Opinion No. 2017-024

March 22, 2017

Municipalities – Contracts – YMCA – Parks and Recreation

The City of Anniston may enter into an agreement with the YMCA of Calhoun County (“YMCA”) for the YMCA to provide services to its citizens in exchange for the use of city property.

Whether the property has been dedicated as a public park is a factual determination to be made by the city.


Dear Mr. Downey:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Anniston.

QUESTION 1

May the City of Anniston enter into an agreement with the YMCA whereby the YMCA offers, conducts, and operates recreation programs for citizens on city property?

FACTS AND ANALYSIS

Your request states that the City of Anniston wishes to enter into an agreement with the YMCA, a non-profit organization, for a three-year term, subject to automatic renewal in three-year increments unless terminated by either party. The agreement would be for the YMCA to offer recreational programs to the city’s citizens on city-owned properties. The city would not pay any monetary consideration to the YMCA for carrying out and fulfilling its obligations under the agreement, but the YMCA would be responsible for maintaining the premises, paying for any repairs, and paying for all utilities. The YMCA could collect membership fees, but membership is not required for use or access of the properties.

Section 94 of the Constitution of Alabama, as last amended by Amendment No. 558, prohibits a political subdivision of the state from granting money or any other thing of value in aid of a private individual, corporation, or association. Ala. Const. art. IV, § 94 (amend. 558). This prohibition, however, is not applicable to a contract with mutual benefits and a consideration on both sides. Rogers v. City of Mobile, 169 So. 2d 282 (Ala. 1964). A municipality may enter into a contract with a private corporation to provide services which the municipality is authorized by law to provide. Opinion to Honorable Steven F. Schmitt, Attorney at Law, Tallassee, dated August 10, 1992, A.G. No. 92-00372.

Section 11-47-211 of the Code of Alabama authorizes a municipality to lease or acquire facilities for recreational or athletic purposes, and section 11-47-21 allows a municipality to “lease any of its real property not needed for public or municipal purposes” for no more than 99 years. Ala. Code §§ 11-47-21, 211 (2008). Leases and conveyances of property by a city have been upheld without requiring the municipality to prove that it has received fair market value for the property. Dothan Area Chamber of Com. v. Shealy, 561 So. 2d 515 (Ala. 1990).

This Office has stated that a town could enter into a lease agreement with a private youth center for the center to provide services to youth in return for space in a municipal building. Opinion to Honorable Douglas C. Martinson, II, Attorney, Town of Triana, dated January 25, 1999, A.G. No. 99-00093. Consistent with that opinion, the City of Anniston may make a similar arrangement with the YMCA.

CONCLUSION

The City of Anniston may enter into an agreement with the YMCA for the YMCA to provide services to its citizens in exchange for the use of city property.

QUESTION 2

Have the properties granted to the city, and that will be used by the YMCA, been dedicated as public parks so as to require alienation of the properties pursuant to section 35-4-410 of the Code of Alabama?

FACTS AND ANALYSIS

Section 35-4-410 of the Code of Alabama allows a municipality to alienate public parks, playgrounds, and recreational facilities provided the alienation is approved by the voters of the municipality in a referendum held for that purpose. Ala. Code § 35-4-410 (2014).

The properties in question were deeded to the city in 1969 and 1989. In 1969, the Anniston Board of Commissioners adopted a resolution to purchase property in the city for use as a park. The property was purchased by the city shortly thereafter, but the deed does not contain any covenants, restrictions, or conditions regarding its use as a park. The property has been used as a park (including the construction of a community center on the property), but it is unknown whether any official action was taken to dedicate the property as a public park.

In 1989, an adjoining parcel of land was purchased by the city. The deed to the property contained a covenant and restriction that the property “shall be used only for park and recreational purposes. . . .” This property is mostly unimproved, and to the best of the city’s knowledge, it has taken no official action to declare the property a public park.

Lands conveyed to a city free from trust, conditions, or dedications and that have not been formally dedicated to a public use may be leased. Opinion to Honorable Wendell C. Owens, Monroe County Attorney, dated June 16, 1981, A.G. No. 81-00432. A “dedication” of property occurs if: (1) the property is conveyed to the city conditioned upon a clear expressed intent by the grantor that the property be used exclusively for a public park or other public recreational facility and the city accepts and consents to those restrictions, or (2) the city’s governing body dedicates the property specifically for that use by a resolution or ordinance. Vestavia Hills Bd. Of Educ. v. Utz, 530 So. 2d 1378 (Ala. 1988); O’Rorke v. City of Homewood, 237 So. 2d 487 (Ala. 1970); see also opinion to Honorable Emmett O’Neal Griswold, Jr., City Attorney, City of Samson, dated November 30, 1993, A.G. No. 94-00070.

The property deeded to the city in 1969 does not contain any covenants, but the property has been used as a public park and the city built a community center on it. The Alabama Supreme Court has previously stated:

Where lands are conveyed to a municipality free from any trusts or conditions, and afterwards used for park purposes, the municipality may sell and convey lands to any grantee that it may choose under its charter power to sell and dispose of any property owned by it, or it may devote the property to other public uses.

O’Rorke, 237 So. 2d at 491-492 (citations omitted).

Prior to purchasing the land, however, the city passed and adopted a resolution authorizing the mayor to purchase the land stating that it “shall be dedicated and used as a public park.”

The property deeded to the city in 1989 contains a covenant that the property only be used by the municipality as a public park. The “language set forth in [a] deed is considered merely an offer of dedication by the grantors until such time as the dedication has been accepted by the grantee.” Utz, 530 So. 2d at 1383 (citations omitted). Acceptance of an offer of dedication can be proven through formal means such as a municipality adopting a resolution, through informal means such as construction of improvements on the land, or by evidence of public use for the purpose of which the land was dedicated. Id. Your correspondence indicates that the city is unaware of any formal action taken to dedicate the park, and that the land is mostly an unimproved, wooded area.

If the properties are not dedicated as public parks, then the city need only find that they are no longer needed for public purposes prior to leasing the property. Utz, 530 So. 2d at 1387. If either of the properties have been dedicated, the city can take steps to have the property alienated. Whether such dedication has taken place, however, requires a factual determination. The Attorney General makes determinations of law and not of fact. Ala. Code § 36-15-1(1)(a) -(b) (2013).

CONCLUSION

Whether city property has been dedicated as a public park is a factual determination to be made by the city.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Wes Shaw of my staff.

Sincerely,

STEVEN T. MARSHALL

Attorney General

By:

WARD BEESON, III

Chief, Opinions Section

 

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