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AGO 1954 No. 358 - December 07, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington


State Capitol Committee has no authority without authorizing legislation to execute long-term lease of subsurface beneath public square in City of Olympia.

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                                                                December 7, 1954

State Capitol Committee
P.O. Box 110
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 358

Attention:  !ttMr. Frank Sether

            Assistant Secretary


            We answer the question contained in your letters of November 8 and November 17, 1954 as follows:

            The State Capitol Committee does not have authority, in the absence of authorizing legislation, to execute a long-term [[longterm]]lease of the subsurface beneath the public square in the City of Olympia (referred to as "Sylvester site," "Capitol place" or "Sylvester park") under which private parties could construct and operate a garage or parking lot.


            The area referred to appears as a "public square" on the map of the Town of Olympia recorded in Volume 1 of Plats at page 14, Auditor's records of Thurston County, Washington.

            The Town of Olympia thereby acquired an easement in this property for public use.  35 Words and Phrases, Public Square, page 348.

             [[Orig. Op. Page 2]]

            By deed dated November 5, 1861 and recorded in Volume 4 of Deeds, page 114, Auditor's records of Thurston County, the Town of Olympia acquired the reversionary rights of Edmund Sylvester and Clara E. Sylvester, his wife, who dedicated this property as such public square.

            By deed dated October 4, 1901 and recorded in Volume 47 of Deeds, page 473, Auditor's records of Thurston County, the City of Olympia conveyed this property to the State of Washington with the provision that it should revert to the city for public use in the event it or the adjoining block, numbered 26 of Sylvester Park (on which the Old Capitol Building stands), should cease to to be usedfor state capitol purposes.

            By deed dated November 30, 1909 recorded in Volume 76 of Deeds at page 78, Auditor's records of Thurston County, the City of Olympia again conveyed the same property to the State of Washington upon the condition that the state "shall forever retain the saidpark for some public purpose, * * *" and with the provision that should the state ever desire to dispose of said park, the City of Olympia should be given the right to secure a conveyance of the same upon the payment of actual expenses incurred by the state in keeping up the park.

            The City of Olympia was authorized to make these conveyances which contemplated the use of the property for a public purpose.  AGO 1945-56, pages 683, 684.

            By chapter 34, Laws of 1933, Ex. Sess., RCW 43.34.040, the State Capitol Committee was authorized to erect one or more permanent or temporary buildings upon the "capitol grounds belonging to the state and known as the 'Sylvester site' or 'Capitol place' in Olympia, Washington."

            The area is, therefore, not a state park under the jurisdiction of the State Parks and Recreation Commission, which has authority to grant concessions in the state parks for terms not longer than twenty years upon the conditions approved by the Commission.  RCW 43.51.040.

             [[Orig. Op. Page 3]]

            The construction of authorized buildings for state purposes would be both a "capitol purpose" and a "public purpose" within the meaning of those phrases as contained in the deeds from the City of Olympia.

            Upon the question of whether or not long-term leases of property held in trust for the public where the lessee is entitled to operate the same for his own benefit are inconsistent with public use, the courts are divided.  Some such leases have been held invalid.  Deer v. City of Fairview (Okla.) reported in 247 Pac. at page 45; Lincoln Park Traps v. Chicago Park District, 323 Ill. App. 107, 55 N.E. (2d) 173.  Some such leases have been sustained.  Green v. Garrett (Md.), 63 A. (2d) 326;Cohen v. Mayor, 367 Pa. 268, 80 A. (2d) 732;Shreveport v. Cahn, 194 La. 55, 193 So. 461.

            InCity and County of San Francisco v. Linares, reported in 106 P. (2d) at 369, the Supreme Court of California sustained a fifty year lease (executed by the City Park Commission) of subsurface space beneath "Union Square" for the purpose of erecting therein a public automobile garage and parking station, notwithstanding the temporary suspension of surface use during constructing of the station and the permanent use of a small portion of surface for entrances and exits.

            A city holding real property in trust by virtue of a dedication thereof for a public use may not convey title to said property (unless the same has been abandoned) without express authorization by a specific act of the state legislature.  State ex rel. N. P. Ry. Co. v. Superior Court, 136 Wash. 87, 238 Pac. 985.

            We are of the opinion that the state, acting through the State Capitol Committee, could execute a valid lease which would authorize the lessee to construct and operate a parking lot in the subsurface space below the public square in the City of Olympia, if the legislature should expressly vest the committee with such power.  Furthermore, the city's deed to the state must be executed pursuant to a statute broad enough to sustain such power.

             [[Orig. Op. Page 4]]

            The State Capitol Committee has not been specifically authorized to lease such premises, and a lease thereof might prevent the construction of buildings already authorized.  You are therefore advised that the State Capitol Committee is without power to execute a lease for the purposes mentioned without specific legislative authority, and without an additional conveyance from the city, which would also have to be specifically authorized by the legislature.

Yours very truly,

Attorney General

Assistant Attorney General

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