Can a West Virginia county commission buy a building it currently leases for its 911 center, and then lease part of the building to a private for-profit business?
Plain-English summary
Grant County's 911 center sits in a building leased from the county's Development Authority. The county commission was thinking about buying the building outright, then leasing part of it to a private for-profit company (presumably to recoup some of the purchase cost). The prosecutor asked: is the purchase legal, and is the for-profit lease legal?
The AG split the answer cleanly:
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Buying the building is allowed. West Virginia gives county commissions broad express power to buy property for public purposes (W. Va. Code §§ 7-3-2, 7-3-5, 7-3-7) and that power is "liberally construed" under § 7-3-12. On top of that, the implied-powers doctrine adds a second layer: § 24-6-4 lets a county commission establish an emergency telephone system, and you cannot run a 911 center without a building. The fact that the building is currently leased doesn't change anything: deciding whether to convert a lease into ownership is exactly the kind of decision the legislature trusts the commission to make.
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Leasing part of the building to a for-profit business is not allowed. County commission leasing power is narrowly drawn. § 7-1-3k lets a commission lease to nonprofit organizations for specified purposes. § 7-1-3hh lets a commission lease to the federal government, the state, or state agencies for a public purpose. That is the entire menu. A lease to a private for-profit company doesn't fit either category, and the implied-powers doctrine won't stretch to fill the gap.
This pattern (broad authority to buy public property, narrow authority to lease it out) shows up repeatedly in West Virginia AG opinions. The AG cites its own 2018 and 2014 letter opinions reaching the same conclusion in different fact patterns.
What this means for you
If you sit on a county commission considering a purchase like this
You can buy the building. The express grants in §§ 7-3-2, 7-3-5, and 7-3-7 are about as broad as they get, with § 7-3-12 telling you (and any reviewing court) to read them generously. Keatley v. Summers County Court calls commission discretion in real-estate purchasing "without limitation." If your purchase serves a public purpose (here: housing the 911 center), the legal question is essentially settled.
What you should do before closing:
- Document the public purpose. A simple resolution explaining that the building is being acquired to house the 911 center, with reference to § 24-6-4, is enough.
- Consider how you will fund the purchase. § 7-3-5 lets you contract with a bank or financial institution; you are not limited to cash on hand.
- Confirm any encumbrances on the property (existing leases, easements, mortgages) and how they will be handled at closing.
If you were planning to recoup costs by leasing part of the building to a for-profit tenant, stop. That arrangement does not fit the statutory leasing categories and would be vulnerable to challenge. Look for an alternative: lease to a nonprofit, lease to a state agency, or simply use the entire building for county functions and absorb the carrying cost.
If you are a county prosecutor advising on this
The two leasing categories are the entire authorized set:
- § 7-1-3k: lease "county-owned buildings, lands, and other properties" to "nonprofit organizations" for enumerated purposes.
- § 7-1-3hh: lease "any of [the commission's] real or personal property" to the federal government or "to the state or any agency or instrumentality thereof," for "a public purpose."
A lease to a private for-profit tenant is outside both. The opinion uses the canon "express mention of one thing implies the exclusion of another" (Manchin v. Dunfee), reinforced by McAllister v. Nelson's rule: "If any reasonable doubt exists as to whether [a county commission] has a power, the power must be denied."
Watch for one variant the opinion specifically calls out: county building commissions (a different statutory body from county commissions) have broader leasing power. The 2024 Sundale Nursing Home opinion (cited in the body) discusses that. If a county wants to engineer a structure where a building commission holds the asset and leases more flexibly, that is a separate analysis. But pure county-commission ownership cannot ship the for-profit lease.
If you operate or oversee a 911 center
Practically, this opinion is good news. It confirms that the county can own the building you operate from, with all the planning and capital-improvement freedom that ownership brings. If your operator was nervous about long-term lease stability, the path to ownership is open. The opinion's express analysis is short because the express grants in Chapter 7, Article 3 are so broad; the longer paragraphs are mostly belt-and-suspenders.
