Can a Florida county lease its public airport to a private operator for more than 30 years?

Plain-English summary

Hendry County wanted to lease its airport to a private party as part of a federal airport-privatization program. The county attorney asked whether section 125.35(1)(b)1., Florida Statutes, let the county negotiate a lease for a term longer than 30 years, even though section 332.08(3) sets shorter limits on airport leases.

Attorney General Pam Bondi answered yes. Section 125.35(1)(b) expressly authorizes a board of county commissioners to negotiate the lease of an airport or seaport facility "under such terms and conditions as negotiated by the board," without the competitive-bid and term limits that apply to ordinary county property sales. The AG had read that provision in earlier opinions to allow airport leases for a term the commission finds beneficial to the county, including terms over 30 years.

On the apparent conflict with section 332.08, the AG applied the rule that the more recent and more specific statute governs. Section 125.35 deals specifically with counties leasing airport facilities and was enacted and amended after section 332.08, so it controls when a county leases its airport.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Is there a 30-year cap on how long a Florida county can lease its airport?
A: Not under the statute the AG applied. Section 125.35(1)(b)1. lets a county negotiate an airport or seaport lease for whatever term and conditions the commission decides are in the county's best interest. The opinion concluded Hendry County could lease for a term over 30 years.

Q: What about section 332.08, which sets limits on airport leases?
A: Section 332.08 addresses airport leases by municipalities. The AG concluded that section 125.35, the more recent and more specific statute on county airport leases, applies when a county is doing the leasing, and it does not impose the same limits.

Q: Did the county have to use competitive bidding?
A: For a negotiated airport lease under section 125.35(1)(b)1., the AG's earlier opinions allowed the commission to negotiate without the competitive-bid process that governs ordinary sales of county property under section 125.35(1)(a).

Q: Did this opinion approve selling the airport outright?
A: No. A separate 2011 opinion (AGO 11-11) had addressed selling the airport, subject to competitive bidding. This opinion was about leasing, and the AG noted the federal government had not approved a sale or waived a reversionary clause in the deed.

Background and statutory framework

Section 125.35(1)(a), Florida Statutes, generally requires a county to sell or lease property to the highest and best bidder. Paragraph (b) carves out exceptions, including authority to "[n]egotiate the lease of an airport or seaport facility" under negotiated terms. The opinion built on prior AG opinions reading that paragraph to permit long-term airport leases without competitive bidding.

The statutory-conflict analysis rested on timing and specificity. Section 332.08 was created in 1945 and section 125.35 in 1947, and section 125.35 was later amended (in 1999) to clarify local authority to lease airport property. Citing Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992), the AG applied the rule that the later and more specific expression prevails. The privatization effort itself ran through the federal Airport Privatization Pilot Program under 49 U.S.C. s. 47134.

Citations and references

Statutes:

• § 125.35, Fla. Stat. (Sale and lease of county property)
• § 332.08, Fla. Stat. (Municipal airport leases)
• § 332.01, Fla. Stat. (Definitions)
• 49 U.S.C. § 47134 (Airport Privatization Pilot Program)

Cases:

• Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992), later and more specific statute prevails

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/counties-lease-of-airport-property
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1640

Original opinion text

Mr. Mark F. Lapp

County Attorney

Hendry County

Post Office Box 2340

LaBelle, Florida 33975-2340

RE: AIRPORTS – COUNTIES – LEASE OF COUNTY PROPERTY – authority of county to lease airport property for term in excess of 30 years. s. 125.35, Fla. Stat.

Dear Mr. Lapp:

You ask substantially the following question:

Pursuant to section 125.35(1)(b)1., Florida Statutes, may the county negotiate a lease of its airport property to a private party for use as a public airport for a term in excess of 30 years, notwithstanding section 332.08(3), Florida Statutes?

In sum:

Section 125.35(1)(b)1., Florida Statutes, authorizes the county to negotiate a lease of its airport property to a private party for a length of term and under such conditions the board of county commissioners determines is in the best interest of the county.

