USE OF STATE PARK FOR TELEVISION TRANSMITTER

USE OF STATE PARK FOR TELEVISION TRANSMITTER

The erection of a television transmitter in a state park which will not interfere with the normal use of the park may be permitted (reversing opinion to Dir. of Parks, May 5, 1952 [[May 8, 1952, Opinion No. 51-53-300]]).

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                                                              September 11, 1952

Honorable John R. Vanderzicht
Director
State Parks and Recreation Commission
100 Dexter Avenue
Seattle 9, Washington                                                                                                              Cite as:  AGO 51-53 No. 402

Dear Sir:

            Reference is made to our opinion of May 8, 1952, relative to the right of the State Parks and Recreation Commission to permit erection of a television transmitter in one of the state parks.  Since that opinion was rendered numerous applications have been made to this office for a review of the opinion and we have now reconsidered the matter in the light of additional information.

            It is our conclusion that the Parks and Recreation Commission may, where the use of the area for park purposes is not to be interfered with, permit the installation of a television transmitter.

                                                                     ANALYSIS

            We are advised that Mt. Spokane State Park is, by its geographical location and height, the only suitable spot for the erection of a television transmitter to serve a large sector of eastern Washington and unless this location can be obtained for such a transmitter the advantages of television will be denied to large areas of the state.  The powers of the State Parks and Recreation Commission as set out in RCW 43.51.040 (§ 1, chapter 148, Laws of 1929) include the right to grant concessions in state parks, the limitation being that no concession shall be granted which shall prevent the public from having free access to the scenic attractions of any park or parkway.  The statute does not, in terms, restrict the granting of concessions to those uses which will serve the purposes for which the park is  [[Orig. Op. Page 2]] generally operated.  Under RCW 43.51.020 (§ 6, chapter 149, Laws of 1921; RRS § 10946) all state parks are set apart and dedicated for the benefit and enjoyment of all of the people of the state.  However, such a dedication does not, in our opinion, prevent every use which may be made of the park for a different purpose where its use as a park will not be interfered with.  This is particularly true where the governing body of a park determines that a public service facility should be permitted to make the use of it.  Thus, in the case ofCaldwell v. Seattle, 75 Wash. 565, 135 Pac. 470, a sewer was permitted to be constructed across a park dedicated for public purposes.  The contention was made that this was a diversion of the park property to another purpose.  The supreme court said:

            "* * * Parks are relatively necessary in modern cities, but sewers are absolutely necessary, and courts will not control the discretion of the governing bodies of cities when they have ordained that a sewer shall be placed in a park, nor will the necessity of laying the sewer on the top of the ground be reviewed.

            "The judgment of the court is sustained by reference to the principles announced inSeattle Land and Improvement Company v. Seattle, 37 Wash. 274, 79 Pac. 780.  The building of the sewer upon the city's property is not necessarily a diversion of the uses of the park, * * *"

            In the present case, if we are correctly informed, a television transmitter will provide a service to the public which otherwise will not be available to a large segment of the population.  It has in that sense all the attributes of a public utility.  Indeed, it is actually an instrumentality for recreation in the state and in that sense serves indirectly one of the purposes for which the State Parks and Recreation Commission functions.

            It is, therefore, our opinion that if a television transmitter can be erected without unduly interfering with the public enjoyment of the park, it is within the discretion of the State Parks and Recreation Commission to permit such operation.

Very truly yours,

SMITH TROY
Attorney General