[1994/oagheade.htm]

OAG 94-21

March 30, 1994

Hon. Alan C. Stout

Crittenden County Attorney

P. O. Box 81

Marion, Kentucky 42064

Re: Whether County May Construct or Maintain Private Driveway Needed to Accommodate Parking School Bus on Bus Driver's Property.

Dear Mr. Stout:

By letter of December 9, 1992, you posed the following question:

May the Crittenden County Fiscal Court expend funds for the construction and/or maintenance of a private driveway when the improvement is needed to accommodate the parking of a school bus, where the land owner is the school bus driver?

In our view the answer is no, for the reason that there is no statutory authorization for such action, and for other reasons indicated in this opinion. Discussion follows.

It is well recognized that counties, as creatures of the state, may do that which they are expressly authorized to do by the Constitution of Kentucky or by statute. See, for example, Hogge v. Rowan County Fiscal Court, 313 Ky. 387, 231 S.W.2d 8 (1950). And see, Fiscal Court Etc. v. City of Louisville, Ky., 559 S.W.2d 478, 481 (1977), wherein the court noted:

Tradition establishes that county government in Kentucky is based on the premise that all power exercised by the fiscal court must be expressly delegated to it by statute.

Regarding what have come to be called "school bus turn arounds," KRS 178.290(2) provides that:

The fiscal court may, where needed, build and maintain suitable areas for the safe turning around of school buses.

Based upon the statutory language quoted immediately above, there is no question that there is legislative authority for a county to construct and maintain "where needed . . . suitable areas for the safe turning around of school buses." See, in such regard, Opinion of the Attorney General (OAG) 72-134; 81-428; and 82-136, copies enclosed. There is, however, no statute authorizing a county to construct and maintain private driveways needed to accommodate parking of a school bus.

The literal words of your letter indicate that the activity (construction and maintenance) is "needed to accommodate the parking of a school bus." They do not indicate that such activity is "needed . . . for the safe turning around of school buses," as provided for by KRS 178.290(2). Accordingly, we believe the construction and maintenance asked about in your letter cannot be lawfully carried out with county resources, as there is no statutory authority for such activity by a county. There are also constitutional concerns in such regard.

First, Section 171 of the Constitution of Kentucky limits the expenditure of tax revenues to public purposes only. A county road department, which carries out the construction and maintenance of school bus turn arounds, is funded with tax revenues. Its activities thus must be for a public purpose. Improvement of private property is typically considered to involve a private rather than a public purpose. See, for example, OAG 73-290.

Second, the revenues which fund a county road department are principally, if not exclusively, derived from what might generally be termed "transportation related taxes and fees." Such taxes and fees are restricted by Section 230 of Kentucky's Constitution to being spent for, as pertinent here, "costs of construction, reconstruction, rights of way, maintenance and repair of public highways and bridges . . . ."

It follows that the only "school bus turn around" that a fiscal court might properly construct and maintain with county road department resources is one which can be reasonably justified as a part of the public highways (e.g., a county road), on the basis of its being "needed to accommodate the safe turning around of school buses." KRS 178.290(2). Construction or maintenance of a private driveway needed to accommodate the parking of a school bus on property owned by a school bus driver does not meet this standard.

A fiscal court should not authorize construction or maintenance of a school bus turn around unless (1) it makes a bona fide specific finding that a given turn around is needed, which we construe to mean "necessary," as a part of the public highways for the safe turning around of a school bus, and, (2) a written easement documenting the public purpose involved, and the specific location and extent of the turn around, is obtained and retained of record. Constitution of Kentucky, Sections 171 and 230. KRS 178.290(2). OAG 72-134, 81-428, 82-136.

Of possibly related interest see OAG 93-63 (copy enclosed), indicating that school funds cannot be lawfully expended for construction and maintenance of school bus turn arounds.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General