC PARK OR PUBLIC RECREATIONAL AREA WAS MADE, AND TO GRANT RELEASES FROM ANY OF THE TERMS AND CONDITIONS IN ANY SUCH INSTRUMENT AND TO CONVEY, QUITCLAIM OR RELEASE ANY RIGHT RESERVED TO THE UNITED STATES IF HE DETERMINES THAT THE PROPERTY NO LONGER SERVES THE PURPOSE FOR WHICH IT WAS TRANSFERRED AND THAT SUCH RELEASE, CONVEYANCE OR QUITCLAIM DEED WILL NOT PREVENT ACCOMPLISHMENT OF THE PURPOSE FOR WHICH THE PROPERTY WAS SO TRANSFERRED.

IT APPEARS THAT THE CITY OF VANCOUVER HAS REQUESTED PERMISSION TO PLACE TWO BUILDINGS ON THE LAND--- A CITY HALL AND A LIBRARY--- AND THAT WITH RESPECT TO THE CITY HALL, WHICH WILL BE USED PRIMARILY AS AN OFFICE BUILDING, YOU INTEND TO ASK THE CITY TO PAY THE UNAMORTIZED BALANCE OF THE PUBLIC BENEFIT ALLOWANCE FOR THE AREA TO BE OCCUPIED BY THAT STRUCTURE AND RELATED FACILITIES, SUCH AS DRIVEWAYS, PARKING AREAS, ETC., AND THEREUPON TO ISSUE TO THE CITY A RELEASE OF SUCH AREA FROM THE RESTRICTIVE PROVISIONS OF THE DEED, BUT THAT SOME DOUBT EXISTS WHETHER THE PROPOSED PUBLIC LIBRARY MAY LAWFULLY BE BUILT BY THE CITY WITHOUT SECURING THE ABROGATION OF THE CONDITION RELATING TO THE USE OF THE PROPERTY FOR PUBLIC PARK AND PUBLIC RECREATIONAL AREA PURPOSES.

THE ASSISTANT SECRETARY REQUESTS ADVICE AS TO WHETHER THE ERECTION OF THE LIBRARY BUILDING UPON THE PREMISES, AS WELL AS THE CITY HALL STRUCTURE ITSELF, WOULD BE INCONSISTENT WITH THE PURPOSES OF THE CONVEYANCE AND WHETHER THE CITY SHOULD FIRST BE REQUIRED TO OBTAIN RELEASE FROM THE PARK AND RECREATIONAL USE PROVISIONS BY PAYMENT OF THE UNAMORTIZED ALLOWANCE FOR THE LAND SO USED.

SECTION 13 OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED BY THE CITED ACT OF JUNE 10, 1948, AUTHORIZED THE CONVEYANCE, UPON THE CONDITIONS THEREIN STATED, TO ANY STATE, POLITICAL SUBDIVISION, INSTRUMENTALITIES THEREOF, OR MUNICIPALITY, OF SURPLUS LAND WHICH, IN THE DETERMINATION OF THE SECRETARY OF THE INTERIOR, IS "SUITABLE AND DESIRABLE FOR USE AS A PUBLIC PARK, PUBLIC RECREATIONAL AREA, OR HISTORIC MONUMENT, FOR THE BENEFIT OF THE PUBLIC.' IT APPEARS FROM THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 10, 1948, THAT THE SAID PROVISION WAS CONTAINED IN BOTH THE SENATE BILL (S.2277, 80TH CONGRESS) AND THE HOUSE BILL ( H.R. 5799. 80TH CONGRESS), BUT THAT AN AMENDMENT WAS OFFERED IN THE HOUSE (94 CONG. REC. 5262) TO INSERT AFTER THE WORD "DESIRABLE" THE WORDS "FOR USE IN CONNECTION WITH ANY OF ITS GOVERNMENTAL FUNCTIONS OR," WHICH, IF ADOPTED, WOULD HAVE PERMITTED SUCH CONVEYANCES FOR USE IN CONNECTION WITH ANY OF ITS GOVERNMENTAL FUNCTIONS OF A STATE, POLITICAL SUBDIVISION, OR MUNICIPALITY. HOWEVER, IT APPEARS THAT IN CONFERENCE, THE HOUSE RECEDED FROM THAT AMENDMENT. SEE HOUSE REPORT NO. 2037, 80TH CONGRESS, 2D SESSION. ALSO, IT APPEARS FROM THE DEBATE ON THE BILL THAT THE USE OF LAND CONVEYED UNDER SAID SECTION 13 FOR PUBLIC PARK OR PUBLIC RECREATIONAL PURPOSES WAS TO BE SOLELY FOR THOSE USES. 64 CONG. REC. 6490. THUS, IT IS APPARENT THAT ANY LAND CONVEYED PURSUANT THERETO ON A 50 PERCENT DISCOUNT--- AS HERE- - SHOULD BE USED ONLY FOR THE PURPOSES STATED--- THAT IS, FOR PUBLIC PARKS OR FOR PUBLIC RECREATIONAL AREAS AND NOT FOR OTHER GOVERNMENTAL FUNCTIONS.

