Does a Virginia city need a three-fourths City Council vote to swap a perpetual easement on city land for a bigger one on an adjacent parcel?

Plain-English summary

Cornerstone Bank wanted to expand on a downtown Lexington site. Sitting in the middle of the relevant central intersection was Lot One, a parcel that the City of Lexington held in perpetuity as a small public space, complete with a decorative stone wall, plantings, a reproduction of the original Lexington plat, and a commemorative plaque. The Bank offered to swap: the City would release its perpetual easement on Lot One, and the Bank would grant the City a slightly larger perpetual easement on adjacent land, with the same plat and plaque moved over.

The City Attorney asked the AG whether that swap was just a routine real-estate exchange or a "sale of a park or public place" that triggers Article VII, § 9 of the Virginia Constitution and Va. Code § 15.2-2100, both of which require a supermajority (three-fourths of all members elected) vote of the City Council.

Attorney General Bob McDonnell said the swap qualifies as a sale. The constitutional and statutory protections kick in whenever the city is conveying away a right in property dedicated to public use. A perpetual easement is "tantamount to a sale," even when the consideration is another easement rather than money. So Lexington's City Council needed a three-fourths recorded vote to approve the deal.

Currency note

This opinion was issued in 2008. 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. Va. Code § 15.2-2100 has been amended since 2008.

Background and statutory framework

Article VII, § 9 of the Virginia Constitution exists to prevent permanent dedication of publicly owned property to private use, a principle the AG opinion traces through multiple prior AG opinions back to the 1980s. It imposes two distinct restrictions on cities. First, a city may not sell a park or other public place without "a recorded affirmative vote of three fourths of all members elected to the governing body." Second, any grant of a franchise, lease, or right to use city parks "or any other public property or easement of any description in a manner not permitted to the general public" is capped at forty years. Section 15.2-2100 mirrors those rules at the statutory level.

The AG opinion follows a 2000 AG opinion that treated a grant of an easement "in perpetuity" as effectively a permanent dedication of property, which in turn means it operates like a sale for purposes of the supermajority requirement. The opinion also points to Stendig Dev. Corp. v. City of Danville, which held that a city may extend the three-fourths-vote rule to any sale of city property, not just property set aside for the public's use.

The opinion's key analytical move is treating a property-for-property exchange as a sale. Under the AG's reasoning, a "sale" is the transfer of property for a price; consideration does not have to be cash. When the Bank offers replacement property as consideration, the transfer is still a sale and the constitutional supermajority requirement still applies.

What the AG concluded, point by point

The transaction is a sale. Even though Cornerstone Bank was offering land for land rather than cash, the AG treats land as "price." Black's Law Dictionary's definition of a sale (transfer of property for a price) and of a conveyance (voluntary transfer of a right or property) both fit.

Article VII, § 9 and § 15.2-2100 apply. Lot One was held by the City in perpetuity and was a public space within the meaning of the constitutional provision. The release of that easement is a conveyance of a city interest in a park or public place.

A three-fourths vote is required. The vote must be recorded, and it must be by three-fourths of "all members elected" to the Council, not three-fourths of those present at the meeting. That distinction matters in close votes when not every council member shows up.

Whether the deal still serves a public purpose is a separate question. The AG declines to second-guess Lexington's public-purpose determination. The opinion confines itself to procedure: even if the public-purpose test is satisfied, the supermajority vote is still required.

What this meant at the time

For Lexington City Council and City Attorney (as of 2008)

Going to a simple-majority vote on the Cornerstone exchange would expose the resulting transaction to invalidation. A simple-majority vote would not satisfy § 15.2-2100(A) or the Constitution. The Council needed to put the deal up for a recorded vote requiring three-fourths of all elected members.

For Cornerstone Bank and developer counsel (as of 2008)

Title insurance and lender counsel for the Bank had to confirm that the City Council vote was recorded and was three-fourths of all members elected. A loose minute book entry showing a routine majority approval would have been a defect on title.

For city attorneys in other Virginia cities and towns (as of 2008)

Anytime a private party offers to "relocate" or "reconfigure" a public easement, this opinion supports treating the transaction as a sale-equivalent for purposes of the supermajority vote. The opinion is not limited to Lexington's facts; it relies on the underlying constitutional principle that perpetual easements function like permanent dedications.

For citizens and downtown advocates (as of 2008)

The supermajority requirement is a procedural safeguard against permanent loss of public space. If a city tries to release a perpetual easement on a downtown park or plaza without a three-fourths recorded vote, the action is vulnerable to legal challenge.

Common questions

Q: Does the supermajority vote apply when the city is buying property, not selling?
A: No. Article VII, § 9 and § 15.2-2100(A) apply to sales by the city. Purchases by the city of new property generally proceed under ordinary majority rules unless the city's charter says otherwise.

