Request By:
Mr. Harold K. Botner
Madison County Judge/Executive
Courthouse
Richmond, Kentucky 40475
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter expresses concern about two county ordinances relating to the requiring of private landowners to remove from their lands weeds, bushes and other growths where such growths involve county road right-of-way.
Madison County Ordinance 82-8 contains a provision for a fifty (50) foot right-of-way (thirty (30) foot minimum) between ditch lines. It provides for a two (2) foot shoulder on each side, at least on and after January 1, 1980. Section 500 of that ordinance requires owners or occupants of land situated along public roads to remove from the right-of-way all obstruction, including fences and buildings or trees. It contains a penalty section for violations of the ordinance. Madison County Ordinance 84-10 is framed around the concept that throughout the county there are county roads which have abutting landowners who permit bushes, trees and tree limbs to obstruct the safe use of county roads. Thus the ordinance declares that the fiscal court by the ordinance is taking measures to prevent safety hazards and public nuisances along such county roads. The ordinance requires property owners and managers to keep their trees, bushes, weeds and overhanging limbs trimmed in such manner as to permit the safe use of county roads. The county judge executive, with the help of the county road supervisor, is required to inspect county roads to determine the existence of any offending trees, bushes, weeds, etc., which are obstructing the safe traversing of county roads. The county judge executive is required to seek adequate enforcement of such ordinance, and is required to give offending landowners ten (10) days notice to remove or correct such obstructions or submit a plan for removal or correction acceptable to fiscal court. The ordinance contains a penalty section for violations of the ordinance.
KRS 178.040(2) establishes a minimum width of county road right-of-way at thirty (30) feet, but fiscal court may order it to be a greater width. Where road deeds to the county do not spell out the entire right-of-way actually in use, the fiscal court should have the land in question surveyed and take steps to acquire any additional boundary where deemed necessary to comply with KRS 178.040. The clear delineation and ownership of county road right-of-way are crucial when we consider that the legislative and administrative policies relating to the maintenance of county roads (county road rights-of-way) are the responsibility of the fiscal court. KRS 67.080(2)(b) and KRS 67.083(3)(t). Under these established policies and programs, the county judge executive is required to supervise the proper implementing of such road policies and programs, aided by the county road supervisor and other county road personnel.
Thus the maintenance of county road rights-of-way is a responsibility of the fiscal court. However, you raise the question as to whether the county can require landowners to remove weeds, bushes and other growths from the privately owned land adjoining county road right-of-way.
Where the trees or other obstacles are located on the county road right-of-way and are a hazard to traffic, the county engineer, or road supervisor as the case may be, is required by KRS 179.070(10) to remove such obstacles from the county right-of-way. In addition, KRS 179.240 requires the owner or occupant of land situated along a public road to remove from the right-of-way (of the public road) all obstructions, including fences and buildings, which have been placed there either by himself or by his consent. See Section 500, Ordinance 82-8 and Ordinance 84-10.
Where the trees, bushes or other obstacles are located on privately owned land adjoining the county road right-of-way, and where you as county judge executive, with the help of the county road supervisor, determine that the trees or other obstacles are located on private property and you determine that such obstacles interfere with the visibility of drivers traversing the particular road segment, as to constitute a traffic hazard, you may proceed to seek enforcement of Ordinance 82-8 and 84-10, except that the latter ordinance is presently unconstitutional, as will be pointed out hereinafter. The same procedure would apply where you determine that the obstacles are located on county road right-of-way, but which obstacles are the result of the adjoining landowners action or inaction.
In addition, the county could proceed to seek injunctive relief, in an appropriate case, under the concept of a public nuisance where the adjoining landowner permits trees or other obstacles to create a traffic hazard, regardless of whether the obstruction is located on the landowner's property or on the county road right-of-way. See
City of Owensboro v. Hope, Ky., 110 S.W. 272 (1908) and CR 65.01 et seq. A public nuisance is a violation of a public right. Here that right is the right of the traveling public to be free from the traffic hazards affecting the health, safety and welfare of such public. A county, under its police power, has a broad discretion in determining what may be injurious to the public health and general welfare.
City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941). Thus, under the circumstances above outlined, the two ordinances find support in the county's police power.
Next, you mention that KRS 179.070(10) requires the road engineer to remove trees from the right-of-way. You ask whether Ordinance 84-10 conflicts with that statute. KRS 179.070(10) deals with a responsibility of the county engineer to remove trees and other obstacles from county road right-of-way. Ordinance 84-10 was designed to deal with the private landowner's responsibility where he is responsible for the existence of such road obstruction. The ordinance is based on the county's police power in protecting the public health, safety, and welfare. We see no conflict. Neither do we see any conflict between Ordinance 84-10 and KRS 179.070(10) and KRS 179.220. The ordinance could be considered as an implementation of KRS 179.220, which statute provides that fiscal court may order owners and managers of lands bordering on public roads to clear away and remove from along side the roads bushes, weeds, limbs, and keep hedge fences along the road trimmed to a maximum height of five (5) feet. In referring to what is now KRS 179.220, the court, in
Commonwealth v. Watson, 223 Ky. 427, 3 S.W.2d 1077 (1928), wrote this at page 1079:
"The purpose of the statute was to make the highway free of all obstructions and to provide a clear view along the highway, to the end that accidents may be avoided and the lives and property of the citizens be properly protected. In other words the statute was enacted for the public safety, which has always been regarded as a proper subject of the police power. "
CONCLUSIONS
(1) The overall responsibility for the proper maintenance of county road right-of-way rests with the fiscal court.
(2) A fiscal court, by ordinance, can require landowners, of property adjoining county road rights-of-way, to refrain from permitting trees, bushes and other obstructions to exist on their lands (or to encroach in any manner upon the county road right-of-way) , such that they constitute a driving hazard. Such ordinance may include the requirement that such adjoining landowners remove any such obstructions.
(3) The minimum width of a county road right-of-way is thirty (30) feet.
(4) The road policies and programs established by the fiscal court relating to county road maintenance must be implemented by the executive action of the county judge executive, assisted by the county road supervisor and other county highway personnel.
(5) KRS 179.070(10) requires the county road engineer (or county road supervisor, as the case may be) to remove trees or other obstacles from county road right-of-way when they become a hazard to traffic. In addition, KRS 179.240 requires adjoining landowners (adjoining county roads) to remove any obstructions from the right-of-way which have been placed there by himself or by his consent.
(6) A county, under its police power, has a broad discretion in determining what may be injurious to the public health and general welfare of its citizens.
(7) While the two ordinances and KRS 179.220 and 179.240 present no general conflict, Ordinance 84-10 fixes a penalty of ten dollars ($10) to fifty dollars ($50), while KRS 179.990(2), dealing with the same subject matter as dealt with in KRS 179.220, fixes a penalty of twenty dollars ($20) to fifty dollars ($50). Section 168 of the Kentucky Constitution provides that no municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. See