CHAPTER 174 Transportation Cabinet

174.010. Transportation Cabinet established — Secretary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. IV, § 1) was repealed by Acts 1992, ch. 13, § 13, effective July 14, 1992. For present law see KRS 12.250 and 12.255 .

174.012. “Cabinet” defined.

As used in this chapter, “cabinet” means the Transportation Cabinet.

History. Enact. Acts 2009, ch. 13, § 22, effective June 25, 2009.

174.015. Departments within the cabinet. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. IV, § 2; 1982, ch. 184, § 2, effective July 15, 1982; 1984, ch. 406, § 2, effective July 13, 1984) was repealed by Acts 2000, ch. 85, § 6, effective July 14, 2000. For present law, see KRS 174.020 .

174.016. Department of Rural and Municipal Aid — Duties — Personnel.

  1. The Office of Rural and Secondary Roads within the Department of Rural and Municipal Aid shall be responsible for the development and implementation of the Rural Secondary Program and such other functions as are assigned by the secretary, except that the department shall not have jurisdiction over the County Road Aid Program or Municipal Road Aid Program unless an agreement initiated by a county or municipality is in effect.
  2. The Department of Rural and Municipal Aid shall include an assistant state highway engineer for rural and municipal aid appointed pursuant to KRS Chapter 12 by the secretary upon the recommendation of the state highway engineer of the Department of Highways.

History. Enact. Acts 1984, ch. 350, § 1, effective July 13, 1984; 2000, ch. 85, § 2, effective July 14, 2000; 2005, ch. 98, § 3, effective June 20, 2005; 2009, ch. 13, § 4, effective June 25, 2009.

174.020. Major organizational units.

  1. The Transportation Cabinet shall consist of the following major organizational units:
    1. The Office of the Secretary, which shall include, but not be limited to:
      1. The secretary to be appointed by the Governor under KRS 12.255 ; and
      2. The deputy secretary appointed under KRS 12.040 ;
    2. The Department of Highways, headed by a commissioner, appointed by the Governor under KRS 12.040 ;
    3. The Department of Vehicle Regulation, headed by a commissioner, appointed by the Governor under KRS 12.040. The Motor Vehicle Commission established in KRS 190.058 shall be attached to the Department of Vehicle Regulation for administrative purposes;
    4. The Department of Rural and Municipal Aid, headed by a commissioner appointed by the Governor under KRS 12.040;
    5. The Department of Aviation, headed by a commissioner appointed by the Governor under KRS 12.040. The Kentucky Airport Zoning Commission established by KRS 183.861 shall be attached to the Department of Aviation for administrative purposes;
    6. The Office of Support Services, headed by an executive director appointed under KRS 12.040;
    7. The Office of Transportation Delivery, headed by an executive director appointed under KRS 12.040;
    8. The Office of Audits, headed by an executive director appointed under KRS 12.040;
    9. The Office of Human Resource Management, headed by an executive director appointed under KRS 12.040;
    10. The Office of Information Technology, headed by an executive director appointed under KRS 12.040;
    11. The Office of Legal Services, headed by an executive director appointed under KRS 12.040;
    12. The following offices, which shall be attached to the Office of the Secretary:
      1. The Office of Public Affairs, headed by an executive director appointed under KRS 12.040;
      2. The Office of Budget and Fiscal Management, headed by an executive director appointed under KRS 12.040;
      3. The Office for Civil Rights and Small Business Development, headed by an executive director appointed under KRS 12.040; and
      4. The Office of Inspector General, headed by an executive director appointed under KRS 12.040;
    13. The following offices, which shall be attached to the Department of Highways:
      1. The Office of Project Development, headed by an executive director appointed under KRS 12.040, who shall be a registered professional engineer under KRS Chapter 322, and who shall be known as the deputy state highway engineer for project development;
      2. The Office of Project Delivery and Preservation, headed by an executive director appointed under KRS 12.040, who shall be a registered professional engineer under KRS Chapter 322, and who shall be known as the deputy state highway engineer for project delivery and preservation;
      3. The Office of Highway Safety, headed by an executive director appointed under KRS 12.040; and
      4. Highway District Offices One through Twelve, each district office to be headed by an executive director, also known as the chief district engineer, appointed under KRS 12.040, who shall be a registered professional engineer under KRS Chapter 322; and
    14. The following offices, which shall be attached to the Department of Rural and Municipal Aid:
      1. Office of Local Programs, headed by an executive director appointed under KRS 12.040; and
      2. Office of Rural and Secondary Roads, headed by an executive director appointed under KRS 12.040.
  2. The position of director in the Division of Environmental Analysis is a policy-making position under KRS 18A.175 .

History. Enact. Acts 1974, ch. 74, Art. IV, § 3; 1976, ch. 299, § 34; 1982, ch. 184, § 3, effective July 15, 1982; 1984, ch. 339, § 2, effective July 13, 1984; 1984, ch. 406, § 3, effective July 13, 1984; 1986, ch. 216, § 1, effective July 15, 1986; 1994, ch. 215, § 1, effective July 15, 1994; 1998, ch. 333, § 2, effective July 15, 1998; 2000, ch. 85, § 3, effective July 14, 2000; 2000, ch. 417, § 2, effective December 1, 2000; 2001, ch. 16, § 2, effective June 21, 2001; 2003, ch. 7, § 2, effective June 24, 2003; 2005, ch. 98, § 2, effective June 20, 2005; 2009, ch. 12, § 45, effective June 25, 2009; 2009, ch. 13, § 3, effective June 25, 2009.

Legislative Research Commission Notes.

(6/25/2009). During the processing of Senate Bill 182, which became 2009 Ky. Acts ch. 13, the following sentence was inadvertently inserted twice in subsection (1) of this statute: “The Motor Vehicle Commission established in KRS 190.058 shall be attached to the Department of Vehicle Regulation for administrative purposes.” This manifest clerical or typographical error has been corrected during codification by the Reviser of Statutes under the authority of KRS 7.136(1)(h).

(6/25/2009). This section was amended by 2009 Ky. Acts ch. 12 and 13, which do not appear to be in conflict and have been codified together.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

NOTES TO DECISIONS

  1. Acting Commissioners.
  2. Signing of Orders.
1. Acting Commissioners.

When defendant refused the alcohol test after driving intoxicated, he had a due process hearing, and it was immaterial that the acting Commissioner for the Department of Vehicle Regulation rather than the Secretary of the Transportation Cabinet signed the order of operator’s license suspension as long as that individual did so in an official capacity. Commonwealth v. Mullins, 812 S.W.2d 164, 1991 Ky. App. LEXIS 37 (Ky. Ct. App. 1991).

2. Signing of Orders.

The signing of a motor vehicle suspension order by the Commissioner of the Department of Vehicle Regulation, rather than the Secretary of the Transportation Cabinet, was valid under this section. Cummins v. Lentz, 813 S.W.2d 822, 1991 Ky. App. LEXIS 70 (Ky. Ct. App. 1991).

174.025. Office of Legal Services.

The executive director of the Office of Legal Services may also serve as general counsel if so appointed pursuant to KRS 12.210 . The Office of Legal Services shall be directly responsible to the secretary and shall perform such duties as may be assigned by the secretary. The office shall consist of such attorneys appointed pursuant to KRS 12.210 and such employees as necessary to perform the duties, responsibilities, and functions of the office.

History. Enact. Acts 1974, ch. 74, Art. IV, § 4; 1982, ch. 184, § 4, effective July 15, 1982; 1984, ch. 406, § 4, effective July 13, 1984; 2000, ch. 85, § 4, effective July 14, 2000; 2005, ch. 98, § 4, effective June 20, 2005.

174.030. Staff services — Administrator. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 74, Art. IV, § 5) was repealed by Acts 1976, ch. 299, § 91.

174.035. Internal organization — Divisions.

The secretary shall establish the internal organization of the cabinet not established in 1974 Acts, ch. 74, and shall divide the cabinet into such offices or divisions as the secretary may deem necessary to perform the functions, powers and duties of the cabinet, subject to the provisions of KRS Chapter 12.

History. Enact. Acts 1974, ch. 74, Art. IV, § 6.

174.040. Powers of secretary — Designation of deputy secretaries.

The secretary shall have any and all necessary power and authority, subject to appropriate provisions of the statutes, to create such positions and to employ the necessary personnel in such positions to enable the secretary to perform the functions of the cabinet. The commissioner of the Department of Highways, the commissioner of the Department of Rural and Municipal Aid, and the commissioner of the Department of Vehicle Regulation may be designated as deputy secretaries for operational purposes.

History. Enact. Acts 1974, ch. 74, Art. IV, § 7; 1984, ch. 350, § 2, effective July 13, 1984; 2005, ch. 98, § 5, effective June 20, 2005; 2009, ch. 13, § 5, effective June 25, 2009.

174.045. Appointments of assistants.

All appointments to positions not in the classified service shall be made pursuant to KRS 12.050 and such appointees shall be major assistants to the secretary and shall assist in the development of policy.

History. Enact. Acts 1974, ch. 74, Art. IV, § 8.

174.050. Transfer of functions of Highways, Motor Transportation, and Aeronautics Departments.

There are hereby transferred to and vested in the secretary and cabinet all functions, powers and duties, funds, personnel, equipment, and supplies existing under present law in the Department of Highways, Department of Motor Transportation, Department of Aeronautics, and under commissioners and other officers and offices of said Departments of Highways, Motor Transportation, and Aeronautics.

History. Enact. Acts 1974, ch. 74, Art. IV, § 9.

174.055. Other agency functions transferred to cabinet.

There are hereby transferred to and vested in the secretary and cabinet all functions, powers, duties, funds, personnel, equipment, and supplies relating to operators’ licenses under provisions of KRS Chapter 186, boats and boating provisions of KRS Chapter 235, financial responsibility provisions of KRS Chapter 189, traffic safety coordinating committee under provisions of KRS Chapter 17, and motor vehicle inspection under provisions of KRS Chapter 189, which said provisions of law have been conferred upon the Department of Public Safety and under the commissioner and other officers and offices of said Department of Public Safety. The examination of applicants under KRS 186.480 shall be retained by the Department of Kentucky State Police.

History. Enact. Acts 1974, ch. 74, Art. IV, § 10; 2007, ch. 85, § 179, effective June 26, 2007.

174.056. KYTC photo license account.

  1. The KYTC photo license account is created within the road fund, to be administered by the Transportation Cabinet. The account shall consist of the portion of fees directed to the account under KRS 186.531 and any other proceeds from grants, contributions, appropriations, or other moneys made available for the purposes of the account.
  2. Notwithstanding KRS 45.229 , any moneys remaining in the account not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings of the account shall become a part of the account and shall not lapse.
  4. Moneys in the account shall be used for the purposes of verifying, creating, and distributing secure photo instruction permits, operator’s licenses, and personal identification cards and are hereby appropriated for these purposes.

History. 2017 ch. 100, § 23, effective January 1, 2019.

174.057. Railroad regulation — Division of Planning — Administrative regulations.

The Transportation Cabinet shall have the responsibility of regulating railroads within the Commonwealth. The cabinet shall delegate to the Division of Planning within the Department of Highways’ Office of Project Development the powers necessary to carry out the provisions of this section. The secretary may employ such personnel as necessary to perform the duties, functions, and responsibilities associated with the regulation of railroads. The division shall have all the powers previously vested in the Kentucky Railroad Commission. The cabinet shall promulgate administrative regulations under KRS Chapter 13A to carry out the provisions of this section.

History. Enact. Acts 2000, ch. 417, § 1, effective December 1, 2000; 2009, ch. 13, § 6, effective June 25, 2009.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

174.058. Shortline railroad assistance fund.

  1. As used in this section:
    1. “Class II railroad” means a railroad company classified as a Class II carrier by the federal Surface Transportation Board; and
    2. “Class III railroad” means a railroad company classified as a Class III carrier by the federal Surface Transportation Board.
  2. The shortline railroad assistance fund is hereby established in the State Treasury as an interest-bearing fund and shall be administered by the cabinet.
  3. The fund shall be a dedicated fund, and all moneys in the fund shall be used solely to provide financial assistance for the rehabilitation and improvement of a Class II railroad and Class III railroad operating in Kentucky.
  4. Eligible costs for which financial assistance may be provided shall include construction, reconstruction, improvement, or rehabilitation of rail facilities, including tracks, ties, roadbeds, and related structures used for freight rail operation.
  5. Financial assistance provided from the fund shall be limited to:
    1. Grants; and
    2. Loans, which shall be made at or below market interest rates, including interest-free loans, at terms not to exceed ten (10) years.
  6. All loan payments and repayments, and all interest payments on loans, shall be credited to the fund.
  7. The cabinet may promulgate administrative regulations regarding procedures for providing financial assistance pursuant to this section.
  8. The shortline railroad assistance fund is authorized to receive funds from appropriations of the General Assembly, repayments of loans and interest thereon, interest from fund principal, grants, donations, and payments to the fund for any lawful purpose.
  9. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year to be used for the purposes set forth in this section.
  10. The cabinet may enter into agreements with federal or state agencies or any other persons to carry out the provisions of this section.
  11. Any moneys in the fund are hereby appropriated for the purposes set forth in this section.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 72, effective June 26, 2009.

174.060. Licenses and fees.

There are hereby transferred to and vested in the secretary and cabinet all functions, powers, duties, funds, personnel, equipment and supplies relating to motor vehicle license under the provisions of KRS Chapter 186, operator license under provisions of KRS Chapter 186 and boating fees under provisions of KRS Chapter 235, which said provisions of law have been conferred upon the Department of Revenue and under the commissioner and other officers and offices of said Department of Revenue.

History. Enact. Acts 1974, ch. 74, Art. IV, § 11.

174.065. Traffic safety.

The cabinet shall:

  1. Assist the Department of Kentucky State Police in coordinating all efforts of the state’s various departments and agencies to promote traffic safety and in making recommendations regarding the prevention of unnecessary duplications of these efforts;
  2. Cooperate with all organizations, public or private, in the encouragement and promotion of traffic safety education in all forms; and
  3. Receive, control, and expend, in accordance with the general provisions of the Kentucky Revised Statutes governing financial administration of all state agencies, grants, and funds from either public or private sources.

History. Enact. Acts 1974, ch. 74, Art. IV, § 12; 1984, ch. 404, § 18, effective July 13, 1984; 2007, ch. 85, § 180, effective June 26, 2007.

174.070. Funds, credits, assets, etc., transferred to cabinet.

All funds, credits, assets, appropriations, outstanding obligations, personnel, equipment, any and all resources or other tangible personal property and any business or other matter undertaken or now vested in the Department of Highways, Department of Motor Transportation, Department of Aeronautics, Department of Public Safety, Department of Revenue, relating to functions transferred under 1974 Acts ch. 74, are hereby transferred and vested in the cabinet.

History. Enact. Acts 1974, ch. 74, Art. IV, § 13.

174.075. Rules and regulations.

Except as otherwise provided in 1974 Acts ch. 74, all rules, regulations, acts, agreements, determinations and decisions of the Department of Public Safety, Department of Highways, Department of Motor Transportation, Department of Aeronautics, and Department of Revenue, shall remain in effect within the cabinet until duly modified or repealed by the secretary.

History. Enact. Acts 1974, ch. 74, Art. IV, § 14.

174.080. Administrative regulations.

  1. The secretary may promulgate administrative regulations not inconsistent with the provisions of 1974 Acts ch. 74.
  2. The Transportation Cabinet shall adopt such administrative regulations and procedures consistent with the provisions of KRS 56.610 to 56.760 as it deems necessary or appropriate to carry out the provisions of KRS 56.610 to 56.760 with regard to requirements of the Department of Highways as provided for in KRS Chapters 175, 176, 177 and 180.

History. Enact. Acts 1974, ch. 74, Art. IV, § 15; 1986, ch. 15, § 1, effective July 15, 1986.

174.085. Administrative support services.

All corporate bodies and instrumentalities of the Commonwealth, advisory committees, commissions, councils, interstate compact, or other statutory bodies presently attached to the functions in whole or in part of the Departments of Public Safety, Aeronautics, Highways, Motor Transportation, and Revenue and transferred to the Department of Transportation under 1974 Acts ch. 74, shall be attached to the Transportation Cabinet for administrative support services. The secretary of transportation, or his designee, shall serve as member of any authority, commission, board, committee, or other entity on which by virtue of law, regulation, or order the commissioner of public safety, commissioner of highways, commissioner of motor transportation, commissioner of aeronautics, commissioner of revenue is a member by virtue of his office. Any office, or its successor agency, presently designated as Kentucky representative for a federally related program shall continue as such until such designation is modified by the secretary with the approval of the Governor.

History. Enact. Acts 1974, ch. 74, Art. IV, § 16.

174.100. Public hearing required prior to expenditure by unit of local government of state-derived tax revenues on roads — Effect of hearing — Exceptions.

Before any unit of local government expends state-derived tax revenues on a state rural, secondary, county road or municipal highway, road, street, or county or municipal bridge, it shall hold a hearing in accordance with the provisions of this section to take the sense of the public with regard to the project and to priorities for use of tax moneys for road and bridge purposes.

  1. Prior to the contemplated date of expenditure of state-derived tax revenues on a road or bridge by a unit of local government, that unit of government shall hold a public hearing to take the sense of the public with regard to road and bridge matters within the unit of local government. Notice of the hearing shall be given not less than seven (7) days nor more than twenty-one (21) days before the scheduled date of the public hearing and before beginning work on any project covered by this section.
  2. At the hearing, any person may speak with regard to any proposed project, any project which he feels should be built or done which has not been proposed, priorities for completion of projects, and any other matter related to road or bridge projects.
  3. The unit of local government holding the hearing shall not be bound by the testimony heard at the hearing but shall give due consideration to it.
  4. No unit of local government shall begin construction on a road or bridge project in which state-derived tax revenues are involved until the hearing as provided in this section has been held.
  5. This section shall not be construed to require a separate hearing for each project. A single hearing encompassing the entire road and bridge program, if all projects subsequently undertaken have been identified at the hearing, shall meet the requirements of this section.
  6. The provisions of this section shall not apply to emergency repair or replacement of roads or bridges necessitated by natural or man-caused disasters nor to street cleaning or snow removal operations.
  7. The provisions of this section shall not apply to projects which were under construction as of July 15, 1980, unless construction was suspended after that date and the unit of local government desires to reactivate the project.

History. Enact. Acts 1980, ch. 370, § 1, effective July 15, 1980; 1990, ch. 50, § 2, effective July 13, 1990; 1992, ch. 33, § 5, effective July 14, 1992.

174.105. Motor carrier regulatory board — Membership — Hearings on violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 15, effective July 15, 1982) was repealed by Acts 1984, ch. 373, § 12, effective July 13, 1984.

174.120. Statewide bicycle and bikeways program.

  1. The Transportation Cabinet shall develop and coordinate a statewide bicycle and bikeways program and shall coordinate plans for promotion of bicycling and promotion of bikeways with other state agencies, and units of local government in order to maximize the use of roads, streets, parks and other publicly owned lands, abandoned road beds, and other resources in the development of bikeways.
  2. The cabinet shall:
    1. Assist and cooperate with local governments and other agencies in the development and construction of local and regional bikeway projects;
    2. Develop and publish policies, procedures, and standards for planning, designing, and constructing, maintaining, marking, and operating bikeways in the state, and for the safety of bicyclists, motorists, and the public;
    3. Develop bikeway demonstration projects and safety training programs; and
    4. Develop and construct a State Bikeway System.
    1. The cabinet shall be authorized to appropriate needed funds for the program in the biennial budget, subject to approval of the General Assembly. (3) (a) The cabinet shall be authorized to appropriate needed funds for the program in the biennial budget, subject to approval of the General Assembly.
    2. The cabinet is authorized to obtain any federal, state, local, or private funds available to the cabinet, and designated for the purpose of this section and KRS 174.125 .

History. Enact. Acts 1992, ch. 111, § 1, effective July 14, 1992.

174.125. Kentucky Bicycle and Bikeway Commission — Membership — Duties — Authority to adopt administrative regulations.

  1. There is hereby created a Kentucky Bicycle and Bikeway Commission within the Transportation Cabinet. The commission shall consist of seven (7) members appointed by the Governor. Members of the commission shall receive necessary travel expenses. The members of the commission shall elect a chairman who shall serve a two (2) year term. Initially, three (3) members shall be appointed for two (2) years, and four (4) members for four (4) years. Each appointment thereafter shall be for four (4) years. Upon the resignation of a member in midterm, the Governor shall appoint a replacement for the remainder of the unexpired term. The Governor shall make appointments to the commission with a view to represent each of the state’s geographical regions and to various types of bicycle users and interests.
  2. The commission shall meet in various sections of the state on a quarterly basis, and at other times as may be necessary to fulfill its duties. A majority of the members shall constitute a quorum for the transaction of business. The commission shall be provided with adequate staff as determined by the secretary, and this staff shall be responsible for maintaining the minutes of the meetings, researching bicycle and bikeway related topics, and other activities for the commission as may be consistent with the commission’s role within the cabinet.
  3. The commission shall have the following duties:
    1. To represent the interests of bicyclists in advising the secretary on all matters pertaining to bicycles, bikeways, and their use, extent, and location;
    2. Assist the bicycle and bikeway program in the exercise of its duties within the cabinet;
    3. Promote the best interests of the bicycling public, within the context of the total transportation system, to governing officials and the public at large.
  4. The secretary shall study bicycle and bikeway needs and potentials and shall report the findings to the legislature on an annual basis.
  5. The secretary shall adopt administrative regulations to implement the purposes of KRS 174.120 and this section.
  6. Initial appointments to the commission shall be made no later than August 1, 1994.

History. Enact. Acts 1992, ch. 111, § 2, effective July 14, 1992.

174.130. Cabinet’s duty to transmit information concerning abandonment of railroad corridors to Department of Parks and Railtrail Development Office — Records and maps of railroad lines.

  1. The Transportation Cabinet, including any agency or other unit of government attached to the cabinet, shall immediately transmit to the Department of Parks and to the Commonwealth’s Railtrail Development Office in the Department for Local Government any information received from a railroad or other person having an ownership interest in a railroad corridor pertaining to a proposed or pending action or proceeding to obtain federal authority for the regulatory abandonment of that railroad corridor.
  2. The Transportation Cabinet shall keep a record of railroad lines in the Commonwealth of Kentucky, including both lines that have been abandoned through the federal government’s regulatory abandonment process and those where any railroad property interest in the railroad corridor itself has been abandoned under Kentucky law. The cabinet shall annually publish an updated map showing the location and as much information as to the status of these lines as practicable. The record shall include, inasmuch as possible:
    1. A description of the line and its location;
    2. The current or last railroad owner of the line;
    3. The operator of the line;
    4. The addresses and phone numbers for the owners and operators of the lines;
    5. Whether the owner of the line has received authority from the Federal Government to discontinue service over the line;
    6. Whether the owner of the line has received authority from the Federal Government to abandon the line;
    7. Whether the owner of the line has consummated any authority granted by the Federal Government to discontinue service over the line or to abandon the line;
    8. Whether the line has been railbanked under either federal or state law; and
    9. Any other information the cabinet deems pertinent and useful to the public.

History. Enact. Acts 2000, ch. 338, § 6, effective July 14, 2000; 2007, ch. 47, § 81, effective June 26, 2007; 2010, ch. 117, § 77, effective July 15, 2010.

174.135. Division of Incident Management.

The director of the Division of Incident Management within the Department of Highways’ Office of Highway Safety shall be responsible for statewide transportation emergency and critical incident information and systems control. The director:

  1. Shall be directly responsible and report to the executive director of the Office of Highway Safety; and
  2. May, with the approval of the executive director, employ the staff necessary to perform the duties, functions, and responsibilities of the division.

History. Enact. Acts 2003, ch. 7, § 3, effective June 24, 2003; 2009, ch. 13, § 7, effective June 25, 2009.

Water Transportation

174.200. Water Transportation Advisory Board — Members — Officers — Meetings.

  1. The Water Transportation Advisory Board is established as an advisory body to the executive and legislative branches of government on matters pertaining to water transportation.
  2. The Water Transportation Advisory Board shall be composed of seven (7) members, to be appointed as follows:
    1. Four (4) members representing the Commonwealth’s public riverports, to be appointed by the Governor from a list of eight (8) nominees supplied by the Kentucky Association of Riverports. The Governor shall give consideration to including a representative from each river containing an operating public riverport;
    2. Two (2) at-large members, to be appointed by the Governor from the private sector associated with the waterways industry; and
    3. One (1) member representing Kentuckians for Better Transportation, to be appointed by the Governor from a list of three (3) nominees supplied by that organization.
  3. After the initial appointments, members of the Water Transportation Advisory Board shall serve terms of four (4) years. Members shall be eligible to succeed themselves and shall serve until their successor is appointed.
  4. Members of the Water Transportation Advisory Board shall not be paid for their service as board members, and shall not be reimbursed for any expenses involved in attending board meetings.
  5. The Water Transportation Advisory Board shall elect a chair and a vice chair from its members who shall serve in those capacities until replaced. A majority of the board shall constitute a quorum for the purposes of conducting business. The board shall be subject to the provisions of the Kentucky Open Records Act, KRS 61.870 to 61.884 .
  6. The Water Transportation Advisory Board shall meet biennially, or when called by the chair, or at the request of the secretary of the Transportation Cabinet. The board shall receive assistance in carrying out its administrative functions from the Transportation Cabinet and shall be attached to the Transportation Cabinet for administrative purposes.

History. Enact. Acts 2010, ch. 56, § 1, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). 2010 Ky. Acts ch. 56, sec. 5, sets forth the initial terms for members of the Water Transportation Advisory Board established by this section.

174.205. Duties of Water Transportation Advisory Board.

The Water Transportation Advisory Board shall:

  1. Advise the Transportation Cabinet, the Cabinet for Economic Development, the Governor’s Office, and the General Assembly on matters relating to water transportation;
  2. Recommend action to enable the Commonwealth to make best use of its waterways and riverports for future economic growth;
  3. Assist in defining the duties and functions of positions within state government responsible for water transportation;
  4. Recommend criteria for setting priorities for funding riverport marketing initiatives under the riverport marketing assistance trust fund established in KRS 154.80-140 ;
  5. Evaluate applications submitted by riverports for grants under the riverport marketing assistance trust fund and make recommendations to the granting authority on the disbursement of those funds;
  6. Recommend criteria for setting priorities for funding riverport improvements under the riverport financial assistance trust fund established in KRS 174.210 ; and
  7. Evaluate applications submitted by riverports for grants under the riverport financial assistance trust fund and make recommendations to the granting authority on the disbursement of those funds.

History. Enact. Acts 2010, ch. 56, § 2, effective July 15, 2010.

174.210. Riverport financial assistance trust fund — Contributions — Purpose — Grants — Annual report.

  1. There is created a riverport financial assistance trust fund, to be administered by the Transportation Cabinet.
  2. The riverport financial assistance trust fund may receive appropriations, federal funds, contributions, gifts, and donations.
  3. The purpose of the riverport financial assistance trust fund shall be to improve riverport facilities and infrastructure, to capture the economic and trade potential offered by water transportation. To the extent funds are available, the fund shall make grants to riverport authorities for new construction and major replacement or repair projects, including but not limited to improvement of docks, wharves, equipment, port buildings, storage facilities, roads and railroads to facilitate the flow of commerce through the port, other on-site improvements, and related professional services. Eligible projects shall not include routine operations, maintenance, or repair activities.
  4. Notwithstanding KRS 45.229 , moneys remaining in the fund at the close of a fiscal year shall not lapse but shall carry forward into the succeeding fiscal year. Interest earned on any moneys in the fund shall accrue to the fund. Amounts from the fund shall be disbursed and expended in accordance with this section.
  5. To be eligible for a grant under this section, the applicant shall provide at least a twenty percent (20%) match, which may be obtained from any public or private source.
    1. Grant applications shall be reviewed and awarded annually. (6) (a) Grant applications shall be reviewed and awarded annually.
    2. The Transportation Cabinet shall submit all applications to the Water Transportation Advisory Board established by KRS 174.200 for evaluation and recommendations prior to awarding any grant funding under this section.
    3. Priority shall be given to applicants with a riverport master plan, for capital-intensive projects for which permits have been obtained, and for projects for which matching funds have been obtained.
  6. The Transportation Cabinet shall submit on an annual basis a report detailing all grants awarded under this section to the Water Transportation Advisory Board, the Interim Joint Committee on Transportation, and the Interim Joint Committee on Appropriations and Revenue.

History. Enact. Acts 2010, ch. 56, § 4, effective July 15, 2010.

Legislative Research Commission Note.

(9/24/2015). The phrase “Notwithstanding KRS 45.299” in subsection (4) of this statute has been changed to “Notwithstanding KRS 45.229 .” This manifest clerical or typographical error has been corrected by the Reviser of Statutes under the authority of KRS 7.136 .

Hazardous Materials

174.400. Legislative intent.

Due to the central geographical location of the Commonwealth with respect to the hazardous materials industry, and since most predictions indicate that the amount of hazardous material in transport should substantially increase in the future, it is the intent of KRS 174.405 to 174.425 to provide for the public health and safety of the citizens and to protect the environment of the Commonwealth when any hazardous material is being transported within, or, in the case of radioactive materials, within or through this state.

History. Enact. Acts 1980, ch. 384, § 1, effective July 15, 1980; 1994, ch. 99, § 2, effective July 15, 1994.

Opinions of Attorney General.

Since KRS 174.400 to 174.435 does not pertain to the transportation of radioactive materials in a private passenger’s automobile, a doctor who uses his private motor vehicle to transport radium for the treatment of his patients is not required to obtain a permit from the department of transportation in order to transport such material. OAG 80-653 .

174.405. Definitions.

As used in KRS 174.400 to 174.425 :

  1. “Carrier” means a person engaged in the commercial transportation of passengers or property, except for pipelines and railways, by:
    1. Land, as a common, contract, or private carrier; or
    2. Civil aircraft.
  2. “Hazardous material” means a substance designated hazardous by the Federal Hazardous Materials Transportation Law (49 U.S.C. sec. 5101 et seq.) and regulations issued pursuant thereto, including but not limited to hazardous and radioactive waste, but shall not include agricultural wastes, coal mining wastes, utility waste (fly ash, bottom ash, scrubber sludge), sludge from water treatment and sewage treatment facilities, cement kiln dust, gas and oil drilling muds, oil production brines or waste oil.
  3. “Hazardous waste” means a substance or material defined as hazardous waste by KRS Chapter 224 and regulations issued pursuant thereto.
  4. “Radioactive material” means any material or combination of material, which spontaneously emits ionizing radiation. Materials in which the estimated specific activity is not greater than 0.002 microcuries per gram of material, and in which the radioactivity is essentially uniformly distributed, are not considered to be radioactive materials.
  5. “Radioactive waste” means any waste substance or combination of substances, in any form which because of its radioactive material content may create a threat to public health or to animal, plant, and aquatic life forms.
  6. “Vehicle” means any device or contrivance for carrying or conveying persons, property, or substances, including conveyance by highways or by airway.

History. Enact. Acts 1980, ch. 384, § 2, effective July 15, 1980; 1994, ch. 99, § 3, effective July 15, 1994; 2005, ch. 165, § 10, effective June 20, 2005.

174.410. Administrative regulations and agreements with other cabinets.

  1. The secretary shall be responsible for controlling and regulating the movement of all radioactive materials and the intrastate transport of other hazardous materials transported by all carrier modes within the Commonwealth.
  2. The secretary, in consultation with the secretary of the Energy and Environment Cabinet and the secretary of the Cabinet for Health and Family Services, shall adopt by reference or in entirety, the Federal Hazardous Materials Transportation Regulations, 49 C.F.R. (1978), as amended, to effectively carry out the intent of KRS 174.400 to 174.425 .
  3. The cabinet and the Justice and Public Safety Cabinet shall cooperate with and assist the Energy and Environment Cabinet in implementing and enforcing the transportation provisions of any state hazardous waste regulations promulgated pursuant to KRS Chapter 224. The specific nature and details of the assistance effort shall be established by a formal cooperative agreement acceptable to the cabinets, and all activities shall occur in accordance with the terms of the agreement. The agreement shall address and include but not necessarily be limited to the following items:
    1. As a part of routine and periodic transportation checks and inspections, ensure that shipments of hazardous waste do not present a threat to the public or the environment; are accompanied by the required hazardous waste manifest or such other shipping or delivery documents as may be acceptable to the Energy and Environment Cabinet; and comply with applicable shipping standards;
    2. Upon receipt of a written request from the secretary or general counsel of the Energy and Environment Cabinet, actively conduct field investigations relating to the illegal, improper, or unauthorized transport of hazardous waste in the state. Such investigations may, at a minimum, include passive and active surveillance, apprehension, and reporting, with the scope and extent of each investigation to be previously agreed to by the involved cabinets;
    3. Compile and maintain such necessary records that may normally be required to carry out the provisions of this subsection and shall for minor violations report quarterly, and for major violations report weekly, to the Energy and Environment Cabinet on the status of the interagency hazardous-waste transportation monitoring and enforcement activity for irregularities or violations;
    4. Provide any information, evidence, and other support, either in written form or in the form of oral testimony during a legal proceeding or both, as may be required by the Energy and Environment Cabinet to fully carry out its statutory responsibility under the appropriate sections of KRS Chapter 224;
    5. The Energy and Environment Cabinet shall, unless specifically agreed otherwise, have primary responsibility for initiating and conducting all legal proceedings arising from the terms and provisions of this subsection; and
    6. The Energy and Environment Cabinet shall provide sufficient training, technical assistance, and other support to the appropriate cabinets to prepare representatives of the cabinets to adequately carry out the responsibilities set forth in this subsection.

History. Enact. Acts 1980, ch. 484, § 3, effective July 15, 1980; 1994, ch. 99, § 4, effective July 15, 1994; 1998, ch. 426, § 121, effective July 15, 1998; 2005, ch. 99, § 142, effective June 20, 2005; 2007, ch. 85, § 181, effective June 26, 2007; 2010, ch. 24, § 228, effective July 15, 2010.

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

174.415. Inspection and enforcement program.

The secretary shall establish an inspection and enforcement program to determine compliance with the provisions of KRS 174.400 to 174.425 , and any regulations promulgated under KRS 174.410 . In carrying out the provisions of KRS 174.400 to 174.425 , the secretary shall not duplicate the enforcement and inspection activities performed by the federal government.

History. Enact. Acts 1980, ch. 384, § 4, effective July 15, 1980; 1994, ch. 99, § 5, effective July 15, 1994.

Opinions of Attorney General.

Since KRS 174.400 to 174.435 does not pertain to the transportation of radioactive materials in a private passenger’s automobile, a doctor who uses his private motor vehicle to transport radium for the treatment of his patients is not required to obtain a permit from the department of transportation in order to transport such material. OAG 80-653 .

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

174.420. Carrying of shipping papers and hazardous waste manifest.

  1. Any person transporting hazardous materials in the Commonwealth shall carry a copy of the shipping papers required in 49 C.F.R. (1978), as amended, in the transporting vehicle while in the Commonwealth.
  2. In the event of an accident involving hazardous material, the operator of the vehicle shall:
    1. Notify the Department of Kentucky State Police of the accident within one (1) hour, who shall then notify the local jurisdiction and any other appropriate state agency with emergency action responsibility, and
    2. Provide the shipping papers to state and local emergency response authorities, and immediately bring to their attention the fact that the vehicle is transporting hazardous materials.
  3. In addition to the other requirements of this section, any person transporting hazardous wastes shall carry in the transporting vehicle a copy of a manifest in a form approved by the Energy and Environment Cabinet.

History. Enact. Acts 1980, ch. 384, § 5, effective July 15, 1980; 1994, ch. 99, § 7, effective July 15, 1994; 2007, ch. 85, § 182, effective June 26, 2007; 2010, ch. 24, § 229, effective July 15, 2010.

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

174.425. Exemption for national security purposes.

The provisions of KRS 174.400 to 174.425 shall not apply to hazardous materials shipped by the United States government. Nothing herein shall be construed as requiring the disclosure of any defense information or restricted data as defined in 42 U.S.C. secs. 2011 et seq. and 42 U.S.C. secs. 5801 et seq.

History. Enact. Acts 1980, ch. 384, § 6, effective July 15, 1980; 1994, ch. 99, § 1, effective July 15, 1994.

174.430. Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 384, § 7, effective July 15, 1980) was repealed by Acts 1994, ch. 99, § 8, effective July 15, 1994.

174.435. Exemption. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 384, § 9, effective July 15, 1980) was repealed by Acts 1994, ch. 99, § 8, effective July 15, 1994.

Municipal Solid Waste

174.450. License to operate a municipal solid waste transportation vehicle — Application procedures — Placard for display — Exemption — Registration fees.

  1. As used in this section, “municipal solid waste transportation vehicle” means any truck, automobile, tractor, or other self-propelled vehicle not operated or driven on fixed rails or track used in the transportation of municipal solid waste; but does not include a vehicle used to transport municipal solid waste from a residence if the vehicle is owned or leased by an individual who lives in the residence, or a vehicle that is ten thousand (10,000) pounds or less.
  2. This section shall not apply to a vehicle used exclusively on private roads or to transport municipal solid waste within the boundaries of or to real property owned or leased by the generator of the municipal solid waste.
  3. This section shall apply to both publicly and privately-owned municipal solid waste transportation vehicles.
  4. No person shall operate a municipal solid waste transportation vehicle within the Commonwealth without first having obtained a license from the Transportation Cabinet to operate a municipal solid waste transportation vehicle pursuant to regulations promulgated by the cabinet.
  5. No person shall cause municipal solid waste to be transported by a municipal solid waste transportation vehicle which has not been licensed by the cabinet as required by this section.
  6. The cabinet shall establish a municipal solid waste transportation vehicle licensing program. No more than one (1) license shall be required for any single business entity. An applicant shall file an application with the cabinet containing such information in such form as the cabinet requires, to include:
    1. Name, home address, and Social Security number of a natural person who is the applicant or an officer of the applicant;
    2. Name and address of the principal place of business of the applicant;
    3. Vehicle identification number of each vehicle; licensing jurisdiction and registration number of each vehicle; type and gross weight rating or combination weight rating of each vehicle to be operated under the license;
    4. A consent-to-service jurisdiction document executed in accordance with KRS Chapter 224; and
    5. The applicant’s Kentucky highway use tax identification number required by KRS 138.665 or proof that the applicant is not under the purview of KRS 138.665 , and either the applicant’s Interstate Commerce Commission identification number or United States Department of Transportation identification number.
  7. A copy of the municipal solid waste transportation license, which is specific to each individual vehicle operated by the licensee, issued by the cabinet under this section:
    1. Shall be carried at all times on any municipal solid waste transportation vehicle operating under the license; and
    2. Is valid for a period specified by the cabinet not to exceed three (3) years from the date of issuance.
  8. Each application for a license to operate a municipal solid waste transportation vehicle or vehicles shall be submitted with a registration fee equal to the product of ten dollars ($10) per year multiplied by the number of municipal solid waste transportation vehicles to be operated in the Commonwealth by the applicant. A license shall be amended annually if the number of municipal solid waste transportation vehicles operated by the applicant increases. The cabinet may promulgate by regulation a schedule for the annual amendment of municipal solid waste transportation licenses to add vehicles covered. Additional vehicles acquired or leased by the licensee after the beginning of the licensing year established by the Transportation Cabinet may be operated under an existing license, without amendment, until the annual amendment date specified by the cabinet. However, the licensee shall obtain a vehicle specific copy of the license from the Transportation Cabinet prior to using the vehicle in Kentucky to transport municipal solid waste. The registration fee for additional vehicles shall be prorated according to the amount of time remaining in the license period as of the amendment date.
  9. The cabinet shall promulgate regulations to implement this section within one hundred eighty (180) days after February 26, 1991. The regulations shall include a procedure to allow the licensing of a vehicle in an emergency and shall require the cabinet to issue licenses and vehicle tags within thirty (30) days of receipt of an application. No municipal solid waste transportation vehicle shall be required to obtain a license until at least ninety (90) days after the effective date of regulations promulgated by the cabinet.
  10. Within ninety (90) days after February 26, 1991, all municipal solid waste transportation vehicles shall display a placard which indicates that the vehicle is transporting municipal solid waste. A vehicle shall be in compliance with this subsection (10) if the placard has the words “SOLID WASTE” clearly printed in English and is clearly displayed or printed on the cab, container, or rear of the vehicle.
  11. This section shall not apply to a vehicle, or its operator, owned and used by a generator hauling waste generated by the generator to a municipal solid waste disposal facility or to a vehicle or person operating the vehicle which is hauling waste of a waste generator disposing of waste in its own solid waste facility.
  12. The registration fees generated by this section shall be placed in a trust and agency account and used exclusively by the Transportation Cabinet for the administration and enforcement of this section.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 22, effective February 26, 1991.

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

Capital City Airport

174.500. Definitions for KRS 174.500 to 174.510.

As used in KRS 174.500 to 174.510 , unless the context otherwise requires:

  1. “Department” means the Department of Aviation;
  2. “State aircraft” means aircraft owned by the Commonwealth, leased by the Commonwealth, or otherwise under the control of the Commonwealth and administratively assigned to the department. It shall also include air charters by the department. However, this shall not include or apply to any and all aircraft assigned to, owned, leased, operated, or controlled by the Department of Kentucky State Police, or otherwise under the control or direction of the Department of Kentucky State Police. The operation, maintenance, scheduling, and care of Department of Kentucky State Police aircraft shall not be included under or affected by KRS 174.500 to 174.510 ; and
  3. “Official business” means any activity involving travel in a state aircraft if the activity is reasonably required, expected, or appropriate, considering the nature of the using public official’s job responsibilities. The activities shall include but not be limited to attendance by officials at nonpartisan ceremonial functions and events where their appearance is normally expected by virtue of their office or where official representation of the Commonwealth is otherwise appropriate, and to nonpolitical flights by the Governor and members of his immediate family when accompanying or representing him.

History. Enact. Acts 1998, ch. 605, § 1, effective July 15, 1998; 2007, ch. 85, § 120, effective June 26, 2007; repealed, reenact., and amend. Acts 2009, ch. 13, § 16, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 36.400 .

174.502. Policy development, supervision, management, and administration of Capital City Airport Division.

  1. The commissioner of the department shall be responsible for overall policy development and supervision of the Capital City Airport Division.
  2. A division director shall head the Capital City Airport Division within the Department of Aviation.

History. Enact. Acts 1998, ch. 605, § 1, effective July 15, 1998; 2007, ch. 85, § 120, effective June 26, 2007; repealed, reenact, and amend Acts 2009, ch. 13, § 17, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 36.405 .

174.504. Functions of Capital City Airport Division — Authority for administrative regulations.

  1. The functions of the Capital City Airport Division shall be to:
    1. Manage and operate the Capital City Airport;
    2. Oversee the maintenance and care of all state aircraft;
    3. Control the scheduling and operational use of state aircraft, including air charters; and
    4. Collect from using agencies and officers the costs of operating state aircraft, including air charters.
  2. Subject to the approval of the department and in accordance with applicable state and federal statutes and regulations, the Capital City Airport Division shall promulgate administrative regulations under KRS Chapter 13A to:
    1. Establish user fees to be paid by users of the services and facilities of the Capital City Airport for charges including, but not limited to, hangar fees, tie-down fees, fuel, and aircraft supplies; and
    2. Establish fees for the usage of state aircraft.

History. Enact. Acts 1998, ch. 605, § 3, effective July 15, 1998; repealed, reenact. and amend., Acts 2009, ch. 13, § 18, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 36.410 .

174.506. Use of state aircraft.

  1. Except as provided in subsection (2) of this section, state aircraft, including air charters, shall be used only for official business.
  2. State aircraft shall not be used for personal business, except when the Governor or Lieutenant Governor, for reasons of security, protocol, ceremonial functions, or overall demands of time, require travel considerations not accorded to other officials. In recognition of these realities, flights that may be solely for personal business, or partly for official business or partly for personal business, may be scheduled for the Governor or the Lieutenant Governor and their immediate families.
    1. The cost of flights scheduled solely for personal business of the Governor or Lieutenant Governor shall be charged to that officer in accordance with the rate schedule set forth in the administrative regulations authorized by KRS 174.504 .
    2. If a particular flight is in part official business and part personal business, the Governor or the Lieutenant Governor shall make a reasonable allocation of the flight time between official and personal business and be responsible for paying with nonstate funds to the Capital City Airport Division the charge for the part of the flight that is allocable to personal business. The rate charged shall be calculated using costs that would be considered in a rate developed by a commercial air charter company. In these cases, the allocation made and the basis for the allocation shall be indicated on the aircraft request form.
  3. Constitutional officers, other elected state officials, members of the General Assembly, officers and employees of the cabinets, departments, and agencies of state government, officers and employees of other governmental units, and other persons traveling under the auspices of a state agency or in connection with state business deemed desirable by an agency head, including dependents of state officials, and news media representatives and other persons having an interest in the official purpose of the trip may be authorized to use state aircraft. Charges for travel in state aircraft shall be paid by the requesting state agency in accordance with the rate schedule established in administrative regulations authorized by KRS 174.504 .

History. Enact. Acts 1998, ch. 605, § 4, effective July 15, 1998; repealed, reenact, and amend, Acts 2009, ch. 13, § 19, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 36.415 .

174.508. Approval of requests for use of state aircraft.

  1. All requests for use of state aircraft shall be approved in advance by the:
    1. Constitutional officer;
    2. Program cabinet secretary or his designee in writing;
    3. For the judicial branch, the Chief Justice of the Supreme Court or the director of the Administrative Office of the Courts; or
    4. For the legislative branch, the co-chairs of the Legislative Research Commission or the director of the Legislative Research Commission.
  2. Verbal requests for state aircraft transportation may be honored. However, all requests for state aircraft shall be provided in writing to the Capital City Airport Division within five (5) working days of the date of the flight.
  3. Approving officials shall be responsible for determining that a trip is for official business, that use of state aircraft is the most appropriate means of transportation, and that the proposed passenger complement conforms to the requirements of KRS 174.506(3). In determining the passenger complement, requesting agencies shall weigh the benefit to the agency of the inclusion of additional passengers against the increased costs that might be incurred if a larger aircraft is required to accommodate additional passengers on a trip.
  4. All requests for use of state aircraft shall be submitted on a form prescribed by the Capital City Airport Division and shall contain at a minimum the following information:
    1. Cabinet or agency name;
    2. Department name with appropriate billing account number;
    3. Purpose of the trip;
    4. Destination, including any planned stopovers and the reason for them;
    5. Names of all passengers on the flight; and
    6. Identification of any percentage of the flight that is for personal business in cases of the Governor or Lieutenant Governor as allowed under KRS 174.506 .

History. Enact. Acts 1998, ch. 605, § 5, effective July 15, 1998; repealed, reenact, and amend, Acts 2009, ch. 13, § 20, effective June 25, 2009.

Compiler's Notes.

This section was formerly compiled as KRS 36.420 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. III, 34 at 936.

2018-2020 Budget Reference.

See State/Executive Branch Budget, 2018 Ky. Acts ch. 169, Pt. III, 37 at 1381.

174.510. Recordkeeping for Capital City Airport Division and use of state aircraft.

  1. The Capital City Airport Division shall arrange for all trips and maintain flight cards, passenger manifests, payment documents, and interaccount bills pertaining to each flight.
  2. Pilots for all state agencies shall maintain a flight manifest for all flights which shall include the passengers’ names, information pertaining to points of origin and destination, and any side trips or stopovers for each flight.
  3. The Capital City Airport Division shall maintain original manifests for all trips using state aircraft.
  4. Originals of requests for the use of state aircraft shall be kept by the Capital City Airport Division, with the following exceptions:
    1. The Governor and Lieutenant Governor shall maintain originals of all requests for the use of state aircraft made by their respective offices; and
    2. In cases where the secretary of the Cabinet for Economic Development has certified in an aircraft request that disclosure of the identities of passengers or the purpose of a trip will violate needs for confidentiality required for economic development efforts, the secretary of the Cabinet for Economic Development shall maintain complete original records of the request in his office.

History. Enact. Acts 1998, ch. 605, § 6, effective July 15, 1998; repealed, reenact, and amend, Acts 2009, ch. 13, § 21, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 36.425 .

Penalties

174.990. Penalties.

  1. Any person who willfully hauls, transports, or causes to be transported any hazardous material into, out of, within, or through the Commonwealth in violation of the provisions of KRS 174.400 to 174.425 , or contrary to an order, or regulation issued or promulgated under KRS 174.400 to 174.425 , shall be fined not less than two hundred fifty dollars ($250) nor more than twenty-five thousand dollars ($25,000), for each day of violation.
  2. Any person who operates a vehicle which transports municipal solid waste in violation of KRS 174.450 and administrative regulations promulgated by the cabinet pursuant to KRS 174.450 shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each day of violation.

History. Enact. Acts 1980, ch. 384, § 10, effective July 15, 1980; 1992, ch. 51, § 1, effective July 14, 1992; 1994, ch. 99, § 6, effective July 15, 1994.

CHAPTER 175 Turnpike Authority

175.005. Declaration of legislative policy. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 1, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 2, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.020. Creation of Highway Authority, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 3, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.030. Initial appointments; chairman; meetings, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 4, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.040. Executive secretary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 5, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.050. Treasurer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 6, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.060. Officers, agents and employes; transfer from other state agencies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 7, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.070. Personal interest in contracts or sales prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 8, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.080. Purposes and power of Authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 9, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.090. Authority may exercise powers of Department of Highways; limitations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 10, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.100. Acquisition of property, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 11, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.110. Grade separations, construction, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 12, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.120. Leases and sales with Department of Highways, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 13, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.130. Payment of rentals by department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 14, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.140. Right to regulate installations owned by public or private utilities, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 15, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.150. Rates, rentals and charges for use of facilities, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 16, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.160. Authority’s power to deal with Federal agencies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 17, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.170. Power to incur debt and provide for payment thereof. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 18, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.180. Issuance of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 19, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.190. Bonds not to be debt of state, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 20, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.200. Remedies of bondholders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 21, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.210. Exemption from taxation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 22, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.220. Investment of funds in bonds issued by Authority; deposit of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 23, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.230. Refunding bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 24, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.240. Procedure for designating receipts as trust funds, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 25, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.250. Fiscal report; annual reports. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 26, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.260. Audits. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 27, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.270. Covenant of Commonwealth for protection of bondholders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 28, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.280. Application of traffic laws to Authority’s projects, etc. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 29, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.290. Exemption of Authority from provisions of KRS Chapters 12, 42, 45, and 56. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 30, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.300. Construction of chapter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 31, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.310. Advancement of funds to Authority for initial expenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 32, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.320. Expenditures for studies and plans. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 39, § 33, effective March 22, 1954) was declared unconstitutional in Curlin v. Wetherby, 275 S.W.2d 934 (Ky. App. 1955) and was repealed by Acts 1966, ch. 255, § 283.

175.410. Definitions.

As used in this chapter, the following words shall have the following respective meanings, unless another or different meaning or intent shall be clearly indicated by the context:

  1. The word “authority” shall mean the Turnpike Authority of Kentucky;
  2. The word “department” shall mean the Department of Highways, or, if said department shall be abolished, the bureau, board, body or commission succeeding to the principal functions thereof or to whom the powers given by KRS 177.390 to 177.570 to the department shall be given by law;
  3. The word “project” or the words “turnpike project” shall mean any express highway or superhighway or such part or parts thereof as may be constructed by the authority under the provisions of this chapter, including all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, connecting highways, tollhouses, service stations, garages, restaurants, and administration, storage and other buildings and facilities which the authority may deem necessary for the operation of such project, together with all property, rights, easements and interests which may be acquired by the authority or by the department for the construction or the operation of such project;
  4. The word “cost” as applied to a turnpike project shall embrace the cost of construction, the cost of the acquisition of all land, rights of way, property, rights, easements and interests acquired for such construction, the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved, the cost of all machinery and equipment, financing charges, provision for working capital in such amount as the authority shall determine to be reasonable, interest prior to and during construction and, if deemed advisable by the authority, for a period not exceeding two (2) years after completion of construction, cost of traffic estimates, engineering and legal expenses, cost of plans, specifications, surveys, estimates of cost and of revenues, other expenses as may be necessary or incident to determining the feasibility or practicability of constructing any such project, administrative expenses, and such other expense as may be necessary or incident to the construction of the project, the financing of such construction and the placing of the project in operation. Any obligation or expense hereafter incurred for a turnpike project by the authority or by the department on behalf of the authority, and any obligation or expense heretofore incurred by the department for any such turnpike project, for traffic surveys, borings, preparation of plans and specifications, engineering, and other services in connection with the construction of a project may be regarded as a part of the cost of such project and may, if advanced by the department, be reimbursed to it out of the proceeds of turnpike revenue bonds of the authority;
  5. The words “public highways” shall include all public highways, roads and streets in the Commonwealth, whether maintained by the Commonwealth or by any county, city, town or other political subdivision or agency;
  6. The word “bonds” or the words “revenue bonds” or “turnpike revenue bonds” shall mean revenue bonds or revenue refunding bonds of the authority issued under the provisions of this chapter;
  7. The word “owner” shall include all individuals, copartnerships, associations, or corporations having any title or interest in any property, rights, easements or interests authorized by this chapter to be acquired;
  8. The word “agreement” shall mean a written agreement, made by and between the authority and the department under the provisions of KRS 175.460 , providing for the financing and constructing of one (1) or more turnpike projects by the authority;
  9. The word “lease” shall mean a written lease made by the authority as lessor and the department as lessee under the provisions of KRS 175.470 , relating to one (1) or more turnpike projects financed and constructed by the authority;
  10. The word “biennium” or the words “biennial period” or “biennial term” shall mean the two (2) year fiscal period of the Commonwealth, commencing on July 1 in each even-numbered year and ending on June 30 in the next ensuing even-numbered year.

History. Enact. Acts 1960, ch. 173, § 3, effective March 25, 1960.

NOTES TO DECISIONS

  1. Powers.
  2. Amenity to Suit in Diversity Cases.
1. Powers.

Turnpike authority, a special corporation, can have no power that the general assembly could not authorize to be exercised by the state through its highway department. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

2. Amenity to Suit in Diversity Cases.

The Kentucky turnpike authority could not be considered a citizen of the state in order to permit diversity jurisdiction in a suit by an Indiana corporation since the nature of the authority’s creation and operation embodied in this chapter made the state of Kentucky the real party in interest. Edgar H. Hughes Co. v. Turnpike Authority of Kentucky, 353 F. Supp. 1105, 1973 U.S. Dist. LEXIS 15057 (E.D. Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Martin, Administrative Action for Efficient Debt Management: The Kentucky Case, 49 Ky. L.J. 505 (1961).

Northern Kentucky Law Review.

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

175.420. Legislative intent.

This chapter is intended to supplement KRS 177.390 to 177.570 by providing an additional and alternative method for the provision and financing of turnpikes and appurtenant facilities to the end that such projects may be undertaken in such manner as may best be calculated to expedite relief from hazardous and congested traffic conditions on the highways in the Commonwealth and to provide acceptable avenues of commerce and intercommunication by vehicular traffic among the several sections of the Commonwealth.

History. Enact. Acts 1960, ch. 173, § 1, effective March 25, 1960.

175.425. Purpose and status of turnpike authority.

The Turnpike Authority of Kentucky is created solely to perform essential governmental functions and to serve the public purposes of constructing, acquiring, financing and operating turnpike and other road projects for the use, safety, convenience and general welfare of the traveling public. In accomplishing such public purposes, the Turnpike Authority of Kentucky shall be and constitute a de jure municipal corporation and political subdivision of the Commonwealth of Kentucky.

History. Enact. Acts 1976, ch. 202, § 1.

NOTES TO DECISIONS

Cited:

H. E. Cummins & Sons Constr. Co. v. Turnpike Authority, 562 S.W.2d 651, 1977 Ky. App. LEXIS 899 (Ky. Ct. App. 1977).

175.430. Turnpike Authority of Kentucky — Composition — Meetings — Quorum — Corporate character.

  1. The Governor, the Lieutenant Governor, the secretary of finance and administration, the State Highway Engineer, the secretary of economic development, the secretary of transportation, and the Attorney General, and their respective successors in office, shall be a body corporate and politic constituting a public corporation and governmental agency and instrumentality of the Commonwealth by the name of “The Turnpike Authority of Kentucky,” with perpetual succession and with power in that name to contract and be contracted with, sue and be sued, have and use a corporate seal, and exercise, in addition to the powers and functions specifically stated in this chapter, all of the usual powers of private corporations to the extent that the same are not inconsistent with specifically enumerated powers.
  2. The members of the authority shall receive no compensation for their services in that capacity, but shall be entitled to reimbursement for all reasonable expenses necessarily incurred in connection with performance of their duties and functions as such members.
  3. Four (4) members of the authority shall constitute a quorum for the transaction of business, and in the absence of a quorum, one (1) or more members may adjourn from time to time until a quorum is convened. Each member may designate in writing a proxy for the transaction of business. Within ninety (90) days from March 25, 1960, the authority shall convene and organize. The Governor shall, by virtue of his office, be the chairman of the authority and the Lieutenant Governor shall in like manner be the vice chairman. The authority shall elect a secretary and a treasurer who shall not be members of the authority, each of whom shall serve at the pleasure of the authority and shall receive such compensation as may be determined by the authority with approval of the secretary of the Personnel Cabinet to be paid from the budgeted funds of the cabinet. The Treasurer shall give bond to the authority and the Commonwealth conditioned upon his faithful accounting for all funds coming into his custody from time to time, the same to be in such amount as the authority may prescribe, with corporate surety given by a surety company qualified to do business in the Commonwealth, premium therefor to be paid by the authority. The authority shall establish and maintain an office in premises which shall be provided for that purpose by the Finance and Administration Cabinet without cost to the authority; and the secretary of the authority shall at all times maintain therein complete records of all of the authority’s actions and proceedings, which shall constitute public records open to inspection at reasonable times.

History. Enact. Acts 1960, ch. 173, § 2, effective March 25, 1960; 1982, ch. 184, § 5, effective July 15, 1982; 1982, ch. 396, § 44, effective July 15, 1982; 1984, ch. 406, § 5, effective July 13, 1984; 1988, ch. 204, § 1, effective April 4, 1988; 1998, ch. 154, § 84, effective July 15, 1998.

NOTES TO DECISIONS

1. Construction.

It is apparent from this section that the Turnpike Authority is an agency of the Commonwealth. H. E. Cummins & Sons Constr. Co. v. Turnpike Authority, 562 S.W.2d 651, 1977 Ky. App. LEXIS 899 (Ky. Ct. App. 1977).

Opinions of Attorney General.

Where the Lieutenant Governor, while serving as a member of the Turnpike Authority of Kentucky by requirement, voted in favor of a turnpike project and his family business subsequently received the fee for selling the performance bond to cover the lowest bidder, the Lieutenant Governor did not violate subsection (6) or (7) of KRS 61.096 (now KRS 45A.340 ). OAG 72-224 (opinion prior to 1974 and 1976 amendments to KRS 61.096 (now KRS 45A.340 )).

A member of the turnpike authority may not send a proxy, with voting power, to meetings of the turnpike authority in the absence of statutory authority granting him such delegating power; the Governor (pursuant to KRS 11.040 ), the Attorney General (pursuant to KRS 15.100(1)), and the secretary of development (pursuant to executive order no. 80-190) can, in writing, designate a proxy to attend the turnpike authority meetings with full voting power. OAG 80-376 .

By executive order no. 80-190, pursuant to KRS 12.025(1) (now repealed), the secretary of development has been added as a member of the turnpike authority, enlarging the membership to six (6), with four (4) members constituting a quorum, and by executive order no. 80-500, pursuant to KRS 12.025(1) (now repealed), the secretary of transportation has been added as a member of the turnpike authority, enlarging the membership to seven (7). OAG 80-376 .

175.440. Authority may undertake turnpike projects pursuant to agreement with department.

In order to provide for the construction of modern express highways or superhighways embodying safety devices (including, when determined by the authority and the department to be feasible and necessary, center division, ample shoulder widths, longsight distances, two (2) or more lanes in each direction and grade separations at intersections with other highways and railroads and other appurtenances), and thereby to facilitate vehicular traffic, remove many of the present handicaps and hazards on the congested highways in the Commonwealth, and promote the agricultural and industrial development of the Commonwealth, the authority is hereby authorized and empowered, under and pursuant to the terms and provisions of a written agreement or agreements with the department as hereinafter provided, to construct, maintain, repair and operate turnpike projects, to lease such projects to the department, and to issue revenue bonds of the authority to finance such projects.

History. Enact. Acts 1960, ch. 173, § 4, effective March 25, 1960.

175.450. General powers of authority as to turnpike projects.

The authority is hereby authorized and empowered:

  1. To construct, reconstruct, maintain, repair, operate, and regulate turnpike projects at such locations within the Commonwealth as may be determined by the authority and the department and provided for in an agreement or agreements;
  2. To acquire sites abutting on any turnpike project, as a part of such project, and to construct or contract for the construction of buildings and appurtenances for service stations, garages, restaurants and other services and to lease the same to parties other than the department for any of such purposes (or, if leases to such parties cannot be made on acceptable terms, to operate or to lease to the department any or all of the same) in such manner and under such terms as may be provided in an agreement;
  3. To issue turnpike revenue bonds of the authority payable solely from the tolls, revenues, rentals and other funds pledged for their payment, for the purpose of paying all or any part of the cost of any one or more turnpike projects, and to refund any of its bonds;
  4. To fix and revise from time to time and charge and collect tolls for transit over each turnpike project constructed by it, except to the extent that such powers are surrendered to the department pursuant to a lease;
  5. To combine for financing purposes any two (2) or more turnpike projects;
  6. To lease as lessor any turnpike project or projects to the department as lessee, pursuant to the terms and provisions of a lease;
  7. To establish and enforce rules and regulations for the use of any turnpike project, except during any period when such powers are provided to be exercised by the department pursuant to a lease;
  8. Without reference to KRS Chapter 56, to acquire and hold in the name of the authority real and personal property in the exercise of its powers and the performance of its functions and duties under this chapter, and to dispose of the same, with the approval of the department;
  9. To designate the locations and establish, limit and control such points of ingress to and egress from each turnpike project as the authority and the department may determine to be necessary or desirable to insure the proper operation and maintenance of such project, and to prohibit entrance to such project from any point or points not so designated;
  10. To make and enter into such contracts and agreements with the department and other parties as may be necessary or incidental to the performance of its duties and the execution of its powers under this chapter;
  11. To employ consulting engineers, attorneys, accountants, construction and financial experts, superintendents, managers, and such other employees and agents as may be necessary in the judgment of the authority, and to fix their compensation;
  12. To receive and accept from the Commonwealth, the department, and any federal agency, grants for or in aid of the construction of any turnpike project, and to receive and accept aid or contributions from any source of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions may be made;
  13. To expend any funds provided under the authority of this chapter in advertising the facilities and services of a turnpike project or projects to the traveling public; and
  14. To do all acts and things necessary or convenient to carry out the powers expressly granted in this chapter.

History. Enact. Acts 1960, ch. 173, § 5, effective March 25, 1960.

NOTES TO DECISIONS

Cited:

Edgar H. Hughes Co. v. Turnpike Authority of Kentucky, 353 F. Supp. 1105, 1973 U.S. Dist. LEXIS 15057 (E.D. Ky. 1973 ).

Opinions of Attorney General.

Subdivision (9) of this section explicitly provides that the turnpike authority may designate the locations and establish, limit and control such points of ingress to and egress from each turnpike project “as the authority and the bureau (department of highways) may determine to be necessary.” It is obvious that subdivision (9) was designed to utilize the best thinking and planning of the turnpike authority and the administrative and technical engineering talent of the department of highways; thus, a view that the turnpike authority enjoys a basic autonomy in this context is incorrect and unrealistic. OAG 83-118 .

Under subdivision (9) of this section, the turnpike authority, acting in concert with the department of highways, has the authority to grant additional access points on a turnpike. However, such a decision, as a sound exercise of discretion, must be on a case-by-case basis, and be based upon the general public’s best interest in terms of peace, health, safety, convenience, and general and economic welfare; such a decision for additional access points must be subject to available funding of construction and maintenance, and must in no way compromise or lessen in any way the rights of bondholders involved in the original turnpike construction. OAG 83-118 .

175.460. Contents of agreement between authority and department.

In the event that the authority and the department shall deem it suitable, feasible, necessary and expedient that any turnpike project or projects be financed or refinanced by the authority and constructed by the authority or by the department on behalf of the authority under this chapter, the authority and the department are empowered to make one or more written agreements with regard thereto in which, as to each such project, the parties may include provisions as to any one or more of the following:

  1. Identify the turnpike project to be financed by the authority, setting forth in general terms, subject to necessary revision from time to time as the work progresses, the principal features including geographic location, terminal points, width of right of way, number of lanes in each direction, width of traffic lanes, width of shoulders, whether there shall be center division, location and nature of access points, tunnels, bridges, overpasses, underpasses, interchanges, entrance plazas, approaches, connecting highways, tollhouses, service stations, garages, restaurants and other desired appurtenances;
  2. Set forth what portions, if any, of the cost of the project have been or shall thereafter be contributed by the department from the funds and other resources available to it during the then current biennium and not previously obligated, which may include engineering and any other services performed by the staff of the department; and that the department, if deemed desirable, shall supervise construction on behalf of the authority upon terms which are mutually acceptable;
  3. Set forth what portions of the cost of the project shall or may be paid from the proceeds of bonds issued by the authority under this chapter;
  4. Set forth any agreements of the authority and the department with regard to planning, design, acquisition of property, soliciting construction bids, awarding construction contracts, issuing of work orders, and such other steps as may be necessary or incidental to the construction of the project, and authorizing and selling bonds for the project;
  5. Agree that the project is intended to be and from and after the completion thereof will continuously constitute a link between parts of the highway system of the Commonwealth and will always be open to public travel, subject to exaction of such tolls as may be prescribed from time to time whenever and so long as the exaction of tolls may be authorized by law or required by the proceedings authorizing the issuance of the bonds or the trust indenture securing the same;
  6. Agree that from and after the completion of the project the department will continuously pay all or any part of the cost of repairing, maintaining and operating the project as a public highway provided for the use of the Commonwealth, equitably belonging to the Commonwealth, and intended for ultimate unencumbered ownership by the Commonwealth;
  7. Agree that upon the happening of stated events and the performance of stated conditions not inconsistent with law, the authority shall convey the project to the Commonwealth;
  8. Set forth generally or in detail any of the terms and provisions of any lease proposed to be entered into by and between the authority and the department under the provisions of KRS 175.470 ;
  9. Agree that upon determination of the amount of bonds to be issued by the authority for the project and the interest rate or rates the bonds are to bear, and prior to the delivery of any bonds to the purchaser thereof, the rental to be paid during the term of the lease and each biennial term for which the lease may be renewed shall be established according to a method of computation set forth therein and in the proposed lease, and that the authority and the department, each by authorized persons, shall execute such lease and file the original or a signed counterpart thereof in the offices of the authority, the department and the Secretary of State of the Commonwealth; and
  10. Agree that the department shall set aside and, except as may be provided in any lease entered into under the provisions of KRS 175.470 , pay over to the authority as revenues of the turnpike all motor fuel taxes collected by the department on gasoline and other motor fuels consumed on such turnpike, except the two-sevenths (2/7) of said motor fuel taxes provided by KRS 138.220 to be set aside for the construction, reconstruction and maintenance of rural and secondary roads.

History. Enact. Acts 1960, ch. 173, § 6, effective March 25, 1960.

NOTES TO DECISIONS

Cited:

Edgar H. Hughes Co. v. Turnpike Authority of Kentucky, 353 F. Supp. 1105, 1973 U.S. Dist. LEXIS 15057 (E.D. Ky. 1973 ).

175.470. Leases between authority and department authorized — Contents.

The authority and the department are authorized and empowered to enter into a lease or leases with respect to any turnpike project or projects pursuant to any agreement or agreements made under the provisions of KRS 175.460 . Any lease may contain, in substance, any of the provisions set forth in this section and such other provisions not inconsistent herewith as the authority and the department may deem appropriate and desirable:

  1. That the lease is for the remainder of the biennial period in which it is dated and executed, and is renewable at the option of the department for the succeeding biennial period, one (1) at a time, until the final maturity date of the bond issue to which the lease is related;
  2. That as to the cost of maintaining, repairing and operating the project, and not otherwise, the department is contractually bound not only for the remainder of the biennial period in which the lease is dated and executed, but for the entire period of years until the final maturity of such bonds;
  3. That with respect to the biennial period in which the lease is dated and executed, the department shall otherwise be firmly bound only (a) to contribute to the authority such portions, if any, of the cost of the project as the agreement prescribes shall be paid by the department, and (b) to pay to the authority the rental prescribed for such biennium;
  4. That if the department shall fully perform all such obligations during such initial term of the lease, it shall have an exclusive option to renew the lease at the time and in the manner prescribed for the ensuing biennium, effective on the first day thereof; that the department shall not be or become in any way obligated to pay the rental stipulated for such biennium unless the lease be so renewed; and that the department shall, upon any such renewal, be firmly bound to pay to the authority the rental stipulated for such biennium as a general obligation of the department to be paid not only from the revenues of the project but also from any other available funds of the department not required by law or by previous binding contract to be devoted to some other purpose;
  5. In like manner and subject to the same conditions and provisions as are set forth in subsection (4) above, if the department shall in such first ensuing biennium fully perform all its obligations and pay to the authority the rental stipulated for such biennium, the department shall have another exclusive option to renew such lease for another biennium; and so on for successive biennial terms until the final biennium for which the lease may be renewed;
  6. That each such option of the department to renew the lease for a succeeding biennial term may be exercised at any time after the adjournment of the session of the General Assembly at which appropriations shall have been made for the operation of the state government for such succeeding biennial term, by so notifying the authority in writing signed by the commissioner of highways and delivered in the office of the authority to any officer thereof; provided, however, that such option shall be deemed automatically exercised, and the lease automatically renewed for the succeeding biennium, effective on the first day thereof, unless a written notice of the department’s election not to renew shall have been delivered in the office of the authority, to an officer thereof, before the close of business on the last working day in April immediately preceding the beginning of such succeeding biennium;
  7. That so long as the lease is renewed from time to time and the department fully performs all its obligations as lessee, including payment of the rental stipulated in the lease, (a) the revenues of the project shall be collected, segregated, distributed, deposited, secured, disbursed and accounted for in strict conformity with the proceedings and trust indenture of the authority, and the aggregate of such revenues properly accounted for and deposited pursuant to said proceedings and trust indenture shall, if and to the extent provided in the lease, be a credit against the department’s rental or other obligations for the then current biennial term under the lease, and (b) any motor fuel taxes and surtaxes collected by the Commonwealth on gasoline and other motor fuels consumed on the project and set aside pursuant to an agreement shall be applied as provided in said proceedings and trust indenture and shall, if and to the extent provided in the lease, be a credit against the department’s rental or other obligations for the then current biennial term under the lease; and if such revenues and motor fuel taxes so provided in the lease to be a credit against the rental or other obligations of the department under the lease shall at any time appear to be insufficient to discharge such obligations in full when due and payable, the department shall estimate the rate of deficiency on a semiannual basis conforming to the interest payment dates of the bonds of the authority to which the lease is related and shall pay the amount of such estimated deficiency to the authority in equal monthly payments from any other available funds of the department not required by law or previous binding contract to be devoted to other purposes, subject to adjustment from estimated deficiencies to actual deficiencies at least thirty (30) days before each such semiannual interest payment date; provided, however, that during the department’s continuance in good standing in this respect the department shall have the right to establish, increase, decrease, suspend, or abolish the exaction of tolls, rates and charges for vehicular travel upon the project, but during any period when the department may elect to suspend or abolish the exaction of such tolls, rates and charges, it shall nevertheless continue to maintain in good operating condition, on a stand-by basis, all tollhouses, tollgates, toll-registering and toll-collecting equipment, signs, lights, fences, and other installations and facilities incident to, or used or useful in connection with, the exaction and collection of tolls, rates, and charges, in order that the same may be resumed at any time, without delay;
  8. That in the event the lease is not renewed in accordance with its terms, or in the event it is renewed and the department shall fail to perform in full its obligations thereunder, then (a) the department shall immediately be liable for the balance of the rental stipulated for the then current biennial term for which the lease had previously been renewed, without requirement of notice or other action on the part of the authority, and shall forthwith pay such balance to the authority upon demand, (b) the department shall forfeit its then current option to renew the lease for the ensuing biennial term and its options for all future terms, (c) the right to establish, increase, decrease, suspend, abolish the exaction of, or resume tolls, rates, and charges for vehicular travel on the project shall wholly pass from the department to the authority, and (d) all motor fuel taxes collected by the Commonwealth on gasoline and other motor fuels consumed on the project, except the two-sevenths (2/7) of said motor fuel taxes provided by KRS 138.220 to be set aside for the construction, reconstruction, and maintenance of rural and secondary roads, shall thereafter be set aside and paid over to the authority as revenues of the project for deposit in the sinking fund or funds pledged to the payment of the bonds of the authority; and
  9. In the event of the department’s forfeiture of rights as provided in subsection (8) of this section, the same may not be reassumed, nor the department restored to good standing with options to renew the lease from time to time, except in such manner as shall not be inconsistent with the rights of the holders of outstanding bonds.

