Request By:
Mr. James W. Fehr, P.E.
State Highway Engineer
Transportation Cabinet
Department of Highways
Frankfort, Kentucky 40622
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the following stated question:
"Would you please give me your opinion relative to the legality of granting additional access on the fully controlled access facilities that are under the jurisdiction of the Turnpike Authority; in so doing, please address at-grade access to public roads, at-grade access to adjoining property, and grade separated access (interchanges) to public roads. Also, I would like to have copies of any previous legal opinions rendered by your office or staff assistants on this subject.
You have told us that your question in reality concerns the granting by the Turnpike Authority of additional access points on the Daniel Boone Parkway, which is a fully controlled access highway. One access point granted permits coal trucks, as well as other vehicles, access at grade. The Turnpike Authority also granted a T-intersection, providing an on grade left turn on the parkway.
A "limited access facility" is defined in KRS 177.220:
"For the purpose of KRS 177.220 to 177.310, a limited access facility is defined as a highway or street especially designed for through traffic, and over, from or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be freeways open to use by all customary forms of street and highway traffic. "
KRS 177.240 provides in part that:
"No person shall have any right of ingress or egress, to, from or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time."
In speaking of an access road to the New Circle Road in Lexington, the Court, in Sturgill v. Commonwealth, Dept. of Highways, Ky., 384 S.W.2d 89 (1964), wrote at page 91:
"The proposed access road is part of a comprehensive and complex highway construction plan clearly designed for public accommodation. KRS 177.250 authorizes condemnation for access roads as incident to such a plan. Problems of necessity, proper design, best utilization of adjoining properties, convenience to the public, saving of expense, and promotion of traffic safety are matters which must be left to the discretion of the highway authorities. See KRS 177.240; and Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225. KRS 177.081 provides in substance that specific details of the plan cannot be called in question, from the standpoint of necessity or public use, except upon a showing of fraud, bad faith or abuse of discretion. No such showing was made in this proceeding."
KRS 177.240 provides in part that "The highway authorities of the state, county, city, town and village are authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended; and its determination of such design shall be final." (Emphasis added).
KRS 177.240 pinpoints the sound discretion vested in the applicable "highway authorities"; and it stresses that such authorities' administrative or executive action, as such, is final. It was not intended to prohibit some subsequent change in access after construction.
The Daniel Boone Parkway is a fully controlled access highway. A "fully controlled access highway" is defined in 603 KAR 5:010, Section 1(1) as a highway which gives preference to through-traffic and which shall have access only at selected public roads or streets and which shall have no highway grade crossings or intersections. The termini for control of access shall be shown on the Department's plans. (Emphasis added). An interchange, to which you referred, involves a ramp feeding into the flow of the traffic. It involves no left turns and no cross traffic.
As a part of the traffic control regulation for state roads, 603 KAR 5:010, Section 1, relates to "limited access facilities." It reads:
"Section 1. Limited Access, as defined in KRS 177.220 and 177.240, shall be of the following two (2) types:
"(1) A fully controlled access highway which gives preference to through-traffic and which shall have access only at selected public roads or streets and which shall have no highway grade crossings or intersections. The termini for control of access shall be as shown on the department's plans.
"(2)(a) A partially controlled access highway gives preference to through-traffic. However, access to selected public roads and streets will be provided and there may be some highway grade and some private driveway connections. The termini for control of access shall be as shown on the department's plans.
"(b) On a partially controlled access highway, access shall be provided only where specifically shown on the department's plans. No additional points of access other than those indicated on the approved plans shall be allowed. An access point of this type of facility may be relocated, shifted, or modified by mutual agreement of the property owners served by the entrance and the Bureau of Highways. The modification shall be of the width or type, and the relocation or shifted entrance shall comply with the department's current design criteria for highway design. Modifications, relocations, or shiftings must be done by a permit from the Bureau of Highways. An entrance may be relocated for the purpose of accommodating new commercial development or to provide a safer point of ingress and egress to the highway facility. Generally, only entrances to undeveloped land in the planning stage for development may be considered for relocation unless an engineering study is made and it has been determined that the relocation would provide a safer point of ingress and egress.
KRS 177.440, dealing with limited access to turnpikes, reads:
"All turnpikes established under the provisions of KRS 177.390 to 177.570 are declared to be limited access facilities, within the meaning and subject to the provisions of KRS 177.220 to 177.310, and KRS 177.990. No right of access to a turnpike shall vest in the holder of adjacent or neighboring property by reason of the proposal to construct, or the construction and operation of, a turnpike. Nothing in KRS 177.390 to 177.570 shall be construed to create any right of access in an owner near or adjacent to an entranceway to a turnpike, where such right did not already exist to an entranceway on a road or highway which has been incorporated into the turnpike. "
The old Court of Appeals, in Guthrie v. Curlin, Ky., 263 S.W.2d 240 (1953), wrote, concerning KRS 177.440, that the reference in that statute concerning the limited-access aspect, was intended to adopt only such portions of the limited-access statute as relate to control of access to the highway, and was not intended to adopt the portions relating to the location or establishment of the highway. This was so, since the Toll Road Act contains its own provisions for location and establishment.
