April 24, 1996
Mr. Richard B. Whisnant, General Counsel
N.C. Department of Environment, Health and Natural Resources 512 N. Salisbury Street Raleigh, N.C. 27604
Re: Advisory Opinion: Application of N.C. Gen. Stat. §66-58(b)(9) to N.C. Zoological Park
Dear Mr. Whisnant:
By memorandum received March 4, 1996, you requested an advisory opinion as to whether the
N.C. Zoological Park constitutes a "park" for purposes of N.C. Gen. Stat. §66-58(b)(9).
SUMMARY We have consistently advised the N.C. Division of Parks and Recreation that N.C. Gen. Stat. §66-58(b)(9) prohibits the Division from leasing state park lands to a private party for the purpose of operating a hotel or similar facility. Although the N.C. Zoological Park ("Zoo") is not a state park listed on the Division of Parks and Recreation’s State Parks System, for the reasons discussed below, it is a "park over which the Department has jurisdiction" for purposes of N.C. Gen. Stat. §66-58(b)(9). Therefore, if the Department wishes to pursue development of a hotel or convention center upon zoo property, amendment of N.C. Gen. Stat. §66-58(b)(9) would be required.
ANALYSIS
N.C. Gen. Stat. §66-58, commonly referred to as the Umstead Act, prohibits certain state agencies from engaging in various forms of business in competition with the private sector. The statute does not apply to the Department of Environment, Health and Natural Resources ("Department"), save one exception. The exception, codified in N.C. Gen. Stat. §66-58(b)(9), states that the Department "shall not construct, maintain, operate, or lease a hotel or tourist inn in any park over which it has jurisdiction." In construing this statute, the first rule is to determine legislative intent while giving the language of the statute its natural and ordinary meaning. Turlington v. McLeod, 323 N.C. 591, 374 S.E.2d 394 (1988). Words undefined in a statute are accorded their plain meaning as long as it is reasonable to do so. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Here, the statute’s plain language demonstrates that the Legislature intended that N.C. Gen. Stat. §66-58 (b)(9) apply to any "park over which the Department has jurisdiction."
The N.C. Zoological Park is technically not a state park. The Zoo has not been designated a "state park," either by statute or rule. The Zoo is not listed in the "Directory of State Parks and Recreation Areas" adopted in 15A N.C. Admin. Code 12A .0004. However, the plain language of N.C. Gen. Stat. §66-58(b)(9) indicates that the Umstead Act’s exception is not limited simply to designated state parks, but "any park" over which the Department has jurisdiction. Thus, the Zoo, as evidenced by its purpose, operation, and formal name, is a park under the broader terms of this statute.
The term "jurisdiction" (apart from its use as a legal term of art describing a court’s powers) commonly means the "extent of authority or control." The American Heritage Dictionary, (2nd College Ed. 1991). Given the Department’s various forms of authority and control over the Zoo, particularly its regulatory authority over the Zoo’s lands, the N.C. Zoological Park should be considered "a park over which the Department has jurisdiction" for purposes of N.C. Gen. Stat. §66-58(b)(9). The Department’s regulatory authority derives from the Department of Administration’s previous allocation of the real property for the Zoo to the Department. After acquiring the real property for the N.C. Zoological Park, the N.C. Department of Administration, on November 10, 1975, allocated the 998.514 acre Randolph County tract to the Department’s predecessor agency, the N.C. Department of Natural and Economic Resources. The express purpose of the allocation was "for the operation and development of the N.C. Zoological Park, Asheboro, Randolph County." (See attached copy of the Department of Administration’s allocation letter, dated November 10, 1975).
Pursuant to N.C. Gen. Stat. §113-264, the Department exercises regulatory authority over the Zoo’s lands and possesses the legal authority to charge admission fees. Under this statutory grant of power, the Department has adopted various rules governing the Zoo’s operation, which are codified in Title 15A Chapter 22 of the N.C. Administrative Code. For example, the Department has adopted rules governing the conduct and activities of Zoo visitors and rules governing the acquisition and disposition of animals. Aptly illustrating the Department’s jurisdiction over the Zoo and its activities is 15A N.C. Admin. Code 22A .0001(5), which defines the terms "zoo", "park", and "zoological parks" as those "lands, facilities, programs, and other assets (including animals and plants) owned, controlled or operated by the department [DEHNR] for the use of the North Carolina Zoological Park."
The Legislature also vested the Department with control over expenditures from the Special Zoo Fund. The Fund, established in N.C. Gen. Stat. §143B-336.1, is a nonreverting fund composed of unbudgeted receipts. The Department, on the advice of the N.C. Zoological Park Council and approval of the Office of State Budget and Management, must expend these funds for maintenance and repair of existing animal and visitor support facilities. The Council, created as part of the Department through N.C. Gen. Stat. §143B-335, also advises the Secretary on a wide range of matters involving the Zoo, including building plans, furnishings, admission fees, programs for public appreciation, and soliciting financial and material support from private sources.
CONCLUSION Although not technically designated a state park, the N.C. Zoological Park is a park, based upon its purpose, operation, and formal name. After the Department was allocated the real property containing the Zoo in 1975, it has exercised regulatory and financial control over most all aspects of the Zoo’s operation. Given this control, the N.C. Zoological Park constitutes a "park over which the Department has jurisdiction" for purposes of N.C. Gen. Stat. §66-58(b)(9). Therefore, the Umstead Act, as now written, appears to prohibit the conference and hotel complex described in Director David Jones’ January 31, 1996 memorandum to you.
If you have any questions or need additional assistance, please let us know.
Daniel C. Oakley Senior Deputy Attorney General
David W. Berry
Assistant Attorney General