Box 13, Folder 12, Document 108

Box 13, Folder 12, Document 108

CITY OF ATLANTA

DEPARTMENT OF LAW
1114 WILLIAM-OLIVER BUILDING
ATLANTA, GEORGIA 30303

March 24, 1967

Personal and Confidential

Mr. Jack C. Delius
General Manager of
Parks and Recreation
City Hall Annex
Atlanta, Georgia

Dear Jack:






This letter is in respons
the following questions

recent inquiry posing

"Can the City of Atla nage certain lands and
C1 a mited to, the

Before I can go\into the /opinion, I am of the opinion that
there are four basic ce ¥Anto which this situation could
fall:

(1) blic entity for a public purpose;
(2) private entity for a private purpose;

(3) a public entity for a private purpose;

and

(4) Lease to a private entity for a public purpose.

I leave it to your good judgment to determine into which of the
above categories this specific situation you make reference to
would fall.

As you know, the City of Atlanta was recently given the
power to alienate interest in parks' property. This bill,


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Mr. Jack C. Delius
3/24/67

passed during the 1967 Session of the Georgia Assembly, is known
as House Bill No. 299. I enclose herewith a copy of said House
Bill for your further perusal. Please bear in mind that this
opinion is predicated upon the Governor signing this Bill into
law, Absent the Governor's approval of this Bill, the answer

to the question posed by you is in the negative.

Let us assume for the purpose of this opinion that the
Governor shall sign this Bill into law. The general rules
applicable to this situation can be stated as follows:

(1) “As a general rule, a city may not lease a
public park to the exclusion of the right of
public erjoyment, or contrary to the purposes
of the dedication of the land. Nor may the
legislature authorize a municipality to lease
land dedicated as a public park, square or
common. So also, legislative power to autho-
rize a city to lease a part of a park, where
the public right to the free use of the land
leased is not prevented, has been recognized.
And a lease of state lands devoted to park
purposes may be sustained as consistent with
the dedication of the land to public use.

The authority of a municipality to enter into
a valid lease of park lands is sometimes ex-
pressly authorized by statute. The validity
of a lease by the city has been sustained
where it will result in a furtherance of the
public use. The validity of a lease by the
inhabitants of a town of ‘common land' not
granted into private ownership nor needed for
public purposes has also been sustained.

"As regards the income from a lease of lands
acquired for a public park, the rule has
been declared that such income must be de-
voted to public uses."

39 Am Jur 810, 811.
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Mr. Jack C. Delius

3/24/67

(2)

(3)

“When land is dedicated for a special and
limited use, use for any other purpose is
unauthorized. Whether a particular use
amounts to a diversion from that for which
the dedication was made depends on the cir-
cumstances of the dedication and the inten-
tion of the dedicator, and is therefore
largely a question of fact. In any case,
however, such use is authorized as is
fairly within the terms of the dedication
and reasonably serves to fit the property
for enjoyment by the public in the manner
contemplated. The dedicator is presumed to
have intended the property to be used by
the public, within the limitations of the
dedication, in such way as will be most
convenient and comfortable and according to
not only the properties and usages known at
the time of the dedication, but also to
those justified by lapse of time and change
of conditions."

23 Am Jur’57, 58.

"The municipal use and control of public
parks may be subject to restrictions con-
tained in the grant of the land therefor.
Where a donation or dedication of a tract
of land is made to a municipal corporation
solely for a public park, the mmicipality
cannot use it for purposes inconsistent
with the purposes of such grant."

Vol. 10, McQuillin on The Law of
Municipal Corporations, 172.

The Georgia law with respect to the general problem com-

ports with the general law and can be summarized as follows:
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Mr. Jack C. Delius
3/24/67

“Property dedicated to a public use may by the
dedicatee be put to ali customary uses within

the definition of the use. Any use which is ine
consistent, or which substantially and materially
interferes, with the use of the property for the
particular purpose to which it was dedicated,
will constitute a misuser or diversion; and while
under the general rule a misuser or diversion of
the property for any purpose other than the one
designated will not work a reversion of the
property freed from the easement to the owner of
the dominant fee, equity will, on the petition

of proper parties, enjoin such misuser or diver-
sion.

Brown v. City of East Point,
148 Ga. 85, hn, 3.



Now to answer the specific question posed by you.

Under the Bill itself, we can, for a period not to exceed
four years and for a valuable consideration, lease the subject
property with the following reservations:

(1) We can lease to a public entity for public use
not inconsistent with the original dedication;

(2) We cannot lease to a private entity for a
private use because of the inconsistency;

(3) We cannot lease to a public entity for a
private use because of the inconsistency;
and

(4) We can lease to a private entity for a public
use not inconsistent with the dedication.

The dedication in this instance is that which Mr. Gress
originally set forth in the deed of gift whereby. the Cyclorama
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Mr. Jack C. Delius
3/24/67

was to be opened to the general public.

Also, this opinion presupposes that should the lease be
made to a public entity, the public entity would be authorized
by Law to enter into a lease such as you may, from time to time,
envisage.

Trusting that this answer your inquiry, I remain

Very truly yours,

7s

TFC: jc Thomas F. Choyce
Encl. 1

cc: Hon. Ivan Allen, Jr., Mayor
City of Atlanta
City Hall
Atlanta, Georgia 30303

Mr. R. Earl Landers ~
Administrative Assistant
City Hall

Atlanta, Georgia 30303