Request By:
Mr. Tommy J. Wilson
Carlisle County Judge Executive
P.O. Box 279
Bardwell, Kentucky 42023
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the use of county park property. It reads:
"Some years ago, Carlisle County Purchased a tract of land for a county park, picnic areas, ball parks, and a tennis court was later added. A county fair is held yearly at the park.
"A grant of $20,000.00 was obtained from the state for construction of a building used for concessions, exhibits, etc., in the park.
"My question is: Can the park board legally construct a strip for the purpose of tractor pulls, four wheel drive pulls, and three wheel motor bike races, in the middle of the park?
"Some local people are complaining about the noise, where the activity is now."
KRS 67.083(3)(f) expressly authorizes fiscal courts to establish county parks and recreation areas. By that provision the term "parks" is practically equated with the term "recreation areas." The court, in O'Bryan v. City of Louisville, Ky., 382 S.W.2d 386 (1964) 388, in considering KRS 97.010(1), providing for "parks, playgrounds and recreation centers", held that Louisville had the authority under the statute to establish and maintain a zoo, although there was no statute specifically authorizing a zoo operation. Black's Law Dictionary, at page 1271, defines a park in American law as "An inclosed pleasure-ground in or near a city, set apart for the recreation of the public. Riverside v. MacLain, 210 Ill. 308, 71 N.E. 408, 66 L.R.A. 288, 102 Am. St. Rep. 164." Thus the "park" concept is historically wedded to the "recreation" concept. The word "recreation" is defined in Webster's Seventh New Collegiate Dictionary, at page 716: "A means of refreshment or diversion."
Thus the broad treatment given the term "parks" in the above authorities suggests that a county, in establishing and maintaining a park, may include in its programming any lawful and decent activity calculated to entertain the public generally, and reasonably calculated to promote the health, comfort and pleasure of the citizens of the county. 10 McQuillin, Municipal Corporations, § 28.51, pages 157-158. "Authority to maintain a park carries with it the power to maintain a bathing beach, a swimming pool, zoological garden, or golf course." Ibid., § 28.51, page 158.
Thus the broadness of the term "park" means that "its meaning is to be determined by the circumstances connected with its use." 67A C.J.S., Park, page 604. The procurement and maintenance of public parks are governmental functions. Kentucky Lake Vacation Land v. State Prop. & B. Com'n, Ky., 333 S.W.2d 779 (1960) 784.
CONCLUSION
It is our opinion that the fiscal court, in determining whether or not to permit the county park board (the management unit for the county, working under policies established by the fiscal court) to construct a strip for tractor pulls, four wheel drive pulls, and three-wheel motor bike races, should consider these factors:
(1) Are these events calculated to be of general recreational benefit to the public, the county citizenry?
(2) Would these events promote the health, comfort and pleasure of the public?
(3) Would these activities, instead of contributing to the aesthetic enjoyment of ear and eye, constitute a perversion of the lands from park purposes?
(4) Are these events in the realm of lawfulness and decency?
The nature of the screening criteria are such that this office cannot directly answer your ultimate question, since you would have to apply the criteria against all of the known and critical facts surrounding such proposed use of the county park.
As relates to the noise problem, the fiscal court should give serious thought as to whether such activities would involve a nuisance. See OAG 84-39, treating the subject of nuisances in detail, copy attached; and City of Bowling Green v. Rogers, 142 Ky. 558, 134 S.W. 921 (1911), relating to a city jail as a nuisance. In Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181 (1960) 186, 187, the court wrote this about a nuisance:
"Without fully subscribing to the serpentine approach of the Restatement of the Law of Torts, (Ch. 40, paragraphs 822-831), we accept the proposition that the existence of a nuisance must be ascertained on the basis of two broad factors, neither of which may in any case be the sole test to the exclusion of the other: (1) the reasonableness of the defendant's use of his property, and (2) the gravity of harm to the complainant. Both are to be considered in the light of all the circumstances of the case, including the lawful nature and location of the defendant's business, the manner of its operation, and such importance to the community as it may have; the kind, volume, time and duration of the particular annoyance; the respective situations of the parties; and the character (including applicable zoning) of the locality. The extreme limits are therefore, on the one hand, the reasonable use causing unreasonable damage and, on the other hand, the unreasonable (or negligent) use causing damage that is more unnecessary than severe."
The fiscal court should carefully study the possibility of tort liability arising out of such dangerous activities. See 59 Am.Jur.2d, Parks, Squares, Etc., § 38 et seq., page 297. Of course a county is free from tort liability under the doctrine of sovereign immunity. However, that doctrine does not extend to individual members of a fiscal court. See Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408.