Request By:
Mr. Randall Daniel
Commissioner, District 2
P.O. Box 681
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your fiscal court has a problem relating to the unincorporated village of Van Lear in Johnson County.
Your letter reads:
"A year ago Jess Seagraves of the Department of Highways, Pikeville, Kentucky informed the Fiscal Court of Johnson County that the County Judge/Executive should appoint three (3) trustees for Van Lear to be responsible for the maintenance of the roads and streets in Van Lear. He further stated that the appointment of these trustees did not need nor was not required that approval be given by the Fiscal Court.
This has been controversial because the people of Van Lear have repeatedly come to their elected representative for relief and have not been able to give them any answers to their problems."
We know of no statutes imposing a special responsibility on the fiscal court to maintain streets or roads in an unincorporated village. There is no statutory authority for the subject appointment of trustees for Van Lear street maintenance. Van Lear, being unincorporated, is not a municipality. Thus, as relates to fiscal court, it is unincorporated territory. See McQuillin, Municipal Corporations (1971 rev.) Vol. 1, § 2.07a; and City of Covington v. District of Highlands, 113 Ky. 612, 68 S.W. 669 (1902) 671.
"County roads" are generally public roads which have been accepted by the fiscal court of the county as a part of the county road system. Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979). Since 1914, a formal order of the fiscal court has been necessary to establish a county road.
The fiscal court has the authority to construct roads and bridges in the county. KRS 67.080(2)(b) provides:
"The fiscal court shall: As needed, cause the construction, operation and maintenance of all county building and other structures, grounds, roads and other property;". . . . (Emphasis added).
KRS 67.083(3)(t) provides that:
"The fiscal court shall have the power to carry out governmental functions necessary for the operation of the county. . . . the fiscal court of any county may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in the performance of the following public functions:
"(t) provision of streets and roads, bridges, tunnels and related facilities . . . ." (Emphasis added).
In Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308 (1954) 312, the court wrote that "The relocation, construction, or reconstruction of highways clearly relates to the safety, security, and general welfare of the citizens of the state, and all steps taken in the furtherance of these objects are matters within the police power of the state." KRS 67.080 and 67.083, and statutes in KRS Chapter 178 and 179, relate to a partial delegation of that police power to the counties in connection with county roads and bridges.
While the case of Shearer v. Hall, Ky., 399 S.W.2d 701 (1966), makes it clear that once a bridge or road is constructed, the fiscal court is placed under a duty to exercise some degree of care and diligence in maintaining such a road or bridge, the fiscal court is not mandated to build specific roads and bridges. It is required to use its sound judgment in building those roads and bridges as are actually needed by the citizens of the county in terms of their safety, security, convenience, and general welfare. It must appear that the general public interest would be furthered by building a particular road or bridge. See KRS 178.080(3), 178.115; and Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960) 342. In other words, the road must be in the best interest of the county. However, the action of a fiscal court, in exercising such discretion, could be reviewed in a circuit court action under an alleged arbitrary or capricious exercise of the discretion. See § 2, Kentucky Constitution; and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).
Pursuant to KRS 179.470(3), since Paintsville is a fourth class city, any street or road in an unincorporated area in Johnson County which is at least 200 feet in length and dedicated to public use, may be maintained (permissive) by the fiscal court under the conditions mentioned therein. Under this permissive statute, the fiscal court is required, if it maintains such roads, to cover the cost by making assessments against the abutting and benefited property owners.