History. Enact. Acts 1960, ch. 173, § 7, effective March 25, 1960.

NOTES TO DECISIONS

1. Renewal.

To the extent that highway department is authorized to obligate all or any part of its previously unencumbered revenues anticipated for the biennium there is no question of validity but should a renewal of the lease, however effected, commit the general revenues of the department for more funds than can be properly anticipated during the period of the extension it would be a void renewal, for it would attempt more than the legislature itself has a right to sanction. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Fact renewal of lease is automatic in the absence of affirmative action to terminate does not make the lease in legal effect a long-term obligation. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Option to renew turnpike authority lease to be exercised by highway department before the beginning of the biennium for which it is effective does not violate constitutional principle by committing general revenues of the highway department for more funds than could be anticipated during period of extension. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Cited:

Edgar H. Hughes Co. v. Turnpike Authority of Kentucky, 353 F. Supp. 1105, 1973 U.S. Dist. LEXIS 15057 (E.D. Ky. 1973 ).

175.480. Policing of projects.

Every project of the authority shall be open to regular policing by the Department of Kentucky State Police as in the case of other public highways of the Commonwealth.

History. Enact. Acts 1960, ch. 173, § 8, effective March 25, 1960; 2007, ch. 85, § 183, effective June 26, 2007.

Opinions of Attorney General.

Local peace officers have concurrent jurisdiction with the state police to enforce all laws of the Commonwealth on the turnpikes. OAG 75-210 .

175.490. Grade separations — Relocation or vacation of existing highways — Rights of access — Regulations as to public utility facilities on or along turnpike projects.

  1. The authority shall have power to construct grade separations at intersections of any turnpike project or projects with public highways and to change and adjust the lines and grades of such highways so as to accommodate the same to the design of such grade separation. The cost of such grade separations and any damage incurred in changing and adjusting the lines and grades of highways shall be a part of the cost of such turnpike project.
  2. If the authority shall find it necessary to change the location or grade of any portion of any public highway, it shall cause the same to be reconstructed at such location as the authority and the department shall deem most favorable and of substantially the same type and in as good condition as the original highway. The cost of such reconstruction and any damage incurred in changing the location or grade of any such highway shall be a part of the cost of such turnpike project.
  3. Any public highway affected by the construction of any turnpike project may be vacated or relocated by the authority, with the approval of the department, in the manner now provided by law for the vacation or relocation of public roads and any damages awarded on account thereof shall be a part of the cost of such project.
  4. The authority and its authorized agents and employees may enter upon any lands, waters and premises in the Commonwealth for the purpose of making such surveys, soundings, drillings and examinations as they may deem necessary or convenient for the purpose of this chapter, and such entry shall not be deemed a trespass, nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The authority shall make reimbursement to the owners for any actual damage resulting to such lands, waters and premises as a result of such activities on behalf of the authority, and the same shall be a part of the cost of such project.
  5. The authority shall have power to make reasonable regulations for the installation, construction, maintenance, repair, renewal, relocation and removal of tracks, pipes, mains, conduits, cables, wires, towers, poles and other equipment and appliances (herein called “public utility facilities”) of any public utility in, on, along, over or under any turnpike project. Whenever the authority shall determine that it is necessary that any such public utility facilities which now are, or hereafter may be, located in, on, along, over or under any turnpike project should be relocated in such turnpike project, or should be removed from such turnpike project, the public utility owning or operating such facilities shall relocate or remove the same in accordance with the order of the authority; provided, however, that the cost and expense of such relocation or removal, including the cost of installing such facilities in a new location or new locations, and the cost of any lands, or any rights or interests in lands, and any other rights, acquired to accomplish such relocation or removal, shall be a part of the cost of such turnpike project. In case of any such relocation or removal of facilities, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations, for as long a period, and upon the same terms and conditions, as it had the right to maintain and operate such facilities in their former location or locations. No utility shall have the privilege of establishing its lines or properties within the right of way of a turnpike which has been constructed or is owned, maintained or operated by the authority, except upon the conditions and terms prescribed by the authority; however, a utility shall be permitted to connect its lines with service stations, garages, restaurants and other installations permitted by the authority to exist upon the right of way of the turnpike.
  6. Costs and expenses incurred by the authority as permitted by subsections (1), (2), (3), (4) and (5) of this section may, as provided in the applicable agreement or lease, (a) be paid by the authority from the proceeds of revenue bonds issued by it for financing the turnpike project or projects, or (b) be paid by the department from available funds without reimbursement, or (c) be advanced by the department and reimbursed to it from the proceeds of bonds issued for the project or projects under this chapter.
  7. The Commonwealth hereby consents to the use of all lands owned by it, including lands lying under water, which are deemed by the authority to be necessary for the construction or operation of any turnpike project.

History. Enact. Acts 1960, ch. 173, § 9, effective March 25, 1960.

175.500. Turnpike revenue bonds of the authority.

  1. The authority is authorized to provide, at one (1) time or from time to time, for the issuance of its turnpike revenue bonds for the purpose of paying all or any part of the cost of any one (1) or more turnpike projects undertaken pursuant to an agreement and lease. The principal of and the interest on the bonds shall be payable solely from the funds provided for the payment. The bonds of any issue may be in one (1) or more series and any one (1) or more series may enjoy equal or subordinate status with respect to the pledge of funds from which they are payable, shall be dated, shall bear interest at a rate or rates or method of determining rates, shall mature at a time or times not exceeding forty (40) years from their date or dates, all as may be provided by the authority, and may be made redeemable before maturity, at the option of the authority, at a price or prices and under terms and conditions as may be fixed by the authority prior to the issuance of the bonds. The authority shall determine the form of the bonds, including any interest coupons to be attached to the bonds, and shall fix the denomination or denominations of the bonds and the place or places for payment of principal and interest, which may be at any bank or trust company within or without the Commonwealth. The bonds shall be signed by the facsimile signature of the chairman of the authority, and the seal of the authority or a facsimile of the seal shall be affixed to the bonds and attested by the manual signature of the secretary of the authority, and any coupons attached to the bonds shall bear the facsimile signature of the chairman of the authority. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds or coupons shall cease to be an officer before the delivery of the bonds, the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until delivery of the bonds. All bonds issued under the provisions of this chapter shall have and are declared to have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the Commonwealth. The bonds may be issued in coupon or in registered form, or both, as the authority may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the reconversion into coupon bonds of any bonds registered as to both principal and interest. The authority may sell the bonds in a manner, either at public or private sale, and for a price as it may determine will best effect the purposes of this chapter.
  2. The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the turnpike project or projects for which the bonds shall have been issued, and shall be disbursed in a manner and under the restrictions, if any, as the authority may provide in the proceedings authorizing the issuance of the bonds or in the trust indenture securing the bonds. If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than the cost, additional bonds may be issued to provide the amount of the deficit, and, unless otherwise provided in the proceedings authorizing the issuance of the bonds or in the trust indenture securing the bonds, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued. If the proceeds of the bonds of any issue shall exceed the cost, the surplus shall be deposited to the credit of the sinking fund or funds for the bonds or any account or accounts as the authority shall have provided in the proceedings or trust indenture authorizing and securing the bonds.
  3. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when the bonds shall have been executed and are available for delivery. The authority may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost. Bonds may be issued under the provisions of this chapter without obtaining the consent of any department, division, commission, board, bureau, or agency of the Commonwealth, and without any other proceedings or the happening of any other conditions or things, except as specifically required by this chapter.

History. Enact. Acts 1960, ch. 173, § 10; 1968, ch. 110, § 21; 1996, ch. 274, § 37, effective July 15, 1996.

175.505. Debt payment acceleration fund — Revenue source — Use to accelerate payment of turnpike authority debt.

There is hereby created a fund in the road fund of the Commonwealth of Kentucky entitled the debt payment acceleration fund. The fund shall consist of twenty percent (20%) of the revenues to the state road fund provided by the adjustments in KRS 138.220(2) excluding the provisions of KRS 177.320 and 177.365 . Annually the Transportation Cabinet shall use the funds generated to accelerate the payment of debt service including principal and interest, over and above the annual debt service payments appropriated for each fiscal year, for all bonds issued and any refinancings thereof by the Kentucky Turnpike Authority. The Transportation Cabinet shall notify the Interim Joint Committee on Appropriations and Revenue by January 1 of each fiscal year of the debt payments which are to or have been accelerated in the fiscal year. In the event that, due to bond market conditions, the terms of the bonds issued or other factors, the Transportation Cabinet is unable to accelerate debt service payments, the Transportation Cabinet shall provide documentation to the Interim Joint Committee on Appropriations and Revenue that such acceleration is not possible and the reasons therefor. In such an event, the funds not available for debt acceleration shall be placed in a special escrow account in the Transportation Cabinet. Such funds shall not be expended for any of the lawful purposes of the Transportation Cabinet but shall be held in the escrow account until such time as the debt acceleration described by this section is possible. The Transportation Cabinet shall invest the funds allocated to the escrow account and any funds generated from these investments shall remain in the escrow account. Any funds remaining in the escrow account at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year for use as provided in this section. In the event that all principal and interest outstanding on any bonds issued or any refinancing thereof by the turnpike authority has been paid, the Transportation Cabinet shall so report. In that event, any funds remaining in the escrow account shall remain in the fund until such time as the funds are appropriated by the General Assembly for any of the lawful purposes of the Transportation Cabinet.

History. Enact. Acts 1986, ch. 174, § 11, effective July 1, 1986.

Opinions of Attorney General.

The secretary of transportation acted within his authority in curtailing the allotment of funds to the debt payment acceleration fund. OAG 92-7 .

Research References and Practice Aids

2020-2022 Budget Reference.

See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 3, (2) at 950.

2018-2020 Budget Reference.

See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 3, (2) at 1935.

175.510. Revenue bonds are not debt of Commonwealth.

Revenue bonds issued by the authority under the provisions of this chapter shall not be deemed to constitute a debt of the department or of the Commonwealth or of any political subdivision thereof, or a pledge of the faith and credit of the department or of the Commonwealth or of any such political subdivision, but such bonds shall be payable solely from the funds provided therefor under the provisions of this chapter. All such revenue bonds shall contain on the face thereof a statement to the effect that neither the Commonwealth nor the authority shall be obligated to pay the same or the interest thereon except from revenues of the turnpike project for which they are issued, including rentals under a lease of such project to the Department of Highways of the Commonwealth for a biennium and subject to renewal for successive bienniums; and that neither the faith and credit nor the taxing power of the Commonwealth or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds.

History. Enact. Acts 1960, ch. 173, § 11, effective March 25, 1960.

175.520. Tolls for use of turnpikes — Contracts for utility and service facilities — Disposition of toll revenues.

  1. The authority, while having the right to control tolls under this chapter or any lease, and the department, while having such right under this chapter or any such lease, are hereby authorized to fix, revise, charge, and collect tolls for the use of each turnpike project and the different parts or sections thereof.
  2. The authority, with the approval of the department, is hereby authorized to contract with any person, partnership, association, or corporation desiring the use of any part of a project, including the right-of-way adjoining the paved portion, for placing thereon telephone, telegraph, electric light, or power lines; service stations, garages, stores, hotels, motels, and restaurants; or for any other purpose except for tracks for railroad or railway use, and to fix the terms, conditions, rents, and rates of charges for such use. A sufficient number of service stations shall be authorized to be established in each service area along any such turnpike to permit reasonable competition by private business in the public interest.
  3. During any period when tolls are under the control of the authority, such tolls shall be so fixed and adjusted in respect of the aggregate of tolls from the turnpike project or projects in connection with which the bonds of any issue shall have been issued under the provisions of this chapter as to provide funds sufficient, with any other available funds, to pay:
    1. The cost of maintaining, repairing and operating such turnpike project or projects, unless such cost or any part thereof is being paid by the department as authorized in this chapter; and
    2. The principal of and the interest on such bonds as the same shall become due and payable, and to create reserves for such purposes.
  4. Notwithstanding any of the foregoing provisions of this section, the department may, by separate proceedings ancillary to the proceedings of the authority authorizing the issuance of revenue bonds or revenue refunding bonds under the provisions of this chapter, covenant to pay all or any part of the cost of maintaining, repairing, and operating any project constructed under the provisions of this chapter, and the department may, in such proceedings, covenant to make up all or any part of any deficiency in the fund or funds pledged to and charged with the payment of the principal of and the interest on such bonds from any funds or tax revenues available for general purposes of the department and not required by law to be devoted to some other purpose, and, inasmuch as such project will have been constructed by agreement with the department for the use and benefit of the Commonwealth and will eventually become the property of the Commonwealth, any such covenant shall have the force of contract between the Commonwealth and the holders of such revenue bonds or revenue refunding bonds.
  5. Notwithstanding any of the foregoing provisions of this section, the authority may, in the proceedings authorizing the issuance of revenue bonds or revenue refunding bonds for any turnpike project or projects under the provisions of this chapter or in the trust agreement securing such bonds, pledge to the payment of such bonds all motor fuel taxes and surtaxes collected by the Commonwealth on gasoline and other motor fuels consumed on such project or projects (except the two-sevenths (2/7) of said motor fuel taxes provided by KRS 138.220 to be set aside for the construction, reconstruction and maintenance of rural and secondary roads) and paid over to the authority by the department as revenues of such project or projects, and covenant to deposit such motor fuel taxes from time to time in the sinking fund or funds pledged to the payment of such bonds. In determining the amount of motor fuel consumed on any turnpike project the department shall divide the total miles traveled on such project by passenger automobiles, single unit trucks, and semitrailer trucks and buses as determined by the department by the average number of miles per gallon of motor fuel consumed by each of those classes of motor vehicle on the following basis:

Such tolls shall not be subject to supervision or regulation by any other department, commission, board, bureau, or agency of the Commonwealth. The tolls and all other revenues derived from the turnpike project or projects in connection with which the bonds of any issue shall have been issued, except such part thereof as may be necessary to pay such cost of maintenance, repair, and operation and to provide such reserves therefor as may be provided for in the proceedings authorizing the issuance of such bonds or the trust indenture securing the same, shall be set aside in a sinking fund or funds which are hereby pledged to and charged with the payment of the principal of and the interest on such bonds as the same shall become due and the redemption price or the purchase price of bonds retired by call or purchase as therein provided. Such pledge shall be valid and binding from the time when the pledge is made; the tolls or other revenues or other moneys so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract, or otherwise against the authority, irrespective of whether such parties have notice thereof. Neither the proceedings nor any trust indenture by which a pledge is created need be filed or recorded except in the records of the authority and the department. The use and disposition of moneys to the credit of any such sinking fund shall be subject to the provisions of the proceedings authorizing the issuance of such bonds or of such trust indenture. Except as may otherwise be provided in such proceedings or in such trust indenture, any such sinking fund shall be a fund for all bonds provided to be payable therefrom without distinction or priority of one (1) over another.

Passenger automobiles15 miles per gallon

Single unit trucks10 miles per gallon

Semitrailer trucks and buses5 miles per gallon

History. Enact. Acts 1960, ch. 173, § 12, effective March 25, 1960; 1988, ch. 270, § 1, effective July 15, 1988; 1996, ch. 249, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1. Constitutionality.

Subsection (4) of this section, which authorizes a covenant by the highway department to make up any deficiency of revenues of a turnpike project from funds or tax revenues available for its general purposes and not required by law to be devoted to some other purpose, is unconstitutional as creating a future debt in violation of Const., §§ 49 and 50. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Research References and Practice Aids

Cross-References.

See notes to KRS 175.470 . Turnpike Auth. v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 (Ky. Ct. App. 1960).

175.525. Toll-road identification card — Exemptions from tolls.

  1. The authority or the cabinet shall establish by administrative regulation promulgated pursuant to KRS Chapter 13A a toll-road identification card to be provided to paying and nonpaying users of toll facilities. The toll-road identification cards shall be issued through an application process. A fee that shall not exceed five dollars ($5) may be established for the issuance of each card.
  2. Upon application, nonpaying accounts shall be established for:
    1. State police, local police, and fire department vehicles while the vehicles are being operated in an official capacity on a turnpike project;
    2. Emergency vehicles operated by an ambulance service while the vehicles are being operated in an official capacity, in both emergency and nonemergency situations on a turnpike project;
    3. Funeral processions on turnpike projects; and
    4. School district vehicles while the vehicles are being operated in an official capacity on turnpike projects.
  3. To receive the exemption contained in subsection (2) of this section, an ambulance service shall be licensed by the Cabinet for Health and Family Services.

History. Enact. Acts 1996, ch. 249, § 1, effective July 15, 1996; 1998, ch. 426, § 122, effective July 15, 1998; 2005, ch. 99, § 143, effective June 20, 2005; 2005, ch. 130, § 1, effective June 20, 2005.

Legislative Research Commission Note.

(6/20/2005). This section was amended by 2005 Ky. Acts chs. 99 and 130, which do not appear to be in conflict and have been codified together.

175.530. Trust indenture to secure bonds — Rights and remedies of bondholders.

In the discretion of the authority, any bonds issued under the provisions of this chapter may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the Commonwealth. Such trust indenture or the proceedings providing for the issuance of such bonds may pledge or assign the tolls and other revenues to be received, but shall not convey or mortgage any turnpike project or any part thereof. Such trust indenture or proceedings may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property and the construction, improvement, maintenance, repair, operation and insurance of the turnpike project or projects in connection with which such bonds shall have been authorized, the rates of toll or the rentals to be charged, and the custody, safeguarding and application of all moneys. It shall be lawful for any bank or trust company incorporated under the laws of the Commonwealth which may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the authority. Any such trust indenture may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders. In addition to the foregoing, any such trust indenture or proceedings may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of such trust indenture or proceedings may be treated as a part of the cost of the operation of the turnpike project or projects.

History. Enact. Acts 1960, ch. 173, § 13, effective March 25, 1960.

175.540. Trust funds.

All moneys received pursuant to the provisions of this chapter, whether as proceeds from the sale of bonds or as revenues, shall be deemed to be trust funds to be held and applied solely as provided in this chapter. The proceedings or the trust indenture shall provide that any officer with whom, or any bank or trust company with which, such moneys shall be deposited shall act as trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulations as this chapter and such proceedings or trust indenture may provide.

History. Enact. Acts 1960, ch. 173, § 13, effective March 25, 1960.

175.550. Remedies of bondholders.

Any holder of bonds issued under the provisions of this chapter or any of the coupons appertaining thereto, and the trustee under any trust indenture, except to the extent the rights herein given may be restricted by such trust indenture, may, either at law or in equity, by suit, action, mandamus or other proceedings, protect and enforce any and all rights under the laws of the Commonwealth or granted under this chapter or under such trust indenture or the proceedings authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by this chapter or by such trust indenture or proceedings to be performed by the authority or by any officer or employees thereof, including the fixing, charging and collecting of tolls.

History. Enact. Acts 1960, ch. 173, § 15, effective March 25, 1960.

175.560. Turnpike properties and bonds are tax-exempt.

The exercise of the powers granted by this chapter will be in all respects for the benefit of the people of the Commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of a turnpike project or projects by the authority will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any turnpike project or any property acquired or used by the authority under the provisions of this chapter or upon the income therefrom, and the bonds issued under the provisions of this chapter, their transfer and the income therefrom (including any profit made on the sale thereof) shall at all times be free from taxation within the Commonwealth.

History. Enact. Acts 1960, ch. 173, § 16, effective March 25, 1960.

175.570. Status of turnpike bonds as investments.

Bonds issued by the authority under the provisions of this chapter are hereby made securities in which all public officers and public bodies, agencies and instrumentalities of the Commonwealth and its political subdivisions, all insurance companies, trust companies, banking associations, investment companies, executors, administrators, trustees and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature may properly and legally invest funds, including capital in their control or belonging to them. Such bonds are hereby made securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the Commonwealth for any purpose for which the deposit of bonds or other obligations of the Commonwealth is now or may hereafter be authorized by law.

History. Enact. Acts 1960, ch. 173, § 17, effective March 25, 1960.

NOTES TO DECISIONS

1. Constitutionality.

The character of revenue bonds as being eligible for the investment of public and other funds held in trust was not an unprecedented provision but was germane to the title of statute creating the turnpike authority. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

175.580. Maintenance of turnpike — Restoration of private property — Donation of property by county or city — Annual report of turnpike activities — Audits — Prohibition of interest of department or authority personnel.

  1. Except as otherwise provided in the agreement or lease relating thereto, each turnpike project when constructed and opened to traffic shall be maintained and kept in good condition and repair by the department under the terms and provisions of the agreement or lease, and shall be operated and maintained by such force of tolltakers, and other operating and maintenance employees, as the department may in its discretion employ, and the department shall not be reimbursed for the cost thereof unless expressly otherwise provided in the agreement or lease.
  2. All private property damaged or destroyed in carrying out the powers granted by this chapter shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this chapter.
  3. All counties, cities, towns and other political subdivisions and all public agencies and commissions of the Commonwealth, notwithstanding any contrary provision of law, may lease, lend, grant or convey to the authority at its request, upon such terms and conditions as the proper authorities of the counties, cities, towns, political subdivisions, agencies or commissions of the Commonwealth deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned, any real property which is necessary or convenient to the effectuation of the authorized purposes of the authority, including public roads and other real property already devoted to public use.
  4. On or before January 30 in each year the authority shall make an annual report of its activities for the preceding year to the Governor and to the General Assembly. Each such report shall set forth a complete operating and financial statement covering its operations during the year. The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof may be treated as a part of the cost of construction or operation of the project. Such audits are public records within meaning of KRS 61.870(2).
  5. No officer or employee of the authority or of the department shall have any interest, direct or indirect, in the sale or purchase of any bonds authorized by this chapter. Violation of this provision shall be punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one (1) year, or both.

History. Enact. Acts 1960, ch. 173, § 18; 1966, ch. 255, § 161; 1980, ch. 188, § 131, effective July 15, 1980.

175.590. Acquisition of property — Condemnation — Possession — Special provisions for condemning railroad property.

  1. The authority is hereby authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, solely from funds provided pursuant to this chapter, such lands, structures, property, rights, rights of way, franchises, easements and other interests in lands, including lands lying under water and riparian rights, which are located within the Commonwealth, as it may deem necessary or convenient for the construction and operation of any project, upon such terms and at such prices as may be considered by it to be reasonable and can be agreed upon between it and the owner thereof, and to take title thereto in the name of the authority.
  2. Whenever a reasonable price cannot be agreed upon, or whenever the owner is legally incapacitated or is absent, unknown or unable to convey valid title, the authority is hereby authorized and empowered to acquire by condemnation or by the exercise of the power of eminent domain any lands, property, rights, rights of way, franchises, easements and other property, including public lands, parks, playgrounds, reservations, highways or parkways, or parts thereof or rights therein, of any person, copartnership, association, railroad, public service, public utility or other corporation, or municipality or political subdivision, deemed necessary or convenient for the construction or the efficient operation of any project or necessary in the restoration of public or private property damaged or destroyed. Any such proceedings shall be conducted, and the compensation to be paid shall be ascertained and paid, in the manner provided by the Constitution and laws of the Commonwealth then applicable which relate to condemnation or to the exercise of the power of eminent domain by the department. Title to any property acquired by the authority shall be taken in the name of the authority. In any condemnation proceedings the court having jurisdiction of the suit, action or proceeding may make such orders as may be just to the authority and to the owners of the property to be condemned and may require an undertaking or other security to secure such owners against any loss or damage by reason of the failure of the authority to accept and pay for the property, but neither such undertaking or security nor any act or obligation of the authority shall impose any liability upon the Commonwealth except as may be paid from the funds provided under this chapter.
  3. If the owner, lessee or occupier of any property to be condemned shall refuse to remove his personal property therefrom or give up his possession thereof, the authority may proceed to obtain possession in any manner now or hereafter provided by law.
  4. With respect to any railroad property or right of way upon which railroad tracks are located, any powers of condemnation or of eminent domain may be exercised to acquire only an easement interest therein which shall be located either sufficiently far above or sufficiently far below the grade of any railroad track or tracks upon such railroad property so that neither the proposed project nor any part thereof, including any bridges, abutments, columns, supporting structures and appurtenances, nor any traffic upon it, shall interfere in any manner with the use, operation or maintenance of the trains, tracks, works or appurtenances or other property of the railroad nor endanger the movement of the trains or traffic upon the tracks of the railroad. Prior to the institution of condemnation proceedings for such easement over or under such railroad property or right of way, plans and specifications of the proposed project showing compliance with the above mentioned above or below grade requirements and showing sufficient and safe plans and specifications of such overhead or undergrade structure and appurtenances shall be submitted to the railroad for examination and approval. If the railroad fails or refuses within thirty (30) days to approve the plans and specifications so submitted, the matter shall be submitted to the Public Service Commission of Kentucky whose decision arrived at after due consideration in accordance with its usual procedure, shall be final as to the sufficiency and safety of such plans and specifications and as to such elevations or distances above or below the tracks. Said overhead or undergrade structure and appurtenances shall be constructed only in accordance with such plans and specifications and in accordance with such elevations or distances above or below the tracks so approved by the railroad or the Public Service Commission as the case may be. A copy of the plans and specifications approved by the railroad or the Public Service Commission shall be filed as an exhibit with the petition for condemnation.

History. Enact. Acts 1960, ch. 173, § 19.

175.600. Refunding bonds, issued when — Temporary investments — Agreements. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 173, § 20; 1964, ch. 9, § 1) was repealed by Acts 1972, ch. 371, § 2.

175.605. Refunding bonds — Purposes — Factors to be taken into account — Investment of proceeds — Agreements and leases — Securing bonds.

  1. The authority is hereby authorized to provide for the issuance of its turnpike revenue refunding bonds for any combination of the following purposes:
    1. The refunding of any bonds then outstanding, whether an entire issue or series, or one or more issues or series, or any portions or parts of any issue or series, which shall have been issued under the provisions of this chapter;
    2. For such refunding and for the additional purpose of financing, in whole or in part, improvements, extensions, enlargements or completion of any turnpike project or projects in connection with which the bonds to be refunded shall have been issued;
    3. For such refunding and to pay all or any part of the costs of any new or additional turnpike project or projects.
  2. In determining the principal amount of any such turnpike revenue refunding bonds to be issued for the purpose of refunding any bonds outstanding pursuant to the provisions of this chapter, the authority may take into account the following factors:
    1. The principal amount of all outstanding bonds to be redeemed and refunded, as of the established date of redemption thereof;
    2. The total amount of any redemption premium incident to redemption of such outstanding bonds to be refunded;
    3. The total amount of any interest accrued or to accrue to the date or dates of redemption of such outstanding bonds to be refunded;
    4. Any and all costs or expenses incident to such refunding;
    5. Such amount, if any, as may be anticipated with certainty to be realized upon the investment of the bond proceeds of turnpike revenue refunding bonds from the date of such refunding bonds to the date or dates of redemption of outstanding bonds to be refunded; and
    6. Any amount or amounts which may have been accrued or accumulated as a reserve or reserves with reference to the outstanding bonds to be refunded, and any earnings realized, or anticipated with certainty to be realized therefrom, to the extent that such reserve or reserves may be so applied as provided by the proceedings authorizing the outstanding bonds to be refunded.
  3. The issuance of such turnpike revenue refunding bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the authority in respect of the same, shall be governed by the provisions of this chapter, insofar as the same may be applicable, and may in harmony therewith be adjusted and modified to conform to the facts and circumstances prevailing in each instance of issuance of such turnpike revenue refunding bonds.
  4. With reference to the investment of the proceeds of any such turnpike revenue refunding bonds, the authority shall not authorize or anticipate investment earnings exceeding such as are authorized or permitted under prevailing federal laws, regulations and administrative rulings relating to arbitrage bonds.
  5. Pending application of the proceeds of such turnpike revenue refunding bonds (together with any other funds available for application to refunding purposes, if so provided or permitted in the resolution authorizing the issuance of such turnpike revenue refunding bonds, or in the trust indenture securing the same), to the purposes hereinabove authorized and permitted, such refunding bond proceeds and such other available funds, if any, may be invested in direct obligation of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United States of America, or in United States government agency obligations, which shall mature, or which shall be subject to redemption by the holder thereof at the option of such holder, not later than the respective date or dates when such proceeds, together with the interest accruing thereon, will be required for the refunding purposes intended and authorized; or, in lieu of such investments, all or any part of such refunding bond proceeds may be placed in interest-bearing time deposits, or other similar arrangements may be made with regard thereto which will assure that such refunding bond proceeds, together with the interest accruing thereon, will be available when required for the refunding purposes intended and authorized; provided, however, that such time deposits shall be made in a bank or banks possessing capital and surplus, in each case, of not less than one hundred million dollars ($100,000,000), or, if any such deposit be made in any bank having a combined capital and surplus of less than said amount, the deposit shall be secured by obligations such as those permitted herein for investment for all amounts in excess of twenty-five percent (25%) of the combined capital and surplus of such bank.
  6. In connection with or incident to the issuance of the authority’s turnpike revenue refunding bonds for any of the purposes authorized in this section, the authority and the department are authorized to make one or more written agreements or supplemental agreements with regard to any one or more of the matters and things set forth in KRS 175.460 , and pursuant thereto the authority and the department are authorized and empowered to enter into one or more leases, or supplemental leases, pursuant thereto; and any such leases or supplemental leases may contain, in substance, any of the provisions set forth in KRS 175.470 , with modifications conforming to the provisions of such agreements or supplemental agreements, and with such other provisions not inconsistent with KRS 175.470 as the authority and the department may deem appropriate and desirable. Provided, however, that such agreements may, by their terms provide that any such leases, or supplemental leases, and the rental schedule or schedules with reference thereto, shall be and become effective only upon the redemption of the outstanding bonds for the refunding of which such turnpike revenue refunding bonds are issued.
  7. Any such turnpike revenue refunding bonds issued by the authority may be secured, until the date or dates established for the redemption of the outstanding bonds being refunded, solely, as to both principal and interest, by a pledge of and lien upon the obligations acquired by the application of the proceeds of such turnpike revenue refunding bonds, and the income thereon, and in such case shall not be secured by any trust indenture, lease agreement, resolution, or other contractual arrangement securing the outstanding bonds to be refunded by such turnpike revenue refunding bonds; provided, however, that any authorizing proceedings incident to such turnpike revenue refunding bonds may provide that as of the effective date of such refunding, the refunding bonds shall be substituted for the outstanding bonds being refunded, and shall be secured as to payment of principal and interest identically as in the case of the outstanding bonds being refunded, subject to the provisions, requirements and conditions precedent established by the authority incident to the issuance of the outstanding bonds being refunded.

History. Enact. Acts 1972, ch. 371, § 1; 1974, ch. 74, Art. IV, § 20(1).

175.610. Transfer of turnpike to highway system after retirement of bonds.

Except as hereinafter provided in this section, when all bonds issued under the provisions of this chapter in connection with any turnpike project or projects and the interest thereon shall have been paid or a sufficient amount for the payment of all such bonds and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders, such project or projects, if then in good condition and repair, shall be conveyed by the authority to the Commonwealth and shall become part of the state highway system and shall thereafter be maintained by the department free of tolls; provided, however, that the department may, in any proceedings or trust indenture authorizing or securing bonds under the provisions of this chapter, provide for combining for financing purposes any two (2) or more turnpike projects theretofore constructed or thereafter to be constructed, and for the reimposition or continuance of tolls on each such turnpike project until all such bonds and the interest thereon shall have been paid or a sufficient amount for such purposes shall have been set aside in trust for the benefit of the bondholders.

History. Enact. Acts 1960, ch. 173, § 21, effective March 25, 1960.

Opinions of Attorney General.

Under this section, when the bonds and interest are completely paid, as relates to the Mountain Parkway and Mountain Parkway Extension, if those roads are found by the Transportation Cabinet to be in good condition and repair, the Turnpike Authority must then convey the toll roads to the commonwealth, and they shall become part of the State Highway System and shall thereafter be maintained by the Transportation Cabinet free of tolls. However, if, at the time the bonds and interest are fully paid, the Transportation Cabinet finds that the toll roads are not in good condition and repair, the tolls should be retained for a reasonable period, during which time the Cabinet will restore the toll roads to good condition and repair. OAG 85-4 .

175.620. Preliminary expenses of turnpike project.

The department is hereby authorized in its discretion to expend such moneys as may be necessary for the study of any turnpike project or projects and to use its engineering and other forces and employ consulting engineers and traffic engineers for the purpose of effecting such study, and to pay for such additional engineering and traffic and other expert studies as it may deem expedient. All such expenses incurred by the department prior to the issuance of turnpike revenue bonds under the provisions of this chapter shall be paid by the department and charged to the appropriate turnpike project or projects, and the department shall keep proper records and accounts showing each amount so charged. Upon the sale of turnpike revenue bonds of the authority for any turnpike project or projects, the funds so expended by the department in connection with such project or projects may be reimbursed by the authority to the department from the proceeds of such bonds if provision to that effect is made in the proceedings or trust indenture authorizing and securing such bonds.

History. Enact. Acts 1960, ch. 173, § 22, effective March 25, 1960.

175.630. Additional and alternative nature of chapter.

This chapter shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing; provided, however, that the issuance of turnpike revenue bonds or turnpike revenue refunding bonds by the authority under the provisions of this chapter need not comply with the requirements of any other law applicable to the issuance of bonds.

History. Enact. Acts 1960, ch. 173, § 23, effective March 25, 1960.

Resource Recovery Road Projects

175.640. Legislative findings.

The General Assembly of the Commonwealth of Kentucky determines as a legislative finding of fact that the economy of the Commonwealth is, to a major degree, dependent upon the severance and production of coal, which is the most abundant and valuable mineral resource of Kentucky; that there is a serious shortage of transportation facilities for the transportation of coal from mines to market; that many of the roads, bridges and highways situated in the coal-producing areas of the Commonwealth are obsolete and inadequate for the uses to which they are subjected, and have, in many cases deteriorated to the point where their use is hazardous and represents a potential threat to the safety and welfare of the traveling public; and that the shortage of modern, heavy-duty road systems in such areas is seriously retarding the continued economic growth of the Commonwealth. The General Assembly of the Commonwealth of Kentucky further determines as a legislative finding of fact that the construction and financing of resource recovery roads through the Turnpike Authority of Kentucky utilizing coal severance tax allocations for the amortization of resource recovery road revenue bonds issued to provide funds to construct such roads will preserve and enhance the economic viability of the Commonwealth, will protect and enhance the safety, health, convenience and general welfare of the traveling public, and will therefore constitute the performance of essential governmental and public purposes.

History. Enact. Acts 1976, ch. 259, § 1.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Buechel, Kentucky Taxation, 65 Ky. L.J. 425 (1976-77).

175.650. Definitions for KRS 175.640 to 175.690.

As used in KRS 175.640 to 175.690 , and as applied to the financing of resource recovery roads by the Turnpike Authority of Kentucky, the following words and phrases shall have the following respective meanings, unless another or different meaning or intent shall be clearly indicated by the context.

  1. “Authority” shall mean the Turnpike Authority of Kentucky duly organized and existing pursuant to the provisions of KRS 175.410 to 175.990 , inclusive.
  2. “Bonds” or “resource recovery road revenue bonds” shall mean resource recovery road revenue bonds of the authority issued under the provisions of KRS 175.640 to 175.690 .
  3. “Cabinet” shall mean the Transportation Cabinet of Kentucky or, if said cabinet shall be abolished, the cabinet, board, body, department, or commission succeeding to the principal functions thereof or to whom the powers vested in the cabinet shall be given or transferred by law.
  4. “Resource recovery road project” or “project” shall mean any express highway or superhighway, or such part or parts thereof, as may be constructed and financed under the provisions of KRS 175.640 to 175.690 which shall be designed and constructed to serve as a modern, heavy-duty motorway facility capable of carrying in normal operations vehicles designed for the transportation of coal severed and produced in the Commonwealth of Kentucky, which road shall also be designed to serve the traveling public, including all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, connecting highways, tollhouses (if any), service stations, garages, restaurants, and administration, storage, or other buildings and facilities which the authority may deem necessary for the operation of such resource recovery road project, together with all property, rights, easements, and interests which may be acquired by the authority or by the cabinet for the construction or the operation of such project.
  5. All words and phrases which are defined and used in KRS 175.410 to 175.990 , inclusive, shall have the same meaning or meanings when used in KRS 175.640 to 175.690 , except that the words and phrases “turnpike project” or “project” as used in said identified sections shall mean and refer to resource recovery road projects constructed and financed pursuant to KRS 175.640 to 175.690 .

History. Enact. Acts 1976, ch. 259, § 2.

175.660. Authority with respect to resource recovery road projects.

Subject to the provisions of KRS 175.640 to 175.690 , the Turnpike Authority of Kentucky may initiate, plan, implement, acquire, construct and finance resource recovery road projects utilizing and employing all of the authority, rights and procedures granted to the authority by KRS 175.410 to 175.990 , inclusive.

History. Enact. Acts 1976, ch. 259, § 3.

175.670. Authorization to contract for and lease resource recovery road projects — Bonds.

In order to provide for the construction of resource recovery road projects, the authority is hereby authorized and empowered under and pursuant to the terms and provisions of a written agreement or agreements with the cabinet to construct, finance, maintain, repair and operate resource recovery road projects, to lease such projects to the cabinet, and to issue resource recovery road revenue bonds of the authority to finance such projects. In the planning, construction and financing of any resource recovery road project, the authority and the cabinet shall, subject to the provisions of KRS 175.640 to 175.690 , have and use all authority, procedures and rights provided by the provisions of KRS 175.410 to 175.990 , inclusive.

History. Enact. Acts 1976, ch. 259, § 4.

175.680. Revenue bonds.

In the event that the authority and the cabinet shall undertake the planning, construction and financing of any resource recovery road project, it may be provided in connection with such financing that resource recovery road revenue bonds issued in respect of any such project shall be secured solely by income and revenues derived from the leasing by the authority of any such project to the cabinet, and shall not be secured by a pledge of any motor fuel taxes and surtaxes collected by the Commonwealth on gasoline and other motor fuels consumed by vehicles utilizing such resource recovery road project.

History. Enact. Acts 1976, ch. 259, § 5.

175.690. Use of funds.

All funds credited to the state transportation fund (road fund), from severance tax collection, shall be used for the purposes of paying the annual lease rental payments to the Kentucky Turnpike Authority for resource recovery road projects. Any funds deposited to the credit of the transportation fund (road fund) in excess of the amount required for the annual lease payments shall revert at the close of the fiscal year to the credit of the general fund.

History. Enact. Acts 1976, ch. 259, § 6.

Economic Development Road Projects

175.750. Legislative findings.

The General Assembly of the Commonwealth of Kentucky determines as a legislative finding of fact that the economy of the Commonwealth and the consequent economic development potential of the citizens of the Commonwealth are vitally dependent upon the existence and availability of a statewide system of safe, adequate and well-maintained highways, roads and thoroughfares; that there is a serious need for construction, reconstruction, and in some cases relocation of many such highways, roads and thoroughfares to preserve and enhance the economic well-being and development of the Commonwealth and the health and safety of the public; and that in many cases, highways, roads and thoroughfares which are vital economic links between various sections of the Commonwealth have become, by reason of age and continued usage obsolete and are no longer capable of affording the services required in a modern industrial society. The General Assembly of the Commonwealth of Kentucky further determines as a legislative finding of fact that the construction, reconstruction, and relocation of a system of such economic development roads through the Turnpike Authority of Kentucky will preserve and enhance the economic viability of the Commonwealth, will enable the Commonwealth to prosper and make available its economic potentials to the fullest possible degree, will protect and enhance the safety, health, convenience and welfare of the traveling public and will therefore constitute the performance of essential governmental and public purposes.

History. Enact. Acts 1980, ch. 393, § 1, effective July 15, 1980.

NOTES TO DECISIONS

  1. Plan for Bond Financing Constitutional.
  2. Bonds Not Debt of Commonwealth.
1. Plan for Bond Financing Constitutional.

The statutory plan in KRS 175.750 to 175.810 for financing bonds issued by the turnpike authority for the costs of improvements, construction, and reconstruction of roads is not unconstitutional under Const., §§ 49, 50, and 178. Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

2. Bonds Not Debt of Commonwealth.

Economic Development Road Revenue Bonds (Revitalization Projects) Series 1990, as authorized by KRS 175.750 to 175.810 , which provide for the construction and reconstruction of roads through a lease arrangement between the Turnpike Authority of Kentucky and the Kentucky Transportation Cabinet were not unconstitutional; the issuance of such bonds paid for by lease rental payments did not represent a debt of the Commonwealth because neither the full faith and credit, nor the taxing authority of the Commonwealth was pledged to the payment of the principal or interests of the bonds. Wilson v. Kentucky Transp. Cabinet, 884 S.W.2d 641, 1994 Ky. LEXIS 108 ( Ky. 1994 ).

175.760. Definitions for KRS 175.750 to 175.810.

As used in KRS 175.750 to 175.810 , and as applied to the financing of construction, reconstruction, resurfacing, and relocation of economic development roads by the Turnpike Authority of Kentucky, the following words and phrases shall have the following respective meanings unless another or different meaning or intent shall be clearly indicated by the context.

  1. “Authority” shall mean the Turnpike Authority of Kentucky duly organized and existing pursuant to the provisions of KRS 175.410 to 175.690 , inclusive.
  2. “Bonds” or “economic development road revenue bonds” shall mean economic development road revenue bonds of the authority issued under the provisions of KRS 175.780 . No bonds may be issued for terms exceeding twenty-five (25) years.
  3. “Cabinet” shall mean the Transportation Cabinet of Kentucky or, if said cabinet shall be abolished, the cabinet, board, bureau, body or commission succeeding to the principal functions thereof or to whom the powers vested in the cabinet shall be given or transferred by law.
  4. “Economic development road project” or “project” shall mean the construction, reconstruction, or relocation of any highway, road, or thoroughfare or such part or parts thereof as shall have been designated by the cabinet to constitute a part of the economic development road system of the Commonwealth, which project may include the construction, reconstruction, repair, or relocation of highways, roads, thoroughfares, bridges, tunnels, overpasses, underpasses, interchanges, approaches, and connecting highways.
  5. “Notes” shall mean any economic development road revenue bond anticipation notes, or any economic development road revenue notes. Revenue bond anticipation notes shall be payable from the proceeds of bonds, renewal notes, or income and revenues derived from the leasing by the authority of any project or projects to the cabinet. Revenue notes shall be payable solely from income and revenues derived from the leasing by the authority of any project or projects to the cabinet. Notes may be issued for terms not to exceed five (5) years.
  6. All words and phrases which are defined and used in KRS 175.410 to 175.690 and 175.990 , inclusive, shall have the same meaning or meanings when used in KRS 175.750 to 175.810 , except that the words and phrases “turnpike project” or “project” as used in said identified sections shall mean and refer to economic development road projects constructed and financed pursuant to KRS 175.750 to 175.810 .

History. Enact. Acts 1980, ch. 393, § 2, effective July 15, 1980.

175.770. Power of turnpike authority to construct economic development road projects.

Subject to the provisions of KRS 175.640 to 175.690 , the Turnpike Authority of Kentucky may initiate, plan, implement, acquire, construct and finance economic development road projects utilizing and employing all of the authority, rights and procedures granted to the authority by KRS 175.410 to 175.690 , inclusive.

History. Enact. Acts 1980, ch. 393, § 3, effective July 15, 1980.

NOTES TO DECISIONS

  1. Plan for Bond Financing Constitutional.
  2. Limitations on Plan.
1. Plan for Bond Financing Constitutional.

The statutory plan in KRS 175.750 to 175.810 for financing bonds issued by the turnpike authority for the costs of improvements, construction, and reconstruction of roads is not unconstitutional under Const., §§ 49, 50, and 178. Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

2. Limitations on Plan.

The language in this section and KRS 175.780 , that the turnpike authority shall have, use, utilize and employ all of the authority, rights and procedures granted by KRS 175.410 to KRS 175.690 , inclusive, of necessity includes any limitations on such authority or right provided by those sections. Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

175.780. Power of turnpike authority to issue economic development road revenue bonds and notes.

To provide for the construction, reconstruction, and relocation of economic development road projects, the authority is hereby authorized and empowered, subject to the limitations contained in a branch budget bill as defined in KRS 48.010 , under and pursuant to the terms and provisions of a written agreement or agreements with the cabinet, to construct, reconstruct, relocate, finance, and operate economic development road projects, to lease such projects to the cabinet, and to issue economic development road revenue bonds or notes of the authority to finance such projects. In the planning, construction, and financing of any economic development road project, the authority and the cabinet shall, subject to the provisions of KRS 175.750 to 175.810 , have and use all authority, procedures, and rights provided by the provisions of KRS 175.410 to 175.690 , inclusive.

History. Enact. Acts 1980, ch. 393, § 4, effective July 15, 1980; 1982, ch. 450, § 74, effective July 1, 1983; 1990, ch. 502, § 1, effective April 11, 1990; 1990, ch. 507, § 24, effective July 13, 1990; 1994, ch. 387, § 27, effective July 15, 1994; 2009, ch. 78, § 39, effective June 25, 2009.

NOTES TO DECISIONS

  1. Bond Financing Plan Constitutional.
  2. Limitations on Plan.
1. Bond Financing Plan Constitutional.

The statutory plan in KRS 175.750 to 175.810 for financing bonds issued by the turnpike authority for the costs of improvements, construction, and reconstruction of roads is not unconstitutional under Const., §§ 49, 50, and 178. Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

2. Limitations on Plan.

The language in KRS 175.770 and this section, that the turnpike authority shall have, use, utilize and employ all of the authority, rights and procedures granted by KRS 175.410 to KRS 175.690 , inclusive, of necessity includes any limitations on such authority or right provided by those sections. Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

175.790. Bonds secured solely by revenues derived from leasing project to cabinet — Tolls prohibited.

In the event that the authority and the cabinet shall undertake the planning and financing of any economic development road project, it shall be provided in connection with such financing that economic development road revenue bonds or notes issued in respect of any such project shall be secured solely by income and revenues derived from the leasing by the authority of any such project to the cabinet, and no tolls shall be imposed or charged for the use by the traveling public of any such projects or for amortization of the bonds or notes; provided that notes may be issued in anticipation of the issuance of bonds or renewal notes and be made payable from the proceeds thereof.

History. Enact. Acts 1980, ch. 393, § 5, effective July 15, 1980.

175.800. Funds credited to state transportation fund (road fund) to be used for lease rental payments.

Funds credited to the state transportation fund (road fund) shall be used for the purposes of paying the annual lease rental payments to the Kentucky Turnpike Authority for economic development road projects. Any funds deposited to the credit of the transportation fund (road fund) in excess of the amount required for any such annual lease payments shall be used for any lawful purposes of the transportation fund (road fund).

History. Enact. Acts 1980, ch. 393, § 6, effective July 15, 1980.

175.810. Economic development road account — Transfer of funds to account.

The Transportation Cabinet shall certify to the commissioner of the Department of Revenue by October 1 of each fiscal year the amount required for lease rental payments to the Kentucky Turnpike Authority for economic development road projects. Upon receiving such certification, the commissioner of the Department of Revenue shall cause said amount to be deposited from road fund receipts to the credit of the economic development road account, hereby created, in the transportation fund (road fund). Such taxes collected in excess of the amount required to be deposited to the economic development road account in the transportation fund (road fund) shall be deposited by the Department of Revenue to the credit of the transportation fund (road fund).

History. Enact. Acts 1980, ch. 393, § 7, effective July 15, 1980; 2005, ch. 85, § 603, effective June 20, 2005.

Penalties

175.990. Penalty.

Any person who uses any turnpike project and fails or refuses to pay the toll provided therefor shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for not more than thirty (30) days, or both, and in addition thereto the authority or the department, whichever has the right to collect such toll, shall have a lien upon the vehicle driven by such person for the amount of such toll and may take and retain possession thereof until the amount of such toll and all charges and penalties in connection therewith shall have been paid.

History. Enact. Acts 1960, ch. 173, § 18, effective March 25, 1960.

CHAPTER 175A County Turnpike Authority

175A.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 1, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.020. Legislative Intent. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 2, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.030. Turnpike Authority — Counties may establish. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 3, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.040. Turnpike Authority — Membership — Meetings — Quorum — Corporate character. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 4, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.050. Authority may undertake turnpike projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 5, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.060. General powers of authority as to turnpike projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 6, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.070. Policing of projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 7, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.080. Grade separations — Relocation or vacation of existing highways — Rights of access — Regulations as to public utility facilities on or along turnpike projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 8, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.090. Turnpike revenue bonds of the authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 9, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.100. Revenue bonds are not debt of Commonwealth or any political subdivision thereof. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 10, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.110. Tolls for use of turnpike — Disposition of toll revenues. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 11, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.120. Trust indenture to secure bonds — Rights and remedies of bondholders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 12, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.130. Trust Funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 13, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.140. Remedies of bondholders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 14, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.150. Turnpike properties and bonds are tax-exempt. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 15, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.160. Status of turnpike bonds as investments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 16, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.170. Restoration of private property — Donation of property by county or city — Annual report of turnpike activities — Audits — Prohibition of interest of bureau of highways as authority personnel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 17, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.180. Acquisition of property — Condemnation — Possession — Special provisions for condemning railroad property. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 18, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.190. Refunding bonds, issued when — Temporary investments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 19, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.200. Transfer of turnpike to highway system after retirement of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 20, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.210. Preliminary expenses of turnpike projects — Leases between authority and bureau authorized — Hazards caused by weather — Bureau to alleviate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 21, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.220. Additional and alternative nature of chapter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 22, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

175A.990. Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 145, § 23, effective June 16, 1972) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

CHAPTER 175B Kentucky Public Transportation Infrastructure Authority

175B.005. Purpose of chapter.

  1. The purpose of this chapter is to establish a structure for the construction, operation, financing, and oversight of significant transportation projects within the Commonwealth and between the Commonwealth and any state adjoining the Commonwealth. To accomplish this purpose, the Kentucky Public Transportation Infrastructure Authority is established by KRS 175B.015 to review, approve, and monitor all projects eligible for construction and financing under this chapter and, if necessary, to assist with the operation, financing, and management of projects.
  2. All projects approved by the Kentucky Public Transportation Infrastructure Authority may be operated, managed, constructed, and financed entirely or in part only by:
    1. A bi-state authority as provided in KRS 175B.030 ;
    2. A project authority as provided in KRS 175B.035 ;
    3. A public-private partnership as provided in KRS 175B.030 and 175B.037 ; or
    4. A state authority as provided in KRS 175B.020 , 175B.030, and 175B.037 .

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 75, effective June 26, 2009; 2016 ch. 67, § 6, effective April 8, 2016.

175B.010. Definitions for chapter.

As used in this chapter:

  1. “Authority” means the state authority, or a bi-state authority, or a project authority, unless the specific use requires that it apply only to the state authority, or a bi-state authority, or a project authority;
  2. “Bi-state authority” means an authority created under KRS 175B.030 ;
  3. “Cabinet” means the Transportation Cabinet;
  4. “Commonwealth” means the Commonwealth of Kentucky;
  5. “Cost” means:
    1. The cost of construction of the project, including the acquisition of land, rights-of-way, property, rights in land, easements, and interests acquired by the authority for construction of a project;
    2. The cost of preparing land or property, including demolishing or removing any buildings or structures, and the cost of acquiring any lands to which those buildings or structures may be moved;
    3. The pro-rata value of all machinery and equipment used in construction of the project;
    4. Financing charges and provisions for working capital in an amount the authority determines to be reasonable;
    5. Interest prior to and during construction and, if approved by the authority, for a period up to two (2) years after completion of construction;
    6. The cost of traffic estimates and of engineering, financial and legal services, plans, specifications, surveys, estimates of cost and revenues, or other expenses necessary or incidental to determining the feasibility or practicability of constructing any project;
    7. The cost and expense of the relocation or removal of public utilities impacted by a project, including the cost of installing the facilities in a new location, the cost of any lands or any rights or interests in lands, and the cost of any other rights acquired to accomplish the relocation or removal;
    8. Administrative expenses and any other expenses that are necessary for or incidental to the construction of a project, the financing of the construction, and the placing of the project in operation; and
    9. The cost of maintenance of the completed project.
  6. “Department” means the Department of Highways;
  7. “Developing authority” means the authority involved in the development of a project;
  8. “Issuing authority” means the authority that will issue or has issued debt associated with a project;
  9. “Local government” means a consolidated local government, an urban-county government, a charter county government, a unified local government, or a county;
  10. “Private partner” means any entity that is a partner in a public-private partnership other than:
    1. The Commonwealth of Kentucky;
    2. Any political subdivision of the Commonwealth;
    3. The federal government;
    4. Any other state government;
    5. Any agency of a state, federal, or local government; or
    6. An authority;
    1. “Project” means: (11) (a) “Project” means:
      1. Any highway or section of a highway designated as part of, or built to the standards of, the federal interstate highway system and that would be designated a major project by the Federal Highway Administration; or
      2. Any fully or partially controlled highway or section of a fully or partially controlled highway not designated as part of, or built to the standards of, the federal interstate highway system, that exceeds one hundred million dollars ($100,000,000) in total cost;
    2. “Project” includes all bridges, tollhouses, garages, and other buildings and facilities which the authority deems necessary for the operation of the project, together with all property, rights, easements, and interests which may be acquired by the authority or by the Commonwealth for the construction and operation of a project;
  11. “Project authority” means an authority created pursuant to KRS 175B.035 ;
  12. “Project revenue bonds” means revenue funding bonds, revenue refunding bonds, notes, or other financial obligations issued under this chapter by the issuing authority;
  13. “Public-private partnership” means an entity operating pursuant to a written public-private partnership agreement, and composed of:
    1. An authority or authorities;
    2. At least one (1) private partner;
    3. The cabinet, if necessary; and
    4. An adjoining state, if necessary, if the public-private partnership is financing a project that is between the Commonwealth and an adjoining state;
  14. “Public utility facilities” means tracks, pipes, mains, conduits, cables, wires, towers, poles, and other equipment and appliances of any public utility in, on, along, over, or under any project; and
  15. “State authority” means the Kentucky Public Transportation Infrastructure Authority created under KRS 175B.015 .

Any obligation or expense incurred by and reimbursed to the Commonwealth in connection with any of the items of cost set out in this subsection may be regarded as a part of that cost;

with funding authorized by the plan enacted pursuant to KRS 48.300(2)(b);

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 76, effective June 26, 2009; 2016 ch. 67, § 7, effective April 8, 2016.

175B.015. Kentucky Public Transportation Infrastructure Authority — Members — Meetings — Records — Administrative regulations — Model procurement code compliance.

  1. The Kentucky Public Transportation Infrastructure Authority is hereby established as an independent de jure municipal corporation and political subdivision of the Commonwealth constituting a governmental agency and instrumentality of the Commonwealth. The General Assembly hereby finds and declares that in carrying out its functions, powers, and duties as prescribed in this chapter, the state authority will be performing essential public and government functions that improve the public welfare and prosperity of the people of the Commonwealth by promoting the availability of and enhancing accessibility to improved transportation services within the Commonwealth.
    1. The state authority shall be composed of the following eleven (11) voting members: (2) (a) The state authority shall be composed of the following eleven (11) voting members:
      1. The secretary of the Finance and Administration Cabinet, or the secretary’s designee;
      2. The secretary of the Transportation Cabinet;
      3. A representative of the Kentucky Association of Counties, to be appointed by the Governor;
      4. A representative of the Kentucky County Judges/Executive Association, to be appointed by the Governor;
      5. A representative of the Kentucky League of Cities, to be appointed by the Governor; and
      6. Six (6) citizen members to be appointed by the Governor and confirmed by the Senate in accordance with KRS 11.160 , at least two (2) of whom shall be familiar with road and bridge design or the financing and administration of transportation infrastructure projects; and
    2. Each Kentucky member who shares duties as a presiding officer of a bi-state authority pursuant to KRS 175B.030(4)(a)3. shall serve as a nonvoting ex officio member.
  2. The ex officio members shall serve for the term of their respective offices.
  3. Members appointed pursuant to subsection (2)(a)3. to 6. of this section shall begin their terms on October 1, 2009, and shall be appointed for a term of four (4) years; however, in making initial appointments, the members appointed pursuant to subsection (2)(a)6. of this section shall include two (2) members for a term of two (2) years, two (2) members for a term of three (3) years, and two (2) members for a term of four (4) years.
  4. Vacancies occurring during the term of any member shall be filled in the same manner as the original appointment.
  5. The members of the state authority shall receive no compensation for their services, but shall be entitled to reimbursement for all reasonable expenses necessary and incidental to the performance of their duties and functions as members of the state authority.
    1. Members of the state authority shall be considered public servants subject to KRS Chapter 11A. (7) (a) Members of the state authority shall be considered public servants subject to KRS Chapter 11A.
    2. The following individuals or entities shall be prohibited from entering into any contract or agreement with the state authority:
      1. Any member of the state authority, a project authority, or a bi-state authority;
      2. Any spouse, child, stepchild, parent, stepparent, or sibling of a member of the state authority, a project authority, or a bi-state authority; and
      3. Any corporation, limited liability entity, or other business entity of which a person identified in subparagraph 1. or 2. of this paragraph is an owner, member, or partner or has any other ownership interest.
    1. The chairman of the state authority shall be the secretary of the Transportation Cabinet. (8) (a) The chairman of the state authority shall be the secretary of the Transportation Cabinet.
    2. The members of the state authority shall elect a vice chairman and a secretary from the membership.
  6. The Finance and Administration Cabinet shall provide fiscal consultant services to the state authority.
  7. The state authority shall hold its initial meeting no later than November 1, 2009, and shall meet as needed thereafter, with adequate notice at the call of the chair. A quorum of at least fifty percent (50%) of the members of the state authority must be present for the state authority to take any action. At least eight (8) members shall vote in the affirmative for the state authority to approve a new project. All other business shall be approved by a majority vote of the members present.
    1. The state authority shall be attached for administrative purposes to the Transportation Cabinet. The state authority shall establish and maintain an office, and the secretary of the state authority shall maintain complete records of the state authority’s actions and proceedings as public records open to inspection. (11) (a) The state authority shall be attached for administrative purposes to the Transportation Cabinet. The state authority shall establish and maintain an office, and the secretary of the state authority shall maintain complete records of the state authority’s actions and proceedings as public records open to inspection.
    2. The state authority shall employ staff as needed in the conduct of its duties and functions, and shall fix their compensation.
  8. The state authority may promulgate administrative regulations in accordance with KRS Chapter 13A as needed:
    1. Establishing collection and enforcement procedures, including fines, charges, assessments, and other enforcement mechanisms, for the violation of KRS 175B.040(4), and for violation of any administrative regulation promulgated under this subsection;
    2. Establishing an appeals process by which a person may contest a violation of KRS 175B.040(4), or a violation of any administrative regulation promulgated under this subsection, by way of an administrative hearing to be conducted in accordance with KRS Chapter 13B;
    3. Relating to any matters necessary to the efficient administration of tolls when implemented for a project developed under this chapter; and
    4. To fulfill any other requirements of this chapter.
  9. The state authority shall comply with applicable provisions of KRS Chapter 45A in the development of a project and the procurement of goods and services.
  10. The records of the state authority shall be considered open records pursuant to KRS 61.870 to 61.884 .
  11. The meetings of the state authority shall be considered open meetings pursuant to KRS 61.805 to 61.850 .

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 77, effective June 26, 2009; 2013, ch. 38, § 1, effective June 25, 2013; 2017 ch. 132, § 7, effective March 27, 2017.

175B.020. Purpose of state authority — Participation as a developing or issuing authority — Oversight function — Legislative ratification required for certain actions — Administrative regulation regarding fee.

  1. The state authority’s primary purpose shall be to facilitate the construction, financing, operation, and oversight of projects by entering into bi-state agreements and by creating bi-state authorities, project authorities, and public-private partnerships. To accomplish these purposes, the state authority shall have the power and duty to:
    1. Take the following actions relating to a bi-state authority authorized pursuant to KRS 175B.030 :
      1. To enter into a bi-state agreement;
      2. To review and approve project financing plans and development agreements; and
      3. To monitor agreements entered into by bi-state authorities;
    2. Take the following actions relating to a project authority authorized pursuant to KRS 175B.035 :
      1. To request establishment of a project authority;
      2. To review and approve project financing plans and development agreements;
      3. To monitor activities of project authorities; and
      4. To enter into an agreement with the project authority; and
    3. Take the following actions relating to a public-private partnership authorized pursuant to KRS 175B.037 :
      1. To request establishment of a public-private partnership;
      2. To review and approve project financing plans;
      3. To monitor activities of public-private partnerships; and
      4. To enter into an agreement as a part of or with a public-private partnership, if necessary.
  2. The state authority, when authorized pursuant to subsection (10) of this section, may participate as a developing or issuing authority, or both, in the development, construction, or financing of a project by a bi-state or project authority, or by a public-private partnership, if necessary. If the state authority participates as a developing or issuing authority, the state authority shall have the powers and duties established in KRS 175B.025 as they apply to that project.
  3. The state authority, as a function of its oversight of any other authority created pursuant to this chapter, shall report before the first issuance of bonds and no less than semiannually thereafter to the Capital Projects and Bond Oversight Committee and to the Interim Joint Committee on Appropriations and Revenue of the Legislative Research Commission, on any projects currently proposed or under development by each authority. Current and proposed levels of bonding for each project shall be reviewed by the Capital Projects and Bond Oversight Committee in accordance with KRS 45.794 before the bonds shall be issued.
  4. The state authority, when proposing a project pursuant to this chapter, shall to the extent practical consult with the officials representing the units of local government in which the proposed project is to be located in order to obtain the advice and input on the local impact of the proposed project, including information regarding land use planning, transportation planning, economic development, and any other factors having a direct impact to the local community.
  5. The state authority may receive an unsolicited proposal if the proposal contains:
    1. An executive summary of no more than three (3) pages that details the revenue source for the proposed project, the amount of revenue expected to be generated by the project, and the project costs;
    2. A certification from a financial expert stating that the contents of the unsolicited proposal are true and correct; and
    3. A fee for the review of the executive summary.
  6. The state authority shall respond to a person offering an unsolicited proposal notifying the person that the proposal has been rejected or approved for further review.
  7. If the state authority approves an unsolicited proposal for further review, the state authority shall independently verify that it is in the best interest of the Commonwealth.
  8. If the state authority approves a proposal for further review, the person making the unsolicited proposal shall pay all costs of evaluating the unsolicited proposal incurred by the state authority and the cabinet pursuant to an agreement negotiated between the state authority and the person making the unsolicited proposal.
  9. If the state authority and the cabinet agree that an unsolicited proposal is in the best interest of the Commonwealth, the state authority, with the assistance of the cabinet, shall begin a competitive procurement process to implement some or all of the concepts contained in the unsolicited proposal.
    1. Notwithstanding any other provision of this chapter, the following actions shall not take effect until ratified by the General Assembly: (10) (a) Notwithstanding any other provision of this chapter, the following actions shall not take effect until ratified by the General Assembly:
      1. The creation of a bi-state authority;
      2. The creation of a project authority;
      3. The creation of a public-private partnership;
      4. The modification or amendment of the scope of any project; and
      5. The development of any project undertaken entirely by the state authority.
    2. If any action described in paragraph (a) of this subsection is not ratified by the General Assembly, the creation, approval, or modification shall be considered void.
  10. The state authority shall promulgate an administrative regulation in accordance with KRS Chapter 13A to determine the fee required by subsection (5)(c) of this section for the review of the executive summary.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 78, effective June 26, 2009; 2016 ch. 67, § 8, effective April 8, 2016; 2017 ch. 132, § 8, effective March 27, 2017.

175B.025. Powers and duties of developing authority and issuing authority — Project development restrictions.

  1. The developing authority and issuing authority may be the same authority or separate authorities, depending on the needs of the project. The developing authority and issuing authority shall have the following powers and duties, as necessary to complete, operate, and maintain the project, subject to the limitations provided in KRS 175B.020(10):
    1. To enter into agreements as necessary to facilitate the development, construction, maintenance, operation, repair, or financing of projects;
    2. To directly or indirectly construct, reconstruct, maintain, repair, operate, and regulate projects within the Commonwealth, or contract with another entity for these services;
    3. To issue project revenue bonds of the issuing authority payable solely from the tolls, revenues, rentals, funds from any grant anticipation revenue vehicle (GARVEE), funds appropriated by the state or federal government, and any other funds pledged for their payment, for the purpose of paying all or any cost of a project, and to refund any of its bonds;
      1. To fix, revise, charge, and collect tolls for transit over any project constructed by it, and for any ancillary or connector routes affected by the project. (d) 1. To fix, revise, charge, and collect tolls for transit over any project constructed by it, and for any ancillary or connector routes affected by the project.
      2. No tolls shall be authorized by any developing or issuing authority as a part of any development agreement or any financial plan for:
        1. Any project involving the federal interstate highway system that connects the Commonwealth with the State of Ohio; or
        2. Any project constituting a fully or partially controlled highway, whether or not involving the federal interstate highway system, that connects the Commonwealth with the State of Ohio, including but not limited to a qualifying highway that constitutes a bypass of a major metropolitan area;
    4. To establish and enforce rules and regulations for the use of a project;
    5. To acquire and hold any of the following in the name of the developing authority, and to dispose of them as the developing authority deems necessary:
      1. Real and personal property, including lands and structures;
      2. Rights;
      3. Rights-of-way;
      4. Franchises;
      5. Easements and other interests in lands, including lands lying under water and riparian rights; and
      6. Any other item or asset necessary to accomplish its mission;
    6. To designate the locations and establish, limit, and control points of access to the project, and to prohibit access to the project from any undesignated point;
    7. To make and enter into contracts and agreements in the performance of duties and the execution of powers under this chapter;
    8. To employ any consultants and to fix their compensation;
    9. To receive and accept contributions and grants from any source for or in aid of the construction of a project or the operation of the developing or issuing authority;
    10. To accept interest rate subsidies, rebates, tax credits, or guarantees as provided in the American Recovery and Reinvestment Act of 2009, or as may be provided in subsequent federal legislation providing support to or credit enhancement of governmental obligations;
    11. To expend any funds provided under this chapter in advertising the facilities and services of a project to the traveling public;
    12. To enter into lease agreements with the department; and
    13. To do acts necessary or convenient to carry out the powers expressly granted in this chapter.
  2. Projects may be developed in conjunction with other road development efforts of the Commonwealth that are in compliance with Federal Highway Administration requirements.
  3. Projects developed pursuant to this chapter shall:
    1. Comply with the requirements of KRS Chapters 45A, 174, and 176;
    2. Be included in the most recently enacted biennial highway construction plan; and
    3. Comply with all relevant requirements of the Federal Highway Administration.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 79, effective June 26, 2009; 2016 ch. 67, § 14, effective April 8, 2016.

175B.030. Projects connecting Kentucky and an adjoining state — Bi-state authority — Formation — Members — Bi-state agreement — Financial plan — Legislative findings and declarations — Approval of project connecting Kentucky and Ohio.

