Does Virginia's three-fourths-vote rule for selling city property apply when a city grants the state a permanent easement to build a public monument?

Plain-English summary

The City of Richmond planned to convey property on Brown's Island (a public park) to the Commonwealth of Virginia for construction of the Emancipation Proclamation and Freedom Monument. The state also needed a permanent easement across part of the park to access the monument for construction, repair, and maintenance. Senator Jennifer McClellan asked whether either of the limits in Article VII, § 9 of the Virginia Constitution (and the parallel Code § 15.2-2100) applied: the rule requiring a three-fourths vote of city council to sell public property, and the rule capping easements at 40 years with competitive bidding for any easement longer than five years.

The Attorney General said neither applied. Article VII, § 9 was written to stop city councils from giving away public property at fire-sale prices to private interests, not to block transfers between government bodies for continuing public use. Earlier opinions had already concluded that a city's conveyance to a state agency for a public road did not trigger the supermajority rule because the property stayed in public use. The same logic worked for the monument easement. As for the term-limit and competitive-bid requirement, prior opinions had concluded that a permanent easement is the practical equivalent of a fee-simple sale, so the term-limit rule does not apply to it at all. In short, only a simple majority vote of city council was needed, and no competitive bidding.

Currency note

This opinion was issued in 2017. 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.

Background and statutory framework

Article VII, § 9 of the Virginia Constitution puts two different brakes on a city or town's ability to give up public property. The first is a supermajority rule: any sale of a city's rights in its waterfront, public landings, streets, parks, bridges, public works, or other public places requires an affirmative vote of three-fourths of all members elected to the governing body. The second is a term-limit and competitive-bid rule: no franchise, lease, or right to use such public property in a manner not permitted to the general public can be granted for longer than 40 years, and any grant longer than 5 years must go through competitive bidding (except for trunk railways). Code § 15.2-2100 mirrors these requirements by statute.

Professor A.E. Dick Howard's commentaries trace the history of the section to the late-19th-century era when municipal councils sometimes handed off valuable public property to railroads, gas works, and electric utilities for far less than its worth. The drafters wanted to prevent that. The 2004 AG opinion involving Charlottesville's conveyance of park land to VDOT for highway construction read the supermajority requirement against that history: when public property is moving from one public use to another, with no private business getting a windfall, the constitutional protection is not implicated.

A permanent easement gets treated differently from a short-term lease. Prior AG opinions in 2000 and 2008 concluded that a permanent easement is "tantamount to a sale of municipal property" because it permanently dedicates the public property. Because it is functionally a sale, the term-limit and competitive-bid rule (which applies to time-limited grants) does not apply. The supermajority rule might apply to such a sale, but as explained above, even that rule drops out when the transfer is between government bodies for continued public use.

Common questions

What is Article VII, § 9 actually trying to stop?
According to the AG, it targets the historical abuse of city councils selling parks, waterfront property, and utilities to private companies for less than their worth. The drafters wanted to prevent unscrupulous councils from giving away public property to railroads and utilities for private benefit. It is not aimed at routine transfers between governmental bodies for public purposes.

Why doesn't the supermajority vote apply when a city sells park land to the state?
The AG concluded that the constitutional protection assumes the property is going to a private buyer. When a city transfers property to the state, and the state will continue using the property for the public, there is no risk of the abuse the drafters wanted to prevent. The 2004 Charlottesville opinion about a sale to VDOT for a public road reached the same result.

Is a permanent easement the same as a sale for Article VII, § 9 purposes?
The AG treated it that way. Prior opinions concluded that a permanent easement "effectively results in a permanent dedication of the public property" and is "tantamount to a sale." That means the rules about time-limited franchises and competitive bids do not apply, because those rules govern grants that come back to the city.

What kind of vote did Richmond City Council need?
Just a simple majority. The supermajority rule applies only when the constitutional protection is implicated, and the AG concluded it was not implicated by a permanent easement to the Commonwealth for monument construction in a public park.

Did Richmond have to put the easement out for competitive bids?
No. The competitive-bid requirement attaches to grants longer than 5 years for limited rights, not to permanent dedications of property to another public body.

