Request By:
Mr. Richard V. Murphy
Corporate Counsel
Lexington-Fayette Urban County Government
Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem was stated in your letter:
"Fred Hynson, the Director of the Division of Parks and Recreation for the Lexington-Fayette Urban County Government, has raised a question concerning the power of the Urban County Government to lease its park land to private persons who would construct and run various facilities. The most recent example is a proposal to lease a 2 or 3 acre tract of park land to private developers who would construct and operate a skateboard facility under a 7-year lease. "
Your specific question: Is it legal for the Lexington-Fayette Urban County Government to lease [5 year lease] its public park land to private individuals who would construct and operate improvements, that is, a commercial skateboard facility. In the proposed agreement the UCG would get title to all improvements and retain general supervision and control over the area.
The point is that if the park is to be maintained as a UCG public park, the UCG cannot surrender any portion of such public facility to private operators. See KRS 67A.030 and 67A.060. The court, in Board of Park Com'rs of Ashland v. Shanklin, 304 Ky. 43, 199 S.W.2d 721 (1947) 723, 724, makes it clear that "official dominion and discretion may not be surrendered, nor public functions delegated, in whole or in part, to another person who is not answerable to the people." This simply means that the public park must remain under the exclusive custody and control of Urban County Government. In addition, it appears from the facts that the general public might be excluded from the use of a part of the park system for a lengthy period of time. As said in the Ashland case, this would not be consistent with its free public use. Here the proposed lease would mean that the dominion and administration of all of the park facility would be less than absolute. Even if the lease contained the language that "UCG retains general supervision and control over the area", that somewhat illusory and rhetorical concept would not validate the lease because of the sharing-of-public-responsibility aspect. As the court wrote in Booth v. City of Owensboro, 274 Ky. 325, 118 S.W.2d 684 (1938) 686, there is no statutory authority for UCG to take a private corporation or private persons into partnership in conducting such public enterprise. The court further said: "The officers of a municipal corporation cannot so delegate the governmental discretionary authority confided to it by the legislature."
In summary, it is our opinion that Urban County Government cannot lease any portion of the public park land to private persons for commercial operations.