Opinion letter to Mr. Joseph Jaeger, Jr.

Mr. Joseph Jae~er, Jr. Di rector of Parks State Park Soard Post Office aox 176 January 30, 1973 Jefferson City, Mi ssouri 65101 Dear Mr. Jaef'er: ·- OPI NI ON LETTER NO . 14 Answer by letter- Wood Fl LED ljl You have r equested my official l e~a l opinion on t he following question: "Does the Missouri State Par k Boar d have the le~al aut hority to l ease certain l ands under its jurisdiction and impr ovements t hereon to a not-for -profit corpor ation on a lon~ -term basis, i . e ., 25 years with a 25-year option?" You advise us that the Lake of the Ozarks Yachting Association, Inc . has approached the Park Boar d with a request to so lease the land and buildings known as the Camp Pa He Tsi area of Lake of the Ozarks State Park . It is our understanding that such lease would provide for periodic rental payments r epresenting fair market value for the use of the land, transfer to the lessor of owner ship of all i mprovements constructed by t he l essee during the l ease at t he ex- piration or termination t hereof, and exclusive use of t he l eased pr emises by the lessee durin~ the currency of the lease subject only to reasonable supervision and inspection by the lessor . The Lake of the Ozar ks Yachtinr Association, Inc. was i ncor- porated by pro forma decree of the circuit court of Miller County, Mi ssouri, on()r about June 24 , 1953, pursuant to the law relating to Religious and Charitable Associations, Chapter 352, RSMo. The objects and pur poses of the corporation, as stated in its articles of association, are: Mr . Joseph Jaeger, Jr. "1. To promote safety and to increase respect for Pilot Rules on the Lake of the Ozarks. "2 . To pro'Tlote and encourage the racing and cruisinr, of yachts and motor boats and to develop interest in boating in general upon the Lake of t he Ozarks. "3 . To establish and enforce uniform rules for the government of all Association sponsored races, cruises and other activities in which two or more craft shall compete or take part . "4. 'ro instruct and educate members of the Association and t he ~eneral public in the operation of boats and other watercraft upon the Lake of the Ozarks . "5. ':'o promote and carry on activities which shall be beneficial to yachting and to the development of recreational activities upon the Lake of the Ozarks . '' In our opinion, the only statutory b~sis for the proposed lease would be that contained in the following statute: "2. The park board rnay award by contract to any suitable person, per sons, corporation or association the ri ~ht t o construct, estab- lish and operate public services, pri vileges, conveniences and facilities on any land, site or object under its control for a period not to exceed twenty-five years with a renewal op- tion, and may supervise and regulate any and all charges and fees of operations by private enterprise for supplyin~ services and oper- atinp; facilities on state park ar eas . " (emphasis ours) Section 253 . 080(2), RSMo We believe this statute authorizes the Park Board to enter into agreements for the operation by private corporations of park lands and i mprovements only so lon~ as such remain open to and ac- cessible to the reneral public . It does not, in our opinion, au- thorize the Park noar d to P-rant leases of park lands to private corporations so that such may be used exclusively by the private corporation and its invitees. The Lake of the Ozarks State Park -2- Mr . Joseph Jaeger, Jr. is owned by the state of Mtssouri pursuant to a conveyance from the United States in 1946 based upon an Act of Congress dated June 6, 1942 (56 Stat. 326; 16 U.S .C.A . §459r). This Act of Con- gress, in providing for the conveyance of urecreational demonstra- tion projects" to the various states, stinulated that the grantee states "use the property exclusively for public park, recreational, and conservation purposes." (56 Stat . 327; 16 U . ~ . C . A . §459t; em- phasis ours} . The ensuin~ deed executed by the Secretary of the Interior expressly conditioned the conveyance upon the state of Missouri's use of the property "exclusively for public park, rec- reational, and conservation purposes." (emphasis ours) . We have found this definition of the term "public park": " • . . But , in the idea of a oublic park is comprehended more, than a use, either occa- sional or limited by years, or susceptible of coexistence with a private right caoable of concurrent exercise. The words sug~est more than an open extensive area of land, to be passed over or but temporarily occupied by the public, and on which any private person may still do acts of ownership . To create a public park an extensive area is needed; but the area must be improved, and in various pro- cesses, alterative and subversive of natural formation, MUst much money be absorbed, and many years must go by before it is complete. And so costly, so extensive, so oeculiar in character, and so undisturbed by interference, must be these orocesses and the results of them, as that there is need of permanency and exclusiveness of public possession and control, as against the exercise of any private right therein .