Request By:
Honorable Thomas L. MacDonald
City Attorney
City of Flemingsburg
105 Main Cross Street
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 20 in which the question is raised as to whether or not the city of Flemingsburg has, in fact, legally accepted certain streets located in a new subdivision that have been deeded and thus dedicated to the city by the subdivider. The basic facts relating to this matter as well as your specific questions are as follows:
"The City of Flemingsburg, Kentucky had certain dealings with a local contractor and subdivision developer with regard to acceptance by the City of certain water lines, sewer lines, and streets in a new subdivision. The official minutes of the October 4, 1976 council meeting, as recorded in Minute Book 13, Page 415, a copy of which are attached hereto and marked Exhibit "A", show a conditional acceptance of utilities and streets as developed in the subdivision, upon inspection and approval by the City after installation. Although not recorded in the minutes, the agreement was that the streets in the subdivision would be installed to state specifications, as adopted by the City, before acceptance.
"On August 1, 1977 the developer appeared at the council meeting and presented a deed dated the 3rd day of May, 1977, which proports to convey to the City of Flemingsburg, all of the streets and utilities within the subdivision plat. A copy of said deed is attached hereto and marked Exhibit "B". The official minutes of the August 1, 1977 meeting were recorded in Minute Book 13, Page 436, a copy of which are attached hereto and marked Exhibit "C". In the minutes themselves, there is no mention of an actual vote by the council to accept the streets and the deed; only a mention that the deed was tendered. Also not reflected in the minutes is the apparent fact, based upon interviews with councilman at that time, that indeed the streets were not accepted since they had not been installed in accordance with state specifications as adopted by the City. There is no question that the City did in fact accept the water and sewer lines.
"On August 5, 1977, the then City Clerk wrote a letter to the developer stating that the acceptance of streets and water and sewer lines was recorded in Minute Book 13, Page 436. A copy of said letter is attached hereto and marked as Exhibit "D". (Please excuse poor copy).
"The developer contends that all streets were accepted in the subdivision under the terms of the letter, while the council contends that in fact the streets were never accepted even though the deed to them as tendered was never recorded.
* * *
"1. Do the copies of the minutes as presented to you reflect acceptance by the City of the streets?
"2. If the minutes do not properly show acceptance of the streets, does the Clerk's letter of August 5, 1977 sufficiently clarify or modify the minutes as to constitute acceptance even in light of statements by council members that the streets were actually not accepted?"
We have concluded, based on the material submitted, that the minutes of the city legislative body do not reflect the acceptance of the streets in question by the city for the following reasons. Therefore, the answer to both questions would be in the negative.
To begin with, the city is dealing with streets within a subdivision. There is no indication in the facts presented whether or not the provisions of KRS 100.277 were ever complied with. This statute, particularly subsection (3), provides that any street that has been dedicated by a subdivider shall not be accepted by the legislative body until it has received recommendations from the planning commission. See Kemper v. Cooke, Ky.App. 576 S.W.2d 263 (1979).
In any event, the acceptance of a street is necessary before a city can be charged with the duty of maintaining it. Mulligan v. McGregor, 165 Ky. 222, 176 S.W. 1129 (1915). Acceptance must, of course, be by appropriate action of the legislative body as reflected in its records or minutes. See KRS 86.080, 86.090(1) and 83A.060(8) of the newly enacted municipal legislation effective July 15. As we said, the city speaks only through its records and unless the records reflect the acceptance of the streets in question, the fact remains that they have not been accepted. See Spalding v. City of Lebanon, 156 Ky. 37, 160 S.W. 751 (1913), from which we quote as follows:
'A city council can only speak by its records. When its records are read and signed it is the only evidence of the action taken by the council at that time.'
See also City of Princeton v. Baker, 237 Ky. 325, 35 S.W.2d 524 (1931).
The official minutes of the October 4, 1976 meeting, marked Exhibit "A", reflect the following:
"Councilman Harris moved to accept water and sewer lines and streets in that subdivision owned and developed by Johnny and Ashley Alderman after layed and inspected for the City to maintain. Seconded by Councilman McGinnis. On vote all were in favor." (Emphasis added.)
The above quote is at most a conditional acceptance to be affirmed by proper vote at a time following the construction of the streets by the subdivider and their inspection by the city according to specifications.
The minutes of the August 1, 1977 meeting, marked Exhibit "C", reflected only the following regarding the streets:
"Johnny Alderman appeared before Council to present deed to all water and sewer lines in hills subdivision to the City along with the streets. He also requested sewer line extension to Mrs. Story off Garr Avenue, to fix catch basin at the corner of Garr and Ingram; consider blacktopping the street in the subdivision next spring; and a request for water sewer line extensions at the end of Stockwell Avenue. Council agreed to look into the requests and have a report for Mr. Alderman as soon as possible."
The above quoted minutes can in no way be considered an acceptance of the streets or the deed thereto as no vote on the matter is indicated. See also KRS 94.370.
The letter written by the city clerk, dated August 5, in which the clerk acknowledged to the subdivider the receipt of the deed to the streets and the acceptance of the streets as recorded in Minute Book 13 of the August 1, 1977 meeting [Exhibit "C"] is obviously not correct since Exhibit "C" reflects no acceptance whatsoever as we have previously indicated. The letter therefore cannot be considered as a valid acceptance of the streets on the part of the city legislative body since we have pointed out above the city speaks only through its records.