Request By:
Donald E. Carroll,
Hopkins County Judge/Executive
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Sarah Ellen Eads Adkins,Assistant Attorney General
Opinion of the Attorney General
Hopkins County judge/Executive Donald E. Carroll requested an opinion of this office regarding whether Hopkins County Fiscal Court may spend public funds to repair a dam that they do not own. After reviewing the statutes, we believe the Fiscal Court must repair the dam to the extent the damage is in its right-of-way and is a hazard to traffic. Further, the Fiscal Court may use public funds to repair the dam regardless of whether the damage is in its right-of-way pursuant to KRS 67.080 and 67.083. Before rendering this opinion, the office received input from Judge Donald E. Carroll and a local attorney, Joe A. Evans, III, who represented the interests of a potentially-affected home owner. The facts in this case are not in dispute.
The lake and dam in question are in Otter Lake Estates, a subdivision in a non-incorporated area of Hopkins County. The lake and dam were previously owned by Corum and Company, Inc., a corporation that lost its corporate charter and dissolved in 1989. Though not relevant to this opinion, it's unclear who currently owns the lake and dam, as they were never deeded to any person or entity before or after dissolution of the corporation. The dam has fallen into disrepair and has been identified as "Hazard Classification-High" by the Kentucky Energy and Environment Cabinet. Though Hopkins County does not own the dam, it does maintain a county road that runs over the dam with a total width of 50 feet including right-of-way on both sides of the road. Hopkins County's right of way extends only partially over the dam. Judge Carroll indicated that if the dam is not repaired, the road will remain sound, but the lake will have to be drained. Judge Carroll estimates that it will cost $ 500,000 to repair and rebuild the dam.
First, the Fiscal Court derives its power from KRS 67.080 and 67.083, which grant it "the power to carry out governmental functions necessary for the operation of the county." KRS 67.083. Relevant here, the Fiscal Court has a duty "to repair and keep in good condition . . . roads and bridges."
Shearer v. Hall, 399 S.W.2d 701, 704 (Ky. 1965); see KRS 67.080 ("The Fiscal Court shall . . . cause the construction, operation, and maintenance of all county buildings and other structures, grounds, roads and other property."). More specifically, the county engineer is statutorily required to "Nemove trees or other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacles become a hazard to traffic. " KRS, 179.070. To the extent the disrepair of the dam is a hazard to traffic, the Fiscal Court, by way of the county engineer, has the duty to repair the road and the right-of-way. The Fiscal Court must repair any damage to the dam that falls within the county's right-of-way.
Second, the Fiscal Court may , but is not required to, "levy taxes, issue bonds, appropriate funds, and employ personnel" in order to conserve, preserve, and enhance "natural resources including soils, water, air, vegetation, and wildlife" and also to control floods. KRS 67.083(h)-(i). In contrast to its duty to repair and maintain roads, the Fiscal Court is not required to conserve, preserve, or enhance a natural resource but may choose to do so in its discretion. The Fiscal Court may repair the dam according to KRS 67.083. Repairing the dam falls within two duties of the Fiscal Court, to preserve natural resources, such as a lake, and to control floods. See KRS 67.083. Since the lake will need to be drained if the dam is not repaired, the Fiscal Court may preserve that natural resource. KRS 67.083 provides that the Fiscal Court may use public funds to repair the dam by levying taxes, issuing bonds, appropriating funds, or employing personnel.
As a final note, because the Fiscal Court will be required to assume debt to repair the dam, it must comply with various constitutional and statutory provisions that apply to counties acquiring debt. See, e.g. , KRS 65.117; KRS 68.240; KY. CONST. § 157; Ky. Const. § 157b; Ky. Const. § 158; Ky. Const. § 159. See also OAG 77-322.