      1. This section shall apply to any project that connects Kentucky with any state that adjoins the Commonwealth. A proposal to construct a project that connects Kentucky with an adjoining state shall be contained in a financing plan prepared pursuant to subsection (6) of this section. If approved, the project shall be constructed under the supervision of the state authority, a bi-state authority, or both, and may be financed by the state authority, a bi-state authority, a public-private partnership, or any combination of these. (1) (a) 1. This section shall apply to any project that connects Kentucky with any state that adjoins the Commonwealth. A proposal to construct a project that connects Kentucky with an adjoining state shall be contained in a financing plan prepared pursuant to subsection (6) of this section. If approved, the project shall be constructed under the supervision of the state authority, a bi-state authority, or both, and may be financed by the state authority, a bi-state authority, a public-private partnership, or any combination of these.
      2. If the state authority, operating pursuant to KRS 175B.020 , participates in any capacity in the construction or financing of a project that connects Kentucky with an adjoining state, the state authority may assume all or part of the role of the bi-state authority relative to that project.
    1. Subsections (2) to (4) of this section shall only apply to a bi-state authority.
    2. Subsections (1) and (5) to (8) of this section shall apply to both a bi-state authority and a public-private partnership.
    1. A local government that contains a portion of a proposed project may, by resolution of its governing body, request that its chief executive officer and the Governor appoint a group of Kentucky members to negotiate with a similar group from an adjoining state for the purpose of proposing the creation of a bi-state authority composed of members from both states, recognized under the laws of both states, and existing for the purpose of financing, constructing, and operating a project or projects mutually beneficial to both states. (2) (a) A local government that contains a portion of a proposed project may, by resolution of its governing body, request that its chief executive officer and the Governor appoint a group of Kentucky members to negotiate with a similar group from an adjoining state for the purpose of proposing the creation of a bi-state authority composed of members from both states, recognized under the laws of both states, and existing for the purpose of financing, constructing, and operating a project or projects mutually beneficial to both states.
    2. If established, the Kentucky membership of the bi-state authority shall consist of seven (7) members, three (3) of whom shall be appointed by the Governor, and four (4) of whom shall be appointed by the chief executive of the local government in which the project is located. The four (4) local government appointees shall be residents of the county in which the project is located. If a project is located in a consolidated local government, no more than two (2) appointees shall reside in the same Kentucky senatorial district. If portions of the project are located in more than one (1) local government, the chief executive of the county or consolidated local government having the largest population shall make the appointments authorized in this paragraph.
    3. Any proposed agreement to establish a bi-state authority shall be presented to the state authority for approval. If the state authority approves the agreement, it shall be submitted to the General Assembly for ratification. If the agreement is ratified by the General Assembly, the state authority shall authorize the establishment of a bi-state authority and shall enter into an agreement with the adjoining state for the creation of a bi-state authority.
    1. Kentucky members of a proposed bi-state authority who are appointed by the Governor shall be confirmed by the Senate in accordance with KRS 11.160 . Members appointed by the chief executive of the local government shall be confirmed by the governing body of the local government. (3) (a) Kentucky members of a proposed bi-state authority who are appointed by the Governor shall be confirmed by the Senate in accordance with KRS 11.160 . Members appointed by the chief executive of the local government shall be confirmed by the governing body of the local government.
    2. At least two (2) of the Governor’s appointees and two (2) of the chief executive’s appointees shall be familiar with road and bridge design or financing and administration of transportation infrastructure projects.
    3. Members of a bi-state authority appointed by the Governor shall serve for four (4) years, except that initial appointments shall be as follows:
      1. One (1) appointee shall serve a term of two (2) years;
      2. One (1) appointee shall serve a term of three (3) years; and
      3. One (1) appointee shall serve a term of four (4) years.
    4. The governing body of the local government requesting formation of the bi-state authority shall, by resolution, establish term lengths for the initial and succeeding members who are locally appointed, with each term not to exceed four (4) years.
    5. Members of a bi-state authority representing the Commonwealth may be reappointed upon the expiration of their terms. Members reappointed shall be reconfirmed in the same manner as newly appointed members.
    1. An agreement establishing a bi-state authority shall at a minimum: (4) (a) An agreement establishing a bi-state authority shall at a minimum:
      1. Establish the total number of members of the bi-state authority;
      2. Establish staffing and funding to support the work of the bi-state authority;
      3. Designate the process for selecting a presiding officer of the bi-state authority, which shall include a requirement that a member from each state share the duties of presiding; and
      4. Require the approval of a majority of the members from each state before any action may be taken or any change may be made by the bi- state authority.
    2. A bi-state authority created pursuant to this section shall take the legal form necessary to conform to the laws of both states. The Commonwealth shall consider the bi-state authority to be an independent de jure municipal corporation, constituting a governmental agency and instrumentality of the appropriate jurisdictions. The bi-state authority shall adopt a name indicative of its location and purpose.
    3. Any bi-state agreement approved pursuant to this section may be presented to the United States Congress for consent thereof by joint resolution as provided in Article 1, Section 10, Clause 3 of the United States Constitution.
    1. Members of a bi-state authority appointed from the Commonwealth shall be considered public servants subject to KRS Chapter 11A. (5) (a) Members of a bi-state authority appointed from the Commonwealth shall be considered public servants subject to KRS Chapter 11A.
    2. Members of a bi-state authority appointed from the Commonwealth shall receive no compensation for their services, but shall be entitled to reimbursement for all reasonable expenses necessary and incidental to the performance of their duties and functions as members of the bi-state authority.
    3. The following individuals or entities shall be prohibited from entering into any contract or agreement with a bi-state authority or a public-private partnership:
      1. Any member of the bi-state authority appointed to represent the Commonwealth or any member of the state authority, a project authority, or a public-private partnership;
      2. Any spouse, child, stepchild, parent, stepparent, or sibling of a member of the bi-state authority appointed to represent the Commonwealth or any spouse, child, stepchild, parent, stepparent, or sibling of a member of the state authority, a project authority, or a public-private partnership; and
      3. Any corporation, limited liability entity, or other business entity of which a person identified in subparagraph 1. or 2. of this paragraph is an owner, member, or partner or has any other ownership interest.
    4. A bi-state authority or public-private partnership shall comply with the procurement laws of both states that are a party to the agreement creating the bi-state authority or public-private partnership, including the provisions of KRS Chapter 45A, in the development of a project and the procurement of goods and services.
    5. A bi-state authority or public-private partnership shall comply with the laws of both states concerning the inspection and disclosure of public records, including KRS 61.870 to 61.884 .
    6. A bi-state authority or public-private partnership shall comply with the laws of both states concerning the conduct of open meetings, including KRS 61.805 to 61.850 .
    1. Prior to the execution of any agreements for the construction of the project, the state authority, the bi-state authority, a public-private partnership, or any combination of these, if appropriate, shall prepare a financial plan specifying the construction and financing parameters of the project, including: (6) (a) Prior to the execution of any agreements for the construction of the project, the state authority, the bi-state authority, a public-private partnership, or any combination of these, if appropriate, shall prepare a financial plan specifying the construction and financing parameters of the project, including:
      1. A timeline for construction of the project, including financing requirements throughout the construction of the project;
      2. The amount and duration of per-vehicle tolls;
      3. Expected appropriations from the General Assembly to be used for project costs; however, no financial plan shall be submitted or approved which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan;
      4. Other sources of funds and expected amounts; and
      5. Other provisions relating to the construction and financing of the project.
      1. If the financial plan is prepared by a bi-state authority, the Kentucky members of the bi-state authority shall consult with the involved local governments in Kentucky, the department, and the Finance and Administration Cabinet, Office of Financial Management, during the development of the financial plan. Upon completion and approval of the financial plan by the bi-state authority, the plan shall be submitted to the state authority for approval. (b) 1. If the financial plan is prepared by a bi-state authority, the Kentucky members of the bi-state authority shall consult with the involved local governments in Kentucky, the department, and the Finance and Administration Cabinet, Office of Financial Management, during the development of the financial plan. Upon completion and approval of the financial plan by the bi-state authority, the plan shall be submitted to the state authority for approval.
      2. If the financial plan is prepared by the state authority, the state authority shall consult with the involved local governments in Kentucky, the department, and the Finance and Administration Cabinet, Office of Financial Management, during the development of the financial plan. If the financial plan is viable based on all information available to the state authority, the state authority shall recommend the plan.
      3. If the financial plan is prepared by a public-private partnership, the public-private partnership shall consult with the involved local governments in Kentucky, the department, and the Finance and Administration Cabinet, Office of Financial Management, during the development of the financial plan. Upon completion and approval of the financial plan by the public-private partnership, the plan shall be submitted to the state authority for approval.
    2. The state authority shall not approve or recommend a financial plan which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan. If the financial plan is approved or recommended by the state authority, the cabinet and, as necessary, other state agencies or local governments may enter into a development agreement as provided in subsection (7) of this section with all necessary parties for the development of a project.
    3. Every financial plan prepared pursuant to this section shall include an evaluation of the ability of a potential contractor or service provider to quickly respond to the needs presented in a major transportation project, and the importance of economic development opportunities represented by the construction of any project under this chapter. In evaluating proposals, preference shall be given to a plan that includes the involvement of small businesses as subcontractors, to the extent that small businesses can provide services in a competitive manner, unless any preference interferes with the qualification for federal funds.
    1. Upon approval or recommendation of the financial plan as provided in subsection (6) of this section, a development agreement may be entered into establishing the terms and conditions under which a project will be undertaken and the duties, responsibilities, powers, and authorities of the parties to the agreement. The development agreement shall, at a minimum: (7) (a) Upon approval or recommendation of the financial plan as provided in subsection (6) of this section, a development agreement may be entered into establishing the terms and conditions under which a project will be undertaken and the duties, responsibilities, powers, and authorities of the parties to the agreement. The development agreement shall, at a minimum:
      1. Require the bi-state authority or public-private partnership to submit an annual report to the cabinet and the Legislative Research Commission;
      2. Require that an annual audit of the bi-state authority or public-private partnership be performed by a certified public accountant;
      3. Include the relevant provisions from the financial plan required by subsection (6) of this section;
      4. Include provisions detailing the duties, responsibilities, and obligations of each party in relation to the financing, development, operation, and maintenance of the project, and the servicing and retirement of all bonds;
      5. Establish limits on any reserve funds created for operation, maintenance, or bond servicing, which shall be at a level to adequately operate and maintain the project and ensure proper bond servicing;
      6. Prohibit the amendment of the project or the financial plan without the prior evaluation and approval by the state authority. No amendment shall be approved that seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan;
      7. If applicable, establish a process for the transfer of ownership of the portion of the project that is within the Commonwealth to the Commonwealth upon retirement of all bonds associated with the project or, if the project utilizes a public-private partnership, upon termination of that partnership; and
        1. For a bi-state authority, require the approval of a majority of the members from each state before any action may be taken or any changes may be made by the bi-state authority; or 8. a. For a bi-state authority, require the approval of a majority of the members from each state before any action may be taken or any changes may be made by the bi-state authority; or
        2. For a public-private partnership, require approval of the cabinet before any action may be taken or any changes may be made by the public-private partnership.
    2. The parties to the agreement from the Commonwealth shall consult with the department and the Finance and Administration Cabinet, Office of Financial Management, in the development of the agreement.
    3. Additional agreements may be executed, as necessary to complete the project.
    4. The development agreement may take the form of a public-private partnership agreement.
  1. The General Assembly hereby finds and declares that in carrying out the functions, powers, and duties as prescribed in this chapter, a bi-state authority or public- private partnership authorized under this section will be performing essential public and government functions that improve the public welfare and prosperity of the people of the Commonwealth by promoting the availability of and enhancing accessibility to improved transportation services within the Commonwealth.
  2. The state authority shall not enter into a public-private partnership related to a project connecting the Commonwealth with the State of Ohio unless the General Assembly expressly authorizes it by passing a joint resolution.

HISTORY: Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 80, effective June 26, 2009; 2016 ch. 67, § 9, effective April 8, 2016; 2017 ch. 132, § 9, effective March 27, 2017.

175B.035. Development of projects within Kentucky — Project authority — Financial plan — Submission of project for legislative ratification — Membership of project authority — Development agreement — Commonwealth owns project upon bond retirement or termination of partnership.

  1. Potential projects that are within Kentucky may be developed by a project authority as provided in this section, or by a public-private partnership as provided in KRS 175B.037 .
  2. A local government that contains a portion of a proposed project may, by resolution of its governing body, request the state authority to evaluate the establishment of a project authority or a public-private partnership for the purpose of developing a project.
  3. The state authority may request that the department evaluate the proposed project by preparation of a financial plan evaluating all aspects of the proposed project, including:
    1. The most effective location for the project;
    2. The impact on local governments and citizens at the location of or along the path of the project;
    3. A detailed analysis of the proposed cost of the project;
    4. The potential economic impact to the areas affected by the project;
    5. The anticipated level of use of the project;
    6. The amount and duration of per-vehicle tolls;
    7. Expected appropriations from the General Assembly to be used for the project; however, no financial plan shall be submitted or approved which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan;
    8. The ability of a potential contractor or service provider to quickly respond to the needs presented in a major transportation project, and the importance of economic development opportunities represented by the construction of any project under this chapter. In evaluating proposals, preference shall be given to a plan that includes the involvement of small businesses as subcontractors, to the extent that small businesses can provide services in a competitive manner, unless any preference interferes with the qualification for federal funds;
    9. Other sources of funds and expected amounts; and
    10. Any other provisions relating to the construction and financing of the project.
  4. If, based on the project evaluation prepared pursuant to subsection (3) of this section, the state authority and the department determine that the development of the project is economically feasible, the state authority shall submit the proposal to the General Assembly for ratification. If ratified by the General Assembly, the state authority may request that the Governor establish a project authority in accordance with the following:
    1. The project authority shall be established as an independent de jure municipal corporation and political subdivision of the Commonwealth constituting a governmental agency and instrumentality of the Commonwealth, with the power to contract and be contracted with, acquire and convey property, sue and be sued, and exercise all of the usual powers of corporations not inconsistent with the authority’s specifically enumerated purpose and duties;
    2. The project authority shall adopt a name that includes the name of the project and the words “Project Authority”;
    3. The project authority shall be composed of seven (7) members, three (3) of whom shall be appointed by the Governor and confirmed by the Senate in accordance with KRS 11.160 , and four (4) of whom shall be appointed by the chief executive of the local government that requested establishment of the project authority and confirmed by resolution of the local government’s governing body;
    4. Each member of the project authority shall be appointed for a period of four (4) years, except that in making initial appointments, the Governor shall appoint members for one (1), three (3), and four (4) years, and the chief executive shall appoint two (2) members each for two (2) and four (4) years; and
    5. At least one (1) of the Governor’s appointees and two (2) of the chief executive’s appointees shall be familiar with road and bridge design or financing and administration of transportation infrastructure projects.
    1. Within ninety (90) days of its establishment under subsection (4) of this section, the project authority shall convene and organize. The project authority shall elect a chair and a vice chair, who shall be members of the project authority and elected by a majority of the project authority members. The project authority shall appoint a secretary and a treasurer who shall not be members of the project authority, each of whom shall serve at the pleasure of the project authority and shall receive compensation as determined and paid by the project authority. (5) (a) Within ninety (90) days of its establishment under subsection (4) of this section, the project authority shall convene and organize. The project authority shall elect a chair and a vice chair, who shall be members of the project authority and elected by a majority of the project authority members. The project authority shall appoint a secretary and a treasurer who shall not be members of the project authority, each of whom shall serve at the pleasure of the project authority and shall receive compensation as determined and paid by the project authority.
    2. The treasurer shall give bond in an amount prescribed by the project authority to the project authority and the state conditioned upon a faithful accounting for all the funds coming into the treasurer’s custody, with corporate surety given by a surety company qualified to do business in the state, the premium of which shall be paid by the project authority.
    3. The project authority shall maintain an office, and the secretary of the project authority shall maintain in that office complete records of all the project authority’s actions and proceedings, which shall be considered open records under KRS 61.870 to 61.884 .
    4. A project authority shall comply with the applicable provisions of KRS Chapter 45A in the development of a project and the procurement of goods and services.
    5. The meetings of a project authority shall be considered open meetings pursuant to KRS 61.805 to 61.850 .
  5. A majority of the members of a project authority shall constitute a quorum for the transaction of business. The members of a project authority shall receive no compensation for their services in that capacity, but shall be entitled to reimbursement for all reasonable expenses necessarily incurred in connection with performance of their duties and functions as members.
    1. Members of a project authority shall be considered public servants subject to the provisions of KRS Chapter 11A. (7) (a) Members of a project authority shall be considered public servants subject to the provisions of KRS Chapter 11A.
    2. The following individuals or entities shall be prohibited from entering into any contract or agreement with a project authority or a public-private partnership:
      1. Any member of a project authority, a bi-state authority, the state authority, or a public-private partnership;
      2. Any spouse, child, stepchild, parent, stepparent, or sibling of a member of a project authority, a bi-state authority, the state authority, or a public- private partnership; and
      3. Any corporation, limited liability entity, or other business entity of which a person identified in subparagraph 1. or 2. of this paragraph is an owner, a member, a partner, or has any other ownership interest.
    1. The state authority shall enter into a development agreement with a project authority or a public-private partnership to establish the terms and conditions under which a project will be undertaken. No financial plan shall be submitted or approved which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan. (8) (a) The state authority shall enter into a development agreement with a project authority or a public-private partnership to establish the terms and conditions under which a project will be undertaken. No financial plan shall be submitted or approved which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan.
    2. The development agreement shall establish the duties, responsibilities, and powers of the state authority, the project authority, a public-private partnership, and, as necessary, the cabinet with regard to the project.
    3. The development agreement shall include, at a minimum, all information necessary relating to the creation, development, operation, and disposal of the project. No financial plan shall be submitted or approved which seeks or purports to bind any future General Assembly to appropriate any moneys beyond those appropriated in the most recently enacted biennial highway construction plan.
    4. After the proposed project has been approved and set forth in the development agreement, it shall not be changed or expanded without evaluation and approval by the state authority and ratification by the General Assembly.
    5. Additional agreements may be executed, as necessary, between the state authority, the project authority, a public-private partnership, the department, and the cabinet.
  6. The provisions of this chapter relating to the duties, responsibilities, powers, and authorities of the state authority shall apply to a project authority or a public-private partnership to the extent that the duties, responsibilities, powers, and authorities are required for the project authority or public-private partnership to carry out its duties and responsibilities under a development agreement.
  7. Upon retirement of all bonds associated with a project developed under this section or, if the project utilizes a public-private partnership, upon termination of that partnership, the ownership of the project shall be transferred to the Commonwealth pursuant to KRS 175B.095 .

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 81, effective June 26, 2009; 2016 ch. 67, § 12, effective April 8, 2016; 2017 ch. 132, § 10, effective March 27, 2017.

175B.037. Use of public-private partnership — Requirements — Administrative regulations.

  1. The state authority, a bi-state authority, or a project authority may, with approval of the General Assembly pursuant to KRS 175B.020(10), and if applicable, KRS 175B.030(9), utilize a public-private partnership.
  2. An authority utilizing a public-private partnership shall continue to be responsible for oversight of any function authorized by this chapter that is delegated to or otherwise performed by a public-private partnership.
  3. A public-private partnership shall not be used to circumvent any requirements or restrictions placed upon any authority pursuant to this chapter.
  4. An authority proposing to utilize a public-private partnership shall include in the financial plan required by KRS 175B.030 or 175B.035 :
    1. The parameters of the public-private partnership agreement;
    2. The duties and responsibilities to be performed by the private partner or partners;
    3. The methods of oversight to be employed by the authority;
    4. The duties and responsibilities of the project that are to be performed by the authority, the cabinet, and any other partners to the agreement; and
    5. Other information required by the state authority or the cabinet to evaluate the financial plan and the proposed public-private partnership.
  5. A private entity desiring to be a private partner shall demonstrate to the satisfaction of the state authority and the cabinet that it is capable of performing any function to be authorized by the public-private partnership.
  6. A public-private partnership authorized or utilized pursuant to this section shall be subject to KRS 176B.030(5) to (8).
  7. The cabinet shall promulgate administrative regulations detailing the procurement approach and proposal review process to be used for a public-private partnership by December 31, 2016.

HISTORY: 2016 ch. 67, § 10, effective April 8, 2016.

175B.040. Tolls and other revenues to be derived from projects — Sinking fund — Pledges of sinking fund — Use and disposition of moneys — Project users to pay appropriate toll — Penalties — Confidentiality of toll collection customer account information.

  1. If imposed as part of the financing plan, tolls shall be fixed and adjusted by the developing authority to provide a fund sufficient with other revenues, if any, to:
    1. Pay the cost of maintaining, repairing, and operating the project, unless the cost or any part thereof is being paid by the Commonwealth as authorized by this chapter;
    2. Pay the principal of and interest on the project revenue bonds; and
    3. Create reserves not to exceed amounts specified in the development agreement.
  2. Unless a transfer of ownership of a project occurs pursuant to KRS 175B.095 or the project utilizes a public-private partnership pursuant to KRS 175B.030 and 175B.037 , the developing authority shall at all times maintain ownership and control of all tolls and other revenues generated by the project. Tolls shall not be subject to supervision or regulation by any other department, division, authority, board, bureau, or agency of a local government or the Commonwealth.
    1. The tolls and all other revenues derived from the project, except those revenues necessary to: (3) (a) The tolls and all other revenues derived from the project, except those revenues necessary to:
      1. Pay the cost of maintenance, repair, and operation;
      2. Establish and maintain reserves as may be provided for in the authorization of the issuance of the project revenue bonds or in the trust indenture securing the project revenue bonds; or
      3. Satisfy the requirements of a public-private partnership agreement or a development agreement;
    2. The pledge of the sinking fund shall be valid and binding from the time when the pledge is made.
    3. The tolls or other revenues received and pledged by the developing authority shall immediately be subject to the lien of the pledge without any physical delivery or further action, and the lien on any pledge shall be valid and binding against all parties having claims of any kind in tort, contract, or otherwise against the developing authority, whether the parties have received notice or not.
    4. Neither the proceedings nor any trust indenture by which a pledge is created need be filed or recorded, except in the records of the issuing authority.
    5. The use and disposition of moneys to the credit of the sinking fund shall be subject to the provisions of the proceedings authorizing the issuance of the project revenue bonds or the trust indenture.
    1. Every person utilizing a project developed and tolled under this chapter shall pay the appropriate toll. (4) (a) Every person utilizing a project developed and tolled under this chapter shall pay the appropriate toll.
    2. Any person who violates the provisions of this subsection shall be subject to the provisions of administrative regulations promulgated pursuant to KRS 175B.015(12).
  3. Upon receiving notice, the cabinet shall suspend or withhold the annual registration of a vehicle used in the commission of a toll violation until:
    1. The fine, charge, or assessment has been paid; or
    2. The violation of subsection (4) of this section has been determined not to have occurred.
    1. Toll collection customer account information shall be confidential and not subject to disclosure under KRS 61.870 to 61.884 . Contracts relating to toll collection for a project developed and tolled under this chapter shall ensure the confidentiality of all toll collection customer account information. (6) (a) Toll collection customer account information shall be confidential and not subject to disclosure under KRS 61.870 to 61.884 . Contracts relating to toll collection for a project developed and tolled under this chapter shall ensure the confidentiality of all toll collection customer account information.
    2. For the purposes of this section, “toll collection customer account information” means any information collected or received from or about any person who is assessed a toll, including contact information, payment information, trip data, and any other relevant data.

shall be set aside in a sinking fund which shall be pledged to, and charged with, the payment of principal and interest on the project revenue bonds as they become due, and the redemption price or the purchase price of project revenue bonds retired by call or purchase as provided in the authorization of issuance.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 82, effective June 26, 2009; 2013, ch. 38, § 2, effective June 25, 2013; 2016 ch. 67, § 11, effective April 8, 2016.

175B.045. Required standards for completed projects.

  1. Each project, upon completion, shall continuously constitute a link between parts of the highway system of the Commonwealth, or between the Commonwealth and any state adjoining the Commonwealth, and shall always be open to public travel, subject to any tolls or restrictions established by the developing authority. All projects shall be subject to evaluation and inspection by the department, and shall meet the standards for public roadways established by the department.
  2. Projects may be developed in coordination with existing and proposed public transit systems.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 83, effective June 26, 2009; 2016 ch. 67, § 15, effective April 8, 2016.

175B.050. Permitted construction activities — Permitted entry upon lands, waters, and premises for necessary construction work — Administrative regulations concerning public utility facilities.

  1. A project developed by an authority under this chapter may include construction of grade separations at intersections of any project or projects with public highways and changing and adjusting the lines and grades of the highways so as to accommodate them to the design of the grade separation, with the approval of the department.
    1. If a project developed by an authority results in the need to change the location or grade of any portion of any public highway, it shall be reconstructed at a location that the authority and the department deem most favorable. (2) (a) If a project developed by an authority results in the need to change the location or grade of any portion of any public highway, it shall be reconstructed at a location that the authority and the department deem most favorable.
    2. Any highway relocated under this subsection shall be rebuilt of substantially the same type and in as good condition as the original highway.
  2. Any public highway affected by the construction of any project may be vacated or relocated as a part of the project, with the approval of the department, in the manner provided by law for the vacation or relocation of public roads.
    1. The developing authority and its authorized agents and employees may with proper notice enter upon any lands, waters, and premises in the Commonwealth for the purpose of making any surveys, soundings, drillings, and examinations necessary for the purposes of this chapter. This entry shall not be deemed a trespass, nor shall an entry for these purposes be deemed an entry under any condemnation proceedings which may be then pending. (4) (a) The developing authority and its authorized agents and employees may with proper notice enter upon any lands, waters, and premises in the Commonwealth for the purpose of making any surveys, soundings, drillings, and examinations necessary for the purposes of this chapter. This entry shall not be deemed a trespass, nor shall an entry for these purposes be deemed an entry under any condemnation proceedings which may be then pending.
    2. The developing authority shall reimburse the owners for any actual damage resulting to lands, waters, and premises as a result of these activities on behalf of the developing authority.
    1. The state authority may promulgate administrative regulations in accordance with KRS Chapter 13A for the installation, construction, maintenance, repair, renewal, relocation, and removal of public utility facilities. (5) (a) The state authority may promulgate administrative regulations in accordance with KRS Chapter 13A for the installation, construction, maintenance, repair, renewal, relocation, and removal of public utility facilities.
    2. If the developing authority determines that it is necessary for any public utility facilities which now are located in, on, along, over, or under the project to be relocated or be removed, the public utility owning or operating the facilities shall relocate or remove them in accordance with the requirements of the Public Service Commission.
    3. In case of a relocation or removal of facilities, the public utility owning or operating the facility and its successors or assigns may maintain and operate these facilities and the necessary appurtenances in the new location, for as long a period and upon the same terms and conditions as it had the right to maintain and operate the facilities in the former location.
      1. A utility may establish its lines or properties within the right-of-way of a project which has been constructed or is owned, maintained, or operated by an authority only upon approval by the authority. (d) 1. A utility may establish its lines or properties within the right-of-way of a project which has been constructed or is owned, maintained, or operated by an authority only upon approval by the authority.
      2. A utility may connect its lines with businesses and other installations permitted by an authority to exist upon the right-of-way of a project.
  3. A developing authority may contract with any person, partnership, association, or corporation desiring the incidental use of any part of the project, including the right-of-way adjoining the project, for the limited purpose of placing telecommunications equipment, power lines, or other utilities, and to fix the terms, conditions, rents, and rates of charges for that use.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 84, effective June 26, 2009.

175B.055. Agreements for use of project authority lands.

The Commonwealth may enter into agreements with an authority regarding the use of any lands owned by it, including lands lying under water, which are deemed by the authority to be necessary for the construction or operation of any project.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 85, effective June 26, 2009.

175B.060. Issuance of project revenue bonds — Use of bond proceeds.

      1. An issuing authority may, by resolution, authorize the issuance of project revenue bonds for the purpose of paying the cost of a project. (1) (a) 1. An issuing authority may, by resolution, authorize the issuance of project revenue bonds for the purpose of paying the cost of a project.
      2. The principal of and the interest on the project revenue bonds shall be payable solely from the funds provided for the payment.
      3. The bonds of each issue:
        1. Shall be dated;
        2. Shall bear interest at a rate or method of determining rates;
        3. Shall mature at a time not exceeding forty (40) years from their issuance date, as determined by the issuing authority; and
        4. May be redeemable before maturity, at the option of the issuing authority, at a price and under terms and conditions as may be fixed by the issuing authority prior to the issuance of the project revenue bonds.
      4. The issuing authority shall:
        1. Determine the form of the bonds;
        2. Fix the denomination of the bonds; and
        3. Fix the place of payment of principal and interest, which may be at any bank or trust company within or without the Commonwealth.
      1. The project revenue bonds shall be signed by the chairman or other presiding officer of the issuing authority or shall bear that officer’s facsimile signature, and the seal of the issuing authority or a facsimile shall be affixed to the project revenue bonds and attested by the secretary of the issuing authority. (b) 1. The project revenue bonds shall be signed by the chairman or other presiding officer of the issuing authority or shall bear that officer’s facsimile signature, and the seal of the issuing authority or a facsimile shall be affixed to the project revenue bonds and attested by the secretary of the issuing authority.
      2. If any officer whose signature or a facsimile of whose signature appears on any project revenue bonds ceases to be an officer before the delivery of the project revenue bonds, the signature or facsimile shall be valid and sufficient for all purposes as if the officer had remained in office until the delivery.
      3. All project revenue bonds issued under this chapter shall have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the Commonwealth.
      4. The project revenue bonds shall be issued in registered form.
      5. The issuing authority may sell the project revenue bonds in a manner, either at public or private sale, and for a price as it determines will best carry out the purposes of this chapter.
    1. The proceeds of the project revenue bonds of each issue shall be used solely for the payment of the cost of the project or projects for which the bonds were issued, and shall be disbursed in a manner and under the restrictions the issuing authority provides in the resolution authorizing the issuance of the project revenue bonds or in the trust agreement securing the project revenue bonds. (2) (a) The proceeds of the project revenue bonds of each issue shall be used solely for the payment of the cost of the project or projects for which the bonds were issued, and shall be disbursed in a manner and under the restrictions the issuing authority provides in the resolution authorizing the issuance of the project revenue bonds or in the trust agreement securing the project revenue bonds.
    2. If the proceeds of the project revenue bonds of any issue, by error of estimates or otherwise, are less than the cost of the project or projects, additional project revenue bonds may be issued to provide the amount of the deficit, and, unless otherwise provided in the resolution authorizing the issuance of the project revenue bonds or in the trust agreement securing the project revenue bonds, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the project revenue bonds first issued.
    3. If the proceeds of the project revenue bonds of any issue exceed the cost, the surplus shall be deposited to the credit of the sinking fund required by KRS 175B.040(3)(a) for the project revenue bonds or any account or accounts the issuing authority shall have provided for in the proceedings or trust indenture authorizing and securing the project revenue bonds.
  1. Project revenue bonds shall be issued in compliance with KRS 42.420 and 45A.840 to 45A.879 . Except as provided in KRS 42.420 and 45A.840 to 45A.879 , project revenue bonds may be issued under this chapter without obtaining the consent of any local government, department, division, authority, board, bureau, or agency of the Commonwealth, or of the Commonwealth, and without any other proceedings or conditions other than those proceedings or conditions which are specifically required by this chapter.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 86, effective June 26, 2009.

175B.065. Project revenue bonds not a debt or pledge of faith and credit of the Commonwealth or its subdivisions — Statement on face of bonds.

  1. Project revenue bonds issued by an authority under this chapter shall not constitute a debt of the Commonwealth or any of its political subdivisions, or a pledge of the faith and credit of the Commonwealth or any of its political subdivisions. Project revenue bonds issued pursuant to this chapter, shall be payable solely from the funds provided for in this chapter including but not limited to the funds described in KRS 175B.025(1)(c).
  2. Project revenue bonds shall contain on their face a statement to the effect that neither the Commonwealth nor the issuing authority shall be obligated to pay the bonds or the interest thereon, except from any and all revenues associated with the project for which they are issued, and that neither the faith and credit nor the taxing power of the Commonwealth is pledged to the payment of the principal of or the interest on these project revenue bonds.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 87, effective June 26, 2009.

175B.070. Project revenue bonds may be secured by trust agreement — Permissible provisions.

    1. Any project revenue bonds issued under this chapter may be secured by a trust agreement by and between the issuing authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the Commonwealth. Subject to the restrictions established in KRS 175B.060 , the trust indenture or other document providing for the issuance of the project revenue bonds may pledge or assign the tolls and other revenues to be received, but shall not convey or mortgage any project or any part of a project. (1) (a) Any project revenue bonds issued under this chapter may be secured by a trust agreement by and between the issuing authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the Commonwealth. Subject to the restrictions established in KRS 175B.060 , the trust indenture or other document providing for the issuance of the project revenue bonds may pledge or assign the tolls and other revenues to be received, but shall not convey or mortgage any project or any part of a project.
    2. The trust indenture or other document may contain any provisions for protecting and enforcing the rights and remedies of the bondholders as are reasonable and proper and not in violation of law, including covenants setting forth the duties of the developing authority and the issuing authority in relation to the acquisition of property and the construction, improvement, maintenance, repair, operation, and insurance of the project for which the project revenue bonds were authorized; the rates of toll or rentals to be charged; and the custody, safeguarding, and application of all moneys.
  1. Any bank or trust company incorporated under the laws of the Commonwealth which acts as depository of the proceeds of project revenue bonds or of revenues may furnish indemnifying project revenue bonds or pledge securities as the issuing authority requires. Any such trust indenture may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders. Any trust indenture or proceedings may contain any other provisions that the issuing authority deems reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of the trust indenture or proceedings may be treated as a part of the cost of the operation of the project.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 88, effective June 26, 2009.

175B.075. Moneys received under chapter are trust funds — Permitted investment of project revenue bond proceeds.

  1. All moneys received under this chapter, whether as proceeds from the sale of project revenue bonds or revenues, shall be trust funds to be held and applied solely as provided in this chapter. The trust indenture or any other document authorizing the issuance of project revenue bonds or the collection of any revenues shall provide that any officer, bank, or trust company with which the moneys are deposited shall act as trustee of the moneys and shall hold and apply them for the purposes outlined in this chapter, subject to the provisions of this chapter and the proceedings or trust indenture.
  2. The proceeds of project revenue bonds shall only be invested in direct obligations of the United States of America and direct federal agency obligations or other similar obligations to the extent that the full faith and credit of the United States of America is pledged for the timely payment thereof. Direct obligations shall include money market mutual funds that invest solely in the obligations referenced in this subsection.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 89, effective June 26, 2009.

175B.080. Operation and maintenance of projects constitute performance of essential governmental functions — Tax-free status of projects and project revenue bonds.

The exercise of the powers granted by this chapter shall be in all respects for the benefit of the people of the Commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions. Because the operation and maintenance of projects by any authority created pursuant to this chapter will constitute the performance of essential governmental functions:

  1. An authority shall not be required to pay any taxes or assessments upon any project or any property acquired or used by the authority under this chapter or upon the income therefrom; and
  2. The project revenue bonds issued under this chapter, their transfer, and the income therefrom shall at all times be free from taxation within the Commonwealth.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 90, effective June 26, 2009.

175B.085. Project revenue bonds are authorized investment securities.

Project revenue bonds issued by an authority under this chapter shall be securities in which all public officers and public bodies of the Commonwealth and its political subdivisions, all insurance companies, trust companies, banking associations, investment companies, executors, trustees and other fiduciaries, and all other persons who are authorized to invest in bonds or other similar obligations, including capital in their control or belonging to them, are authorized to invest. The project revenue bonds shall be securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the Commonwealth for any purpose for which the deposit of bonds or other obligations of the Commonwealth is now or may hereafter be authorized by law.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 91, effective June 26, 2009.

175B.090. Maintenance and repair of projects — Restoration of or compensation for damaged private property — Permitted leases.

  1. Each project constructed or operated under this chapter shall be maintained and kept in good condition and repair by the developing authority, which may contract with the department or with any local highway department for maintenance of a project.
  2. All private property damaged or destroyed in carrying out the powers granted by this chapter shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation shall be made out of funds provided under this chapter.
  3. All counties, cities, towns, and other political subdivisions and all public agencies and commissions of the Commonwealth, notwithstanding any contrary provision of law, may lease, lend, grant, or convey to an authority any real property which may be necessary or convenient to the effectuation of the authorized purposes of the authority, including public roads and other real property already devoted to public use.
  4. In obtaining property under this chapter, an authority shall pursue the acquisition under the procedures and mandates of KRS 416.540 to 416.670 .

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 92, effective June 26, 2009.

175B.095. Evaluation of project condition prior to bond retirement — Evaluation of tolls upon transfer of ownership — Transfer of funds — Actions required prior to and upon bond retirement or termination of partnership.

  1. Not more than one (1) year prior to the scheduled retirement of all bonds issued to finance a project, the department shall undertake an evaluation of the condition of the project to determine if the project has significant maintenance, reconstruction, or rebuilding needs. The evaluation shall be completed no less than one hundred eighty (180) days prior to the scheduled retirement of the bonds.
  2. If significant maintenance, reconstruction, or rebuilding is needed, the department shall determine if funds and reserves held by the developing authority for the project are adequate to accomplish the maintenance, reconstruction, or rebuilding. If additional funds are needed, additional bonds shall be authorized and issued by the same entity that issued the original bonds for the project, pursuant to this chapter.
  3. Tolls for the project shall continue until all bonds are retired.
  4. Notwithstanding any other provisions of this chapter, any portion of a project located within the Commonwealth and financed by an authority shall become the property of the Commonwealth upon the retirement of all bonds issued to finance the project or, if the project utilizes a public-private partnership, upon termination of that partnership.
  5. Upon the transfer of any project to the Commonwealth pursuant to this section, the department shall evaluate the need for the continuance of any tolls. Tolls may be continued if significant rebuilding, expansion, or maintenance is needed. Tolls collected after ownership of a project has transferred to the Commonwealth shall be deposited into the road fund and used for current and future costs of the project, including maintenance, expansion, rebuilding, reconstruction, or other similar purposes.
  6. When an authority has transferred a project to the Commonwealth pursuant to this section, remaining fund reserves relating to that project shall be transferred to the road fund.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 93, effective June 26, 2009; 2016 ch. 67, § 13, effective April 8, 2016.

175B.100. Annual report by state authority — Annual audit of state authority.

  1. Within ninety (90) days after the expiration of each fiscal year, the state authority shall make an annual report of its activities for the preceding fiscal year to the Controller of the Commonwealth within the Finance and Administration Cabinet, the Transportation Cabinet, and the Legislative Research Commission. The report shall set forth a complete operating and financial statement covering its operation during the fiscal year.
    1. The state authority shall cause an audit of its books and accounts to be made at least once each year. (2) (a) The state authority shall cause an audit of its books and accounts to be made at least once each year.
    2. A request shall be made to the Auditor of Public Accounts for the performance of an annual audit. If the Auditor of Public Accounts declines in writing to assume responsibility for performing the audit or fails to respond in writing within thirty (30) days of receiving the request, the state authority may enter into a contract with a certified public accountant for an audit.
    3. Any contract with a certified public accountant entered into as a result of the Auditor of Public Accounts either declining to assume responsibility of performing the audit or failing to respond within thirty (30) days of receipt of a written request for an audit shall specify the following:
      1. That the certified public accountant shall forward a copy of the audit report and management letters to the Auditor of Public Accounts for review;
      2. That the Auditor of Public Accounts may review the certified public accountant’s work papers; and
      3. That after review of the certified public accountant’s work papers, if discrepancies are found, the Auditor of Public Accounts shall notify the authority of the discrepancies. If the certified public accountant does not correct these discrepancies prior to the release of the audit, the Auditor of Public Accounts may conduct its own audit to verify the findings of the certified public accountant’s report.
    4. If an audit verifying the findings of the certified public accountant’s report is conducted by the Auditor of Public Accounts, the total audit expense incurred shall be an allowable expenditure and shall be paid to the Auditor of Public Accounts. If the audit conducted by the Auditor of Public Accounts discloses discrepancies in the audit by the certified public accountant, the findings of the Auditor of Public Accounts shall be deemed official for all purposes.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 94, effective June 26, 2009.

Legislative Research Commission Note.

(6/26/2009). The internal numbering of subsection (2) of this statute has been altered in codification by the Reviser of Statutes from the way it appeared in 2009 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 94, under the authority of KRS 7.136 .

175B.105. Conflict of interest for officers or employees of an authority.

Officers or employees of an authority shall not have any direct interest in the sale or purchase of any project revenue bonds authorized by that authority. Violation of this section shall be punishable by fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one (1) year, or both.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 95, effective June 26, 2009.

175B.110. Indemnification from liability for an authority’s board members, officers, and employees.

Board members, officers, and employees of each authority authorized under this chapter shall be indemnified from liability asserted by any person on the bonds or notes of the authority, or any personal liability or accountability by reason of:

  1. The issuance of bonds, notes, or guarantees;
  2. The acquisition, construction, ownership, or operation of any project funded in whole or part by the authority; or
  3. Any other action taken or the failure to act by the authority.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 96, effective June 26, 2009.

175B.115. Project planning or work done prior to establishment of an authority.

For a project for which preliminary planning or other work has been undertaken prior to the establishment of an authority, the authority shall follow all previous agreements, records of decision, or contracts entered into by the Commonwealth, subject to any modification necessary as a result of the implementation of this chapter.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 97, effective June 26, 2009.

CHAPTER 176 Department of Highways

176.010. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Biennial highway construction plan” means the specifically identified individual transportation projects or portions thereof identified for funding during the upcoming biennium, which correspond to the first two (2) years of the six (6) year road plan;
  2. “Department” means Department of Highways;
  3. “Lowest and best bidder” includes the reciprocal resident bidder preference described in KRS 176.082 ;
  4. “Project” means the design, right-of-way, utility, or construction phase of a highway construction project;
  5. “Roads” includes highways, bridges, and bridge approaches; and
  6. “Six (6) year road plan” means the plan developed under KRS 176.430 .

History. Created by the Legislative Research Commission, Acts 1942, ch. 408, § 1, effective October 1, 1942; amend. Acts 2009, ch. 78, §. 19, effective June 25, 2009; 2010, ch. 162, § 23, effective July 15, 2010.

Compiler’s Notes.

This section was created by the Legislative Research Commission in order to clarify the chapter.

NOTES TO DECISIONS

  1. Purpose.
  2. Competitive Bidding.
1. Purpose.

The intent and purpose of the progressive laws has been to put complete control, maintenance and supervision of state highways in the Department of Highways. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

2. Competitive Bidding.

The statutes in KRS Chapter 176 having to do with competitive bidding and allowing “force account” work by the Department of Highways where no satisfactory bid is received, refer to the construction of public roads and not to the mere rental of equipment for road construction purposes. Hall v. Commonwealth, 331 S.W.2d 272, 1959 Ky. LEXIS 3 ( Ky. 1959 ).

Opinions of Attorney General.

“Roads” is construed to mean that part of the public way as established and accepted in the manner provided by statutes and dedicated to the public use by authorized public authorities. OAG 60-44 .

The phrase “road construction and reconstruction” is construed to include all things connected with and incidental to an efficient road system, the ordinary and usual devices used on roads to promote the safety and convenience of traffic. OAG 60-44 .

The state highway department may not use its funds to construct, improve or resurface a parking area at any city or county school. OAG 60-44 .

Research References and Practice Aids

Cross-References.

Archaeological sites, reporting discovery of, KRS 164.730 .

Billboards, KRS 177.830 to 177.890 .

County and city bridges, tunnels and ferries, KRS Ch. 181.

County road engineer and maintenance of public roads, KRS Ch. 179.

Credit of state may be pledged to any county for road purposes, Const., § 157a.

Distribution of county road fund for purpose of constructing and maintaining highways, KRS 47.020 .

Elimination of grade crossings, KRS 177.110 to 177.210 .

Elimination of grade crossings, allocation of cost, KRS 277.065 .

Erection of safety signs at grade crossings, KRS 189.560 .

Establishment, alteration and discontinuance of county roads; grade crossing elimination, KRS Ch. 178.

Highway construction lakes, KRS 150.625 .

Intrastate toll bridges and ferries, control by bureau of highways (now department of highways), hearings, certificates of convenience and necessity, notice to bureau of highways (now department of highways) of interrupted service, KRS 280.010 to 280.130 .

Motor fuel tax, allocation for road purposes, KRS 47.010 .

Public road districts, KRS Ch. 184.

Public utility companies entitled to erect transmission lines and appliances along and across public roads and waters, KRS 416.140 .

Recyclers, KRS 177.905 to 177.950 .

State and federal highways; limited access highways; turnpikes; general obligation bonds for highway construction, KRS Ch. 177.

State bridges, tunnels and ferries, KRS Ch. 180.

Traffic over bridges and ferries, regulation by department of highways, KRS 180.350 .

Traffic regulations and equipment of vehicles, KRS Ch. 189.

176.020. Appointment of state highway engineer — Divisions within the department.

  1. With prior approval of the Governor and the secretary in writing, the commissioner of highways shall appoint as state highway engineer, a civil engineer who has had at least six (6) years executive engineering experience in the design, supervision, and construction of highways. He shall be the technical advisor to the commissioner of highways, and under the direction of the commissioner, he shall supervise all construction and maintenance work of the department and perform such other duties as are assigned to him by the commissioner.
  2. With prior approval of the secretary and pursuant to KRS Chapter 12, the department shall be divided into such divisions as the commissioner of highways may deem necessary to perform the duties and functions of the department. Each division shall perform the duties assigned to it by the commissioner of highways and shall be headed by a director who shall act under the direction and supervision of the commissioner of highways.

History. 4356t-2, 4618-99: amend. Acts 1944, ch. 18; 1948, ch. 80, § 19; 1954, ch. 242; 1974, ch. 74, Art. IV, § 17.

NOTES TO DECISIONS

Cited:

Rice v. Marcum, 294 Ky. 486 , 172 S.W.2d 75, 1943 Ky. LEXIS 483 ( Ky. 1943 ); Commonwealth, Dep’t of Highways v. Salmon Corp., 489 S.W.2d 32, 1972 Ky. LEXIS 25 ( Ky. 1972 ).

Opinions of Attorney General.

The state highway department may not use its funds to construct, improve or resurface a parking area at any city or county school. OAG 60-44 .

The Commonwealth is not liable nor may it legally pay or reimburse any officer or employe for their moving expenses when they are transferred or reassigned by direction of a department. OAG 60-1106 .

In view of the department of transportation’s (now transportation cabinet’s) supervisory role as to all modes of transportation, that department (now cabinet) rather than the railroad commission has been given authority to administer the railroad rehabilitation program. OAG 78-5 .

Research References and Practice Aids

Cross-References.

Bond of commissioner of highways, amount and conditions, KRS 62.160 , 62.180 .

Commissioner may designate highways on which truck weight, length and height limits may be increased, KRS 189.222 .

Department heads, salary and oath, KRS 12.040 .

Department of highways may furnish scales for weighing vehicles, KRS 189.227 .

Department of highways may prescribe rules and regulations and issue permits for operation of trucks and trailers on state highways, KRS 189.230 , 189.270 .

Public road officials to turn over money and records to successors, KRS 61.320 .

State and federal highways, KRS Ch. 177.

176.030. State Highway Commission. [Repealed.]

Compiler’s Notes.

This section (4618-100) was repealed by Acts 1944, ch. 62, § 1.

176.040. Employees of department; salaries. [Repealed.]

Compiler’s Notes.

Subsection (2) of this section (4356t-3f) was repealed by Acts 1946, ch. 27, § 46; subsec. (1) of this section (4356t-3f) was repealed by Acts 1960, ch. 183, § 1.

176.050. Duties of department.

  1. The department shall:
    1. Investigate all problems relating to the construction and maintenance of roads in the state;
    2. Examine all projects and ascertain the feasibility of all routes;
    3. Obtain information as to the proper type of road for any project;
    4. Examine all types of road materials which may be used in the construction or maintenance of any road to be constructed by the department or under its direction or supervision;
    5. Require the design plans for all road projects constructing a new route to identify, if at all feasible, one (1) or more publicly owned sites at least four (4) acres in size, along the proposed new route that will be used as waste sites during the construction phase of the project but that have the potential for a city, county, or other governmental entity to turn the site into an industrial park upon completion of the road project, regardless of whether the site currently has the infrastructure necessary to support an industrial park;
    6. Consult with all legislative bodies affected by a new road construction project during the design phase for the purpose of soliciting local government officials’ preferences for the location of waste sites that could be turned into an industrial park;
    7. From time to time, examine and have examined and audited all of its books, papers and records;
    8. Cause to be made all necessary surveys in the establishment and construction of the system of public highways; all necessary maps, prints, plans and specifications of all work to be done on the roads; estimates of costs; advertisement for bids; contracts for construction or maintenance; and all necessary forms in connection therewith; and
    9. Promulgate administrative regulations under KRS Chapter 13A for the care and maintenance of roads after they have been constructed.
  2. The department may publish bulletins containing useful information concerning the construction and maintenance of roads.
  3. An invoice or bill to be paid out of the road or bridge funds shall not be approved by the department for payment until it has been carefully examined by the department to ascertain if the bill or invoice is in every respect a proper and legitimate charge against the road or bridge funds. The commissioner may call before him any person who may have information respecting any bill or invoice.

History. 4356t-3e, 4356t-3f; 1998, ch. 181, § 1, effective March 27, 1998.

NOTES TO DECISIONS

  1. Construction and Maintenance of Roads.
  2. Ferries.
  3. Trees.
1. Construction and Maintenance of Roads.

Property owners liable for street assessments cannot compel department of highways to pay for street construction as part of state highway project, where streets are built by city, and department did not exercise its authority to construct streets as part of project. Mullinax v. Middlesboro, 247 Ky. 297 , 57 S.W.2d 11, 1933 Ky. LEXIS 393 ( Ky. 1933 ).

The department may construct any portion of a state highway project as its sees fit, leaving the rest to be completed at some future time. Mullinax v. Middlesboro, 247 Ky. 297 , 57 S.W.2d 11, 1933 Ky. LEXIS 393 ( Ky. 1933 ).

The department has all power, except where expressly or by clear implication denied, in determining as to how a state highway project is to be constructed and maintained. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

The jurisdiction of the department of highways is confined, under applicable statutes, exclusively to the construction and maintenance of state highways, and it has no jurisdiction of public county highways. Johnson v. Clark County, 258 Ky. 563 , 80 S.W.2d 571, 1935 Ky. LEXIS 197 ( Ky. 1935 ).

2. Ferries.

The Department of Highways may establish and operate permanently a free ferry, to carry a state highway project over an intervening stream. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

The department may establish and operate a free ferry within one mile of an existing ferry operating under franchise. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

3. Trees.

As no statute, regulation, or case law imposed a duty on the Kentucky Department of Highways (KDH) to the general public or to adjoining landowners to remove defective trees, its failure to remove a dead tree on KDH-owned property was not a “ministerial act” as that term is used in KRS 44.073(2). Therefore, a homeowner’s claim against the KDH for damage to his property caused by a fallen tree was barred by sovereign immunity. Commonwealth v. Sexton, 256 S.W.3d 29, 2008 Ky. LEXIS 161 ( Ky. 2008 ).

Cited:

Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

DECISIONS UNDER PRIOR LAW

1. Selection of Route.

The location of road, which was to be part of primary road system, was for the state highway engineer and department of highways to decide, subject to approval of federal official, and not for fiscal court. Black v. Road Comm'rs of Crittenden County, 201 Ky. 650 , 258 S.W. 94, 1924 Ky. LEXIS 613 ( Ky. 1924 ).

2. Application of County Road Bonds.

Proceeds of county bond issue could have been applied to construction of road along route fixed by state highway commission (now department of highways), rather than route selected by fiscal court. Black v. Road Comm'rs of Crittenden County, 201 Ky. 650 , 258 S.W. 94, 1924 Ky. LEXIS 613 ( Ky. 1924 ).

Research References and Practice Aids

Cross-References.

Department of highways may lease motor vehicles, buildings and equipment to state police, and provide for servicing and repair of motor vehicles of state police, KRS 16.070 .

Roads or bridges between counties, duty of highway commissioner, KRS 178.250 .

State planning board, preparation of official state highway plan, KRS 147.070 to 147.120 .

State primary road system, Department of Highways to determine system, KRS 177.020 .

Traffic regulations and equipment of vehicles, KRS Ch. 189.

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: If a Tree Falls on a House, Will the State Hear It?: A Kentucky Survey of Adjacent Landowner Liability Due to Encroaching Vegetation, 38 N. Ky. L. Rev. 355 (2011).

176.051. Department to eradicate noxious weeds and invasive plants on rights-of-way — Advertisement of program — Administrative regulations.

  1. The Department of Highways shall keep all state rights-of-way free of all of the following, which are noxious weeds and invasive plants:
    1. The species of grass, Sorghum halepense, commonly known as Johnson grass;
    2. The species of weed commonly known as giant foxtail;
    3. The thistles Cirsium arvense and Carduus nutans, commonly known as Canada thistles and nodding thistles, respectively;
    4. Multiflora rose;
    5. Kudzu;
    6. Poison hemlock;
    7. Marestail;
    8. Amur honeysuckle;
    9. Japanese knotweed; and
    10. Common teasel.
  2. Upon written request, the department shall give priority to and shall cooperate with any abutting property owner engaged in a program of eradication by eradicating the noxious weeds and invasive plants identified in subsection (1) of this section, or in administrative regulations promulgated pursuant to subsection (4) of this section, from abutting state rights-of-way. The department shall take steps to eradicate this grass and these weeds or thistles by the use of chemicals or any other means found to be effective by the department.
  3. The Department of Highways shall inform property owners of the availability of the eradication program. In carrying out this responsibility the department shall, no later than the first week in March of every year, advertise in each county, pursuant to the provisions of KRS Chapter 424 that the program is available. The department shall stipulate in the advertisement the place and manner in which an interested property owner may make a written request for inclusion in the program. The department shall also promote awareness of the availability of the eradication program through the use of electronic media and the Cooperative Extension Service.
    1. The Department of Highways may by administrative regulation add noxious weeds and invasive plants to or delete them from the list of noxious weeds and invasive plants enumerated in subsection (1) of this section. In making a determination regarding a noxious weed or invasive plant, the department may consider the following: (4) (a) The Department of Highways may by administrative regulation add noxious weeds and invasive plants to or delete them from the list of noxious weeds and invasive plants enumerated in subsection (1) of this section. In making a determination regarding a noxious weed or invasive plant, the department may consider the following:
      1. The plant’s ability to directly or indirectly injure or cause damage to crops, livestock, poultry, or other interests of agriculture;
      2. The plant’s impact on the public health;
      3. The plant’s impact on the environment; and
      4. The level of difficulty associated with controlling or eradicating the plant.
    2. The department shall review this administrative regulation at least once every four (4) years.
    3. For purposes of this subsection, “livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, and any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species.

HISTORY: Enact. Acts 1956 (2nd Ex. Sess.), ch. 2; 1960, ch. 149; 1968, ch. 65; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 80, § 1, effective March 29, 1976; 1980, ch. 28, § 1, effective July 15, 1980; 1984, ch. 29, § 1, effective July 13, 1984; 1990, ch. 433, § 3, effective April 10, 1990; 2014, ch. 53, § 1, effective July 15, 2014; 2017 ch. 129, § 7, effective June 29, 2017.

176.052. State Highway Commission; appointment; term; duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956 (1st Ex. Sess.), ch. 7, Art. V) was repealed by Acts 1960, ch. 3, § 1, effective February 3, 1960.

176.053. Trees along rights-of-way — Proceeds from sale of products.

  1. The Department of Highways is authorized to plant or set trees on and along any and all rights-of-way of highways or state property adjacent thereto, and to cut and sell wood, lumber, or forest products therefrom.
  2. All proceeds from the sale of such wood, lumber, or forest products shall be held in a separate fund for the maintenance, construction, or improvement of highways, or the acquiring of rights-of-way, and the improvement or development thereof.

History. Enact. Acts 1962, ch. 132, §§ 1, 2.

176.054. Obtaining trees to carry out KRS 176.053.

The Energy and Environment Cabinet shall furnish to the Department of Highways such seedlings or young trees as the department may require, or as may be available. The Department of Highways shall pay to the Energy and Environment Cabinet the reasonable value thereof as may be agreed upon between such departments.

History. Enact. Acts 1962, ch. 132, § 3; 2010, ch. 24, § 230, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Natural resources and environmental protection cabinet, KRS Ch. 149.

176.055. Dissemination of information concerning roads and highways.

  1. The Department of Highways may purchase space in magazines, newspapers, and other publications and may cause to be made and circulated all maps, prints, plans, lithographs, engravings, photographs, drawings, art work, and other specialized work deemed necessary in the dissemination of information concerning its roads and highways.
  2. The Department of Highways, with the approval of the Governor, may expend an amount not in excess of two hundred and fifty thousand dollars ($250,000) a year for the purposes set out in subsection (1) hereof.
  3. The provisions of KRS Chapter 57 shall not be applicable or controlling in the expenditure of this fund.

History. Enact. Acts 1950, ch. 47, §§ 1 to 3.

NOTES TO DECISIONS

Cited:

Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

176.057. Certain railroad property to be considered roads — Use of funds for maintenance and repair.

For the purposes of this chapter and KRS Chapter 178 on and after July 1, 2010, railroad crossings, railroad spurs that access industrial parks, and shortline railroads at or near intersections with roadways shall be considered roads. The industrial access road fund within the Transportation Cabinet and other funds specified by the secretary or requested by the secretary of the Cabinet for Economic Development may be used for their maintenance and repair.

History. Enact. Acts 2009 (1st Ex. Sess.), ch. 1, § 54, effective June 26, 2009.

176.060. Roads under construction — Regulation of traffic — Temporary roads.

The department may stop or regulate all traffic over any road being constructed or improved until it is ready to be opened to the public, and may designate other roads for the accommodation of traffic until the construction is completed. The department may establish temporary roads while such construction is going on, and may make arrangements with landowners for necessary temporary rights-of-way, and may contract and pay for such rights-of-way out of appropriations from the state road fund by certifying the costs to the Finance and Administration Cabinet. The temporary road shall be opened for travel at least two (2) weeks before work is begun on the road proposed to be constructed or improved.

History. 4356t-3f.

NOTES TO DECISIONS

Cited:

Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

See notes to KRS 176.050 . State Hwy. Comm’n v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 (1933).

176.070. Advertisement for bids.

  1. After surveys, plans, specifications and estimates have been completed for any road or section thereof, and the type and character of the road has been determined, and the right-of-way obtained, the bureau shall advertise by publication pursuant to KRS Chapter 424, for bids on the work, and may contract for the purchase of all materials necessary for the construction and maintenance of roads.
  2. Before advertising for bids for the construction or reconstruction of any highway, the department may determine the type of improvement desired, and may advertise and receive bids for only the types determined. The advertisement shall make it generally known that the work is to be done, and shall state the place where the bidders may examine the plans and specifications.

History. 4356t-3f, 4356t-6, 4356t-17-2b: amend. Acts 1966, ch. 239, § 150.

NOTES TO DECISIONS

1. Bids Not Required for Rental.

The rental of road construction equipment by the state does not require competitive bidding. Hall v. Commonwealth, 331 S.W.2d 272, 1959 Ky. LEXIS 3 ( Ky. 1959 ).

Opinions of Attorney General.

The Department of Transportation (now Transportation Cabinet) cannot use the “turnkey” method for bidding highway construction projects since there is nothing in the road building chapters of the KRS which would authorize the use of such method and to do so would ignore the public policy embodied in this section of obtaining the most qualified and competent engineering services at the lowest possible price because this section requires in effect that the engineer’s plans and specifications be completed before the Bureau of Highways may advertise for bids. OAG 81-349 .

The provisions of the Model Procurement Code, including subsection (4) of 45A.030 which does not define “construction” to include road building and subsection (1) of KRS 45A.050 , which excises road building from the operation of KRS Chapter 45A, prevent use of the “turnkey” technique, whereby the project specifications sent out to prequalified contractors include planning and design services by engineers obtained by the bidding contractor, by the Department of Transportation (now Transportation Cabinet); the public policy of obtaining the most qualified and competent engineering services at the lowest possible price which is embodied in this section would simply be ignored by utilizing the “turnkey” technique because that statute in effect requires that the engineer’s plans and specifications be completed before the Department of Highways may advertise for bids. OAG 81-349 .

176.080. Bond or check to accompany bid — Opening of bids — Awarding of contracts — Security — Bids may be rejected — Advertisement for new bids.

  1. Each bidder shall accompany his bid with a bond or certified check payable to the State Treasurer for a reasonable sum, fixed by the department, guaranteeing that he will enter into a contract with the department for doing the work if the work is awarded to him.
  2. Bids shall be opened publicly at the time and place designated in the invitation for bids. At the time the bids are opened, the department shall announce the department’s engineer’s estimate and make it a part of the department’s records pertaining to the letting of any highway construction project contract for which bids were received. Each bid, together with the name of the bidder and the department’s engineer’s estimate, shall be recorded and open to public inspection.
  3. The contract shall be awarded to the lowest and best bidder. The department may require bonds from any contractor to secure the performance of any contract or may require security by any other means it deems advisable.
  4. The department may reject any bid when it finds it for the best interest of the state to do so. When all bids are rejected, the department shall advertise for new bids as in the first place.

History. 4356t-3f, 4356t-6: 1994, ch. 278, § 2, effective July 15, 1994.

176.082. Reciprocal preference to be given to resident bidders on construction projects.

  1. Prior to a contract being awarded for the construction phase of a project, a resident bidder of the Commonwealth shall be given a preference against a nonresident bidder registered in any state that gives or requires a preference to bidders from that state. The preference shall be equal to the preference given or required by the state of the nonresident bidder and shall be applied after the opening of the bids.
  2. A resident bidder is an individual, partnership, association, corporation, or other business entity that, on the date the department advertises for bids:
    1. Is authorized to transact business in the Commonwealth; and
    2. Has for one (1) year prior to and through the date of advertisement, filed Kentucky corporate or other business income taxes, made payments to the Kentucky unemployment insurance fund established in KRS 341.490 , and maintained a Kentucky workers’ compensation policy in effect.
  3. A nonresident bidder is an individual, partnership, association, corporation, or other business entity that does not meet the requirements of subsection (2) of this section.
  4. The department shall use the list and administrative regulations described in KRS 45A.494(6) to determine the preferences to be given in awarding a contract.
  5. The preference shall not be given if the preference conflicts with federal law.

History. Enact. Acts 2010, ch. 162, § 5, effective July 15, 2010.

176.085. Compliance with workers’ compensation insurance and unemployment insurance laws required — Foreign entity to obtain certificate of authority — Penalty.

    1. No contract for building, construction, reconstruction, renovation, demolition, or other type work on any state road, waterway, or aviation-related work, shall be awarded by any agency, department, or office of the Commonwealth of Kentucky or any political subdivision of the Commonwealth of Kentucky to any person until that person assures, by affidavit, that all contractors and subcontractors employed, or that will be employed, under the provisions of the contract shall be in compliance with Kentucky requirements for workers’ compensation insurance according to KRS Chapter 342 and unemployment insurance according to KRS Chapter 341. (1) (a) No contract for building, construction, reconstruction, renovation, demolition, or other type work on any state road, waterway, or aviation-related work, shall be awarded by any agency, department, or office of the Commonwealth of Kentucky or any political subdivision of the Commonwealth of Kentucky to any person until that person assures, by affidavit, that all contractors and subcontractors employed, or that will be employed, under the provisions of the contract shall be in compliance with Kentucky requirements for workers’ compensation insurance according to KRS Chapter 342 and unemployment insurance according to KRS Chapter 341.
    2. An agency, department, office, or political subdivision of the Commonwealth of Kentucky shall not award a contract to a person that is a foreign entity unless that foreign entity, on the records of the Secretary of State, holds a certificate of authority or a statement of foreign qualification.
  1. Any person who fails to comply with the requirements of subsection (1) of this section during the term of the state contract, upon such finding by a court of competent jurisdiction, shall be fined an amount not to exceed four thousand dollars ($4,000), or an amount equal to the sum of uninsured and unsatisfied claims brought under the provisions of KRS Chapter 342 and unemployment insurance claims for which no wages were reported as required by KRS Chapter 341, whichever is greater.
  2. The penalty imposed in subsection (2) of this section shall be enforced by the county attorney for the county in which the violation occurred.

History. Enact. Acts 1990, ch. 174, § 3, effective July 13, 1990; 2011, ch. 80, § 3, effective June 8, 2011; 2012, ch. 81, § 87, effective July 12, 2012.

NOTES TO DECISIONS

Cited:

Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

176.090. Provisions of contract — Partial and complete payment — Bonds, bids, etc., to be filed.

  1. The contract shall state the time when the work shall be begun and completed, and the time and manner of payment. The department may require that a certain percent of the contract price, or a certain fixed sum shall not be paid to the contractor until a fixed time after completion and acceptance of the work.
  2. When the contract provides for partial payment based on the amount of work done, the representative of the department in charge of the work shall present to the department, as each payment becomes due, a certificate signed by him, showing as nearly as possible the amount of work done for which payment is to be made. If the state highway engineer finds that the amount certified is due, the Finance and Administration Cabinet shall draw a warrant for the amount certified, on the request of the Department of Highways.
  3. When the work has been fully completed, the representative of the department shall certify to the department a detailed and itemized statement of the cost of the work done, and if it is found to be correct, the department shall certify the amount to the Finance and Administration Cabinet, which shall draw a warrant for the amount due.
  4. All bonds and bids filed and all contracts approved by the department and a copy of all specifications and certifications shall be kept on file in the office of the department.

History. 4356t-6.

NOTES TO DECISIONS

  1. Assignment of Contract Rights.
  2. Garnishment.
1. Assignment of Contract Rights.

Assignment by contractor to surety on contractor’s bond of former’s rights in contract to build road was subject to all terms and conditions of contract and to contractor’s liabilities thereunder. Southern Exchange Bank v. American Surety Co., 284 Ky. 251 , 144 S.W.2d 203, 1940 Ky. LEXIS 460 ( Ky. 1940 ), limited, York v. Cline Constr. Co., 336 S.W.2d 34, 1960 Ky. LEXIS 311 ( Ky. 1960 ), overruled, National Surety Corp. v. State Nat'l Bank, 454 S.W.2d 354, 1970 Ky. LEXIS 277 ( Ky. 1970 ).

2. Garnishment.

Department cannot be made garnishee to attach funds due on contract for work done on highways. B. B. Wilson Co. v. Van Diver, 230 Ky. 27 , 18 S.W.2d 308, 1929 Ky. LEXIS 3 ( Ky. 1929 ). (See now KRS 427.130 .)

176.095. Contractor’s deposit of securities with department.

  1. Where any percent of a contract price or a certain fixed sum shall have been retained pursuant to the provisions of subsection (1) of KRS 176.090 , the contractor may from time to time withdraw the whole or any portion of the amount retained for payments to the contractor pursuant to the terms of the contract and substitute therefor securities of the following classes which are upon deposit with a custodian designated by the commissioner of the department and approved by the secretary of the Finance and Administration Cabinet:
    1. United States treasury bonds, United States treasury notes, United States certificates of indebtedness, United States treasury bills,
    2. Bonds of the Commonwealth of Kentucky, or
    3. Bonds of any political subdivision, including school districts, of the Commonwealth of Kentucky.
  2. The custodian shall on a regular basis collect all the interest or income on the obligations so deposited and shall pay the same when and as collected to the contractor who deposited the obligations. If the deposit is in the form of coupon bonds, the custodian shall deliver each coupon as it matures to the contractor.
  3. Any amount deducted by the department, pursuant to the terms of the contract, from the retained payments otherwise due the contract, shall be deducted first from that portion of such retained payments for which no security has been substituted, then from the proceeds of any deposited security. In the latter case, the contractor shall be entitled to receive interest, coupons or income only from those securities which remain after such amount has been deducted.
  4. The securities so deposited shall be properly endorsed by the contractor in such manner so as to enable the custodian to carry out the provisions of this section.

No amount shall be withdrawn in excess of the market value of the securities at the time of deposit or the par value of such securities, whichever is lower.

History. Enact. Acts 1970, ch. 38; 1972, ch. 203, § 34; 1974, ch. 74, Art. II, § 9(2); 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 155, § 41, effective June 17, 1978.

Opinions of Attorney General.

A contractor depositing securities with an approved custodian in order to withdraw his retainage has both legal and equitable title to such securities, and he may substitute other qualified securities for those on deposit when approved by the bureau of highways (now Department of Highways) and the custodian. OAG 73-694 .

176.100. Deviation from contract.

No contractor shall deviate from the provisions, plans or specifications upon which a contract has been awarded without first having obtained written authority from the department to do so. If the contractor does deviate without such authority, neither the State of Kentucky, the Department of Highways, the Finance and Administration Cabinet nor the State Treasurer shall pay or be liable for any work or material not fully provided for in the original contract.

History. 4356t-3f.

NOTES TO DECISIONS

1. Subcontracts.

This section is for the protection of the state and has no application to contracts between a contractor contracting with the state and his subcontractor. Holloway & Son Constr. Co. v. Mattingly Bridge Co., 581 S.W.2d 568, 1979 Ky. LEXIS 259 ( Ky. 1979 ).

176.110. Breach of contract — Cancellation to keep expenditures within annual income.

  1. If any person having a contract with the department fails to carry out the contract, the department may cancel the contract and reaward it without advertisement if it can obtain a qualified contractor to perform the work at the original contract price or for less. Otherwise the work shall be advertised as required by law.
  2. When the department ascertains that the cost of any contract or the cost of continued work on any contract will exceed the revenues of the fiscal year, the department may cancel any such contract or any portion thereof necessary in order to keep expenditures within the revenues of the fiscal year, and may contract for the completion of such work when the funds are available without advertising the work if it can obtain a qualified contractor to assume the work at the original contract price. Otherwise the work shall be advertised as required by law.

History. 4356t-3f.

NOTES TO DECISIONS

1. Application.

Where surety on highway construction contractor’s bond completed construction contract pursuant to agreement, the original contract was not canceled and subsection (1) of this section was not applicable. Continental Casualty Co. v. L. G. Wasson Coal Mining Corp., 407 S.W.2d 426, 1966 Ky. LEXIS 165 ( Ky. 1966 ).

DECISIONS UNDER PRIOR LAW

1. Exceeding Revenue.

The state highway commission (Department of Highways) could not have let contracts aggregating in ultimate cost more than revenue of current fiscal year, even though expenditure thereunder in any one fiscal year would not have exceeded available funds for that year. Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 ( Ky. 1924 ).

176.120. Construction work that may be done by department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 18, § 1; 1960, ch. 137, § 1) was repealed by Acts 1964, ch. 22, § 2.

176.121. Construction work by department employees.

The Department of Highways may cause any road construction or reconstruction to be done by employees of the department instead of through contractors when, in the opinion of the commissioner as expressed in an official order, any of the following conditions is found to exist:

  1. Emergency construction or reconstruction is made necessary by the fact that a road has been rendered unusable or the urgency of need for construction or reconstruction is apparent.
  2. Construction or reconstruction of access roads would serve as an inducement to industrial location or substantial expansion of industry, and the estimated cost of the project is less than one hundred twenty-five thousand dollars ($125,000).
  3. The project involves: an existing road and provides for such work as improvement of sight distance, traffic marking, channelization or the addition or widening of traffic lanes or widening of shoulders; or construction, reconstruction, widening or strengthening of small bridges and projects for which preparation of detailed plans required to secure bids is unnecessary; or an emergency need does not allow for time for preparation of plans and advertisement for bids.
  4. No satisfactory bid is received for the construction or reconstruction of the road after all necessary steps have been taken to obtain bids for such work, and the estimated cost of the projects is less than one hundred twenty-five thousand dollars ($125,000).

History. Enact. Acts 1964, ch. 22, § 1; 1974, ch. 74, Art. IV, § 20(1); 1974, ch. 92, § 1; 1980, ch. 46, § 1, effective July 15, 1980.

176.122. Definitions for KRS 176.122 to 176.128.

As used in KRS 176.122 to 176.128 , unless the context requires otherwise:

  1. “Department” means Department of Highways, Commonwealth of Kentucky.
  2. “Person” means any individual, firm, agency, company, association, partnership or corporation.

History. Enact. Acts 1962, ch. 154, § 1.

176.124. Work of department personnel restricted to rights-of-way.

No officer, agent or employee of the Commonwealth of Kentucky, Department of Highways, shall perform or cause to be performed any work or provide or cause to be provided services of any nature beyond the right-of-way limits of any public road, nor shall any person accept the work or services of any officer, agent or employee of the department on private property.

History. Enact. Acts 1962, ch. 154, § 2.

Opinions of Attorney General.

The practice of grading and graveling private driveways and private roads by the bureau of highways (now Department of Highways) or the county road department is clearly illegal under this section and KRS 176.126 , subject to the penalties provided in KRS 176.990 , and a citizen who has knowledge of violation of these statutes should report them to the Commonwealth Attorney or the county attorney of the county. OAG 73-129 .

176.126. Use of department goods and materials restricted to rights-of-way.

No goods or materials belonging to or under control of the department shall be used in work of any nature beyond the right-of-way limits of any public road, nor shall any person accept or permit the use of such goods or materials on private property.

History. Enact. Acts 1962, ch. 154, § 3.

176.128. Effect of KRS 176.122 to 176.128.

Nothing in KRS 176.122 to 176.128 shall be so construed as to prevent the lawful execution of other granted powers necessary to accomplish the purposes of the Department of Highways.

History. Enact. Acts 1962, ch. 154, § 6.

176.130. Certificates of eligibility for contractors — Application — When necessary.

  1. Every person who seeks to procure, bid upon, or offer to bid upon any contract with the department for the construction or maintenance of any public road or any section thereof, before procuring a proposal form or submitting any bid to obtain such contract, shall procure a certificate of eligibility from the department to bid on such work.
  2. All applications for a certificate of eligibility shall be made to the department in writing, and the department shall act upon the application within thirty (30) days after the application is filed.
  3. A certificate of eligibility is not necessary where the department purchases equipment, material and supplies directly, except in the case of the purchase of crushed stone in lots of more than one thousand (1,000) tons, or bituminous materials in tank car lots.

History. 4356t-18, 4356t-25.