Q: What about a short-term lease of public land?
A: Section 15.2-2100(B) caps the duration of franchises, leases, or rights of use of public property at forty years. Short-term commercial leases are typically not "sales" requiring the three-fourths vote, but the forty-year cap still applies to anything that approaches permanent.

Q: What if the city's charter has different voting rules?
A: The constitutional three-fourths rule is the floor. A charter may impose tougher rules, but cannot relax the constitutional minimum.

Q: Why is consideration in the form of property still a "sale"?
A: The Bank traded land for land. Under Black's Law Dictionary's definition that the AG opinion uses, "price" simply means consideration. Saying "I will give you 600 sq. ft. of land in exchange for releasing your 569 sq. ft. of land" is functionally identical to saying "I will pay you $X to release the easement and use $Y of that money to buy 600 sq. ft. of replacement land."

Q: Does this opinion mean Cornerstone's deal couldn't happen at all?
A: No. The AG opinion only addresses the procedural requirement (the three-fourths vote). If Lexington's Council voted three-fourths in favor, the deal could go forward. If it did not, the deal could not. The AG did not address whether the public-purpose substantive analysis cleared.

Citations and references

Constitution and statutes:

• Va. Const. art. VII, § 9
• Va. Code Ann. § 2.2-505
• Va. Code Ann. § 15.2-2100

Cases:

• Norton v. City of Danville, 268 Va. 402 (2004), Dillon Rule
• Arlington County v. White, 259 Va. 708 (2000), Dillon Rule reaffirmed
• Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497 (1999)
• County of Fairfax v. S. Iron Works, Inc., 242 Va. 435 (1991)
• Stendig Dev. Corp. v. City of Danville, 214 Va. 548 (1974), three-fourths-vote rule extends to all city property
• Va. Beach v. Bd. of Supvrs., 246 Va. 233 (1993), statutory construction

Prior AG opinions referenced:

• 2000 Op. Va. Att'y Gen. 44 (perpetual easement equals permanent dedication)
• 2004 Op. Va. Att'y Gen. 38; 2001 Op. Va. Att'y Gen. 45; 2000 Op. Va. Att'y Gen. 62; 1999 Op. Va. Att'y Gen. 63; 1989 Op. Va. Att'y Gen. 125 (intent of Article VII, § 9 and § 15.2-2100)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-073-Mann.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

December 1, 2008

Laurence A. Mann, Esq.
Attorney for the City of Lexington

Dear Mr. Mann:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether Article VII, § 9 of the Constitution of Virginia and § 15.2-2100 apply to a request between Cornerstone Bank and the City of Lexington to exchange property, which would reconfigure and relocate an easement held in perpetuity by the City and located within the City. You further ask whether such exchange would require the affirmative vote of three-fourths of the members elected to the City Council ("supermajority vote").

Response

It is my opinion that Article VII, § 9 of the Constitution of Virginia and § 15.2-2100 apply to an exchange of property, which would reconfigure and relocate an easement held in perpetuity by the City of Lexington on property located within the City. It further is my opinion that a supermajority vote of the City Council is necessary to approve the exchange.

Background

You advise that Cornerstone Bank has requested that the City Council for the City of Lexington (the "City") consider a relocation and reconfiguration of the easement that the City holds in perpetuity,[1] which is known as Lot One. Lot One includes a decorative stone wall, plantings, a recreation of the original plat of the City, and a commemorative plaque. You express the view that the easement is intended for public use and benefit. You also advise that the easement is a significant element of the central intersection of the City.

You advise that the general law concerning relocation of easements is well settled. If both parties agree and the party making the request picks up all relocation costs, you believe the easement may be moved. You state that the current easement is comprised of 569.75 square feet. Cornerstone Bank has offered to exchange property for Lot One that contains slightly more square footage than the current easement. The Bank has proposed to keep the plat and plaque on Main Street while moving a portion of the plantings to another area to screen the parking area, which currently is screened by the stone wall and plantings. You believe that Cornerstone presents a good argument that the reconfigured easement will continue to meet the public purpose test. You also note that the issue is one of a private benefit and requires a determination of whether the request to reconfigure and relocate the easement by an exchange of property amounts to a sale as contemplated by the Virginia Constitution and Code.[2]

Applicable Law and Discussion

Under the Dillon Rule of strict construction, municipal corporations possess and may exercise only those powers expressly granted by the General Assembly, powers necessarily or fairly implied from such express powers, and those powers that are essential and indispensable.[3]

Article VII, § 9 of the Virginia Constitution and § 15.2-2100 impose two distinct restrictions on cities. First, a city may not sell a park or other public places without "a recorded affirmative vote of three fourths of all members elected to the governing body."[4] This requirement applies to public places devoted to use by the public at large or by the municipality itself in carrying out its governmental functions.[5] Second, the grant of any franchise, lease, or right to use city parks "or any other public property or easement of any description in a manner not permitted to the general public"[6] is limited to forty years in duration.[7] Prior opinions of the Attorney General note that Article VII, § 9 seeks to prevent the permanent dedication of publicly owned property to private use.[8]

