Request By:
Mr. J. Wendell Roberts
City of Marion
108 E. Bellville Street
Marion, Kentucky 42064
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 17 in which you raise numerous questions primarily concerning the control and use of city streets.
Your initial question involves KRS 82.400 and its basic requirement that all dedicated public ways must be accepted by the city pursuant to an appropriate ordinance before they officially become city streets subject to the city's maintenance and control. You relate that you find no evidence that the city of Marion has ever followed the requirements of this statute and its predecessors, namely KRS 94.360 and 94.370 containing similar requirements for acceptance. You relate that the city desires to exercise control over the future establishment of streets by developers by enacting an ordinance fixing minimum construction requirements such as width, grading, drainage, etc., and desire to know whether such would be legal since the city has not adopted planning and zoning. The question is also raised as to whether the city should enact an ordinance accepting each present street by name in order to be in compliance with KRS 82.400(3).
We would respond to the above two questions in the affirmative. Each city has complete control over its streets with the authority to determine their width under its general powers even though KRS 94.360 was repealed as pointed out in OAG 80-337, copy attached. Also note the city's home rule power under KRS 82.082. Thus an ordinance controlling the width, grading, drainage, etc., would be legal in our opinion even in absence of the adoption of planning and zoning. We also believe the city should officially accept each present street by name and location pursuant to an appropriate ordinance in accordance with KRS 82.400.
As far as alleyways are concerned, it is up to the city as to whether it wishes to exercise control over any or all alleyways. However, they cannot be closed under KRS 82.405 until they have first been accepted in the manner described in KRS 82.400(3). There is no distinction in law between a public street and a public alley, hence an alley is governed by the same rules applicable to streets. See McQuillin, Mun. Corp., Vol. 10, Sec. 30.10.
Our response to your second question would again be to the effect that the city controls the construction of water and sewer lines which of course includes their location, size, etc., and property owners can be compelled to connect to the city's main line at their own expense. Sanitary Dist. No. 1 of Jefferson Co., v. Campbell, Ky., 249 S.W.2d 767 (1952), and McQuillin, Mun. Corp., Vol. 11, Secs. 31.30 and 31.30(a). See also McQuillin, Mun. Corp., Vol. 13, Sec. 37.15. Regardless of whether the extensions crossing a public way or extending along a right-of-way were made prior to or after acceptance by the city as a street, they become city property upon such acceptance and title vests in the city. See Woodall v. South Covington and C St., R.R. Co., 137 Ky. 512, 124 S.W. 843 (1910). Obviously after the acceptance of such streets, water and sewer lines should never be privately installed under the street without permission of the city as authorized by appropriate ordinance. We might add that a permit to lay pipeline under a street is subject to revocation at any time at the pleasure of the city. Spur Dist. Co., v. Husbands, 276 Ky. 521, 124 S.W.2d 463 (1939).
Your third question relates to the power of the city to levy a license tax on trucks loading and unloading goods and produce within the city which is perfectly legal unless the truck operates under a certificate or permit issued by the state in which case any such fee or tax is prohibited under KRS 281.830(2) as pointed out in OAG 60-136 cited by you and the related cases referred to therein. Also to a degree, trucks operating in interstate commerce are also exempt. There are, however, exceptions as mentioned in OAG 65-480, copy attached.
On the other hand, all property including trucks owned by businesses located within the city are subject to an ad valorem property tax under the Constitution, particularly Section 174, irrespective of the use to which said property is put. An ad valorem tax is one tax that is mandatory under Section 174 as declared in Miller v. Covington Dev. Authority, Ky., 539 S.W.2d 1 (1976).
In response to your fourth and last question, the city, as you know, has had complete control of its streets and may regulate traffic in any reasonable and nondiscriminatory manner. This would include the designation of loading and unloading zones to be located near or adjacent to businesses requiring daily or regular delivery of goods and supplies by trucks. See OAG 78-659, copy attached. This means that the city can designate and require all trucks utilizing the streets, including state highways within the city when jurisdiction has not been assumed by the state, to utilize the marked zones for loading and unloading purposes so long as they grant reasonable access to the place of business to which the merchandise is directed. This must, of course, be done by appropriate ordinance. However, the failure to enact such an ordinance would not in our opinion prevent the enforcement of KRS 189.450 prohibiting a vehicle from stopping or being left parked on the main traveled portion of the highway or street.