March 15, 1996
Representative Joe Hackney North Carolina General Assembly Post Office Box 1329 Chapel Hill, North Carolina 27514
Re: Advisory Opinion; Acquisition of Real Property by the State of North Carolina; G.S. § 14622 et seq.; G.S. § 146-26
Dear Representative Hackney:
Your letter of November 17, 1995, posed a number of questions regarding the above transaction. Subsequent to our reply letter of December 1, 1995, you indicated in a telephone conversation that you desired a more formal response. Hence this advisory opinion is furnished.
The property involved in your inquiry is the subject of the Department of Administration’s State Property Office acquisition File No. 92-JJJ which has been reviewed.
The pertinent facts revealed by our review show that acquisition of the subject property from the Triangle Land Conservancy was initiated by agency request pursuant to G.S. § 146-23 and approval of further investigation and acquisition was given by the Council of State. Thereafter the Department of Administration continued its investigation pursuant to statutory requirements to determine whether the donation and acquisition, as intended, could be consummated. It is not unusual for proposed transfers of land not to be carried through to completion for various reasons.
The donor’s obvious intent and desire was for the property to be used as a part of Umstead State Park and for no other purpose. During the continued investigation and prior to execution of the deed, it was learned that the property lay within the proposed right of way for a Department of Transportation highway project. Accordingly, the Department of Administration instructed the Property Control Division of the Attorney General’s Office to terminate its activities toward consummation of the acquisition. That office in turn directed the private law firm acting on its behalf to terminate its activities in that regard. At that point, no deed to the property had been delivered to the State or to the private attorneys acting on behalf of the State. The State did not make an unconditional acceptance of its delivery through the U.S. mail because of the potential for the donor’s wishes to be unrealized. The matter and the controversy surrounding it has been the subject of pertinent correspondence among the Department of Administration, the donor, and the Department of Environment, Health and Natural Resources, all of which confirm the uncertainty of the donation’s status in light of the Department of Transportation highway project.
The first question upon which you request our opinion is:
Question: Has the State acquired the property pursuant to G.S. § 146-26?
Answer: No.
Initially, we should reiterate that delivery has not been accepted by the State. "[T]here is no complete ‘delivery’ until the deed is ‘accepted’." Webster’s REAL ESTATE LAW IN NORTH CAROLINA, § 10-58 (4th Ed. 1994). To answer your specific question, however, a review of the State acquisition process is in order.
G.S. §§ 146-22 et seq. provide a procedure whereby the State may acquire property for public parks and other uses. That procedure requires investigation of proposed acquisitions by the Department of Administration and a determination that acquisition is in the best interest of the State. See G.S. § 146-24. While Council of State approval of acquisitions is required as a part of that procedure, the statutes clearly state that every acquisition "shall be made by the Department of Administration." Council of State approval does not require consummation of the acquisition. While the Council of State may "request" acquisitions, such acquisitions may be made only upon compliance with the investigation herein required. G.S. § 146-23.
The Council of State cannot direct the Department of Administration to acquire property [See Martin v. Thornburg, et al, 320 N.C. 533 (1987)] and G.S. § 146-24(b) which provides that "no conveyance of land may be made to a particular state agency or to the State for the use and benefit of a particular state agency."
The obvious purpose of these statutes is to leave the State free to use land it acquires for whatever purpose is found to be in the State’s best interest.
G.S. § 146-26 provides:
No devise or donation of land or any interest therein to the State or to any State agency shall be effective to vest title to the said land or any interest therein in the State or in any State agency until the devise or donation is accepted by the Governor and Council of State. Upon acceptance by the Governor and Council of State, title to the said land or interest therein shall immediately vest as of the time title would have vested but for the above requirement of acceptance by the Governor and Council of State.
This statute was obviously designed to protect the State from situations where a deed or will provision purported to vest title in the State prior to the required Department of Administration investigation and determination. It has no application to situations like the present one which are initiated by agency request. Rather, it is a protective statute, and does not supersede the other pertinent provisions in Chapter 146 regarding the acquisition process.
Your remaining questions presuppose an affirmative answer to your first question and concern possible future use of the property as a part of Umstead State Park. No property acquired by the State is subject to use or control by any particular State agency until allocated to that agency by the Department of Administration pursuant to G.S. § 143-341(4)g. As the State does not presently own the property, no allocation has occurred. Therefore, discussion of your remaining questions is unnecessary.
However, it is worth noting that the allocation process and the Department of Transportation’s interest in the same tract of land means that the donor’s desire that the land be a part of Umstead State Park may not be realized. It is our understanding that the State agencies, upon recognition of this fact, wanted to ascertain the effect this would have on the intended donation before proceeding. The matter currently remains in that position.
John R. McArthur Chief Counsel
T. Buie Costen
Special Deputy Attorney General