•.. " The Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234, 240 (N.Y. 1871) As thus understood, we do not feel that the state of Missouri could fulfill its commitment to use the Lake of the Ozarks Par k exclu- sively for "public par k" purposes by leasing a portion of it for up to 50 years to a private corporation. The courts of other states have ruled upon questions very sim- ilar to the one you present us . In one such decision, the Nebraska Supreme court held invalid a city's aP,reement granting a private association the exc lusive use and control of the city owned race track, grandstand, and accompanyin~ grounds for a period of 25 years. The court observed: -3- Mr. Joseph Jaeger, Jr. "If a race track, for holding race-meets, is a proper improvement for a public park, it must be under the control of the park commis- sioners of the city . The city had t he right to acquire the lands for a public park . ~hen so acquired it must be used for a public park , and the public must be allowed access thereto, subject only to rules and regulations made by the board of park commissioners and ordinances of the city . Neither the park commissioners nor the city have authority to dele~ate to, or share with, appellees herein, or any person, the making of rules and regulations governing the control of its public park. ~ either the park commissioners nor the city had the power to ~rant to appellee the exclusive use and con- trol of said race track. * * * "The city had power to grant to 3.ppellee a li- cense or concession to hold in said park race- meets , for short periods of time, for the en- tertainment of the public, the same as it mieht grant a concession for providing refreshments or any other amusement for the public .... A city has no power to grant a concession in its public park or publjc pr operty without re- serving to its proper officers the power or supervision and control of t he use of the nark for the benefit of t he public." Nebraska City v. Nebr aska City Speed & Fair Ass'n., 186 ~ . w . 37~, 376-377 (Neb . 1922 ) An Illinois Court of Appeals struck down a lease granted by the Chicago Park District to a not-for-profit corporation organized to promote the sport of shooti n~ and to conduc t and maintain a shoot- ing club. "The l ease granted to plaintiff what was tan- tamount to an exclusive use of a portion of a public park, since it could under the terms thereof effectually bar the general nublic from the use of its club house and its shoot- ing f acilities. . . . '' Lincoln Park Traps v. Chicago Park Dist., 55 N.E.2d 173, 177 (Ill. App. 1944 ) -4- Mr . J oseph Jaeger, Jr. The Illinois court a l so observed that t he l ease was invalid because it "granted special privileges t o the members of a private club." The Kentucky Court of Appeal s held t hat t he city of Ashl and could not contract with t he Ashland ~aseba ll Club , which controlled professional, hi gh school, American Legion, and Elks baseball teams, so as to give the club the "exclusive use" of an athl etic field lo- cated in t he city par k : "The grant of public power and r i o;ht i mposes a corresponding public duty and responsibility. Offici a l dominion and discretion may not be surrendered , nor public functions de le ~ated, i n whole or in part, to another person who is not answerable to t he peopl e .... "It seems to us that the pr oposed contracts woul d i n effect give to t he various clubs the right and oower to exclude t he r,eneral public from the use of a subst ant i~l part of t he par k for an indefinite , although extended period of time . This would not be cons istent with its free public use. n1e Board woul d surr en- der its sole and exclusive control of the man- a~ement of this part of t he public pronerty . Its domi nion and administration woul d be less than absolute ...• " Board of Par k Com ' rs. or Ashl and v. Shanklin , 199 S .W. 2d 721, 723-724 ( Ky . A o p . 19 4 7 ) - In discussing a similar case involving the city of Louisville Uoard of Park Commissioners , the Kent ucky court al so observed that t he s tatutes governing these boards" ... manifest the l egislative in- tent to lodge in both bodies as trustees for the people t he exclu- sive custody and control of their properties . " And, finally, the Supr eme Court of Georgi a held that if a city acquired and hel d property f or par k pur poses , it did so in its governmenta l capacity and therefor e could not lease the prop- erty to a private corporation: " •.. Nor coul d the operation or the facil- ity by t he plaintiff be construed as a public use by a showing that t he pl a i ntiff is a non- profit cor por ation which may devote any pro- fits from its operation to charitable purposes, or that benefits may flow to the city in carry- in~ out an ultra vires contract made in its -5- Mr . Joseph Jaeger , Jr. behalf .... AlthouQ;h the l ease provi ded that at l east one day a week must be left open for the use of the ~eneral public neverthel ess , t hose who might wish to use i t at other times must use it subject to the uses and rules pre- scribed by the plaintiff private corporation or else be deni ed its use." Jonesboro Area Athletic Association v. Dickson, 181 S.E. 2d 352, 85G (Ga. 1971) Accordingly, we ar e of the opinion that the Missouri State Par k Board is not authorized t o enter into the proposed lease of ~ portion of Lake of the Ozarks State Park to t he Lake of the Ozarks Yachtin~ Association. Inc. Yours very truly, JOH:~ C. DANFORTH Attorney r.eneral -6-