December 15, 1977

Mr. Gene Paul Kean 
Minnehaha County State's Attorney 
Minnehaha County Courthouse 
Sioux Falls, South Dakota 57102

Official Opinion No. 77-98

Authorized uses of municipal property dedicated for park purposes

Dear Mr. Kean:

You have requested an opinion based on the following factual situation:

FACTS: 

The City of Sioux Falls has a park and recreation department organized pursuant to SDCL 9-38.  Recently the municipal water department has requested permission of the Park and Recreation Board to place an underground water storage structure within the boundaries of one of the city parks.  In view of the statutory restrictions found in SDCL 9-38, and particularly SDCL 9-38-35 regarding the purposes and uses of public parks, the authority of the park board to permit such a project has been questioned.

Based on the above factual situation you have asked the following questions:

QUESTIONS: 

1.  May the Park and Recreation Board grant to the Water Department of the City of Sioux Falls permission to construct a water storage structure within a City park? 
    
2.  Assuming the answer to question number one is yes, does the Park and Recreation Board have any say as to where the structure will be constructed and its design to prevent interference with park use?

IN RE QUESTION NO. 1:

The specific statute in question is SDCL 9-38-35, which provides: 
    
9-38-35. Neither the governing body nor the board shall have authority to permit any person to build or maintain any structure within any park or parkway under the control of the board, nor shall any structure be erected or maintained within any park or parkway except such structures or buildings as may be erected by the board for park purposes, and such statues, monuments, works of art, or structures intended for ornamentation only as may be erected by authority of the board.  (Emphasis added.)

The crucial language in the statute is the phrase “except such structures or buildings as may be erected by the board for park purposes.”  If a water storage structure can be considered a legitimate use of park property, SDCL 9-38-35 would permit the construction of such a facility within the park.

A similar factual situation was the subject of Official Opinion No. 76-54.  In that opinion the legality of permitting vending stands in a municipal park was discussed.  It was my opinion therein that the determination of whether a particular structure falls within the purview of “park purposes” must be made by the appropriate governing body.  The statute is not so specific as to delineate permissible structures from those which would not be permitted, and thus it is not possible for this office to make a determination solely on the basis of the law.

In my opinion the Park and Recreation Board must decide whether a water storage structure would be beneficial to and consistent with park usage.  It goes without saying that there are any number of legitimate needs for the use of water within a park.  Therefore, the Board should make its decision and, pursuant to SDCL 9-38-21, take appropriate official action by adopting a resolution.

My position is supported by court decisions such as Summit County Historical Society v. City of Akron, 183 N.E.2d 634 (Ohio 1961), wherein the Ohio Supreme Court stated that “public usages and welfare of the people require different and changing concepts of the property and beneficial purposes of public parks.”  That court held that the determination of whether a particular park project was necessary and of public value was a matter within the control and discretion of the local governing body.

Another decision which is factually distinguishable but conceptionally similar is Howe v. Lowell, 51 N.E. 536, in which the Massachusetts Supreme Court upheld the decision-making authority of a local governing body to construct an underground water supply system through park property.

It is my opinion that the Park and Recreation Board may, by appropriate official action, declare the need for and public purpose to be served by construction of a water storage tank within the park.  The answer to your first question is yes.

IN RE QUESTION NO. 2:

The answer to your second question is implicit in the preceding discussion of the park board's authority.  Pursuant to SDCL 9-38-20, et seq., the Park and Recreation Board is vested with the duty and responsibility to manage and regulate the parks under their jurisdiction.  Therefore, it is my opinion that the Park and Recreation Board should clearly dictate the terms and conditions under which a water storage structure will be constructed.  The answer to your second question is also yes.

Respectfully submitted,

William J. Janklow
Attorney General

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