A 2000 opinion of the Attorney General (the "2000 Opinion") notes that "[a] grant of an easement 'in perpetuity' is a grant of a prescribed use of certain real property for an endless duration" and effectively results in the permanent dedication of property.[9] The 2000 Opinion concludes that the "Article VII, § 9 requirement of an affirmative vote of three fourths of the members elected to a city governing body before a city or town may sell any rights 'in and to its … parks … or other public places' and the parallel provisions of § 15.2-2100(A) are" applicable to a grant of an easement in perpetuity because the granting of an easement in perpetuity is tantamount to a sale of property.[10]

The applicable rule of statutory construction requires that words be given their ordinary meaning, given the context in which they are used in a statute.[11] A sale is "[t]he transfer of property or title for a price."[12] Furthermore, a sale of land is a "transfer of title to real estate from one person to another by a contract of sale. A transfer of real estate is often referred to as a conveyance rather than a sale."[13] Finally, a conveyance is "[t]he voluntary transfer of a right or of property."[14]

The situation you describe involves City-owned property, which is comprised of an easement in perpetuity. Cornerstone Bank seeks the release of such perpetual easement and a conveyance of the property, known as Lot One, to construct a bank building on the site for its private use. In consideration for release of the Lot One easement, Cornerstone Bank offers to grant an easement in perpetuity of property that it owns, which has a slightly greater square footage than Lot One. The Bank's property is located in the same general area as Lot One. It is my opinion that such a transaction is a transfer of property or title for a price. The price paid by Cornerstone Bank is the property it owns, which it offers to Lexington as an easement in perpetuity to replace Lot One. You also advise that the portion of Lot One being exchanged for other land owned by Cornerstone Bank, which is intended to serve the same purpose as Lot One, will involve a transfer or conveyance of land by deed. I must conclude that the transaction you describe constitutes the sale of a park or other public place within the meaning and intent of Article VII, § 9 and § 15.2-2100. Thus, an affirmative vote of three fourths of the members elected to the City Council will be required to approve the transaction.

Conclusion

Accordingly, it is my opinion that Article VII, § 9 of the Constitution of Virginia and § 15.2-2100 apply to the request to reconfigure and relocate an easement held by the City of Lexington in perpetuity on property located within the city limits. It further is my opinion that a supermajority vote of the City Council is necessary to approve the transaction.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. The term "perpetuity" means "[t]he state of continuing forever." BLACK'S LAW DICTIONARY 1177 (8th ed. 2004).

2. Section 2.2-505(B) requires that an opinion request from a city attorney "shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney's legal conclusions."

3. Norton v. City of Danville, 268 Va. 402, 408 n.3, 602 S.E.2d 126, 129 n.3 (2004); Arlington County v. White, 259 Va. 708, 712, 528 S.E.2d 706, 708 (2000); Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 613 (1999); County of Fairfax v. S. Iron Works, Inc., 242 Va. 435, 448, 410 S.E.2d 674, 682 (1991).

4. VA. CONST. art. VII, § 9; see also VA. CODE ANN. § 15.2-2100(A) (2008) (parallel statute) (providing that city may not sell park or other public places without "recorded affirmative vote of three-fourths of all the members elected to the council").

5. See 1983-1984 Op. Va. Att'y Gen. 31, 31 (interpreting Article VII, § 9 and § 15.1-307, predecessor to § 15.2-2100).

6. VA. CONST. art. VII, § 9; § 15.2-2100(B) (parallel statute).

7. See id.; see also Stendig Dev. Corp. v. City of Danville, 214 Va. 548, 551, 202 S.E.2d 871, 874 (1974) (holding that city may adopt ordinance imposing three-fourths vote limitation on resolution to sell any of its property, i.e., all property owned by city and not just property set aside for public use); 1989 Op. Va. Att'y Gen. 125 (concluding that constitutional limits are applicable to city's lease of property to state agency).

8. See Op. Va. Att'y Gen: 2004 at 38, 39; 2001 at 45, 47; 2000 at 62, 63; see also Op. Va. Att'y Gen.: 1999 at 63, 64 (stating intent of Article VII, § 9 and § 15.2-2100); 1989, supra note 7, at 126-27 (noting intent of § 15.1-307).

9. See 2000 Op. Va. Att'y Gen. 44, 46 (footnotes omitted).

10. Id. (alterations in original).

11. Va. Beach v. Bd. of Supvrs., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993).

12. BLACK'S LAW DICTIONARY, supra note 1, at 1364. "Price" means "[t]he amount of money or other consideration asked for or given in exchange for something else." Id. at 1226.

13. Id. at 1366.

14. Id. at 357.