Can a West Virginia county commission lease an apartment in a county-owned building to a private individual as a residence?

Official title

Opinion of the Attorney General's Office Regarding the Authority of County Commissions to Lease Real Property to Private Individuals

Plain-English summary

The Mason County Commission acquired a three-story building in Point Pleasant. The bottom two floors would house the Sheriff's Department. The third floor was an apartment with its own entrance, no access to the lower floors. The commission wanted to lease the apartment to a private individual as a private residence. Mason County had also established a Building Commission under § 8-33-1. The prosecutor asked whether either the County Commission or the Building Commission could legally lease the apartment.

The AG said no. County commissions have only the powers expressly granted by constitution and legislature, plus those "reasonably and necessarily implied" in the express ones. State ex rel. W. Va. Parkways Auth. v. Barr restated this rule. Doubts about a granted power are resolved against the commission (Exch. Bank of Virginia v. Lewis Cnty.; McCallister v. Nelson).

The Code expressly authorizes county commissions to lease real estate in two specific contexts:

(1) Lease to "nonprofit organizations" under § 7-1-3k, providing "meeting places, service outlets and operational headquarters for organizations established within the county."

(2) Lease "for a public purpose" to instrumentalities of the state or federal government under § 7-1-3hh.

Neither covers leasing to a private individual for private residential purposes.

Implied authority? "Power by implication must be based upon some express statutory authority" (Cnty. Court of Cabell Cnty. v. Arthur). Renting an apartment as a private residence is neither "reasonably" nor "necessarily implied" in the limited express leasing powers. The implied-power doctrine cannot create authority to do something fundamentally different from what the legislature authorized.

The Building Commission angle. § 8-33-4 lets a building commission "[l]ease its property or any part thereof, for public purposes, to such persons and upon such terms as the commission deems proper." But "public purposes" doesn't mean "any reason a public entity wants to lease." State ex rel. City of Charleston v. Coghill (a 1973 decision interpreting a parallel municipal-parking-facility statute) said that government action whose "primary and dominant purpose" is private benefit, with only "ancillary public benefits," is not for a public purpose. Renting an apartment to a private individual for private residential use is private benefit. The AG concluded the contemplated lease would not appear to satisfy the Coghill public-purpose test.

So no leasing authority either way.

Currency note

This opinion was issued in 2014. 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: Why can't the county commission rent this apartment to an individual?

A: The AG found no express or implied authority for a county commission to lease property to a private individual for a private residence. The opinion identifies two express leasing powers, one for nonprofit organizations and another for state or federal instrumentalities for a public purpose; neither covers the proposed private residential lease.

Q: Could the county use its building commission to make the lease?

A: The AG said that would not change the result. W. Va. Code § 8-33-4 allows a building commission to lease its property "for public purposes." The opinion concluded that the proposed private residential lease would not appear to satisfy that requirement.

Q: Does the apartment's separate entrance matter?

A: The prosecutor reported that the third-floor apartment had its own entrance and no access to the sheriff's offices on the lower floors. The AG included those facts but still found no authority for the proposed private residential lease.

Q: Can the county infer leasing authority from its general powers?

A: The opinion applies the rule that implied county powers must be reasonably and necessarily tied to an express power. It found that leasing to a private resident was not implied by the two specific statutory leasing powers it identified.

Q: Did the AG decide whether the county could sell the apartment?

A: No. The question and answer were about leasing the apartment to a private individual for residential use. The opinion gives no conclusion about a sale.

Background and statutory framework

The constitutional/statutory framework. W. Va. Const. art. IX, § 11 vests county commissions with general powers. State ex rel. W. Va. Parkways Auth. v. Barr (2011) restated the limit: "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." Doubts are resolved against the commission (Exch. Bank of Virginia v. Lewis Cnty., 1886; McCallister v. Nelson).

Express leasing authority. § 7-1-3k allows lease to "nonprofit organizations." § 7-1-3hh allows lease "for a public purpose" to state or federal instrumentalities.

Building commission. § 8-33-1 et seq. authorizes county building commissions. § 8-33-4 grants leasing authority for "public purposes." Coghill (1973) construed parallel "public purpose" language in § 8-16-4a(b) (municipal parking facility leasing) and held that government action whose "primary and dominant purpose [is] the conferring of private benefits, with only ancillary public benefits," is not for a public purpose. State ex rel. W. Va. Citizens Action Grp. v. W. Va. Econ. Dev. Grant Comm. (2003) discussed the public-purpose doctrine more broadly.

Application. (1) No express county commission authority to lease residentially to private individuals. (2) No implied authority because nothing in the express leasing powers reasonably implies it. (3) Building commission leasing authority limited to public purposes; private residential use fails the Coghill test.

