Request By:
Mr. Sam W. Moore II
Green County Attorney
P.O. Box 146
131 North Public Square
Greensburg, Kentucky 42743
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney for Green County, you request our opinion on the permissibility of your fiscal court to maintain roads within the county. The Green Fiscal Court has historically seen fit to repair and maintain school bus routes, school bus turnarounds and some mail routes without officially and formally accepting them as "county roads."
Your question:
May a fiscal court maintain public roads and school bus routes where it finds a public need exists, without formally accepting such roads as "county roads", and if so, what is the proper procedure?
KRS 178.010(1)(b) defines "county roads" as being public roads which have been accepted by the fiscal court of the county as a part of the county road system. The court, in Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979) 41, made the point that a formal order of fiscal court is necessary to establish a county road. See KRS 67.100(2), providing that every official action of the fiscal court shall be made a part of the permanent records of the county. The court, in Sarver v. County of Allen, detected, behind the above rule requiring a formal acceptance of roads into the county road system, "a public policy against holding counties responsible for the upkeep of any and all highways and biways that chance to become public through processes of dedication or prescription over which the counties have no choice or control."
Thus, as a basic rule, where the fiscal court has not by formal action accepted a particular road segment into the county road system, it has no authority to spend county money on it or to maintain or improve it in any way.
In connection with a school bus turn-around area, under KRS 178.290(2), a fiscal court may, where needed, build and maintain suitable areas for the safe turning around of school buses. However, the fiscal court would have to acquire at least an easement right from affected landowners for such areas sufficient to justify the cost to the county. So in fixing the term of years of the road easement rights, the fiscal court must weigh the cost of such projects. We do not believe the school board or the private owner is responsible for such construction. In Jones v. Cook, Ky., 378 S.W.2d 795 (1964), the old Court of Appeals expressed the view that KRS 178.290 should not be construed as prohibiting a county from condemning property where necessary. KRS 178.290(1) provides that the fiscal court of any county may build and repair sidewalks along public roads where the need exists for safety of school children. Before beginning construction of the sidewalk, written approval must be obtained from the governmental agency having jurisdiction over the public road. Thus the fiscal court could, with written permission of the city have jurisdiction over the road or street as a city street, construct sidewalks alongside the road or street where needed for school children. Where the public road is not under the jurisdiction of a city or other governmental agency, the fiscal court would still have the problem of procuring the appropriate easement rights as aforementioned.
Thus the only exceptions to the basic rule of formal acceptance of a road into the county road system relate to sidewalks and bus turn-arounds for school children, as treated under KRS 178.290 .