NOTES TO DECISIONS

1. Partnership.

Money borrowed by partners from a bank on personal notes and contributed to partnership to increase net current assets to enable partnership to obtain certificate of eligibility was partnership liability to be taken into account in determining adjusted basis of partners’ interests in the partnership for the purpose of determining the extent to which their distributive share of the partnership loss could be allowed under § 704(d) of the Internal Revenue Code of 1954. Corum v. United States, 268 F. Supp. 109, 1967 U.S. Dist. LEXIS 11546 (W.D. Ky. 1967 ).

176.140. Determination of eligibility to bid.

  1. The department shall determine who shall be eligible to bid upon any contract with the department for the construction or maintenance of any public road or section thereof. The department may adopt rules and regulations and make investigations and examinations to determine the financial status, experience, responsibility, business ability, previous record, sufficiency of plant and equipment, and any other pertinent facts necessary to determine the eligibility of the proposed bidder.
  2. The department shall establish rules and regulations governing the application for the certificate of eligibility, the means and methods of obtaining information relative to the applicant, and the granting of, or refusal to grant, a certificate of eligibility, and may require a financial statement of the applicant, verified by the applicant or, in the case of a corporation, by an authorized official thereof, as often as the department deems it necessary, and at least once in every twelve (12) months.

History. 4356t-19.

Research References and Practice Aids

Cross-References.

See note to KRS 176.130 . Corum v. United States, 268 F. Supp. 109, 1967 U.S. Dist. LEXIS 11546 (W.D. Ky. 1967 ).

176.150. Information required with application for certificate of eligibility.

  1. No applicant shall be given a certificate of eligibility unless his financial statement and the investigation made by the department show that he possesses net current assets or working capital sufficient in the judgment of the department to render it probable that he can satisfactorily execute his contracts and meet obligations therein incurred. All applications for certificates shall expressly authorize the department to obtain all information which it deems pertinent with respect to the financial status, assets, and liabilities of the applicant from any persons having business transactions with the applicant, and shall expressly authorize all those persons to furnish any information requested from them by the department.
  2. No applicant shall be given a certificate of eligibility until the applicant provides the secretary of the Transportation Cabinet with his sworn statement made under penalty of perjury that he has not knowingly violated any provision of the campaign finance laws of the Commonwealth and that the award of a contract to the applicant will not violate any provision of the campaign finance laws of the Commonwealth. “Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or should have been aware that his conduct is of that nature or that the circumstance exists.
  3. Certificates of eligibility shall be issued without reference to the residence of applicants and the administrative regulations regarding the issuance of certificates shall apply equally to residents and nonresidents. A certificate of eligibility shall not be denied to any applicant upon the sole issue of nationality or residence.
  4. When the applicant is a foreign corporation, limited liability company, or limited partnership, the application shall be accompanied by a certificate from the Secretary of State of the jurisdiction in which it is organized certifying that it is validly existing and in good standing and a certificate from the Kentucky Secretary of State certifying that it is authorized to transact business in the Commonwealth of Kentucky.

History. 4356t-20, 4356t-22, 4356t-23; 1992, ch. 288, § 22, effective July 14, 1992; 2007, ch. 137, § 45, effective June 26, 2007; repealed and reenact., Acts 2010, ch. 51, § 45, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). 2010 Ky. Acts ch. 51, sec. 183, provides, "The specific textual provisions of Sections 1 to 178 of this Act which reflect amendments made to those sections by 2007 Ky. Acts ch. 137 shall be deemed effective as of June 26, 2007, and those provisions are hereby made expressly retroactive to that date, with the remainder of the text of those sections being unaffected by the provisions of this section."

Research References and Practice Aids

Cross-References.

See note to KRS 176.130 . Corum v. United States, 268 F. Supp. 109, 1967 U.S. Dist. LEXIS 11546 (W.D. Ky. 1967 ).

Kentucky Law Journal.

Rutledge, The 2007 Amendments to the Kentucky Business Entity Statutes, 97 Ky. L.J. 229 (2008).

176.160. Issuance or denial of certificate — Effect.

  1. After obtaining such information as it deems necessary relative to the qualification of the applicant, the department shall determine whether or not the applicant is eligible to bid upon road contracts. The department shall promptly notify all applicants of its final action on their applications.
  2. If the department determines that the applicant is eligible, it shall issue to him a certificate of eligibility which shall entitle the applicant to bid upon any contract with the department for the construction or maintenance of any public road or section thereof upon which bids are being asked.
  3. If the department determines that the applicant is ineligible to bid, it shall reject the application and refuse to issue the certificate of eligibility, and the applicant shall not thereafter make application for a certificate of eligibility until he is qualified, both financially and in all other ways.

History. 4356t-20.

176.170. Administrative hearing — Appeal.

  1. Any applicant aggrieved by the decision of the department made pursuant to KRS 176.160 may, within ten (10) days after receiving notification of the decision, request in writing an administrative hearing which shall be conducted in accordance with KRS Chapter 13B.
  2. Any applicant who is aggrieved by the final order of the department may appeal to the Franklin Circuit Court in accordance with KRS Chapter 13B.

History. 4356t-20: 1996, ch. 318, § 59, effective July 15, 1996.

176.180. Limitation on certificate — Rehearing.

  1. In issuing a certificate of eligibility to any applicant, the department may limit the scope of the certificate as to the number or type of projects, or the amount of work that the contractor may bid upon.
  2. Any applicant who is dissatisfied with the department’s ruling as to the aggregate amount of work which he will be permitted to have under contract at any one (1) time, may at any time file a new application for qualification. Such new application shall be promptly considered and acted upon by the department.

History. 4356t-20.

176.190. Revocation of certificate — Notice — Hearing.

A certificate of eligibility may be revoked by the department only after a written notice is given to the qualified bidder and an opportunity given to him for an administrative hearing conducted in accordance with KRS Chapter 13B.

History. 4356t-21; 1996, ch. 318, § 60, effective July 15, 1996.

176.200. Subcontractor to be named.

Before making an award the department may require the bidder to name the subcontractor whom he intends to employ for the various divisions of the work bid upon.

History. 4356t-24.

176.210. Lists of qualified bidders may be made public.

The department may make public from time to time lists of qualified bidders. Such lists shall be general in character and shall not indicate the size of the contracts with respect to which the bidders have qualified.

History. 4356t-22.

176.220. Bids from unqualified bidders.

The department shall not consider any bid filed with it by any person not holding a certificate of eligibility. Bids from unqualified bidders which are discovered by the department before they are read, shall be returned to the bidders without being read. If the department finds subsequent to the opening of bids that facts exist which would disqualify the lowest bidder, or that such bidder is not responsible and competent, the department shall reject such bid, despite the previous qualification of the bidder. The department shall not award any contract to any bidder not qualified to bid thereon at the time the bids are opened.

History. 4356t-25.

176.230. License fee. [Repealed.]

Compiler’s Notes.

This section (4356t-26) was repealed by Acts 1962, ch. 153, § 1.

176.240. Federal aid for road building — Cooperation by department — Allocation of funds.

  1. The department may contract with the federal government in regard to the survey, construction and maintenance of roads under any Act of Congress providing federal aid to the states in road construction, and may, subject to the rules of the United States Secretary of Agriculture, make plans for and supervise the construction of federal aid roads, and may do all things necessary to fully carry out the cooperation contemplated.
  2. The department may set apart out of moneys appropriated out of the state road fund an amount equal to any sum allotted to the state by the federal government, or any sum necessary to carry on cooperative work with the federal government.
  3. The State Treasurer may receive money due under the provisions of any federal aid act, and he shall pay out such money upon warrants of the Finance and Administration Cabinet issued in payment of claims certified by the Department of Highways.

History. 4356t-3f.

NOTES TO DECISIONS

1. Cooperation with Federal Government.

The Department of Highways may do all things necessary fully to cooperate with the federal government. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

176.250. Duties of department in regard to county roads.

The department shall:

  1. Recommend rules and regulations determining the method of constructing roads and fixing the duties of county road engineers and their employees in respect to all public roads;
  2. Instruct and advise with the county road engineers and their employees as to the establishment of grades and suitable systems of drainage and as to the construction, improvement and maintenance of public roads;
  3. Cause plans, specifications and estimates to be prepared for the repair and improvement of public roads and the construction and repair of bridges, and, when requested, advise upon the various methods of road construction adapted to different sections of the state, and as to the best methods of construction and maintenance of public roads throughout the state, and collect such information relating thereto as it deems expedient; and
  4. Cause meetings to be held in each county for the purpose of furnishing general information and instruction upon the maintenance and improvement of public roads and the application of the road laws and the rules of the department. The department shall notify the county engineer of any county of such meetings and specify the date and place thereof.

History. 4356t-13.

NOTES TO DECISIONS

1. Jurisdiction of Bureau.

The jurisdiction of the department of highways is confined, under applicable statutes, exclusively to the construction and maintenance of state highways, and it has no jurisdiction of public county highways. Johnson v. Clark County, 258 Ky. 563 , 80 S.W.2d 571, 1935 Ky. LEXIS 197 ( Ky. 1935 ).

Research References and Practice Aids

Cross-References.

County road engineer and maintenance of public roads, KRS Ch. 179.

Credit of state may be pledged to any county for road purposes, Const., § 157a.

State aid for county roads, KRS 178.150 , 178.190 , 179.410 , 179.415 .

176.255. Administrative control of covered wooden bridges — Title — Maintenance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 364, § 2; 1976, ch. 170, § 2) was repealed by Acts 1980, ch. 323, § 3, effective July 15, 1980. For present law, see §§ 176.400 , 176.410 .

176.260. Fiscal year of department.

The fiscal year for the Department of Highways which commences on April 1, 1950, shall be extended up to and including June 30, 1951, and thereafter the fiscal year for the department shall begin July 1, and end June 30.

History. 4356t-17-1; amend. Acts 1950, ch. 32, § 1.

176.270. Finance and Administration Cabinet to furnish income estimates.

On or before June 1 of each year, the Finance and Administration Cabinet shall furnish to the Department of Highways estimates of income for the ensuing fiscal year. Upon the request of the Department of Highways the Finance and Administration Cabinet shall, from time to time, furnish revised estimates of income.

History. 4356t-17-2; amend. Acts 1950, ch. 32, § 2; 1988, ch. 273, § 9, effective July 15, 1988.

NOTES TO DECISIONS

  1. Department of Highways Budget.
  2. Charging and Crediting Actual Revenue.
1. Department of Highways Budget.

Budget of Department of Highways is based on estimate of income required to be furnished by department of revenue (now Revenue Cabinet) at beginning of each fiscal year. State Highway Com. v. Coleman, 236 Ky. 444 , 33 S.W.2d 318, 1930 Ky. LEXIS 768 ( Ky. 1930 ).

2. Charging and Crediting Actual Revenue.

After close of fiscal year, the difference between estimated receipts of department and actual receipts for that year should be charged or credited. State Highway Com. v. Coleman, 236 Ky. 444 , 33 S.W.2d 318, 1930 Ky. LEXIS 768 ( Ky. 1930 ).

While it is duty of department to conduct business on basis of revenue provided, surplus for one year will be available for succeeding year and any deficit should be taken care of in succeeding year. State Highway Com. v. Coleman, 236 Ky. 444 , 33 S.W.2d 318, 1930 Ky. LEXIS 768 ( Ky. 1930 ).

176.280. Legal service — Duty of county attorneys.

The county attorneys shall each render legal service to the department in carrying out its duties. The services so rendered shall be without additional compensation, and no county attorney shall be required to render service outside his county.

History. 4356t-3f.

Research References and Practice Aids

Cross-References.

Assistant attorneys general for Department of Highways, duties, term, salaries, KRS 15.105 .

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

176.290. [Renumbered as KRS 44.070.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, §§ 1, 3) was recompiled as KRS 44.070 .

176.300. [Renumbered as KRS 44.080.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 5) was recompiled as KRS 44.080 .

176.310. [Renumbered as KRS 44.090.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 6) was recompiled as KRS 44.090 .

176.320. [Renumbered as KRS 44.100.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, §§ 7, 8) was recompiled as KRS 44.100 .

176.330. [Renumbered as KRS 44.110.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 3(a)) was recompiled as KRS 44.110 .

176.340. [Renumbered as KRS 44.120.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 2) was recompiled as KRS 44.120 .

176.350. [Renumbered as KRS 44.130.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 4) was recompiled as KRS 44.130 .

176.360. [Renumbered as KRS 44.140.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 9) was recompiled as KRS 44.140 .

176.370. [Renumbered as KRS 44.150.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 10) was recompiled as KRS 44.150 .

176.380. [Renumbered as KRS 44.160.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 189, § 3(b)) was recompiled as KRS 44.160 .

176.400. Covered wooden bridges — Administrative control — Title — Maintenance.

  1. Administrative control of covered wooden bridges designated as state shrines shall be shared by the Transportation Cabinet, the Department of Parks, the Kentucky Heritage Council, and the authorities created under KRS 176.410 .
  2. The Transportation Cabinet shall maintain all covered wooden bridges in the Commonwealth which are on public roads and open to vehicular traffic. The cabinet shall maintain the bridges for safety and for historical and aesthetic beauty. The cabinet shall prepare estimates of the cost of maintaining covered wooden bridges which are on public roads and open to vehicular traffic and shall identify and include the total of these estimates in its biennial budget request.
  3. The cabinet may delegate its responsibility for maintenance of covered bridges located on roads maintained by a county to the local government responsible for such roads. Delegation of responsibility for maintenance of covered bridges to a local government shall require periodic inspection by the cabinet.
  4. Nothing in this section shall prevent an appropriate unit of government from closing a covered wooden bridge to vehicular traffic.
  5. The Department of Parks shall be responsible for all covered wooden bridges located in the Commonwealth which are on public property and no longer open to vehicular traffic. The department shall maintain these bridges in sound structural condition and for historical and aesthetic beauty. The department shall prepare estimates of the cost of maintaining covered wooden bridges for which it has a responsibility and shall identify and include the total of these estimates in its biennial budget request.
  6. When an appropriation is made to a covered wooden bridge authority created under the provisions of KRS 176.410 , the Department of Parks shall transfer the obligation of maintenance for the bridges designated in the appropriation to that authority.
  7. An authority may retransfer the right of possession or title and the obligation of maintenance of covered bridges under its jurisdiction to the Department of Parks.
  8. The Heritage Division of the Kentucky Heritage Council may determine that an authority is inactive or unable to discharge its responsibilities and may transfer the right of title or possession to covered bridges under the jurisdiction of the authority to the Department of Parks. The division shall give notice of such an action to the authority and the Department of Parks.
    1. Prior to administering a project that involves the preservation, restoration, or maintenance of a covered wooden bridge, the administering entity shall: (9) (a) Prior to administering a project that involves the preservation, restoration, or maintenance of a covered wooden bridge, the administering entity shall:
      1. Consider all recommendations submitted pursuant to KRS 176.410 by a covered wooden bridge authority pertaining to any bridge involved in the project;
      2. Consult with the covered wooden bridge authority dedicated to the preservation, restoration, and maintenance of any bridge involved in the project, if such an authority exists; and
      3. Hold at least one (1) public hearing within the county in which the bridge is located, with due notice given pursuant to KRS Chapter 424. The public hearing shall be held no later than sixty (60) days prior to the date the project is commenced or contracted, whichever is earlier.
    2. The requirements of paragraph (a) of this subsection shall not apply to any emergency maintenance project that involves a covered wooden bridge if the project cost is less than fifty thousand dollars ($50,000).
  9. In addition to the requirements set forth in subsection (9) of this section, any project that involves the preservation, restoration, or maintenance of a covered wooden bridge shall require approval by the Kentucky Heritage Council prior to the date the project is commenced or contracted, whichever is earlier.

History. Enact. Acts 1980, ch. 323, § 1, effective July 15, 1980; 1982, ch. 396, § 45, effective July 15, 1982; 2004, ch. 164, § 1, effective April 21, 2004.

176.410. County or multicounty covered wooden bridge authority — Membership of authority — Duties and functions of authority.

  1. Except as provided by KRS 176.400 , at the request of citizens or organizations of a county or multicounty region, the Heritage Division of the Kentucky Heritage Council shall certify to the Governor the creation of a county or multicounty covered wooden bridge authority for that county or multicounty region.
    1. An authority shall consist of members appointed as follows: (2) (a) An authority shall consist of members appointed as follows:
      1. The Governor shall appoint one (1) member from each participating county, unless the authority has only one (1) participating county, in which case the Governor shall appoint three (3) members from the participating county; and
      2. The fiscal court of each participating county shall submit to the Governor a list of three (3) candidates, and the Governor shall appoint one (1) member from each list unless the authority has two (2) or fewer participating counties, in which case the Governor shall appoint two (2) members from each list.
    2. The members of an authority shall hold office for terms of four (4) years and until their successors are appointed and qualify except that the terms of office of the members first appointed shall be staggered. An authority may elect by majority voice officers deemed necessary by its members. A majority of the members shall constitute a quorum. An authority shall meet at the call of its chairman, but at least twice during each calendar year.
  2. An authority shall be dedicated to the preservation, restoration, and maintenance of all covered wooden bridges in the county or multicounty region for which it is created.
    1. For covered wooden bridges not open to vehicular traffic, the duties and functions of an authority shall be to:
      1. Review, recommend, and administer projects and programs to insure the proper preservation, restoration, and maintenance of covered wooden bridges in the county or multicounty region for which it is created.
      2. Advise, consult, and cooperate with state, local, and national officials and agencies, and with the Heritage Division of the Kentucky Heritage Council as provided by KRS 176.400 and 176.410 , to accomplish the purposes for which the authority is established.
    2. For covered wooden bridges open to vehicular traffic, the duties and functions of an authority shall be to:
      1. Make recommendations to the Transportation Cabinet and local officials on the proper preservation, restoration, and maintenance of covered wooden bridges in the county or multicounty region for which it is created.
      2. Advise, consult, and cooperate with state, local, and national officials and agencies to accomplish the purposes for which the authority is established.
  3. An authority may:
    1. Accept grants or other funds or property from any source, public or private;
    2. Enter into such contractual relationships as may be necessary;
    3. Acquire real property, by gift or devise or by purchase pursuant to the provisions of KRS 45A.045 , and hold the same in the name of the Commonwealth for the use and benefit of the authority;
    4. Adopt rules and regulations necessary to the performance of its duties and functions.
  4. Members of an authority may be reimbursed in accordance with the provisions of KRS Chapters 44 and 45 for actual and reasonable expenses incurred in the furtherance of the authority’s activities.
  5. The receipt, control, and expenditure of funds shall be subject to the general provisions of the Kentucky Revised Statutes governing financial administration of state agencies.
    1. For covered wooden bridges not open to vehicular traffic, each authority shall develop a program for the preservation, restoration, and maintenance of those covered wooden bridges in the county or multicounty region for which it was established. It shall select the bridges to be preserved, restored, or maintained within a biennium and shall prepare estimates of the cost of preservation, restoration, or maintenance within that biennium. (7) (a) For covered wooden bridges not open to vehicular traffic, each authority shall develop a program for the preservation, restoration, and maintenance of those covered wooden bridges in the county or multicounty region for which it was established. It shall select the bridges to be preserved, restored, or maintained within a biennium and shall prepare estimates of the cost of preservation, restoration, or maintenance within that biennium.
    2. The program developed by an authority shall be submitted to the Heritage Division of the Kentucky Heritage Council. Upon approval by the division, the authority shall submit its program as its biennial budget request.
    3. When an appropriation is made to an authority to fund its program for the preservation, restoration, and maintenance of covered wooden bridges, title to all covered wooden bridges to be preserved, restored, or maintained under its authority shall be transferred to the authority. Preservation, restoration, and maintenance of covered wooden bridges shall comply with the program approved by the Heritage Division of the Kentucky Heritage Council and shall be administered by the authority. Each authority is authorized to enter into any agreement or contract necessary to implement an approved and funded program.
  6. For covered wooden bridges open to vehicular traffic, each authority shall develop a biennial list of recommendations for the preservation, restoration, and maintenance of those covered wooden bridges in the county or multicounty region for which it was created. This list shall be submitted biennially to the Transportation Cabinet and all fiscal courts within the authority’s jurisdiction.
  7. There is established the covered wooden bridge authority for the counties of Bracken, Fleming, Lewis, Mason, and Robertson as a pilot project.

History. Enact. Acts 1980, ch. 323, § 2, effective July 15, 1980; 1982, ch. 396, § 46, effective July 15, 1982; 1990, ch. 496, § 55, effective July 13, 1990; 2004, ch. 164, § 2, effective April 21, 2004.

176.415. Flags to be displayed at rest areas — Human trafficking hotline telephone number to be prominently displayed in each rest area restroom.

  1. The Department of Highways shall display the following flags at each rest area along the Commonwealth’s interstate and turnpike system:
    1. The flag of the United States of America, to honor our country and the democratic ideals of our forefathers;
    2. The flag of the Commonwealth of Kentucky, as specified by KRS 2.030 , to honor the Commonwealth and its citizens; and
    3. The flag of the National League of Families of American Prisoners of War and Missing in Southeast Asia, the black and white banner commonly known as the POW/MIA flag, which symbolizes America’s missing service members and our unwavering determination to account for them.
  2. The Department of Highways shall post in every restroom located on the premises of each rest area in the Commonwealth a printed sign in English and Spanish at least eleven (11) inches by fourteen (14) inches in size, with letters at least one (1) inch high, displaying the current telephone hotline number of the National Human Trafficking Resource Center or any federally funded successor entity. The sign shall be:
    1. Created using gender-neutral language supplied to the Department of Highways by the Cabinet for Health and Family Services; and
    2. Posted in a prominent place easily seen by patrons.

HISTORY: Enact. Acts 2011, ch. 28, § 1, effective June 8, 2011; 2017 ch. 171, § 3, effective June 29, 2017.

176.419. Definition of “project” and “six (6) year road plan” for KRS 45.245, 45.246, 176.420, 176.430, and 176.440. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 299, § 1, effective July 15, 1994; 1998, ch. 532, § 1, effective July 15, 1998; 2001, ch. 58, § 7, effective June 21, 2001) was repealed by Acts 2009, ch. 78, § 49, effective June 25, 2009.

176.420. Continuing study of highway needs by Department of Highways — Submission of six (6) year road plan to General Assembly — Electronic version. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 138, § 1, effective July 15, 1982; 1990, ch. 502, § 6, effective July 1, 1990; 1992, ch. 433, § 4, effective July 14, 1992; 1994, ch. 299, § 5, effective July 15, 1994; 1998, ch. 532, § 2, effective July 15, 1998; 2001, ch. 58, § 8, effective June 21, 2001) was repealed by Acts 2009, ch. 78, § 49, effective June 25, 2009.

176.430. Transportation Cabinet to study needs of highways and develop recommended six (6) year road plan that identifies individual transportation projects — Proposed biennial highway construction plan — Factors to be considered in development of each project — Monthly transmission of project data to General Assembly — Cabinet may expend funds necessary to complete authorized projects — Digitized maps.

  1. The Transportation Cabinet shall undertake a continuing study of the needs of the highways under its jurisdiction for the purpose of bringing existing facilities to acceptable standards or for the replacement of existing facilities when required.
  2. The Transportation Cabinet shall develop a recommended six (6) year road plan that identifies the individual transportation projects or portions thereof that are scheduled to be constructed in each county. The recommended six (6) year road plan shall include a recommended biennial highway construction plan. The recommended six (6) year road plan and recommended biennial highway construction plan shall be submitted to the General Assembly as required by KRS 48.110(6)(f). The six (6) year road plan shall include but shall not be limited to the following information for each project:
    1. The county name;
    2. The Kentucky Transportation Cabinet project identification number;
    3. The route where the project is located;
    4. The length of the project;
    5. A description of the project and the scope of improvement;
    6. The type of local, state, or federal funds to be used on the project;
    7. The stage of development for the design, right-of-way, utility, and construction phase;
    8. The fiscal year in which each phase of the project should commence;
    9. The estimated cost for each phase of the project; and
    10. The estimated cost to complete the project.
  3. The Transportation Cabinet shall identify projects in the six (6) year road plan that may, in accordance with this section, be advanced from later years, to maximize the use of all funds available to the cabinet, and to plan for the historical precedent of projects being delayed due to unforeseen circumstances. As required by KRS 48.110 , the Governor shall submit to the General Assembly, as part of the proposed biennial highway construction plan, a list of projects from the last four (4) years of the six (6) year road plan, not to exceed ten percent (10%) of the recommended biennial highway construction appropriation, which can be advanced if additional money is received and all projects included in the enacted biennial highway construction plan have been advanced or completed to the extent possible.
  4. In developing the design, right-of-way, utility, and construction phase of each project, the following factors shall be considered but are not exclusive:
    1. Alignment of existing roads;
    2. The width or elevation of existing roadways and shoulder surfaces;
    3. The width of rights-of-way;
    4. The cost of each phase of the project plus a separate identification of the cabinet’s administrative costs for each phase;
    5. The type and volume of traffic;
    6. The condition of structures and drainage;
    7. The accident rate;
    8. The geographic distribution of roadways to be constructed or reconstructed; and
    9. The social, economic, and environmental impact of the proposed project.
  5. The Transportation Cabinet shall, on a monthly basis, transmit electronically to the General Assembly through the Legislative Research Commission a report on all activity relating to all projects with open activity conducted by the Transportation Cabinet during the biennium. The data for each project shall contain all cabinet activity on projects funded through the road fund, including resurfacing and rural and secondary projects, and shall also include but not be limited to the following:
    1. District number and project item number, which shall remain in effect throughout the entire life of the project, subject to the following conditions:
      1. A project split into more than one (1) project during its life shall maintain the same item number with a suffix;
      2. Two (2) or more projects merged shall be identified by the new merged project maintaining the project item number of one (1) of the projects being merged. The total cost of the merged project shall be set forth; and
      3. A project that has been merged with another project and all funds authorized for the initial project that is subsequently shifted to the new merged project shall remain in the six (6) year road plan and shall be identified with a cross reference to the superseded project and superseded project item number;
    2. The county name and county number;
    3. The route prefix, route number, and route suffix;
    4. Termini description including beginning milepoint and ending milepoint;
    5. Type of work;
    6. Length of the project in miles;
    7. Project authorization system number, date the project was authorized, the TD-10 number authorizing the project, and the amount authorized;
    8. Year the project was enacted in a six (6) year road plan, and the notation “A” if the project is active and the notation “I” if the project is inactive;
    9. The phase code “P” for the planning phase, “D” for the design phase, “R” for the right-of-way phase, “U” for the utility phase, and “C” for the construction phase;
    10. The original estimate, fund code, and fiscal year each phase is expected to begin as enacted in the six (6) year road plan;
    11. The current estimate, fund code, and fiscal year each phase is expected to begin;
    12. The status of funding for each phase;
    13. The date current information has been changed for each phase;
    14. The letting date for each phase;
    15. Total number of right-of-way parcels, deeds signed, suits filed, and right-of-way entries completed;
    16. The date right-of-way plans are to be submitted to the central office in Frankfort and the status of right-of-way plans;
    17. Total utility relocations to be completed and the actual number completed;
    18. The award date, the construction project code number, and the award amount for the construction phase;
    19. The total number of contract change orders issued for each phase, the date of the most recent change order, and the net change order amount for each phase;
    20. The name of the contractor, the contractor’s vendor number in the Statewide accounting system, current contract amount, and the current amount earned by the contractor;
    21. The estimated date for completion of the project, current percentage of work completed based upon time, and the actual contract completion date;
    22. The department’s engineer’s estimate for the project; and
    23. Total expenditures by phase.
  6. The department shall transmit on a monthly basis, electronic data to the General Assembly through the Legislative Research Commission on the activity on all state resurfacing projects and all rural secondary projects that shall include as much applicable information as possible as identified in subsection (5) of this section.
  7. In implementing the enacted biennial highway construction plan, the Transportation Cabinet may expend funds necessary to complete the projects authorized, amended only by variations necessitated by bid or unforeseen circumstances.
  8. The department shall pursue digitizing all Kentucky roads on a geographic information system as funds are made available by the General Assembly. The digitized maps shall merge map layers and text layers to produce maps that display geographic information and textual information detailing the six (6) year road plan as enacted by the General Assembly.

History. Enact. Acts 1982, ch. 138, § 2, effective July 15, 1982; 1990, ch. 502, § 7, effective July 1, 1990; 1992, ch. 433, § 5, effective July 14, 1992; 1994, ch. 299, § 6, effective July 15, 1994; 1998, ch. 532, § 3, effective July 15, 1998; 2009, ch. 78, § 20, effective June 25, 2009.

176.431. Transportation Cabinet’s authorization for demonstration road and bridge related projects in each fiscal year — Bidding process and basis of selection for projects — Annual report to Interim Joint Committee on Appropriations and Revenue.

    1. Notwithstanding any conflicting provisions of this chapter and KRS Chapters 45A and 177, each fiscal year, the Transportation Cabinet is authorized to utilize design/build procurement methods for up to: (1) (a) Notwithstanding any conflicting provisions of this chapter and KRS Chapters 45A and 177, each fiscal year, the Transportation Cabinet is authorized to utilize design/build procurement methods for up to:
      1. Five (5) major demonstration road and bridge related projects, with a total cost of each project not to exceed three hundred million dollars ($300,000,000); and
      2. Ten (10) demonstration road and bridge related projects, with a total cost of each project not to exceed seventy-five million dollars ($75,000,000).
    2. The projects outlined in this subsection shall be identified in the biennial highway construction plan.
  1. For procurement purposes, the Transportation Cabinet shall utilize a qualifications- based bidding process within the context of the provisions of this chapter. The projects shall be selected based on engineering factors that determine a design/build process will provide the best value for the Commonwealth. Factors to consider may include but not be limited to the following: project delivery schedule, technical complexity, constructability, and estimated project cost.
  2. The secretary of the Transportation Cabinet shall determine the nature and scope of each design/build project, and shall submit a report identifying and detailing the demonstration road and bridge related projects, including the estimated cost savings, to the Interim Joint Committee on Appropriations and Revenue by December 1 of each fiscal year.

HISTORY: Enact. Acts 2013, ch. 67, § 1, effective June 25, 2013; 2018 ch. 55, § 1, effective July 14, 2018.

Legislative Research Commission Note.

(6/25/2013). Under the authority of KRS 7.136(1), the Reviser of Statutes has inserted subsection designations into this statute. The words in the text were not changed.

176.432. Fiscal-year-to-date funding status reports on highway construction contingency account

  1. The department shall transmit, on a quarterly basis, electronic data to the General Assembly through the Legislative Research Commission giving a fiscal-year-to-date funding status report on the highway construction contingency account established under KRS 45.247 .
  2. The report shall include:
    1. The available budget of the account;
    2. Authorizations by funding code category;
    3. The total available balance in the account; and
    4. For the most recent quarter, a listing of individual projects and agreements authorized, including the location, a physical description, and amount of authorization.

HISTORY: 2019 ch. 45, § 1, effective June 27, 2019.

176.433. State contingency funding code for six-year road plan.

The Transportation Cabinet shall create a new funding code to be used in the six (6) year road plan to be known as state contingency funds and the abbreviation the cabinet shall use for this funding code shall be SC. The state contingency funding code shall be in addition to all other funding codes used by the cabinet in the six (6) year road plan and shall be used to identify all projects funded with moneys from the highway construction contingency account established under KRS 45.247 .

History. Enact. Acts 1998, ch. 532, § 8, effective July 15, 1998; 2019 ch. 45, § 2, effective June 27, 2019.

176.435. Electronic information databases on construction programs. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 433, § 8, effective July 14, 1992) was repealed by Acts 1998, ch. 532, § 9, effective July 15, 1998.

176.440. State highway engineer to provide cost estimate for any project that legislator desires in six year road plan.

The state highway engineer shall provide a cost estimate for any project that a member of the General Assembly desires to be considered for advancement or inclusion in the six (6) year road plan.

History. Enact. Acts 1982, ch. 138, § 3, effective July 15, 1982; 1990, ch. 502, § 8, effective July 1, 1990; 1992, ch. 433, § 6, effective July 14, 1992; 1994, ch. 299, § 7, effective July 15, 1994; 1998, ch. 532, § 4, effective July 15, 1998; 2001, ch. 58, § 17, effective June 21, 2001; 2009, ch. 78, § 21, effective June 25, 2009.

176.450. Secretary’s emergency fund — No project to be undertaken if not included in program — Exceptions — Additional projects to be submitted to interim joint committee on transportation — Cost limit for preliminary analysis of prospective projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 138, § 4, effective July 15, 1982) was repealed by Acts 1990, ch. 502, § 10, effective April 11, 1990.

176.460. Project to be commenced in biennium for which it is planned — Effect of failure to commence — Exceptions — Reinstatement of funds for delayed project — Limitations on application of KRS 176.420 to 176.460. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 138, § 5, effective July 15, 1982; 1990, ch. 502, § 9, effective April 11, 1990; 1992, ch. 433, § 7, effective July 14, 1992; 1994, ch. 299, § 8, effective July 15, 1994) was repealed by Acts 1998, ch. 532, § 9, effective July 15, 1998.

176.470. Annual report on status of highway projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 299, § 9, effective July 15, 1994) was repealed by Acts 1998, ch. 532, § 9, effective July 15, 1998.

176.500. Mississippi River Parkway Commission of Kentucky — Members — Duties — Reimbursement for expenses.

  1. The Mississippi River Parkway Commission of Kentucky is hereby established to serve as the local coordinating agency for the development of the Great River Road along the Mississippi River from Canada to the Gulf of Mexico. The commission shall be attached to the Office of the Secretary of the Tourism, Arts and Heritage Cabinet for administrative purposes.
  2. The commission shall consist of the following ten (10) members: Four (4) citizen members, appointed by the Governor, and consisting of one (1) member from each of the four (4) counties that border the Mississippi River, who shall serve a term of four (4) years and may serve until a successor is appointed. Four (4) members shall be the respective county judges/executive of Ballard, Carlisle, Fulton, and Hickman Counties in Kentucky. Other members shall be the secretary of the Tourism, Arts and Heritage Cabinet or his designee; and the secretary of the Transportation Cabinet, or his designee. The commission shall annually elect a chairman and shall meet quarterly or upon call of the chairman with ten (10) days’ written notice. Six (6) members present shall constitute a quorum for the official conduct of business. The commission may enter into contracts with the Purchase Area Development District to provide administrative services.
  3. Members shall receive no compensation but shall be reimbursed according to state regulations for actual and necessary expenses incurred in conducting commission business.
  4. The commission shall assure that the proper direction is taken in developing a corridor of scenic, historical, and archaeological significance through the Kentucky counties of Ballard, Carlisle, Hickman, and Fulton.

History. Enact. Acts 1986, ch. 99, § 1, effective July 15, 1986; 1990, ch. 114, § 1, effective July 13, 1990; 1996, ch. 194, § 57, effective July 15, 1996; 1998, ch. 48, § 15, effective July 15, 1998; 2005, ch. 95, § 39, effective June 20, 2005; 2009, ch. 16, § 53, effective June 25, 2009.

176.505. Motorcycle Advisory Commission for Highway Safety established.

  1. The Motorcycle Advisory Commission for Highway Safety is established as an advisory body to assist the Transportation Cabinet in ensuring that highway design, construction, and maintenance policies and procedures consider the specific needs of motorcyclists.
  2. The commission shall examine Transportation Cabinet policies and procedures in areas including but not limited to crash barrier design, road maintenance practices, road construction, traffic control devices, and intelligent transportation systems, and recommend changes where necessary.

History. Enact. Acts 2003, ch. 122, § 1, effective June 24, 2003.

176.506. Membership of commission — Officers — Meetings.

  1. The Motorcycle Advisory Commission for Highway Safety shall be composed of seven (7) members, appointed as follows:
    1. One (1) representative of the Office of Project Delivery and Preservation within the Kentucky Transportation Cabinet’s Department of Highways, appointed by the Governor;
    2. One (1) representative of the Office of Project Development within the Kentucky Transportation Cabinet’s Department of Highways, appointed by the Governor;
    3. One (1) representative of the Department of Kentucky State Police, appointed by the Governor;
    4. Two (2) representatives of the Kentucky Motorcycle Association, to be appointed by the Governor from a list of five (5) nominees selected by the association;
    5. One (1) member of the Kentucky Motorcycle Safety Education Advisory Commission, appointed by the Governor; and
    6. One (1) representative of the Kentucky Association of Highway Contractors, to be appointed by the Governor from a list of five (5) nominees selected by the association.
  2. Members of the Motorcycle Advisory Commission for Highway Safety shall serve a term of four (4) years. Sitting members shall be eligible to succeed themselves.
  3. Commission members shall receive no compensation for their services and shall not be compensated for expenses incurred from travel or in connection with the performance of their duties as commission members.
  4. The commission shall elect its chair and vice chair from its membership.
  5. The commission shall meet quarterly or upon the call of the chair or the request of the secretary of the Transportation Cabinet.
  6. A majority of the members of the commission constitutes a quorum and the commission may make recommendations only at meetings where a quorum is present.
  7. The commission shall keep a record of its meetings and recommendations.
  8. For administrative purposes, the commission shall be attached to the Office of Highway Safety within the Department of Highways.

History. Enact. Acts 2003, ch. 122, § 2, effective June 24, 2003; 2007, ch. 85, § 184, effective June 26, 2007; 2009, ch. 13, § 8, effective June 25, 2009.

176.510. Off-road Motorcycle and ATV Commission established — Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 139, § 1, effective June 20, 2005) was repealed by Acts 2006, ch. 152, § 16, effective July 12, 2006.

176.511. Membership of Off-road Motorcycle and ATV Commission — Meetings — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 139, § 2, effective June 20, 2005) was repealed by Acts 2006, ch. 152, § 16, effective July 12, 2006.

176.520. Location of construction waste sites.

Waste sites identified in KRS 176.050 shall be on property owned by the state or a city, county, or other governmental agency and have the potential to be turned into industrial parks under the provisions of KRS 176.050 .

History. Enact. Acts 1998, ch. 181, § 2, effective March 27, 1998.

176.525. Use of identified potential industrial park sites as construction waste sites — Deeding of site to local government — Consultation with local government officials in site identification.

  1. During the construction phase of a new road construction project, potential industrial park sites identified during the design phase shall be used as waste sites by the department or the contractor who was awarded the project. Waste shall include, but not be limited, to nonhazardous nonsoluble construction material, steel, concrete, brick, asphalt, rock, dirt, or other fill material, but shall not include vegetation resulting from land clearing and grubbing, utility line maintenance, seasonal and storm-related cleanup, or any hazardous material or hazardous waste as defined in KRS 174.405 .
  2. The purpose of using the site as a repository for waste is to reduce the cost associated with the road project and to level or otherwise create a site sufficient to support industrial activities. The department or the department’s contractor shall use stabilization methods to reduce significant differential settling of the waste. The department or the department’s contractor shall continually grade and compact the waste site, and design surface contours to minimize water run-off, until the site is stable, final grading is complete, and the site is ready for building to begin on an industrial park.
  3. If a waste site is owned by the state, the state shall deed in fee simple the area used as a waste site to an interested city, county, or other governmental agency upon completion of the highway project after the final pay estimate has been processed.
  4. The department shall consult with the appropriate elected officials affected by new routes proposed to be constructed in the six (6) year road plan. The department shall consult with the appropriate elected officials to identify waste sites along the proposed new routes that may be potential industrial park sites.

History. Enact. Acts 1998, ch. 181, § 3, effective March 27, 1998; 2009, ch. 78, § 22, effective June 25, 2009.

176.990. Penalties.

  1. Any person who violates the provisions of KRS 176.122 to 176.128 shall be guilty of a misdemeanor and shall upon conviction be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Each day in which work is performed or materials furnished in violation of the provisions of KRS 176.122 to 176.128 shall constitute a separate offense.
  2. In addition to any other penalties provided in this section, any officer, agent or employee of the department who performs work or services beyond the right-of-way limits of public road or any person who accepts such work or services shall reimburse the department for all costs of the work or services performed and for any materials which shall have been used in the performance of the work or services.

History. Enact. Acts 1962, ch. 154, §§ 4, 5.

176.991. Penalties.

  1. Any person who willfully burns, defaces or destroys a covered bridge designated as a state shrine by the Kentucky Heritage Commission or by the heritage division shall be fined not more than five hundred dollars ($500) or confined in the county jail for not less than thirty (30) days or more than six (6) months or both. This shall be in addition to other penalties.
  2. Any person who exceeds the posted weight limits for a covered wooden bridge designated as a state shrine shall be fined not less than ten dollars ($10) or more than five hundred dollars ($500). This shall be in addition to other penalties.

History. Enact. Acts 1974, ch. 364, § 3; 1976, ch. 170, § 3; 1982, ch. 396, § 47, effective July 15, 1982.

CHAPTER 177 State and Federal Highways — Limited Access Facilities — Turnpikes — Road Bonds — Billboards — Recyclers

Definitions

177.010. Definitions for KRS 177.010 to 177.890.

As used in KRS 177.010 to 177.890 , unless the context otherwise requires:

  1. “Department” means Department of Highways of the Commonwealth of Kentucky;
  2. “Construct” includes reconstruct and improve;
  3. “Roads” includes rural roads; highways; bridges and bridge approaches; city streets, viaducts, and bridges;
  4. “Rural and secondary roads” includes:
    1. A county road as defined in KRS 178.010(1)(b);
    2. A publicly-owned road other than a state or federal highway, that is outside a city, town, or urban area having a population of twenty-five hundred (2,500) or more;
    3. A road that is classified as part of the rural secondary road system by the Department of Highways;
  5. “Public grade crossing” means the at-grade intersection of a railroad track or tracks and a road or highway that has been dedicated to public use and incorporated into either the state primary road system or the highway or road system of a county or municipality;
  6. “Cabinet” means the Kentucky Transportation Cabinet; and
  7. “Secretary” means the secretary of the Kentucky Transportation Cabinet.

History. 4356t-17-2e: amend. Acts 1964, ch. 23, § 1; 1992, ch. 229, § 8, effective July 14, 1992; 1996, ch. 238, § 1, effective July 15, 1996; 2002, ch. 64, § 1, effective July 15, 2002.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Construct Defined.
  4. Federal Aid for Highway Construction.
1. Constitutionality.

The toll road act (KRS Ch. 177) does not violate the mandatory provision of Const., § 177 which declares that the Commonwealth should not construct a railroad or other highway since Const., § 157A nullified the prohibition in Const., § 177 in relation to public roads and restored the previous unrestricted power of the Commonwealth in relation to public roads. Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

2. Purpose.

The intent and purpose of the progressive laws has been to put complete control, maintenance and supervision of state highways in the department of highways. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

3. Construct Defined.

The word “construct” has common usage and means “to build, form or make” or make better the original status and not to preserve or remedy the original status. Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

4. Federal Aid for Highway Construction.

State acceptance of federal aid for highway construction does not create any incumbrance or claim upon or against funds derived from “license, excise taxes and fees” arising from sale and use of motor vehicles, gasoline and other motor fuels. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Opinions of Attorney General.

The state has reserved to itself control and regulation of highways thereby precluding counties from acquiring the implied authority to grant franchises for use of highway rights of way. OAG 64-44 .

Research References and Practice Aids

Cross-References.

Allocation of costs of eliminating grade crossing, KRS 277.065 .

Commonwealth not to construct highways, Const., § 177.

Highway construction lakes, KRS 150.625 .

Injury to plants on right of way of state roads, punishment for, KRS 433.750 .

Motor fuel tax, allocation to road fund, KRS 47.010 .

Public utility companies entitled to erect transmission lines and appliances along or across public roads and waters, KRS 416.140 .

Regulation of height and weight limits on specified roads, KRS 189.222 .

Regulation of speed and load limits of trucks, KRS 189.230 .

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

Highways

177.020. State primary roads to be designated and controlled by the Department of Highways — Notice to fiscal court and affected citizens — Rural secondary road system — Maintenance — Administrative regulations.

  1. The state primary road system shall consist of such public roads and city streets within the state as the Department of Highways determines shall be established, constructed, or maintained by the Department of Highways.
  2. The department shall, in its discretion, determine which public roads, or city streets, shall be established, constructed, or maintained by it, and shall determine the type of construction or maintenance for that road or city street.
  3. In the establishment of the state primary road system, the Department of Highways is authorized to select new routes, deviate from an existing route whenever it deems such deviation proper, eliminate from the state primary system roads or city streets which have been replaced as proper part of the system by the construction of a new facility or the selection of a new route. No permanent ingress or egress ramp of the state primary road system on fully controlled access facilities shall be closed, except for repairs, unless a public hearing is first held in the area to be affected by the closing. The Department of Highways shall, at least twenty (20) days before the hearing, advertise in a newspaper of general circulation in the area to be affected by the closing, the date, time, and place of the hearing.
  4. Prior to the advertisement for bids on any highway construction project, the Department of Highways shall meet with the fiscal court in the jurisdiction of the construction project for the purpose of advising the fiscal court of any state road or road segment which the department may seek to eliminate from the state primary road system upon completion of that highway construction project. The requirement of this subsection shall be in addition to the requirements of subsection (5) of this section.
  5. The department shall notify the fiscal court of the county at least four (4) months before it eliminates a road, road segment, bridge, or street in that county from the state primary road system. Upon receiving notice, the fiscal court may reject title and notify the department that the road shall not become part of the county road system. If the fiscal court declines, the department shall give notice to all private persons entitled to a necessary access over this road of their rights under this chapter; and, by petition of any private party entitled to such access, the road shall be deemed a discontinued state road and shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties involved. In the absence of such petition, title shall be transferred to the owner or owners of the tract or tracts of land to which the road originally belonged.
  6. As used in this section, the term “rural secondary roads” shall mean the system of roads in this state which are usually considered farm-to-market roads and that are classified as part of the rural secondary road system by the Department of Highways. The roads in the rural secondary system shall be maintained with the proceeds of the provisions of KRS 177.320(1) and in no case shall the rural secondary system, as defined in this subsection, be less than eleven thousand eight hundred (11,800) miles.
  7. The establishment, construction, or maintenance of the state primary road system shall be under the direction and control of the Department of Highways. The commissioner of highways is authorized to adopt regulations necessary to the administration of this authority.

History. Enact. Acts 1964, ch. 23, §§ 2, 3; 1972, ch. 242, § 1; 1974, ch. 74, Art. IV, § 20(1); 1980, ch. 243, § 1, effective July 15, 1980; 1986, ch. 174, § 18, effective July 15, 1986; 1992, ch. 80, § 1, effective July 14, 1992; 2005, ch. 98, § 6, effective June 30, 2005; 2009, ch. 13, § 9, effective June 25, 2009.

Compiler’s Notes.

A former KRS 177.020 (4356t-5, 4356t-17-2a to 4356t-17-2d) was repealed by Acts 1964, ch. 23, § 3.

NOTES TO DECISIONS

Cited:

Zanella v. Grand Rivers, 687 F. Supp. 1105, 1988 U.S. Dist. LEXIS 5299 (W.D. Ky. 1988 ).

DECISIONS UNDER PRIOR LAW

Analysis

  1. Location.
  2. Addition of Roads.
  3. Control of County Road.
  4. Relinquishment of State Roads.
  5. City Construction.
  6. Construction and Maintenance.
  7. Ferries.
  8. Diversion of Water.
  9. Liability to Abutting Owner.
1. Location.

The location of road, which was to be part of primary road system, was for the state highway engineer and state highway commission (now Department of Highways) to decide, subject to approval of federal officials, and not for fiscal court. Black v. Road Comm'rs of Crittenden County, 201 Ky. 650 , 258 S.W. 94, 1924 Ky. LEXIS 613 ( Ky. 1924 ).

2. Addition of Roads.

The addition of new roads to the primary system did not impair a vested right. Indeed, the abolition of a road was within the power of the state. State Highway Com. v. Mitchell, 241 Ky. 553 , 44 S.W.2d 533, 1931 Ky. LEXIS 114 ( Ky. 1931 ).

3. Control of County Road.

Under law that provided that the department designated and controlled state primary roads the Department of Highways had the power to take over any county road and make it a part of the state primary road system, and having done so, could by its own order discontinue such road. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

4. Relinquishment of State Roads.

Laws providing that department could deviate from established road whenever proper and that permitted transfer of road from state to county impliedly authorized the Department of Highways to discontinue and relinquish to the counties any part of the state system of primary roads as it deemed proper, and after such relinquishment the Department of Highways had no further duty to repair or maintain. However, the relinquishment had to be by order or formal declaration, of which the county had notice. Jefferson County v. Department of Highways, 299 Ky. 358 , 185 S.W.2d 546, 1945 Ky. LEXIS 429 ( Ky. 1945 ).

5. City Construction.

Until the state exercised its authority, the city could have constructed a street which was part of state highway project, and have charged cost to abutting property owners. Mullinax v. Middlesboro, 247 Ky. 297 , 57 S.W.2d 11, 1933 Ky. LEXIS 393 ( Ky. 1933 ).

6. Construction and Maintenance.

The state was not compelled, when it undertook to construct a state highway project, to construct all of it at that time. It could construct any portion as it saw fit, leaving the rest to be completed at some future time. Mullinax v. Middlesboro, 247 Ky. 297 , 57 S.W.2d 11, 1933 Ky. LEXIS 393 ( Ky. 1933 ).

The commission (now department) had all power, except where expressly or by clear implication it was denied, in determining as to how a state highway project was to be constructed and maintained. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

Trial court erred in allowing a highway construction contractor to proceed, albeit unsuccessfully, with an action to recover excess costs from the Kentucky Transportation Cabinet; an administrative appeals procedure was prescribed for such disputes, an, furthermore, the contractor had already elected an administrative remedy, which it had not abandoned at the time of filing its contract action. Geupel Constr. Co. v. Commonwealth Transp. Cabinet, 136 S.W.3d 43, 2003 Ky. App. LEXIS 39 (Ky. Ct. App. 2003).

7. Ferries.

The state highway commission (now Department of Highways) could have established and operated permanently a free ferry, to carry a state highway project over an intervening stream. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

The commission (now department) could have established and operated a free ferry within one mile of an existing ferry operating under franchise. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

8. Diversion of Water.

The Department of Highways had no right to make any change in the construction of a road which would have diverted water from its natural course and would have cast it upon the land or an adjacent property owner, and could have been enjoined from so doing or ordered to abate the condition if it had been already done so. Department of Highways v. McKinney, 291 Ky. 1 , 162 S.W.2d 179, 1942 Ky. LEXIS 156 ( Ky. 1 942 ).

9. Liability to Abutting Owner.

Where closing of old road was conditioned on opening of new road, the old road was not closed if the new road was not opened and persons placing obstructions on old road were liable in damages to persons denied ingress and egress to their property. Hays v. Madison County, 274 Ky. 116 , 118 S.W.2d 197, 1938 Ky. LEXIS 239 ( Ky. 1938 ).

Where county conveyed county road to state as right of way for state primary road, and state Department of Highways constructed a new road over such right of way, the county taking no part in the construction of the road, any liability for damages to an abutting property owner resulting from lowering the grade of the road fell on the state, and not on the county. Philpott v. Monroe County, 293 Ky. 236 , 168 S.W.2d 749, 1943 Ky. LEXIS 594 ( Ky. 1943 ).

Opinions of Attorney General.

Neither a city nor a county has the power to change the name or number of state roads. OAG 70-717 .

Research References and Practice Aids

Cross-References.

Bridges and tunnels, when to become part of primary road system, KRS 180.280 , 181.050 .

Regulation of ferries, KRS 280.130 .

State planning board to submit plans for highway improvement, KRS 147.070 , 147.100 .

177.021. Department may acquire rights-of-way for primary system — Power of cities.

The Department of Highways is authorized to acquire and bear the cost of new or additional rights-of-way needed for establishment, improvement, construction, reconstruction, maintenance or repair of a public road or a city street which has been designated by the Department of Highways as a part of the state primary road system. All cities are authorized to deed any right-of-way owned by such cities to the Commonwealth of Kentucky if the right-of-way is to become part of the state primary road system.

History. Enact. Acts 1964, ch. 23, § 2.

NOTES TO DECISIONS

  1. Liability to Abutting Owners.
  2. Validity of Designation.
1. Liability to Abutting Owners.

Where property is acquired by the state highway department under this section, the state is liable to abutting property owners for any property taken, but is not liable when grade is changed but, no property is taken. Ganote v. Commonwealth, Dep't of Highways, 409 S.W.2d 165, 1966 Ky. LEXIS 48 ( Ky. 1966 ).

2. Validity of Designation.

Where the deed between the city and the commonwealth merely evidenced an intent that the right of way become a part of the state primary road system in compliance with this section, but did not contain any operative statement that the right of way on the city street was designated as a part of the state primary road system, the ordinance passed by the city council made no reference to designation of the street, and the contract between the Department of Highways and the city did not refer to any designation by the Commissioner of Highways, there was no evidence of a valid exercise of the Commissioner’s discretionary power of designation of the city street as part of the state primary road system; therefore, the commonwealth did not legally assume any responsibility with regard to the maintenance and repair of the city street. Zanella v. Grand Rivers, 687 F. Supp. 1105, 1988 U.S. Dist. LEXIS 5299 (W.D. Ky. 1988 ).

177.025. Removal of snow from certain state roads by county plows on order of county judge/executive.

The provisions of KRS 67.078 and 67.710 notwithstanding, a county judge/executive may order county plows to remove snow from any state road the plow must travel on to reach a county road to be cleared. The county judge/executive shall not be required to declare an emergency for him to order county plows to remove snow from state roads.

History. Enact. Acts 1994, ch. 374, § 1, effective July 15, 1994.

177.030. Cost of construction to be borne by state — State may accept donations.

The cost of construction of the primary roads shall be borne entirely by the state, or by the state and federal government, where the roads are built in cooperation, and they shall be maintained entirely by the state, but any county, municipality or person may make donations to the state in aid of the construction or maintenance of any road. The state may accept any donation on the terms and conditions prescribed by the department.

History. 4356t-5.

NOTES TO DECISIONS

  1. Construction.
  2. County Bond Issue for Donation.
  3. Donation of Traffic Light.
  4. Reimbursement by State.
1. Construction.

The enactment of this section did not repeal statutes then existing authorizing cities to construct and maintain their streets according to any plans then provided by law. Shaver v. Rice, 209 Ky. 467 , 273 S.W. 48, 1925 Ky. LEXIS 523 ( Ky. 1925 ). See Wickliffe's Ex'rs v. Smith, 225 Ky. 796 , 10 S.W.2d 291, 1928 Ky. LEXIS 880 ( Ky. 1928 ).

2. County Bond Issue for Donation.

A county may donate to the state, for construction of public highway through the county as part of proposed state highway, one-half of proceeds of road and bridge bond issue originally intended for use under repealed state aid plan. Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45 , 229 S.W. 139, 1921 Ky. LEXIS 284 ( Ky. 1921 ).

Proceeds of bond issue, voted on previous fiscal court order allotting certain proportion to named roads, cannot be spent on any road in amount in excess of that fixed in pre-election order, even to get benefit of state aid. Reynolds v. Bracken County, 192 Ky. 180 , 232 S.W. 634, 1921 Ky. LEXIS 42 ( Ky. 1921 ).

A part of proceeds of bond issue may be donated by county to state to construct an intercounty seat road, to be afterwards maintained by the state. Wilson v. Fiscal Court of Caldwell County, 194 Ky. 737 , 240 S.W. 743, 1922 Ky. LEXIS 239 ( Ky. 1922 ).

A county may issue bonds, when assented to by the voters, to contribute to construction of road project which the state and federal governments have undertaken. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

Proceeds of county bond issue for proposed road which as finally located was part of primary state highway system, may be applied to route designated by state highway engineer and Department of Highways, rather than to different route chosen by order of fiscal court. Black v. Road Comm'rs of Crittenden County, 201 Ky. 650 , 258 S.W. 94, 1924 Ky. LEXIS 613 ( Ky. 1924 ).

After county bond money has been paid to Department of Highways, upon agreement that state would supplement the fund and expend all on state primary system of roads in county, the county must be consulted as to expenditures and construction. State Highway Com. v. Mitchell, 241 Ky. 553 , 44 S.W.2d 533, 1931 Ky. LEXIS 114 ( Ky. 1931 ).

Where county held proceeds of bonds issued for road construction by state for 14 years and state declined to accept the money and construct the road, it could reasonably be assumed the project had been abandoned and county could use the proceeds to buy the bonds and cancel them. Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

Where county judge, pursuant to authority from fiscal court, agreed with Department of Highways that fund representing part of proceeds of bond issue to build roads should be paid to department if it constructed two bridges, and where department had expended large sums in doing the work, had completed one bridge and nearly completed the other, and it was shown that department would not have undertaken work except for agreement of county judge, department was entitled to order directing that the fund be paid to it, counties being authorized to make donation to state, notwithstanding that former policy, existing when bond issue was voted, requiring counties to bear one-half of cost of road construction, no longer prevails. Estill County v. Price, 287 Ky. 484 , 153 S.W.2d 924, 1941 Ky. LEXIS 559 ( Ky. 1941 ).

Where county offered to lend proceeds of road bond issue to state for construction of primary road through county, but state declined to accept loan on ground that it would create an unconstitutional state debt, whereupon the fiscal court entered an order “appropriating” the money to the Department of Highways, the transaction constituted a donation to the state which the county could not recover. Clay County v. Kentucky Dep't of Highways, 294 Ky. 638 , 172 S.W.2d 436, 1943 Ky. LEXIS 500 ( Ky. 1943 ).

3. Donation of Traffic Light.

Under Const., § 179 and this section, donation of a traffic light by a county constitutes a donation “in aid of the construction or maintenance” of roads. Grauman v. Department of Highways, 286 Ky. 850 , 151 S.W.2d 1061, 1941 Ky. LEXIS 337 ( Ky. 1941 ).

4. Reimbursement by State.

Law providing for the reimbursement of property owners of the city of Grayson for street improvement assessments paid by them in the construction of a street by the city to connect with a primary state highway, was special legislation and violated Const., § 59(29). Commonwealth v. Grayson, 278 Ky. 450 , 128 S.W.2d 770, 1939 Ky. LEXIS 436 ( Ky. 1939 ).

Cited:

Jefferson County v. Department of Highways, 299 Ky. 358 , 185 S.W.2d 546, 1945 Ky. LEXIS 429 ( Ky. 1945 ).

Research References and Practice Aids

Cross-References.

Credit of state may be pledged to any county for road purposes, Const., § 157a.

Public works costing $2,000 or more to be supervised by registered engineer or architect, KRS 322.360 .

Use of prisoners for road work, Const., § 253; KRS 197.130 .

177.035. Cost of relocation of publicly and privately owned utility equipment and appliances to be borne by department — Conditions.

  1. If the department determines that it is necessary for any fireplugs, pipes, mains, conduits, cables, wires, towers, poles, and other equipment and appliances, belonging to any municipality or a municipally owned utility, or any water district established pursuant to KRS Chapter 74, any water association established pursuant to KRS Chapter 273, any local school district, or any sanitation district established pursuant to KRS Chapter 220, to be removed or relocated on, along, over, or under a highway, in order to construct, reconstruct, relocate, or improve any highway, the municipality, municipally owned utility, water district, local school district, or the sanitation district shall relocate or remove them in accordance with the order of the department. The costs and expenses of relocation or removal required by this section, including the costs of installing facilities in a new location, and the cost of any lands, or any rights or interest in lands, and any other rights, acquired to accomplish the relocation or removal, shall be ascertained and paid by the department as a part of the cost of improving or constructing highways.
  2. The term “utility” as used in subsections (3) to (5) of this section shall mean any utility not referenced in subsection (1) of this section, and the term shall mean any utility as defined in KRS 278.010 .
  3. If a utility has facilities located within the public right-of-way pursuant to KRS 416.140 , the department may reimburse the utility the cost to relocate the utility’s facilities to a location either within or without the public right-of-way if the relocation is required due to a highway construction project, subject to the following conditions:
    1. The utility shall be required to submit to the department for the department’s approval a plan for relocating the utility’s facilities. The plan shall include:
      1. A proposal for the relocation, including plans and a cost estimate developed in accordance with department guidelines; and
      2. A reasonable schedule of calendar days for completing the relocation that has been agreed to by the department. If, due to circumstances beyond the utility’s control, the utility or the department cannot meet the specified completion date included in the plan, the department may grant an extension to the utility for a time period agreed upon by both parties; and
    2. The utility shall be required to have either:
      1. Entered into a written agreement with the department to include the relocation of the facilities as part of the department’s construction contract. The utility may, with the approval of the department, perform a portion of the relocation work under this subparagraph with contractors or employees of the utility; or
      2. Entered into a written agreement with the department for the utility to remove all of its facilities that conflict with the highway construction project, as determined by the department, prior to letting the construction contract. The utility may perform a portion or all of the relocation work under this subparagraph with contractors or employees of the utility.
  4. A utility that enters into an agreement with the department under subsection (3)(b) of this section shall be required to complete the relocation work in compliance with the schedule included in the plan required to be submitted under subsection (3)(a) of this section. The provisions of this subsection shall not apply if the department fails to undertake the highway construction project within the time period specified in the agreement, and in this instance, the department shall be required to reimburse the utility any allowable cost the utility has incurred to relocate its facilities in compliance with the plan approved by the department.
  5. The department shall reimburse a utility as authorized in subsection (3) of this section if the department is satisfied that the utility’s facilities have been relocated in conformance with the plan approved by the department. The utility shall have twelve (12) months from the completion date of the relocation, according to the schedule of calendar days, to submit a reimbursement request for relocation costs to the department.
  6. The provisions of this section shall not amend or affect in any way the provisions of KRS 179.265 .

History. Enact. Acts 1972, ch. 361, § 1; 1974, ch. 74, Art. IV, § 20(1); 1988, ch. 207, § 1, effective July 15, 1988; 1990, ch. 281, § 1, effective July 13, 1990; repealed, reenact., and amend. Acts 1994, ch. 112, § 1, effective March 29, 1994; 1994, ch. 279, § 2, effective July 15, 1994; 2004, ch. 154, § 1, effective July 13, 2004.

Compiler’s Notes.

The history of this section prior to the 1994 repeal and reenactment was (Enact. Acts 1972, ch. 361, § 1; 1974, ch. 74, Art. IV, § 20(1); 1988, ch. 207, § 1, effective July 15, 1988; 1990, ch. 281, § 1, effective July 13, 1990).

Acts 1994, ch. 279, § 7 provides, “In enacting Sections 1 to 4 of this Act, the General Assembly ratifies and confirms any prior actions on statutes contained in those sections by the Reviser of Statutes acting pursuant to the authority established by KRS 7.140 and 7.136 . Nothing in Sections 1 to 6 of this Act shall be construed under KRS 7.123(4) as appearing to affect any substantive law in the statute law of Kentucky, and the repeal and reenactments contained in Sections 1 to 5 of this Act shall not operate under KRS 446.260 to defeat any amendments in other acts of this session to statutes contained in those sections.”

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts ch. 112 and repealed and reenacted by 1994 Ky. Acts ch. 279. These Acts do not appear to be in conflict and have been codified together.

(9/10/90). Section 2 of the enrolled version of House Bill 301 of the 1990 Regular Session, 1990 Ky. Acts ch. 191, purported to amend KRS 177.035 , but the inclusion of that section of the bill was the result of an error in enrolling a Senate amendment which was not accepted by the House and from which the Senate subsequently receded. Pursuant to KRS 446.017 , Section 2 of the enrolled version of House Bill 301 is void and has been severed from that bill. The above statutory text is a recodification of KRS 177.035 , as amended by the 1990 Regular Session, without the amendment contained in Section 2 of House Bill 301. The original 1990 codification of KRS 177.035 and its accompanying note are superseded and without effect.

Opinions of Attorney General.

The plain import of the language of this section is that the relocation of utilities belonging to cities, water districts or sanitation districts shall be at the cost of the highway department, and this includes all utilities relocated after January 1, 1972. OAG 72-668 .

This section does not violate either section 177 or 230 of the Kentucky constitution. OAG 74-199 .

Research References and Practice Aids

Cross-References.

Relocation of utility facilities, cost to be paid by public, KRS 179.265 .

Water, gas and electric companies transmitting water, gas or electricity, construction and maintenance of lines and appliances, KRS 416.140 .

177.037. Community boundary signs — Commemorative boundary signs for city or unincorporated urban place.

  1. The Department of Highways may install and maintain signs recognizing the boundary of a city, town, or community whether incorporated or unincorporated. These signs shall be installed regardless of whether the community has a post office, if the Department of Highways had previously erected signs recognizing the city, town, or community. The signs shall be placed at the official community boundaries. If the community does not have official boundaries, the signs shall be installed at the community boundaries as determined by the built-up area.
  2. The department shall install and maintain signs at the boundaries of any city or an unincorporated urban place as defined in KRS 177.366 , regardless of whether the city or unincorporated urban place has a post office or zip code, if the city or unincorporated urban place:
    1. Submits a written request for not more than two (2) signs:
      1. To honor the birthplace of a person important to the city or unincorporated urban place; or
      2. To honor an event or accomplishment important to the city or unincorporated urban place; and
    2. Agrees to pay for the actual cost to make and install the signs.
  3. The department shall work with the city or unincorporated urban place to determine the appropriate place to install the signs required under subsection (2) of this section. If an agreement cannot be reached on the appropriate place to install the signs, the site selected by the city or unincorporated urban place shall take precedence and the department shall not prohibit and shall not delay the installation of the signs.
  4. Each city or unincorporated urban place requesting a sign under subsection (2) of this section shall be limited to two (2) signs. Requests for additional signs authorized under subsection (2) of this section in excess of two (2) by the same city or unincorporated urban place shall be consolidated into a single sign.
  5. All statutes to the contrary notwithstanding, the Transportation Cabinet shall amend its policies and administrative regulations in effect on July 15, 2002, to comply with the provisions of this section, and shall not subsequently adopt new policies or promulgate new administrative regulations to the contrary.

History. Enact. Acts 1990, ch. 191, § 1, effective July 13, 1990; 2002, ch. 298, § 2, effective July 15, 2002; 2014, ch. 92, § 248, effective January 1, 2015.

177.040. Roads through cities of fifth or sixth class; cost of construction. [Repealed.]

Compiler’s Notes.

This section (4356t-8) was repealed by Acts 1942, ch. 30, § 9.

177.041. City streets constituting connecting links for state and Federal highways, maintenance by state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 30, § 1) was repealed by Acts 1964, ch. 23, § 3.

177.042. Designation of city streets by commissioner of highways — Record — Statement to city.

The commissioner of highways on and after July 1, 1942, may designate such city streets or portions thereof, including viaducts and bridges, as in his discretion are connecting links of state or federal maintained highways or that he may in his discretion determine to be necessary feeder streets and necessary to produce an adequate system of highways. The Department of Highways shall prepare and cause a record of such city streets so designated and upon each such designation it shall furnish to each city a statement of the streets so designated in that city.

History. Enact. Acts 1942, ch. 30, § 2.

NOTES TO DECISIONS

1. Validity of Designation.

Where the deed between the city and the Commonwealth merely evidenced an intent that the right of way become a part of the state primary road system in compliance with KRS 177.021 , but did not contain any operative statement that the right-of-way on the city street was designated as a part of the state primary road system, the ordinance passed by the city council made no reference to designation of the street, and the contract between the Department of Highways and the city did not refer to any designation by the Commissioner of Highways, there was no evidence of a valid exercise of the Commissioner’s discretionary power of designation of the city street as part of the state primary road system; therefore, the commonwealth did not legally assume any responsibility with regard to the maintenance and repair of the city street. Zanella v. Grand Rivers, 687 F. Supp. 1105, 1988 U.S. Dist. LEXIS 5299 (W.D. Ky. 1988 ).

177.043. Powers of department as to designated city streets — Agreements.

On and after July 1, 1942, the Department of Highways may maintain and repair, construct and reconstruct under its control and supervision such city streets so designated by the commissioner of highways, and may make appropriations and expenditures out of its fund for such purposes. The department may enter into any and all contracts inclusive of agreements with cities and with any federal agencies authorized so to do for such purpose.

History. Enact. Acts 1942, ch. 30, § 3; 1950, ch. 90, § 1.

NOTES TO DECISIONS

1. Validity of Designation.

Where the deed between the city and the Commonwealth merely evidenced an intent that the right-of-way become a part of the state primary road system in compliance with KRS 177.021 , but did not contain any operative statement that the right-of-way on the city street was designated as a part of the state primary road system, the ordinance passed by the city council made no reference to designation of the street, and the contract between the Department of Highways and the city did not refer to any designation by the Commissioner of Highways, there was no evidence of a valid exercise of the Commissioner’s discretionary power of designation of the city street as part of the state primary road system; therefore, the Commonwealth did not legally assume any responsibility with regard to the maintenance and repair of the city street. Zanella v. Grand Rivers, 687 F. Supp. 1105, 1988 U.S. Dist. LEXIS 5299 (W.D. Ky. 1988 ).

Cited:

Perry v. Cumberland, 312 Ky. 375 , 227 S.W.2d 411, 1950 Ky. LEXIS 643 ( Ky. 1950 ); Hazard v. Main Street Realty Co., 262 S.W.2d 87, 1953 Ky. LEXIS 1070 , 41 A.L.R.2d 609 ( Ky. 1953 ).

177.044. Type of construction; plans and specifications; grade; designation of department as agent of city. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 30, § 4) was repealed by Acts 1962, ch. 155, § 1.

177.045. Conveyance of rights of way to state; acquisition of additional rights of way. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 30, § 5) was repealed by Acts 1964, ch. 23, § 3.

177.046. Traffic regulations on streets; signs, markers and signals; penalties; limits on duties of highway department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 30, § 6; 1950, ch. 90, § 2) was repealed by Acts 1964, ch. 35, § 2.

177.047. Permission of department required for obstructions or excavations in streets.

Any city or person who enters upon such designated city connecting link streets or rights of way thereof, for the purpose of laying conduits, pipes, poles or wires therein, thereon or thereunder or makes any obstruction thereon or any excavation thereunder, which necessitates any change in the condition or structure thereof, shall do so as provided by regulations prescribed by the Department of Highways. The Department of Highways may prescribe rules and regulations for the protection of city connecting link streets, under which such work shall be done, and require indemnity for any damage occasioned by work done under the regulations.

History. Enact. Acts 1942, ch. 30, § 7.

NOTES TO DECISIONS

1. Termination of Permission.

Even though telephone company alleged that it had procured permission of Department of Highways to construct and maintain telephone poles and lines on two streets in the city which had been designated as part of primary road system by department, action by the city in adopting two ordinances, one prohibiting erection and maintenance of poles, lines and wires on the two streets in question, and the other offering for sale a telephone franchise requiring removal of existing telephone poles and lines and prohibiting erection and maintenance of such installations on the two streets, was not arbitrary, capricious, oppressive or unreasonable. Mt. Vernon Tel. Co. v. Mt. Vernon, 313 Ky. 93 , 230 S.W.2d 451, 1950 Ky. LEXIS 818 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Power of department to regulate erection of public utility fixtures in or along highways, KRS 416.140 .

177.048. Routing of highways through fourth, fifth or sixth-class city to reach first or second-class city. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 180, § 1) was repealed by Acts 1964, ch. 23, § 3.

177.050. Construction of roads with county funds — Repayment to county.

If any county desires to construct any part of a public road before the state is prepared to construct it, such county shall ask the department for permission to do so. When such request is made the department shall immediately investigate the request, and if they find that the county has funds available to construct such road and will pay for the construction thereof, the department may take up the construction of such road, as soon as the county has taken such steps as the department requires to make available subject to its order sufficient funds to pay for the construction of the road. When the county has satisfied these requirements, the department may proceed to construct the road in the same way and under the same regulations that it constructs other roads. The department shall keep careful account of the money advanced by the county to the state, and when the project of which the road is a part has been completed, the state shall refund to the county the money advanced upon proper certification of the department, if the road is to be accepted by the commissioner of highways as a part of the state primary road system.

