Request By:
Honorable Sherman Dean, Jr.
Jessamine County Judge-Executive
Jessamine County Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting the following fact situation and question:
"Jessamine County Fiscal Court has been requested to take a four hundred (400) feet section of road into the County road system where the road is privately owned property and serves twelve (12) to fifteen (15) rental units. Does the Fiscal Court have authority to take this road into the County road system and to maintain it from public funds?"
As defined in part in KRS 178.010(1)(b), county roads are public roads which have been accepted by the fiscal court of the county as a part of the county road system or private roads, streets, or highways which have been acquired by the county pursuant to KRS 178.405 to 178.425. KRS 178.405 to 178.425, however, will not apply to your county. KRS 178.405 deals with private roads, streets or highways established prior to February 12, 1969, in an unincorporated area in a county containing a city of the first class and used by the general public openly, continuously and notoriously for a period of at least fifteen years.
KRS 178.115 relates to the power of the fiscal court to establish a road. Under that statute the establishment of a county road is left to the sound discretion of the fiscal court and it depends upon whether the fiscal court deems the acceptance of such road to be in the best interests of the county. If it has been so determined, the fiscal court must declare a public necessity as required by the statute. See Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960) and OAG 72-80, copy enclosed. KRS 178.115 is also discussed in OAG 72-81, copy enclosed, and at page two of that opinion we said:
". . . KRS 178.115 provides a method whereby the fiscal court by resolution, if it is deemed to be in the best interests of the county, may set forth the necessity for such roads and thereby the roads may be deemed established in the initial sense, subject to any action on appeal under that statute. Actually the resolution is only a first step in the opening of a street or road prior to condemnation. While the resolution would formally indicate an acceptance of such roads, the resolution must necessarily take place prior to acquisition of the property involved . . . ."
Furthermore, in connection with taking a road into the county road system, we again direct your attention to OAG 72-80 where we set forth factors to be considered in making such a determination. The county attorney should advise the fiscal court as to whether the county has acquired at least the title for road easement purposes in the event the fiscal court decides that inclusion of the road in question into the county road system is in the county's best interest. The condition of the proposed road would be a factor as to whether it should be brought into the county road system. Acquisition and maintenance costs must be carefully computed in relation to the county treasury and the acceptance of a road into the county road system is subject to county budget and financial limitations.
KRS 178.010, defining county roads, envisions a formal acceptance by the fiscal court, pursuant to an appropriate order, of a road into the county road system. See KRS 67.080(1) and Illinois Central Railroad Co. v. Hopkins County, Ky., 369 S.W.2d 116 (1963). As long as a road is a county road and it has not been properly closed pursuant to the method set forth in KRS Chapter 178, the fiscal court must properly maintain the road for public use. KRS 67.080(9); KRS 179.200; and Shearer v. Hall, Ky., 399 S.W.2d 701 (1966).
Therefore, the fiscal court has the authority to establish an existing road as a county road and whether it does or not is left to the sound discretion of the fiscal court. It must determine whether such an action is in the county's best interests, considering such factors as the cost of acquisition and maintenance of the road, the condition of the road at the present time and the impact of such action on the county's budget. Before a road becomes a county road it must be formally accepted by the fiscal court into the county road system pursuant to an appropriate order. As long as a road is a county road it must be properly maintained for public use by the fiscal court.