If you are a private business interested in occupying part of a county-owned building
This opinion blocks your direct lease from the county. Two possible paths remain: (1) the county leases to a nonprofit organization that then sub-arranges with you, but the AG would scrutinize that as a workaround, or (2) the building is held by a county building commission rather than a county commission. The legislature could also amend § 7-1-3 by adding for-profit leases to the list, but that is a future-state policy fix, not a current-law option.
Common questions
Q: The county already runs the 911 center under a lease. Why does buying need any extra justification?
A: Buying real estate is a different power from leasing it. The lease was authorized by § 24-6-4's general establish-and-operate-a-911-system power. The purchase is authorized by §§ 7-3-2, 7-3-5, 7-3-7. Both are valid; both rest on slightly different statutory hooks. The opinion stitches them together to confirm the conversion from lease to ownership is straightforwardly legal.
Q: Could the commission buy the whole building, fence off the part it doesn't need, and just leave it empty?
A: That is allowed. There's no statutory rule that says every square foot of county-owned property must be occupied. But Keatley v. Summers County Court does limit a commission's authority to buy land "simply with a view of making a profit by resale of a portion thereof." Buying excess space with the intent to flip it would be problematic. Buying excess space because the public purpose justifies the whole acquisition (e.g., a single building you can't subdivide cleanly) is fine.
Q: What about leasing to a quasi-public organization like a regional development district?
A: Depends on the entity's legal status. § 7-1-3hh covers the federal government, the state of West Virginia, and "any agency or instrumentality thereof." A regional development district may or may not qualify as a state instrumentality; that turns on its enabling statute. § 7-1-3k covers nonprofits, so a 501(c)(3) regional organization could be a permissible lessee for the limited purposes the statute lists.
Q: The Development Authority that currently leases the building to the county is a public entity. Could the county lease back to the Development Authority?
A: That fact pattern is essentially the inverse of this one and is not directly addressed. § 7-1-3hh lets a commission lease to the state or its instrumentalities for a public purpose, and a county Development Authority is typically a public body. The lease-back may be permissible if structured around § 7-1-3hh, but the opinion does not analyze that scenario, so confirm with counsel before relying on it.
Q: What about a mixed-use building where the commission leases some space to a nonprofit and some space to a for-profit?
A: The for-profit portion is the problem. Even if the nonprofit lease is fine under § 7-1-3k, the for-profit portion still has no statutory home. The opinion is clear that county commissions can lease only in the two situations the legislature listed.
Q: Does this also apply to municipal (city) governments?
A: No, this opinion is specifically about county commissions and the statutes that govern them. Municipalities have a different statutory regime (W. Va. Code Chapter 8). They may have broader or narrower leasing authority depending on their charter and the municipal-government statutes; that requires a separate analysis.
Background and statutory framework
West Virginia organizes county-commission powers under the framework established by W. Va. Const. art. IX, § 11 and Chapter 7 of the Code. The opinion's analysis turns on two patterns:
Acquisition is broad.
- § 7-3-2: commissions "may, by purchase or otherwise, acquire as much land as may be requisite or desirable for county purposes."
- § 7-3-5: commissions may "make or enter into a contract ... for the erection, construction, equipment, leasing, and renting of a courthouse, hospital, other public buildings."
- § 7-3-7: commissions are "authorized and authorized to acquire real estate for, construct, equip, furnish and maintain a courthouse, hospital or other public buildings or jail."
- § 7-3-12: these powers are to be "liberally construed."
The Supreme Court of Appeals' century-old framing in Keatley v. Summers County Court is that commissions have "discretion ... without limitation" in real-estate acquisition for public purposes.
Leasing out is narrow.
- § 7-1-3k: a commission "may lease county-owned buildings, lands, and other properties" to "nonprofit organizations" for specified purposes.
