Request By:
Honorable Robert L. Rose
Attorney at Law
Courthouse
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 14 in which you relate that a subdivision developer out in the county has recently requested that he be permitted to reduce the width of a street from thirty (30) feet to twenty-six (26) feet in order to retain certain trees. The county's subdivision regulations require that all streets be paved thirty (30) feet in width. The developer first appeared before the planning and zoning commission, which approved the reduction in the width of the street, and then later appeared before the fiscal court seeking its approval of this change. In connection with the problem you relate that KRS 100.241 authorizes the board of adjustments to grant dimensional variances, however, no specific mention is made in this statute indicating whether it applies to streets as well as to lots. Under the circumstances, you raise the following question:
"We would appreciate your opinion as to who has authority to grant a variance for the width of the street, the Planning Commission, the Fiscal Court, or the Board of Adjustments, or any combination of the three."
After reviewing your problem, we have concluded that it is not a zoning matter. According to our phone conversation, the developer's subdivision plat has been approved by the planning commission, presumedly pursuant to KRS 100.277. The subdivision plat must, of course, indicate the streets which become dedicated as public ways upon the plat's approval by the commission under subsection (3). As a consequence, such streets will then become county roads upon acceptance by the fiscal court which, along with all other county property, are exempt from planning and zoning pursuant to KRS 100.361(2). Ref. OAG 73-315.
County roads, as you know, are under the control of the fiscal court pursuant to Ch. 178 KRS. The width of county roads is controlled by KRS 178.040, which provides in effect that all county roads established following the enactment of said statute shall occupy a right of way of not less than thirty (30) feet wide. Subsection (2) reads in part as follows:
"All county roads hereafter established shall occupy a right of way not less than thirty (30) feet wide, but the county court may order it to be a greater width. . . ."
Under the circumstances, it would appear that your question actually involves a public way and a county road which would be under the control of the fiscal court and Ch. 178 KRS. Of course, the minimum right of way established by KRS 178.040 (2) has nothing to do with the actual width of the paved surface of the road which could possibly be fixed at twenty-six (26) feet by the fiscal court to preserve the trees in question.