Citations

• W. Va. Const. art. IX, § 11
• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code § 7-1-3k, § 7-1-3hh
• W. Va. Code § 8-16-4a(b)
• W. Va. Code §§ 8-33-1 et seq.; § 8-33-4
• State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27 (2011)
• Exch. Bank of Virginia v. Lewis Cnty., 28 W. Va. 273 (1886)
• McCallister v. Nelson, 186 W. Va. 131 (1991)
• State ex rel. Cnty. Court of Cabell Cnty. v. Arthur, 150 W. Va. 293 (1965)
• State ex rel. City of Charleston v. Coghill, 156 W. Va. 877 (1973)
• State ex rel. W. Va. Citizens Action Grp. v. W. Va. Econ. Dev. Grant Comm., 213 W. Va. 255 (2003)

Source

• Landing page: https://ago.wv.gov/media/18011/download?inline
• Original PDF: https://ago.wv.gov/media/18011/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0410

May 6, 2014

The Honorable R. Craig Tatterson
Prosecuting Attorney
Mason County
200 6th Street, Room 11
Point Pleasant, WV 25550

Dear Prosecutor Tatterson,

You have asked for an Opinion of the Attorney General regarding the authority of a county commission to lease real property to a private individual. This Opinion is being issued pursuant to West Virginia Code § 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." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your correspondence with the Office of Attorney General.

You explain that the Mason County Commission ("County Commission") has acquired a building and may seek to lease or rent part of the building to a private individual. According to your letter, the County Commission purchased a three-story building located in Point Pleasant, West Virginia. Only the bottom two floors of the building will house the Mason County Sheriff's Department. The top floor of the building contains an apartment with a separate entrance and no access to the bottom two floors. You note that the Mason County Commission has established a Building Commission pursuant to West Virginia Code § 8-33-1.

Your letter raises the following legal question:

Whether the County Commission (on its own or through the county's Building Commission) has the legal authority to lease or rent an apartment to a private individual, presumably for private residential purposes.

As you correctly stated, a county commission is "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. 4, State ex rel. W. Va. Parkways Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011). See generally W. Va. Const. art. 9, § 11. Put another way, a county commission "can do only such things as are authorized by law, and in the mode prescribed." Id. Doubts regarding the power granted to a county commission are resolved against finding the existence of such power. See Exch. Bank of Virginia v. Lewis Cnty., 28 W. Va. 273, 286 (1886); accord Syl. Pt. 1, McCallister v. Nelson, 186 W. Va. 131, 411 S.E.2d 456 (1991).

We conclude that the County Commission has neither express nor implied authority to lease the apartment in question to a private individual to serve as a private residence. To begin with, the West Virginia Code expressly authorizes a county commission to lease real estate in only two specific circumstances, neither of which involves the lease of property to a private individual for private residential purposes. First, a county commission may lease real estate to "nonprofit organizations." W. Va. Code § 7-1-3k. "Authorized uses pursuant to this section shall include the granting of meeting places, service outlets and operational headquarters for organizations established within the county." Id. Second, a county commission may lease real or personal property "for a public purpose" to an instrumentality of the state or federal government. W. Va. Code § 7-1-3hh.

Furthermore, a county commission does not possess implied authority to lease property to a private individual for private residential purposes. Such authority must be "reasonably and necessarily implied in the full and proper exercise of the powers so expressly given." Syl. Pt. 4, Barr, 228 W. Va. 27, 716 S.E.2d 689. In other words, "power by implication must be based upon some express statutory authority." State ex rel. Cnty. Court of Cabell Cnty. v. Arthur, 150 W. Va. 293, 297, 145 S.E.2d 34, 37 (1965). As noted, the two powers "expressly given" relating to leasing include the authority to lease to nonprofit organizations and to state and federal governments for a public purpose. See W. Va. Code §§ 7-1-3k, 7-1-3hh. The power to lease property to a private individual for a private residential purpose is neither "reasonably" nor "necessarily implied" in the full exercise of these two express powers, which are themselves specific and limited.

The existence of the Building Commission does not change the conclusion. Even assuming that it is the Building Commission, and not the County Commission, that seeks to lease the property, the Building Commission also lacks the power to lease property to a private individual for a private residential purpose. West Virginia Code § 8-33-4 defines the powers of building commissions. In pertinent part, that section provides that a building commission may "[l]ease its property or any part thereof, for public purposes, to such persons and upon such terms as the commission deems proper. . . ." Id. (emphasis added).

We do not believe that the contemplated lease of an apartment as a private residence falls within the Building Commission's power to lease property "for public purposes." Although "public purpose" is not defined in the statute, the Supreme Court of Appeals has addressed the concept in other contexts before. See State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 207 S.E.2d 113 (1973); see also State ex rel. W. Va. Citizens Action Grp. v. W. Va. Econ. Dev. Grant Comm., 213 W. Va. 255, 278-79, 580 S.E.2d 869, 892-93 (2003). In Coghill, the Court discussed the phrase in connection with a statutory provision that expressly authorized the allocation of space within a municipal public parking facility for sale or lease to private individuals for commercial, business, or charitable purposes. See W. Va. Code § 8-16-4a(b). The Court explained that if a government action has "as its primary and dominant purpose the conferring of private benefits, with only ancillary public benefits," the government is not acting for a public purpose. See Coghill, 156 W. Va. at 884, 207 S.E.2d at 118. The lease contemplated in your letter would not appear to satisfy the Coghill test.

In sum, we conclude that no authority permits a county commission or building commission to lease property to a private individual for a private residential purpose.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Debra L. Hamilton
Deputy Attorney General