Request By:
Mr. Jim Mims, Director
Hopkinsville-Christian
County Planning Commission
Room 307 Courthouse Annex
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 25 in which you state that the Hopkinsville-Christian County Planning Commission has been confronted with a problem concerning old plats and deeds indicating streets that have been dedicated for public use but never formally accepted by either the city or the county as the case may be. The question is raised by some members of the commission as to whether these dedicated but unaccepted streets are public streets or still owned by the original subdivider.
KRS 100.277 concerns the commission's approval required for the recording and development of subdivisions. Subsection (3) provides that any street that has been dedicated shall not be accepted by the legislative body until recommended by the planning commission. In the case of
Kemper v. Cooke, Ky.App. 576 S.W.2d 263 (1979), the court declared that a street in a subdivision may be dedicated to public use following the approval of the planning commission, pursuant to KRS 100.277, but it must still be accepted by the fiscal court before it becomes a street which is open for the use of the public generally, though it no longer belongs to any individual. The court held further, however, that [in this case] the county's acceptance of a dedicated streets is not mandatory.
In holding that a dedicated street that has not been accepted no longer belonged to any individual and therefore cannot be closed to the extent that the property reverts to the abutting landowners or for that matter the subdivision owner, the court declared that:
"[3] It is clear that the subdivider dedicated the street for public purposes. The property in the dedicated area no longer belongs to any individual. The dedicated area cannot be closed in such a total manner as to have the property revert to the abutting landowners except by action brought in the circuit court. The dedicated way has not, however, reached the point where it has become part of the public system which is to be maintained by the public. The only way the abutting property owners would have any obligation to pay for the cost of constructing and opening a public way on Dee Street would be through a governmentally enforced improvement project as allowed by statute. Otherwise, the property owners are free to construct and maintain the quality of a common way in the manner they see fit for their own use and for the use of those who will travel the way to visit them."
It is clear from the holding in the above cited case, dedicated streets in the subdivision must be accepted by the city pursuant to statutory procedure [KRS 82.400 (2), S.B. 20, 1980] before the streets can become part of the city street system required to be maintained by the city. On the other hand, however, it does nevertheless become a public way open to the public to be maintained by the abutting property owners as they see fit, or possibly by the subdivider. In no event, however, do the dedicated streets revert automatically to the subdivider or abutting property owners where the city has not formally accepted them. Thus, an action in circuit court would appear to be necessary to reclaim the dedicated streets.