Request By:
Mr. Wayne Gunnell
Henry County Magistrate
131 Fairview Court
Eminence, Kentucky 40019
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You question whether or not the county road department can make repairs to a private subdivision road based upon the road's being used by public school buses.
Pursuant to KRS 179.470(3), in counties containing a city of the fourth class (Eminence is a fourth class city), and not a city of the first, second or third class, any street or road in an unincorporated area or a city of the sixth class of the county which is at least two hundred (200) feet in length and "dedicated to public use" may be maintained by the fiscal court of such counties in the same manner, as provided in KRS 179.470(1), that roads established under KRS 178.115 are maintained. (Emphasis added.) KRS 178.115 relates to the fiscal court's opening, establishing or altering the location of any public county road. That statute implies that a road segment adopted as a part of the county road system requires any necessary construction and maintenance as a part of the county road system. Ordinarily the fiscal court can maintain only those road segments specifically acquired as a part of the county road system. See KRS 178.010(1)(b), and
Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). However KRS 179.470(3) expressly provides in part that "notwithstanding the provisions of KRS 178.010(2)," a fiscal court in counties containing a city of the fourth class, etc., may maintain a street, etc. (Emphasis added.)
It must be noted that one of the basic conditions for the applicability of KRS 179.470, as relates to maintenance of subdivision roads in counties, is that the subdivision road segment must have been dedicated to public use. Here you have told us that the subdivision road segment is private. Thus KRS 179.470 can have no application.
In addition, since the subdivision road segment has not, we assume, been acquired as a part of the county's road system, the fiscal court has no authority to make repairs on that road. See KRS 178.010(1)(b), and Sarver v. County of Allen, above.
KRS 178.290 permits fiscal courts to build, where needed, and maintain suitable areas for the safe turning around of school buses. However, the county would have to acquire at least an easement right from affected landowners for such area sufficient to justify the cost to the county. See
Jones v. Cook, Ky., 378 S.W.2d 795 (1964). Thus if the subdivision road is a dead end and involves the turning around of the school bus, KRS 178.290 could apply under the above condition stated (county must acquire easement rights).
Assuming that neither KRS 179.470 nor 178.290 would apply, in the alternative you ask whether or not the county can expend money for such purpose if they charge a subdivision committee for the costs of fixing that road as a necessary school bus route. The answer is "no," since there is no statute giving the fiscal court such authority. A reimbursement of the county's cost will not cure the situation where no statutory authority for such maintenance exists.