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CITY OF ATLANTA DEPARTMENT OF LAW 111¢ WILLIAM-OLIVER BUILDIN,G, ATLAN,TA, GEORGl,A 30303 March 24 , 1967 Personal and Confidenti 1 Mr .• Jack C. Delius General Manager of Parks and Recreation City H 11 Annex Atl nt , Georgia Dear J ck: This 1 tt r is in respo the following question.: "Can the City of A~ ----buildings inclu Cyclorama in G cert in land it d to, the Before I c n g r four ba ic ther f 11 : tf.ty for (2) ntity for (4) public purpo priv t public entity for a priv t L as v to nd of the opinion th t thi situ tion could (1) (3) 1 1 recent inquiry posing priv te ntity for it to your good jud ent to d t in above categorie this p cific situ tion you would fall. . ' ,. purpo purpo •• public purpo • into hicb of the ref r ce to As you know, th City of Atl nt war c ntly iv the int rat in p rk ' prop rty. Thia bill, pow r to ali n t �Page 2 Mr . Jack C. Delius 3/ 24/ 67 passed during the 1967 Ses sion of the Georgia Assembly , is known as House Bill No. 299 . I enclose herewith a copy of said House Bill for your further perusal. Please bear in mind that this opinion is predicated upon the Governor signing this Bill into !,_;!!. Absent the Governor's approval of this Bill , the answer to the question posed by you is in the neg tive . Let us assume for the purpose of this opinion that the Governor shall sign tluls Bill into law . The general rule applicable to this situation can be stated as follows : (1) "As a general rule, city my not lease public park t o the exclusion of the right of public eajoym nt, or contrary to the purposes of the dedication of the land . Nor may th legislature authorize municip lity to lea e land dedicated as a public park, square or common . So also, legislative power to autho• rize a city to leas a part of a park, where the public right to the fre u of the l nd leased is not prevented, has been recognized. And a lease of state land devoted top rk purposes m y be su tained s consistent with the dedication of th l nd to public u e. The uthority of a municip lity to nt r into valid la e of p rk l nds i som times xpre sly uthorized by t tut . The v lidity of al ase by the city h been u tain d wh re it 111 r ult in furth ranc of th public u • Th v lidity of l by the inhabit nt of a town of 'comnon 1 nd 1 not r nted into priv te own r hip nor need d for public purpo sh lso b sust inedo "A r gard th inco cquir d for public p been d cl rd t t uch voted to public u a." 39 Am,Jur 810 1 811. �Page 3 Mr. Jack C. Delius 3/24/67 (2) "When land is dedicated for special and limited use, use for any other purpose i e unauthorized . Whether a particular use amounts to a diversion from that for which the dedic tion was made d pends on the circumstance of the dedication and the intention of the dedicator, and is therefore largely a question of fact. In any case, however, such use is uthorized as is fairly within the term of the dedication and reasonably serves to fit the property for enjoyment by the public in the mann r contemplated . The dedicator is presumed to have intended the property to be used by the public, within the limitation of the dedication, in such way as will be most convenient and comfortable and according to not only the properties nd us ges known at th time .o f the dedication, but also to those justifi d by lapse of tie nd chang of conditions . " 23 Am Jur (3) y s.7, 58. "The municipal use and contJjOl of public parks my b ubject tor triction con• tin din th grant of the land therefor. Wh r donation or dedication of tr ct of land i made to municip l corporation ol ly for public p rk, the municip lity c nnot us it for purpo e incon i tent ith th purpo ·s of such grant." The Georgia l aw with r sp ct to port 1th t g ral l wand can b g n ral probl c d s follows: - �Page 4 Mr . Jack C. Deliu 3/24/67 "Prop rty dedic ted to a public u e y by the dedicatee be put to all cu tom ry use within the definition of the use . Any use which i in• con istentp or which substantially and materi lly interferes, with the use of the property for the p rticul r purpose to which it was dedicated , will constitute a misuser or diversion; and whil under the general rule misuser or diversion of the property for ny purpose other than th one designated will not work a reversion of the property freed from the easement to the owner of the dominant fe, equity will, on the petition of proper partie , enjoin such misuser or diversion . " Brown v . City of East Point, 148 Ga . 85, hn . 3. Now to nswer the specific question po ed by you. Under the Bill itself, we can, for period not to xc d four years nd for av lu ble consideration, lease the subj ct property with the following reservations: (1) We can lease to a public entity for public u not incon 1 tent with the original dedic tion; (2) w c nnot lea priv t (3) u to a privet tity for of the incon 1 tency; b eau w cannot lea e to privat us public entity for b cau e of th incon i t cy; and (4) W can 1 u de ication in thi instanc is that which Mr. Gr lly t forth in the de d of gift wh r by the Cycloram Th origi to a priv t ntity for public not inconsi tent with th . d dication. �Page 5 Mr . Jack C. Delius 3/24/67 was to be opened to the general public. Also, this opinion presupposes that should the le ee be made to a public entity, the public entity would be authorized by law to enter into a lease such as you may, from time to time, envisage. Trusting that this answer your inquiry, I remain Very truly yours , iv--~ Thomas F. Choyce TFC : jc Encl. 1 cc: Hon9 Ivan Allen, Jr., Mayor City of Atlanta C1ty Hall Atlanta, Georgia 30303 Mr. R. Earl Landers -./,,Admini trativ A aistant City H 11 Atl nt, Georgi 30303 