It may be noted that 603 KAR 5:010, Section 1(2)(a) and (b) speaks only of a "partially controlled access highway" in terms of the prohibition against there being "no additional points of access other than those indicated on the approved plans." (Emphasis added). That subsection does provide that an access point of that type of facility may be "relocated, shifted, or modified by the mutual agreement of the property owners served by the entrance and the Bureau of Highways, " etc. (Emphasis added).
Under KRS 175.450(9), the Turnpike Authority is authorized and empowered:
"To designate the locations and establish, limit and control such points of ingress to and egress from each turnpike project as the authority and the bureau may determine to be necessary or desirable to insure the proper operation and maintenance of such project, and to prohibit entrance to such project from any point or points not so designated; (Emphasis added).
Note carefully that KRS 175.450(9) explicitly provides that the Turnpike Authority may designate the locations and establish, limit and control such points of ingress to and egress from each turnpike project "as the authority and the bureau (Department of Highways) may determine to be necessary," etc. (Emphasis added). The courts have declared themselves bound by the plain meaning of the language used in a statute; and thus construction of the statute may be waived where the legislative intent is clearly evidenced by plain and precise words. H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937). It is obvious that KRS 175.450(9) was designed to utilize the best thinking and planning of the Turnpike Authority and the administrative and technical engineering talent of the Department of Highways. This ultimately calls for a carefully orchestrated synthesis of turnpike project planning and decision making. Thus a view that the Turnpike Authority enjoys a basic autonomy in this context is incorrect and unrealistic.
It is our opinion that under KRS 175.450(9), the Turnpike Authority, in concert with the Department of Highways, may provide for "additional access" (We are not speaking of relocation, shifted or modified points of access), where it is determined that an additional access point or additional access points are necessary or desirable to insure the proper operation and maintenance of such project. As was said in Sturgill v. Commonwealth, Dept. of Highways, above, the problems of necessity, proper design, best utilization of adjoining properties, convenience to the public, saving of expense, and promotion of traffic safety are matters which must be left to the sound discretion of the highway authorities. This is subject, of course, to available funding of such construction; and an assurance by bond counsel that bond holders' rights are in no way compromised or lessened. See KRS 177.460 and 177.470. See KRS 177.410(8), relating to the cooperative role (in connection with the Turnpike Authority) of the Department of Highways, as relates to designation and establishing of access points on turnpike projects.
This boils down to a critical examination by the Turnpike Authority and Department of Highways, as relates to any additional access points on a turnpike, on a case by case basis. Ultimately, the Turnpike Authority and the Department of Highways will be responsible for measuring each case of proposed additional access points in terms of whether such additional access points are necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general and economic welfare. See KRS 177.310.
Concerning the cooperative input of the Department of Highways, in connection with additional access points, KRS 176.020 makes you, as State Highway Engineer, the technical adviser to the Commissioner of Highways; and under the direction of the Commissioner, you supervise all construction and maintenance work of the department. However, note that the decision as to any additional access points is the joint decision of the Turnpike Authority and the Department of Highways, pursuant to KRS 175.450(9) and 177.410(8). The statutes call for a synthesizing of policy decision on such turnpikes by the Turnpike Authority and Department of Highways.
However, as relates to a fully controlled access highway, 603 KAR 5:010 Section 1(1) restricts access points to those at selected public roads or streets; and highway grade crossings or intersections are prohibited. These are restrictions which the Department of Transportation has placed upon itself. Therefore, such regulations should be revised before such additional access points are granted.
KRS 177.240, in stating that the highway authorities' determination of such design shall be final, merely emphasizes that such decision as to original design is an executive function of the appropriate highway authorities. That is also true as to any subsequent and additional access points.
CONCLUSION
The Turnpike Authority, acting in concert with the Department of Highways, has the authority to grant additional access points on a turnpike. However, such a decision, as a sound exercise of discretion, must be on a case by case basis, and be based upon the general public's best interest in terms of peace, health, safety, convenience, and general and economic welfare. Such a decision for additional access points must be subject to available funding of construction and maintenance, and must in no way compromise or lessen in any way the rights of bondholders involved in the original turnpike construction. In addition, the above-mentioned regulations must be revised before some types of access points are granted.