Request By:
James G. Hodge, Esq.
P.O. Box 337
Taylorsville, Kentucky 40071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions concerning the sixth class city of Hickory Hills.
The city was laid out by a private developer who filed a subdivision plat which among other things contained drainage easements. The drainage facilities apparently consist of above the ground concrete troughs, some of which are in the subdivision street right of ways and some of which go across lots contained within the subdivision. A dispute has arisen between the lot owners and the city as to who should maintain the drainage facilities in these easement areas.
Your first question is whether the city upon its incorporation as a sixth class city is responsible for the maintenance of the drainage facilities within the easement areas, located in the subdivision which is now part of the city. You also ask about the city's responsibility with reference to the sidewalk and those portions of private driveways located within the street right of way.
KRS 82.400 sets forth the procedures relative to the dedication of a public way or easement to the city. The statute requires in part that whenever any person desires to offer for dedication by recorded plat any public way or easement within the city limits, he shall file with the city legislative body a map or plat of the territory bounded or adjacent to the proposed public way or easement. If the city legislative body decides the proposed dedication would be beneficial to the public interest and suitable for acceptance by the city, it shall approve the map or plat and the mayor shall subscribe a certificate of approval on the map or plat. See OAG 83-27, copy enclosed.
If the procedures of KRS 82.400 have not been complied with relative to the dedication of the easements and the specific drainage facilities in the subdivision have not been accepted by the city, an obligation to provide some kind of adequate drainage facilities would still exist on the part of the city if city streets are involved. In OAG 74-547, copy enclosed, we said in part that where a city constructs and maintains streets, it is obligated to supply the area with a sewer or drainage system sufficient to carry off the rain fall that may ordinarily be expected to occur. The city is basically responsible for maintaining an adequate drainage system adjacent to the city streets (those streets it has obligated itself to construct, maintain or control).
In connection with sidewalks we direct your attention to OAG 74-339, OAG 73-496 and OAG 67-106, copies enclosed. While many of the sections of KRS Chapter 94 mentioned in those opinions have been repealed, the principles mentioned are still applicable and may be implemented through KRS 82.082, the municipal home rule provision, and the city's police powers.
A city has the authority to repair and maintain public sidewalks, the same as it would public streets. In 80 C.J.S. Sidewalk (p. 1279) the word is defined in part as a part of the street and that part of the street which is intended for use by pedestrians. It is usually constructed as a part of the street at or along the side of the part designed and constructed for the passage of vehicles.
In addition, a city may require abutting property owners to keep the sidewalks in repair. As stated in OAG 67-106, "The general rule concerning the duty to construct and maintain sidewalks is that no such duty rests upon the owner of the abutting premises in the absence of a statute or ordinance imposing such duty upon them." It was further stated in that same opinion that the construction and maintenance of sidewalks by a municipality at the expense of the abutting owners is regarded as a valid exercise of the city's police power.
Thus, while the city has the authority to require by ordinance property owners to repair or pay for the repair of the abutting sidewalks, in the absence of such an ordinance the obligation rests with the city to repair sidewalks abutting city streets.
In connection with the private driveway which lays within the street right of way, we direct your attention to McQuillin, Mun. Corp. (3rd Ed.), Vol. 10, § 30.64 where the following appears:
"Private driveways used by the public are subject to municipal regulation, within constitutional limits. However, an abutting owner, subject to municipal regulation, has the right to construct a driveway from his property to the traveled portion of the highway, provided, of course, he does not unreasonably interfere with the public use unreasonable interfere with the public use of the street, and provided further, the construction is not forbidden by statute or ordinance. The convenience of the owner is not, however, the sole test of the right to construct a driveway, but is subordinate to the public rights, including the public the streets. And while it has been said that, even though a permit is required by law to construct a driveway onto a street, this does not mean that there can be an absolute denial to an abutting owner of the right to construct a driveway to the street, and while in many instances courts have determined that the denial, refusal, or revocation of a permit for a driveway was an unwarranted impairment of an abutter's right of access to the street, where the right of the abutter cannot be exercised without endangering public safety, or otherwise unreasonably interfering with public uses of the street, including the sidewalk, his right of access by means of a driveway may be, if not entirely denied, at least substantially curtailed, by enforcement of permit requirements, or by other means and methods."
We can only suggest that the city consider the above quoted principles in determining whether driveways should be constructed or permitted to remain in areas from private property to the traveled portion of a public street. If such driveways have been constructed and need to be repaired, the costs will have to be incurred by the property owners as the city cannot expend public funds solely for the benefit of private property.