Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your recent letter raises questions about county roads and subdivision roads:
Question No. 1:
"The Jessamine County Fiscal Court needs information whether the Amendments to KRS 179.470 change or restrict the authority of a fiscal court to accept a road into the county road system under KRS 178.010(1)(b) or to establish a road under KRS 178.115?"
Your county contains Nicholasville, a fourth class city. Thus under KRS 179.470(3), as amended in 1980, any street or road in an unincorporated area which is at least two hundred (200) feet in length and dedicated to public use may be maintained by your fiscal court in the same manner as provided in subsection (1) of the above named statute. We pointed out in OAG 80-583, copy enclosed, that "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" (see KRS 178.010(1)(b)) are maintained.
Actually KRS 179.470, as amended, contains no restrictions on the fiscal court's accepting a "subdivision" road or a "nonsubdivision road" as a part of the county road system pursuant to KRS 178.010(1)(b) and 178.115. The statute in question, KRS 179.470, deals with a specific subject, i.e., the maintenance of subdivision roads in the county. Where that statute is applied (179.470), the precise terms of the statute must be observed.
As we said in OAG 80-583, and 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 the 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 lost 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 maintenance, and 50% of the abutting owners must agtree in writing to accept county maintenance, pursuant to KRS 179.470(4).
Question No. 2:
"Does the fiscal court have the authority to accept a paved road in a subdivision under KRS 178.010(1)(b) and place the road in the county road system without cost to the owners of lots in the subdivision?"
The answer is "yes". The establishing of a road pursuant to KRS 178.010(1)(b) and 178.115 (county roads) and the maintenance of subdivision roads or streets under KRS 179.470 are mutually exclusive (unrelated, procedurally). Thus the acceptance of maintenance by fiscal court of a subdivision road in the unincorporated part of the county may be done according to the terms of KRS 179.470, or in the conventional manner under KRS 178.010(1)(b) and 178.115. The conventional approach does not authorize assessments.
Question No. 3:
"Does KRS 179.470 as amended by the 1980 legislature give the fiscal court a discretionary right to assess costs of road improvement to owners of lots in subdivisions or is it mandatory? "
As we concluded in OAG 80-583, where KRS 179.470 is used, special assessments to recover the county's cost must be imposed by the county against benefited property owners where subdivision road maintenance or other services, such as street lights and garbage collection, or both maintenance and street lights and garbage collection, are involved. In subsections (2) and (3) it is stated that the "county shall be reimbursed", etc. When reading the entire statute as a whole, it is our view that the placing of assessments on benefited properties is required. In subsections (3) and (4) of the statute, the phrase "may provide for improvements" or "may provide for maintenance" is used. Only by reading the statute as a whole can we arrive at a reasonable construction of the statute. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517 (1955). Thus we construe the assessment provision to be mandatory. KRS 179.470 so clearly establishes a basis for assessment that it is rather obvious that assessments were intended if KRS 179.470 is to be used by fiscal court.
When we read the statute as a whole (KRS 179.470), we conclude that accepting a subdivision road for maintenance or for other described services or both by fiscal court is permissive (not mandatory) . However, we conclude that making the special assessments for subdivision road improvements is mandatory, where KRS 179.470 is used.
Question No. 4:
"Does the fiscal court have the authority to maintain temporarily or occasionally a road which has not been accepted into the county road system, but which is a public road used by the school buses, mail service and general public?"
KRS 67.080(2)(b) and 67.083(3)(t) provide for the fiscal court's authority to construct and maintain "county roads". It is our opinion that those statutes envision "county roads" that are accepted by fiscal court, through a formal order, as a part of the county road system. Sarver v. County of Allen, Etc., Ky., 582 S.W.2d 40 (1979). These statutes do not permit temporary improvement of roads not accepted into the county road system.
It is vital that a fiscal court expend county money for roads under the express conditions established by the legislature. The basic condition relates to "county roads" as accepted by fiscal court as a part of the county road system. It is also vital that any deviation from that condition be spelled out in an express statute. Any construction contrary to this could easily result in abuse. The temptation to spend county money on private passways could otherwise be present. We are saying the taxpayers' money is entitled to the protection afforded by this finely drawn line of expenditure.