Request By:
Mr. Dale Wright
Anderson County Attorney
Main and Court Place
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Kentucky Revised Statute 179.470(1), as amended in 1980 (effective July 15, 1980), provides that in certain counties subdivision roads shall be maintained by the fiscal court, if the road or street is at least one thousand (1,000) feet in length and at least fifty percent (50%) of the lots abutting the street or road contain occupied houses, and the street or road construction meets the approval of the county road engineer or, if there is no engineer, the approval of the fiscal court, the approval being based upon the established standards for county road construction.
Your question reads:
"Is it mandatory that before a fiscal court accepts a road for perpetual maintenance, fifty percent (50%) of the lots abutting the street or road contain houses which are occupied; and secondarily, does the fiscal court have sole control of establishing the standards for road construction?"
Anderson County contains the city of Lawrenceburg, a 4th class city. The applicable provisions for your county in maintaining subdivision streets or roads in the unincorporated areas of your county are found in subsections (3) and (4) of that statute. Subsection (3) provides in part that any such road or street, which is at least 200 feet in length and dedicated to public use, may be maintained by the fiscal court "in the same manner" as provided in subsection (1). (Emphasis added). "In the same manner" apparently refers to the same manner that roads established under KRS 178.115 are maintained. That simply means in the same manner that "county roads" are maintained.
KRS 179.470(3) reads in part:
"In addition, street lights, garbage collection, water and sewer services may be provided by the fiscal court. The county shall be reimbursed for the cost of such maintenance and services by the abutting property owner whose proportionate share of the cost of maintenance and services shall be added to the owner's county tax bill and collected in the same manner as county taxes. Further, upon the petition of fifty percent (50%) or more of the abutting property owners of the street or road the fiscal court may by proper resolution provide for the improvements in the same manner as the improvements set forth in KRS 94.291 to 94.325."
The answer to your question is that concerning the maintenance of a subdivision street or road by the county, the conditions are that the street or road must be at least 200 feet in length and dedicated to public use; and the maintenance must be performed under approval of the county road engineer or the fiscal court under established standards for county roads, as the case may be; and at least fifty percent (50%) of the lots abutting the street or road must contain occupied houses. The street maintenance is subject also to the condition that 25% of the abutting owners must petition for the maintenance, and 50% of the abutting owners must agree in writing to accept county maintenance, pursuant to KRS 179.470(4).
Where additional services described by the statute (subsection (3)) are provided by the fiscal court, including street lights, garbage collection, water and sewer services, the condition is that, assuming the road or street meets the conditions above mentioned for maintenance of the street or road, and where 50% or more of the abutting property owners of the road petition fiscal court for such improvements, the fiscal court should by proper resolution provide for the improvements under the guidelines of KRS 94.291 to 94.325 (repealed by 1980 Acts, Ch. 239, § 4, effective July 15, 1980; and Ch. 234, § 11, eff. July 15, 1980). The new legislation in those chapters just referred to relates to city home rule and city financing of special assessments. See KRS 91A.200 et seq., and 82A.081 et seq.
In counties containing a fourth class city, the county may be reimbursed for the cost of maintenance of a road or street or for the additional improvements of street lights, garbage collection, water and sewer services, by imposing special assessments. It is the rule that when necessary to carry out the obvious intention of the legislature, disjunctive words can be construed as conjunctive, and vice versa. Shepard v. Morgan, Ky., 246 S.W.2d 131 (1952) 135. Even though KRS 179.470(3) reads that the county shall be reimbursed for the cost of such "maintenance and services" by the abutting property owner, the reading of the entire statute indicates that the provision, relating to 50% of the lots abutting the street being required to have occupied houses, applies under subsections (1), (2), and (3). The "50% of the lots abutting" is simply the mechanism for making the special assessments possible, regardless of whether just a road is maintained or whether road maintenance and any of the other services, such as street lights and garbage collection, are involved conjunctively.
Our conclusion is based upon the principle that the entire statute must be read as a whole. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517 (1955). Further, the reason for the applicability of the condition that 50% of the lots must contain occupied houses is that there must be a reasonable basis for placing assessments against the benefited property owners in order to adequately finance such services and improvements by way of reimbursement to the county. The county cannot generate enough assessment money through the county tax bills if there are not at least a fifty percent house occupancy on the affected lots. That was the legislative purpose behind the "50% house occupancy" provision.
This conclusion, based upon the literal provisions of the statute, eliminates standards, relating to the street or road and improvements thereon, as determined under KRS Chapter 100 (planning and zoning) . Thus this amended statute, KRS 179.470, must control as the later and specific expression of legislative will. Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400; and Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939) 239. See also KRS 179.070, 67.080(2)(b) and 67.083(3)(t).
The question naturally arises as to the relationship between the conventional method of accepting road segments into the county road system for maintenance, pursuant to KRS 178.010(1)(b) and 178.115, and the special method of accepting subdivision road segments under the conditions outlined in KRS 179.470.
The answer is that the two methods are basically mutually exclusive. A fiscal court can, in its sound judgment, accept a subdivision road in the unincorporated part of the county as a part of the county road system, pursuant to a formal order under KRS 178.010(1)(a) and 178.115. In such case the terms and conditions of KRS 179.470 would not apply. For example, the requirement of KRS 179.470 that at least fifty percent (50%) of the lots abutting the road contain houses which are occupied would have no application under the conventional method. See Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). However, where the fiscal court decides to accept for county maintenance a subdivision road under KRS 179.470 (it is not mandatory in a particular case), it must then observe the various conditions of the latter statute, including the provision about 50% of the abutting lots containing houses which are occupied. Moreover, where the maintenance acceptance is formalized under KRS 179.470, the fiscal court must make the assessments provided for in the statute. Assessments, however, when considered under the conventional method of county road acceptance, are not permitted.
CONCLUSION
It is our opinion that where a fiscal court, in a county containing a fourth class city, accepts a subdivision road or street for maintenance, including other improvements, such as street lights or garbage collection, it is mandatory that at least 50% of the lots abutting the street or road contain houses which are occupied. Special assessments to recover the county's cost may be imposed by the county against the benefited property owners where road maintenance or other services, such as street lights and garbage collection, or both street maintenance and other services described in the statute, are involved. It is also our opinion that the standards for such road maintenance will be those established standards for county road construction within the county, other than those standards established under the planning and zoning function, as treated in KRS Chapter 100.
The conventional system of county road acceptance under KRS 178.010(1)(b) and 178.115, and the special acceptance procedure under KRS 179.470 are mutually exclusive. A subdivision road may be taken into the county road system by the conventional method; and the provisions of KRS 179.470 would not apply.