Request By:
Mr. Frederick G. Neikirk
Pulaski County Attorney
104 W. Columbia Street
Somerset, Kentucky 42501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Three questions are raised in your letter for our opinion. Your letter reads:
"Coal trucks and logging trucks are damaging county roads. The thin shell of blacktop on these roads will not sustain these heavy trucks. The ditch lines and shoulders are also being destroyed.
"Can the county require the companies to post bonds to insure the repair of these roads, and if so, under what authority?
"What other methods are available to require the repair of these damaged roads short of setting the weight limits so low that the trucks can't run?
"Is there anything in the Resource and Recovery Act that would allow the county to be reimbursed for the damage of these roads?"
Where a vehicle is properly equipped and operated under applicable statutes and has proper load weights, generally the vehicle operator or owner is not answerable in damages to the county in contributing to the wear and deterioration of county roads. The right of action accrues where road repairs are necessitated because of a wrongful, negligent or unreasonable use of the public way.
Com., Dept. of Highways v. Pine Coal Co., Ky., 414 S.W.2d 134 (1967). Also, the county, through fiscal court, can sue to enjoin repeated violations of the truck weight statute resulting in damages or obstruction to county roads.
Webb v. Sturgill, Ky., 341 S.W.2d 66 (1960); KRS 189.221 and 189.230(1).
In answer to question no. 1, in the absence of statute, a fiscal court has no authority, by ordinance or otherwise, to require heavy truck haulers to execute such bond guaranteeing against damage to county roads. We are not aware of any statute of that kind. The powers of a fiscal court are confined to the authority expressly conferred or necessarily implied by an express statute.
Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735 (1948);
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977); KRS 67.080 and 67.083. See basic height, width, length and weight limits for trucks in KRS 189.221 and 189.222 (increased limits on state highways) . See KRS 189.276, relating to the issuance of resource recovery road hauling permits by the Transportation Cabinet for the operation of motor carriers in natural resources producing counties or natural resources impact counties for the purpose of transportation of natural resources in vehicles whose gross weight, including vehicle and load, exceed the limits prescribed in KRS Chapter 189.
Your second question runs to possible other methods of mitigating damage to county roads suffered from heavy coal and log trucks.
As we noted earlier, KRS 189.221 addresses basic height, width, length and weight limits for trucks on any highway in Kentucky. The maximum gross weight permitted under subsection (4) is 18,000 pounds, including the load. That statute is broad enough to embrace county roads. See also KRS 189.010(3), defining "highway" , inter alia, as any public road or street. See KRS 189.990(2)(a), for penalties for violations of KRS 189.221. KRS 189.230(1) permits the county judge executive, in respect to county highways, under proper notice, to lower the weight limits set out in KRS 189.221, whenever in his judgment any county highway may, by reason of its design, deterioration, rain or other natural causes, be damaged or destroyed by motor trucks or semitrailer trucks, if their gross weight exceeds certain limits. The constitutionality of KRS 189.230 was upheld in
Ashland Transfer Co. v. State Tax Commission, 247 Ky. 144, 56 S.W.2d 691 (1932). The court said in effect that the state may prevent the wear and hazards to public roads due to excessive size of vehicles and weight of loads. Limitations of size and weight, the court wrote, are manifestly subjects within the broad range of legislative discretion. The court added that "To make scientific precision a criterion of constitutional power would be to subject the state to an intolerable supervision hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure."
In question no. 3, you ask whether or not there is anything in the "Resource and Recovery Act" which would permit the county to be reimbursed for damage of county roads by such heavy truck haulers.
We assume you are referring to certain Natural Resources Road System legislation collected in KRS 177.971 through 177.975. Natural resources producing counties are counties in which natural resources (including coal, gas and other minerals covered in KRS 177.971(3)), were several within the meaning of KRS Chapter 143 or 143A and upon which severance the tax applicable was reported and remitted prior to January 1, 1980. Natural resources impact counties are those counties in which natural resources were not severed, as above described, but are those counties through which natural resources are regularly transported over public ways designated as a part of the natural resources road system by the transportation cabinet. Under KRS 177.972, the transportation cabinet is required to designate the official natural resources road system in natural resources impact and natural resources producing counties, "which shall include all public highways, roads and streets over which quantities of natural resources, sufficient to significantly affect the condition and state of repair of such highways, roads, and streets, have been transported in the immediately preceding fiscal year." (Emphasis added). The cabinet must publish the total county mileage of such road system and the total ton-miles within each category of county (impact and producing) for the said preceding fiscal year.
Under KRS 177.973, the transportation cabinet is required to create a resource recovery road fund, which is authorized to receive fees generated by KRS 189.276(4) (resource recovery road hauling permits), appropriations, gifts, grants and federal funds. Pursuant to KRS 177.973(2), the resource recovery road fund must be used solely for the purpose of reconstruction, repair and maintenance of resource recovery roads and bridges in natural resources producing counties or natural resources impact counties. See KRS 177.973(3).
As relates to the expenditure of the county allotment of subject fund on county roads, KRS 177.974(2) reads:
"(2) At least once in each calendar year the cabinet, through a duly authorized representative, shall consult with the fiscal courts of the various natural resources producing and natural resources impact counties for the purpose of review of the natural resource road system directory required by KRS 177.972 and planning of the expenditure of the county allotment of the resource recovery road fund on county roads lying within the county of the fiscal court jurisdiction."
For specifics as to the county expenditure and allocation of the resource recovery road fund money, see KRS 177.972, 177.974 and 177.975.