Request By:
Mr. Thomas C. Brite
Attorney at Law
Court Square
Hardinsburg, Kentucky 40143
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 7 on behalf of the city of Hardinsburg relative to the closing of a city street. You relate that in January, 1975 an ordinance was passed and published by the city council at the request of a group of citizens to close a city street. The ordinance in question followed the initial terms of KRS 94.360 but the city has never instituted an action in circuit court to actually close the street as also directed by the referred to statute. Under the circumstances, you raise the following questions:
". . . The question therefore is can the city still file the law suit to close the land in circuit court as a result of the January, 1975 ordinance, or must a new ordinance be passed if this road is to be closed? Also, I might add that since the ordinance was passed, many of the individual land owners affected have considered the road closed and have acted accordingly. In your opinion, what is the status of the road presently, that is, with the adjacent land owners acting as if the road had been officially closed?"
KRS 94.360 authorizes the city to close any public way pursuant to the adoption of an ordinance, followed by the institution of an action in circuit court in which all owners of lots abutting the street are made defendants. The court then directs that the public way be closed following a jury trial if the defendants object. We find, however, no provision under subsection (2) of KRS 94.360 indicating any time limit as to when such suit must be instituted following the passage of the initial ordinance. As a consequence, we know of no legal objection to such suit being instituted at this time even though the ordinance was enacted in January, 1975. Until, however, such suit is instituted and the court has ruled on the question, the street legally remains open irrespective of the attitude of the adjacent land-owners.