History. 4356t-11: amend. Acts 1964, ch. 88, § 1.

NOTES TO DECISIONS

  1. Advancement of Funds.
  2. Acceptance of Advancement.
1. Advancement of Funds.

Advancement by a county to the state for road purposes constitutes a “debt” within the meaning of Const., §§ 49, 50. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

2. Acceptance of Advancement.

The state may accept funds for roads advanced by county, if at the time the state issues certificates for repayment, there is a sufficient fund in state treasury not otherwise appropriated, anticipated or contracted against out of which the certificate may be paid, or if there will be available during the year in which the contract is made, from sources already provided, funds sufficient to meet not only that debt but the aggregate amount of all others outstanding and similarly or otherwise created. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

177.055. Construction and maintenance of urban roads and streets.

  1. An incorporated area or unincorporated urban place may elect, with the concurrence of the Department of Highways, to construct, reconstruct, or maintain urban roads and streets which are included in the Department of Highways’ state primary road system and are maintained by the Department of Highways.
  2. The Department of Highways cannot initiate the expenditures of funds allocated pursuant to KRS 177.365 on any roads or streets classified by the Department of Highways as being a part of the state primary road system as defined in KRS 177.020 .

History. Enact. Acts 1974, ch. 67, § 1.

177.057. Required consultation on highway access prior to purchase of property for school facility.

A local school district shall not purchase property for the construction of any school facility until the district consults with the Kentucky Transportation Cabinet, Department of Highways, Frankfort Office, to determine if the property to be purchased currently has adequate highway access or if highway access is planned for a future date by the Transportation Cabinet. If the property to be purchased does not currently have adequate highway access or if the Transportation Cabinet does not plan future highway access to the property, the cabinet shall so notify the local school district in writing.

History. Enact. Acts 1994, ch. 112, § 2, effective March 29, 1994.

177.060. Payment for right-of-way.

  1. Except as otherwise provided in this section and in KRS 177.070 , all cost of acquiring any necessary land or right-of-way for primary road purposes and all damages incurred shall be paid by the county.
  2. Temporary rights-of-way and private surfaced roads, other than those owned by the county, which are acquired for primary road purposes shall be paid for by the state.
  3. When a highway has been located by the department and a right-of-way procured by the county and accepted by the department, any additional right-of-way required by the department as a result of a change in the highway may be acquired by the department and shall be paid for by the state unless it is a road owned by the county.
  4. The cost of acquiring right-of-way for initial construction of industrial access roads, state park access roads and other roads the construction of which would best serve the interests of the Commonwealth in promoting economic and industrial growth shall be paid by the state.

History. 4356t-7: amend. Acts 1962, ch. 163.

NOTES TO DECISIONS

  1. Construction.
  2. Application.
  3. Liability of County.
  4. — Taking of Property.
  5. — Damage to Remaining Property.
  6. — Removal of Lateral Support.
  7. — Proper Construction.
  8. — Negligent or Improper Construction.
  9. — Joint.
  10. Payment of Right-of-Way.
  11. Liability of State.
  12. — Remedies.
  13. Contractor’s Liability.
  14. Fiscal Court Members.
  15. Nature of Action.
  16. Reformation of Deed.
  17. Measure of Damages.
  18. Contract by Fiscal Court.
1. Construction.

This section requires the county to pay for right-of-way taken for highway purposes whether it be acquired by contract or by condemnation proceedings, and even though it be acquired at the instance of the Department of Highways. Kentucky Bell Corp. v. Commonwealth, 295 Ky. 21 , 172 S.W.2d 661, 1943 Ky. LEXIS 184 ( Ky. 1943 ).

2. Application.

In applying this section it is necessary to observe all the paragraphs thereof. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

3. Liability of County.
4. — Taking of Property.

When the state or county takes land of individual for right-of-way and uses it for that purpose, the county is estopped to deny its liability for reasonable value of land taken, with incidental damages to balance of tract. Muhlenberg v. Ray, 215 Ky. 295 , 284 S.W. 1074, 1926 Ky. LEXIS 706 ( Ky. 1926 ).

County is liable to property owner for land taken by Department of Highways for right-of-way and ditches, where it is taken without owner’s knowledge or consent, and county accepted and used road. Metcalf v. Lyttle, 219 Ky. 488 , 293 S.W. 979, 1927 Ky. LEXIS 370 ( Ky. 1927 ).

This section imposes the duty of the county to obtain the right-of-way and to pay any damages incurred or awarded. Hunt-Forbes Const. Co. v. Robinson, 227 Ky. 138 , 12 S.W.2d 303, 1928 Ky. LEXIS 484 ( Ky. 1928 ).

A county may be sued for value of land taken for roads and damages incident to trespass, whether taking was directly by county or by state in construction of roads. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

Const., §§ 13 and 242 prohibit the actual taking of private property for public use without payment, and Const., § 242 allows compensation for injury or destruction of property unattended by an actual taking. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

County is liable for right-of-way taken for construction of highway. Crittenden County v. Towery, 264 Ky. 606 , 95 S.W.2d 233, 1936 Ky. LEXIS 367 ( Ky. 1936 ).

In action to recover damages resulting from taking of land for highway purposes, verdict must be by all 12 of jury. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

If right-of-way is not acquired by agreement, or through exercise of eminent domain, the county is liable for compensation to owner after taking of property. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

Const., § 242, and this section impose liability upon a county for land taken for road purposes; but that liability is limited to damages actually sustained by the owner. Leslie County v. Davidson, 270 Ky. 705 , 110 S.W.2d 652, 1937 Ky. LEXIS 145 ( Ky. 1937 ).

Since county has duty to furnish right-of-way, action for wrongful taking of land in connection with construction of state highway would not lie against state or its highway department, but rather against county. Department of Highways v. Parker, 306 Ky. 14 , 206 S.W.2d 73, 1947 Ky. LEXIS 952 ( Ky. 1947 ).

The Constitution and the statutes require that a county shall pay for road rights-of-way, whether acquired by contract or by condemnation proceedings. Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 ( Ky. 1952 ).

County is required to pay all costs of acquiring the necessary right-of-way for primary road systems and where a judgment therefor was rendered against the state Department of Highways the court should have ordered the county to indemnify such department. Commonwealth, Dep't of Highways v. Alexander, 388 S.W.2d 599, 1965 Ky. LEXIS 443 ( Ky. 1965 ).

5. — Damage to Remaining Property.

If, in construction of road, adjacent land is damaged, it will be construed as a taking or applying for a public use within meaning of Const., § 13 and the county will be liable therefor, unless the right to so injure or take is to be considered within the conveyance. Fallis v. Mercer County, 236 Ky. 315 , 33 S.W.2d 12, 1930 Ky. LEXIS 743 ( Ky. 1930 ).

With respect to the county, where there are resulting injuries which are of the nature of a taking of private property by the proper construction of a state highway, the county is liable. Ashland v. Queen, 254 Ky. 329 , 71 S.W.2d 650, 1934 Ky. LEXIS 79 ( Ky. 1934 ).

Const., § 242 allows compensation for injury or destruction of property unattended by an actual taking. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

County is liable for permanent, substantial trespass, or invasion, or direct injury, or consequential damage, to remaining land aside from that actually taken, where such act as in accordance with prudent plans of Department of Highways. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

Where owner, by deed reciting consideration of cash and contemplated benefits, conveys land to state for highway purposes, he cannot recover from county damages to remaining land thereafter caused by negligence of department of highways. Perry County v. Riley, 268 Ky. 325 , 104 S.W.2d 1090, 1937 Ky. LEXIS 461 ( Ky. 1937 ).

6. — Removal of Lateral Support.

The county is liable to property owner for damages sustained by removal of lateral support in cutting down grade, causing lot to slip away. Perry County v. Townes, 228 Ky. 608 , 15 S.W.2d 521, 1929 Ky. LEXIS 638 ( Ky. 1929 ).

County rather than the state was liable for the removal of lateral support of land of property owners as result of state highway construction where county assumed any liability that might arise out of claim based on failure of properly acquired right-of-way. Commonwealth, Dep't of Highways v. Thacker, 384 S.W.2d 79, 1964 Ky. LEXIS 75 ( Ky. 1964 ).

7. — Proper Construction.

Under this and related sections, if the department of highways damages property in the prudent construction of roads, the county should be made to pay therefor because of its duty to furnish the right-of-way. Floyd County v. West Virginia-Kentucky Hardware & Supply Co., 59 F.2d 895, 1932 U.S. App. LEXIS 3481 (6th Cir. Ky. 1932 ). See Perry County v. Townes, 228 Ky. 608 , 15 S.W.2d 521, 1929 Ky. LEXIS 638 ( Ky. 1929 ); Fallis v. Mercer County, 236 Ky. 315 , 33 S.W.2d 12, 1930 Ky. LEXIS 743 ( Ky. 1930 ); Barass v. Ohio County, 240 Ky. 149 , 41 S.W.2d 928, 1931 Ky. LEXIS 356 ( Ky. 1931 ).

Where road was constructed in a proper manner by the contractor and in accordance with the terms and conditions of this section, an obligation was imposed upon the county, not only to obtain the necessary right-of-way, but also to pay for any damages incurred by the property owners. Commonwealth, Dep't of Highways v. Thacker, 384 S.W.2d 79, 1964 Ky. LEXIS 75 ( Ky. 1964 ).

The county is liable both for “taking” damages, and for “resulting” damages to the extent that the latter are attributable to proper construction of the highway. Commonwealth, Dep't of Highways v. Alexander, 388 S.W.2d 599, 1965 Ky. LEXIS 443 ( Ky. 1965 ).

8. — Negligent or Improper Construction.

While the county is responsible, under this section, for the taking of and injury to property in the necessary and proper construction of a road by the Department of Highways, it is not liable for improper or negligent use or the creation of a nuisance by the commission. Barass v. Ohio County, 240 Ky. 149 , 41 S.W.2d 928, 1931 Ky. LEXIS 356 ( Ky. 1931 ).

County is not liable for damages caused by negligence or carelessness of contractor. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

Liability of county for condemnation damages in construction of state highway depends solely upon this section, and county is liable only for those damages incident to the taking of the property, unless county acts independently. County is not liable for negligent acts of the Department of Highways in construction work that cause further damage to adjacent property. Bader v. Jefferson County, 274 Ky. 486 , 119 S.W.2d 870, 1938 Ky. LEXIS 311 ( Ky. 1938 ).

A county is liable to the owner of land taken for highway purposes, or damaged by the proper construction of a highway, by the Department of Highways, but is not liable for negligent or improper construction by the department. Hopkins County v. Rodgers, 275 Ky. 778 , 122 S.W.2d 743, 1938 Ky. LEXIS 493 ( Ky. 1938 ).

This section did not impose liability upon county or city for injury to property abutting on road caused by negligence of W.P.A. workers, where county and city merely furnished right-of-way, entire work of construction was done by W.P.A., and road was not part of primary system of state roads. Perry County v. Tyree, 282 Ky. 708 , 139 S.W.2d 721, 1940 Ky. LEXIS 226 ( Ky. 1940 ).

This section does not require the county to compensate for damages where the Department of Highways lowered the grade of a dedicated street, thereby impairing egress and ingress. Cantrell v. Pike County, 255 S.W.2d 988, 1953 Ky. LEXIS 690 ( Ky. 1953 ).

9. — Joint.

County and city are jointly liable for damage resulting from construction of viaduct within city limits, as part of state highway project. Ashland v. Queen, 254 Ky. 329 , 71 S.W.2d 650, 1934 Ky. LEXIS 79 ( Ky. 1934 ).

10. Payment of Right-of-Way.

In suit to enjoin county bond issue for funding of warrants and notes, issued for acquisition of rights-of-way for state highway projects procured on command of state, the landowners, warrant and note holders, or a representative of such classes, should be made parties to suit, as well as the department of highways. Fiscal Court of Union County v. Young, 242 Ky. 335 , 46 S.W.2d 473, 1932 Ky. LEXIS 267 ( Ky. 1932 ).

If outstanding county warrants are illegal and void, they cannot be considered in determining validity of proposed expenditures of county for rights-of-way. Williams v. Estill County, 253 Ky. 417 , 69 S.W.2d 683, 1934 Ky. LEXIS 655 ( Ky. 1934 ).

Proceeds of bond issue voted by county in 1919 for “building roads and bridges” could be used to buy rights-of-way for state highway, there being no law in 1919 or at the present time prohibiting county from buying rights-of-way with money raised through issuance of bonds. Rice v. Marcum, 294 Ky. 486 , 172 S.W.2d 75, 1943 Ky. LEXIS 483 ( Ky. 1943 ).

11. Liability of State.

Where county conveyed county road to state as right-of-way for state primary road, and state Department of Highways constructed a new road over such right-of-way, the county taking no part in the construction of the road, any liability for damages to an abutting property owner resulting from lowering the grade of the road would fall on the state, and not on the county. Philpott v. Monroe County, 293 Ky. 236 , 168 S.W.2d 749, 1943 Ky. LEXIS 594 ( Ky. 1943 ).

Where state Department of Highways, in relocating a state highway, acquired a new right-of-way and closed the old right-of-way, the county was not liable in damages to property owner whose land abutted on old right-of-way and who claimed damage by reason of loss of access to highway however, the state was liable in such case. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

Where private property is taken for public use or where there is a trespass thereon which amounts to such taking the state’s immunity from suit is waived through Const., §§ 13 and 242. Lehman v. Williams, 301 Ky. 729 , 193 S.W.2d 161, 1946 Ky. LEXIS 563 ( Ky. 1946 ).

Neither the state nor its Department of Highways is liable for negligence in construction of state highway. Department of Highways v. Parker, 306 Ky. 14 , 206 S.W.2d 73, 1947 Ky. LEXIS 952 ( Ky. 1947 ).

The damage contemplated in this section is the damage or compensation assessed in the acquiring of a right-of-way and it does not mean the type of damage negligently inflicted by the Department of Highways to that portion of the landowner’s tract which is not acquired for highway purposes. Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

Reverse condemnation procedure for taking, destroying or injuring of property by the sovereign without any color of right or title so to do does not apply where Commonwealth has done nothing beyond that which was authorized by a right-of-way deed and the doctrine of sovereign immunity precludes action against the Department of Highways for breach of contract or in tort in the absence of statutory authority for such action. Commonwealth, Dep't of Highways v. Davidson, 383 S.W.2d 346, 1964 Ky. LEXIS 32 ( Ky. 1964 ).

12. — Remedies.

If the department has created and is maintaining a nuisance to the property owner’s damage, he may have a remedy by injunction. Barass v. Ohio County, 240 Ky. 149 , 41 S.W.2d 928, 1931 Ky. LEXIS 356 ( Ky. 1931 ).

Certain remedies may be enforced against Department of Highways, such as requiring it to abate a nuisance. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

The Department of Highways has no right to make any change in the construction of a road which will divert water from its natural course and cast it upon the land of an adjacent property owner, and may be enjoined from so doing or ordered to abate the condition if it has been already done. Department of Highways v. McKinney, 291 Ky. 1 , 162 S.W.2d 179, 1942 Ky. LEXIS 156 ( Ky. 1 942 ).

13. Contractor’s Liability.

Where contractor is constructing road under authority of state and not county, he cannot be held responsible if performance was without negligence and within terms of contract. Hunt-Forbes Const. Co. v. Robinson, 227 Ky. 138 , 12 S.W.2d 303, 1928 Ky. LEXIS 484 ( Ky. 1928 ).

Contractor is liable for damages resulting from own negligence or unauthorized trespass upon property off the right-of-way. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

14. Fiscal Court Members.

Members of fiscal court are not liable for damages. Metcalf v. Lyttle, 219 Ky. 488 , 293 S.W. 979, 1927 Ky. LEXIS 370 ( Ky. 1927 ).

15. Nature of Action.

Action for land taken for highway purposes, and resulting damage to remaining property, is in nature of a condemnation proceeding. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ). See Leslie County v. Davidson, 270 Ky. 705 , 110 S.W.2d 652, 1937 Ky. LEXIS 145 ( Ky. 1937 ).

16. Reformation of Deed.

Since county pays for right-of-way, it may be proper to reform deed conveying right-of-way in action against county, without joining Department of Highways, although deed runs to latter. Hacker v. Clay County, 291 Ky. 614 , 165 S.W.2d 172, 1942 Ky. LEXIS 288 ( Ky. 1942 ).

17. Measure of Damages.

Assessed value of land for ad valorem taxation furnished by owner as required by assessment statutes was competent for purpose of determining damages but prices paid to others in the neighborhood in obtaining right-of-way was incompetent notwithstanding similar conditions were shown to exist. Commonwealth by State Highway Com. v. Combs, 229 Ky. 627 , 17 S.W.2d 748, 1929 Ky. LEXIS 820 ( Ky. 1929 ).

Testimony as to amount realized by defendants from sale of lots from farm eight (8) years previously during boom times was not admissible to establish value of strip 60 feet wide and 910 feet long on condemnation by department of highways. Commonwealth by State Highway Com. v. Combs, 229 Ky. 627 , 17 S.W.2d 748, 1929 Ky. LEXIS 820 ( Ky. 1929 ).

A deed to right-of-way, reciting as part of consideration the resulting benefits to grantor’s adjacent property, forbids recovery for consequential injury to that property, such as hindering ingress and egress because of elevation of highway. Fallis v. Mercer County, 236 Ky. 315 , 33 S.W.2d 12, 1930 Ky. LEXIS 743 ( Ky. 1930 ).

Landowners were entitled to value of fruit trees as incident to land taken for highway purposes but, being merely incidental, the value could not be separated from the market value of the land but was limited to the difference between market value of entire tract immediately before and market value of remainder immediately after the taking and disregarding any enhancement in valuation of remainder of tract because of highway. Commonwealth v. Combs, 244 Ky. 204 , 50 S.W.2d 497, 1932 Ky. LEXIS 394 ( Ky. 1932 ).

Where deed to right-of-way recites as part of consideration the resulting benefits to grantor’s adjacent property he cannot recover for consequential injury to that property such as the loss of use of land. Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ).

Loss of the use, rents, or profits of land merely because it is not fenced is not damage to lands as contemplated by Const., § 242, which does not include loss of use when land itself has not been damaged. Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ).

This section does not make county liable for fencing right-of-way, where that was not made a part of consideration or otherwise agreed to. Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ).

Deed to right-of-way, reciting as part of consideration the resulting benefits to grantor’s adjacent property, forbids recovery for consequential injury to that property, such as damage arising from prudent, proper and good faith exercise of right to put land conveyed to intended use. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

The value fixed by owner for purposes of taxation is competent evidence of the value of land taken for highway but is not conclusive and the court is authorized to consider it in connection with other evidence which will indicate a much greater value. Crittenden County v. Towery, 264 Ky. 606 , 95 S.W.2d 233, 1936 Ky. LEXIS 367 ( Ky. 1936 ).

Consequential damages may be offset by consequential benefits but cost of additional fencing included as part of direct damages cannot be abated by benefits arising from the building of the road. Crittenden County v. Towery, 264 Ky. 606 , 95 S.W.2d 233, 1936 Ky. LEXIS 367 ( Ky. 1936 ).

Value fixed by landowner for tax purposes is competent but not conclusive and it should be considered in connection with other evidence indicating much greater value. Crittenden County v. Towery, 264 Ky. 606 , 95 S.W.2d 233, 1936 Ky. LEXIS 367 ( Ky. 1936 ).

Where the land is condemned for road purposes, the measure of damages, in the absence of additional fencing or other improvements made necessary by the taking, is the reasonable market value of the strip of land taken, considered in relation to the entire tract, and also the diminution in the reasonable market value of the remainder of the tract directly resulting by reason of the situation and shape in which it is placed by the taking of said strip, but not exceeding in all the difference between the market value of the whole tract immediately before and the reasonable market value of the remainder immediately after the taking, deducting from both estimates any enhancement of the value of the remainder by reason of the building and use of the road. Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ). See Perry County v. Riley, 268 Ky. 325 , 104 S.W.2d 1090, 1937 Ky. LEXIS 461 ( Ky. 1937 ).

Where statutory provisions were not followed in acquisition of land by deed for highway, the county could be required to respond in damages for noncompliance with obligations in the deed to the department of highways and the damages should be measured by the same rules that apply to condemnation proceedings subject to any legal defense available to the county. Bates' Adm'x v. Menifee County, 273 Ky. 417 , 116 S.W.2d 973, 1938 Ky. LEXIS 654 ( Ky. 1938 ).

The damage contemplated in this section is the damage or compensation assessed in acquiring the right-of-way and it does not mean damage negligently inflicted by the Department of Highways to that portion of landowner’s tract which is not acquired for highway purposes. Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

18. Contract by Fiscal Court.

Where there was ample evidence of ratification of contracts by county to pay for rights-of-way conveyed to Department of Highways, the claims against county for unpaid consideration were not invalidated because they had not been authorized by the fiscal court. Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 ( Ky. 1952 ).

Cited:

Ex parte Marshall Fiscal Court, 264 Ky. 550 , 95 S.W.2d 33, 1936 Ky. LEXIS 366 ( Ky. 1936 ); Commonwealth v. Tate, 297 Ky. 826 , 181 S.W.2d 418, 1944 Ky. LEXIS 820 ( Ky. 1944 ); Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

DECISIONS UNDER PRIOR LAW

1. Liability of County.

Const., §§ 13 and 242 prohibited the actual taking of private property for public use without payment, and Const., § 242 allowed compensation for injury or destruction of property unattended by an actual taking. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

Const., § 242 allowed compensation for injury or destruction of property unattended by actual taking. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

2. Payment for Right of Way.

When more than two-thirds of voters of county voted in favor of free turnpikes, that vote authorized incurring indebtedness in excess of revenue for year to purchase privately owned turnpikes. Whaley v. Commonwealth, 110 Ky. 154 , 61 S.W. 35, 23 Ky. L. Rptr. 1292 , 1901 Ky. LEXIS 73 ( Ky. 1901 ).

Research References and Practice Aids

Kentucky Law Journal.

Oberst & Lewis, Claims Against the State of Kentucky — Reverse Eminent Domain, 42 Ky. L.J. 163 (1953).

177.065. Moving costs of residents of land taken, paid when. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 50, § 1) was repealed by Acts 1970, ch. 207, § 4.

177.066. Financial assistance for persons displaced by highway acquisition. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 207, §§ 1 to 3) was repealed by Acts 1972, ch. 195, § 18.

177.068. Statutorily designated sections of the National Truck Network.

The United States Route 431 from the junction of the Wendell H. Ford Western Kentucky Parkway to the Kentucky and Tennessee border shall be designated as part of the National Truck Network established pursuant to the federal Surface Transportation Assistance Act of 1982.

History. Enact. Acts 2006, ch. 216, § 1, effective July 12, 2006.

177.070. Purchase of right-of-way — Donations.

  1. Except as provided in subsection (2), the department may agree with any landowner as to the value of a right-of-way and if the agreement is approved by the county attorney the fiscal court shall enter an order directing the payment of the amount agreed upon to the landowner, and the agreement shall be entered upon the county court’s records.
  2. The department may contract with the owners of private surfaced roads necessary to be incorporated in the primary road system, and agree upon the price to be paid, subject to the approval of the county judge/executive and county attorney in each county where such roads are located. Upon receipt of the certificate of the county judge/executive and county attorney showing the transfer and total cost, the Finance and Administration Cabinet shall draw its warrant upon the State Treasurer for payment of the amount certified. The state shall not pay for private roads owned by counties.
  3. Any landowner may donate a right-of-way across his land for any primary road, by executing a deed to the department for the use and benefit of the state for such right-of-way.

History. 4356t-7.

NOTES TO DECISIONS

  1. Construction.
  2. Application.
  3. Agreement.
  4. — Approval by County Attorney.
  5. Authorization by Fiscal Court.
  6. Deed.
  7. — Void.
  8. — Reformation.
  9. Donation of Right-of-Way.
1. Construction.

This section authorizes Department of Highways to purchase desired rights-of-way at expense of county or its fiscal court, where purchases are approved by county attorney. Brown v. Commonwealth, 259 Ky. 631 , 82 S.W.2d 770, 1935 Ky. LEXIS 341 ( Ky. 1935 ).

Unless directions of this section are complied with in acquisition of land by deed for highway purposes, county does not become obligated to comply therewith, but county may be required to respond in damages for appropriating the land, the damages being measured by same rules that apply to condemnation proceedings. Bates' Adm'x v. Menifee County, 273 Ky. 417 , 116 S.W.2d 973, 1938 Ky. LEXIS 654 ( Ky. 1938 ).

This section provides how the fiscal court may acquire rights-of-way for highway purpose, but the fiscal court alone is invested with this power and cannot delegate it to others. Campbell County v. Braun, 295 Ky. 96 , 174 S.W.2d 1, 1943 Ky. LEXIS 206 ( Ky. 1943 ).

2. Application.

The provisions of subsection (2) of this section were intended to apply only to roads which were public ways but privately owned. Lee County v. Hieronymus, 240 Ky. 490 , 42 S.W.2d 730, 1931 Ky. LEXIS 444 ( Ky. 1931 ).

3. Agreement.

Department of Highways was not bound by arbitration agreement on value of land for highway, when agreement was made between fiscal court and heirs of owner. Adams' Heirs v. McCoy, 212 Ky. 731 , 279 S.W. 1103, 1926 Ky. LEXIS 227 ( Ky. 1926 ).

There is no constitutional or statutory provision authorizing judge of county court to enter into contract for county to arbitrate controversy on right-of-way for public roads, especially where road is state or federal project. Adams' Heirs v. McCoy, 212 Ky. 731 , 279 S.W. 1103, 1926 Ky. LEXIS 227 ( Ky. 1926 ).

Oral agreement regarding right-of-way made with property owner by county judge (now county judge/executive), county attorney, justices of the peace and county road engineer does not constitute a contract binding on the county, as a county cannot contract except through its fiscal court acting as a body. Holbrook v. Letcher County, 223 Ky. 597 , 4 S.W.2d 382, 1928 Ky. LEXIS 390 ( Ky. 1928 ).

The statute contemplates a written agreement filed in and spread upon records of county court, where condemnation proceedings would otherwise have been instituted, so there is an agreed judgment binding on fiscal court. Postlethweighte v. Towery, 258 Ky. 468 , 80 S.W.2d 541, 1935 Ky. LEXIS 183 ( Ky. 1935 ).

Representatives of county, in negotiating for right-of-way, would have no authority to make oral agreement that highway would be constructed on designated part of right-of-way, or that additional payment would be made if highway was not constructed according to conditions specified by landowner, since statute requires that right-of-way agreements be approved by county attorney and fiscal court and entered on the records. Hacker v. Clay County, 291 Ky. 614 , 165 S.W.2d 172, 1942 Ky. LEXIS 288 ( Ky. 1942 ).

County and not state Department of Highways was liable to landowner for removal of lateral support where county in agreement assumed any liability that might arise out of any claim based on failure of properly acquired right-of-way. Commonwealth, Dep't of Highways v. Thacker, 384 S.W.2d 79, 1964 Ky. LEXIS 75 ( Ky. 1964 ).

4. — Approval by County Attorney.

The provision as to county attorney approving agreement refers to an agreement between Department of Highways and property owner, and has no application to an agreement between fiscal court and owner. Lee County v. Hieronymus, 240 Ky. 490 , 42 S.W.2d 730, 1931 Ky. LEXIS 444 ( Ky. 1931 ).

The fiscal court may buy right-of-way without approval and consent of county attorney. Lee County v. Hieronymus, 240 Ky. 490 , 42 S.W.2d 730, 1931 Ky. LEXIS 444 ( Ky. 1931 ). See Postlethweighte v. Towery, 258 Ky. 468 , 80 S.W.2d 541, 1935 Ky. LEXIS 183 ( Ky. 1935 ).

A county attorney cannot bind his county to pay whatever he might agree with property owner for right-of-way. Postlethweighte v. Towery, 258 Ky. 468 , 80 S.W.2d 541, 1935 Ky. LEXIS 183 ( Ky. 1935 ).

5. Authorization by Fiscal Court.

Claims against county by administratrix were not invalid because contracts by county to pay for rights-of-way conveyed to Department of Highways were not authorized by the fiscal court where there was ample evidence of ratification of the contracts. Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 ( Ky. 1952 ).

6. Deed.
7. — Void.

Landowner was not estopped from claiming damages by remaining acquiescent or not making active opposition to state road construction across land, even though she had executed void deed therefor. Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ).

Not having lawfully secured a legal or any title to land for road under void deed, state remained in same position as to taking and use as if no negotiations had taken place. Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ).

8. — Reformation.

In absence of proof of fraud or mutual mistake, evidence that property owner, in conveying land for right-of-way, thought that road would be constructed a certain distance from his buildings, and that he would be paid additional compensation if road was constructed within a closer distance, did not constitute grounds for reforming conveyance. Hacker v. Clay County, 291 Ky. 614 , 165 S.W.2d 172, 1942 Ky. LEXIS 288 ( Ky. 1942 ).

9. Donation of Right-of-Way.

Where right-of-way deed was given by property owner with understanding that plans for construction would be altered to eliminate proposed change of watercourse, he was entitled to equitable relief against damage caused to his land by reason of failure of Department of Highways to make agreed change. Department of Highways v. McKinney, 291 Ky. 1 , 162 S.W.2d 179, 1942 Ky. LEXIS 156 ( Ky. 1 942 ).

If a landowner gives land for a right-of-way, he cannot impose conditions which might result in injury to the taxpayers without the approval of the county attorney and the fiscal court given in the statutory manner. Hacker v. Clay County, 291 Ky. 614 , 165 S.W.2d 172, 1942 Ky. LEXIS 288 ( Ky. 1942 ).

Cited:

Commonwealth v. Tate, 297 Ky. 826 , 181 S.W.2d 418, 1944 Ky. LEXIS 820 ( Ky. 1944 ).

Research References and Practice Aids

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

Oberst & Lewis, Claims Against the State of Kentucky — Reverse Eminent Domain, 42 Ky. L.J. 163 (1953).

177.072. Motorcycle awareness signs.

  1. As used in this section:
    1. “Local government” means:
      1. Any city organized and governed under KRS Chapter 83 or 83A;
      2. Any urban-county government organized and governed under KRS Chapter 67A;
      3. Any consolidated local government organized and governed under KRS Chapter 67C; and
      4. All of Kentucky’s one hundred twenty (120) counties; and
    2. “Motorcycle awareness signs” means signs that increase the awareness of the traveling public to the possible presence of motorcycles and which are erected in the highway right-of-way of any highway that is part of the state primary road system established under KRS 177.020 .
  2. All statutes to the contrary notwithstanding, the cabinet shall permit any local government, subject to the provisions of subsection (4) of this section, to erect motorcycle awareness signs.
  3. The cabinet may, in addition to authorizing a local government to erect motorcycle awareness signs, also erect motorcycle awareness signs.
  4. Any local government wanting to erect motorcycle awareness signs shall submit a written request to the cabinet. The request shall identify the routes and the specific location on the routes where motorcycle awareness signs will be erected. If the cabinet determines that any location identified in the request would pose a traffic safety hazard, the cabinet shall identify an alternative location for the placement of the motorcycle awareness signs.
  5. The signs authorized to be erected under this section shall consist of two (2) signs. The upper sign shall be diamond shaped with a motorcyclist pictured on the sign. A second rectangular sign shall be placed directly below the diamond shaped sign and contain the words “Share the Road.” The signs shall conform with the standards established in the “Manual on Uniform Traffic Control Devices” published by the United States Department of Transportation, Federal Highway Administration.

History. Enact. Acts 2005, ch. 113, § 1, effective June 20, 2005.

177.073. Official signs and notices as to scenic and historical attractions.

The Department of Highways shall erect within six hundred and sixty (660) feet of the right-of-way of any interstate, limited access highway, federal-aid primary highway, or turnpikes official directional signs and notices pertaining to publicly and privately owned natural wonders and scenic and historical attractions, including cultural, scientific, educational, and religious sites, and areas of natural scenic beauty or naturally suited for outdoor recreation deemed to be in the interest of the traveling public under the following conditions:

  1. Such signs shall not violate any federal law, rule, or regulation, nor exceed any standards of size, lighting, spacing, and message content as may be promulgated from time to time by the secretary of the United States Department of Transportation under subsection (c) of Section 131 of Title 23 of the United States Code affecting the allocation of federal funds to the Commonwealth of Kentucky.
  2. Such signs and notices shall not violate any safety standards set forth in KRS 177.830 to 177.890 nor any regulation promulgated by the commissioner of highways pursuant to KRS 177.860 .
  3. The message content on such signs and notices shall be limited to the identification by name of the attraction or activity and directional information useful to the traveler in locating the attraction, such as mileage, route numbers, or exit numbers. Descriptive words or phrases, and pictorial or photographic representations of the activity or its environs are prohibited.
  4. The commissioner of highways shall promulgate by regulations specific selection methods and criteria to be used in determining those sites and attractions, publicly and privately owned, for which directional signs and notices may be erected as permitted by subsection (c) of Section 131 of Title 23, United States Code. A statement as to selection methods, criteria, and standards of size, lighting, and spacing shall be furnished to the secretary of the United States Department of Transportation before the Department of Highways erects any such directional signs and notices. The commissioner shall consider and determine, upon proper application to the Department of Highways, those sites and attractions eligible for official directional signs and notices.
  5. The Department of Highways shall require reimbursement for the cost of erection and maintenance of official directional signs and notices authorized by this section when such sites or attractions are privately owned and shall prescribe the size, number, and locations of such signs and notices based upon its determination of the traveler’s need for information.
  6. The commissioner of highways shall promulgate such reasonable rules and regulations necessary to carry out the provisions of this section.

History. Enact. Acts 1974, ch. 317, § 1.

NOTES TO DECISIONS

1. Private Attractions.

This section does not grant private individuals the right to erect and maintain signs pertaining to natural wonders and the like while waiting for the bureau (now department) of highways to act and owners of private attractions who desire highway signs advertising such attractions must proceed under this section. Commonwealth, Dep't of Transp. v. Central Kentucky Angus Asso., 555 S.W.2d 627, 1977 Ky. App. LEXIS 798 (Ky. Ct. App. 1977).

177.0734. Definitions for KRS 177.0734 and 177.0736.

As used in KRS 177.0734 and 177.0736 , unless the context requires otherwise:

  1. “Fully controlled access highways” means highways, limited to interstate and state parkways, that shall give preference to through traffic, shall have access only at selected public roads or streets, shall have no highway grade crossing or intersection, and shall further conform with the Federal Highway Administration’s (FHWA’s) adopted standards as contained in Federal Highway Program Manual (FHPM) 6-8-3-8 and to administrative regulations promulgated pursuant to KRS Chapter 13A;
  2. “Logo signs” means signs that consist of a business identification symbol, name, brand, trademark, or combination thereof that may be attached to specific service signs, pursuant to the Manual on Uniform Traffic Control Devices (MUTCD) and administrative regulations promulgated pursuant to KRS Chapter 13A;
  3. “Specific service signs” means official signs, erected on the rights-of-ways of fully controlled or partially controlled access highways or roads as defined in KRS 177.010 , that shall include, but not be limited to, the display of the words “Gas”, “Food”, “Lodging”, “Attractions”, or “Camping” or combinations thereof and shall have space for one (1) or more logo signs that may be attached to the official signs. The erection and maintenance of the official signs shall conform with the Manual on Uniform Traffic Control Devices (MUTCD) and administrative regulations promulgated pursuant to KRS Chapter 13A; and
  4. “Partially controlled access highway” means a highway that gives preference to through traffic, that has access only at selected public roads or streets, and that may have a limited number of highway at-grade intersections and private driveway connections.

History. Enact. Acts 1992, ch. 402, § 1, effective July 14, 1992; 1998, ch. 526, § 5, effective July 15, 1998.

177.0736. Logo and service signs — Administrative regulations.

The commissioner of the Department of Highways shall promulgate administrative regulations, pursuant to KRS Chapter 13A, to provide for the erection of specific service signs on fully controlled access highways or at interchanges on partially controlled access highways. The administrative regulations shall conform to the Manual on Uniform Traffic Control Devices (MUTCD), and shall include, but not be limited to, criteria for the following:

  1. Distances to eligible businesses;
  2. Selection of eligible businesses;
  3. Acceptance of logo signs that conform to the MUTCD;
  4. Removing or covering logo signs during off seasons for eligible businesses operated on a seasonal basis;
  5. Defining the circumstances in which specific service signs are erected; and
  6. Determining the costs to eligible businesses for initial installation, annual maintenance, and removal of logo signs.

History. Enact. Acts 1992, ch. 402, § 2, effective July 14, 1992; 1994, ch. 90, § 1, effective July 15, 1994; 1998, ch. 526, § 6, effective July 15, 1998.

177.0738. Logo signs for eligible businesses.

  1. Any camping facility that has been authorized by the commissioner of the Department of Highways to attach its logo sign to the face of a specific service sign erected on a fully controlled access highway, pursuant to the Federal Highway Administration’s Manual on Uniform Traffic Control Devices, may make application to the commissioner of the Department of Highways to have its logo sign attached to the face of a specific service sign erected on any road as defined in KRS 177.010 .
  2. The commissioner of the Department of Highways shall promulgate administrative regulations, pursuant to KRS Chapter 13A, to provide for the erection of specific service signs on roads, as defined in KRS 177.010 . The specific service signs as herein required to be erected shall include, but not be limited to, the display of logo signs that provide identification of and directional information to camping facilities. The administrative regulations shall conform with the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (MUTCD) and shall include, but not be limited to, criteria for the following:
    1. Selection of eligible businesses;
    2. Distances to eligible businesses;
    3. Acceptance of logo signs that conform to the MUTCD;
    4. Removing or covering logo signs during off-seasons for eligible businesses operated on a seasonal basis;
    5. Defining the circumstances in which specific service signs are erected; and
    6. Determining the costs to eligible businesses for initial installation, annual maintenance, and removal of logo signs.

History. Enact. Acts 1992, ch. 426, § 1, effective July 14, 1992.

177.0739. Bed and breakfast establishments, shopping malls, and shopping areas eligible to obtain specific service highway signs.

All statutes to the contrary notwithstanding, the Transportation Cabinet shall amend its policies and administrative regulations in effect on June 24, 2003, governing highway signage, to include bed and breakfast establishments, shopping malls, and shopping areas as businesses that are eligible to obtain a specific service highway sign, and shall not subsequently adopt new policies or promulgate new administrative regulations to the contrary.

History. Enact. Acts 2002, ch. 298, § 1, effective July 15, 2002; 2003, ch. 57, § 1, effective June 24, 2003.

177.074. Naming of state road or bridge.

  1. Every road which is part of the state primary system shall be identified by a specific route number or name which shall be designated on the official state road map. In addition to a route number, the secretary:
    1. Shall name a road or road segment to comply with the provisions of subsections (2) and (3) of this section; and
    2. May, at the secretary’s discretion, or subject to the provisions of subsection (4) of this section, name a road or bridge on the state highway system after an individual, historic event, or any other name which may be of significance to the history of this Commonwealth or any of its counties or communities.
  2. The secretary shall, within thirty (30) days of receipt of a written request by the commissioner of the Department of Kentucky State Police, name a state road or segment of a state road in memory and honor of one (1) or more Kentucky state troopers killed in the line of duty. The written request shall comply with the provisions of subsection (4) of this section and shall include:
    1. The trooper’s name;
    2. The name and address of any living relatives of the trooper, if known;
    3. Date and circumstances of the trooper’s death; and
    4. The route number and current name of the state road where the trooper was killed, if applicable, or the route number and current name of the state road closest to the deceased trooper’s home.
  3. The written request required under subsection (2) of this section shall identify the route number, current name of the state road, or milepoints of the specific segment of state road the Department of Kentucky State Police are requesting be named in honor and memory of a state trooper killed in the line of duty. The road or road segment identified in the request shall be either the state road where the trooper was killed, or the state road closest to the deceased trooper’s home. The cabinet shall consult with the commissioner of the Department of Kentucky State Police on the design of the road signs naming the state road or road segment in honor and memory of each trooper, and the cabinet shall erect the appropriate highway signs within thirty (30) days of receipt of the written request required under subsection (2) of this section.
  4. If the road segment identified in the request under subsection (2) of this section has already been named for another individual or organization, either by action of the General Assembly or by order of the secretary, the Department of Kentucky State Police and the cabinet shall consult on and determine an alternate location that is acceptable to both agencies.
  5. The secretary shall be petitioned by a unit of local government, civic organization, or other interested party before naming a road or bridge on the state primary road system. In addition, the secretary shall be convinced by the petitioner that the person or event that the road or bridge is being named for is of civic or historical significance.
  6. Except as provided in subsections (9) and (10) of this section, the secretary shall name a road or bridge upon direction by joint resolution of the General Assembly. Upon introduction of a resolution, the secretary shall inform the chairman of the committee to which the resolution is assigned as to whether he or she has been petitioned to name a road or bridge presented in the resolution and if so petitioned, his or her reasons for not taking action on the request.
  7. If the secretary grants the request to name a road or bridge through petition, the signs to be placed on the roads shall become the responsibility of the petitioner with the design and placement of the signs approved by the department. If the signs are to be placed as a result of a resolution passed by the General Assembly, the responsibility for placement of the signs shall be upon the Department of Highways.
  8. The Transportation Cabinet may adopt administrative regulations to implement the road and bridge naming program. The administrative regulations shall at a minimum establish basic standards for design and placement of signs or allow the local entity to reimburse the Transportation Cabinet for the cost of manufacturing and installing the signs for which a petition has been granted.
  9. The new proposed truck bypass around Mayfield, Kentucky, shall be named the “Dick Castleman Bypass,” after former State Representative Dick Castleman.
  10. The bridge on United States Highway 27 over the Kentucky River near Camp Nelson, between Jessamine and Garrard Counties, shall be named the “Loyd Murphy Memorial Bridge.”

History. Enact. Acts 1990, ch. 180, § 1, effective July 13, 1990; 1996, ch. 356, § 2, effective July 15, 1996; 2002, ch. 64, § 2, effective July 15, 2002; 2007, ch. 85, § 185, effective June 26, 2007.

177.0745. Designation of Grange City Covered Bridge.

The Hillsboro Covered Bridge in Fleming County is renamed and designated the “Grange City Covered Bridge.”

History. Enact. Acts 1998, ch. 404, § 2, effective July 15, 1998.

177.075. Condemnation by Highway Department for roads and road materials. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 27, §§ 1 and 2) was repealed by Acts 1952, ch. 49, § 11, effective June 19, 1952.

177.076. Definitions for KRS 177.076 to 177.079.

As used in KRS 177.076 to 177.079 , unless the context requires otherwise:

  1. “Historical site” means a cultural or educational site that is officially listed in the National Register of Historical Places;
  2. “Fully controlled access highway” means a limited access highway, an interstate highway, and a parkway;
  3. “Limited supplemental guide sign” means an official highway guide sign that is erected by the Department of Highways to give directions, furnish advance notice, show mileage or exit indicators, and indicate access to historical sites or to scenic, cultural, and recreational tourist areas or attractions and that conforms to the design standards and requirements set forth in the Manual on Uniform Traffic Control Devices (MUTCD);
  4. “Post-interchange guide sign” means an official highway sign that may be used in conjunction with a limited supplemental guide sign and lists the name of a tourist area or attraction or an historical site and the distance from an interstate to a tourist area or attraction or an historical site. A post-interchange guide sign shall conform to the design standards and requirements set forth in the Manual on Uniform Traffic Control Devices (MUTCD);
  5. “Rural area” means an area that does not have sufficient population to be designated as an urban area;
  6. “Tourist area or attraction” means a cultural, recreational, or entertainment facility, family entertainment center, or an area of natural phenomenon or scenic beauty that is suited for outdoor recreation that receives a major portion of its income or visitors during the normal business season from motorists not residing in the immediate area of the tourist area or attraction. “Tourist area or attraction” does not include any of the following:
    1. Lodging facilities; or
    2. Facilities that are primarily devoted to the retail sale of goods, unless the facilities are a family entertainment center or the goods are created by individuals at the tourist area or attraction or if the sale of goods is incidental to the tourist area or attraction; or
    3. Recreational facilities that do not serve as a likely destination where individuals who are not residents of the state would remain overnight in commercial lodging at or near the tourism area or attraction;
  7. “Family entertainment center” means a facility, other than a stand alone shopping center, that meets all of the following criteria:
    1. Contains a minimum of fifty thousand (50,000) square feet of building space;
    2. Is located on property encompassing at least five (5) acres adjacent or complementary to a cultural, recreational, or entertainment facility, or natural recreational area;
    3. Provides a variety of entertainment and leisure options;
    4. Contains at least one (1) restaurant and at least two (2) additional venues, including, but not limited to, live entertainment, concert halls, museums, zoos, or other cultural, recreational or leisure activities; and
    5. Is at a location where sixty percent (60%) of the developed property is devoted to entertainment and food options.
  8. “City” means an area with a population of one hundred thousand (100,000) or more designated by the United States Department of Commerce, Bureau of the Census.

History. Enact. Acts 1998, ch. 526, § 1, effective July 15, 1998; 2000, ch. 353, § 1, effective July 14, 2000.

177.077. Limited supplemental guide signs — Administrative regulations — Criteria for approval — Hearings — Effect on pre-existing signs.

  1. No later than February 1, 1999, the commissioner of the Department of Highways shall establish standards, procedures, and forms for the making and approval of applications for a limited supplemental guide sign by the promulgation of administrative regulations in accordance with KRS Chapter 13A.
  2. The criteria for the approval of a limited supplemental guide sign application for an historical site or for a tourist area or attraction shall be based upon average annual attendance and distance from a fully controlled access highway interchange.
  3. At a fully controlled access highway interchange in a rural area, the standards for approval shall be the lesser of:
    1. Tourist areas and attractions that have an average annual attendance of ten thousand (10,000) visitors and are located within fifty (50) miles of a fully controlled access highway;
    2. Tourist areas and attractions that are located within fifty (50) miles of a fully controlled access interchange and have an annual visitation equal to or greater than the average annual daily traffic count of the fully controlled access highway at the interchange from which the attraction is served.
  4. At a fully controlled access highway interchange in a city, the standards for approval shall be the lesser of:
    1. Tourist areas and attractions that have an average annual attendance of seventy-five thousand (75,000) visitors and are located within fifty (50) miles of a fully controlled access highway interchange;
    2. Tourist areas and attractions that are located within fifty (50) miles of a fully controlled access highway interchange and have an annual visitation equal to the average annual daily traffic count of the fully controlled access highway at the interchange from which the attraction is served.
  5. Historical sites that are located in either a rural area or a city shall have an average annual attendance of five thousand (5,000) and shall be located within fifty (50) miles from a fully controlled access highway interchange.
  6. The identification of a tourist area or attraction on a specific service sign pursuant to KRS 177.0736 shall not affect its eligibility for a limited supplemental guide sign.
  7. Upon receipt of an application, the commissioner of the Department of Highways shall within thirty (30) days provide written notification to the applicant of any hearings pertaining to the application. The commissioner of the Department of Highways shall make a determination on whether to approve the erection of a limited supplemental guide sign within ninety (90) days after the receipt of an application and shall provide written notification to the applicant of his decision.
  8. Supplemental guide signs, including but not limited to limited supplemental guide signs, erected prior to July 1, 1998, shall not be removed due to the site selection criteria contained in KRS 177.076 to 177.079 .

History. Enact. Acts 1998, ch. 526, § 2, effective July 15, 1998; 2000, ch. 353, § 2, effective July 14, 2000.

Legislative Research Commission Note.

(7/14/2000). Section 2 of 2000 Ky. Acts ch. 353 (House Bill 693) made no changes to this statute. The changes to KRS 177.077 contained in the General Assembly version of House Bill 693 were eliminated by Senate Committee Amendment 1, which was adopted by the Senate and concurred in by the House of Representatives. This left the existing text of KRS 177.077 unchanged.

177.078. Application — Fees — Reimbursement.

  1. An application from an historical site or from a tourist area or attraction for the erection of a limited supplemental guide sign shall be made to the commissioner of the Department of Highways. The application shall include, but not be limited to:
    1. Evidence that demonstrates the average annual attendance;
    2. Evidence that the tourist area or attraction is established as a permanent business; and
    3. Evidence that the tourist area or attraction has all necessary and proper licenses, that normal business hours shall be maintained, that it is open to the traveling public, and that it provides recreational or educational opportunities.
  2. An application fee of two hundred dollars ($200) shall be paid to the Department of Highways by each applicant.
  3. Upon approval of the application, the applicant shall reimburse the Transportation Cabinet for the total cost of the sign and its installation. The applicant shall have the option to pay the reimbursement cost in full or amortize the reimbursement cost for a period not to exceed ten (10) years.

History. Enact. Acts 1998, ch. 526, § 3, effective July 15, 1998; 2000, ch. 353, § 3, effective July 14, 2000; 2010, ch. 30, § 1, effective July 15, 2010.

177.079. Commissioner required to apply to Federal Highway Administration for experimental usage of signs.

Pursuant to the requirements of the MUTCD Section 1A-6, the commissioner of the Department of Highways shall apply to the Federal Highway Administration, by no later than February 1, 1999, for permission to experiment with a new usage of post-interchange guide signs on all fully controlled access highways in the Commonwealth of Kentucky.

History. Enact. Acts 1998, ch. 526, § 4, effective July 15, 1998.

177.080. Condemnation for right-of-way. [Repealed.]

Compiler’s Notes.

This section (4356t-7) was repealed by Acts 1950, ch. 27, § 3.

177.081. Authority of Department of Highways to condemn land and materials — Title to property — Conclusiveness of official order — Duty of department to clear and maintain property.

  1. The Commonwealth of Kentucky, Department of Highways, when it has, by official order, designated the route, location, or relocation of a highway, limited access highway, bridge, roadside park, borrow-pit, quarry, garage, or other property or structure deemed necessary for the construction, reconstruction, or maintenance of an adequate system of highways, may, if unable to contract or agree with the owner or owners thereof, condemn the lands or material, or the use and occupancy of the lands designated as necessary. All property acquired by the Commonwealth of Kentucky, Department of Highways, shall be in fee simple whenever so specified in the petition filed in the action. The official order of the Department of Highways shall be conclusive of the public use of the condemned property and the condemnor’s decision as to the necessity for taking the property will not be disturbed in the absence of fraud, bad faith, or abuse of discretion.
  2. Any property purchased or otherwise acquired by the Department of Highways for the purpose of construction or reconstruction of a road, street, or highway shall be cleared and maintained by the Department of Highways from the time of acquisition until such property is no longer owned by the department.
  3. The proceedings for condemnation shall be as provided in the Eminent Domain Act of Kentucky.

History. Enact. Acts 1952, ch. 49, §§ 1, 10; effective June 19, 1952; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 140, § 74; 1980, ch. 231, § 2, effective July 15, 1980.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (3) of this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Constitutionality.
  2. Condemnation.
  3. — Right.
  4. — Abandonment of Proceedings.
  5. — Change in Plans and Specifications.
  6. — Exemption.
  7. Evaluation.
  8. — Evidence.
  9. — Expert Witnesses.
  10. — Unit.
  11. Injunction.
  12. Determination of Necessity.
  13. Interference With Access to Property.
1. Constitutionality.

KRS 177.081 does not violate the separation-of-powers doctrine under Ky. Const. §§ 27 and 28. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

2. Condemnation.
3. — Right.

Where it appears distinctly possible that value of land condemned for the disposal of waste of rock and dirt from highway project will be enhanced by filling it to the level of the highway there was good reason for acquisition of fee simple title of such land. Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

In condemnation case even though bottom land in hill country is scarce and valuable and is one of the circumstances of the case it is not a dispositive consideration on the question of necessity. Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

Judicial power of government should not be invoked against discretion of agency of executive branch in determining what is in public interest, including what particular property is needed in connection with a valid public project, unless there is such clear and gross abuse of discretion as to offend guaranty of constitution against exercise of arbitrary power. Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

Where commissioner of highways made order reciting that the interest of the public will best be served by the acquisition of an entire tract of land which was in excess of the amount actually needed for the traveled portion of the highway and there was no evidence of fraud, bad faith or abuse of discretion on the part of the commissioner, the court would not disturb the finding as to the commissioner on the question of the necessity for the land. Commonwealth Dep't of Highways v. Vandertoll, 388 S.W.2d 358, 1964 Ky. LEXIS 538 (Ky. Ct. App. 1964).

When the highway department by official order determines that an acquisition is necessary this section places on the defendant the burden of proving fraud, bad faith or abuse of discretion. Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

The right of condemnation for highway purposes could not be made to depend upon the predominance of the public interest over private benefit; the accepted test is whether the roadway is under the control of public authorities and is open to public use, without regard to private interest or advantage. Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

The condemner’s decision as to the necessity for taking the property will not be disturbed in the absence of fraud, bad faith, or abuse of discretion. Commonwealth Dep't of Highways v. Vandertoll, 388 S.W.2d 358, 1964 Ky. LEXIS 538 (Ky. Ct. App. 1964).

Subsection (1) grants the Department of Transportation broad discretion to determine necessity for acquisition of land to build highways and upon a determination of necessity, the commonwealth’s right of acquisition may be defeated only by proof of fraud, bad faith or abuse of discretion, and the landowner opposing condemnation bears the burden of proof. Commonwealth Transp. Cabinet Dep't of Highways v. Taub, 766 S.W.2d 49, 1988 Ky. LEXIS 83 ( Ky. 1988 ), overruled in part, Fischer v. Fischer, 348 S.W.3d 582, 2011 Ky. LEXIS 37 ( Ky. 2011 ).

Because KRS 177.081 did not violate the separation-of-powers doctrine under Ky. Const. §§ 27 and 28, and the fact that the Department of Highways could have applied a lower speed design or chosen a different route did not imply that the road design was arbitrary or an abuse of discretion, the condemnation action was affirmed. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

4. — Abandonment of Proceedings.

After good faith abandonment, condemner is entitled to maintain new proceedings, and pending trial judgments fixing awards property owners should be ordered to remit respective amounts received in excess of commissioner’s awards in new suits. Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ).

Having once abandoned action, condemner’s right to proceed anew against same property, for same purpose, depends on whether abandonment was in good faith. Condemner cannot resort to experimental suits and assessments and in effect obtain new trial to have reassessment without taking appeal. Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ).

In absence of statutory regulation to contrary, eminent domain proceedings may be abandoned by condemner at any time, even after judgment so long as possession has not been taken or award paid. Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ).

Since right of abandonment may be exercised by condemner at any stage of litigation, order in Circuit Court reciting fact of abandonment extinguishes entire proceeding. Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ).

5. — Change in Plans and Specifications.

A change in plans and specifications of a highway improvement which affected landowners’ property after procuring of a deed in condemnation proceedings was permissible. Cartee v. Commonwealth, Dep't of Highways, 374 S.W.2d 860, 1964 Ky. LEXIS 396 ( Ky. 1964 ).

Commonwealth is not obligated to build highway according to original plans or to build at all, unless right-of-way deed so provides. Commonwealth, Dep't of Highways v. King, 375 S.W.2d 688, 1964 Ky. LEXIS 424 ( Ky. 1964 ).

An official order pursuant to this section may be amended by the Transportation Cabinet subject to the restrictions set forth in this section applicable to the original order. Commonwealth Transp. Cabinet Dep't of Highways v. Taub, 766 S.W.2d 49, 1988 Ky. LEXIS 83 ( Ky. 1988 ), overruled in part, Fischer v. Fischer, 348 S.W.3d 582, 2011 Ky. LEXIS 37 ( Ky. 2011 ).

6. — Exemption.

A cemetery’s exemption from taking by condemnation, specifically granted to its property by Acts 1888, ch. 35, § 2(a), was not invalidated by this section and KRS 416.540 relating to the Department of Highway’s power of eminent domain. Mother of God Cemetery Asso. v. Commonwealth, Transp. Cabinet, Dep't of Highways, 759 S.W.2d 69, 1988 Ky. App. LEXIS 128 (Ky. Ct. App. 1988).

7. Evaluation.

Loss of the potential to exploit commercially the express traffic which is diverted from old highway to new highway is not a compensable element of loss in a condemnation proceeding. Commonwealth, Dep't of Highways v. Raybourn, 359 S.W.2d 611, 1962 Ky. LEXIS 200 ( Ky. 1962 ).

Assignment of separate values to certain underground storage tanks used in conjunction with a service station located on the condemned land was error. Commonwealth, Dep't of Highways v. Belk, 389 S.W.2d 920, 1965 Ky. LEXIS 398 ( Ky. 1965 ).

An award of $97,250 for the taking of land on which a synagogue was situated was not in error where evidence fixed the value at $142,461 and $75,260. Commonwealth, Dep't of Highways v. Congregation Anshei S'Fard, 390 S.W.2d 454, 1965 Ky. LEXIS 353 ( Ky. 1965 ).

Where after taking 16.08 acres from a 51-acre farm for highway purposes the farm was divided so that a 10.36-acre tract without improvements was left on the south side of the highway and a 24.56-acre tract with improvements was situated north of the new turnpike and Commonwealth’s two witnesses testified the difference in market value before and after the taking was $3,525 and $3,420 and the landowner’s two witnesses fixed the difference between the before and after values at $8,000 and $8,750, a verdict of $6,585 was not excessive. Commonwealth, Dep't of Highways v. Darnell, 400 S.W.2d 230, 1966 Ky. LEXIS 430 ( Ky. 1966 ).

Verdict of $5,000 was more than liberal but fell just a hair short of appearing at first blush to have been the result of passion or prejudice where 3.76 acres were taken but the farm was divided so 4.88 acres were on the north side of the new road and 91.36 acres were on the south side of the new road with the 30-foot high road passing between the residence and the barn. Commonwealth, Dep't of Highways v. Musick, 400 S.W.2d 513, 1966 Ky. LEXIS 436 ( Ky. 1966 ).

Where the commissioners of the county court in their report fell into the error of listing a separate amount for a fencing item it in no way affected the owner’s rights upon their appeal. Commonwealth, Dep't of Highways v. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 ( Ky. 1968 ).

While supporting facts are admissible, dollar figures must not be placed on individual damage factors. Commonwealth, Dep't of Highways v. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 ( Ky. 1968 ).

8. — Evidence.

Evidence relating to sales of tracts of two (2) and three (3) acres was admissible where there was competent evidence relating to the adaptability of the subject land for subdivision. Commonwealth, Dep't of Highways v. West, 383 S.W.2d 116, 1964 Ky. LEXIS 5 ( Ky. 1964 ).

Actual time witness made up his mind as to appraised value of property condemned for highway purposes is unimportant so long as it is within a reasonable time of the taking. Commonwealth, Dep't of Highways v. Bennett, 387 S.W.2d 594, 1965 Ky. LEXIS 477 ( Ky. 1965 ).

Value of tract of land after the construction of the new road had been completed was admissible in condemnation action for highway purposes. Commonwealth, Dep't of Highways v. Belk, 389 S.W.2d 920, 1965 Ky. LEXIS 398 ( Ky. 1965 ).

Generally the market value of property taken by condemnation for highway purposes is the standard to determine just compensation for taking of property and evidence of replacement value must relate to the market value. Commonwealth, Dep't of Highways v. Congregation Anshei S'Fard, 390 S.W.2d 454, 1965 Ky. LEXIS 353 ( Ky. 1965 ).

Testimony as to the undepreciated cost of constructing a replica of a synagogue was improper but not prejudicial considered with the other evidence pertaining to depreciation. Commonwealth, Dep't of Highways v. Congregation Anshei S'Fard, 390 S.W.2d 454, 1965 Ky. LEXIS 353 ( Ky. 1965 ).

Although it is overall values which are to be presented, it is proper on cross-examination to delve into factors used by the witness to ascertain whether he has reached the values in an approved manner. Commonwealth, Dep't of Highways v. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 ( Ky. 1968 ).

It was reversible error for the condemnee and his three witnesses to testify as to before and after value and then as to the additional factor of fencing cost. Commonwealth, Dep't of Highways v. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 ( Ky. 1968 ).

Fact that the commissioners placed a substantially higher value on the property did not necessarily indicate that the Department of Highway’s offer was unreasonable; thus, the trial court did not clearly err in finding that the Department negotiated in good faith in regard to the condemnation action. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

9. — Expert Witnesses.

Comparable sales ranging from two (2) to eight (8) miles and some on inferior roads were admissible where the properties were reasonably similar and a qualified expert stated that they were sufficiently comparable for appraisal purposes. Commonwealth, Dep't of Highways v. West, 383 S.W.2d 116, 1964 Ky. LEXIS 5 ( Ky. 1964 ).

Persons who were skilled in professional appraisal techniques and were regularly engaged in land transactions in the area, qualified as expert valuation witnesses and the jury was entitled to give their opinions of damages great weight. Commonwealth, Dep't of Highways v. Belk, 389 S.W.2d 920, 1965 Ky. LEXIS 398 ( Ky. 1965 ).

When the chief controversy is the amount of damages to be awarded and an expert witness gives opinions of the amount of damages which are glaringly contradictory, his status as an expert becomes so unreliable that his testimony should be stricken upon a proper motion. Commonwealth, Dep't of Highways v. Belk, 389 S.W.2d 920, 1965 Ky. LEXIS 398 ( Ky. 1965 ).

Where expert witnesses testified land was worth $99,151 and $92,000 before condemnation and the damage was $71,325 and $75,000 but on cross-examination testified the value of a hypothetical tract of land identical with that of the landowner’s remaining land was $64,844 and $51,600, their glaringly contradictory testimony should have been stricken on proper motion. Commonwealth, Dep't of Highways v. Belk, 389 S.W.2d 920, 1965 Ky. LEXIS 398 ( Ky. 1965 ).

Witnesses need not be expert land appraisers in the sense that they had instruction and experience in the science of real estate appraisement and where they owned real estate in the area and had bought and sold a few tracts of land in the community they were qualified and the weight to which their testimony was entitled was for the jury to determine. Commonwealth, Dep't of Highways v. Musick, 400 S.W.2d 513, 1966 Ky. LEXIS 436 ( Ky. 1966 ).

10. — Unit.

In condemnation cases involving different estates and interests in a single tract or parcel the property shall be evaluated as a unit, and, if the condemner fails in the attempt to acquire a substantial interest by contract there is no valid reason it should not be permitted to acquire the entire unit by condemnation. Commonwealth v. Cardinal Hill Nursery, Inc., 343 S.W.2d 842, 1961 Ky. LEXIS 449 ( Ky. 1961 ).

Ordinarily, two or more parcels of land constitute one tract for the purpose of assessing damages for injury to the portion not taken when they are physically contiguous and are united in use and ownership. Commonwealth, Dep't of Highways v. Raybourn, 359 S.W.2d 611, 1962 Ky. LEXIS 200 ( Ky. 1962 ).

Reference in condemnation petition to two deeds was merely reference to source of title and did not preclude state from introducing proof to show why the two tracts should not be regarded as a single unit of land for purpose of determining damages. Commonwealth, Dep't of Highways v. Raybourn, 359 S.W.2d 611, 1962 Ky. LEXIS 200 ( Ky. 1962 ).

When it has been proven that the owner of property, on which land is being taken by the power of eminent domain, has purchased such property with the knowledge of that fact, he is not entitled, for the purpose of assessing damages, to have it considered a part of other property previously acquired by him. Commonwealth, Dep't of Highways v. Raybourn, 359 S.W.2d 611, 1962 Ky. LEXIS 200 ( Ky. 1962 ).

11. Injunction.

Landowner cannot enjoin state department of highways from constructing highway and from instituting proceedings to condemn realty but must first avail himself of the statutory remedy provided by KRS 177.081 to 177.087 (KRS 177.083 to 177.087 now repealed) and if for any reason the efficacy of the remedy is threatened the court may then upon proper application resort to injunctive relief to preserve the remedy afforded by the statute. Collins v. Commonwealth, 324 S.W.2d 406, 1959 Ky. LEXIS 371 ( Ky. 1959 ).

12. Determination of Necessity.

While the right to condemn for access roads was incident to the right to condemn for a main highway, access roads were not so unimportant and trivial that land could be condemned for them without an official determination of necessity. Commonwealth, Dep't of Highways v. Salmon Corp., 489 S.W.2d 32, 1972 Ky. LEXIS 25 ( Ky. 1972 ).

13. Interference With Access to Property.

The diminished width of a public street after construction of a bridge did not deprive neighboring furniture store owners of reasonable access to their property as, with regard to their private use of the street as a loading zone, store owners, after construction of the bridge, lost nothing more than the convenience of blocking the street while unloading large delivery trucks; the only thing that changed as a result of the diminished width of the street was that they had to use smaller trucks. Gibson v. Commonwealth, Transp. Cabinet, Dep't of Highways, 777 S.W.2d 234, 1989 Ky. App. LEXIS 169 (Ky. Ct. App. 1989).

Cited:

Commonwealth v. Mayo, 324 S.W.2d 802, 1959 Ky. LEXIS 376 ( Ky. 1959 ); Riley v. Commonwealth, Dep’t of Highways, 375 S.W.2d 245, 1963 Ky. LEXIS 185 ( Ky. 1963 ); Commonwealth, Dep’t of Highways v. C. S. Brent Seed Co., 376 S.W.2d 310, 1964 Ky. LEXIS 446 ( Ky. 1964 ); Commonwealth, Dep’t of Highways v. Bennett, 386 S.W.2d 733, 1965 Ky. LEXIS 524 ( Ky. 1965 ); Cartmell v. Urban Renewal & Community Development Agency, 430 S.W.2d 649, 1968 Ky. LEXIS 408 ( Ky. 1968 ); Commonwealth, Dep’t of Transp., Bureau of Highways v. Catlett, 568 S.W.2d 759, 1978 Ky. App. LEXIS 553 (Ky. Ct. App. 1978).

DECISIONS UNDER PRIOR LAW

  1. Condemnation.
  2. — Conditions Precedent.
  3. — Termination of Proceedings.
  4. Liability of County.
  5. Damages.
1. Condemnation.
2. — Conditions Precedent.

Inability to agree with the owner of land desired was a condition precedent to condemnation. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ). See Postlethweighte v. Towery, 258 Ky. 468 , 80 S.W.2d 541, 1935 Ky. LEXIS 183 ( Ky. 1935 ).

3. — Termination of Proceedings.

Highway contractor was liable in trespass to property owner for entering upon land and beginning construction without waiting for termination of condemnation proceedings and payment of damages. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

County could have interpleaded as party defendant in action for entering upon land and beginning construction before termination of condemnation proceeding. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

4. Liability of County.

When the state or county took land of individual for right-of-way and used it for that purpose, the county was estopped to deny its liability for reasonable value of land taken and incidental damages to balance of tract. Muhlenberg v. Ray, 215 Ky. 295 , 284 S.W. 1074, 1926 Ky. LEXIS 706 ( Ky. 1926 ).

5. Damages.

Direct damages to realty could not have been diminished by anticipated enhancement by highway, though the latter could have been set off against consequential damages. Waggoner v. Commonwealth, 206 Ky. 703 , 268 S.W. 317, 1925 Ky. LEXIS 1020 ( Ky. 1925 ).

Where company had an easement from the state department of highways, along a state highway, for the maintenance of a water pipeline, it was entitled, when highway was widened so as to make it necessary to relocate the pipeline, to an award of damages equal to the cost of relocating the pipeline, its damages not being limited to the mere value of the original easement. Commonwealth v. Means & Russell Iron Co., 299 Ky. 465 , 185 S.W.2d 960, 1945 Ky. LEXIS 451 ( Ky. 1945 ).

Where operator of a residential subdivision, after obtaining grant of easement from state Department of Highways, had constructed a water pipeline along south side of state highway, he was entitled, in condemnation proceeding brought by state in connection with proposed reconstruction and widening of highway, to an award of damages equal to cost of relocating his pipeline on the north side of the highway, which was made necessary by the proposed reconstruction. In such case, where it was proved that 3,000 feet of pipe would have to be relocated in order to make the pipeline function, condemnee was entitled to an award based on the cost of relocating 3,000 feet, although only 652 feet were within the condemned area. Commonwealth v. Means & Russell Iron Co., 299 Ky. 465 , 185 S.W.2d 960, 1945 Ky. LEXIS 451 ( Ky. 1945 ).

Opinions of Attorney General.

In condemnation cases involving the Commonwealth of Kentucky, department of highways, the department of highways is not required to pay the $3.00 writ tax or the $4.00 jury fee. OAG 62-431 .

Scenic strips and easements adjacent to the highway rights of way could be legally purchased for beautification purposes and highway funds could be expended for such purpose. OAG 66-35 .

Research References and Practice Aids

Kentucky Law Journal.

Germain, Remedies, 63 Ky. L.J. 777 (1974-1975).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

ALR

Condemnation of materials for highways. 172 A.L.R. 131.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway. 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway. 42 A.L.R.3d 148.

177.082. County attorney to represent Department of Highways in condemnation proceedings — Petition.

The Commonwealth of Kentucky, Department of Highways, when seeking to condemn lands and material and the use and occupancy of lands, under the provisions of KRS 177.081 , shall direct the county attorney or any attorney authorized to represent the Commonwealth to file a petition in the office of the Circuit Court clerk in the county in which all or the greater portion of the land or material is located. If any authorized attorney, other than the county attorney, is directed to file the petition, the county attorney shall assist in the prosecution of the action. The petition shall be filed in the name of the Commonwealth of Kentucky, Department of Highways, and may join as plaintiff the county in which any part of the property is situated, or in which the petition is filed, or any municipality thereof.

History. Enact. Acts 1952, ch. 49, § 2; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 140, § 75; 1976 (Ex. Sess.), ch. 14, § 166, effective January 2, 1978.

NOTES TO DECISIONS

  1. Filing Official Order.
  2. Condemnation in Reverse.
1. Filing Official Order.

The official order of the Department of Highways designating the property needed was conclusive of the public use of the property and county court judgment was voidable where Commonwealth failed to file the official order. Commonwealth, Dep't of Highways v. Harkness, 383 S.W.2d 359, 1964 Ky. LEXIS 37 ( Ky. 1964 ).

Where Commonwealth failed to file official order of the Department of Highways designating the property needed and county court judgment was voidable, the county court could enter a second or corrected judgment when the Commonwealth filed the official order. Commonwealth, Dep't of Highways v. Harkness, 383 S.W.2d 359, 1964 Ky. LEXIS 37 ( Ky. 1964 ).

2. Condemnation in Reverse.

Where after taking deeds for property of a certain tract, the highway department took an additional amount which was not included in the deed, the action for compensation therefor was condemnation in reverse and was properly brought in the county in which the land lay rather than in the court of claims under KRS 44.070 . Commonwealth, Dep't of Highways v. Gisborne, 391 S.W.2d 714, 1965 Ky. LEXIS 329 ( Ky. 1965 ).

Cited:

Stillpass v. Kenton County Ariport Board, Inc., 403 S.W.2d 46, 1966 Ky. LEXIS 324 ( Ky. 1966 ); Commonwealth, Dep’t of Transp., Bureau of Highways v. Catlett, 568 S.W.2d 759, 1978 Ky. App. LEXIS 553 (Ky. Ct. App. 1978).

DECISIONS UNDER PRIOR LAW

1. County Attorney.

County attorney remained authorized representative of county in appeal by county to the Circuit Court and could have entered into an agreement with landowner pending appeal. Reams v. Laurel County, 289 Ky. 744 , 160 S.W.2d 176, 1942 Ky. LEXIS 647 ( Ky. 1942 ).

Opinions of Attorney General.

A county attorney and his law partner, who is the Commonwealth’s Attorney of that district, may pursue cases pending against the Department of Highways which are not in that county or judicial district, since there is no conflict of interest. OAG 70-307 .

