Request By:
Mr. Ralph Ed Graves
Commissioner
Department for Local
Government
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an attorney general's opinion concerning whether or not Area Development Funds [KRS 42.350] can be used to construct a ferry boat landing. You have such a proposal from the city of Vanceburg for $15,000 to construct a landing on city-owned property on the Ohio River. We are of the opinion that it is permissible.
The statute permits expenditures from the fund for capital projects, but it expressly excludes expenditures for roads and school purposes. It states that "the fund shall not be used directly or indirectly for the acquisition, construction, reconstruction, renovation or maintenance of any school or school property or any road, street, highway or bridge. " (Emphasis added). The General Assembly has made no appropriations for construction of a boat landing. The objection appears to be on the ground that the landing is merely an "extension of a roadway. "
You say that the city of Vanceburg will own the landing and operate the ferry through contract with a private operator. The declared purpose is to provide citizens better access to the state of Ohio. Nearest bridges are located 35 miles west and 30 miles east of Vanceburg. Local officials state that some local citizens now drive 140 miles to work in Ohio, although they live within 10 to 15 miles [in terms of a direct across the river approach].
Vanceburg has obtained necessary permits from the U.S. Corps of Engineers and Kentucky's Department for Natural Resources and Environmental Protection.
You want to know whether there is any prohibition against using Area Development Funds to construct a ferry boat landing.
Vanceburg is a 4th class city. KRS 81.010(4). Implicit in KRS 42.350 is the idea that the fund can be spent on any capital project which is authorized by general law applicable to the particular political subdivision or district. A 4th class city has the power to acquire and hold property for municipal purposes. KRS 86.010(3) and KRS 86.110(3).
The county court has jurisdiction to establish a ferry upon the Ohio River. KRS 280.180. However, we find no statutory authority for a city of the 4th class to operate a ferry. The ferry would have to be operated privately. We assume the city anticipates granting the privilege of using the proposed city landing to a private corporation or individual. Walker v. Trail, 255 Ky. 336, 74 S.W.2d 345 (1934) 346. See also KRS 280.020, requiring that a ferry franchise applicant obtain a certificate of public convenience and necessity from the Bureau of Highways.
However, KRS 94.360 suggests that a fourth class city may construct a wharf or landing, since it states that the city legislative body in cities of the second, third, fourth, fifth and sixth classes shall by itself or through a department of public works have and exercise exclusive control over the public ways, landings, wharves and public grounds of the city. " (Emphasis added).
KRS 94.010(1)(c) defines "public ways" as used in KRS 94.360: "'public ways' means public streets, sidewalks, alleys, avenues, roads, lanes, highways and thoroughfares. " (Emphasis added). A "thoroughfare" is defined by Webster's Seventh New Collegiate Dictionary, p. 919, as a way or place for passage; a street open at both ends; main road; passage, transit.
It is our opinion that under KRS 94.360 a landing or wharf constructed on city property is a legitimate municipal improvement. Further, it is our opinion that a "landing" or "wharf" is not synonymous with "roads" or "public ways" under the controlling definition of KRS 94.010(1)(c). A landing, under the statutes, is not an extension of a roadway. Therefore, there is no prohibition against the city's using Area Development Funds to construct a ferry boat landing on city-owned property.