- § 7-1-3hh: a commission may lease "any of [its] real or personal property" to the federal government or to the state of West Virginia or its agencies, "for a public purpose."
The opinion combines two interpretive moves to lock down the limits:
- Expressio unius (Manchin v. Dunfee): when the legislature lists permitted lessees, it impliedly excludes everyone else.
- The McAllister v. Nelson rule: "If any reasonable doubt exists as to whether [a county commission] has a power, the power must be denied."
The implied-powers doctrine that authorizes the purchase has a definite ceiling, drawn from State ex rel. W. Va. Parkways Auth. v. Barr: "where a power is expressly conferred, a county commission can only act in the mode prescribed." Because the legislature expressly enumerated permissible leases, implied power cannot expand that list. The expression of two specific lessee categories implies the exclusion of all others.
The 911-center analysis layers on the implied-powers doctrine from State ex rel. County Court v. Arthur and § 24-6-4. § 24-6-2 defines a 911 "answering point" as "a facility," and § 24-6-5(3) requires the facility to be "operated constantly." Without a building, the legislature's command cannot be carried out. So the power to operate a 911 center implies the power to acquire a building for that purpose, even setting aside the express grants in Chapter 7.
The opinion's prior-letter precedents are useful to flag because they collectively map out the same rule in different settings:
- 2018 Letter, 2018 WL 3390019: a county commission may not lease to a "private, for-profit business" even with a permissible co-lessee on the same lease.
- 2014 Letter, 2014 WL 1875639: a county commission has no express or implied power to "lease property to a private individual for private residential purposes."
- 2024 Sundale Nursing Home Letter, 2024 WL 3380828: a county building commission (different entity) has broader leasing authority that may permit involvement of a for-profit entity. This is the structural workaround for jurisdictions that want one.
Citations
- W. Va. Code §§ 5-3-2; 7-1-3; 7-1-3aa; 7-1-3cc; 7-1-3hh; 7-1-3k
- W. Va. Code §§ 7-3-2; 7-3-5; 7-3-7; 7-3-12
- W. Va. Code §§ 7-15-4; 24-6-2; 24-6-4; 24-6-5(3)
- W. Va. Const. art. IX, § 11
- State ex rel. State Line Sparkler v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
- Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va. 464, 720 S.E.2d 587 (2011)
- State ex rel. Farley v. Spaulding, 203 W. Va. 275, 507 S.E.2d 376 (1998)
- Keatley v. Summers Cnty. Ct., 70 W. Va. 267, 73 S.E. 706 (1911)
- State ex rel. Cnty. Ct. v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965)
- Meador v. Cnty. Court, 141 W. Va. 96, 87 S.E.2d 725 (1955)
- State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640 (1989)
- State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011)
- Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984)
- McAllister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991)
Source
- Landing page: https://ago.wv.gov/media/17406/download?inline
- Original PDF: https://ago.wv.gov/media/17406/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140
Patrick Morrisey
Attorney General
September 6, 2024
The Honorable John G. Ours
Grant County Prosecuting Attorney
5 Highland Avenue
Petersburg, WV 26847
Dear Prosecutor Ours:
You have asked for an Opinion of the Attorney General about a county commission's power
to own and lease property. This Opinion is being issued under West Virginia Code Section 5-3-2,
which provides that the Attorney General "may consult with and advise the several prosecuting
attorneys in matters relating to the official duties of their office." When this Opinion relies on
facts, it depends solely on the factual assertions in your correspondence and discussions with the
Office of the Attorney General.
You explain that the Grant County Commission currently operates a 911 center in a
building it leases from the Grant County Development Authority. Your letter asks whether the
Grant County Commission could purchase the building and later lease part of it to a for-profit
entity.
Thus, you raise the following legal questions:
(1) May the Grant County Commission purchase the building from the Grant County Development Authority to operate a 911 center?
