County Bd. of Arlington County v. Brown

329 S.E.2d 468, 229 Va. 341, 1985 Va. LEXIS 211
CourtSupreme Court of Virginia
DecidedApril 26, 1985
DocketRecord 841641
StatusPublished
Cited by13 cases

This text of 329 S.E.2d 468 (County Bd. of Arlington County v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County Bd. of Arlington County v. Brown, 329 S.E.2d 468, 229 Va. 341, 1985 Va. LEXIS 211 (Va. 1985).

Opinions

COMPTON, J.,

delivered the opinion of the Court.

In this mandamus proceeding, the dispositive question is whether a county has the power to lease to a private developer publicly owned land currently used for public purposes.

The facts are undisputed. Arlington County owns 6.4 acres of undeveloped land adjacent to its existing courthouse, jail, and County office complex. Most of the land was acquired over the years for public uses in connection with the courthouse. The entire 6.4 acres presently is used for parking of County-owned vehicles and vehicles of County employees.

In 1979, the County inaugurated a study to determine the proper future use of this land. The County desired the parcel to be developed to accommodate intensive commercial and residential development while at the same time providing maximum return to the County treasury for the use of the land. The County determined that a mixture of high density office, hotel, retail, and residential uses would be appropriate, consistent with both the comprehensive plan and the zoning ordinance.

During the next several years, County officials, working with representatives of the public, formulated plans for possible development of the site. Finally, and after full citizen participation, a selection panel recommended in October of 1982 that a proposal from Charles E. Smith Companies/Artery Organization, a private developer, be accepted. The Smith-Artery interests have extensive experience in the construction of apartments, condominiums, ho[343]*343tels, shopping centers, and garages in the Northern Virginia and Washington, D.C. area.

Negotiations with the developer began in December 1982. The County staff was concerned with the future location of County office space, whether to sell or lease the subject parcel for the development, and the amount of remuneration the County should receive for the interest to be conveyed. A strong preference emerged for leasing much of the land, especially the land devoted to office use. One of the main reasons for the preference was the intention to keep the property under public control to assure its availability for long-term public use.

In July of 1983, the County completed a study of future space requirements for its governmental operations in the courthouse area. Because this study revealed a need for new office space near the courthouse, the negotiators had to consider a requirement for increased square footage for County office space and choose a location for the space. Following advice of consultants, and with continuous citizen participation, the negotiators presented a financial arrangement to the County Board with which Smith-Artery would agree. This proposal was detailed in a letter of intent, which was accepted by the County Board in August of 1984.

A portion of the transaction contemplates a sale of land for the residential and hotel portion of the development. Pertinent to this dispute, however, is that part of the proposal dealing with lease of office space.

According to the letter of intent, the land for the office buildings, and related retail space, will be let to Smith-Artery on a 75-year ground lease with a base rent and a percentage rent. At the end of the term, the improvements will revert to the County free of encumbrances. The County will receive as compensation for the land lease 50 percent of the net profit of the rental of the office space and retail space. The County will subordinate its right to receive payment of the land rent to the lien of the deed of trust which will secure Smith-Artery’s construction loan and permanent loan for the improvements; the County will have no other obligation with respect to these loans. The County will have the right to cure any default by Smith-Artery and to terminate the land lease in the event of default. It is not disputed that the lease arrangement is financially advantageous to the County.

In addition, the County, as lessee, will lease no less than 140,000 square feet in the first office building to be constructed [344]*344for an initial period of 15 years with multiple 10-year renewal periods. The lease will not be subject to “annual appropriation.” Rent will be due each month and will be for the prior month’s occupancy. The County has the right to increase the amount of space it leases during the initial period of occupancy to 167,000 square feet. The County will receive a favorable rate for rental of the office space and a period of rent-free occupancy.

Following approval of the proposal, the County Board directed the County Manager to sign the letter of intent on behalf of the Board and to commence preparations to complete the transaction. The Manager refused to follow the Board’s orders, believing certain questions should be determined judicially before the county proceeded further.

The Board filed this proceeding in October of 1984 against the Manager. The Board petitions this Court to issue a writ of mandamus which directs the Manager, acting in a ministerial capacity, to sign the letter of intent on behalf of the Board, to advertise the necessary public hearing, and to begin preparing the appropriate legal documents to carry out the provisions of the letter of intent. Responding, the Manager denies he has the duty or authority to carry out the Board’s orders with regard to the proposed lease and asks that the Board’s petition be denied.

Even though serious constitutional issues regarding the County’s ability to lend its credit and to contract debt, Va. Const, art. X, § 10 and art. VII, § 10, are raised by the proposal, we do not reach those questions in this proceeding. Rather, the threshold issue raised by the County Manager is dispositive of the case. The Manager contends that the applicable statutes contain no express grant of power for the County to lease this property under these circumstances and that no such power can be fairly implied from the powers expressly conferred. We agree.

Virginia follows Dillon’s Rule of strict construction and its corollary. The powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication. Commonwealth v. County Board of Arlington County, 217 Va. 558, 573-74, 232 S.E.2d 30, 40-41 (1977); Board of Supervisors of Fairfax County v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975); see Cupp v. Board of Supervisors of Fairfax County, 227 Va. 580, 594, 318 S.E.2d 407, 414 (1984); Tabler v. Board of Supervisors of Fairfax County, 221 Va. 200, 202, 269 S.E.2d 358, 359 (1980).

[345]*345The County Board relies on Code § 15.1-261.1 as one source of its power to lease the subject land. That statute provides, in pertinent part:

“The governing body of any county, in its discretion, may lease to any responsible person, firm or corporation any unused lands owned or held by such county for any lawful purpose provided such governing body shall first hold a public hearing ....

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County Bd. of Arlington County v. Brown
329 S.E.2d 468 (Supreme Court of Virginia, 1985)

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Bluebook (online)
329 S.E.2d 468, 229 Va. 341, 1985 Va. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-bd-of-arlington-county-v-brown-va-1985.