Request By:
Mr. Jim Nickell
Rowan County Judge Executive
Courthouse
Morehead, Kentucky 40351
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
For the past two fiscal years, you have written, District 9, Transportation Cabinet, has met with the Rowan County Fiscal Court to receive its recommendations on how any excess funds in the secondary and rural road fund should be spent in Rowan County. For the past two years, the Rowan Fiscal Court has given such recommendations to the Transportation Cabinet. However, the fiscal court's recommendations have been ignored, and the patronage person's recommendations have taken first priority. Your questions deal with KRS 177.330 and 177.340.
At the outset, KRS 177.320 provides for the state's use of certain portions of gasoline tax revenues for secondary and rural roads, pursuant to KRS 177.330 to 177.360, and for county roads and bridges, pursuant to KRS 179.410 through 179.415.
KRS 177.330 provides for the Transportation Cabinet's (department of rural and municipal aid) consulting with fiscal courts, seeking their recommendations for the selection of state maintained secondary and rural roads lying within various counties for construction, reconstruction or maintenance under the rural and secondary road program as set forth in KRS 177. 320(1). The Transportation Cabinet is required to give due consideration to the recommendations of the various fiscal courts with reference to the selection of "county road projects", under the rural and secondary road program; and the department of highways shall, provided agreement is reached, proceed to construct, reconstruct or maintain such county roads as are agreed upon, pursuant to KRS Chapters 177 and 179.
Under KRS 177.340, if within thirty (30) days after receiving recommendations from any fiscal court, the Department of Rural and Municipal Aid (Transportation Cabinet) and the fiscal court shall fail to agree on the selection of any secondary or rural roads for such projects under the rural and secondary program, the Department may proceed toward the construction, etc., of any road in the county with which agreement has not been reached, which, in its discretion, is essential to a system of secondary highways. Such rural and secondary roads which are agreed upon, and are not agreed upon with the counties, may, at the discretion of the "department of highways" , become a part of the state highway system.
Question No. 1:
"What is the definition of a: (a) Secondary Road (b) Rural Road and (c) County owned road?"
"Secondary and Rural roads", within the meaning of KRS 177.360, are those roads lying outside of cities, towns and urban areas having a population of 2,500 or more, but do not include state or federal highways. Jefferson County v. King, Ky., 479 S.W.2d 880 (1972) 881. The selection of such roads for improvement in each county is made by agreement between fiscal court and the Department of Highways, or if no agreement can be reached, then by the Department alone. See KRS 177.330 and 177.340.
The County Road Fund consists of such portion of the State Road Fund as is appropriated biennially for the construction, reconstruction, improvement and maintenance of county roads and bridges. See KRS 179.410. In Jefferson County v. King, supra, "County roads and bridges" for the purpose of distribution of the County Road Fund are all public roads and bridges outside of incorporated cities except primary roads and federal parkways and bridges, thereon, KRS 179.010, which refers to "county roads", as defined in KRS 178.010. The significant point is that under the statutory definitions a "secondary and rural" road for purposes of fund distribution by the State, under KRS 177.320(1), may include a "county road" , as well as a "secondary and rural road". However, a "county road" , for purposes of fund distribution, under KRS 177.320(2), can only be a road meeting the definition of KRS 178.010(1)(b). "County Roads" are public roads which have been formally accepted by the fiscal court of the county as a part of the county road system. See KRS 178.010; and Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). Thus the latter is a definition of a "county owned road".
Question No. 2:
"If the Department of Rural and Municipal Aid takes recommendations from a local patronage person over the recommendations of a fiscal court, are they fulfilling KRS 177.330, which states they shall consider the recommendations of the fiscal court, and not that of a local patronage person?"
The point is that, in connection with Secondary and Rural Roads projects, which do not include "county roads", the Department of Rural and Municipal Aid can proceed with such projects, where an agreement with the fiscal court has not been reached, provided that the Department, in its discretion, believes such projects are essential to a system of secondary highways.
Considering that the above statutes and definitions permit the spending of Rural and Secondary Road Fund money on "county roads" (as defined by KRS 178.010), under the explicit terms of KRS 177.330(1), the Department of Rural and Municipal Aid and the fiscal court must come to an agreement in order that the Transportation Cabinet can proceed with the "county road" (KRS 178.010) project, pursuant to KRS Chapters 177 and 179. See also KRS 179.400.
Question No. 3:
"If the Department of Rural and Municipal Aid decides to construct or reconstruct or do maintenance on a county road, without any agreement with the fiscal court of that county, what statute would that come under?"
That would be in violation of KRS 177.330(1), as mentioned under Question No. 2.
Question No. 4:
"If in fact the Kentucky Department of Transportation is in violation of these statutes, which I have referred to, what steps should the fiscal court take to correct these violations?"
The fiscal court could authorize its county attorney to file an injunctive suit in your local circuit court for the purpose of enjoining the Transportation Cabinet's proceeding with such "county road" projects where no agreement with fiscal court has been reached. Where the project is complete or almost complete, a suit would be academic.
OAG 79-533 is modified accordingly, because of the subsequent statutory change of 1984 in KRS 177.330(1).