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
Application has been made to the Area Development Fund to construct a complex consisting of four lighted and fenced tennis courts and one picnic shelter. The project will be operated by the Ballard County Fiscal Court as a public recreational facility on land leased from the Ballard County Board of Education for a term of fifty years.
The statute, KRS 42.350 states;
". . . . the fund shall not be used directly or indirectly for the acquisition, construction, reconstruction, renovation or maintenance of any school or school property . . ."
Your question is whether or not the subject proposed project property constitutes "school property" within the prohibition contained in KRS 42.350. The answer is "no".
The lease from the Ballard County Board of Education to the Ballard County Fiscal Court is for a term of 50 years, with the understanding that it is to be used by the general public for recreational purposes. The monetary consideration is nominal [$1 per year]. The Ballard Fiscal Court has quiet possession and complete control over the land and the recreational complex, which will be constructed on the land. Paragraph 7 of the lease provides for a forfeiture of the lease in case of breach of covenant on the part of fiscal court.
We are of the opinion that the phrase "school property" must be literally construed, since it unambiguous. Thus it is our opinion that the subject real estate, being under the county's possessory control under this long term lease, is not "school property" in the sense intended by the statute. The statute literally refers to land owned by a school district and held for "school purposes" as envisioned by the Constitution and statutes. See §§ 180, 183, and 184, Kentucky Constitution; and
Board of Education of Madison County v. Wagers, Ky., 239 S.W.2d 48 (1951).
We assume from the facts given that this situation is not one in which a school board executes an agreement for the development and maintenance on school property of recreational facilities for school and community purposes pursuant to KRS 160.293.
The expected life of the recreational complex is around 30 years, which is considerably less than the term of the lease.
It is our conclusion that Area Development Funds may be used to construct the recreactional complex, since it does not involve, for the life of the county's project, a school or school property. The fact that the improved property will be surrendered to the school district after the life of the project has terminated does not militate against the proper use of the fund for this county purpose. We think the specific terms of the lease remove the application of the "school property" prohibition of the statute, and that 30 years of project life is ample to sustain the expenditure of the fund for such county [not school] purpose.
Our analysis, based upon the literal construction of the phrase "school property" , finds support in the court's doctrine that where the legislative intent is clearly evidenced, the court is bound by the plain meaning of the language used in the statute.