(2) If the Grant County Commission can purchase the building, may the Commission lease a portion of it to a for-profit entity?
We conclude that the Grant County Commission may purchase the building to operate a
911 center. County commissions have broad express powers to purchase property for purposes
like this one. County commissions can also operate emergency telephone systems, and the power
to buy a building in which to operate it would be an implied extension of that power, too.
But we conclude that the Grant County Commission could not later lease part of the building
to a for-profit entity. County commissions may lease property only in certain specific
circumstances. A lease to a for-profit entity is not one of those circumstances.
DISCUSSION
I. The Grant County Commission May Purchase The Data Center Building To Operate A 911 Center.
As with all county commissions, the Grant County Commission is "created by statute, and
possessed only of such powers as are expressly conferred by the Constitution and legislature,
together with such as are reasonably and necessarily implied in the full and proper exercise of the
powers so expressly given." Syl. pt. 1, State ex rel. State Line Sparkler of W.V., Ltd. v. Teach, 187
W. Va. 271, 418 S.E.2d 585 (1992); see generally W. Va. Const. art. IX, § 11. But though county
commissions have limited powers, when they do have a power, the commissions are "vested with
a wide discretion" in its execution. Cnty. Comm'n of Greenbrier Cnty. v. Cummings, 228 W. Va.
464, 469, 720 S.E.2d 587, 592 (2011).
The building purchase you describe would fall within the county commission's express
powers. West Virginia Code § 7-3-2 says that the "county commission ... may, by purchase or
otherwise, acquire as much land as may be requisite or desirable for county purposes, and may
suitably enclose, improve, and embellish the lands so acquired." Likewise, West Virginia Code
§ 7-3-5 provides that the county commission may "make or enter into a contract, ... for the
erection, construction, equipment, leasing, and renting of a courthouse, hospital, other public
buildings." (emphasis added). And West Virginia Code § 7-3-7 explains that "[a]ny county
commission is likewise authorized and empowered to acquire real estate for, construct, equip,
furnish and maintain a courthouse, hospital or other public buildings or jail." (emphasis added).
These provisions are to be "liberally construed." W. Va. Code § 7-3-12. Altogether, they reflect
what the Supreme Court of Appeals said more than a century ago: county commissions enjoy
"discretion ... without limitation" when it comes to purchasing real estate. Keatley v. Summers
Cnty. Ct., 70 W. Va. 267, 270, 73 S.E. 706, 708 (1911).
Even if we were to put these broad express powers aside, we would conclude that the
Legislature has impliedly empowered the county commission to buy the building to house the 911
center. Among their powers, county commissions are responsible for providing local emergency
services, such as law enforcement, fire protection, and ambulances. For instance, county
commissions are tasked with "the superintendence and administration of the internal police and
fiscal affairs of their counties." W. Va. Const. art IX, § 11. The Legislature also requires county
commissions to provide emergency ambulance services "where such service is not otherwise
available." W. Va. Code § 7-15-4. And as part of their emergency service duties, county
commissions may establish and operate a 911 center. See id. § 24-6-4 (empowering county
commissions with the power to "establish ... an emergency telephone system within [their]
jurisdiction"); see also id. § 7-1-3cc.
Here, the power to establish and operate a 911 center necessarily implies the power to do
such things as are "reasonably necessary to perform that function." State ex rel. Cnty. Court v.
Arthur, 150 W. Va. 293, 297, 145 S.E.2d 34, 37 (1965). And establishing and operating a 911
center would be impossible if there was no building in which the center could operate. Indeed, the
law envisions a county's "answering point" for 911 calls to be "a facility." W. Va. Code § 24-6-2.
And that facility should be "operated constantly." Id. § 24-6-5(3). Thus, "[w]hile no statute
expressly authorizes" the Grant County Commission "to purchase" the building in this case, "such
authority is implied as necessary and reasonable incident to" creating an emergency telephone
system. Arthur, 150 W. Va. at 297, 145 S.E.2d at 37.
