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CITY OF ATLANTA \ .b DEPARTMENT OF LAW 1114 WtLLIAM•OLIVER BUILDING _./ / ) ATLANTA, GEORGIA 30303 \ . \ I Q) , , .. \ ) \)-'~ Su,(),\, March 24 , 1967 Personal and Confidential Mr . J ck C. Delius General Manager of Parks and Recreation City Hall Annex Atlanta, Georgia Dear Jack : This letter is in the following question: "Can the City of buildings inclu Cycloram in G recent inquiry posing nd a.c-:1:1:H,u: of the opinion that this itu tion could ther f 11: (1) public entity for a public purpo e; (2) private entity for (3) public entity for (4) L to _ private ntity for priv t priv t purpo . • purpos ; public purpo I 1 av it to your good judgment to d t rmin into thich of th bov cat gori this p cific - itu tion you mak r f r nc to ould f llo po As you kno, the City of Atlant w r c ntly giv the r to l i n t int r tin p rk 'prop rty. Thi bill, �Page 2 Mr . Jack C. Delius 3/ 24/ 67 passed during the 1967 Session 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 Gov ernor signing this Bil l into law. Absent the Governor ' s approval of this Bill , the answer to the question posed by you is in the negative . Let us assume for the purpose of this opinion that the Governor shall sign this Bill into law . The general rules applicable to this situation can be stated as follows : ( 1) "As a general rule , a city may not lease a public park to the exclusion of the right of public enj oytr1ent, or contrary t o the purposes of the dedication of the land . Nor may the legislature authorize a municipality to lease land dedicated as a public park , square or counnon . So also, legislative power to authorize a city to lease a part of a park, where the public right to the free use of the land lea ed is not prevented, has been recognized . And a lease of state lands devoted to park purposes my be sustained as consistent with the dedication of the 1 nd to public use. The authority of a municipality to enter into valid lease of park lands is sometimes expressly authorized by statut • The validity of a lease by the city has b en sustained where it will result in further nee of the public use. The v lidity of a leas by th inhabit nts of a town of 'common 1 nd 1 not granted into private ownership nor needed for public purposes h s al o been sustain d. "As regard the income from lea e of land cquir d for a public p rk, the rul h b en decl . r d th t uch income mu t b d voted to public u e ." 39 Am Jur 810 1 811. �Page 3 Mr . Jack C. Delius 3/ 24 / 67 (2) "When land is dedicated for a special and · limited use, use for any other purpose is unauthorized . Whether a particular use amounts to a diversion from that for which the dedication was made depends on the cir cumstances of the dedication and the intention of the dedicator, and is therefore largely a question of fact . In any case, however, such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated . The dedicator is presumed to have intended the property to be used by the public, within the limitations of the dedication , in such way as will be most convenient and comfortable and according to not only the properties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions . " "'v'.'.' 23 Am Jur 57, 58 . (3) "The municip l use nd control of public parks may be subject to restrictions contained in the gr nt of the l and therefor. Wh r don tion or dedic tion of tr ct of land is made to a municip 1 corpor tion olely for a public p rk, the muni~ip lity c nnot u e it for purposes incon istent with the purposes of such grant . " Vol . 10 1 McQuillin on The Law of Municip l Corporations, 172. port Th Geo r gia 1 w with r spect to the gen r l probl com• with the general law nd c n b wmn•riz d follow: �Page 4 Mr . Jack C. Delius 3/24/67 "Property dedicated to a public use may by the dedicatee be put to all customary uses within the definit ion of the use . Any use which is in• consistent, or which substantially and materially interferes, with the use of the property for the particular purpose to which it was dedicated, will constitute a misuser or diversion; and while under the general rule a misuser or diversion of the property for any purpose other than the one designated will not work a reversion of the property freed from the easement to the owner of the dominant fee, equity will, on the petition of proper parties,· enjoin such misusei: or diversion . " Brown v. City of East Point, 148 Ga . 85 8 hn . 3. Now to answer the specific question posed by you . Under the Bill itself, we can , for a period not to exceed four year nd for a valu ble consideration, lease the subject property with the following reservation: origi (l) We can lease to a public entity for public u e not inconsistent with the original dedication; (2) We c nnot lease to a private entity for private use bee u e of the inconsist ncy; (3) We cannot lea e to a public entity for priv te use bee u e of th incon istency; nd (4) W c n le s to a private entity for public u not inconsi tent with the dedication. The d die tion in this inst nee 1 th.a t which Mr. Gr lly t forth in the deed of gift wh reby the Cyclor �Page 5 Mr . Jack C. Delius 3/ 24/67 was to be opened to the general public . Also, this opinion presupposes that should the lease be made to a public entity, the public entity would be authorized by law to enter into a lease such as you may, f.rom time to time ., envisage . Trusting that this answer your inquiry, I remain Very truly yours, ~ ~ Thomas F. Choyce TFC : jc Encl . 1 cc: Hon . Ivan Allen, Jr . , Mayor / City of Atlanta City Hall Atlanta, Georgia 30303 Mr . R. Earl Landers Administrative Assistant City Hall Atlanta, Georgia 30303 