Talk about convoluted. If an untrained individual like me looks at what the State allows the Town to do by way of leasing of Aquatic Center to Virginia Tech, they would probably get the same headache that I did. Does the agreement with Tech actually constitute a franchise? Is this a public to public agreement or a public to private agreement? All that I have found thus far are some laws pertaining to ordinances required and notices given for the ... franchise, lease or right of any kind to use any public property.... And, based upon those, coming up with an ordinance after the bidding is done, doesn't look quite kosher. These reference make it look like the ordinance concerning the leasing of the property would have had to have been at the time the bids were advertised and a copy of that ordinance made available to the public. I'm not saying I've got the end all criteria here, just that this is what a citizen can find by doing a search to the "LIS" system for the Constitution and the Codes for the State of Virginia. It is at times like this that it becomes clear to me exactly how important it is for our town officials to make good use of the resources provided by the town attorney. I'm not saying that anything is wrong in the way things have unfolded, just that it doesn't make sense to me. I'm betting it doesn't make sense to some other people as well.
In the Virginia Constitution, Article VII Local Government, section 9. Sale of property and granting of franchises by cities and towns to be by ordinance or resolution it is stated that:
No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.
No franchise, lease, or right of any kind to use any such public property or any other public property or easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefor. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant, the plant as well as the property, if any, of the grantee in the streets, avenues, and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise. Any such plant or property acquired by a city or town may be sold or leased or, unless prohibited by general law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for and shall make adequate provisions by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates and the maintenance of the property in good order throughout the term of the grant.
The State Code goes a bit farther:
§ 15.2-2101. Ordinance proposing grant of franchise to be advertised; specifications of advertisement.
A. Before granting any franchise, privilege, lease or right of any kind to use any public property described in § 15.2-2100 or easement of any description, for a term in excess of five years, except in the case of and for a trunk railway, the city or town proposing to make the grant shall advertise a descriptive notice of the ordinance proposing to make the grant once a week for two successive weeks in a newspaper having general circulation in the city or town. The descriptive notice of the ordinance may also be advertised as many times in such other newspaper or newspapers, published outside the city, town or Commonwealth, as the council may determine. The advertisement shall include a statement that a copy of the full text of the ordinance is on file in the office of the clerk of the city or town council.
B. The advertisement shall invite bids for the franchise, privilege, lease or right proposed to be granted in the ordinance. The bids shall be in writing and delivered upon the day and hour named in the advertisement and shall be opened in public session and marked for identification by the person designated in the advertisement to receive such bids. The cost of the required advertisement shall be paid by the city or town which shall be reimbursed by the person to whom the grant is made. The city or town shall have the right to reject any and all bids and shall reserve this right in the advertisement.
(Code 1950, §§ 15-728, 15-729; 1962, c. 623, §§ 15.1-308, 15.1-309; 1971, Ex. Sess., c. 64; 1983, c. 138; 1997, c. 587; 2001, c. 498)