It does not matter that the 911 center is currently operated under a lease, either. Like their
broad power to purchase property generally, county commissions have the express power to
operate emergency telephone systems. This broad delegation gives the Grant County Commission
"wide discretion" in how to execute this power. Syl. pt. 1, Meador v. Cnty. Court, 141 W. Va. 96,
87 S.E.2d 725 (1955). Deciding whether to buy property that's presently leased is within that
discretion. See State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 149, 386 S.E.2d 640, 647
(1989).
Thus, we conclude that the Grant County Commission may purchase the building in
question to operate a 911 center.
II. The Grant County Commission May Not Lease Part Of The Data Center To A For-Profit Entity.
County commissions have far more circumscribed authority to lease to others. In fact, a
county commission may only lease under certain situations described in two statutory provisions.
First, they may lease "county-owned buildings, lands, and other properties" to "nonprofit
organizations" for certain enumerated purposes. W. Va. Code § 7-1-3k (emphasis added). And
second, they may lease "any of [their] real or personal property" to the federal government or "to
the state or any agency or instrumentality thereof," provided the lease is "for a public purpose."
§ 7-1-3hh.
A county commission's implied authority to lease property is also limited. Specifically, a
commission's implied power to lease its property cannot exceed its express authority. See syl. pt.
4, State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011) (holding that
where a power is "expressly conferred," a county commission can only act "in the mode
prescribed"). So county commission leasing power is constrained because the Legislature
specifically listed permissible leases. See syl. pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d
710 (1984) (noting that "the express mention of one thing implies the exclusion of another"). And
"[i]f any reasonable doubt exists as to whether" a county commission "has a power, the power
must be denied." Syl. pt. 1, McAllister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991).
The leasing arrangement described in your letter does not fit into any of the expressly listed
leasing powers of commission. And the power to lease property to a for-profit entity, seemingly
for economic gain, is neither "reasonably" nor "necessarily" implied in the exercise of the Grant
County Commission's express powers. Putting all this together, we conclude that the Grant County
Commission cannot lease the data center building, if it chooses to purchase it, to a for-profit
entity. Cf. Keatley, 70 W. Va. at 270, 73 S.E. at 708 (explaining that predecessors to county
commissions could not "buy more land ... simply with a view of making a profit by resale of a
portion thereof").
In prior opinions, we said much the same. In a 2018 Opinion Letter, we explained that
"any lease" by a county commission to a "private, for-profit business" would "exceed [the
statutory] limits," even where a permissible public lessee was a co-lessee. Off. of the W. Va. Att'y
Gen., Opinion Letter on the Authority of a County Commission to Lease Real Property (June 6,
2018), 2018 WL 3390019, at 2. Similarly, in a 2014 Opinion Letter, we wrote that a county
commission had neither the express nor implied power to "lease property to a private individual
for private residential purposes." Off. of the W. Va. Att'y Gen., Opinion Letter on the Authority
of County Commissions to Lease Real Property to Private Individuals (May 6, 2014), 2014 WL
1875639, at 1-2. Although we also recently wrote that a county building commission could be
permitted to lease a building despite the involvement of a for-profit entity, we stressed that building
commissions wield broader leasing powers because of differences in the statutory language
establishing them. See generally Off. of the W. Va. Att'y Gen., Opinion Letter on The Sale of
Sundale Nursing Home (June 18, 2024), 2024 WL 3380828.
Thus, the county commission cannot enter the lease arrangement with a for-profit entity, as
described in your letter. That said, because the Commission's powers derive from statutes, the
Legislature would always be free to amend the law and permit commissions to lease property under
the circumstances your letter describes.
Sincerely,
Patrick Morrisey
West Virginia Attorney General
Michael R. Williams
Solicitor General
Caleb A. Seckman
Assistant Solicitor General