April 25, 1986

Mr. Jack Gunvordahl 
City Attorney 
Post Office Box 352 
Burke, South Dakota 57523

OFFICIAL OPINION NO. 86-15

Vacating street for school purposes

Dear Mr. Gunvordahl:

On behalf of the City Council of the City of Burke, South Dakota, you have requested my opinion concerning the following:

FACTS: 

The Burke City Council has been allowing the Burke Public Schools to rope off or barricade a street just south of the public school building during school hours.  The school board has now petitioned the Burke City Council, as owner of real estate on both sides of the street, to vacate the street entirely.  Since there has been a considerable amount of opposition to vacating the street entirely, the City Council would consider legally closing the street during school hours and allowing it to be used for public traffic during non-school hours.

Based upon the foregoing facts you have asked the following question:

QUESTION: 

Can the City of Burke legally close the street during school hours by placing barricades across the street and re-opening it after school hours?

IN RE QUESTION:

Several statutes have at least an indirect bearing upon the question you ask.  As implied from your question, SDCL Ch. 9-45 would, under proper  circumstances, allow the City Council to totally vacate the street in question.  In addition, SDCL 9-30-2 empowers the municipalities to regulate the use of sidewalks, streets and alleys, etc.  Use of the latter statute must be tempered by the consideration that the statute grants municipalities powers to 'prevent any practice having a tendency to annoy persons frequenting the street.'  Arguably, that language could be seen to prevent the city from temporarily barricading the street.  I do not believe that the statute clearly requires that outcome, since it appears to address prevention by the City Council of practices of others which have a tendency to annoy persons frequenting the street.

Since there is a specific statute directly on point, it is my opinion that the statute would control the more general sections cited above.  SDCL 32-25-14.1 provides: 

Municipalities and counties may establish posted school zones to regulate the traffic in the proximity of a school area.  All traffic control devices used in school zones shall conform to a manual on traffic control for school areas adopted by the department of transportation.  The manual shall provide a uniform system of warning, regulating and guiding traffic through a school area.  A municipality and county in the placement of traffic control devices as required by this section shall only be required to replace those currently used devices in the normal course of planned maintenance and replacement.  [Emphasis supplied.]

The clear words of the statute set out above authorizes the municipality to establish school zones and to regulate the traffic in the proximity of a school area.  In the fact situation you present, it appears that the street in question runs directly through the school premises and that the adjoining landowner along the entire length of the street under consideration is the school board.  Given the municipality's authority to establish a school zone and regulate traffic in proximity in the school area, it is my opinion the Burke City Council may completely prohibit traffic on this portion of the street during school hours.  Of course, it must be designated as a posted school zone and the traffic control device must conform to the appropriate manual adopted by the Department of Transportation.

Accordingly, my answer to your question is yes.

Respectfully submitted,

Mark V. Meierhenry
Attorney General