Judges: RICHARD P. IEYOUB
Filed Date: 8/18/2004
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Carmody:
On behalf of the City of Shreveport you have requested an opinion of the Attorney General of whether the Constitution and laws of the State of Louisiana, and the constitution, laws and regulations of the federal government allow capital outlay funds to be used for the construction of a convention center hotel by the City of Shreveport or the Shreveport Convention Center Hotel Authority and, if so, whether the Louisiana State Legislature authorized the use of $12,000,000 in capital outlay funds for the construction of the convention center hotel.
Your request indicates that the construction of the hotel is to be paid for by a combination of $40,000,000 in bonds issued by the Hotel Authority and $12,000,000 in state-appropriated capital outlay funds. Should the bonds and capital outlay funds be insufficient to cover the total costs of the hotel construction then the City of Shreveport ("City") will pay any balance. The Authority was duly created and established pursuant to the Louisiana Public Trust Act (R.S. 2341-2347).
This office can find no state statutory or constitutional provisions which would prohibit the Legislature from appropriating and the Executive Branch from authorizing and administering state capital outlay funds to be used for the partial construction of the convention center hotel by the City of Shreveport and the Shreveport Convention Center Hotel Authority.
The issue of whether the construction of a hotel by the City of Shreveport serves a public purpose and is legally permissible was addressed by the Second Circuit Court of Appeals in City ofShreveport v. Chanse Gas Corporation, et al.,
In Town of Vidalia, supra, the board of aldermen sought to acquire property on a batture of the Mississippi River "for recreation and tourism purposes * * * and to promote economic growth through tourism." The project included a hotel with a commercial retail center, a marina and boat ramp, and other outdoor attractions. The owners of part of the land objected on grounds that the project lacked a public purpose, urging "there must be a general public right to a definite use of the property, as distinguished from a use by a private individual or corporation which may prove beneficial or profitable to some portion of the public." The court disagreed, finding that the jurisprudence has not defined public purpose so narrowly:
Rather, any allocation to a use resulting in advantages to the public at large will suffice to constitute a public purpose. Moreover, a use of the property by a private individual or corporation, when such use is merely incidental to the public use of the property by the state or its political subdivisions, does not destroy an otherwise valid public purpose.
663 So.2d at 319 (emphasis in original).
The court found that the project would "stimulate economic growth in Concordia Parish, an area which has struggled with a poor economy and high unemployment. It is uncontradicted that the Project will contribute to the general welfare and prosperity of the community of Vidalia." In short, the Third Circuit affirmed that a project including a hotel and retail center would promote economic development, thus meeting the requirement of a public purpose and supporting expropriation. In City of Shreveport,supra, the City sought to expropriate three tracts of land for the purpose of building a new convention center and a headquarters hotel. The condemnees challenged the taking on the grounds that economic development was not a proper purpose. The Court, relyingon Town of Vidalia, supra, ruled that the City had established a public purpose for the expropriation.
In dismissing the defendants claim that the possible involvement of a developer/operator in the use of the hotel constituted a prohibited donation the court held: "As noted earlier, once the public purpose has been established, the fact that a private entity may develop and profit from the project does not negate its public nature. Town of Vidalia v Unopened Succession of Ruffin, supra; State ex rel. Porterie v. Housing Authority, Supra; HawaiiHousing Authority v. Madkiff, supra. Similarly, the fact that a private developer may build or operate the hotel does not violate Art. 7, Section 14."
There are other examples of Louisiana Courts finding of a "public purpose" in the acquisition and use of property using public funds. In Calcasieu-Cameron Hospital Service Dist. v. Fontenot,
In Miller v. Police Jury of Washington Parish,
Our office has issued prior opinions that opined that a valid public purpose existed and capital outlay funds could be used for the construction of a family-oriented Theme Park (AG Op. No. 98-252) that would increase tourism and spur economic development and for rebuilding an old high school (AG Op. No. 98-378) that had cultural and historical significance. In both opinions our office concluded that neither project violated Article
Based on the foregoing the construction of a convention center hotel owned by the City of Shreveport and the Shreveport Convention Center Hotel Authority would appear to serve a valid public purpose of increasing tourism and furthering economic development and therefore there does not appear to be any legal impediment to the use of state capital outlay funds for such a project.
Neither has our office found any provision in the capital outlay act or any documents relating thereto that would indicate the Legislature did not intend to appropriate capital outlay funds for the construction of the convention center hotel.
Article
LSA-R.S.
LSA-R.S.
The City of Shreveport submitted the required feasibility study to the Office of Facility Planning and Control via the Capital Outlay Request form. On page 5 of the Request under the section entitled "Demonstration of Need" the description of the project states: "Addition of 600 parking spaces to proposed parking garage and construction of landscaped plaza to connect new Convention Center to downtown core. Includes 12 million for partial financing of Convention Hotel 300 rooms." The request submitted by the City of Shreveport complied with the constitutional and statutory requirements and included a statement that the requested funds would, in part, be used for the construction of the Convention Hotel.
Act No.
Act 2, the current capital outlay act, provides in Section 8 thereof that "All funds appropriated therein under the name of non- state entities, shall be considered as having been appropriated directly to the Facility Planning and Control section of the Division of Administration, and shall be administered under cooperative endeavor agreements." Previous capital outlay acts have also contained similar language.
Pursuant to Act
In Attorney General Opinion No. 04-0197 our office opined that the Public Bid Law was applicable to the construction of the hotel project and in so stating found that the Cooperative Endeavor Agreement related solely to the construction of the hotel facility. Exhibit A attached to the Cooperative Endeavor Agreement clearly reflects that the $12,000,000 of state-appropriated capital outlay funds is to be used in the construction of the hotel facility. There is no indication during any subsequent reauthorization of the appropriation that the Legislature intended to withdraw or change the appropriation from its original use.
It is therefore the opinion of this office that, subject to the authorization and approval of the Division of Administration, there does not appear to be any legal impediment to the use of capital outlay funds for the partial construction of the Shreveport Convention Center Hotel.
We trust that this answers your inquiry.
Very truly yours,
CHARLES C. FOTI, JR. ATTORNEY GENERAL
By: _______________________________
RICHARD L. McGIMSEY Assistant Attorney General
CCF, jr./RLM/dam
VIDALIA v. Unopened Succession of Ruffin , 663 So. 2d 315 ( 1995 )
City of Shreveport v. Chanse Gas Corp. , 2001 La. App. LEXIS 1911 ( 2001 )
Miller v. Police Jury of Washington Parish , 226 La. 8 ( 1954 )
CALCASIEU-CAMERON HOSP. SERV. v. Fontenot , 628 So. 2d 75 ( 1993 )
BD. OF DIR. OF IND. DEV. v. All Taxpayers , 848 So. 2d 740 ( 2003 )