Dear Mayor Dixon:
This office is in receipt of your opinion request wherein you advise that the City of Westlake ("City") and the First Baptist Church of Westlake ("Church") propose dividing their undivided interest in a 40 acre tract. The City owns an undivided 51.74117 percent of the 40-acre tract, and would receive the north 21.20 acres. The Church owns an undivided 48.25883 percent, and would receive the south 19.78 acres. This 40-acre tract also adjoins approximately 860 acres owned by the City, which the City proposes to develop as a golf course. However, the north 21.20 acres are not needed for the golf course.
In connection with the proposed golf course development, the City expended public funds for the purpose of acquiring a Wetland Permit from the Corps of Engineers. Part of the public funds expended for the Wetland Permit pertained to the 40-acre tract. In payment of the Church's proportionate share of the Wetland Permit cost, the parties propose that the City would receive a 30 foot right of way along 877.50 feet of the Church's 19.78 acres in order to allow the City a main entrance to its proposed golf course development.
You have requested an opinion as to the procedure the City should follow to acquire full ownership of the 21.20 acres, and receive a 30 foot right of way along 877.50 feet of the Church's 19.78 acres.
We are of the opinion that the City and the Church, as owners in indivision of the 40-acre tract, may agree to an extra judicial partition as provided for in Louisiana Civil Code Article 809. In a partition, the co-owners of the property simply divide the property into separate portions; and each former co-owner then becomes the sole owner of his portion of the partitioned property.
We are of the further opinion that the requirements of La.R.S. 33:4712(B) do not apply to an extra judicial partition because a partition between co-owners does not meet the definition of an exchange in Louisiana Civil Code Article 2660.
Finally, we are of the opinion that as long as the value of the right of way in favor of the City along with the Church's 19.78 acres is equal to or greater than the Church's proportionate share of the cost of the Wetland Permit there would be no violation of Louisiana Constitution Article VII, § 14.
We trust this response sufficiently addresses your inquiry; and if we may be of further assistance, please do not hesitate to contact our office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ______________________ Burton P. Guidry Assistant Attorney General
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