A county attorney should not engage in negotiations relating to state highway rights-of-way located in his county nor condemnation cases arising in his county even though he was retained prior to assuming office, but he may represent private parties involved in condemnation proceedings in other counties since his statutory obligations as county attorney do not extend to other counties. OAG 74-111 .

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

177.083. Commissioners, appointment, oath, duties, fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 3, effective June 19, 1952) was repealed by Acts 1976, ch. 140, § 129.

177.084. Summons, issuance, contents — Report of warning order attorney. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 4; Acts 1954, ch. 243, § 1, effective March 13, 1954) was repealed by Acts 1976, ch. 140, § 129.

177.085. Answer, filing, allegations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 5, effective June 19, 1952) was repealed by Acts 1976, ch. 140, § 129.

177.086. Action by county court on commissioners’ report if no answer filed — Judgment — Hearing by court if answer filed. — Judgment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 6; Acts 1962, ch. 219, § 1) was repealed by Acts 1976, ch. 140, § 129.

177.087. Time for filing and proceedings upon appeals to the circuit court and Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 7; Acts 1954, ch. 243, § 2; Acts 1966, ch. 255, § 162(1)) was repealed by Acts 1976, ch. 140, § 129.

177.088. Payment of compensation into court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 8, effective June 19, 1952) was repealed by Acts 1976, ch. 140, § 129.

177.089. Proceedings against conflicting claimants. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 49, § 9, effective June 19, 1952) was repealed by Acts 1976, ch. 140, § 129.

177.090. Acquisition of land along federal-aid highways for scenic beauty — Condemnation.

  1. The Department of Highways is hereby authorized to acquire and improve strips of land necessary for the restoration, preservation, and enhancement of scenic beauty within and adjacent to federal-aid highways of this state, including acquisition and development of publicly owned and controlled rest and recreation areas and sanitary and other facilities within or adjacent to the highway right-of-way reasonably necessary to accommodate the traveling public.
  2. The interest in any land authorized to be acquired and maintained under this section may be the fee simple or any lesser interest, as determined by the Department of Highways to be reasonably necessary to accomplish the purposes of this section. Such acquisition may be by gift, purchase, exchange, or condemnation.
  3. The acquisition through condemnation shall be in accordance with the provisions of the Eminent Domain Act of Kentucky.

History. Enact. Acts 1966, ch. 104, § 1; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 140, § 76.

Compiler’s Notes.

Former KRS 177.090 (4356t-12) was repealed by Acts 1950, ch. 27, § 3.

The Eminent Domain Act of Kentucky referred to in subsection (3) of this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Kentucky Law Journal.

Tippy, Roads and Recreation, IV. The Highway as Recreation, B. The Highway Beautification Act of 1965, 55 Ky. L.J. 799 (1967).

177.100. Condemnation procedure. [Repealed.]

Compiler’s Notes.

This section (4356t-12) was repealed by Acts 1950, ch. 27, § 3.

177.103. Definitions for KRS 177.106.

As used in KRS 177.106 , unless the context otherwise requires:

  1. “Roads” includes highways, bridges and bridge approaches.
  2. “Encroachment” means any improvement to land constructed, created or implemented or any change from the original contour thereof, including but not limited to buildings, fences, ditches, embankments, driveways or signs, which hinders or prevents use or maintenance of roads or rights-of-way.
  3. “Person” means any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, syndicate, cooperative or any other group or combination acting as a unit.

History. Enact. Acts 1962, ch. 202, § 1.

177.106. Highway encroachment permit — Removal.

  1. Before any person shall proceed to cause or continue or allow to remain in existence any encroachment under, on or over any part of the right-of-way of a state highway he shall first obtain from the Department of Highways a permit so to do. Any encroachment heretofore or hereafter placed or allowed to continue or remain under, on or over any road which is found by the Department of Highways to be interfering in any way with the safe, convenient and continuous use and maintenance of such road shall upon thirty (30) days notice to the person or to his chief agent by the Department of Highways be removed or relocated by such person at his own expense.
  2. Whenever an order of the Department of Highways requires such removal or change in location of any encroachment from the right-of-way of a road and the person causing such encroachment or allowing same to continue or remain fails to remove or change location of same at his own expense to conform to the order within the time stated in the notice, the Department of Highways shall proceed to cause the encroachment to be removed; the expense thereby incurred shall be paid out of any money available therefor, and shall be charged against the person and levied and collected and paid into the State Treasury as provided by law.

History. Enact. Acts 1962, ch. 202, § 2.

NOTES TO DECISIONS

Analysis

  1. Warning of Encroachment.
  2. Refusal of Permit.
  3. Violation of Statute as Negligence.
1. Warning of Encroachment.

Where the Department of Highways built a road under the plaintiff’s coal chute and permitted the chute to remain intact and no change in the grade or elevation occurred after the building of the road, the plaintiff was not contributorily negligent for not posting warning notices. Tar Heel Coals, Inc. v. Turner Elkhorn Mining Co., 448 S.W.2d 385, 1969 Ky. LEXIS 56 ( Ky. 1969 ).

2. Refusal of Permit.

The constitutional restrictions against the taking of property without compensation have no application to the situation where the highway department refuses to allow an abutting property owner to build a structure over the highway. Commonwealth, Dep't of Highways v. Trimble, 451 S.W.2d 641, 1969 Ky. LEXIS 18 ( Ky. 1969 ).

3. Violation of Statute as Negligence.

Summary judgment was properly granted to the defendant in an action arising from an accident in which the driver of a fire department water truck was killed when he lost control of the truck and collided with a tree on the defendant’s property, notwithstanding that the defendant had been ordered to remove the tree in conjunction with an application by the defendant to construct a driveway, as the failure to remove the tree did not cause the accident. Estate of Wheeler v. Veal Realtors & Auctioneers, Inc., 997 S.W.2d 497, 1999 Ky. App. LEXIS 91 (Ky. Ct. App. 1999).

Notes to Unpublished Decisions

Analysis

0.5. Applicability.

3. Violation of Statute as Negligence.

0.5. Applicability.

Unpublished decision: Statute did not apply to the subcontractor in its role as a subcontractor construction company, and the subcontractor thus had no obligations under the statute, because the statute spoke only to a permittee's obligations and the subcontractor was not a permittee. Renaissance/Valley Farms, LLC v. T&C Contr., Inc., 614 Fed. Appx. 805, 2015 FED App. 0400N, 2015 U.S. App. LEXIS 9451 (6th Cir. Ky. 2015 ).

3. Violation of Statute as Negligence.

Unpublished decision: Claim for negligence per se failed because the statute applied only to encroachment permit holders and not to subcontracting construction companies, the subcontractor did not have any obligations pursuant to the statute, and the subcontractor did not violate the statute. Renaissance/Valley Farms, LLC v. T&C Contr., Inc., 614 Fed. Appx. 805, 2015 FED App. 0400N, 2015 U.S. App. LEXIS 9451 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

The highway department cannot arbitrarily or unreasonably refuse to issue an encroachment permit sought under this section. OAG 71-245 .

Although the location of newspaper vending machines on city, county and state roads would constitute a purpresture since they are there without public authority, there would be no encroachment as envisioned by this section. OAG 77-260 .

Where a husband and wife deeded certain lands to the state in fee simple for the benefit and use of the Department of Highways, in contemplation of the construction and maintenance of a road, and where the state’s title to the road and maintenance responsibility were never transferred to the county in which the road was located, but the state and the county maintained the road for several years, only the state had the right to permit a gas company to run a gas pipeline along the subject road right-of-way, since this section and KRS 416.140 , which control, are in pari materia and do not conflict, since the right to grant permissive use of a state highway must be expressed in terms of a highway encroachment permit pursuant to this section and since, under KRS 416.140 , the location of such gas lines would, under a permit, be subject to the reasonable direction and regulation of the Bureau (now Department) of Highways. OAG 81-183 .

Transportation and Tourism Interagency Committee

177.107. Transportation and Tourism Interagency Committee — Purpose.

The Transportation and Tourism Interagency Committee is established to foster close collaboration between the Tourism, Arts and Heritage Cabinet and the Transportation Cabinet on policies that affect the tourism industry and to place strong emphasis on the coordination of mutual interests such as highway signage, scenic byways, highway safety, and concern for the Commonwealth’s beauty and heritage.

History. Enact. Acts 1998, ch. 334, § 1, effective July 15, 1998; 2005, ch. 95, § 40, effective June 20, 2005; 2009, ch. 16, § 54, effective June 25, 2009.

177.108. Membership of Transportation and Tourism Interagency Committee — Compensation — Officers — Meetings — Proxy voting.

  1. The Transportation and Tourism Interagency Committee shall be composed of thirteen (13) members or their official appointed designees, as follows:
    1. Six (6) members appointed by the secretary of the Tourism, Arts and Heritage Cabinet;
    2. Six (6) members appointed by the secretary of the Transportation Cabinet; and
    3. One (1) member appointed by the executive director of the Kentucky Heritage Council.
  2. Committee members shall receive no compensation for their services, but shall be entitled to reimbursement for all reasonable expenses necessarily incurred in connection with the performance of their duties and functions as committee members.
  3. The committee shall elect its chair and vice chair from representatives of the Tourism, Arts and Heritage and Transportation Cabinets for a term of one (1) year. The vice chair shall succeed the chair. The chair shall alternately be a representative of the Tourism, Arts and Heritage and Transportation Cabinets.
  4. The committee shall meet upon the call of the chair and upon the request of the secretary of the Tourism, Arts and Heritage Cabinet or the secretary of the Transportation Cabinet.
  5. A committee member may appoint a proxy for an individual meeting, delegating to the proxy the privilege of voting on any issue. The proxy appointment shall be in writing.

History. Enact. Acts 1998, ch. 334, § 2, effective July 15, 1998; 2005, ch. 95, § 41, effective June 20, 2005; 2009, ch. 16, § 55, effective June 25, 2009.

177.109. Duties and responsibilities.

The Transportation and Tourism Interagency Committee shall have but not be limited to the following duties and responsibilities:

  1. Review Kentucky’s signage laws, administrative regulations, and policies implementing the federal “Manual on Uniform Traffic Control Devices” and submit any proposed revisions to the secretary of the Transportation Cabinet;
  2. Seek public comment on Kentucky’s signage laws, administrative regulations, and policies;
  3. Advise the Transportation Cabinet on the scenic byways and highways program;
  4. Review and make recommendations on requests for highway signage from tourism-related entities;
  5. Coordinate development of the tourism information potential of welcome centers and rest areas through such means as interactive videos, information kiosks, and highway advisory radio transmitters, as well as other innovative methods which may be identified by the committee;
  6. Monitor developments across the United States relating to billboards and official signs;
  7. Report to the secretary of the Transportation Cabinet and to the secretary of the Tourism, Arts and Heritage Cabinet on issues of mutual interest to the cabinets;
  8. Serve as an advisory committee on issues identified by the secretary of the Transportation Cabinet and secretary of the Tourism, Arts and Heritage Cabinet; and
  9. Report committee recommendations to the secretary of the Transportation Cabinet, the secretary of the Tourism, Arts and Heritage Cabinet, the secretary of the Education and Workforce Development Cabinet, and the secretary of the Executive Cabinet.

History. Enact. Acts 1998, ch. 334, § 3, effective July 15, 1998; 2005, ch. 95, § 42, effective June 20, 2005; 2006, ch. 211, § 115, effective July 12, 2006; 2009, ch. 11, § 59, effective June 25, 2009; 2009, ch. 16, § 56, effective June 25, 2009.

Legislative Research Commission Note.

(6/25/2009). This section was amended by 2009 Ky. Acts chs. 11 and 16, which do not appear to be in conflict and have been codified together.

Railroad Crossings

177.110. Railroad crossings — Construction of KRS 177.120 to 177.210.

  1. The provisions of KRS 177.120 to 177.210 shall not apply to any railroad lines or tracks constructed across primary roads after March 23, 1926.
  2. Where railroad lines or tracks constructed after March 23, 1926 cross any primary road, the department shall determine the character of the crossing to be constructed by the railroad company, and the cost of such crossings shall be paid for by the railroad company.

History. 4356z-9.

Research References and Practice Aids

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

177.120. Department may order elimination of grade crossings or substitution — Standards to be set by administrative regulations — Closure of grade crossings.

  1. Whenever the department considers it necessary for the public safety, it may order any railroad company owning or operating a railroad in this state, to eliminate any grade crossing or change any existing overhead or underpass structure where any public road crosses the railroad tracks of the company. The department may determine whether a substitute crossing should be established and if so, the location of the crossing to be substituted, and whether it shall pass over or under the railroad tracks or intersect them at grade.
  2. In accordance with this section, the department shall promulgate administrative regulations by December 1, 1992, that contain standards governing the closure of public grade crossings. In adopting standards, the department shall request and consider written comments from affected local governments and shall consider that the number of redundant and inherently dangerous grade crossings in this state should be reduced and that public safety will be enhanced by reducing the number of redundant and inherently dangerous grade crossings.
  3. On or before July 1, 1993, and on or before July 1 of each of the next four (4) years, and as necessary thereafter, the department shall compose a list of grade crossings proposed to be closed. The list shall be developed by applying the standards set forth in the administrative regulations adopted under subsection (2) of this section. Grade crossings that are part of an abandonment, closing, or removal shall not be included in the list. The department shall notify the public officials having the necessary authority and the railway companies operating the railroads of the proposed closures. Either affected party may request a public hearing, and if requested, the department shall hold a public hearing and apply in its determination the information gained at the public hearing and administrative regulations developed under subsection (2) of this section. If after the hearing the department determines that closure is warranted, it may order the crossing closed.
  4. If a request for a hearing on a particular crossing is not received within thirty (30) days of notice of the opportunity for a public hearing advertised pursuant to the requirements of KRS Chapter 424, the department shall order the crossing closed.

History. 4356z-1; 4356z-10; 1992, ch. 229, § 6, effective July 14, 1992; 1994, ch. 195, § 2, effective July 15, 1994.

NOTES TO DECISIONS

1. Application.

This section has no application to the closing or obstructing of a railroad crossing, but only applies when an overhead or underpass is substituted for a grade crossing. McCreary County Fiscal Court v. Roberts, 292 Ky. 527 , 166 S.W.2d 977, 1942 Ky. LEXIS 112 ( Ky. 1942 ).

KRS 93.280 (now repealed) and this section did not apply to permit county to enjoin appellee from laying tracks across roads at grade level where railroad planned to construct 5.75 miles of track that would cross three roads within county as such roads were county roads and not part of the primary road system of the state nor within the corporate limits of a first class city. Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

177.130. Hearing — Order — Plans, specifications, and estimates of cost.

If the department finds that a crossing proposed for vacation should be replaced with another grade crossing or a grade separation, it shall give at least ten (10) days’ notice by certified mail, return receipt requested, to the railroad company and to the chief executive officer of the affected unit of local government of a public hearing to be held at a time and place stated in the notice. At the public hearing, the department shall consider whether or not the proposed grade separation or substitute crossing is reasonably necessary and the most advantageous method of enhancing the public convenience and necessity. If the department finds that the grade separation or substitute crossing is reasonably necessary, it shall make an order to that effect and furnish a copy thereof by certified mail, return receipt requested, to the railroad company and to the chief executive officer of the affected unit of local government. The order shall specify the location of the crossing to be substituted and whether it shall pass over or under the railroad tracks or intersect them at grade, the width of the crossing, and the angle at which the crossing shall meet and converge into the roadbed on either side of the railroad tracks. The order may direct the railroad company to prepare plans, specifications, and estimates of cost for the grade separation or substitute crossing in accordance with the general plan prescribed by the order. The order may provide that the plans, specifications, and estimates of cost shall be prepared by the department.

History. 4356z-2: amend. Acts 1974, ch. 74, Art. IV, § 20(1); 1974, ch. 315, § 21; 1980, ch. 114, § 29, effective July 15, 1980; 1992, ch. 229, § 7, effective July 14, 1992; 1996, ch. 318, § 61, effective July 15, 1996.

177.140. Railroad company to present plans and estimates of cost.

Within ninety (90) days after the entry of an order directing a grade separation or change, and the preparation of plans, specifications, and estimates of cost by the railroad company, the railroad company shall present to the department plans, specifications, and estimates of cost for the grade separation or change, including the necessary approaches thereto.

History. 4356z-3.

177.150. Final hearing — Notice — Final order — Waiver of proceedings — Appeal.

  1. After receipt of the plans, specifications, and estimates of cost from the railroad company, the department shall give at least ten (10) days’ notice by certified mail, return receipt requested, to the railroad company of a time and place for a conference with respect to the grade separation or change. If the department elects to prepare plans, specifications, and estimates of cost, it shall furnish copies thereof to the railroad company prior to or at the time it gives notice of the conference. At the conference, the department shall approve or modify the plans and specifications and shall consider and determine the method of doing the work, whether by the railroad company or by the department, or partly by one and partly by the other, and whether by contract or by the employees of the department or the railroad company, or both, or by any combination of these methods, and if by contract, the method and manner of advertising for bids, the time and place of opening the bids, the time when work shall be begun and completed, and all similar matters of an administrative nature. The department shall embody its conclusions in an order, a copy of which shall be sent by certified mail, return receipt requested, to the railroad company.
  2. The department and any railroad company may agree by contract as to the method of eliminating any grade crossing or changing any existing overhead or underpass structure. In event of an agreement, all notices, hearings, and proceedings shall be deemed to have been waived, and the work of eliminating the grade crossing or making the change shall be performed in accordance with the terms of the contract, with the same effect as though the work was being performed pursuant to a final order of the department.
  3. Any person aggrieved by an order issued pursuant to subsection (1) of this section may appeal to the department, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.

History. 4356z-4: amend. Acts 1974, ch. 74, Art. IV, § 20(1); 1974, ch. 315, § 22; 1980, ch. 114, § 30, effective July 15, 1980; 1996, ch. 318, § 62, effective July 15, 1996.

177.160. Rejection of bids — Department may do work.

  1. The department may by supplemental orders reject or order the rejection of all bids submitted for the work, or any part thereof, and require a readvertisement for bids. The department may reject all bids and elect to do the work itself, or partly by itself and by the railroad company, or by contractors, or by a combination of these methods. If the department elects to do the work itself there shall not be charged to the railroad company any sum in excess of that it would have been required to pay had the contract been let to the lowest bidder.
  2. In all cases where the work is let by the railroad company on contract, the work shall be done under the general supervision of the department.

History. 4356z-5.

177.170. Division of costs — Payment.

  1. The cost of preparing the plans, specifications and estimates of cost and of advertising for bids shall be paid wholly by the railroad company. The state shall pay one-half (1/2) of the cost of the work within the right-of-way lines of the railroad company, extended across the highway, and the railroad company shall pay the other one-half (1/2) of the cost of the work lying within said lines. The department shall pay the entire cost of all work lying beyond the right-of-way lines of the railroad.
  2. As the work progresses the department shall furnish to the railroad company, and the railroad company shall furnish to the department, a monthly statement showing in detail all amounts expended in connection with the work. On or about the fifteenth of each month the state highway engineer shall prepare a statement showing the total amount expended to the close of the preceding month, the amount paid or expended by each party up to that time, and the amount due from the department to the railroad company or from the railroad company to the department. Upon receipt of the statement each party shall pay to the other the amounts shown to be due thereby.
  3. All payments made on such monthly statements shall be considered only payments on account, and upon final completion of the work the state highway engineer shall prepare and furnish to the railroad company a statement showing the total cost of the work, the amount paid or expended by the department or the railroad company, and the amount due from one to the other. Each party shall be afforded reasonable opportunities to verify the statements of expenditures by the other, and the balance due as certified by the state highway engineer in his final statement shall be paid by one (1) party to the other promptly upon receipt of such final statement.
  4. The work lying within the right-of-way of the railroad shall be maintained at the expense of the railroad company, but the railroad company shall not be required to keep up the surface of the roadbed of the highway.

History. 4356z-6; 4356z-11.

Research References and Practice Aids

ALR

Constitutional power to compel railroad company to relocate or reconstruct highway crossing or to pay or contribute to expense thereof. 55 A.L.R. 660; 62 A.L.R. 815; 109 A.L.R. 768.

177.180. Highway engineer to approve contracts.

All contracts let by the railroad company under KRS 177.120 to 177.210 shall have the approval of the state highway engineer, in writing, indorsed on the contract.

History. 4356z-8.

177.190. Appeal by railroad company to Circuit Court.

  1. Any railroad company dissatisfied with a final order of the department directing the elimination of any grade crossing or change of existing overhead or underpass structure, or any order modifying or amending the final order may appeal by filing a petition in the clerk’s office of the Franklin Circuit Court in accordance with KRS Chapter 13B.
  2. On the hearing of the appeal, the Circuit Court shall determine whether the elimination of the grade crossing, or the change in existing overhead or underpass structure, is reasonably necessary for the safety of the traveling public, and whether the plans and specifications prescribed by the order of the department are reasonably adequate to provide safety of operation for the trains of the railroad company, its employees and the public, and make reasonably adequate provisions for the future development of the railroad company’s facilities.
  3. If the court finds from the evidence that the elimination of the grade crossing or change in existing overhead or underpass structure is not reasonably necessary for the safety of the traveling public, it shall, by final judgment, enjoin the department from enforcing its final order.
  4. If the court finds from the evidence that the elimination of the grade crossing or change in existing overhead or underpass structure is reasonably necessary for the safety of the traveling public, it shall, by final judgment, either order the railroad company to proceed with the work in accordance with the final order of the department, or in accordance with other plans and specifications prescribed by the court.

History. 4356z-7: amend. Acts 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 62, § 93; 1996, ch. 318, § 63, effective July 15, 1996.

177.200. Appeal to Court of Appeals.

Either the department or the railroad company affected by the final judgment of the Circuit Court may appeal to the Court of Appeals in accordance with the Rules of Civil Procedure.

History. 4356z-7: amend. Acts 1960, ch. 104, § 11; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 62, § 94.

177.210. Department may bring action to enforce order.

If any railroad company fails to comply with any order of the department issued under authority of KRS 177.120 to 177.210 , the department may cause to be instituted in the Franklin Circuit Court, in the name of the state, an action to compel compliance with the order by mandatory process of the court.

History. 4356z-12.

Limited Access Facilities

177.220. Definition of “limited access facility.”

For the purpose of KRS 177.220 to 177.310 , a limited access facility is defined as a highway or street especially designed for through traffic, and over, from or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be freeways open to use by all customary forms of street and highway traffic.

History. Enact. Acts 1946, ch. 225, § 2.

NOTES TO DECISIONS

1. Designation.

Where highway bypass was designated a limited access facility before it was built, it was such although there were several intersections at grade level and no under or over passes and so billboards could be removed therefrom. Lunsford v. Ward, 411 S.W.2d 39, 1967 Ky. LEXIS 454 ( Ky. 1967 ).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ).

Opinions of Attorney General.

In view of Regulations 603 KAR 5:020 and 5:025 which prohibit pedestrian travel and hitchhiking on a fully controlled limited access highway, hitchhikers on interstate highways may be prosecuted under KRS 177.990 . OAG 75-558 .

Research References and Practice Aids

Kentucky Law Journal.

Kuehn, Loss of Access — A Right to Be Compensated, 60 Ky. L.J. 727 (1971).

177.230. Establishment of limited access facilities — Regulation of use.

The highway authorities of the state, counties, cities, and towns, acting alone or in cooperation, with each other or with any federal, state, or local agency or any other state having authority to participate in the construction and maintenance of highways, are hereby authorized to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities: provided, that within cities such authority shall be subject to such municipal consent as may be provided by law. Said highway authorities of the state, counties, cities, and towns, in addition to the specific powers granted in KRS 177.220 to 177.310 , shall also have and may exercise, relative to limited access facilities, any and all additional authority now or hereafter vested in them relative to highways or streets within their respective jurisdictions. Said units may regulate, restrict, or prohibit the use of such limited access facilities by the various classes of vehicles or traffic in a manner consistent with KRS 177.220 .

History. Enact. Acts 1946, ch. 225, § 3; 2019 ch. 44, § 25, effective June 27, 2019.

NOTES TO DECISIONS

1. Removal of Advertising Signs.

Where bypass was designated a limited access highway before it was constructed even though a few abutting property owners were allowed access to it the commissioner could not be enjoined from removing advertising signs erected and maintained on property adjacent to the bypass. Lunsford v. Ward, 411 S.W.2d 39, 1967 Ky. LEXIS 454 ( Ky. 1967 ).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ); Sturgill v. Commonwealth, Dep’t of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

Opinions of Attorney General.

In view of Regulations 603 KAR 5:020 and 5:025 which prohibit pedestrian travel and hitchhiking on a fully controlled limited access highway, hitchhikers on interstate highways may be prosecuted under KRS 177.990 . OAG 75-558 .

177.240. Design of facilities — Regulation of access.

The highway authorities of the state, county, city, and town are authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended, and its determination of such design shall be final. In this connection, such highway authorities are authorized to divide and separate any limited access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes, and other devices. No person shall have any right of ingress or egress to, from, or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time.

History. Enact. Acts 1946, ch. 225, § 4; 1984, ch. 213, § 1, effective July 13, 1984; 2006, ch. 173, § 27, effective July 12, 2006; 2019 ch. 44, § 26, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ); Sturgill v. Commonwealth, Dep’t of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

Opinions of Attorney General.

This section pinpoints the sound discretion vested in the applicable “highway authorities”; and it stresses that such authorities administrative or executive action, as such, is final. It was not intended to prohibit some subsequent change in access after construction. OAG 83-118 .

Under KRS 175.450(9), the turnpike authority, acting in concert with the department of highways, has the authority to grant additional access points on a turnpike. However, such a decision, as a sound exercise of discretion, must be on a case-by-case basis, and be based upon the general public’s best interest in terms of peace, health, safety, convenience, and general and economic welfare; such a decision for additional access points must be subject to available funding of construction and maintenance, and must in no way compromise or lessen in any way the rights of bondholders involved in the original turnpike construction. OAG 83-118 .

177.250. Acquisition of property and property rights — Options to acquire — Administrative regulations.

  1. For the purposes of KRS 177.220 to 177.310 , the highway authorities of the state, county, or city may acquire private or public property and property rights for limited access facilities and service roads, including rights of access, air, view, and light, by gift, devise, purchase, or condemnation in the same manner as such units are authorized by law to acquire property or property rights in connection with highways and streets within their respective jurisdiction. Except as provided in subsection (2) of this section, all property rights acquired under the provisions of KRS 177.220 to 177.310 shall be in fee simple. In connection with the acquisition of property or property rights for any limited access facility or portion thereof, or service road in connection therewith, the state, county, or city highway authority may, in its discretion, acquire an entire lot, block, or tract of land, if by so doing, the interests of the public will be best served, even though said entire lot, block, or tract is not immediately needed for the right-of-way proper.
  2. A city, county, or urban-county independently, or any combination of a city, county, or urban-county that have entered into an interlocal cooperative agreement under KRS 65.210 to 65.300 , may purchase options to acquire property or property rights on highways or streets within their respective jurisdictions if the property or property rights to be acquired are for highway projects included in:
    1. The most recent twenty (20) year statewide transportation plan adopted by the Transportation Cabinet and submitted to the Federal Highway Administration;
    2. The most recent six (6) year road plan enacted by the General Assembly;
    3. The most recent long-range transportation plan adopted by a metropolitan planning organization and submitted to the Transportation Cabinet; or
    4. The most recent recommendations of an area development district transportation committee that have been submitted to the Transportation Cabinet.
  3. The secretary of the Transportation Cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish guidelines governing the purchase of options under subsection (2) of this section.

History. Enact. Acts 1946, ch. 225, § 5; 1966, ch. 255, § 163; 1998, ch. 131, § 1, effective July 15, 1998; 2009, ch. 78, § 40, effective June 25, 2009.

NOTES TO DECISIONS

  1. Right of Condemnation.
  2. Evaluation.
  3. Noncompensatory Factors.
  4. Determination of Necessity.
1. Right of Condemnation.

State was entitled to condemn land for a ramp leading to motel from a nonaccess highway, the controlling question being whether or not the public has a right to use the ramp upon the same terms as the person at whose instance it was established. Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

2. Evaluation.

The land must be valued in condemnation cases on the basis of its use at the time of taking unless it can be shown that there is an expectation or probability of other uses in the near future which would augment its value. Sloan v. Commonwealth, Dep't of Highways, 405 S.W.2d 294, 1966 Ky. LEXIS 253 ( Ky. 1966 ).

3. Noncompensatory Factors.

Loss of some access to the property is not compensable as long as the owners retain reasonable means of access. Sloan v. Commonwealth, Dep't of Highways, 405 S.W.2d 294, 1966 Ky. LEXIS 253 ( Ky. 1966 ).

4. Determination of Necessity.

While the right to condemn for access roads was incident to the right to condemn for a main highway, access roads were not so unimportant and trivial that land could be condemned for them without an official determination of necessity. Commonwealth, Dep't of Highways v. Salmon Corp., 489 S.W.2d 32, 1972 Ky. LEXIS 25 ( Ky. 1972 ).

Cited:

Lunsford v. Ward, 411 S.W.2d 39, 1967 Ky. LEXIS 454 ( Ky. 1967 ); Commonwealth, Dep’t of Transp., Bureau of Highways v. Knieriem, 707 S.W.2d 340, 1986 Ky. LEXIS 238 ( Ky. 1986 ).

Research References and Practice Aids

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

Collateral References.

ALR

Power to condemn abutting owner’s right of access to limited access highway or street. 43 A.L.R.2d 1073.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway. 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway. 42 A.L.R.3d 148.

177.260. Precedence of condemnation cases in courts.

Court proceedings necessary to acquire property or property rights for purposes of KRS 177.220 to 177.310 shall take precedence over all other causes not involving the public interest in all courts, to the end that the provision of limited access facilities may be expedited.

History. Enact. Acts 1946, ch. 225, § 6.

Opinions of Attorney General.

Where a city deeded its publicly owned right-of-way along a city street to the department of highways, the department could not assume the responsibility for, or the costs of relocating sewer lines and laterals located within the public way. OAG 60-498 .

177.270. Use of existing facilities — Grade crossing elimination — Public way connections.

The highway authority of the state, county, city, and town may designate and establish limited access highways as new and additional facilities or may designate and establish an existing street or highway as included within a limited access facility. The state or any of its subdivisions shall have authority to provide for the elimination of intersections at grade of limited access facilities with existing state and county roads, and city and town streets, by grade separation or service road, or by closing off such roads and streets at the right-of-way boundary line of such limited access facility; and after the establishment of any limited access facility, no highway or street which is not part of said facility shall intersect the same at grade. No city or town street, county or state highway or other public way shall be opened into or connected with any such limited access facility without the consent and previous approval of the highway authority in the state, county, city, or town having jurisdiction over such limited access facility. Such consent and approval shall be given only if the public interest shall be served thereby.

History. Enact. Acts 1946, ch. 225, § 7; 2019 ch. 44, § 27, effective June 27, 2019.

NOTES TO DECISIONS

1. Closing Public Road.

The Department of Highways has express authority under this section and KRS 177.430 and 177.440 to close a public road that crosses a turnpike or grade but the regular procedure for closing a county road under KRS 178.070 to 178.100 must be followed. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

177.280. Agreements of local governmental units respecting facilities.

The highway authorities of the state, city, county, and town are authorized to enter into agreements with each other, or with the federal government, respecting the financing, planning, establishment, improvement, maintenance, use, regulation, or vacation of limited access facilities or other public ways in their respective jurisdictions, to facilitate the purposes of KRS 177.220 to 177.310 .

History. Enact. Acts 1946, ch. 225, § 8; 2019 ch. 44, § 28, effective June 27, 2019.

177.290. Local service roads and streets.

In connection with the development of any limited access facility, the state, county, city, and town highway authorities are authorized to plan, designate, establish, use, regulate, alter, improve, maintain, and vacate local service roads and streets or to designate as local service roads and streets any existing road or street, and to exercise jurisdiction over service roads in the same manner as is authorized over limited access facilities under the terms of KRS 177.220 to 177.310 , if in their opinion such local service roads and streets are necessary or desirable. Such local service roads or streets shall be of appropriate design, and shall be separated from the limited access facility proper by means of all devices designated as necessary or desirable by the proper authority.

History. Enact. Acts 1946, ch. 225, § 9; 2019 ch. 44, § 29, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

177.300. Traffic rules on limited access facilities.

It is unlawful for any person (1) to drive a vehicle over, upon, or across any curb, central dividing section or other separation or dividing line on limited access facilities; (2) to make a left turn or a semicircular or U-turn except through an opening provided for that purpose in the dividing curb section, separation or line; (3) to drive any vehicle except in the proper lane provided for that purpose and in the proper direction and to the right of the central dividing curb, separation section, or line; (4) to drive any vehicle into the limited access facility from a local service road except through an opening provided for that purpose in the dividing curb, or dividing section or dividing line which separates such service road from the limited access facility proper.

History. Enact. Acts 1946, ch. 225, § 10.

177.305. Prevention of spillage from trucks hauling coal.

All trucks hauling coal on a fully controlled limited access highway shall be covered by a tarp or equivalent cover to prevent spillage.

History. Enact. Acts 1988, ch. 415, § 3, effective July 15, 1988.

177.310. Declaration of policy.

The legislature hereby finds, determines, and declares that KRS 177.220 to 177.310 is necessary for the immediate preservation of the public peace, health, and safety, and for the promotion of the general welfare.

History. Enact. Acts 1946, ch. 225, § 1.

177.315. Spacing of access control points on limited access facilities for those having limited rights or easement of access.

  1. As used in this section, “partial control of access” means the limited right or easement of access granted by the Transportation Cabinet under subsection (2) of this section.
  2. The Transportation Cabinet shall establish minimum spacing requirements for partial control of access to a limited access facility, and the manner that the access is to be provided, for the owners or occupants of land or other persons who have a limited right or easement of access under KRS 177.220 . Minimum spacing between access points shall be one thousand two hundred (1,200) feet in rural areas and six hundred (600) feet in urban areas.
  3. The Transportation Cabinet may change the spacing of access control points if:
      1. An owner or occupant of land abutting a limited access facility requests the cabinet for the change; or (a) 1. An owner or occupant of land abutting a limited access facility requests the cabinet for the change; or
      2. A local government requests the cabinet for the change; and
    1. The change in spacing of access points is supported by an engineering and traffic study approved by the state highway engineer.

History. Enact. Acts 1998, ch. 528, § 1, effective July 15, 1998; 2006, ch. 173, § 26, effective July 12, 2006.

177.317. Hal Rogers Parkway — Access control and spacing.

The Transportation Cabinet shall allow partial control of access on the Hal Rogers Parkway, between the junction with KY 192 and the junction with KY 80, and establish minimum spacing requirements and the manner in which the access is to be provided. Minimum access spacing under this section shall be no less than one thousand two hundred (1,200) feet.

History. Enact. Acts 2005, ch. 147, § 1, effective June 20, 2005; 2009, ch. 94, § 1, effective March 24, 2009.

Use of Gasoline Tax Revenues

177.320. Use of portion of gasoline tax revenues for secondary and rural roads, county roads and bridges and the Kentucky Transportation Center — Allocation of funds.

  1. Twenty-two and  two-tenths percent (22.2%) of all funds arising from the imposition  of taxes provided by KRS 138.220(1) and (2), 138.660(1) and  (2) and 234.320 shall  be set aside for the construction, reconstruction and maintenance  of secondary and rural roads and for no other purpose, and shall be  expended for said purposes by the Transportation Cabinet of the Commonwealth  of Kentucky according to the terms and conditions prescribed in KRS 177.330 to 177.360 .
  2. On or after July  1, 1980, eighteen and three-tenths percent (18.3%) of all funds arising  from the imposition of taxes provided by KRS 138.220(1) and (2), 138.660(1) and  (2), and 234.320 shall  be set aside for the construction, reconstruction and maintenance  of county roads and bridges provided by KRS 179.410 and 179.415 .
  3. All funds set  aside in subsection (2) of this section for the construction, reconstruction  and maintenance of county roads and bridges shall be allocated to  the county in accordance with the formula established in KRS 177.360(1) pursuant to KRS 179.410 .
  4. On or after July  1, 1986, one-tenth of one percent (0.1%) of all funds arising from  the imposition of taxes provided by KRS 138.220(1) and (2), 138.660 and 234.320 shall  be set aside for the purposes and functions of the Kentucky Transportation  Center as established by KRS 177.375 to 177.380 , except  that the receipts provided to the center by this subsection shall  not exceed one hundred ninety thousand dollars ($190,000) for any  fiscal year.

History. Enact. Acts 1948, ch. 46, § 1; 1972, ch. 61, § 10; 1974, ch. 291, § 1; 1980, ch. 188, § 132, effective July 1, 1980; 1980, ch. 218, § 9, effective July 1, 1980; 1982, ch. 265, § 10, effective April 1, 1982; 1984, ch. 350, § 3, effective July 13, 1984; 1986, ch. 174, § 8, effective July 1, 1986; 1986, ch. 330, § 1, effective July 15, 1986; 2005, ch. 173, Pt. XVII, § 3, effective July 1, 2005.

NOTES TO DECISIONS

Cited:

Opinions of Attorney General.

Rural and secondary fund money can be spent on a road which is a part of a county road system, as defined in KRS 178.010 , even though county road aid funds authorized by subsection (2) of this section (county roads and bridges) and 179.410 to 179.430 can be spent only on such county roads, since a “secondary and rural” road for purposes of fund distribution may include a county road, but a “county road” can be only a road meeting the definition under KRS 178.010 and 179.010(1). OAG 79-533 .

The term “secondary and rural” is broad enough to include “county roads,” but “county roads” are not necessarily “secondary and rural.” OAG 79-533 .

Where county fiscal court designated several county roads for repair under the Rural Secondary Road Fund and subsequently the state conferred with party patrons in the county and proceeded to change the list of county roads to be repaired and began repairing county roads without ever seeking or receiving authorization from the fiscal court, the state’s action was legal since the fiscal court was given a chance to recommend as to the project, but the Department of Rural Aid could not agree with the fiscal court. OAG 84-336 .

“County Roads” are public roads which have been formally accepted by the fiscal court of the county as a part of the county road system. OAG 85-73 .

Under the statutory definitions, a “secondary and rural” road for purposes of fund distribution by the state, under subsection (1) of this section, may include a “county road,” as well as a “secondary and rural road.” However, a “county road,” for purposes of fund distribution, under subsection (2) of this section, can only be a road meeting the definition of KRS 178.010(1)(b). OAG 85-73 .

A county cannot maintain a road not shown on a county road aid map (County Road Series Map) adopted by the fiscal court, unless such road was entitled to acceptance as a part of the county road system, and has been so accepted by the fiscal court; it is a rebuttable presumption that a road not shown on a County Road Series Map that has been formally adopted for a county, is not a “county road” within the meaning of KRS 178.010(1)(b). OAG 93-48 .

Costs of advertising an ordinance for adoption of a road as a county road, and the cost of preparing a deed in connection with conveying a right-of-way to the county, cannot be properly viewed as costs for “construction, reconstruction and maintenance” as used in subsection (2) of this section and therefore such costs cannot be paid for from county road aid funds. OAG 93-64 .

Where statute directs that an expense allowance shall be received by the county judge/executive, paying agency cannot accede to the request of the county judge/executive that such payment be instead made to the county treasury. OAG 94-67 .

Research References and Practice Aids

Cross-References.

Expenditure of state aid appropriations for rural highways, KRS 179.410 to 179.440 .

2020-2022 Budget Reference.

See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 7, (1) at 952.See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 7, (2) at 952.See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 7, (3) at 952.

2018-2020 Budget Reference.

See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 4, (4) at 1935.See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 7, (1) at 1937.See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 7, (2) at 1937.See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 7, (3) at 1937.

177.330. Consultation by Department of Rural and Municipal Aid with fiscal courts for selection of roads to be improved — Recommendations — Road through city with population of less than 3,000.

  1. At least once  in each calendar year, the Department of Rural and Municipal Aid,  through a duly authorized representative, shall consult with the fiscal  courts of the various counties for the purpose of receiving recommendations  from the fiscal courts for the selection of rural and secondary roads  lying within the counties for construction, reconstruction, or maintenance  under the Rural and Secondary Road Program as set forth in KRS 177.320(1). The Department of Rural and Municipal Aid may receive recommendations  from any citizen on the selection of rural and secondary roads for  construction, reconstruction, or maintenance under the Rural and Secondary  Road Program. The Department of Highways shall notify each county  fiscal court of the county roads that the department intends to construct,  reconstruct, or maintain in accordance with the provisions of KRS  Chapters 177 and 179.
  2. Where the construction  of a secondary or rural road through an incorporated city with a population  of less than three thousand (3,000) based upon the most recent federal  decennial census is necessary, as determined by the Department of  Rural and Municipal Aid, the road may be constructed, reconstructed,  or maintained at the discretion of the Department of Rural and Municipal  Aid.

History. Enact. Acts 1948, ch. 46, § 1; 1956 (2nd Ex. Sess.), ch. 4, § 1, effective June 26, 1956; 1984, ch. 350, § 4, effective July 13, 1984; 1996, ch. 238, § 2, effective July 15, 1996; 2005, ch. 98, § 7, effective June 20, 2005; 2009, ch. 13, § 10, effective June 25, 2009; 2014, ch. 92, § 249, effective January 1, 2015.

NOTES TO DECISIONS

1. Constitutionality.

Where an attack on this statute was based on the unconstitutionality of the delegation of authority to the commissioner of highways to determine what constituted rural roads and which of those roads would be improved, the court held the attack groundless because the power of the commissioner was only to determine priority schedules within each county and the complaining taxpayers did not assert any dissatisfaction with the priority schedule for improvement of rural or county roads within their county. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Opinions of Attorney General.

Under this section the state Department of Highways must consult with the fiscal courts of the various counties about secondary rural roads but under KRS 177.340 , if the county and state court agree on the matter, the state highway department has authority to construct, reconstruct, blacktop or maintain said roads under this section and KRS 177.340 . OAG 71-178 .

Reading KRS 177.340 and this section together, it is evident that the Department of Rural Aid is required to use its sound discretion in considering the county’s recommendations within the Department’s consideration of the development of a system of secondary highways, which may become a part of the state highway system, at the discretion of the Department of Highways. OAG 84-336 .

Under KRS 177.330 to 177.360 the Department of Rural Aid’s consulting with the particular fiscal court and the receiving of a recommendation from the fiscal court as to the proposed road project are mandatory; the Department is required to give the fiscal court’s recommendation due consideration. OAG 84-336 .

Where county fiscal court designated several county roads for repair under the Rural Secondary Road Fund and subsequently the state conferred with party patrons in the county and proceeded to change the list of county roads to be repaired and began repairing county roads without ever seeking or receiving authorization from the fiscal court, the state’s action was legal since the fiscal court was given a chance to recommend as to the project, but the Department of Rural Aid could not agree with the fiscal court. OAG 84-336 .

“Secondary and rural roads,” within the meaning of KRS 177.360 , are those roads lying outside of cities, towns and urban areas having a population of 2,500 or more, but do not include state or federal highways. OAG 85-73 .

The selection of secondary and rural roads for improvement in each county is made by agreement between the fiscal court and the Department of Highways, or if no agreement can be reached, then by the Department alone. OAG 85-73 .

Considering that the statutes permit the spending of Rural and Secondary Road Fund money on “county roads” (as defined by KRS 178.010 ), under the explicit terms of subsection (1) of this section, the Department of Rural and Municipal Aid and the fiscal court must come to an agreement in order that the Transportation Cabinet can proceed with a “county road” project, pursuant to this chapter and KRS Ch. 179. OAG 85-73 .

For the Department of Rural and Municipal Aid to construct or reconstruct or to do maintenance on a county road without any agreement with the fiscal court of that county would be in violation of this section. OAG 85-73 .

177.340. Selection of roads to be improved in case of disagreement with fiscal court — Roads become part of state highway system.

If, within thirty (30) days after consulting with a fiscal court, the Department of Rural and Municipal Aid and the fiscal court fail to agree on the selection of any rural and secondary roads for construction, reconstruction, or maintenance under the Rural and Secondary Road Program, the department may proceed toward the construction, reconstruction, or maintenance of any road, which, in its discretion, is essential to a system of secondary highways. Rural and secondary roads constructed, reconstructed, or maintained in accordance with an agreement between the affected county and the Department of Rural and Municipal Aid, or selected for construction, reconstruction, or maintenance by the Department of Rural and Municipal Aid, at its discretion, without agreement with the affected county, may become a part of the highway system of the Commonwealth of Kentucky at the discretion of the Department of Highways.

History. Enact. Acts 1948, ch. 46, § 1; 1956 (2nd Ex. Sess.), ch. 4, § 2; 1984, ch. 350, § 5, effective July 13, 1984; 1996, ch. 238, § 4, effective July 15, 1996; 2005, ch. 98, § 8, effective June 20, 2005; 2009, ch. 13, § 11, effective June 25, 2009.

NOTES TO DECISIONS

1. Constitutionality.

Where an attack on this statute was based on the unconstitutionality of the delegation of authority to the commissioner of highways to determine what constituted rural roads and which of those roads would be improved, the court held the attack groundless because the power of the commissioner was only to determine priority schedules within each county and the complaining taxpayers did not assert any dissatisfaction with the priority schedule for improvement of rural or county roads within their county. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Opinions of Attorney General.

Under KRS 177.360 , in the absence of an agreement with the fiscal court, the selection of any secondary or rural roads for construction, reconstruction or maintenance can be made by the state highway department pursuant to this section, in its discretion. OAG 71-298 .

Reading KRS 177.330 and this section together, it is evident that the Department of Rural Aid is required to use its sound discretion in considering the county’s recommendations within the department’s consideration of the development of a system of secondary highways, which may become a part of the state highway system, at the discretion of the Department of Highways. OAG 84-336 .

Where county fiscal court designated several county roads for repair under the Rural Secondary Road Fund and subsequently the state conferred with party patrons in the county and proceeded to change the list of county roads to be repaired and began repairing county roads without ever seeking or receiving authorization from the fiscal court, the state’s action was legal since the fiscal court was given a chance to recommend as to the project, but the Department of Rural Aid could not agree with the fiscal court. OAG 84-336 .

“Secondary and rural roads,” within the meaning of KRS 177.360 , are those roads lying outside of cities, towns and urban areas having a population of 2,500 or more, but do not include state or federal highways. OAG 85-73 .

The selection of secondary and rural roads for improvement in each county is made by agreement between the fiscal court and the Department of Highways, or if no agreement can be reached, then by the Department alone. OAG 85-73 .

177.350. Standards for construction and improvement of state-maintained secondary and rural roads — Studies — Surveys — Maps — Personnel — Equipment.

The Department of Rural and Municipal Aid may promulgate administrative regulations pursuant to KRS Chapter 13A to establish standards for the construction, reconstruction, maintenance, and improvement of rural and secondary roads in the Commonwealth of Kentucky. The department shall conduct studies, make surveys, prepare maps, employ personnel, and obtain equipment as may be necessary for the establishment and maintenance of an integrated system of secondary and rural roads in the Commonwealth of Kentucky.

History. Enact. Acts 1948, ch. 46, § 1; 1956 (2nd Ex. Sess.), ch. 4, § 3; 1984, ch. 350, § 6, effective July 13, 1984; 1996, ch. 238, § 3, effective July 15, 1996; 2005, ch. 98, § 9, effective June 20, 2005; 2009, ch. 13, § 12, effective June 25, 2009.

NOTES TO DECISIONS

1. Rental of Equipment.

Informal contracts for rental of road building equipment or machinery and operators therefor to be used under supervision of employees of department of highways for construction of secondary roads did not require advertisement for bids. Hall v. Commonwealth, 331 S.W.2d 272, 1959 Ky. LEXIS 3 ( Ky. 1959 ).

177.360. Allocation of funds for state-maintained roads — Apportionments to be made on basis of revenue estimates — Uniform financial information report required.

  1. Except as provided  in subsection (5) of this section, the Department of Rural and Municipal  Aid shall allocate the funds set apart under KRS 177.320(1) for construction, reconstruction, and maintenance of state-maintained  secondary and rural highways as follows:
    1. One-fifth (1/5)  shall be apportioned equally among the one hundred twenty (120) counties.
    2. One-fifth (1/5)  shall be apportioned among the one hundred twenty (120) counties on  the basis of the ratio which the rural population of each county bears  to the total rural population of the state. “Rural population”  as used here means the population in a county outside cities, towns,  and urban areas having a population of twenty-five hundred (2,500)  or more as shown by the most recent decennial census of the United  States Bureau of the Census, and county population shall be determined  by the most recent decennial census of the United States Bureau of  the Census.
    3. One-fifth (1/5)  shall be apportioned among the one hundred twenty (120) counties on  the basis of the ratio that the public road mileage outside of cities,  towns, and urban areas having a population of twenty-five hundred  (2,500) or more bears to the total mileage of such roads for the entire  state.
    4. Two-fifths (2/5)  shall be apportioned among the one hundred twenty (120) counties on  the basis of the ratio which the square-mile rural area of the county  bears to the total square-mile rural area of the state. “Rural  area” as used here means that area of the county outside of  cities, towns, and urban areas having a population of twenty-five  hundred (2,500) or more and shown by the most recent decennial census  of the United States Bureau of the Census.
  2. A sum not exceeding  six percent (6%) of the allocation provided by KRS 177.320(1) to each county shall be deducted at the beginning of each fiscal  year and adjusted quarterly to cover the maintenance, administrative,  engineering, and other costs of the program.
  3. Of the total  amount apportioned by the provisions of this section, a sum not exceeding  six percent (6%) may be deducted and placed by the Department of Rural  and Municipal Aid in a special emergency account to be expended at  the direction of the commissioner to meet unforeseen emergencies on  rural and secondary roads and bridges.
  4. Apportionments  as required by the provisions of this section shall be made on the  basis of revenue estimates supplied by the Finance and Administration  Cabinet and adjusted quarterly in accordance with the most recent  revision of the estimates by the Finance and Administration Cabinet.
  5. Any county eligible  to receive county road aid moneys in accordance with KRS 177.320 and  this section shall be required to submit a uniform financial information  report to the Department for Local Government in accordance with KRS 65.905 before  any payment of county road aid funds shall be made. The Department  for Local Government shall notify the Department of Rural and Municipal  Aid no later than March 1 annually of any county that has not submitted  a uniform financial information report. The Department of Rural and  Municipal Aid shall, upon notification by the Department for Local  Government, immediately suspend all county road aid moneys to the  county until the county complies with the provisions of KRS 65.900 to 65.925 and submits  the uniform financial information report to the Department for Local  Government. The Department for Local Government shall immediately  notify the Department of Rural and Municipal Aid to reinstate county  road aid moneys to any county affected by this subsection as soon  as the county submits the uniform financial information report.

History. Enact. Acts 1948, ch. 46, § 1; 1962, ch. 101; 1984, ch. 350, § 7, effective July 13, 1984; 1988, ch. 273, § 10, effective July 15, 1988; 1990, ch. 47, § 7, effective July 13, 1990; 1998, ch. 69, § 65, effective July 15, 1998; 2005, ch. 98, § 10, effective June 20, 2005; 2007, ch. 20, § 5, effective June 26, 2007; 2007, ch. 47, § 82, effective June 26, 2007; 2009, ch. 13, § 13, effective June 25, 2009; 2010, ch. 117, § 78, effective July 15, 2010.

Legislative Research Commission Note.

(6/26/2007). This section was amended by 2007 Ky. Acts chs. 20 and 47, which are in conflict. Under KRS 446.250 , Acts ch. 47, which was last enacted by the General Assembly, prevails.

NOTES TO DECISIONS

  1. Secondary and Rural Roads.
  2. Allocation.
1. Secondary and Rural Roads.

“Secondary and rural roads” within the meaning of this section were those outside of cities, towns and urban areas having a population of 2,500 or more, and not state or federal highways. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

2. Allocation.

Where complaining taxpayers argued that the formula for allocation violated sections 2, 3, 59 and 60 of the Kentucky Constitution as being arbitrary and discriminatory because it gave no weight to overall population or to number of cars per mile of rural roads, the court held that such factors were not so directly related to the accomplishment of the public purpose of improving and maintaining rural roads as to require their inclusion in the formula. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Cited:

Opinions of Attorney General.

Bureau (now department) of highways of county with an urban-county form of government should consult with the fiscal court in connection with the construction of county roads and with the Urban County Council on the Secondary and Rural Road Program. OAG 77-754 .

Where a county encompassing a major city has merged with that city to form an urban-county government, the allotment of county road aid pursuant to subsection (1)(b)-(d) of this section, can be accomplished through the designation by the urban-county government, pursuant to KRS 67A.050 of rural-urban areas and roads in rural and urban areas of the urban-county government; accordingly, allocation can be made based upon such an “urbanized boundary.” OAG 81-176 .

“Secondary and rural roads,” within the meaning of this section, are those roads lying outside of cities, towns and urban areas having a population of 2,500 or more, but do not include state or federal highways. OAG 85-73 .

177.365. Reservation of certain tax receipts for urban roads and streets — Definitions.

  1. On and after July 1, 1980, seven and seven-tenths percent (7.7%) of all amounts received from the imposition of the taxes provided for in KRS 138.220(1) and (2), 138.660(1) and (2) and 234.320 shall be set aside by the Finance and Administration Cabinet for the construction, reconstruction and maintenance of urban roads and streets and for no other purpose.
  2. As used in this section unless the context requires otherwise “construction,” “reconstruction,” and “maintenance” mean the supervising, inspecting, actual building, and all expenses incidental to the construction, reconstruction, or maintenance of a road or street, including planning, locating, surveying, and mapping or preparing roadway plans, acquisition of rights-of-way, relocation of utilities, lighting and the elimination of other hazards such as roadway grade crossings, and all other items defined in the Department of Highways, design, operations, and construction manuals.
  3. “Urban roads” mean all public ways lying within the limits of the unincorporated urban place as defined in KRS 81.015 , and as described by the Bureau of Census tracts.
  4. “Streets” mean all public ways which have been designated by the incorporated city as being city streets and said streets lying within the boundaries of an incorporated city.

History. Enact. Acts 1972, ch. 61, § 11; 1974, ch. 290, § 1; 1980, ch. 218, § 10, effective July 1, 1980; 1982, ch. 265, § 11, effective April 1, 1982; 1986, ch. 174, § 9, effective July 1, 1986; 1988, ch. 327, § 5, effective July 15, 1988; 2005, ch. 173, Pt. XVII, § 4, effective July 1, 2005.

Opinions of Attorney General.

Since § 230 of the Constitution clearly restricts the use of money derived from taxes on gasoline for highway purposes, any legislation directing the money to be used otherwise would be unconstitutional, and broadening a definition of the word “maintenance” to include any activity or project that would decrease cost and expenditures of repair on urban streets and highways would not surmount the constitutional barrier. OAG 78-144 .

Where funds disbursed by the state from various road use taxes are received by the city pursuant to KRS 177.369 , and the city places these funds in an interest-bearing special road fund account, the interest derived therefrom must be applied to the road-related purposes set forth in this section, Const., § 230 mandates this and since subsection (2) of KRS 177.369 narrowly restricts expenditures for the construction, reconstruction and maintenance of urban roads and streets. OAG 81-143 .

The funds received by the city under the municipal aid program are subject to the general mandate of Const., § 230 concerning road expenditures; KRS 177.369(2) further limits permissible expenditures of such funds to only the “purpose of construction, reconstruction and maintenance of urban roads and streets set forth in this section”; therefore, since a parking lot is not within the definition of “streets,” the city cannot expend its municipal aid funds to pave a public parking lot. OAG 82-492 .

Municipal road aid funds may be used for the repair, replacement and general maintenance of street lights on public streets. OAG 84-271 .

Since the sidewalk is generally considered to be part of the street, a city may expend portions of its municipal aid funds to construct, maintain and repair sidewalks and be within the statutory requirement that such funds be spent to construct and maintain its streets. OAG 84-271 .

The city may not use portions of its municipal aid funds to pay the utility expenses for the operation of its street lighting system; paying the utility bills from the municipal aid funds would go beyond the physical maintenance of the street lighting system. OAG 84-271 .

Research References and Practice Aids

2020-2022 Budget Reference.

See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 7, (3) at 952.

177.366. Allocation of municipal aid funds — Apportionments to be made on basis of revenue estimates — Uniform financial information report.

  1. Except as provided in subsection (8) of this section, on and after July 1, 1980, the Finance and Administration Cabinet shall allocate to each incorporated city and “unincorporated urban place” its pro rata share of the funds set apart for construction, reconstruction, and maintenance of urban roads and streets on the basis of the ratio which the population in the incorporated cities and in “unincorporated urban places” bears to the total population in incorporated cities and in “unincorporated urban places” of the state. “Unincorporated urban places” as used here, means an area as defined in KRS 81.015 , and any area outside of incorporated cities, which area has a population of 2,500 or more as shown by the most recent decennial census of the United States Bureau of the Census, and all populations shall be determined by the most recent decennial census of the United States.
  2. Any area which becomes incorporated after December 31, 1970, shall not be eligible to participate in the Municipal Aid Program until the beginning of the second fiscal year following its incorporation and population certification. It shall be the responsibility of the newly incorporated area to provide the Finance and Administration Cabinet with documentation from the United States Bureau of the Census showing the population of the newly incorporated area as it existed at the time of the last decennial census.
  3. In the event the newly incorporated area cannot obtain a population count from the Bureau of the Census, it shall not be eligible to participate in the Municipal Aid Program until the next decennial census.
  4. If an incorporated city, whose incorporation took place prior to December 31, 1970, annexes additional area, the population of the annexed area will not be counted in the allocation of municipal aid funds until the beginning of the second fiscal year following annexation and population certification.
  5. It shall be the responsibility of the incorporated city to provide the Finance and Administration Cabinet with documentation from the United States Bureau of the Census showing the population for the annexed area as it existed at the time of the last decennial census.
  6. If the incorporated area cannot obtain a population count from the Bureau of the Census, the annexed area’s population shall not be eligible to be counted in the distribution of the municipal aid fund. However, the streets included in the annexed areas shall be eligible to receive work through this program.
  7. Apportionments as required by the provisions of this section shall be made on the basis of revenue estimates supplied by the Office of State Budget Director and shall be adjusted quarterly in accordance with the most recent revision of the estimates by the Office of State Budget Director.
  8. Any local government eligible to receive municipal road aid moneys pursuant to KRS 177.365 to 177.369 shall be required to submit a uniform financial information report to the Department for Local Government pursuant to KRS 65.905 before any payment of municipal road aid funds shall be made. The Department for Local Government shall notify the Finance and Administration Cabinet no later than March 1 annually of any local government that has not submitted a uniform financial information report. The Finance and Administration Cabinet shall, upon notification by the Department for Local Government, immediately suspend all municipal road aid moneys to the local government until the local government complies with the provisions of KRS 65.900 to 65.925 and submits the uniform financial information report to the Department for Local Government. The Department for Local Government shall immediately notify the Finance and Administration Cabinet to reinstate municipal road aid moneys to any local government affected by this subsection as soon as the local government submits the uniform financial information report.

History. Enact. Acts 1972, ch. 61, § 12; 1974, ch. 178, § 1; 1980, ch. 218, § 11, effective July 1, 1980; 1988, ch. 273, § 11, effective July 15, 1988; 1988, ch. 327, § 6, effective July 15, 1988; 1990, ch. 47, § 6, effective July 13, 1990; 1998, ch. 69, § 66, effective July 15, 1998; 2000, ch. 46, § 26, effective July 14, 2000; 2007, ch. 20, § 6, effective June 26, 2007; 2007, ch. 47, § 83, effective June 26, 2007; 2010, ch. 117, § 79, effective July 15, 2010.

Legislative Research Commission Note.

(6/26/2007). This section was amended by 2007 Ky. Acts chs. 20 and 47, which are in conflict. Under KRS 446.250 , Acts ch. 47, which was last enacted by the General Assembly, prevails.

177.367. Selection and construction of projects to be funded. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 61, § 13; 1974, ch. 74, Art. IV, § 20(1); 1976 (1st Ex. Sess.), ch. 20, § 6, effective January 2, 1978) was repealed by Acts 1980, ch. 218, § 15, effective July 1, 1980.

177.368. Bureau to furnish annual report to participating cities and unincorporated urban places — Emergency account. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 61, § 14; 1974, ch. 74, Art. IV, § 20(1)) was repealed by Acts 1980, ch. 218, § 15, effective July 1, 1980.

177.369. Payment of pro rata share of funds appropriated to incorporated cities and counties.

  1. On and after the fiscal year beginning July 1, 1980 and each fiscal year thereafter, the Finance and Administration Cabinet shall pay to each incorporated city and county containing an unincorporated urban place its pro rata share of any funds appropriated and any unexpended balance of funds appropriated for construction, reconstruction, and maintenance of urban roads and streets. During each fiscal year, the Finance and Administration Cabinet shall make quarterly payments to each such city and county of the funds set aside and allocated pursuant to KRS 177.365 and 177.366 .
  2. The expenditure of any money received by the city or county pursuant to the provisions of subsection (1) of this section shall be made solely for the purpose of construction, reconstruction, and maintenance of urban roads and streets set forth in KRS 177.365 .
  3. Any city or county which has received any money pursuant to the provisions of subsection (1) of this section shall retain all records of the expenditure of such money for a period of five (5) years and said records shall be subject to audit by the Finance and Administration Cabinet for said period of time in order to determine the proper expenditure of said money for the purposes required by KRS 177.365 .

History. Enact. Acts 1980, ch. 218, § 12, effective July 1, 1980; 1988, ch. 327, § 7, effective July 15, 1988.

Opinions of Attorney General.

Where a city receives funds disbursed by the state from various road use taxes and received by the city pursuant to this section, and the city places these funds in an interest-bearing special road fund account, the interest derived therefrom must be applied to the road-related purposes set forth in KRS 177.365 since Const., § 230 mandates this and since subsection (2) of this section narrowly restricts expenditures for the construction, reconstruction and maintenance of urban roads and streets. OAG 81-143 .

The funds received by the city under the municipal aid program are subject to the general mandate of Const., § 230 concerning road expenditures; subsection (2) of this section further limits permissible expenditures of such funds to only the “purpose of construction, reconstruction and maintenance of urban roads and streets set forth in KRS 177.365 ”; therefore, since a parking lot is not within the definition of “streets,” the city cannot expend its municipal aid funds to pave a public parking lot. OAG 82-492 .

The city may not use portions of its municipal aid funds to pay the utility expenses for the operation of its street lighting system; paying the utility bills from the municipal aid funds would go beyond the physical maintenance of the street lighting system. OAG 84-271 .

Since the sidewalk is generally considered to be part of the street, a city may expend portions of its municipal aid funds to construct, maintain and repair sidewalks and be within the statutory requirement that such funds be spent to construct and maintain its streets. OAG 84-271 .

Municipal road aid funds may be used for the repair, replacement and general maintenance of street lights on public streets. OAG 84-271 .

177.370. Recommendations and reports to General Assembly. [Repealed.]

Compiler’s Notes.

This section (Enact Acts 1948, ch. 46, § 1) was repealed by Acts 1956 (2d Ex. Sess.), ch. 4, § 4, effective June 26, 1956.

Kentucky Transportation Center

177.375. Kentucky Transportation Center Advisory Board.

  1. There is created a Kentucky Transportation Center Advisory Board, hereinafter in KRS 177.375 to 177.380 called the transportation center board or the board, to assist in policy formulation for and to provide direction to the Kentucky Transportation Center which is located at the University of Kentucky. The board shall consist of nine (9) members appointed by the Governor.
  2. Of the nine (9) members, three (3) members shall be ex officio and include the secretary of the Transportation Cabinet, the state highway engineer and the dean of the College of Engineering at the University of Kentucky. In addition, it is recommended that three (3) of the nine (9) appointments be made in the following manner:
    1. One (1) member appointed from a list of three (3) names submitted by the executive board of the Kentucky Association of Counties;
    2. One (1) member appointed from a list of three (3) names submitted by the executive board of the Kentucky County Judges’ Association; and
    3. One (1) member appointed from a list of three (3) names submitted by the executive board of the Kentucky Municipal League.
  3. The Governor shall designate one (1) member of the board as chairman, whose term shall be for two (2) years with said two (2) years being consistent with the biennium budget period. The members shall serve without pay, but shall be reimbursed for reasonable expenses from the center’s budget.
  4. Meetings of the board shall be held at least semiannually but may be held more frequently as deemed necessary subject to call by the chairman or by request of a majority of the board members. Board meetings shall concern, among other things, policy matters relating to the transportation center’s technical assistance and research programs, financial plans, and such other matters as necessary to carry out the intent of KRS 177.375 to 177.380 .
  5. Five (5) members of the board shall constitute a quorum for doing business. Each member shall have one (1) vote and a majority vote of the members present shall control on all questions. Each regular and ex officio member may designate a proxy by written notice to the chairman prior to call to order of each meeting and such proxy shall be entitled to cast the member’s vote.

Initial appointments made pursuant to paragraphs (a), (b) and (c) of this subsection shall be for a period of one (1) year. The remaining appointments shall be for two (2) years except that ex officio members shall serve the same terms as that of their respective offices. Ex officio members and regular members shall have the same powers and voting privileges. Each appointment thereafter shall be for a period of two (2) years.

History. Enact. Acts 1984, ch. 394, § 1, effective July 13, 1984.

177.376. Duties of board.

The Kentucky Transportation Center Board shall:

  1. Recommend policies and procedures as necessary to carry out the provisions of KRS 177.375 to 177.380 ;
  2. Review and recommend research, and technical assistance programs undertaken and financed under the provisions of KRS 177.375 to 177.380 ;
  3. Review all progress on projects authorized under the provisions of KRS 177.375 to 177.380 ;
  4. Provide the Governor, the General Assembly and the Legislative Research Commission with an annual report by January 15 of each year showing the status of funds appropriated under the provisions of KRS 177.375 to 177.380 for the operation and management of the Kentucky Transportation Center and the progress of the Kentucky Transportation Center’s technical assistance and research programs;
  5. Advise the General Assembly by January 30 during each even-numbered-year regular session of the need for continuation of the Kentucky Transportation Center;
  6. Ensure that personnel and facilities of the regional universities and community colleges are utilized when appropriate for completion of work or service functions performed by the center; and
  7. Ensure that all authorized projects are directed toward transportation improvement and more specifically toward strengthening the transportation system of Kentucky.

History. Enact. Acts 1984, ch. 394, § 2, effective July 13, 1984; 2001, ch. 58, § 9, effective June 21, 2001.

177.377. Appointment of director.

The president of the University of Kentucky shall appoint a director from a list of three (3) names submitted by the transportation center board. Other employees of the center shall be appointed in the same manner as other staff members of the university. All employees of the Kentucky Transportation Center shall be employees of the University of Kentucky within the provisions of KRS 164.220 to 164.230 .

History. Enact. Acts 1984, ch. 394, § 3, effective July 13, 1984.

177.378. Use of funds.

  1. Any state moneys appropriated to the University of Kentucky under KRS 177.375 to 177.380 shall be used for the operation and management of the transportation center’s technical assistance and research programs and for no other purpose.
  2. Funds unexpended at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year or biennium, provided, however, that such surplus shall be included in the budget for the center considered and approved for the ensuing period.

History. Enact. Acts 1984, ch. 394, § 4, effective July 13, 1984.

177.379. Budget.

  1. The director shall submit the transportation center budget in the manner and form set forth for other units of the university, after approval by the transportation center board.
  2. Copies of the approved budget shall be filed with the transportation center board and the Legislative Research Commission.

History. Enact. Acts 1984, ch. 394, § 5, effective July 13, 1984.

177.380. Funds not to be diverted to other use — Records — Annual financial report.

  1. Funds appropriated by KRS 177.375 to 177.380 and any other act for transportation center programs shall not be diverted for any other use.
  2. The University of Kentucky and the transportation center shall maintain such records as necessary to account for all receipts and expenditures credited or charged against the transportation center.
  3. An annual financial report shall be submitted to the executive director of the Legislative Research Commission and to the Governor by the university on behalf of the transportation center.

History. Enact. Acts 1984, ch. 394, § 6, effective July 13, 1984.

Compiler’s Notes.

A former KRS 177.380 (Acts 1948, ch. 46, § 1) was repealed by Acts 1974, ch. 74, Art. IV, § 21.

Turnpike Projects

177.390. Definitions for KRS 177.390 to 177.570.

As used in KRS 177.390 to 177.570 , the following words and terms shall have the following meanings, unless the context shall indicate another or different meaning or intent:

  1. The word “department” shall mean the Department of Highways, or, if said department shall be abolished, the department, board, body, or commission succeeding to the principal functions thereof or to whom the powers given by KRS 177.390 to 177.570 to the department shall be given by law;
  2. The word “project” or the words “turnpike project” shall mean any express highway or superhighway or such part or parts thereof as may be constructed under the provisions of KRS 177.390 to 177.570 by the department, including all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, connecting highways, tollhouses, service stations, garages, restaurants, and administration, storage, and other buildings and facilities which the department may deem necessary for the operation of such project, together with all property, rights, easements, and interests which may be acquired by the department for the construction or the operation of such project;
  3. The word “cost” as applied to a turnpike project shall embrace the cost of construction, the cost of the acquisition of all land, rights of way, property, rights, easements, and interests acquired by the department for such construction, the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved, the cost of all machinery and equipment, financing charges, provision for working capital in such amount as the department shall determine to be reasonable, interest prior to and during construction, and, if deemed advisable by the department, for a period not exceeding two (2) years after completion of construction, cost of traffic estimates and of engineering and legal expenses, plans, specifications, surveys, estimates of cost and of revenues, other expenses necessary or incident to determining the feasibility or practicability of constructing any such project, administrative expense, and such other expense as may be necessary or incident to the construction of the project, the financing of such construction, and the placing of the project in operation. Any obligation or expense heretofore or hereafter incurred by the department for traffic surveys, borings, preparation of plans and specifications, engineering, and other services in connection with the construction of a project shall be regarded as a part of the cost of such project and may be reimbursed to the Commonwealth out of the proceeds of turnpike revenue bonds hereinafter authorized in KRS 177.400 to 177.570 ;
  4. The words “public highways” shall include all public highways, roads, and streets in the Commonwealth, whether maintained by the Commonwealth or by any county, city, town, or other political subdivision;
  5. The word “bonds” or the words “turnpike revenue bonds” shall mean revenue bonds of the Commonwealth authorized under the provisions of KRS 177.390 to 177.570 ;
  6. The word “owner” shall include all individuals, copartnerships, associations, or corporations having any title or interest in any property, rights, easements, and interests authorized to be acquired by KRS 177.390 to 177.570 .

History. Enact. Acts 1950, ch. 157, § 3; 1960, ch. 174, § 1, effective March 25, 1960.

NOTES TO DECISIONS

  1. Public Highways.
  2. Access.
  3. Administrative Functions.
1. Public Highways.

A toll road is a “public highway.” Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

2. Access.

Right of access to street or highway by abutting property owner is generally an easement and is subordinate to the rights of the public and the grounds of authority for impairing or taking this property by closing or obstructing the street or highway is public convenience and necessity but the taking of such property without due process of law cannot be countenanced. Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

3. Administrative Functions.

In regulating the use and occupancy of state property a state officer is not exercising a legislative function, but an administrative one. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ); Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Research References and Practice Aids

Kentucky Law Journal.

Martin, Administrative Action for Efficient Debt Management: The Kentucky Case, The Setting, 49 Ky. L.J. 505 (1961).