Citations

• Va. Const. art. VII, § 9
• Va. Code § 15.2-2100
• 2004 Op. Va. Att'y Gen. 38 (Charlottesville park land to VDOT for highway)
• 2000 Op. Va. Att'y Gen. 44 (permanent easement treated as fee-simple equivalent)
• 2008 Op. Va. Att'y Gen. 30
• 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia (1974)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-013SenMcClellan-city-easement-to-state-ISSUED.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 13, 2017

The Honorable Jennifer L. McClellan
Member, Senate of Virginia
Post Office Box 396
Richmond, Virginia 23218

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

Issue Presented
You ask whether Article VII, § 9 of the Constitution of Virginia and § 15.2-2100 of the Code of
Virginia prohibit the City of Richmond from granting a permanent easement to the Commonwealth of
Virginia. The easement would be for the purpose of facilitating state construction, repair, and
maintenance of a monument to the Emancipation Proclamation.

Background
You relate that the City of Richmond (the "City") has agreed to convey fee simple title to certain
real estate on Brown's Island, a public park, to the Commonwealth of Virginia (the "Commonwealth").
A commission of the General Assembly intends to construct the Emancipation Proclamation and Freedom
Monument on the property. The only route by which the Commonwealth will have access to the
property, for the purposes of constructing, repairing, and maintaining the Freedom Monument, will be
across a portion of the public park. The Commonwealth seeks a permanent easement authorizing such
access.
The question presented is whether constitutional and statutory restrictions on cities and towns
conveying public property would apply to the proposed easement.

Applicable Law and Discussion
The Constitution of Virginia, in Article VII, § 9, limits the ability of cities and towns to convey
publicly owned real property:

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves,
docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric
works shall be sold except by an ordinance or resolution passed by a recorded affirmative
vote of three-fourths of all members elected to the governing body.

No franchise, lease, or right of any kind to use any such public property or any other public
property or easement of any description in a manner not permitted to the general public shall
be granted for a longer period than forty years [...]. Before granting any such franchise or
privilege for a term in excess of five years, except for a trunk railway, the city or town shall,
after due advertisement, publicly receive bids therefor.[1]

Article VII, § 9 contains two related but different restrictions. First, a supermajority vote is
required to convey a city or town's rights in and to its "public places" (the "supermajority requirement").
Second, no right to use public property in a manner not permitted to the general public shall be for a term
longer than forty years, and the grant of any such right for longer than five years must be by competitive
bids (the "term-limit and competitive-bid requirement"). Your inquiry necessarily invokes examining
both of these requirements.

I. The supermajority requirement

Professor A. E. Dick Howard, the former Executive Director of the Virginia Commission on
Constitutional Revision, explains that the context of these restrictions was a period in our history when
public property was sometimes conveyed to private, for-profit interests, to the detriment of the public.[2]
The restrictions reflect a desire to protect against such abuses:

Like the Corporations article, which came into [the] Constitution as a result of a fear of
legislative willingness to knuckle under to special interests, [the restrictions] reflected a
belief that municipal councils could not be counted on faithfully to safeguard the public
interest when dealing with corporations and utilities. The malaise of American cities at
the turn of the century is well known. [The restrictions] seem[] to have arisen out of a
desire to keep unscrupulous municipal councils from disposing of property at a fraction
of its worth, as had happened in certain cities.[3]

A prior opinion of this Office, relying on Professor Howard's reasoning, concluded that the
supermajority requirement did not apply when Charlottesville proposed to convey park land to the
Virginia Department of Transportation for construction of a highway that would later be deeded back to
the City.[4] The reason for this conclusion was that the City's conveyance to a state agency would be "for
the benefit of, and use by, the general public":