GENERALLY, LAND GRANTED TO A MUNICIPALITY UPON CONDITION THAT IT BE USED FOR A STATED PURPOSE MAY NOT BE DIVERTED TO OTHER USES OUTSIDE THE SCOPE OF THE GRANT. BETH ISRAEL HOSPITAL ASSN. V. MOSES, 275 N.Y. 209, 9 N.E.2D 838; RITZMAN V. LOS ANGELES, 101 P.2D 541. WHILE, WITH RESPECT TO THE CITY HALL, THE AREA WHICH WOULD BE OCCUPIED BY THE BUILDING IS NOT SHOWN, IT IS APPARENT THAT WHATEVER IT MAY BE, THE ENTIRE TRACT WAS CONVEYED TO THE CITY AT A REDUCED CONSIDERATION UNDER THE ACT FOR PURPOSES TO BE ENJOYED BY THE PUBLIC AT LARGE AS A PARK AND FOR RECREATIONAL PURPOSES TO BE ENJOYED BY THE PUBLIC AT LARGE AS A PARK AND FOR RECREATIONAL USES AND THE USE OF A PART OF IT FOR A CITY HALL WOULD SEEM CLEARLY TO BE A DIVERSION FROM THE USE STATED IN THE STATUTE AND IN THE DEED. CHURCH V. PORTLAND, 22 PAC. 528.

WITH REFERENCE TO THE USE OF A PART OF THE PROPERTY FOR CONSTRUCTION OF A LIBRARY BUILDING, WHILE ALSO THE AREA TO BE OCCUPIED BY THE BUILDING IS NOT SHOWN, IT IS APPARENT THAT THE AREA SO OCCUPIED WOULD NOT BE A PUBLIC PARK. WHILE LIBRARIES--- OR AT LEAST CERTAIN TYPES OF LIBRARIES--- MAY IN A SENSE PROVIDE SOME DEGREE OF RECREATION, IT IS THE VIEW OF THIS OFFICE THAT THEY ARE GENERALLY MORE PROPERLY REGARDED AS EDUCATIONAL. WEBSTER CITY V. WRIGHT COUNTY, 123 N.W. 193, CITED IN YOUR LETTER; CITY OF FORT WORTH V. BURNETT, 115 S.W. 2D 436. ALSO, IN THIS CONNECTION, IT HAS BEEN HELD THAT THE ERECTION OF A PUBLIC LIBRARY BUILDING UPON A TRACT OF LAND DEVISED TO A CITY UPON CONDITION THAT IT SHALL BE USED FOREVER SOLELY AS A PUBLIC PARK IS INCONSISTENT WITH THE PURPOSE FOR WHICH THE PARK WAS DEDICATED AND AMOUNTS TO A DIVERSION. HOPKINSVILLE V. JARRETT, 162 S.W. 85. ALSO, IN FORT WORTH V. BURNETT, SUPRA, IT WAS HELD THAT THE ERECTION OF A PUBLIC LIBRARY BUILDING ON A PORTION OF LAND IN A CITY WHICH THE DONOR HAD GIVEN THE CITY FOR PARK PURPOSES WAS A VIOLATION OF THE TERMS OF THE GRANT.

IN VIEW OF THE PROVISIONS OF THE STATUTE UNDER WHICH THE GRANT WAS MADE AND OF THE EXPRESS TERMS OF THE DEED, IT IS THE VIEW OF THIS OFFICE THAT THE USE OF PART OF THE PROPERTY FOR A CITY HALL AND A LIBRARY WOULD BE INCONSISTENT WITH THE PURPOSES OF THE GRANT AND THAT THE RELEASE SHOULD NOT BE ISSUED TO THE CITY WITH RESPECT TO EITHER THE CITY HALL OR THE LIBRARY EXCEPT UPON COMPLIANCE BY THE CITY WITH THE PROVISIONS OF THE DEED RELATING TO RELEASE OF THE CONDITIONS AS TO USE OF THE PROPERTY.