177.400. Turnpike projects authorized.

In order to provide for the construction of modern express highways or superhighways embodying safety devices, including, when determined by the department to be feasible and necessary, center division, ample shoulder widths, long-sight distances, two (2) or more lanes in each direction and grade separations at intersections with other highways and railroads, and thereby facilitate vehicular traffic, remove many of the present handicaps and hazards on the congested highways in the Commonwealth, and promote the agricultural and industrial development of the Commonwealth, the Department of Highways is hereby authorized and empowered to construct, maintain, repair and operate turnpike projects, and to issue revenue bonds of the Commonwealth to finance such projects.

History. Enact. Acts 1950, ch. 157, § 1; 1960, ch. 174, § 2.

177.410. General powers of Department of Highways as to turnpike projects.

The department is hereby authorized and empowered:

  1. To construct, reconstruct, maintain, repair, operate, regulate and police turnpike projects at such locations within the Commonwealth as may be determined by the department and approved by the Governor;
  2. To acquire sites abutting on any turnpike project, and to construct or contract for the construction of buildings and appurtenances for service stations, garages, restaurants and other services and to lease the same to others for any of such purposes (or, if leases cannot be made on acceptable terms, to operate any and all of the same) in such manner and under such terms as the department may determine;
  3. To issue turnpike revenue bonds of the Commonwealth, payable solely from the tolls, revenues and other funds pledged for their payment, for the purpose of paying all or any part of the cost of any one (1) or more turnpike projects, and to refund any of its bonds, all as provided in KRS 177.390 to 177.570 ;
  4. To fix and revise from time to time and charge and collect tolls for transit over each turnpike project constructed by it;
  5. To combine for financing purposes any two (2) or more turnpike projects;
  6. To establish rules and regulations for the use of any turnpike project;
  7. To acquire, hold and dispose of real and personal property in the exercise of its powers and the performance of its duties under KRS 177.390 to 177.570 , without reference to KRS Chapter 56;
  8. To designate the locations and establish, limit and control such points of ingress and egress from each turnpike project as the department may determine to be necessary or desirable in the judgment of the department to insure the proper operation and maintenance of such project, and to prohibit entrance to such project from any point or points not so designated;
  9. To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under KRS 177.390 to 177.570 ;
  10. To employ consulting engineers, attorneys, accountants, construction and financial experts, superintendents, managers, and such other employees and agents as may be necessary in its judgment, and to fix their compensation;
  11. To receive and accept from any federal agency grants for or in aid of the construction of any turnpike project, and to receive and accept aid or contributions from any source of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions may be made;
  12. To expend any funds provided under the authority of KRS 177.390 to 177.570 in advertising the facilities and services of a turnpike project or projects to the traveling public; and
  13. To do all acts and things necessary or convenient to carry out the powers expressly granted in KRS 177.390 to 177.570 .

History. Enact. Acts 1950, ch. 157, § 4; 1960, ch. 174, § 3.

177.420. Acquisition of property — Condemnation — Possession — Special provisions for condemning railroad property.

  1. The department is hereby authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, solely from funds provided under the authority of KRS 177.390 to 177.570 , such lands, structures, property, rights, rights-of-way, franchises, easements and other interests in lands, including lands lying under water and riparian rights, which are located within the Commonwealth, as it may deem necessary or convenient for the construction and operation of any project, upon such terms and at such prices as may be considered by it to be reasonable and can be agreed upon between it and the owner thereof, and to take title thereto in the name of the Commonwealth for the use and benefit of the department.
  2. Whenever a reasonable price cannot be agreed upon, or whenever the owner is legally incapacitated or is absent, unknown or unable to convey valid title, the department is hereby authorized and empowered to acquire by condemnation or by the exercise of the power of eminent domain any lands, property, rights, rights-of-way, franchises, easements and other property, including public lands, parks, playgrounds, reservations, highways or parkways, or parts thereof or rights therein, of any person, copartnership, association, railroad, public service, public utility or other corporation, or municipality or political subdivision, deemed necessary or convenient for the construction or the efficient operation of any project or necessary in the restoration of public or private property damaged or destroyed. Any such proceedings shall be conducted, and the compensation to be paid shall be ascertained and paid, in the manner provided by the Constitution and laws of the Commonwealth then applicable which relate to condemnation or to the exercise of the power of eminent domain by the department. Title to any property acquired by the department shall be taken in the name of the Commonwealth for the use and benefit of the department. In any condemnation proceedings the court having jurisdiction of the suit, action or proceeding may make such orders as may be just to the department and to the owners of the property to be condemned and may require an undertaking or other security to secure such owners against any loss or damage by reason of the failure of the department to accept any pay for the property, but neither such undertaking or security nor any act or obligation of the department shall impose any liability upon the Commonwealth except as may be paid from the funds provided under the authority of KRS 177.390 to 177.570 .
  3. If the owner, lessee or occupier of any property to be condemned shall refuse to remove his personal property therefrom or give up possession thereof, the department may proceed to obtain possession in any manner now or hereafter provided by law.
  4. With respect to any railroad property or right-of-way upon which railroad tracks are located, any powers of condemnation or of eminent domain may be exercised to acquire only an easement interest therein which shall be located either sufficiently far above or sufficiently far below the grade of any railroad track or tracks upon such railroad property so that neither the proposed project nor any part thereof, including any bridges, abutments, columns, supporting structures and appurtenances, nor any traffic upon it, shall interfere in any manner with the use, operation or maintenance of the trains, tracks, works or appurtenances or other property of the railroad nor endanger the movement of the trains or traffic upon the tracks of the railroad. Prior to the institution of condemnation proceedings for such easement over or under such railroad property or right-of-way, plans and specifications of the proposed project showing compliance with the above-mentioned above or below grade requirements and showing sufficient and safe plans and specifications of such overhead or undergrade structure and appurtenances shall be submitted to the railroad for examination and approval. If the railroad fails or refuses within thirty (30) days to approve the plans and specifications so submitted, the matter shall be submitted to the Public Service Commission of Kentucky whose decision, arrived at after due consideration in accordance with its usual procedure, shall be final as to the sufficiency and safety of such plans and specifications and as to such elevations or distances above or below the tracks. Said overhead or undergrade structure and appurtenances shall be constructed only in accordance with such plans and specifications and in accordance with such elevations or distances above or below the tracks so approved by the railroad or the Public Service Commission as the case may be. A copy of the plans and specifications approved by the railroad or the Public Service Commission shall be filed as an exhibit with the petition for condemnation.

History. Enact. Acts 1950, ch. 157, § 5.

NOTES TO DECISIONS

Cited:

Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ), overruled in part, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Condemnation proceedings, KRS 177.081 .

Private property not to be taken without just compensation, Const., § 13.

177.430. Grade separations — Relocation or vacation of existing highway — Rights of access — Regulations as to public utility facilities on or along turnpike project.

  1. The department shall have power to construct grade separations at intersections of any turnpike project with public highways and to change and adjust the lines and grades of such highways so as to accommodate the same to the design of such grade separation. The cost of such grade separations and any damage incurred in changing and adjusting the lines and grades of such highways shall be ascertained and paid by the department as a part of the cost of such turnpike project.
  2. If the department shall find it necessary to change the location of any portion of any public highway, it shall cause the same to be reconstructed at such location as the department shall deem most favorable and of substantially the same type and in as good condition as the original highway. The cost of such reconstruction and any damage incurred in changing the location of any such highway shall be ascertained and paid by the department as a part of the cost of such turnpike project.
  3. Any public highway affected by the construction of any turnpike project may be vacated or relocated by the department in the manner now provided by law for the vacation or relocation of public roads, and any damages awarded on account thereof shall be paid by the department as a part of the cost of such project.
  4. In addition to the foregoing powers the department and its authorized agents and employees may enter upon any lands, waters and premises in the Commonwealth for the purpose of making surveys, soundings, drillings and examinations as they may deem necessary or convenient for the purposes of KRS 177.390 to 177.570 , and such entry shall not be deemed a trespass, nor shall an entry for such purposes be deemed an entry under any condemnation proceedings which may be then pending. The department shall make reimbursement for any actual damage resulting to such lands, waters and premises as a result of such activities.
  5. The department shall also have power to make reasonable regulations for the installation, construction, maintenance, repair, renewal, relocation and removal of tracks, pipes, mains, conduits, cables, wires, towers, poles and other equipment and appliances (herein called “public utility facilities”) of any public utility in, on, along, over or under any turnpike project. Whenever the department shall determine that it is necessary that any such public utility facilities which now are, or hereafter may be, located in, on, along, over or under any turnpike project should be relocated in such turnpike project, or should be removed from such turnpike project, the public utility owning or operating such facilities shall relocate or remove the same in accordance with the order of the department; provided, however, that the cost and expenses of such relocation or removal, including the cost of installing such facilities in a new location or new locations, and the cost of any lands, or any rights or interests in lands, and any other rights, acquired to accomplish such relocation or removal, shall be ascertained and paid by the department as a part of the cost of such turnpike project. In case of any such relocation or removal of facilities, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations, for as long a period, and upon the same terms and conditions, as it had the right to maintain and operate such facilities in their former location or locations. No utility shall have the privilege of establishing its lines or properties within the right-of-way of a turnpike, except upon the conditions and terms prescribed by the department; however, a utility shall be permitted to connect its lines with service stations, garages, restaurants and other installations permitted to exist upon the right-of-way of the turnpike.
  6. Costs and expenses paid by the department as permitted by subsections (1), (2), (3), and (5) of this section may in the discretion of the department be reimbursed to it from the proceeds of bonds issued for the project or projects under KRS 177.390 to 177.570 if so provided in the proceedings or trust indenture pursuant to which such bonds are issued.
  7. The Commonwealth hereby consents to the use of all lands owned by it, including lands lying under water, which are deemed by the department to be necessary for the construction or operation of any turnpike project.

History. Enact. Acts 1950, ch. 157, § 6; 1960, ch. 174, § 4.

NOTES TO DECISIONS

1. Construction.

This section means that the regular procedure for closing a county road, KRS 178.070 to 178.100 , shall be followed, but that as concerns the right to close, the procedure is a mere formality. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

Cited:

Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ), overruled in part, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

177.440. Limited access to turnpikes.

All turnpikes established under the provisions of KRS 177.390 to 177.570 are declared to be limited access facilities, within the meaning and subject to the provisions of KRS 177.220 to 177.310 , and KRS 177.990 . No right of access to a turnpike shall vest in the holder of adjacent or neighboring property by reason of the proposal to construct, or the construction and operation of, a turnpike. Nothing in KRS 177.390 to 177.570 shall be construed to create any right of access in an owner near or adjacent to an entranceway to a turnpike, where such right did not already exist to an entranceway on a road or highway which has been incorporated into the turnpike.

History. Enact. Acts 1950, ch. 157, § 7.

NOTES TO DECISIONS

1. Construction.

The reference in this section to the limited access statute was intended to adopt only such positions of the limited access statute as relate to control of access to the highway, and was not intended to adopt the portions relating to location or establishment of the highway. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

177.450. Turnpike revenue bonds.

  1. The department is authorized to provide, at one time or from time to time, for the issuance of turnpike revenue bonds of the Commonwealth for the purpose of paying all or any part of the cost of any one or more turnpike projects. The principal of and the interest on the bonds shall be payable solely from the funds provided in KRS 177.390 to 177.570 for payment. The bonds of any issue may be in one (1) or more series and any one (1) or more of the series may enjoy equal or subordinate status with respect to the pledge of funds from which they are payable, shall be dated, shall bear interest at a rate or rates or method of determining rates, payable at least annually, shall mature at a time or times not exceeding forty (40) years from their date or dates, all as may be determined by the department, and may be made redeemable before maturity, at the option of the department, at a price or prices and under terms and conditions as may be fixed by the department prior to the issuance of the bonds. The department shall determine the form of the bonds, including any interest coupons to be attached to the bonds, and shall fix the denomination or denominations of the bonds and the place or places for payment of principal and interest, which may be at any bank or trust company within or without the Commonwealth. The bonds shall be signed by the commissioner of highways, and the great seal of the Commonwealth or a facsimile signature of the commissioner shall be affixed to the bonds and attested by the Secretary of State by his facsimile signature, and any coupons attached to the bonds shall bear the facsimile signature of the commissioner of highways. In case any officer whose signature or a facsimile of whose signature shall appear on any bonds or coupons shall cease to be an officer before the delivery of the bonds, the signature or facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until the delivery. All bonds issued under the provisions of KRS 177.390 to 177.570 shall have and are declared to have all the qualities and incidents of negotiable instruments under the negotiable instruments law of the Commonwealth. The bonds may be issued in coupon or in registered form, or both, as the department may determine, and provision may be made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, and for the reconversion into coupon bonds of any bonds registered as to both principal and interest. The department may sell the bonds in a manner, either at public or private sale, and for a price as it may determine will best effect the purposes of KRS 177.390 to 177.570.
  2. The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the turnpike project or projects for which the bonds shall have been issued, and shall be disbursed in a manner and under the restrictions, if any, as the department may provide in the proceedings authorizing the issuance of the bonds or in the trust agreement mentioned in KRS 177.460 securing the bonds. If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than the cost, additional bonds may be issued to provide the amount of the deficit, and, unless otherwise provided in the proceedings authorizing the issuance of the bonds or in the trust agreement securing the bonds, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued. If the proceeds of the bonds of any issue shall exceed the cost, the surplus shall be deposited to the credit of the sinking fund or funds for the bonds or any account or accounts as the department shall have provided in the proceedings or trust agreement authorizing and securing the bonds.
  3. Prior to the preparation of definitive bonds, the department may, under like restrictions, issue interim receipts or temporary bonds, with or without coupons, exchangeable for definitive bonds when the bonds shall have been executed and are available for delivery. The department may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost. Bonds may be issued under the provisions of KRS 177.390 to 177.570 without obtaining the consent of any department, division, commission, board, department, or agency of the Commonwealth, and without any other proceedings or the happening of any other conditions or things than those proceedings, conditions, or things which are specifically required by KRS 177.390 to 177.570 .

History. Enact. Acts 1950, ch. 157, § 8; 1960, ch. 174, § 5; 1996, ch. 274, § 38, effective July 15, 1996.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Advertisement for Bids.
1. Constitutionality.

This section is not unconstitutional because it does not require public sale — the requirement of public sale is superimposed upon the statute by other law. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

2. Advertisement for Bids.

There must be public advertisement for bids in the sale of bonds by a governmental officer or agency. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

177.460. Trust agreement to secure bonds — Rights and remedies of bondholders.

In the discretion of the department, any bonds issued under the provisions of KRS 177.390 to 177.570 may be secured by a trust agreement by and between the department and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the Commonwealth. Such trust agreement or the proceedings providing for the issuance of such bonds may pledge or assign the tolls and other revenues to be received, but shall not convey or mortgage any turnpike project or any part thereof. Such trust agreement or proceedings providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper and not in violation of law, including covenants setting forth the duties of the department in relation to the acquisition of property and the construction, improvement, maintenance, repair, operation and insurance of the turnpike project or projects in connection with which such bonds shall have been authorized, the rates of toll to be charged, and the custody, safeguarding and application of all moneys. It shall be lawful for any bank or trust company incorporated under the laws of the Commonwealth which may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the department. Any such trust agreement may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders. In addition to the foregoing, any such trust agreement or proceedings may contain such other provisions as the department may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of such trust agreement or proceedings may be treated as a part of the cost of the operation of the turnpike project or projects.

History. Enact. Acts 1950, ch. 157, § 9.

177.470. Bonds not debt of Commonwealth.

Revenue bonds issued under the provisions of KRS 177.390 to 177.570 shall not be deemed to constitute a debt of the Commonwealth or of any political subdivision thereof or a pledge of the faith and credit of the Commonwealth or of any such political subdivision, but such bonds shall be payable solely from the funds provided therefor in KRS 177.390 to 177.570 . All such revenue bonds shall contain on the face thereof a statement to the effect that the Commonwealth shall not be obligated to pay the same or the interest thereon except from revenues of the project or projects for which they are issued and, if so provided in the proceedings or trust agreement authorizing or providing for the issuance of such bonds, from other available funds pledged to the payment thereof, and that neither the faith and credit nor the taxing power of the Commonwealth is pledged to the payment of the principal of or the interest on such bonds.

History. Enact. Acts 1950, ch. 157, § 2; 1960, ch. 174, § 6.

177.480. Tolls for use of turnpike — Contracts for utility and service facilities — Disposition of toll revenues — Maintenance of turnpike by Department of Highways.

  1. The department is hereby authorized to fix, revise, charge, and collect tolls for the use of each turnpike project and the different parts or sections thereof, and to contract with any person, partnership, association, or corporation desiring the use of any part thereof, including the right-of-way adjoining the paved portion, for placing thereon telephone, telegraph, electric light or power lines, service stations, garages, stores, hotels, and restaurants, or for any other purpose except for tracks for railroad or railway use, and to fix the terms, conditions, rents, and rates of charges for such use. A sufficient number of service stations shall be authorized to be established in each service area along any such turnpike to permit reasonable competition by private business in the public interest.
  2. Tolls shall be so fixed and adjusted in respect of the aggregate of tolls from the turnpike project or projects in connection with which the bonds of any issue shall have been issued under the provisions of KRS 177.390 to 177.570 as to provide funds sufficient, with any other available funds, to pay (a) the cost of maintaining, repairing, operating, regulating, and policing such turnpike project or projects, unless such cost or any part thereof has been assumed by the department as provided in this section, and (b) the principal of and the interest on such bonds as the same shall become due and payable, and to create reserves for such purposes. Such tolls shall not be subject to supervision or regulation by any other department, commission, board, bureau, or agency of the Commonwealth. The tolls and all other revenues derived from the turnpike project or projects in connection with which the bonds of any issue shall have been issued, except such part thereof as may be necessary to pay such cost of maintenance, repair, operation, regulation, and policing, and to provide such reserves therefor as may be provided for in the proceedings authorizing the issuance of such bonds or in the trust agreement securing the same, shall be set aside in a sinking fund or funds which are hereby pledged to, and charged with, the payment of the principal of and the interest on such bonds as the same shall become due and the redemption price or the purchase price of bonds retired by call or purchase as therein provided. Such pledge shall be valid and binding from the time when the pledge is made; the tolls or other revenues or other moneys so pledged and thereafter received by the department shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act; and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the department, irrespective of whether such parties have notice thereof. Neither the proceedings nor any trust agreement by which a pledge is created need be filed or recorded except in the records of the department. The use and disposition of moneys to the credit of any such sinking fund shall be subject to the provisions of the proceedings authorizing the issuance of such bonds or of such trust agreement. Except as may otherwise be provided in such proceedings or in such trust agreement, any such sinking fund shall be a fund for all bonds provided to be payable therefrom without distinction or priority of one over another.
  3. Notwithstanding any of the foregoing provisions of this section, the department may, in the proceedings authorizing the issuance of revenue bonds or revenue refunding bonds under the provisions of KRS 177.390 to 177.570 or in the trust agreement securing such bonds, covenant to pay all or any part of the cost of maintaining, repairing, operating, regulating, and policing any project constructed under the provisions of KRS 177.390 to 177.570 , and the department may, in such proceedings or trust agreement, covenant to make up all or any part of any deficiency in the fund or funds pledged to and charged with the payment of the principal of and the interest on such bonds from any funds or tax revenues available for general purposes of the department and not required by law to be devoted to some other purpose, and, inasmuch as such project will at all times belong to the Commonwealth, any such covenant will have the force of contract between the Commonwealth and the holders of such revenue bonds or revenue refunding bonds.
  4. Notwithstanding any of the foregoing provisions of this section, the department may, in the proceedings authorizing the issuance of revenue bonds or revenue refunding bonds under the provisions of KRS 177.390 to 177.570 or in the trust agreement securing such bonds, pledge to the payment of such bonds all motor fuel taxes and surtaxes collected by the Commonwealth on gasoline and other motor fuels consumed on any project financed under the provisions of KRS 177.390 to 177.570 , except the two-sevenths (2/7) of said motor fuel taxes provided by KRS 138.220 to be set aside for the construction, reconstruction, and maintenance of rural and secondary roads, and covenant to deposit such motor fuel taxes and surtaxes from time to time in the sinking fund or funds pledged to the payment of such bonds. In determining the amount of motor fuel consumed on any turnpike project the department shall divide the total miles traveled on such project by passenger automobiles, single unit trucks, and semitrailer trucks and buses as determined by the department by the average number of miles per gallon of motor fuel consumed by each of those classes of motor vehicles on the following basis:

Passenger automobiles15 miles per gallon

Single unit trucks 10 miles per gallon

Semitrailer trucks and buses5 miles per gallon

History. Enact. Acts 1950, ch. 157, § 10; 1960, ch. 174, § 7.

NOTES TO DECISIONS

1. Maintenance of Turnpike.

A contract by the Commonwealth that it will continue to maintain its highways is in reality nothing more than an affirmation of intent by the Commonwealth to continue to function as a government. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

177.490. Trust funds.

All moneys received pursuant to the authority of KRS 177.390 to 177.570 , whether as proceeds from the sale of bonds or as revenues, shall be deemed to be trust funds to be held and applied solely as provided in KRS 177.390 to 177.570 . The proceedings authorizing the bonds of any issue or the trust agreement securing such bonds shall provide that any officer with whom, or any bank or trust company with which, such moneys shall be deposited shall act as trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulations as KRS 177.390 to 177.570 and such proceedings or trust agreement may provide.

History. Enact. Acts 1950, ch. 157, § 11.

177.500. Remedies of bondholders.

Any holder of bonds issued under the provisions of KRS 177.390 to 177.570 or any of the coupons appertaining thereto, and the trustee under any trust agreement, except to the extent the rights herein given may be restricted by such trust agreement, may, either at law or in equity, by suit, action, mandamus or other proceeding, protect and enforce any and all rights under the laws of the Commonwealth or granted under KRS 177.390 to 177.570 or under such trust agreement or the proceedings authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by KRS 177.390 to 177.570 or by such trust agreement or proceedings to be performed by the department or by any officer or employee thereof, including the fixing, charging and collecting of tolls.

History. Enact. Acts 1950, ch. 157, § 12.

177.510. Turnpike properties and bonds exempt from taxation.

The exercise of the powers granted by KRS 177.390 to 177.570 will be in all respects for the benefit of the people of the Commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of turnpike projects by the department will constitute the performance of essential governmental functions, the department shall not be required to pay any taxes or assessments upon any turnpike project or any property acquired or used by the department under the provisions of KRS 177.390 to 177.570 or upon the income therefrom, and the bonds issued under the provisions of KRS 177.390 to 177.570, their transfer and the income therefrom (including any profit made on the sale thereof) shall at all times be free from taxation within the Commonwealth.

History. Enact. Acts 1950, ch. 157, § 13.

177.520. Turnpike bonds valid for purposes of investment or collateral.

Bonds issued by the department under the provisions of KRS 177.390 to 177.570 are hereby made securities in which all public officers and public bodies, agencies and instrumentalities of the Commonwealth and its political subdivisions, all insurance companies, trust companies, banking associations, investment companies, executors, administrators, trustees and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature may properly and legally invest funds, including capital in their control or belonging to them. Such bonds are hereby made securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the Commonwealth for any purpose for which the deposit of bonds or other obligations of the Commonwealth is now or may hereafter be authorized by law.

History. Enact. Acts 1950, ch. 157, § 14; 1960, ch. 174, § 8.

177.530. Maintenance of turnpike — Restoration of private property — Donation of property by county or city — Annual report of turnpike activities — Audits — Personnel of Department of Highways not to have interest in project — Penalty for failure to pay toll — Lien on vehicle.

  1. Each turnpike project when constructed and opened to traffic shall be maintained and kept in good condition and repair by the department and shall be operated and maintained by such force of toll-takers and other operating and maintenance employees and, unless policed by the Department of Kentucky State Police as an ordinary incident to the performance of statutory functions, shall be policed by the department by such force of police, as the department may in its discretion employ, and the department may be reimbursed for the cost thereof unless it has previously assumed such cost as provided in KRS 177.480 .
  2. All private property damaged or destroyed in carrying out the powers granted by KRS 177.390 to 177.570 shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of KRS 177.390 to 177.570 .
  3. All counties, cities, towns, and other political subdivisions and all public agencies and commissions of the Commonwealth, notwithstanding any contrary provision of law, are hereby authorized and empowered to lease, lend, grant, or convey to the department at its request upon such terms and conditions as the proper authorities of such counties, cities, towns, political subdivisions, agencies, or commissions of the Commonwealth may deem reasonable and fair and without the necessity for any advertisement, order of court, or other action or formality, other than the regular and formal action of the authorities concerned, any real property which may be necessary or convenient to the effectuation of the authorized purposes of the department, including public roads and other real property already devoted to public use.
  4. On or before January 30 in each year the department shall make an annual report of its activities for the preceding calendar year to the Governor and to the General Assembly. Each such report shall set forth a complete operating and financial statement covering its operations during the year. The department shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants, and the cost thereof may be treated as a part of the cost of construction or operation of the project. Such audits shall be deemed to be public records within the meaning of KRS 61.870(2).
  5. No officer or employee of the department shall have any interest, direct or indirect, in the sale or purchase of any bonds authorized by KRS 177.390 to 177.570 . Violation of this provision is punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one (1) year, or both.
  6. Any person who uses any turnpike project and fails or refuses to pay the toll provided therefor shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for not more than thirty (30) days, or both, and in addition thereto the department shall have a lien upon the vehicle driven by such person for the amount of such toll and may take and retain possession thereof until the amount of such toll and all charges and penalties in connection therewith shall have been paid.

History. Enact. Acts 1950, ch. 157, § 15; 1960, ch. 174, § 9; 1966, ch. 255, § 164; 1980, ch. 188, § 133, effective July 15, 1980; 2007, ch. 85, § 186, effective June 26, 2007.

Opinions of Attorney General.

Where city police are required to use segments of the Kentucky Turnpike while on routine patrol or when responding to a call or conducting an investigation in or on property within the city limits, the police should not be required to pay tolls for such use of the turnpike. OAG 72-848 .

177.540. Refunding bonds — Additional bonds.

The department is hereby authorized to provide for the issuance of turnpike revenue refunding bonds of the Commonwealth for the purpose of refunding any bonds then outstanding which shall have been issued under the provisions of KRS 177.390 to 177.570 , including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds, and, if the department shall so determine, for the additional purpose of constructing improvements, extensions, or enlargements of the turnpike project or projects in connection with which the bonds to be refunded shall have been issued. The department is further authorized to provide for the issuance of its turnpike revenue bonds for the combined purpose of (a) refunding any bonds then outstanding which shall have been issued under the provisions of KRS 177.390 to 177.570 , including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds and (b) paying all or any part of the cost of any additional turnpike project or projects. The issuance of such bonds, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties and obligations of the department in respect of the same, shall be governed by the provisions of KRS 177.390 to 177.570 insofar as the same may be applicable.

History. Enact. Acts 1950, ch. 157, § 16.

NOTES TO DECISIONS

1. Additional Bonds.

The legislature did not intend to limit the power to issue additional bonds for extensions and improvements to those cases in which the original bonds are being refunded. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

177.550. Transfer of turnpike to highway system after retirement of bonds.

Except as hereinafter provided in this section, when all bonds issued under KRS 177.390 to 177.570 in connection with any turnpike project or projects and the interest thereon shall have been paid or a sufficient amount for the payment of all such bonds and the interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders, such project or projects, if then in good condition and repair, shall become part of the state highway system and shall thereafter be maintained by the department free of tolls; provided, however, the department may, in any proceedings or trust agreement authorizing or securing bonds under the provisions of KRS 177.390 to 177.570 , provide for combining for financing purposes any two (2) or more turnpike projects theretofore constructed or thereafter to be constructed, and for the reimposition or continuance of tolls on each such turnpike project until all such bonds and the interest thereon shall have been paid or a sufficient amount for such purposes shall have been set aside in trust for the benefit of the bondholders.

History. Enact. Acts 1950, ch. 157, § 17; 1960, ch. 174, § 10.

Opinions of Attorney General.

Under the specific authority of this section, the Department of Highways may issue additional turnpike revenue bonds to finance the construction of the remaining portions of the Kentucky Turnpike. If such bonds are issued to finance such construction, the tolls on the Louisville to Elizabethtown section may be reimposed or continued. OAG 70-823 .

177.560. Preliminary expenses of turnpike project.

The department is hereby authorized in its discretion to expend such moneys as may be necessary for the study of any turnpike project or projects and to use its engineering and other forces and employ consulting engineers and traffic engineers for the purpose of effecting such study, and to pay for such additional engineering and traffic and other expert studies as it may deem expedient. All such expenses incurred by the department prior to the issuance of turnpike revenue bonds under the provisions of KRS 177.390 to 177.570 shall be paid by the department and charged to the appropriate turnpike project or projects, and the department shall keep proper records and accounts showing each amount so charged. Upon the sale of turnpike revenue bonds for any turnpike project or projects, the funds so expended by the department in connection with such project or projects may be reimbursed to the department from the proceeds of such bonds if provision to that effect is made in the proceedings or trust agreement under which such bonds are issued.

History. Enact. Acts 1950, ch. 157, § 18; 1960, ch. 174, § 11.

177.570. Turnpike law is alternative.

KRS 177.390 to 177.560 shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing; provided, however, that the issuance of turnpike revenue bonds or turnpike revenue refunding bonds under the provisions of KRS 177.390 to 177.560 need not comply with the requirements of any other law applicable to the issuance of bonds.

History. Enact. Acts 1950, ch. 157, § 19.

Scenic Byways and Highways

177.571. Purpose of KRS 177.571 to 177.576.

The General Assembly hereby finds and declares the purpose of KRS 177.571 to 177.576 to be the appropriate recognition and preservation of the scenic qualities of many of Kentucky’s roadways. Therefore, the General Assembly is creating a state system of scenic byways and scenic highways to preserve and present scenic byways and scenic highways for vehicular, bicycle, and pedestrian travel in an unhurried and leisurely environment.

History. Enact. Acts 1998, ch. 566, § 1, effective July 15, 1998.

177.572. Definitions for KRS 177.571 to 177.576.

As used in KRS 177.571 to 177.576 , unless the context requires otherwise:

  1. “Advertising device” means as defined in KRS 177.830 ;
  2. “Archaeological quality” means those characteristics of the area surrounding a scenic byway or a scenic highway that are physical evidence of historic or prehistoric human life or activity and that are visible and capable of being inventoried and interpreted. The archaeological interest, as identified through ruins, artifacts, structural remains, or other physical evidence shall have scientific significance that educates the viewer and causes the viewer to appreciate the past;
  3. “Cultural quality” means evidence or expressions of the customs or traditions of a distinct group of people. Cultural features shall include, but not be limited to, crafts, music, dance, rituals, festivals, speech, food, special events, and vernacular architecture, as currently practiced. The cultural qualities of the area surrounding a scenic byway or scenic highway may highlight one (1) or more significant communities or ethnic traditions;
  4. “Historic quality” means legacies of the past that are distinctly associated with the physical elements of the landscape, whether natural or manmade, and that are of historic significance, educate the viewer, and cause the viewer to appreciate the past. The historic qualities reflect the actions of people and may include buildings, settlement patterns, or other examples of human activity. Historic qualities may be inventoried, mapped, and interpreted, and they possess integrity of location, design, setting, material, workmanship, feeling, and association;
  5. “Intrinsic quality” means one (1) or more of the following:
    1. Archaeological quality;
    2. Cultural quality;
    3. Historic quality;
    4. Natural quality;
    5. Recreational quality; or
    6. Scenic quality;
  6. “Natural quality” means those features in the visual environment that are in a relatively undisturbed state. These features shall predate the arrival of human populations and may include geological formations, fossils, landforms, water bodies, vegetation, and wildlife. If there is evidence of human activity, the natural features must reveal minimal disturbances;
  7. “Outdoor advertising device” means an advertising device that is not located on the premises of the entity being advertised;
  8. “Recreational quality” means outdoor recreational activities directly associated with and dependent upon the natural and cultural elements of the scenic byway or scenic highway’s landscape. The recreational activities shall provide opportunities for active and passive recreational experiences including, but not limited to, downhill skiing, rafting, boating, fishing, hiking, and simple roadway driving. The recreational activities may be seasonal, but the quality and importance of the activities as seasonal operations shall be well recognized;
  9. “Scenic byway” means a highway maintained by a local government that has roadsides or view sheds of aesthetic, cultural, historical, or archaeological value worthy of preservation, restoration, protection, or enhancement;
  10. “Scenic highway” means a state-maintained highway that has roadsides or view sheds of aesthetic, cultural, historical, or archaeological value worthy of preservation, restoration, protection, or enhancement; and
  11. “Scenic quality” means the heightened visual experience derived from the view of the natural and manmade elements of the scenic byway or scenic highway. The characteristics of the landscape are strikingly distinct and offer a pleasing and memorable visual experience. All elements of the landscape, including landform, water, vegetation, and manmade development, must contribute in harmony to the quality of the scenic byway’s or scenic highway’s visual environment and share in its intrinsic qualities.

History. Enact. Acts 1998, ch. 566, § 2, effective July 15, 1998.

177.573. Administrative regulations for designation, nomination, review and removal of scenic designation of byway or highway.

The Transportation Cabinet, in coordination with the Tourism, Arts and Heritage Cabinet and the Kentucky Heritage Council, shall promulgate administrative regulations under KRS Chapter 13A to establish:

  1. Specific criteria for a road to be designated a scenic byway or a scenic highway;
  2. A process for nominating and review of a road as a scenic byway or scenic highway;
  3. A process for designating a road as a scenic byway or scenic highway; and
  4. A process to remove the scenic designation from a byway or highway if the intrinsic qualities of the road change or if the community affected by the road requests the scenic designation to be removed.

History. Enact. Acts 1998, ch. 566, § 3, effective July 15, 1998; 2005, ch. 95, § 43, effective June 20, 2005; 2009, ch. 16, § 57, effective June 25, 2009.

177.574. Criteria for designation.

A road may be designated a scenic byway or scenic highway if it has a minimum of one (1) intrinsic quality as defined in KRS 177.571 ; a limit on existing visual intrusions that significantly impact the road; and a local support group that has requested scenic designation for the road and that is committed to maintaining the intrinsic qualities of the area surrounding the road.

History. Enact. Acts 1998, ch. 566, § 4, effective July 15, 1998.

177.575. Maintenance by cabinet — Identification signs.

  1. The Transportation Cabinet shall attempt to maintain the character of a state-maintained road that has been designated a scenic highway.
  2. The Transportation Cabinet shall erect and maintain appropriate scenic highway identification signs on each road designated a scenic byway or scenic highway.
  3. The Transportation Cabinet shall conduct necessary routine maintenance and care of a state-maintained road designated as a scenic highway.

History. Enact. Acts 1998, ch. 566, § 5, effective July 15, 1998.

177.576. Adjacent outdoor advertising devices — Existing devices exempted.

  1. The cabinet shall prohibit the erection of an outdoor advertising device adjacent to or visible from a scenic highway on which outdoor advertising devices as defined in KRS 177.572 are regulated under KRS 177.830 to 177.890 .
  2. The status of an outdoor advertising device shall not be changed by a highway being designated as scenic if the outdoor advertising device was legal or designated as nonconforming on the date the highway was designated as scenic.

History. Enact. Acts 1998, ch. 566, § 6, effective July 15, 1998.

General Obligation Bonds for Road Construction

177.580. State debt contracted — Legislative intent for KRS 177.580 to 177.630 — Approval of people.

Subject to the provisions of Sections 49 and 50 of the Constitution of Kentucky, there is hereby contracted on behalf of the Commonwealth a debt in the amount of one hundred million dollars ($100,000,000). It is hereby declared to be the intent of the General Assembly in enacting KRS 177.580 to 177.630 and contracting the aforesaid debt on behalf of the Commonwealth to provide a method whereby the Commonwealth of Kentucky can issue bonds directly obligating the Commonwealth in an amount of one hundred million dollars ($100,000,000) for the purpose of providing funds to match federal funds allocated to Kentucky for the construction and reconstruction of highways, tunnels and bridges within the Commonwealth of Kentucky, subject to the approval of the people of the Commonwealth of Kentucky as provided in section 50 of the Constitution of Kentucky; such approval or disapproval to be expressed at the general election to be held on November 6, 1956.

History. Enact. Acts 1956, (2nd Ex. Sess.), ch. 3, § 1, effective June 26, 1956.

NOTES TO DECISIONS

1. General Obligation Bonds.

Issuance of bonds under KRS 177.585 to match federal funds for highway construction and providing for payment from license, excise taxes and fees arising from sale and use of motor vehicles, gasoline and other motor fuels would not create any encumbrance or claim upon such funds since the bonds are general obligation bonds and are not limited in sources of payment to the particular road fund revenues provided for in the highway bond issue act of 1956. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Research References and Practice Aids

Kentucky Law Journal.

Martin, Administrative Action for Efficient Debt Management: The Kentucky Case, The Setting, 49 Ky. L.J. 505 (1961).

177.585. Bonds to be issued — Denominations — Interest — Coupons — Payment — Registration with Finance and Administration Cabinet — Exemption from state, county and municipal taxation — Cost of printing.

Bonds of the Commonwealth of Kentucky shall be issued in the total amount of one hundred million dollars ($100,000,000). Said bonds shall be of the denomination of one hundred dollars ($100), or such multiples thereof as the state property and buildings commission may determine; shall be engraved, lithographed or printed, as said commission shall determine; shall be signed at the time of their respective issuance by the Governor then in office, and at the same time attested by the Secretary of State then in office, with the seal of the Commonwealth affixed. All of said bonds shall bear interest at such rate, not exceeding three percent (3%) per annum, as said commission shall determine at the time of such issue. All of said bonds shall bear date of January 1, 1957. The interest thereon shall be payable semiannually January first and July first of each year thereafter. There shall be attached to said bonds coupons for such semiannual interest bearing the facsimile signature of the Governor and the Treasurer of the Commonwealth, the last coupon on each bond being due at the date of maturity of the bond to which it is attached. Said bonds and coupons shall be payable in lawful money of the United States of America at such place or places as the State Property and Buildings Commission may determine. Said bonds, at the request of the owners, may be registered as to principal and interest with the Finance and Administration Cabinet of the Commonwealth of Kentucky upon the payment of a registration fee of fifty cents ($0.50) on each one thousand dollars ($1,000) principal amount of said bonds. All of said bonds and the interest thereon shall be exempt from state, county and municipal taxation. Save as in KRS 177.580 to 177.630 provided, the form of said bonds, and the method of registration shall be determined by the State Property and Buildings Commission. The cost of engraving, lithographing or printing said bonds shall be certified by the State Property and Buildings Commission to the Finance and Administration Cabinet for payment and shall be paid out of the state road fund.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 2, effective June 26, 1956.

NOTES TO DECISIONS

1. Maximum Interest Rate.

Under the provisions of this section providing for interest the legislature intended that, no bond should bear interest at rate greater than three percent (3%) per annum. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

177.590. Serial numbers — Maturity dates.

Said bonds shall bear serial numbers beginning with number one (1) and shall mature on such dates, with such provisions as to prior redemption including premiums therefor, as may be determined by the State Property and Buildings Commission, providing that all of such bonds shall mature within thirty (30) years from January 1, 1957.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 3, effective June 26, 1956.

NOTES TO DECISIONS

1. Redemption Premiums.

The amount and method of payment of redemption premiums must conform to sound banking and fiscal practices existing at the time the bonds are issued and sold. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

177.595. Full faith and credit of state pledged — Funds derived from certain taxes to be set aside in amount sufficient to pay principal and interest — Exception.

The bonds herein provided for shall be direct obligations of the Commonwealth of Kentucky, and the full faith and credit of the Commonwealth hereby is pledged for the payment of said bonds and the interest thereon. In order to provide for the payment of the principal of all of said bonds at their maturity and the interest thereon annually as same shall accrue, there shall be levied and collected in each of the thirty (30) years from January 1, 1957, to January 1, 1987, taxes for the benefit of the state road fund in the form of license, excise taxes and fees relating to registration, operation and use of vehicles on public highways and excise taxes, use and license taxes relating to gasoline and other motor fuels used upon the public highways in Kentucky at rates not less than the rates now imposed by law or so adjusted as to produce for the road fund not less than the amount now derived from all of such taxes. All funds derived from such taxes hereby are appropriated to the extent necessary for the payment of the principal and interest on said bonds. From the funds derived from said taxes in each year, beginning January 1, 1957, there shall be set aside and held inviolable for that purpose, a fund sufficient to pay the principal and interest on said bonds in each year as and when due until all of said bonds and the interest thereon shall have been paid in full. In each year, after setting aside the funds hereinabove provided, the remainder of the funds derived from such taxes may be expended and used for the cost of administration, statutory refunds and adjustment, payment of highway obligations, costs of construction, reconstruction, rights-of-way, maintenance and repair of public highways, tunnels and bridges and the expense of enforcing state traffic and motor vehicle laws, provided that all the funds collected under KRS Chapter 138 and required by KRS 138.220 and 138.660(2) to be set aside by the Department of Highways for the construction, reconstruction and maintenance of rural and secondary roads shall be first set aside and used for such purposes.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 4, effective June 26, 1956; 1986, ch. 331, § 30, effective July 15, 1986.

NOTES TO DECISIONS

  1. Levy of Taxes.
  2. Appropriation of Funds.
1. Levy of Taxes.

Under this section authorizing issuance of state bonds which would be direct obligations of the Commonwealth in case there is ever a deficiency by reason of insufficiency of the designated resources, the Commonwealth, without qualification, would have to levy ad valorem taxes or taxes of some other kind or increase the present rates sufficiently to meet the demands of the debt. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

2. Appropriation of Funds.

Under provision of this section providing that all funds from KRS 138.220 , subsection (2) of KRS 138.565 (now repealed) and subsection (4) of KRS 138.660 are to be set aside for construction and maintenance of rural and secondary roads, such funds were not excluded from the appropriation and pledge of funds for the payment of the bonds but in distribution of the remainder priority or preference would have to be given to the two-sevenths (2/7) of the taxes described for use on rural and secondary roads. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

177.600. Time of sale — Units.

All of said bonds need not be sold at one (1) time, but may be advertised and sold in units of not less than five million dollars ($5,000,000) principal amount as and when the money to be derived from the issuance and sale of said bonds may be needed. The State Property and Buildings Commission shall determine the time when and the principal amount of said bonds that shall be advertised and sold.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 5, effective June 26, 1956.

177.605. Advertisements for bids before sale of bonds — Bids to be in writing and sealed — Opening of bids — Rejection — Premium and accrued interest to be deposited in sinking fund — Destruction of matured coupons — Cost of advertising.

Before any of said bonds shall be sold, said State Property and Buildings Commission shall advertise not less than once in each of the four (4) weeks preceding the day of sale in at least three (3) newspapers of general circulation in Kentucky and in some one (1) or more recognized financial journals published in the city of New York for bids therefor, and all bids shall be in writing and sealed, and on the day fixed therefor shall be publicly opened by the State Property and Buildings Commission at a time and place designated in the advertisement for bids. None of said bonds shall be sold at less than par and accrued interest, and each advertisement for bids shall so state. Said bonds shall be sold to the highest and best bidder. Said State Property and Buildings Commission shall have the right to reject any and all bids. Any premium and accrued interest received shall be deposited in the sinking fund provided by KRS 177.580 to 177.630 for the payment of said bonds and interest thereon. On the sale of said bonds, all matured coupons shall be detached and destroyed by the State Property and Buildings Commission and a record made of such destruction. The cost incurred by the State Property and Buildings Commission in advertising for bids and in making the sale of said bonds shall be certified by said commission to the Finance and Administration Cabinet and shall be paid out of the state road fund.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 6, effective June 26, 1956.

177.610. Terms for bonds.

The State Property and Buildings Commission shall specify such terms for the bonds that are not inconsistent with the provisions of KRS 177.580 to 177.630 .

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 7, effective June 26, 1956.

177.615. Investment or deposit of amounts received for sinking fund.

The State Property and Buildings Commission may invest any amounts received for the sinking fund provided in KRS 177.580 to 177.630 in interest-bearing obligations of the United States or the purchase of the bonds authorized by KRS 177.580 to 177.630 , or they may deposit said amounts in any state or national bank or trust company of Kentucky, but each such deposit shall be adequately secured by a corporate surety bond in some good and solvent corporate surety company authorized to do business in Kentucky, or by the deposit of United States government bonds which are direct obligations of the United States of America in an amount equal to each such deposit.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 8, effective June 26, 1956.

177.620. Investment or deposit of proceeds derived from sale of bonds — Use of proceeds.

The proceeds derived from the sale of the aforesaid bonds shall be held or invested by the State Property and Buildings Commission in the same manner and under the same restrictions set forth in KRS 177.615 as to the sinking fund and shall be used solely and only by the Department of Highways of the Commonwealth of Kentucky to match federal funds allocated to Kentucky for the construction and reconstruction of highways, tunnels and bridges within the Commonwealth of Kentucky.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 9, effective June 26, 1956.

177.625. Election — Notice to be published — Form of question — Duties of secretary of state — Certification of votes — Effect of election. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 10, effective June 26, 1956) was repealed by Acts 1986, ch. 331, § 63, effective July 15, 1986.

177.630. “Year” defined.

The word “year” as used in KRS 177.580 to 177.630 means calendar year, unless otherwise expressly stated.

History. Enact. Acts 1956 (2nd Ex. Sess.), ch. 3, § 11, effective June 26, 1956.

177.700. Efforts to sell authorized and unissued bonds under existing restrictions to be continued — If effort unsuccessful, proposal to remove interest rate limit to be submitted to voters at an election.

  1. The State Property and Buildings Commission (hereinafter sometimes referred to as the “commission”) is enjoined to continue its best efforts to sell and issue the heretofore unissued thirty million dollars ($30,000,000) of the Commonwealth’s general obligation bonds, as provided in KRS 177.580 to 177.630 , which was approved by the voters at the election held on November 6, 1956 (such bonds, for convenience, being sometimes hereinafter referred to as the “unissued 1956 bonds”; and the aforesaid issue of which the same constitute a part being sometimes hereinafter referred to as the “1956 bonds”). In doing so, the commission shall in all respects observe the restrictive conditions presently applicable to said unissued 1956 bonds, in that any sale or sales shall be for not less than par or face amount with accrued interest to delivery, and at a rate or rates of interest not exceeding, as to any bond, three percent (3%) per annum, payable semiannually, and all of such bonds shall be caused to mature as to principal within thirty (30) years from January 1, 1957.
  2. Unless said unissued 1956 bonds are successfully sold by the commission on or prior to August 31, 1960, a proposal as set forth in KRS 177.700 to 177.820 shall be submitted to the qualified voters of the Commonwealth at the regular election scheduled by law to be held on November 8, 1960, seeking the voters’ authorization and approval of removing, as to said unissued 1956 bonds, the three percent (3%) interest rate limitation presently applicable thereto. Inasmuch as said unissued 1956 bonds have been taken into account in determining the amount of money otherwise necessary to be provided through issuance of additional bonds as hereinafter set forth, such proposal that the voters remove said existing interest rate limitation as to the unissued 1956 bonds shall appear on the ballots at the election to be held on November 8, 1960, as a part of the ballot question submitting for authorization and approval KRS 177.700 to 177.820 as a whole and the proposed issuance of an additional one hundred million dollars ($100,000,000) of general obligation bonds of the Commonwealth for state parks, and for highways, bridges and tunnels, as hereinafter provided. In such event the form of the question which shall be caused to appear upon the ballots at the election on November 8, 1960, shall be as set forth in KRS 177.740 .
  3. In the event the said unissued 1956 bonds are successfully sold by the commission on or prior to August 31, 1960, according to the presently existing interest rate limitation, the commission shall, not later than September 1, 1960, so notify the Secretary of State of the Commonwealth; and inasmuch as there will then no longer be any occasion to seek authorization of the voters for removal of said interest rate limitation, the question to appear upon the ballots submitting KRS 177.700 to 177.820 for authorization and approval of the voters at the election on November 8, 1960, shall be as provided in KRS 177.750 .
  4. Based upon representations made by the commission as set forth in this section the Secretary of State shall, after September 1, 1960, determine whether the form of question to be used in submitting KRS 177.700 to 177.820 to the voters for authorization and approval at the election on November 8, 1960, shall be as set forth in KRS 177.740 , or as set forth in KRS 177.750 , and shall certify the applicable form of ballot question to the respective county clerks at the same time that candidates for public office are provided to be certified pursuant to KRS 118.225 ; and when each county clerk causes the ballots to be printed according to KRS 117.145 the form of question so certified by the Secretary of State shall be caused to appear thereon with appropriate spaces for the voters to designate “Yes” or “No”.

History. Enact. Acts 1960, ch. 106, § 1, effective June 16, 1960; 1978, ch. 384, § 301, effective June 17, 1978; 1980, ch. 188, § 134, effective July 15, 1980.

NOTES TO DECISIONS

1. Constitutionality.

Since this act in effect makes provision for a new tax levy, replacing the old levy, and does not purport to dispose of funds the old levy, Const., § 180, is not violated. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

Where the issuance of bonds is the subject of an act, even though the money is to be devoted to several distinct and unrelated purposes, neither § 6 nor § 51 of the Constitution is violated. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

Research References and Practice Aids

Kentucky Law Journal.

Martin, Administrative Action for Efficient Debt Management: Official Action, 49 Ky. L.J. 511 (1961).

177.710. Commonwealth to contract additional indebtedness not to exceed one hundred million dollars for parks, and for highways, bridges and tunnels — Submission to voters at an election on November 8, 1960, according to Section 50 of the Constitution.

Subject to the provisions of Section 50 of the Constitution of the Commonwealth, as hereinafter provided, a direct indebtedness of the Commonwealth in the principal amount of one hundred million dollars ($100,000,000) in addition to the 1956 bonds, and in addition to any and all other bonds and indebtedness of the Commonwealth, shall be incurred by the Commonwealth through issuance of its general obligation bonds, for the prompt payment of which when due, both principal and interest, the full faith, credit, resources, and unlimited taxing power of the Commonwealth shall irrevocably be pledged; and from the proceeds thereof not to exceed ten million dollars ($10,000,000) shall be and are hereby appropriated and shall be used for establishment, development, and improvement of state parks and for development and improvement of existing state parks; and not to exceed ninety million dollars ($90,000,000) shall be and are hereby appropriated and shall be used for construction of highways, bridges, and tunnels, wherein there is to be federal participation (all of said bonds, for convenience, being sometimes hereinafter referred to as the “1960 bonds”). As provided in Section 50 of the Constitution of the Commonwealth, no part of said indebtedness shall be incurred unless authorized and approved by a majority vote upon submission to the voters at an election as hereinafter provided. Such submission shall be at the regular elections which are to be held on November 8, 1960.

History. Enact. Acts 1960, ch. 106, § 3, effective June 16, 1960.

177.720. Bonds for park purposes and bonds for highways, bridges and tunnels to be designated distinguishably — Separation of proceeds.

  1. Bonds of the ten million dollars ($10,000,000) authorized for state park purposes, and bonds of the ninety million dollars ($90,000,000) authorized for highways, bridges and tunnels shall be given separate and distinguishable designations by resolution of the commission prior to the issuance of any of the 1960 bonds; and in all proceedings relating to authorization, sale and delivery the identity of the bonds shall be manifest; provided, however, the commission may in its discretion, at one (1) time or from time to time, offer for sale, upon the same occasion, all or any part of both of the separately designated blocks of bonds.
  2. The proceeds of bonds issued for park purposes shall be segregated by the commission from all other moneys and funds and shall constitute the “State Park Acquisition and Improvement Fund,” hereby created; and expenditures therefrom shall be made upon order of the commissioner of parks subject to financial and budgetary procedures as may be provided by law only for costs of establishing, developing and improving state parks, and developing and improving existing state parks, and upon order of the commission for defraying expenses incident to the issuance of bonds. Pending expenditure, such proceeds shall be deposited in one or more financial institutions, and each institution shall give security by making a valid pledge to the Commonwealth of United States government securities approved by the commission and having an aggregate market value at all times at least equal to the current balance of the deposit; provided, however, the commission may, in its discretion, cause all or any part of the moneys in the said “state park acquisition and improvement fund” to be invested and from time to time reinvested in United States government securities, and income received from such investments shall be retained in said fund and may be invested and reinvested in like manner. Securities held for the account of said fund shall be converted into cash, upon order of the commission, and disbursed and expended whenever required for the designated purposes of the fund.
  3. The proceeds of bonds issued for highways, bridges and tunnels shall be segregated by the commission from all other moneys and funds and shall constitute the “State Highway Construction Fund of 1960,” hereby created; and expenditures therefrom shall be made upon order of the commissioner of highways of the Commonwealth for construction of highways, bridges and tunnels wherein there is to be federal cost participation; and by the commission for defraying expenses incident to the issuance of bonds. Pending expenditure, such proceeds may be deposited, secured, invested, reinvested and converted into cash in the same manner as is provided in subsection (2) with reference to the proceeds of the bonds issued for park purposes.

History. Enact. Acts 1960, ch. 106, § 4, effective June 16, 1960.

177.730. Bonds for park purposes and bonds for highways, bridges and tunnels to have separate sources of payment of principal and interest — Provisions for levying taxes as required by the Constitution.

All of said 1960 bonds shall, as aforesaid, be direct general obligation bonds of the Commonwealth and shall be issued with an irrevocable pledge of the full faith, credit, resources and unlimited taxing power of the Commonwealth, but in accordance with the mandatory requirement of Section 50 of the Constitution of the Commonwealth there shall be levied and collected, annually, taxes sufficient to pay the interest stipulated, and to discharge the debt within thirty (30) years, as follows:

  1. In order to provide for the payment of the stipulated interest, and to discharge within thirty (30) years, the indebtedness to be evidenced by the ten million dollars ($10,000,000) of 1960 bonds to be issued for acquisition, development and improvement of state parks and for development and improvement of existing state parks, there shall be levied and collected annually so long as any of such bonds are outstanding and unpaid, taxes of the Commonwealth upon all real property, tangible personal property, and intangible personal property from time to time subject to taxation by the Commonwealth, at rates not less than the rates now imposed by law or rates so adjusted as not in any event to jeopardize the prompt payment of principal of and interest on said bonds when due and payable. All proceeds of such taxes, to the extent necessary for payment of the principal of and interest on the ten million dollars ($10,000,000) of 1960 bonds designated for state park purposes, as and when such principal and interest, respectively, shall become due and payable, are hereby appropriated for that purpose; and such amount thereof shall in each year be set aside in the State Treasury in the “Park Bond Sinking Fund,” hereby created, and shall be held therein and disbursed and used upon order of the State Treasurer solely for the purpose of paying the principal of and interest on said bonds when and where due and payable, until all of said bonds, or such lesser amount thereof as may have been issued within thirty (30) years from date of first issue shall have been paid in full. In each year, after setting aside such prescribed amount into the park bond sinking fund, the remainder of the proceeds of said identified taxes shall be available for any proper general fund purposes of the Commonwealth without restriction. Moneys from time to time set aside and deposited in said park bond sinking fund, as hereinabove provided, may be invested by the State Investment Commission from time to time in United States government securities which mature, or are subject to redemption at the option of the holder, at or before the various times when cash funds will be required for payment of the maturing principal of and interest on said identified bonds; and income received from such securities shall be retained in the said park bond sinking fund and may be taken into consideration in the next ensuing annual determination of the amount of such tax proceeds required to be set aside into the said fund as hereinabove provided.
  2. In order to provide for the payment of the stipulated interest, and to discharge within thirty (30) years the indebtedness to be evidenced by the ninety million dollars ($90,000,000) of 1960 bonds to be issued for the construction of highways, bridges and tunnels there shall be levied and collected, annually, taxes of the Commonwealth for the benefit of the state road fund in the form of license, excise taxes and fees relating to registration, operation and use of vehicles on public highways and excise taxes, use and license fees and taxes relating to gasoline and other motor fuels consumed upon the public highways in the Commonwealth, at rates not less than the rates now imposed by law or at rates so adjusted as to produce for the road fund not less than the amount now derived from all such sources. Subject to certain prior vested rights hereinafter enumerated, all proceeds of such taxes, to the extent necessary for payment of the principal of and interest on the ninety million dollars ($90,000,000) of 1960 bonds designated for the highways, bridges and tunnels, as and when such principal and interest, respectively, become due and payable, are hereby appropriated for that purpose; and such amount thereof shall in each year be set aside in the State Treasury into the “Highway Bond Sinking Fund of 1960,” hereby created within the state road fund, and shall be held therein and disbursed and used upon order of the State Treasurer solely for the purpose of paying the principal of and interest on said identified bonds when and where due, until all of said bonds, or such lesser amount thereof as may have been issued within such period of thirty (30) years, shall have been paid in full; provided, however, moneys in said fund may be invested pending disbursement as in the case of moneys in the park bond sinking fund as herein above provided. In setting aside moneys from the proceeds of such taxes and fees into the highway bond sinking fund of 1960, due regard shall be had for any and all vested rights in and to such proceeds existing in favor of (a) the holders of general obligation bonds of the Commonwealth heretofore or hereafter issued and outstanding pursuant to KRS 177.580 to 177.630 , as authorized and approved by the voters at the general election on November 6, 1956, (b) the holders of revenue bonds issued for constructing the turnpike between Louisville and Elizabethtown, Kentucky, as provided in this chapter and in a certain trust agreement made in connection with the issuance of said bonds, including recognition of the commitment of the Commonwealth to pay the cost of maintaining, repairing and operating said turnpike, (c) the holders of revenue bonds issued for the construction of certain bridges as set forth in KRS Chapter 180 and in certain trust indentures securing such bridge revenue bonds, including the commitment of the Commonwealth to pay the cost of operating and maintaining such bridges, (d) the holders of valid contracts of the Department of Highways which are in existence on the respective dates any bonds are issued pursuant to KRS 177.700 to 177.820 , and (e) the right of the several counties of the Commonwealth to receive distribution of certain revenues for the respective county road funds as provided in KRS 47.020 . The right is reserved to the Commonwealth to provide in the future for the construction of additional turnpikes and bridges and financing the same by issuing revenue bonds; and in all such instances the Commonwealth shall have the right to create for the security and source of payment of such revenue bonds a first and prior pledge of and lien upon any and all revenues identified as being generated by such respective projects. In each year, after setting aside into the 1960 highway bond sinking fund the amount herein prescribed, and after due recognition of the rights enumerated above, the remainder of the proceeds derived from such taxes and fees may be expended and used for any lawful and proper purposes of the state road fund as otherwise permitted by the Constitution and laws of the Commonwealth.

History. Enact. Acts 1960, ch. 106, § 5, effective June 16, 1960.

177.740. Form of question for ballots if bonds not sold prior to August 31, 1960.

In the event the unissued 1956 bonds are not sold by the commission on or prior to August 31, 1960, as provided in subsection (2) of KRS 177.700 , the form of the question which shall be caused to appear upon the ballots at the occasion of the general election to be held on November 8, 1960, shall be as follows:

GENERAL OBLIGATION BONDS OF THE COMMONWEALTH FOR HIGHWAYS AND PARKS

“Are you in favor of the Act of the General Assembly known as Senate Bill No. 251, enacted at the Regular Session of 1960, wherein it is proposed to remove the three percent interest rate limitation presently applicable and permit the otherwise lawful rate to apply to unissued bonds of the Commonwealth’s issue of general obligation bonds for highways, bridges and tunnels, authorized by the voters at an election held on November 6, 1956, and that the Commonwealth issue and sell additional general obligation bonds in the principal sum of one hundred million dollars ($100,000,000) from the proceeds of which ten million dollars ($10,000,000) will be set aside for establishing, developing, and improving state parks and developing and improving existing state parks, and ninety million dollars ($90,000,000) will be set aside for constructing and improving highways, bridges and tunnels in the Commonwealth wherein there is to be federal cost participation?”

History. Enact. Acts 1960, ch. 106, § 6.

177.750. Form of question for ballots if bonds are sold prior to August 31, 1960.

In the event the said unissued 1956 bonds are sold by the commission on or prior to August 31, 1960, the form of the question which shall be caused to appear on the ballots at the occasion of said general election to be held November 8, 1960, shall be as follows:

GENERAL OBLIGATION BONDS OF THE COMMONWEALTH FOR HIGHWAYS AND PARKS

“Are you in favor of the Act of the General Assembly known as Senate Bill No. 251, enacted at the regular session of 1960, wherein it is proposed that the Commonwealth issue and sell its general obligation bonds, in addition to all bonds heretofore authorized by the voters, in the principal sum of one hundred million dollars ($100,000,000) from the proceeds of which ten million dollars ($10,000,000) will be set aside for establishing, developing, and improving state parks and developing and improving existing state parks, and ninety million dollars ($90,000,000) will be set aside for constructing and improving highways, bridges and tunnels in the Commonwealth wherein there is to be federal cost participation?”

History. Enact. Acts 1960, ch. 106, § 7.

177.760. Submission of question to the people — Duties of Secretary of State.

KRS 177.700 to 177.820 shall be submitted to the people of the Commonwealth at the general election to be held on November 8, 1960. The fact of such submission shall be publicly advertised in the following ways:

  1. It shall be the duty of the Secretary of State, immediately after September 1, 1960, to determine whether the ballot question shall be the one set forth in KRS 177.740 , or the one set forth in KRS 177.750 , and to inform the Attorney General of the Commonwealth of such determination. It shall then be the duty of the Attorney General to prepare and furnish to the Secretary of State, not later than September 15, 1960, a form of “Notice of Election,” which shall be so designated, shall conform to any requirements otherwise provided by law for notices of elections, and further shall set forth the proper ballot question in full, and KRS 177.700 to 177.820 in full, with provisions for the signature of the Secretary of State. The Secretary of State shall transmit a copy of such form of “Notice of Election” to each of five (5) daily newspapers of bona fide general circulation, published in different areas of the Commonwealth and selected in the discretion of the Secretary of State, with directions that the same be published in each of such newspapers in the form of a legal notice, in one (1) issue published in each of the calendar weeks commencing on Mondays, October 10, 17, 24, and 31, 1960, but not in any Sunday issue. Each such newspaper shall publish the same as directed, in the size type customarily used by it in publishing legal notices, and shall be entitled to payment according to its standard prevailing rate for publication of legal notices. After the last publication, each such newspaper shall provide to the Secretary of State, with or before its bill for publication, at least three (3) copies of an affidavit sufficient to constitute proper proof of publication, and if the Secretary of State finds the same to be in order he shall be authorized to draw a warrant upon the State Treasurer for payment from uncommitted moneys in the general fund of the Commonwealth.
  2. The Secretary of State shall deliver a copy of said form of “Notice of Election” to the state printer, and thereupon the state printer shall promptly prepare and furnish to the Secretary of State at least one hundred twenty-five (125) copies of such notice in the form of handbills of sufficient size and type composition as to be ordinarily legible. The Secretary of State shall furnish a copy of the notice in such handbill form to the county clerk of each county of the Commonwealth, and it shall be the duty of each county clerk, upon receiving the same, to post the same at or near the county courthouse door, or otherwise as notices of judicial sales and other court proceedings are customarily posted.
  3. Each county clerk shall cause a facsimile of the ballot question to be published as may be required by law.
  4. If the Secretary of State shall perform in proper and timely fashion each of the duties provided in this section to be performed by him, any failure of others to perform duties and functions as herein provided shall not invalidate the election as to approval or disapproval of KRS 177.700 to 177.820 , if upon consideration of the Commonwealth as a whole, it shall appear that the qualified voters were fairly apprised of the election.

History. Enact. Acts 1960, ch. 106, § 8, effective June 16, 1960; 1978, ch. 384, § 302, effective June 17, 1978.

177.770. Election held in conjunction with general election.

Said election shall be conducted in conjunction with the regular elections otherwise provided by law to be held on the same day, by the same election officers and at the same polling places. The votes cast in favor of and against KRS 177.700 to 177.820 shall be canvassed and certified to the State Board of Elections as in the case of votes cast in the election of officers of the state at large. If it be found that a majority of the votes cast on the question were in favor of KRS 177.700 to 177.820 , the State Board of Elections shall so certify to the Governor and the Governor shall proclaim that KRS 177.700 to 177.820 has been approved and is in effect.

History. Enact. Acts 1960, ch. 106, § 9, effective June 16, 1960.

177.780. Sale of bonds — Conditions.

If the question submitting KRS 177.700 to 177.820 to the people at said election on November 8, 1960, shall have been in the form set forth in KRS 177.740 , then from and after the proclaiming by the Governor that KRS 177.700 to 177.820 has been approved and is in effect, any unissued bonds of the issue for highways, bridges and tunnels, as proposed by KRS 177.580 to 177.630 , approved and authorized by the voters at the election held on November 6, 1956, as aforesaid, may be sold and issued by the commission, at one (1) time or from time to time, in strict conformity with all provisions of said KRS 177.580 to 177.630 , with the sole exception that pursuant to the voters’ authorization and approval of KRS 177.700 to 177.820, the heretofore prevailing interest rate limitation of three percent (3%) per annum may be disregarded and any or all of said bonds may be sold and issued to bear any interest rate or not exceeding the then prevailing maximum rate as prescribed by statute in and for the Commonwealth generally.

History. Enact. Acts 1960, ch. 106, § 10, effective June 16, 1960.

177.790. Bonds to mature in thirty years — Other details to be established by the State Property and Buildings Commission.

If KRS 177.700 to 177.820 be approved by a majority of the votes cast thereon at said election, the initial date of issue of the 1960 bonds shall be established by resolution of the State Property and Buildings Commission prior to the first issuance and sale of any of said bonds; and thereafter all of the 1960 bonds, whenever issued, shall be dated as of said date, and shall mature as to principal on or prior to the thirtieth (30th) anniversary thereof. The bonds shall be sold for not less than par or face amount and shall bear interest at such rate or rates, but not to exceed the rate referred to in KRS 177.780 , as said commission may determine, and interest may be made payable semiannually. The bonds may be issued at one time or from time to time as the State Property and Buildings Commission may determine by its resolution or resolutions; and said commission shall in its discretion determine all details thereof, including but not by way of limitation, their denominations, whether the bonds shall be of term or serial maturities, and the amount which shall mature on any serial maturity date; whether the bonds, or any of them, shall be subject to redemption prior to stated maturities and upon what terms; place or places of payment of principal and interest, which may be within the Commonwealth or outside thereof; whether interest shall be evidenced by annexed coupons; whether the bonds shall be registered or registrable as to principal or interest, or both, and any other details not contrary to law or inconsistent with KRS 177.700 to 177.820 which in the discretion of said commission may appear wise and expedient.

History. Enact. Acts 1960, ch. 106, § 11, effective June 16, 1960.

177.800. Bonds to be sold at public sale or sales — Manner of advertising — Interest rates to be established by the commission and may be determined on basis of competition.

The bonds shall be sold by the commission, in its discretion, at one (1) sale or from time to time as funds are required for the identified purposes. Each sale shall be upon sealed purchase bids which shall be publicly opened and considered after solicitation at least ten (10) days in advance by publication of a notice at least one (1) time in a financial newspaper or journal published in the City and State of New York, and by advertisement by publication pursuant to KRS Chapter 424. The commission may fix one (1) or more interest rates by resolutions adopted prior to publication of the advertisement, or may notify bidders to stipulate in their bids one (1) or more interest rates of their own choosing and fix the rate or rates by resolution when action is taken upon the bids. The commission shall reserve the right to reject bids.

History. Enact. Acts 1960, ch. 106, § 12; 1966, ch. 239, § 152.

177.810. Bonds exempt from taxation — Designation of signing officers — Temporary bonds or certificates — No other approvals required.

The bonds and receipt of interest thereon shall be exempt from all taxation by the Commonwealth and its political subdivisions, municipalities, and taxing districts. The bonds shall be signed in the name of the Commonwealth by the facsimile signatures of the Governor and Treasurer of the Commonwealth, and the great seal of the Commonwealth or a facsimile thereof shall be affixed thereto and attested by the validating manual signature of the Secretary of State, and the interest coupons, if any, shall be executed by the facsimile signature of the Treasurer. In case any officer whose signature or facsimile thereof shall appear on any bonds or coupons shall cease to be such officer before delivery of the bonds, such signature or facsimile thereof shall, nevertheless, be valid and sufficient for all purposes, the same as if he had remained in office until delivery. All bonds issued under KRS 177.700 to 177.820 shall have and are hereby declared to have all the incidents of negotiable instruments. Prior to the preparation of definitive bonds, the commission may issue temporary bonds or certificates, exchangeable for definitive bonds when the same shall have been executed and are ready for delivery; and provision may also be made for the replacement of any bonds which shall become mutilated, or be destroyed or lost. Bonds may be issued under the provisions of KRS 177.700 to 177.820 without obtaining the consent of any department, division, commission, board, bureau, or agency of the Commonwealth and without any other proceedings or the happening of any conditions, events or things other than the proceedings, conditions, events, and things which are specifically required by KRS 177.700 to 177.820.

History. Enact. Acts 1960, ch. 106, § 13, effective June 16, 1960.

177.820. “Year” defined.

As used in KRS 177.700 to 177.820 , “year” means the fiscal year of the Commonwealth, commencing on the first day of July, and ending on the next ensuing thirtieth day of June, unless the context clearly shows a different meaning.

History. Enact. Acts 1960, ch. 106, § 14, effective June 16, 1960.

Billboard Advertising

177.830. Definitions for KRS 177.830 to 177.890.

As used in KRS 177.830 to 177.890 , unless the context requires otherwise:

  1. “Limited-access highway” means a road or highway or bridge constructed pursuant to the provisions of KRS 177.220 to 177.310 ;
  2. “Interstate highway” means any highway, road, street, access facility, bridge, or overpass which is designated as a portion of the national system of interstate and defense highways as may be established by law, or as may be so designated by the Transportation Cabinet in the joint construction of the system by the Transportation Cabinet and the United States Department of Transportation, Bureau of Public Roads;
  3. “Federal-aid primary highway” means any highway, road, street, appurtenant facility, bridge, or overpass which is designated as a portion of the federal-aid primary highway system as may be established by law or as may be so designated by the Transportation Cabinet and the United States Department of Transportation;
  4. “Turnpike” means any road or highway or appurtenant facility constructed pursuant to the provisions of KRS 177.390 to 177.570 , or pursuant to the provisions of any other definition of “turnpike” in the Kentucky Revised Statutes, or any other highway, road, parkway, bridge, or street upon which a toll or fee is charged for the use of motor vehicular traffic;
  5. “Advertising device” means any billboard, sign, notice, poster, display, or other device intended to attract the attention of operators of motor vehicles on the highways, and shall include a structure erected or used in connection with the display of any device and all lighting or other attachments used in connection therewith. However, it does not include directional or other official signs or signals erected by the state or other public agency having jurisdiction;
  6. “Highway or highways” as used in KRS 177.830 to 177.890 means limited access highway, interstate highway, federal-aid primary highway, or turnpike as defined in KRS 177.830 to 177.890 ;
  7. “Commercial or industrial zone” adjacent to a federal-aid primary highway means an area zoned to permit business, commerce or trade pursuant to lawful ordinance or regulation;
  8. “Unzoned commercial or industrial area” adjacent to a federal-aid primary highway means an area which is not zoned by state or local law, regulation, or ordinance and on which either a commercial or industrial activity is conducted or a permanent structure therefor is located together with the area extending along the highway for such distances as may be determined by regulation promulgated by the secretary of the Transportation Cabinet. Each side of the highway will be considered separately in applying this definition — all measurements shall be from the outer edges of the regularly used buildings, parking lots, storage or processing areas of the activities, not from the property lines of the activities, and shall be along or parallel the edge of the pavement of the highway;
  9. “Commercial or industrial activities” for purposes of unzoned industrial and commercial areas means those activities generally recognized as commercial or industrial by zoning authorities in this state, except that none of the following activities shall be considered commercial or industrial:
    1. Outdoor advertising structures;
    2. Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands;
    3. Activities normally or regularly in operation less than three (3) months of the year;
    4. Transient or temporary activities;
    5. Activities not visible from the main traveled way;
    6. Activities more than 300 feet from the nearest edge of the right-of-way;
    7. Activities conducted in a building principally used as a residence;
    8. Railroad tracks and minor sidings.
  10. “Urban areas” means those areas having a population of five thousand (5,000) or more which have been designated by the United States Department of Commerce, Bureau of the Census, as an urban area. A list of cities which have designated urban areas shall be maintained by the Transportation Cabinet, Division of Planning, Frankfort, Kentucky 40622. The Transportation Cabinet shall maintain maps indicating the boundaries of the designated areas. The maps shall be available from the Transportation Cabinet for a fee not to exceed five dollars ($5.00).

