Request By:
Mr. Brad G. Loar
Community Planner
FIVCO Area Development District
P.O. Box 636
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads:
"May a county, however, adopt and enforce road design standards without the adoption of a comprehensive plan and subdivision regulations? "
As you suggest, a fiscal court cannot enact zoning ordinances unless, as a part of a planning unit, it has adopted a comprehensive plan or at least the objectives of the land use plan elements which are a part of the comprehensive plan. KRS 100.197 and 100.201. See also KRS 100.281 relating to requirements for street or road design as a part of subdivision regulations. However, under the recent holding of the Supreme Court of Kentucky that a fiscal court has no legislative function, the enactment of any zoning ordinances and subdivision regulations is presently under a cloud of legal uncertainty, since such zoning enactment would constitute a legislative action. See Fiscal Court of Jefferson County v. City of Louisville, et al., (76-604) [decided September 16, 1977].
You ask whether the fiscal court could adopt and enforce, outside of KRS Chapter 100, road design standards.
KRS 67.080(9) provides that the fiscal court must provide for the good condition of highways in the county. This includes construction, reconstruction, maintenance, and necessary appropriations therefor. It would include road design standards. See KRS 178.120 and 178.125. In the construction of roads and making appropriations therefor, the fiscal court acts in a legislative capacity. Smith v. Livingston County, 195 Ky. 382, 242 S.W. 612 (1922) 618; and Alabama Great Southern R. Co. v. Denton, Ala., 195 So. 218 (1940) 221. This legislative character would also apply to ordinances adopting road design standards. Under the Supreme Court's holding in the Home Rule case such an ordinance would be illegal, since it would constitute a legislative act of fiscal court.
We believe such ordinances should be held in abeyance until the Supreme Court makes final its ruling in the Home Rule case. Otherwise fiscal courts are walking down a steep and dangerous path.