In the specific facts you provide, there cannot be any suggestion that the city council is
disposing of valuable public property at a fraction of its worth for private benefit, or that
some private business interests are being favored over the public interests in the specific
property of the city's public park property. Clearly, the city simply is changing the use of
its park property to city highway property. Both of these uses are for the benefit of, and
use by, the general public. Although you suggest that council members have argued that
the conversion of the city property from park use to highway use will not benefit the
public, I cannot conclude that the provisions of Article VII, § 9 ... are implicated in any
manner in this specific factual context. Accordingly, I must conclude that an affirmative
vote of three fourths of all members elected to the Charlottesville city council is not
required for passage of an ordinance authorizing the sale of city park property to the
Commonwealth for construction of a public road that will ultimately be deeded back to the
city.[5]

II. The Term-Limit and Competitive-Bid Requirement

The term-limit and competitive-bid requirement applies when a proposed grant involves the right
to use public property for a term of years in a manner not permitted to the general public. When it
applies, no easement may be granted for longer than forty years, and an easement may not be granted for
a term longer than five years without advertisement and competitive bids.
The facts you have presented involve the grant of a permanent easement by the City of Richmond
to the Commonwealth. Prior opinions of this Office have reached two conclusions that are directly
relevant to the term-limit and competitive-bid requirement.

First, the conveyance of a permanent easement in the facts you present is the equivalent of
conveying fee simple title for purposes of Article VII, § 9: it "effectively results in a permanent
dedication of the public property involved" that is "tantamount to a sale of municipal property."[6]

Second, because the permanent easement is to be treated as a fee simple conveyance for the
purposes of the constitutional provision, the supermajority requirement may apply, but the term-limit and
competitive-bid requirement does not: when a permanent easement is conveyed, "the provisions of
Article VII, § 9, relating to the recorded three-fourths affirmative vote requirement for the sale of
municipal property" may "apply to the grant in issue."[7] As previously discussed, however, not even that
limitation applies to the City's proposed conveyance of the permanent easement in question here, as the
grant is to the Commonwealth in furtherance of continued public use.

In summary, under the facts you have presented, where a permanent easement would be conveyed
from a city to the Commonwealth for a manifestly public purpose, namely construction, maintenance, and
repair of a public monument on public property, neither the supermajority-vote requirement nor the term-limit and bidding requirement for conveyances of municipal property imposed by Article VII, § 9 of the
Virginia Constitution and § 15.2-2100 of the Code of Virginia apply.

Conclusion

For the foregoing reasons, it is my opinion that the City of Richmond's proposed conveyance to
the Commonwealth of a permanent easement for the purpose of construction, maintenance, and repair of
the Emancipation Proclamation and Freedom Monument is permitted; only a simple majority vote of City
Council is required; and competitive bids are not required.
With kindest regards, I am
Very truly yours,

Mark R. Herring
Attorney General

[1] Va. CONST. art. VII, § 9 (quoted here in relevant part). Restrictions that parallel these are also imposed by statute. See VA. CODE ANN. § 15.2-2100 (2012). Any references herein to Article VII, § 9 shall also apply to this statute, and vice versa.

[2] See 2 A. E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 854-55 (1974).

[3] Id. at 854 (citations omitted). Prior opinions of the Attorney General note that Article VII, § 9 seeks to prevent the permanent dedication of publicly owned property to private use, see 2008 Op. Va. Att'y Gen. 30, 32; 1999 Op. Va. Att'y Gen. 63, 64; 1989 Op. Va. Att'y Gen. 125, 126-27; and further state that the constitutional provision "attempts to ensure that private business interests are not favored over the public interests in a city or town's public property," 2001 Op. Va. Att'y Gen. 45, 47; 2000 Op. Va. Att'y Gen. 44, 45; cf. 1990 Op. Va. Att'y Gen. 43, 44.

[4] 2004 Op. Va. Att'y Gen. 38, 38-42.

[5] Id. at 41-42 (emphasis added); see also generally 10 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 28.44 (3d ed. 1981) ("[A] transfer of municipal property to another public agency is not required to be made in strict compliance with statutes designed to regulate transfers generally of municipal property, or, as the rule is sometimes phrased, the statutes are not applicable to transfers among agencies representing the common interest, i.e., the public.").

[6] 2000 Op. Va. Att'y Gen. 44, 46; see also 2008 Op. Va. Att'y Gen. 30, 32.

[7] See 2000 Op. Va. Att'y Gen. 44, 46.