You state that Hendry County has filed a preliminary application to participate in a federal airport privatization program, but that no final approval has been given.[1] In October 2010, the Federal Aviation Authority (FAA) accepted Hendry County’s preliminary application into the Airport Privatization Pilot Program.[2] It is your understanding that the FAA will entertain a final application when it is filed by the county, but approval is not certain. The county questions, however, whether it may negotiate the lease of airport property for a term in excess of 30 years for the privatization of its airport.

Section 125.35(1), Florida Statutes, states:

"(a) The board of county commissioners is expressly authorized to sell and convey any real or personal property, and to lease real property, belonging to the county, whenever the board determines that it is to the best interest of the county to do so, to the highest and best bidder for the particular use the board deems to be the highest and best, for such length of term and such conditions as the governing body may in its discretion determine.

(b) Notwithstanding the provisions of paragraph (a), the board of county commissioners is expressly authorized to:

1. Negotiate the lease of an airport or seaport facility;

2. Modify or extend an existing lease of real property for an additional term not to exceed 25 years, where the improved value of the lease has an appraised value in excess of $20 million; or

3. Lease a professional sports franchise facility financed by revenues received pursuant to s. 125.0104 or s. 212.20;

under such terms and conditions as negotiated by the board." (e.s.)

Section 125.35(1)(b)1., Florida Statutes, has been interpreted by this office to allow a board of county commissioners to lease county airport property for a term determined by the commission to be in the best interest of the county.[3] While section 332.08, Florida Statutes,[4] makes provisions for the lease of airport property by municipalities,[5] this office has concluded that the more recent and specific provisions in section 125.35, Florida Statutes, dealing particularly with the power of counties to lease airport facilities, apply when a county is contemplating the lease of such property.[6]

Thus, pursuant to section 125.35(1)(b)1., Florida Statutes, Hendry County is authorized to negotiate the lease of its airport property to a private party for a term in excess of 30 years and under such conditions as the board of county commissioners determines within its discretion is in the best interest of the county.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] In Op. Att’y Gen. Fla. 11-11 (2011), this office concluded that Hendry County was authorized to sell the county airport to a private entity, but such sale would be subject to the competitive bidding process in s. 125.35, Fla. Stat. You have clarified that the federal government has not agreed to the sale, nor has it waived operation of a reversionary clause in the deed to the county. You do not ask, nor does this office express any comment on whether this clarification would affect the conclusion reached in Op. Att’y Gen. Fla. 11-11 (2011).

[2] See 49 U.S.C. s. 47134.

[3] See Ops. Att’y Gen. Fla. 99-35 (1999) (board of county commissioners may negotiate lease for an airport facility without competitive bid for such length of term and under such conditions as the governing body in its discretion determines to be beneficial to the county), and 94-96 (1994) (section 125.35[1][a], Fla. Stat., authorizes the county to grant a lease of airport property to a private party for a term of more than 30 years).

[4] Section 332.08(3), Fla. Stat.

[5] Section 332.01(1), Fla. Stat., defines "[m]unicipality" for purposes of Ch. 332, Fla. Stat., to include "any county, city, village, or town of this state."

[6] See Op. Att’y Gen. Fla. 94-96 (1994). And see s. 8, Ch. 22846, Gen. Laws of Fla. (1945), creating s. 332.08, Fla. Stat., and s. 1, Ch. 23829, Gen. Laws of Fla. (1947), creating s. 125.35, Fla. Stat. While s. 125.35, Fla. Stat., has been subsequently amended by Ch. 99-190, Laws of Fla., to clarify local governments’ authority to lease airport property since the 1994 opinion was issued, such amendment does not alter the county’s authority; compare to the latest amendment to section 332.08, Fla. Stat., which occurred in s. 231, Ch. 71-136, Laws of Fla., making violation of county-imposed airport regulations a misdemeanor of the second degree, punishable as provided in ss. 775.082 or 775.083, Fla. Stat. See also Florida Association of Counties, Inc. v. Department of Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992) (general rule is that in cases of conflicting statutory provisions, latter expression will prevail over former).