Request By:
Honorable Norbert P. Gettys
Attorney at Law
N.W. Corner 3rd & Court
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 2 concerning an alleged agreement or contract entered into between the council of the city of Highland Heights and a property owner, to close a portion of a street, pursuant to KRS 94.360, along which the individual's property abuts. As part of the agreement, the property owner agreed to pay all court costs and any attorney's fees which the city may reasonably require. The council apparently entered into the agreement pursuant to a motion passed by a unanimous vote. However, at a subsequent meeting of the council and before the council enacted an ordinance directing the city attorney to file suit in circuit court pursuant to the terms of KRS 94.360, the council reconsidered its previous motion and withdrew its approval pending the outcome of a study by the zoning commission as to whether the section of the street might feasibly be needed by the city in the future. The property owner apparently contends that the city entered into a binding contract with him which it cannot rescind. Thus, the question is raised as to whether or not the city is bound by the agreement.
In response to your question, we are of the opinion that the so-called agreement or contract is ultra vires on the ground that the city cannot deprive itself by contract of the power expressly given it by statute [KRS 94.360] to determine in the public interest whether or not a public street should be closed.
We find no specific domestic cases directly in point, however, there are a number of foreign cases covering this subject cited in McQuillin, Mun. Corps., Vol. 10, Sections 29.06 and 29.07. For example, in the case of
Covington M & R Co. v. Athens, 85 Ga. 363, 11 S.W. 663, which involved a contract to vacate a street, the court declared that the power of control exercised over a street by a municipality does not include the power to contract to vacate a street. McQuillin also cited the established rule to the effect that cities have no power to make contracts which will control them in the performance of their legislative powers and duties or curtail or prohibit the exercise of administrative or legislative powers of the city. Any such contract is ultra vires.
Seidel v. Seward, 178 Neb. 345, 133 N.W. 2d 390.
In the case of
Penley v. Auburn, 85 Me. 278, 27 A. 158, 21 LRA 657, it was declared that a city cannot agree, for compensation, to keep open and unobstructed, a street. In the case of
San Diego County v. California Water & Telephone Co., 30 Cal. 2d 817, 186 Pac. 2d 124, it was held that an agreement by local officials to abandon, vacate or sell a road is void because it constituted an improper attempt by the officials to bind themselves in advance as to the exercise of their judgment in the future and because the consideration offered might influence their future decisions which must be made primarily upon consideration of public necessity for highway purposes. We will conclude by citing the case of
Womack-Rayburn Co. v. City of Worthington, 262 Ky. 710, 91 S.W.2d 13 (1936), [cited under § 162 of the Constitution] which expressed the general rule to the effect that a municipal governing body cannot bind a municipality by contract beyond its powers or foreign to the purposes of the municipality or against public policy.
Under the Constitution we do not believe the council had the authority to enter into the agreement in question and, as a consequence, such agreement is, in our opinion, void and unenforcible.
We might add that KRS 94.360 is repealed as of July 15 and Senate Bill 30, Section 2, replaces it with respect to the procedure for closing a public street.