History. Enact. Acts 1960, ch. 175, § 1; 1966, ch. 76, § 1; 1968, ch. 178, § 1; 1976, ch. 80, § 2, effective March 29, 1976; 1990, ch. 398, § 1, effective April 9, 1990.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Superior to City Zoning.
  3. Directional Signs.
  4. Extent of Regulation.
  5. Urban Areas.
  6. Public Service and Similar Information.
  7. — Failure to Define.
  8. Highways.
1. Constitutionality.

The Billboard Advertising Act (KRS 177.830 to 177.890 ) is constitutional as a proper exercise of the state police power and the agreement entered into with the United States department of commerce, bureau of public roads concerning the construction of the interstate highway system in Kentucky did not constitute a relinquishment by the state of the right to exercise its police power. Moore v. Ward, 377 S.W.2d 881, 1964 Ky. LEXIS 505 ( Ky. 1964 ).

The Billboard Advertising Act is not unconstitutional as a retroactive or retrospective act since it does not affect or impair rights existing prior to the date of its enactment nor is it unconstitutional as an ex post facto act since it does not impose a criminal penalty upon any person for any prior act and it is not an arbitrary exercise of state police power. Moore v. Ward, 377 S.W.2d 881, 1964 Ky. LEXIS 505 ( Ky. 1964 ).

The Billboard Act and regulations are content neutral since they are not directed at the content of the messages, but at their secondary effects, and they apply evenhandedly to commercial and noncommercial speech. Wheeler v. Commissioner of Highways, 822 F.2d 586, 1987 U.S. App. LEXIS 7865 (6th Cir. Ky. 1987 ), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653, 1988 U.S. LEXIS 300 (U.S. 1988).

The interest in promoting the recreational value of public travel and preserving natural beauty along interstate highways is substantial and sufficient to support the content neutral restrictions of the Billboard Act, these restrictions are narrowly tailored to achieve this interest, and these restrictions leave open ample alternative channels for communication of the information; therefore, the Billboard Act does not violate the First Amendment of the United States Constitution.Wheeler v. Commissioner of Highways, 822 F.2d 586, 1987 U.S. App. LEXIS 7865 (6th Cir. Ky. 1987 ), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653, 1988 U.S. LEXIS 300 (U.S. 1988).

In consolidated actions challenging the application of Kentucky’s Billboard Advertising Act, KRS 177.830 through 177.890 , summary judgment was properly granted in favor of defendant, the Kentucky Transportation Cabinet, Department of Highways, because plaintiffs failed to obtain a permit for their billboards containing religious messages and the signs were thus subject to removal as public nuisances due to the lack of a permit. While plaintiffs had a right to express and share their religion with the motoring public, the Commonwealth of Kentucky had a right to place reasonable restrictions on the place and manner that message is conveyed, particularly when aimed at protecting public safety and preserving the public environment; government acts often inadvertently frustrate certain citizens’ search for spiritual fulfillment, yet the government simply could not operate if it was required to satisfy every citizen’s religious needs and desires. Harston v. Commonwealth Transp. Cabinet, 2011 Ky. App. LEXIS 40 (Ky. Ct. App.), sub. op., 2011 Ky. App. Unpub. LEXIS 943 (Ky. Ct. App. Mar. 4, 2011), review denied, ordered not published, 2012 Ky. LEXIS 219 (Ky. Feb. 15, 2012).

2. Superior to City Zoning.

The enactment of the Billboard Advertising Act delegated to the department of highways, an agency of the state, a right control in the exercise of the state’s police power which is superior to the right of the city to zone. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

3. Directional Signs.

The exclusion provided for directional and other signs is limited to official signs erected by the State or other public agencies and does not include signs erected by private individuals, directional or otherwise, so that billboards indicating the location of a farm, an agricultural association and two camps were not within the exclusion. Commonwealth, Dep't of Transp. v. Central Kentucky Angus Asso., 555 S.W.2d 627, 1977 Ky. App. LEXIS 798 (Ky. Ct. App. 1977).

4. Extent of Regulation.

KRS 177.830 through 177.890 envision a program under which only carefully selected signs, deemed by an administrative agency to be in the interest of the traveling public, shall be erected and there is no authorization for the agency or the courts to exempt certain private signs from the prohibition of the law even though the signs may, in some instances, announce the presence of an outstanding attraction which would merit notice to the traveling public under the guidelines established by the statutes and the regulations thereunder. Commonwealth, Dep't of Transp. v. Central Kentucky Angus Asso., 555 S.W.2d 627, 1977 Ky. App. LEXIS 798 (Ky. Ct. App. 1977).

Regulations of Transportation Cabinet governing lighted message boards which prohibited commercial speech but allowed time, date, temperature or weather information to be displayed were substantially broader than necessary to protect the governmental interests of highway safety and aesthetics. Cabinet failed to demonstrate a reasonable connection between the requirements of highway safety and aesthetics and had not narrowly tailored the regulation to achieve any desired objectives and therefore developed an unconstitutional regulation on commercial free speech as well as upon noncommercial free speech because the state had chosen to allow some noncommercial messages to be displayed. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

5. Urban Areas.

Subsection (2) of KRS 177.841 was unconstitutionally vague and overbroad in failing to define “located outside an urban area” with sufficient precision to put the public on notice as to the areas to which it would apply. Further, this defect was not constitutionally relieved by the General Assembly in subsection (10) of this section prior to its 1990 amendment which delegated to the Secretary of Transportation the responsibility of defining the term “urban,” because this became a constitutionally impermissible delegation of the legislative function. Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ) (decision prior to 1990 amendment of this section).

The language in KRS 177.842 extending the definition of “urban area” to advertising devices erected after 1976 was intended only to identify the advertising devices to which the amendment applied, rather than to make the definition of urban area contained in subsection (10) of this section retroactive to 1976. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wayfara, Inc., 840 S.W.2d 211, 1992 Ky. App. LEXIS 105 (Ky. Ct. App. 1992).

There is nothing in Ky. Acts 1990, ch. 398 which expressly states the new definition of “urban area” shall be retroactively applied to a situation where penalties are sought for actions which took place in 1981 and which were then illegal based upon a definition which the Supreme Court in Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ).

6. Public Service and Similar Information.
7. — Failure to Define.

Failure of legislature to define the words “public service information” and “similar information” appearing in KRS 177.863(4)(a) provided no guidance to the Transportation Cabinet, which omitted the words from their regulations, and amounted to an unconstitutional delegation of the legislative power to the Cabinet in violation of Const., §§ 27 and 28. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

8. Highways.

The legislature intended subsection (4) of KRS 177.860 to apply to both interstate and federal-aid primary highways because the General Assembly used the term “highways” in the introductory paragraph of KRS 177.860 . Transportation Cabinet, Dep't of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

Cited:

Commonwealth, Transp. Cabinet, Dep’t of Highways v. Tri-State Poster Advertising Co., 697 S.W.2d 169, 1985 Ky. App. LEXIS 654 (Ky. Ct. App. 1985).

Research References and Practice Aids

Cross-References.

Unlawfully posting advertisements, Penal Code, KRS 512.080 .

Kentucky Law Journal.

Comments, A Challenge to Historic Preservation in Kentucky, 65 Ky. L.J. 895 (1976-77).

Northern Kentucky Law Review.

Note, Wheeler v. Commissioner of Highways: A Sign of the Times?, 15 N. Ky. L. Rev. 405 (1988).

177.840. Billboard advertising prohibited — Exception — Removal required, when. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 175, § 2; 1966, ch. 76, § 2) was repealed by Acts 1976, ch. 80, § 5. For present law see KRS 177.841 .

177.841. Billboard advertising prohibited — Exceptions.

  1. Except as otherwise provided in KRS 177.830 to 177.890 , the erection or maintenance of any advertising device upon or within six hundred sixty (660) feet of the right-of-way of any interstate highway or federal-aid primary highway is prohibited.
  2. The erection or maintenance of any advertising device located outside of an urban area and beyond six hundred sixty (660) feet of the right-of-way which is legible and/or identifiable from the main traveled way of any interstate highway or federal-aid primary highway is prohibited with the exception of:
    1. Directional and official signs and notices;
    2. Signs advertising the sale or lease of property upon which they are located; or
    3. Signs advertising activities conducted on the property on which they are located.

History. Enact. Acts 1976, ch. 80, § 3, effective March 29, 1976.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Violations.
  3. Enforcement.
1. Constitutionality.

Subsection (2) of this section is unconstitutionally vague and overbroad in failing to define “located outside an urban area” with sufficient precision to put the public on notice with regard to what areas it will apply. Further, this defect has not been constitutionally relieved by the General Assembly delegating to the Secretary of Transportation the responsibility of defining the term “urban,” because this becomes a constitutionally impermissible delegation of the legislative function. Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ) (decision prior to 1990 amendment of KRS 177.830 ).

2. Violations.

Where four (4) billboards advertising the location of a farm, an agricultural association and two camps, along with some advertising material for outboard motors, were erected within 660 feet of the right-of-way of a highway, such billboards fell within this section’s prohibition against advertising devices. Commonwealth, Dep't of Transp. v. Central Kentucky Angus Asso., 555 S.W.2d 627, 1977 Ky. App. LEXIS 798 (Ky. Ct. App. 1977).

The doctrine of “substantial compliance” does not prevent the removal of a billboard which, to some minor extent, falls short of the setback requirements. Commonwealth, Transp. Cabinet, Dep't of Highways v. Tri-State Poster Advertising Co., 697 S.W.2d 169, 1985 Ky. App. LEXIS 654 (Ky. Ct. App. 1985).

3. Enforcement.

Subsection (2) of this section was not selectively enforced in violation of federal and state constitutions, where it was enforced statewide in every highway district in which it could be applied, there was no indication that the defendants were singled out for enforcement or that others in the same class were allowed to remain in violation of the law, there was no evidence of invidious motive or unjustifiable classification, and the Department of Highways’ decision to enforce this subsection according to availability of resources an to concentrate enforcement in districts which received more federal funds was not unreasonable. Transportation Cabinet, Dep't of Highways v. Express Mart, 759 S.W.2d 600, 1988 Ky. App. LEXIS 211 (Ky. Ct. App. 1988).

In consolidated actions challenging the application of Kentucky’s Billboard Advertising Act, KRS 177.830 through 177.890 , summary judgment was properly granted in favor of defendant, the Kentucky Transportation Cabinet, Department of Highways, because plaintiffs failed to obtain a permit for their billboards containing religious messages and the signs were thus subject to removal as public nuisances due to the lack of a permit. While plaintiffs had a right to express and share their religion with the motoring public, the Commonwealth of Kentucky had a right to place reasonable restrictions on the place and manner that message is conveyed, particularly when aimed at protecting public safety and preserving the public environment; government acts often inadvertently frustrate certain citizens’ search for spiritual fulfillment, yet the government simply could not operate if it was required to satisfy every citizen’s religious needs and desires. Harston v. Commonwealth Transp. Cabinet, 2011 Ky. App. LEXIS 40 (Ky. Ct. App.), sub. op., 2011 Ky. App. Unpub. LEXIS 943 (Ky. Ct. App. Mar. 4, 2011), review denied, ordered not published, 2012 Ky. LEXIS 219 (Ky. Feb. 15, 2012).

Cited:

Transportation Cabinet, Dep’t of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

DECISIONS UNDER PRIOR LAW

1. Limitations.

State has authority to establish stricter limitations on maintenance of billboards than those required by federal law. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

2. Superior to City Zoning.

Fact that area is zoned industrial by city authorities does not affect right of state to prohibit billboards therein which are within the specified distance from interstate highway. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

Opinions of Attorney General.

Because of the express prohibition set out in subsection (1), the state does not have the authority to issue regulations allowing advertising within the so-called “Cotton areas,” i.e., areas within 660 feet of the interstate highway right-of-way. OAG 83-461 .

When KRS 177.865(2) is read in connection with the rest of that statute and KRS 177.860 , it does not appear that KRS 177.865(2) was meant to carve out an exemption to the prohibitions on advertising set forth in this section; rather, it was simply a part of the legislation to allow certain advertising devices within the highway rights-of-way to provide directional information for establishments offering goods and services to the traveling public. OAG 83-461 .

The Kentucky General Assembly specifically expressed its intent concerning the “Cotton areas” (areas within 660 feet of the interstate highway right-of-way) when it enacted subdivision (1) of this section and expressly prohibited the erection or maintenance of advertising devices within the “Cotton areas” and the fact that the Kentucky General Assembly did not mention the element of time of acquisition of rights-of-way indicates that it intended to prohibit such advertising regardless of when such rights-of-way were acquired. OAG 83-461 .

Research References and Practice Aids

Northern Kentucky Law Review.

Note, Wheeler v. Commissioner of Highways: A Sign of the Times?, 15 N. Ky. L. Rev. 405 (1988).

ALR

Billboards and other outdoor advertising signs as civil nuisance. 38 A.L.R.3d 647.

Validity of regulations restricting height of freestanding advertising signs. 56 A.L.R.3d 1207.

Validity and construction of state or local regulation prohibiting the erection or maintenance of advertising structures within a specified distance of street or highway. 81 A.L.R.3d 564.

177.842. Application of KRS 177.830(10) to outdoor advertising.

KRS 177.830(10) in conjunction with the prohibition of KRS 177.841(2) shall extend to all applicable outdoor advertising devices erected after January 1, 1976, unless previously determined by a court of competent jurisdiction to be in compliance with the laws, regulations, and rules governing outdoor advertising devices or were situated in an area which was authorized by an existing or previous statute.

History. Enact. Acts 1990, ch. 398, § 2, effective April 9, 1990.

NOTES TO DECISIONS

1. Construction.
2. — Retroactive Effect.

The language in this section extending the definition of “urban area” to advertising devices erected after 1976 was intended only to identify the advertising devices to which the amendment applied, rather than to make the definition of urban area contained in subsection (10) of KRS 177.830 retroactive to 1976. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wayfara, Inc., 840 S.W.2d 211, 1992 Ky. App. LEXIS 105 (Ky. Ct. App. 1992).

There is nothing in Ky. Acts 1990, ch. 398 which expressly states the new definition of “urban area” shall be retroactively applied to a situation where penalties are sought for actions which took place in 1981 and which were then illegal based upon a definition which the Supreme Court in Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ).

177.850. Purpose of KRS 177.830 to 177.890.

The general purposes of KRS 177.830 to 177.890 and its specific objectives and standards are:

  1. To provide for maximum visibility along interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and connecting roads or highways;
  2. To prevent unreasonable distraction of operators of motor vehicles;
  3. To prevent confusion with regard to traffic lights, signs or signals or otherwise interfere with the effectiveness of traffic regulations;
  4. To preserve and enhance the natural scenic beauty or the aesthetic features of the aforementioned interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and adjacent areas;
  5. To promote maximum safety, comfort and well-being of the users of said highways.

History. Enact. Acts 1960, ch. 175, § 3; 1966, ch. 76, § 3.

NOTES TO DECISIONS

Cited:

Wheeler v. Commissioner of Highways, 822 F.2d 586, 1987 U.S. App. LEXIS 7865 (6th Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653, 1988 U.S. LEXIS 300 (1988); Transportation Cabinet, Dep’t of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Note, Wheeler v. Commissioner of Highways: A Sign of the Times?, 15 N. Ky. L. Rev. 405 (1988).

177.860. Standards for billboard advertising.

The commissioner of the Department of Highways shall prescribe by regulations reasonable standards for the advertising devices hereinafter enumerated, designed to protect the safety of and to guide the users of the highways and otherwise to achieve the objectives set forth in KRS 177.850 , and the erection and maintenance of any of the following advertising devices, if they comply with the regulations, shall not be deemed a violation of KRS 177.830 to 177.890 :

  1. An advertising device which is to be erected or maintained on property for the purpose of setting forth or indicating:
    1. The name and address of the owner, lessee, or occupant of the property; or
    2. The name or type of business or profession conducted on the property; or
    3. Information required or authorized by law to be posted or displayed on the advertising device;
  2. An advertising device which is not visible from any traveled portion of the highway;
  3. An advertising device indicating the sale or leasing of the property upon which it is placed;
  4. Advertising devices which otherwise comply with the applicable zoning ordinances and regulations of any county or city, and which are to be located in a commercially or industrially developed area, in which the commissioner of highways determines, in exercise of his sound discretion, that the location of the advertising devices is compatible with the safety and convenience of the traveling public.

History. Enact. Acts 1960, ch. 175, § 4, effective June 16, 1960; 1982, ch. 424, § 1, effective July 15, 1982; 1992, ch. 402, § 3, effective July 14, 1992.

NOTES TO DECISIONS

  1. Application.
  2. Regulations.
  3. Commercially or Industrially Developed Area.
1. Application.

The legislature intended subsection (4) of this section to apply to both interstate and federal-aid primary highways because the General Assembly used the term “highways” in the introductory paragraph of KRS 177.860 . Transportation Cabinet, Dep't of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

Reconstruction of a billboard following storm damage exceeded the scope of “routine maintenance” under state law, and with anything more than routine maintenance, such as repairs or component replacement, the nonconforming status was lost and the billboard became illegal. Whiteco Metrocom Corp. v. Commonwealth, 14 S.W.3d 24, 1999 Ky. App. LEXIS 89 (Ky. Ct. App. 1999).

2. Regulations.

Highway department regulations which permit maintenance of billboards in commercially or industrially developed areas as defined therein were valid as against challenge on ground of invalid delegation of legislative power. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

Since the language of subsection (4) of this section does not require the existence of zoning ordinances before an area can be deemed commercial or industrial, the portion of regulation which stated that an area must be zoned industrial or commercial at the time of an application under subsection (4) was contradictory to the language and intent of subsection (4) and a usurpation of legislative authority. Transportation Cabinet, Dep't of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

The administrative regulations promulgated by the Transportation Cabinet in response to the Kentucky Billboard Act, KRS 177.830 to 177.890 , bear a rational relationship to the goals of the Billboard Act and are, accordingly, within the authority granted to the Cabinet by the General Assembly. United Sign, Ltd. v. Commonwealth, 44 S.W.3d 794, 2000 Ky. App. LEXIS 126 (Ky. Ct. App. 2000).

The administrative regulations promulgated by the Transportation Cabinet in response to the Kentucky Billboard Act, KRS 177.830 to 177.890 , are sufficiently clear to reasonable persons such that a person is reasonably informed as to the regulation’s requirements and, therefore, are not unconstitutionally vague. United Sign, Ltd. v. Commonwealth, 44 S.W.3d 794, 2000 Ky. App. LEXIS 126 (Ky. Ct. App. 2000).

3. Commercially or Industrially Developed Area.

In action to force the removal of a billboard where there was an issue of material fact as to whether the land use of the land on which the billboard was placed as of September, 1959, was clearly established by state law as industrial or commercial in order to determine whether the billboard fell within the exception of subsection (4) of this section, court erred in granting summary judgment. Transportation Cabinet, Dep't of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

A regulation which provided that a commercially or industrially developed area consists of an area in which at least 10 separate commercial or industrial enterprises are located was a valid constitutional delegation of power and was not vague. Unisign, Inc. v. Commonwealth, 19 S.W.3d 652, 2000 Ky. LEXIS 68 ( Ky. 2000 ).

Cited:

Wheeler v. Commissioner of Highways, 822 F.2d 586, 1987 U.S. App. LEXIS 7865 (6th Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653, 1988 U.S. LEXIS 300 (1988).

Research References and Practice Aids

Northern Kentucky Law Review.

Note, Wheeler v. Commissioner of Highways: A Sign of the Times?, 15 N. Ky. L. Rev. 405 (1988).

177.863. Highway advertising devices, what prohibited — Spacing — Size — Illumination.

Within any commercial or industrial zone or unzoned commercial or industrial area adjacent to a federal-aid primary highway, advertising devices shall be subject to the following standards:

  1. Prohibited advertising devices:
    1. Advertising devices that are not clean and in good repair.
    2. Advertising devices that are not securely affixed to a substantial structure.
    3. Advertising devices which attempt or appear to attempt to direct the movement of traffic or which interfere with, imitate or resemble any official traffic sign, signal or device.
    4. Advertising devices which obstruct the view of official signs, or approaching and merging traffic.
    5. Advertising devices on trees, or painted upon natural features.
    6. Advertising devices exceeding one thousand two hundred fifty (1,250) square feet on each face including border and trim, but excluding supports.
    7. Advertising devices advertising an activity that is illegal under state or federal law.
    8. Obsolete advertising devices.
  2. Spacing of advertising devices:
    1. No advertising device structure designed to be primarily viewed from a non-limited access federal-aid primary highway shall be erected within three hundred (300) feet of any other such advertising device structure on the same side of the highway, unless separated by a building, natural obstruction or roadway. Provided, however, that in an incorporated municipality such required distance shall be reduced to one hundred (100) feet.
    2. Double-faced — V-type and/or back-to-back advertising device structures shall be one advertising device for spacing purposes.
    3. The minimum distance between advertising devices shall be measured along the nearest edge of the pavement between points directly opposite the advertising devices.
    4. Advertising devices advertising the sale or lease of the property on which they are located, or advertising the activity conducted thereon, are permitted, and shall not cause any other advertising device to be in violation of this chapter; notwithstanding any contrary provision.
  3. Size of advertising devices:
    1. The maximum area for any advertising device shall be one thousand two hundred fifty (1,250) square feet, including border and trim but excluding supports.
    2. An advertising device structure may contain one (1) or two (2) advertisements per facing, not to exceed the maximum area.
    3. Double faced structures will be permitted with the maximum area being allowed for each facing.
  4. Lighting of advertising devices:
    1. Advertising devices which contain, include or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.
    2. Advertising devices which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled way of the highway which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any driver’s operation of a motor vehicle are prohibited.
    3. No advertising device shall be so illuminated that it interferes with the effectiveness of or obscures an official traffic sign, device or signal.

Advertising devices may be illuminated, subject to the following restrictions:

History. Enact. Acts 1966, ch. 76, § 4; 1968, ch. 178, § 2.

NOTES TO DECISIONS

  1. Application.
  2. Regulations.
  3. — Unconstitutional.
  4. Unconstitutional Delegation of Legislative Power.
1. Application.

This section dealing with roads of the federal-aid primary system has no application to the national system of interstate and defense highways. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

2. Regulations.
3. — Unconstitutional.

Regulations of Transportation Cabinet governing lighted message boards which prohibited commercial speech but allowed time, date, temperature or weather information to be displayed were substantially broader than necessary to protect the governmental interests of highway safety and aesthetics. Cabinet failed to demonstrate a reasonable connection between the requirements of highway safety and aesthetics and had not narrowly tailored the regulation to achieve any desired objectives and therefore developed an unconstitutional regulation on commercial free speech as well as upon noncommercial free speech because the state had chosen to allow some noncommercial messages to be displayed. Injunction against travel plaza’s lighted message board was reversed. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

4. Unconstitutional Delegation of Legislative Power.

Failure of legislature to define the words “public service information” and “similar information” appearing in subsection (4)(a) of this section provided no guidance to the Transportation Cabinet, which omitted the words from their regulations, and amounted to an unconstitutional delegation of the legislative power to the Cabinet in violation of Const., §§ 27 and 28. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

Cited:

Owensboro Metropolitan Bd. of Adjustments v. Midwest Outdoor Advertising, Inc., 729 S.W.2d 446, 1987 Ky. App. LEXIS 428 (Ky. Ct. App. 1987).

Research References and Practice Aids

Kentucky Law Journal.

Tippy, Roads and Recreation, IV. The Highway As Recreation, B. The Highway Beautification Act of 1965, 55 Ky. L.J. 799 (1967).

Northern Kentucky Law Review.

Note, Wheeler v. Commissioner of Highways: A Sign of the Times?, 15 N. Ky. L. Rev. 405 (1988).

ALR

Constitutional power to regulate. 79 A.L.R. 551.

177.865. Regulations governing advertisement of goods and services. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 424, § 2, effective July 15, 1982) was repealed by Acts 1992, ch. 402, § 4, effective July 14, 1992. For present law see KRS 177.0736 .

177.867. Acquisition of billboards by state — Compensation.

  1. The commissioner of the Department of Highways is authorized to acquire by purchase, gift, or condemnation pursuant to the Eminent Domain Act of Kentucky and shall pay just compensation upon the removal of the following advertising devices:
    1. Those lawfully in existence on October 22, 1965;
    2. Those lawfully on any highway designated a part of the interstate or federal-aid primary system on or after October 22, 1965, and before January 1, 1968;
    3. Those lawfully erected on or after January 1, 1968;
    4. Those lawfully in existence on January 1, 1976; and
    5. Those lawfully erected or maintained, or both, between January 1, 1976, and December 31, 1989.
  2. Compensation shall be paid for the following:
    1. The taking from the owner of any such advertising device of all right, title, leasehold, and interest in such advertising device; and
    2. The taking from the owner of the real property on which the advertising device is located, of the right to erect and maintain such advertising devices thereon.

History. Enact. Acts 1966, ch. 76, § 5; 1968, ch. 178, § 3; 1976, ch. 80, § 4, effective March 29, 1976; 1976, ch. 140, § 77; 1990, ch. 398, § 3, effective April 9, 1990.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

177.870. Violations declared a public nuisance.

Any advertising device erected, maintained, replaced, relocated, repaired or restored in violation of KRS 177.830 to 177.890 is hereby declared to be, and is, a public nuisance and such device may without notice be abated and removed by any officer or employee of the state Department of Highways or upon request of the commissioner by any peace officer.

History. Enact. Acts 1960, ch. 175, § 5, effective June 16, 1960.

NOTES TO DECISIONS

1. Construction.

This section gives the Commonwealth discretion as to when there is a need to remove advertising devices. Owensboro Metropolitan Bd. of Adjustments v. Midwest Outdoor Advertising, Inc., 729 S.W.2d 446, 1987 Ky. App. LEXIS 428 (Ky. Ct. App. 1987).

Cited:

Commonwealth, Dep’t of Transp. v. Central Kentucky Angus Asso., 555 S.W.2d 627, 1977 Ky. App. LEXIS 798 (Ky. Ct. App. 1977); Commonwealth, Transp. Cabinet, Dep’t of Highways v. Tri-State Poster Advertising Co., 697 S.W.2d 169, 1985 Ky. App. LEXIS 654 (Ky. Ct. App. 1985); Transportation Cabinet, Dep’t of Highways v. G.L.G., Inc., 937 S.W.2d 709, 1997 Ky. LEXIS 10 ( Ky. 1997 ).

177.880. Construction of KRS 177.830 to 177.890.

Nothing in KRS 177.830 to 177.890 shall be construed to abrogate or affect the provisions of any municipal ordinance, regulation or resolution which is more restrictive concerning advertising devices than the provisions of KRS 177.830 to 177.890 or of the regulations adopted hereunder; provided that no city, county or urban-county government and no commission, agency or department of any of the foregoing, or any person acting under authority directly or indirectly conferred by any municipal ordinance, regulation or resolution shall have any authority to require any sign or other advertising device which is within its jurisdiction, which was lawfully erected or installed and which is maintained in good repair to be removed without payment of just compensation as provided under KRS 177.867(2).

History. Enact. Acts 1960, ch. 175, § 6, effective June 16, 1960; 1980, ch. 216, § 1, effective July 15, 1980.

177.890. Agreements with United States authorized.

The commissioner of highways is hereby authorized to enter into agreements with the United States Secretary of Transportation for the purpose of carrying out the national policy of promoting the safety, convenience and enjoyment of public travel and the free flow of interstate commerce and the protection of the public investment in the national system of interstate and defense highways and federal-aid primary highways within the Commonwealth.

History. Enact. Acts 1960, ch. 175, § 7; 1968, ch. 178, § 4.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
1. Constitutionality.

This section does not relinquish state police power to the federal government and is not unconstitutional. Moore v. Ward, 377 S.W.2d 881, 1964 Ky. LEXIS 505 ( Ky. 1964 ).

2. Application.

This section authorizes the commissioner of highways to enter into agreements with the United States for purposes of carrying out the national policy with regard to highways within the Commonwealth, and is ample authority for the adoption of regulations relating to nonconforming billboards. Whiteco Metrocom Corp. v. Commonwealth, 14 S.W.3d 24, 1999 Ky. App. LEXIS 89 (Ky. Ct. App. 1999).

Recyclers

177.905. Definitions for KRS 177.910 to 177.950.

As used in KRS 177.910 to 177.950 , unless the context otherwise requires:

  1. “Road” means any county, state, federal or limited access highway or turnpike, including bridges and bridge approaches.
  2. “Automobile, vehicle or machinery recyclers” means any place where five (5) or more junked, wrecked or nonoperative automobiles, vehicles, machines and other similar scrap or salvage materials, excluding inoperative farm equipment, are deposited, parked, placed or otherwise located, or any business as defined in subsection (3) where ten (10) or more junked, wrecked or nonoperative automobiles, vehicles, machines and other similar scrap or salvage materials are deposited, parked, placed or otherwise located.
  3. “Business” means any person engaged as an automobile dealer, body shop operator, wrecker service operator, service station operator or other activity which may buy, sell or repair nonoperative vehicles, automobiles or machinery as a service.
  4. “Material recyclers” shall mean any establishment or place of business, including garbage dumps and sanitary fills, maintained, operated, or used for storing, keeping, buying or selling of old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste, or motor vehicle parts, iron, steel, and other old or scrap ferrous or nonferrous material.
  5. “Operator or operators” means a person, firm or corporation operating an automobile, vehicle, machinery or material recycling establishment or place of business or the allowing of such automobile, vehicle, machinery or material recycling establishment or place of business to be placed or deposited, or to remain on premises owned or controlled by such person, firm or corporation.
  6. “Person” means any individual, firm, agency, company, association, partnership, business trust, joint stock company, body politic or corporation.
  7. “Department” means the Department of Highways.
  8. “Commissioner” means the commissioner of the Department of Highways.

History. Enact. Acts 1962, ch. 249, § 1; 1966, ch. 162, § 1; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 114, § 1, effective June 17, 1978; 1980, ch. 58, § 1, effective July 15, 1980; 1980, ch. 146, § 1, effective July 15, 1980.

Legislative Research Commission Note.

This section was amended by two 1980 acts which do not appear to be in conflict and have been compiled together.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Application.
  4. Location.
1. Constitutionality.

The junk yard act (KRS 177.905 to 177.950 ) is not unconstitutional. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

2. Purpose.

The purpose of the Junk Yard Act (KRS 177.905 to 177.950 ) is to enhance the scenic beauty of roadways by prohibiting the maintenance of unsightly vehicle graveyards within the view of travelers thereon. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

3. Application.

The so-called “Junkyard Act,” KRS 177.905 to 177.950 , which as enacted was entitled “an act relating to auto and truck recyclers” applies to all material recyclers, not just auto and truck recyclers, and such interpretation does not violate Const., § 51, which has the purpose of preventing “surreptitious” legislation, since all that is required of the title of an act is to give a general idea of the contents rather than to specifically refer to every provision. Dawson v. Commonwealth, Dep't of Transp., Bureau of Highways, 622 S.W.2d 212, 1981 Ky. LEXIS 270 ( Ky. 1981 ).

4. Location.

The so-called “Junkyard Act,” does not require that the location where five or more junked, wrecked or nonoperative automobiles, vehicles or machines are located be a business, since such an interpretation is simply not logical in view of the overall purpose of the statute which is to regulate locations, such as traditional “junkyards.” Dawson v. Commonwealth, Dep't of Transp., Bureau of Highways, 622 S.W.2d 212, 1981 Ky. LEXIS 270 ( Ky. 1981 ).

Opinions of Attorney General.

An unmade city street and a city street do not come within the definition of “road” contained in KRS 177.905(1). OAG 63-551 .

A junkyard or recycling establishment, as defined in this section, found within the city limits and located closer than 1000 feet to the center line of any street which is part of any county, state or federal limited access highway or turnpike, is subject to the state statutes requiring a permit for the operation of such an establishment; establishments not subject to state regulation may be regulated by the city under its police power but it is doubtful that the city can prohibit entirely the operation of junkyards within the city limits as they are not normally considered to be nuisances per se. OAG 82-205 .

The state’s authority relating to the issuing of permits for junkyards located closer than 1000 feet to the center line of any road would not include those areas involving city streets that were not a part of any county, state or federal highway system; a city of the fifth class, under its general police power, could then regulate, inspect and issue licenses for the operation of those junkyards or recycling establishments within the corporate limits not coming under the coverage of the state act or which fell within the exception referred to in KRS 177.912 . OAG 82-205 .

Those junkyards and recycling establishments which have not satisfied the provisions of KRS 177.912 , and are subject to the provisions of KRS 177.905 to 177.950 , cannot rely upon satisfying zoning provisions to escape the statutory permit requirements; furthermore, they could not qualify as a “nonconforming use” if they were not lawfully in existence prior to the effective date of the zoning ordinance. OAG 84-177 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, A Challenge to Historic Preservation in Kentucky, 65 Ky. L.J. 895 (1976-77).

Notes, Private Property and Environmental Regulatory Takings: A Forward Look into Rights and Remedies, as Illustrated by an Excursion into the Wild Rivers Act of Kentucky, 73 Ky. L.J. 999 (1984-85).

Northern Kentucky Law Review.

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

177.910. Unauthorized recyclers prohibited.

No person shall operate or cause to be operated any automobile, vehicle, machinery or material recycling establishment or place of business which is situated closer than one thousand (1,000) feet from the right-of-way line of any road unless a permit for such operation shall have been obtained from the department. The operation of any automobile, vehicle, machinery or material recycling establishment or place of business so situated without a permit is hereby declared to be a public nuisance.

History. Enact. Acts 1962, ch. 249, § 2; 1966, ch. 162, § 2; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 114, § 2, effective June 17, 1978.

Opinions of Attorney General.

An unmade city street and a city street are not within the junkyard prohibition. OAG 63-551 .

An unmade city street and a city street do not come within the definition of “road” contained in KRS 177.905(1). OAG 63-551 .

If a junkyard operator has a valid permit to operate a junkyard within 2,000 feet of the centerline of road “A,” the visibility of the junkyard from road “B” does not defeat that permit where road “B” is more than 2,000 feet from the junkyard. OAG 78-82 (opinion prior to 1978 amendment).

A junkyard or recycling establishment, as defined in KRS 177.905 , found within the city limits and located closer than 1000 feet to the center line of any street which is part of any county, state or federal limited access highway or turnpike, is subject to the state statutes requiring a permit for the operation of such an establishment; establishments not subject to state regulation may be regulated by the city under its police power but it is doubtful that the city can prohibit entirely the operation of junkyards within the city limits as they are not normally considered to be nuisances per se. OAG 82-205 .

The state’s authority relating to the issuing of permits for junkyards located closer than 1000 feet to the center line of any road would not include those areas involving city streets that were not a part of any county, state or federal highway system; a city of the fifth class, under its general police power, could then regulate, inspect and issue licenses for the operaton of those junkyards or recycling establishments within the corporate limits not coming under the coverage of the state act or which fell within the exception referred to in KRS 177.912 . OAG 82-205 .

Research References and Practice Aids

Kentucky Law Journal.

Tippy, Roads and Recreation, IV. The Highway As Recreation, B. The Highway Beautification Act of 1965, 55 Ky. L.J. 799 (1967).

177.912. Recyclers complying with zoning regulations.

An automobile, vehicle or machinery recycling establishment or place of business or material recycling establishment or place of business which complies as a conforming use in an industrially zoned area under the applicable zoning ordinances and regulations of any county or city, as determined in the discretion of the commissioner of highways, shall not be deemed to be in violation of KRS 177.905 to 177.950 .

History. Enact. Acts 1966, ch. 162, § 7; 1978, ch. 114, § 3, effective June 17, 1978.

Compiler’s Notes.

This section was formerly compiled as KRS 177.916 .

NOTES TO DECISIONS

Cited:

Moseley v. Commonwealth, Dep’t of Highways, 489 S.W.2d 511, 1972 Ky. LEXIS 28 ( Ky. 1972 ).

Opinions of Attorney General.

The state’s authority relating to the issuing of permits for junkyards located closer than 1000 feet to the center line of any road would not include those areas involving city streets that were not a part of any county, state or federal highway system; a city of the fifth class, under its general police power, could then regulate, inspect and issue licenses for the operaton of those junkyards or recycling establishments within the corporate limits not coming under the coverage of the state act or which fell within the exception referred to in this section. OAG 82-205 .

If this section is not applicable and a permit from the state is required and the place of business is in a location compatible with the zoning ordinance, the zoning provisions do not enable the business to dispense with the statutory permit requirements. OAG 84-177 .

Those junkyards and recycling establishments which have not satisfied the provisions of this section, and are subject to the provisions of KRS 177.905 to 177.950 , cannot rely upon satisfying zoning provisions to escape the statutory permit requirements; furthermore, they could not qualify as a “nonconforming use” if they were not lawfully in existence prior to the effective date of the zoning ordinance. OAG 84-177 .

177.915. Permit — Conditions — Screening.

The permit required by KRS 177.910 shall be issued in accordance with the administrative regulations of the department, promulgated pursuant to the provisions of KRS 177.905 to 177.950 , when it is shown to the satisfaction of the commissioner that an automobile, vehicle, machinery or material recycling establishment or place of business located closer than 1,000 feet from the right-of-way line of any road is, so far as deemed practical by the secretary, hidden from the view of motorists using such road by an artificial or natural screen, or is by virtue of natural topography so hidden. The screening required in this section may be effected by the construction of a fence, or by planting shrubs, trees, or flowering plants, the foliage of which shall, immediately upon planting, provide a sufficient screen or by making use of foliage already in existence. Any automobile, vehicle, machinery or material recycling establishment or place of business that cannot as a practical matter be screened, shall be required to be removed.

History. Enact. Acts 1962, ch. 249, § 3; 1966, ch. 162, § 3; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 114, § 4, effective June 17, 1978; 1988, ch. 211, § 1, effective July 15, 1988.

NOTES TO DECISIONS

Cited:

Moseley v. Commonwealth, Dep’t of Highways, 489 S.W.2d 511, 1972 Ky. LEXIS 28 ( Ky. 1972 ).

Opinions of Attorney General.

If a junkyard operator has a valid permit to operate a junkyard within 2,000 feet of the centerline of road “A,” the visibility of the junkyard from road “B” does not defeat that permit where road “B” is more than 2,000 feet from the junkyard. OAG 78-82 (opinion prior to 1978 amendment).

177.916. [Renumbered as KRS 177.912.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 162, § 7) is recompiled as KRS 177.912 .

177.920. Permit fee — Renewal — Proceeds.

The commissioner is hereby directed to charge a fee of fifty dollars ($50) for the issuance of a permit required by KRS 177.915 . Such permit shall be effective for a two (2) year period beginning July 1, 1962, through June 30, 1964, and each two (2) year period thereafter. Proceeds from such fees shall be paid to the State Treasurer and hereby are appropriated to the state road fund.

History. Enact. Acts 1962, ch. 249, § 4.

177.925. Operator’s bond.

Where the commissioner has reasonable cause to doubt the financial responsibility of the operator or compliance by the operator with the provisions of KRS 177.905 to 177.950 , the commissioner may require such operator to furnish and maintain a bond in such form, amount, and with such sureties as he shall approve, but not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) conditioned upon the operator complying with the provisions of KRS 177.905 to 177.950 and the regulations adopted pursuant thereto. Any bond forfeiture is hereby appropriated to the state road fund.

History. Enact. Acts 1962, ch. 249, § 5.

177.930. Operation of certain junkyards prior to June 14, 1964. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 249, § 6) was repealed by Acts 1968, ch. 152, § 168.

177.935. Powers of department.

The department is hereby empowered to:

  1. Exercise general supervision of the administration and enforcement of KRS 177.905 to 177.950 .
  2. Promulgate, pursuant to KRS Chapter 13A, administrative regulations pertaining to the operation of automobile, vehicle, machinery, or material recycling establishments or places of business as the commissioner may deem necessary to the administration and enforcement of KRS 177.905 to 177.950 .
  3. Promulgate administrative regulations with respect to the sufficiency, type of material or foliage, height, density, and size of screening required by KRS 177.915 to insure the accomplishment of the purposes of KRS 177.905 to 177.950 .
  4. Promulgate administrative regulations with respect to the procedural aspects of hearings, supplemental to KRS Chapter 13B, the filing of reports and orders, the issuance of permits and other matters.
  5. Issue, after hearing, final orders abating the operation of an automobile, vehicle, machinery, or material recycling establishments or places of business in violation of the provisions of KRS 177.905 to 177.950 , or requiring the adoption of remedial measures including the construction or planting of screens or the utilization of natural screening, extension, modification, or addition to new or existing screens.
  6. Issue, continue in effect, revoke, modify, or deny under conditions as the department may prescribe and subject to a hearing in accordance with KRS Chapter 13B, permits for the operation of an automobile, vehicle, machinery, or material recycling establishments or places of business.
  7. Make investigations or inspections which may be deemed necessary by the commissioner to insure compliance with the provisions of KRS 177.905 to 177.950 , or with any administrative regulations or orders of the department which may be deemed necessary to enable the department to administer and enforce the provisions of KRS 177.905 to 177.950 .
  8. Institute in a court of competent jurisdiction procedures, including injunctive relief, to compel compliance with the provisions of KRS 177.905 to 177.950 and with the final orders and administrative regulations issued pursuant thereto.
  9. Enter at any reasonable time through any officer, assistant, agent, or employee in or upon any public or private property for the purpose of investigation and inspection of conditions relating to the operation of any automobile, vehicle, machinery, or material recycling establishments or places of business.
  10. Perform any other acts as may be necessary, proper, or desirable in order to carry out effectively the duties and responsibilities of the department prescribed in KRS 177.905 to 177.950 .

History. Enact. Acts 1962, ch. 249, § 7; 1966, ch. 162, § 4; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 114, § 5, effective June 17, 1978; 1996, ch. 318, § 64, effective July 15, 1996.

177.940. Hearings.

  1. Public hearings shall be conducted in accordance with KRS Chapter 13A by the department prior to the promulgation of any administrative regulations which pertain to the prevention, abatement, or control of automobile, vehicle, machinery, or material recycling establishments or places of business. Administrative hearings shall be conducted in accordance with KRS Chapter 13B before the issuance of any final order prohibiting the performance by any person of any act or acts deemed to be in contravention of any administrative regulations, orders, or permits of the department; or before denial, revocation, or modification of any permit provided for by KRS 177.905 to 177.950 ; or before any other final determination is made by the department which directly affects the activities of any person.
  2. The department shall grant an administrative hearing to any person, not previously heard in connection with the issuance of any order or the making of any determination, who may consider himself aggrieved by any order or determination and who shall file with the department a verified petition alleging that the order or determination is contrary to law or that is injurious to him, stating the grounds and reasons therefor and requesting a hearing thereon. The hearing shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1962, ch. 249, § 8; 1966, ch. 162, § 5; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 114, § 6, effective June 17, 1978; 1996, ch. 318, § 65, effective July 15, 1996.

177.945. Witnesses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 249, § 9) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996.

177.950. Judicial review.

Any aggrieved party may appeal the final order of the department following the hearing to the Circuit Court of the county in which the alleged offense occurred in accordance with KRS Chapter 13B.

History. Enact. Acts 1962, ch. 249, § 10; 1966, ch. 162, § 6; 1968, ch. 152, § 120; 1996, ch. 318, § 66, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

177.951. Kentucky Auto and Truck Recyclers Licensing Advisory Board — Members — Meetings — Functions. [Repealed]

History. Enact. Acts 1978, ch. 114, § 7, effective June 17, 1978; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 114, § 7, effective June 17, 1978) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Energy Road Fund

177.960. Energy road fund — Use — Fiscal courts to advise. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 340, § 1; 1978, ch. 189, § 8, effective July 1, 1978; 1978, ch. 384, § 570, effective June 17, 1978) was repealed by Acts 1980, ch. 394, § 13, effective July 1, 1980.

Coal Impact Road Fund

177.970. Coal impact road fund — Use — Appropriation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 189, § 7, effective July 1, 1978) was repealed by Acts 1980, ch. 394, § 13, effective July 1, 1980.

Natural Resources Road System

177.971. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 10, effective July 15, 1982) was repealed by Acts 1984, ch. 373, § 12, effective July 13, 1984.

177.972. Directory of natural resources road system — Collection of information for directory. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 11, effective July 15, 1982) was repealed, reenacted and amended as KRS 177.977 by Acts 1984, ch. 373, § 4, effective July 13, 1984.

177.973. Resource recovery road fund — Use of fund — Exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 16, effective July 15, 1982) was repealed by Acts 1984, ch. 373, § 12, effective July 13, 1984.

177.974. Expenditure after consultation with local legislators and fiscal court members — Division of funds — Matching funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 17, effective July 15, 1982) was repealed by Acts 1984, ch. 373, § 12, effective July 13, 1984.

177.975. Allocation of funds for reconstruction, maintenance and repair of resource recovery roads and bridges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 203, § 18, effective July 15, 1982) was repealed by Acts 1984, ch. 373, § 12, effective July 13, 1984.

Coal Road System

177.976. Coal transporter — Use of roads to limit of vehicle registration license — Restrictions to promote public safety and convenience — Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 373, § 3, effective July 13, 1984) was repealed by Acts 1986, ch. 498, § 8, effective April 1, 1987.

177.977. Directory of coal road system.

  1. The Transportation Cabinet shall publish a directory, including supporting maps and other documents, designating the official coal road system in coal impact and coal producing counties which shall include all public highways, roads, bridges, and streets over which quantities of coal sufficient to significantly affect the condition and state of repair of such highways, roads, bridges, and streets have been transported in the immediately preceding year. The cabinet shall further publish the total county mileage of the official coal road system and the total ton-miles within each coal impact and coal producing county for said preceding year.
  2. Every person, producer or processor shipping or transporting coal over the public highways, roads, bridges, and streets, shall file with the Transportation Cabinet information at intervals as the cabinet shall designate by administrative regulation promulgated pursuant to KRS Chapter 13A, for the purpose of identifying those highways, roads, and streets comprising the coal road system and the quantities of coal transported thereon, in order that the cabinet can accurately calculate total ton-miles within each coal impact and coal producing county. A copy of the information furnished to the Energy and Environment Cabinet pursuant to the provisions of KRS 350.0285 and a copy of the information furnished to the Department for Natural Resources pursuant to the provisions of KRS 351.070 and 352.420 shall be submitted to the Transportation Cabinet to satisfy the reporting requirements of this subsection and the transportation plan shall be annually updated to reflect in route changes.

History. Enact. Acts 1982, ch. 203, § 11, effective July 15, 1982; repealed, reenact, and amend, Acts 1984, ch. 373, § 4, effective July 13, 1984; 1994, ch. 488, § 5, effective July 15, 1994; 2005, ch. 123, § 20, effective June 20, 2005; 2010, ch. 24, § 231, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 177.972 and was repealed, reenacted and amended as this section by Acts 1984, ch. 373, § 4, effective July 13, 1984.

177.9771. Extended weight coal or coal by-products haul road system.

  1. The “extended weight coal or coal by-products haul road system” shall consist of all state-maintained toll roads or state-maintained roads which were previously toll roads and the public highways over which quantities of coal or coal by-products in excess of fifty thousand (50,000) tons were transported by motor vehicles during the period from January 1, 1985, through December 31, 1985, and shall be updated annually thereafter.
  2. The secretary of the Transportation Cabinet shall by official order on or before November 1, of each year, certify such public highways or portions thereof, as fulfill the criteria in subsection (1) of this section, as the extended weight coal or coal by-products haul road system.
  3. The total tons of coal or coal by-products transported by motor vehicles over any public highway shall be determined from the official coal or coal by-products road system transportation report required pursuant to KRS 177.977 .
  4. Any vehicle, when registered with a declared gross weight of eighty thousand (80,000) pounds and when transporting coal or coal by-products over public highways which are part of the extended weight coal or coal by-products haul road system or portions thereof, may be operated at the weights as set forth below in excess of the maximum gross weight prescribed in KRS 189.221 and 189.222 and any other maximum weight limitations on state or county maintained systems by paying the corresponding decal fee as set forth below:
    1. A single unit truck having one (1) steering axle and two (2) axles in tandem shall be limited to a maximum gross weight of ninety thousand (90,000) pounds with a tolerance of five percent (5%), and pay a decal fee of one hundred sixty dollars ($160) annually;
    2. A single unit truck having one (1) steering axle and three (3) axles in tridem arrangement shall be limited to a maximum gross weight of one hundred thousand (100,000) pounds with a tolerance of five percent (5%), and pay a decal fee of two hundred sixty dollars ($260) annually;
    3. Tractor-semitrailer combinations with five (5) or more axles shall be limited to a maximum gross weight of one hundred twenty thousand (120,000) pounds with a tolerance of five percent (5%), and pay a decal fee of three hundred sixty dollars ($360) annually;
    4. Any motor carrier involved in the transportation of coal or coal by-products which meets gross axle weights of twenty thousand (20,000) pounds per axle and twelve thousand (12,000) pounds for the steering axle may register in excess of eighty thousand (80,000) pounds by payment of eight hundred forty dollars ($840) plus an additional decal fee of ten dollars ($10) per one thousand (1,000) pounds of registered weight above eighty thousand (80,000) pounds;
    5. For purposes of this section, KRS 177.979 , and 189.230 , and for purposes of the extended weight coal or coal by-products haul system, the dimensional requirements of motor vehicles shall conform to all appropriate federal laws and regulations;
    6. The payment of the decal fee shall be in addition to any state registration fee, user fee, or other decal fee, including the registration fee as specified in KRS 186.050(3);
    7. Motor vehicles used in the transportation of coal or coal by-products under cooperative agreements pursuant to KRS 177.979 shall be exempt from the payment of the decal fee as set forth in this section and the registration fee as set forth in KRS 186.050(3) as long as the truck is driven over cooperative roads only while full. The Transportation Cabinet shall issue identifying license plates for those motor vehicles under cooperative agreements;
    8. All fees under this section shall be scheduled for payment and prorated pursuant to the provisions of KRS 186.051 ; and
    9. All revenues generated pursuant to this section shall be credited to a special account within the road fund called the “energy recovery road fund.”
  5. Sixty percent (60%) of all energy recovery road funds shall be used by the Department of Highways for construction, maintenance, and repair of the state-maintained portion of the extended weight coal or coal by-products haul road system.
  6. Forty percent (40%) of all energy recovery road funds shall be distributed to the fiscal court of those counties in which coal or coal by-products are transported for the sole purpose of construction, maintenance, and repair of the county-maintained portion of the extended weight coal or coal by-products haul system. The distribution of funds to the counties shall be proportioned based on the miles of county roads on the extended weight coal or coal by-products haul system in each county compared to the total mileage of county roads in the total extended weight coal or coal by-products haul road system and the tons of coal or coal by-products transported over county roads on the extended weight coal or coal by-products haul system in each county compared to the total tons of coal or coal by-products transported over county roads in the total extended weight coal or coal by-products haul road system.
  7. Nothing in this section shall be construed or administered to jeopardize the receipt of federal funds for highway purposes and the secretary of transportation shall not act in any manner which shall jeopardize federal highway funds or funds to be received by the Commonwealth. This section shall not be construed to authorize any vehicle to operate on a federal interstate highway in excess of those limits prescribed in KRS 189.222 . This section shall not be construed to prohibit the Department of Highways from providing for the public safety and convenience of the traveling public on the highway.
  8. As soon as practical after the report is prepared and published pursuant to KRS 177.977 for any calendar year after 1985, the secretary shall add to or delete from the extended weight coal or coal by-products haul road system public highways or portions thereof based upon the criteria set out in this section. Deletion of a public road or portion of it from the extended weight coal or coal by-products haul road system shall not affect the eligibility of the roads for highway funds or programs applicable to the extended weight coal or coal by-products haul road system.
  9. A fiscal court, a governing body of a city, consolidated local government, or urban-county government may by resolution, make recommendation to the secretary of the Transportation Cabinet that certain roads or road segments in the county or corporate city limits pose inherent and definite hazards, special conditions, or greatly impact the economy of the county or city and that the secretary shall meet with said fiscal court or local governing body and take into consideration their concerns before adding to or deleting from the extended weight coal or coal by-products haul system.
  10. The secretary of the Transportation Cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A necessary to administer the provisions of this section, KRS 177.9772 , 177.979 , and 189.230 .

History. Enact. Acts 1986, ch. 498, § 1, effective April 1, 1987; 1988, ch. 415, § 5, effective July 15, 1988; 1994, ch. 236, § 2, effective July 15, 1994; 1996, ch. 324, § 1, effective July 15, 1996; 2002, ch. 346, § 182, effective July 15, 2002; 2014, ch. 92, § 250, effective January 1, 2015.

177.9772. Impoundment of vehicle for violation.

Any motor vehicle transporting coal in violation of the weight limits provided for by KRS 189.221 and 189.222 for which the extended weight users’ tax has not been paid as evidenced by an affixed extended weight users’ decal or which is not being operated in accordance with the provisions of a cooperative agreement shall be deemed in violation of KRS 177.9771 . The secretary of the Transportation Cabinet may impound said vehicle until such time as the extended weight users’ tax and all costs incurred in the impoundment and storage of the vehicle have been paid.

History. Enact. Acts 1986, ch. 498, § 7, effective April 1, 1987.

177.978. Energy recovery road fund — Uses — Transfer of funds from coal recovery road fund.

  1. All revenues generated from the purchase of decals pursuant to KRS 177.990(5) and KRS 177.9771(4) and no other taxes or fees normally assessed on motor carriers shall be credited to a special account within the road fund called the “energy recovery road fund” and any additional funds obtained through state appropriation, gifts, grants and federal funds may be credited to the special account, and shall be used, in addition to those road funds normally used for said highways, exclusively by the Transportation Cabinet for those costs attendant to highway purposes for roads designated as part of the extended weight coal haul road system. All funds in the account shall be carried forward at the end of each year.
  2. All funds credited to the “coal recovery road fund” shall be transferred to the “energy recovery road fund.”

History. Enact. Acts 1984, ch. 373, § 5, effective July 13, 1984; 1986, ch. 331, § 31, effective July 15, 1986; 1986, ch. 498, § 2, effective April 1, 1987; 2002, ch. 183, § 14, effective August 1, 2002.

Legislative Research Commission Note.

This section was amended by 1986 Acts, ch. 331, sec. 31, effective July 15, 1986, and ch. 498, sec. 2, effective April 1, 1987, part of which are in conflict and cannot be codified together. Pursuant to KRS 7.136(3), ch. 498, sec. 2, prevails.

177.979. Cooperative agreements between Department of Highways and transporters of coal in vehicles exceeding maximum weight limits on state-maintained system.

  1. Any person engaged in the mining, processing, transporting or sale of coal that provides for the transportation of coal in vehicles exceeding the maximum weight limits on the state-maintained system shall enter into a cooperative agreement with the Department of Highways, or give bond for damages as provided by KRS 189.271 , if a road to be used is not part of the extended weight coal or coal by-products haul road system. However, if a resolution issued pursuant to KRS 177.9771(9) on a road with a maximum allowable gross weight of eighty thousand (80,000) pounds is approved by the Transportation Cabinet, a cooperative agreement shall not be required. Such cooperative agreements shall provide for an equitable apportionment of the incremental costs for design, maintenance, construction, or reconstruction of those roads and bridges, except those roads and bridges which are part of the federal interstate highway system, resulting from the transportation of coal by trucks transporting coal in excess of the maximum weight limits on the state-maintained system and covered by the cooperative agreement. Nothing contained herein shall effect the continuing validity of any existing agreement.
  2. Notwithstanding KRS Chapter 143 the total tax contributions from any person entering into a cooperative agreement, as specified in this section, shall not exceed, in the aggregate, the sum of five thousand dollars ($5,000) per mile per year on those roads covered by the cooperative agreement, but shall equal a minimum of one thousand two hundred dollars ($1,200) per motor vehicle hauling coal over those cooperative road segments over three (3) miles in length, but such contribution shall not exceed ten cents ($0.10) per ton of coal hauled on cooperative roads per year from an individual coal operator unless otherwise agreed to by the operator. The Transportation Cabinet may allow any person, under the cooperative agreement, to provide for the design, approved maintenance, construction, or reconstruction provided for in subsection (1) of this section in accordance with guidelines or standards prescribed by the cabinet. In the event any person exceeds his annual total tax contribution as authorized under a cooperative agreement, such person may petition the commissioner of vehicle regulation for a carry over for future years liability. All funds collected pursuant to this section shall be expended on those roads covered by the cooperative agreement.
  3. Notwithstanding any provision of KRS 177.976 to 177.981 , the Commonwealth shall not be relieved of expending its normal routine maintenance on all roads covered by the cooperative agreements.
  4. Any person who entered into a cooperative agreement may terminate it upon submitted written notice to the Department of Highways.
  5. If the person requesting termination of the cooperative agreement has reported to the Transportation Cabinet that fifty thousand (50,000) or more tons of coal have been transported over the road covered by the cooperative agreement, the Transportation Cabinet shall immediately, by official order or emergency administrative regulation, add the road segment to the list of roads currently comprising the extended weight coal or coal by-products haul road system.

History. Enact. Acts 1984, ch. 373, § 8, effective July 13, 1984; 1986, ch. 498, § 3, effective April 1, 1987; 1994, ch. 236, § 1, effective July 15, 1994; 1996, ch. 324, § 2, effective July 15, 1996.

Compiler’s Notes.

KRS 177.976 and 177.980 , referred to in subsection (3) of this section, have been repealed.

Legislative Research Commission Note.

(7/15/94). Pursuant to KRS 7.136(1)(e), a reference to KRS 186.057 (repealed by 1986 Ky. Acts ch. 498, sec. 8) has been deleted from subsection (3) of this statute.

177.980. Coal recovery road fund — Assessments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 373, § 9, effective July 13, 1984) was repealed by Acts 1986, ch. 498, § 8, effective April 1, 1987.

177.981. Fiscal court may make cooperative agreement.

Nothing in KRS 177.9771 to 177.981 shall be construed as prohibiting a county fiscal court from entering into a cooperative agreement.

History. Enact. Acts 1984, ch. 373, § 10, effective July 13, 1984.

177.985. Extended weight unrefined petroleum products haul road system. [Effective until June 30, 2028]

  1. The provisions of this section shall be in effect until June 30, 2028.
  2. As used in this section and KRS 177.986 , “extended weight unrefined petroleum products haul road system” consists of all state-maintained highways over which quantities of unrefined petroleum products in excess of fifty thousand (50,000) tons were transported by motor vehicles during the period from January 1, 2022, through December 31, 2022, and annually thereafter.
    1. Except as provided for in paragraph (b) of this subsection, on or before November 1, 2022, and annually thereafter on November 1 of each year, the secretary of the Transportation Cabinet shall, by official order, certify the highways or portions thereof, which meet the criteria in subsection (2) of this section, as the extended weight unrefined petroleum products haul road system. (3) (a) Except as provided for in paragraph (b) of this subsection, on or before November 1, 2022, and annually thereafter on November 1 of each year, the secretary of the Transportation Cabinet shall, by official order, certify the highways or portions thereof, which meet the criteria in subsection (2) of this section, as the extended weight unrefined petroleum products haul road system.
    2. If, during the year 2022, a quantity of unrefined petroleum products that meets the threshold set out in subsection (2) of this section is transported on any state-maintained highway, the secretary of the Transportation Cabinet shall, within thirty (30) days by official order, certify those highways or portions thereof, as part of the extended weight unrefined petroleum products haul road system.
  3. The total tons of unrefined petroleum products transported by motor vehicles over any public highway shall be determined from the reports required by KRS 177.986 .
    1. Any vehicle, when registered with a declared gross weight of eighty thousand (80,000) pounds and when transporting unrefined petroleum products over state-maintained highways which are part of the extended weight unrefined petroleum products haul road system, may be operated at weights in excess of the maximum gross weight prescribed in KRS 189.221 and 189.222 and any other maximum weight limitations on state- or county-maintained systems, if it complies with the requirements of this subsection. (5) (a) Any vehicle, when registered with a declared gross weight of eighty thousand (80,000) pounds and when transporting unrefined petroleum products over state-maintained highways which are part of the extended weight unrefined petroleum products haul road system, may be operated at weights in excess of the maximum gross weight prescribed in KRS 189.221 and 189.222 and any other maximum weight limitations on state- or county-maintained systems, if it complies with the requirements of this subsection.
    2. Trucks configured using an axle system approved by the Transportation Cabinet in accordance with paragraph (c) of this subsection may operate up to a maximum gross weight of one hundred twenty thousand (120,000) pounds with a gross weight tolerance of five percent (5%).
    3. The Transportation Cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A to specify approved axle configurations that may be used when operating under this section.
    4. For purposes of this section and KRS 189.230 , the dimensional requirements of motor vehicles shall conform to all appropriate federal laws and regulations.
    5. The permit fee for each truck operated under this section shall be two thousand dollars ($2,000) annually. Upon renewal of an annual permit issued under this section, the permit holder shall report to the cabinet the number of trips made and the total miles driven under the permit during the previous year.
    6. The payment of the permit fee shall be in addition to any state registration fee, user fee, or other permit fee, including the registration fee as specified in KRS 186.050(3).
    7. Each truck operating under a permit pursuant to this section shall be equipped with global positioning system technology that keeps a record of locations traveled. The travel records of trucks operating under a permit shall be open to inspection by the Transportation Cabinet.
    8. Any driver of a vehicle identified in this section operating under a permit shall, in addition to possessing a valid Class A commercial driver’s license, be approved by the Kentucky State Police to operate a vehicle under this section.
  4. All revenues generated pursuant to this section shall be credited to the road fund and shall be appropriated for the uses of that fund.
    1. Nothing in this section shall be construed or administered to jeopardize the receipt of federal funds for highway purposes, and the secretary of transportation shall not act in any manner which jeopardizes federal highway funds or funds to be received by the Commonwealth. (7) (a) Nothing in this section shall be construed or administered to jeopardize the receipt of federal funds for highway purposes, and the secretary of transportation shall not act in any manner which jeopardizes federal highway funds or funds to be received by the Commonwealth.
    2. This section shall not be construed to:
      1. Authorize any vehicle to operate on a federal interstate highway in excess of those limits prescribed in KRS 189.222 ; or
      2. Prohibit the Department of Highways from providing for the public safety and convenience of the traveling public on the highway, including by limiting travel on roads with bridges having weight restrictions.
  5. As soon as practical after the report is prepared and published pursuant to KRS 177.986 for any calendar year after 2022, the secretary shall add to or delete from the extended weight unrefined petroleum products haul road system any sections of state-maintained highways based upon the criteria set out in this section. Deletion of a public road or portion of it from the extended weight unrefined petroleum products haul road system shall not affect the eligibility of the roads for highway funds or programs applicable to the extended weight unrefined petroleum products haul road system.
  6. A representative of the Transportation Cabinet shall transmit a report of roads to be included in the extended weight unrefined petroleum products haul road system to the fiscal court of each county in which a road or road segment is eligible for inclusion in the system. The secretary shall take into consideration any concerns expressed by a fiscal court before adding a road to the extended weight unrefined petroleum products haul road system.
  7. The Transportation Cabinet shall inspect all of the routes in the extended weight unrefined petroleum products haul road system annually to determine the extent of degradation of any segments of road or bridges.
  8. The Transportation Cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A necessary to administer this section.

HISTORY: 2019 ch. 126, § 1, effective June 27, 2019.

Compiler’s Notes.

This section (Enact. Acts 2019, ch. 126, § 1, effective June 27, 2019) was repealed by Acts 2019, ch. 126, § 7, effective June 30, 2028.

177.986. Directory of extended weight unrefined petroleum products haul road system — Publication — Reporting system. [Effective until June 30, 2028]

  1. The provisions of this section shall be in effect until June 30, 2028.
  2. The Transportation Cabinet shall publish a directory, including supporting maps and other documents, designating the extended weight unrefined petroleum products haul road system, which shall include all state-maintained highways and bridges over which quantities of unrefined petroleum products in excess of the amount identified in KRS 177.985(2) have been transported in the immediately preceding year. The cabinet shall further publish the total county mileage of the extended weight unrefined petroleum products haul road system for that preceding year. Publication of the information in this subsection may be by electronic means.
  3. Beginning January 1, 2022, every person, producer, or processor shipping or transporting unrefined petroleum products over any state-maintained highway or bridge shall file with the Transportation Cabinet information for the purpose of identifying those state-maintained highways comprising the extended weight unrefined petroleum products haul road system and the quantities of unrefined petroleum products transported thereon, in order that the cabinet can accurately calculate total ton-miles within each county.
  4. The Transportation Cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A to carry out the requirements of this section, including publication of the information outlined in subsection (2) of this section and establishment of a reporting system for transporters of unrefined petroleum products.

HISTORY: 2019 ch. 126, § 2, effective June 27, 2019.

Compiler’s Notes.

This section (Enact. Acts 2019, ch. 126, § 2, effective June 27, 2019) was repealed by Acts 2019, ch. 126, § 7, effective June 30, 2028.

Penalties

177.990. Penalties.

  1. Any person who violates any of the provisions of KRS 177.230 to 177.310 shall be guilty of a misdemeanor and upon arrest and conviction therefor, shall be punished by a fine of not less than five dollars ($5) nor more than one hundred dollars ($100).
  2. Any person who willfully violates any of the provisions of KRS 177.841 to 177.890 shall, in addition to any other penalty herein provided, be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  3. In addition to any other penalty provided by KRS 177.910 to 177.950 , any person violating any order or provision of KRS 177.910 to 177.950 shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). Each day of violation of the provisions of KRS 177.910 to 177.950 shall constitute a separate offense.
  4. Any person who violates the weight provisions of KRS 177.9771 shall, upon conviction, be fined in an amount equal to three cents ($0.03) per pound when the excess is three thousand (3,000) pounds or less, five cents ($0.05) per pound when the excess exceeds three thousand (3,000) pounds but is less than four thousand (4,000) pounds, seven cents ($0.07) per pound when the excess exceeds four thousand (4,000) pounds but is less than five thousand (5,000) pounds, and nine cents ($0.09) per pound when the excess exceeds five thousand (5,000) pounds. In no case shall the fine be less than sixty dollars ($60) nor more than five hundred dollars ($500).
  5. Any person who transports coal in violation of the weight provisions of KRS 189.221 and 189.222 and does not have a current decal or is not transporting coal under a valid cooperative agreement within KRS 177.9771(4)(f), shall, in addition to any applicable penalty prescribed by law, be fined five hundred dollars ($500) and be required to purchase the decal described in KRS 177.9771(4).
  6. Any person who violates the provisions of KRS 177.305 shall be fined not less than twenty dollars ($20) nor more than one hundred dollars ($100) for each offense.

History. Enact. Acts 1946, ch. 225, § 10; 1960, ch. 175, § 8; 1962, ch. 249, § 11; 1984, ch. 373, § 7(9), (10), effective July 13, 1984; 1986, ch. 498, § 4, effective April 1, 1987; 1988, ch. 415, § 4, effective July 15, 1988; 2000, ch. 512, § 4, effective July 14, 2000.

NOTES TO DECISIONS

1. Constitutionality.

Criminal penalties of the junk yard act (KRS 177.905 to 177.950 ) are not excessive in violation of Const., § 17 since any violations would almost certainly be wilful and since fines only are imposed which fines are not excessive in view of the nature of the offense and the necessity for requiring compliance with the act. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ).

Opinions of Attorney General.

In view of Regulations 603 KAR 5:020 and 5:025 which prohibit pedestrian travel and hitchhiking on a fully controlled limited access highway, hitchhikers on interstate highways may be prosecuted under this section. OAG 75-558 .

177.999. Prepayment of fines subject to certain conditions.

  1. All offenses classified as violations under this chapter shall be prepayable except for:
    1. An offense where evidence of the commission of the offense or another offense is seized by the officer and the citation is so marked and a court date set;
    2. The offense may result in a license suspension or revocation;
    3. The offense is cited with another offense that is not prepayable; or
    4. An arrest is made under KRS 431.015 .
  2. In the event that a prepayable offense is cited with another offense that is not prepayable, a court appearance shall be required on all of the offenses as required by KRS 431.452 .

History. Enact. Acts 2000, ch. 512, § 3, effective July 14, 2000.

CHAPTER 178 County Roads — Grade Crossing Elimination

178.010. Definitions — Construction of chapter — Minimum requirement for gift.

  1. As used in this chapter, unless the context otherwise requires:
    1. “Construction” includes reconstruction and improvement;
    2. “County roads” are public roads which have been formally accepted by the fiscal court of the county as a part of the county road system, or private roads, streets, or highways which have been acquired by the county pursuant to subsection (3) of this section or KRS 178.405 to 178.425 . “County roads” includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls; and
    3. “Hard surface road” means a road the surface of which is asphalt, brick, stone block, macadam, concrete, gravel or other material of equal merit.
  2. Nothing in this chapter shall be construed to take from the jurisdiction or control of the legislative body of any incorporated city any road, bridge, landing or wharf, or any other thing exclusively under the jurisdiction or control of the city.
  3. Nothing in this chapter shall prevent any fiscal court from acquiring unimproved land by gift for public purposes. However, on and after July 13, 2004, a fiscal court may only accept a private road, street, or highway by gift if the private road, street, or highway has been constructed to meet minimum construction standards established by the fiscal court.
  4. Nothing in this chapter, including the fact that a municipal street has not been accepted into the county road system, shall prevent any county from entering into an agreement, pursuant to the provisions of KRS 65.210 to 65.300 , with any city located within the county to perform work upon or to provide personnel, materials or equipment for work to be performed upon any street located within the city. A county may pay one hundred percent (100%), or a lesser percentage, of all or any part of the cost of the joint undertaking, based upon the terms agreed to in the interlocal cooperative agreement required by this subsection.

History. 4287, 4294, 4297, 4307: amend. Acts 1964, ch. 68, § 1; 1970, ch. 87, § 1; 1976, ch. 272, § 7; 1978, ch. 384, § 303, effective June 17, 1978; 1980, ch. 243, § 2, effective July 15, 1980; 1984, ch. 7, § 1, effective July 13, 1984; 1986, ch. 278, § 2, effective July 15, 1986; 2000, ch. 82, § 2, effective July 14, 2000; 2004, ch. 61, § 1, effective July 13, 2004.

Legislative Research Commission Note.

(7/14/2000). The reference to “KRS 65.220 to 65.300 ” in subsection (4) of this section has been changed back to its original form of “KRS 65.210 to 65.300 .” Subsection (4) was added to this statute by 1984 Ky. Acts ch. 7, sec. 1, and contained the reference to “KRS 65.210 to 65.300.” Although the amendment of the statute by 1986 Ky. Acts ch. 278, sec. 2 did not change this reference, it was altered to “KRS 65.220 to 65.300” in the codification of that Act. Because it is clear from an examination of KRS Chapter 65 that the range in question is KRS 65.210 to 65.300 and no reason is given or can be determined for altering the text as originally enacted, the original text of the reference has been restored.

NOTES TO DECISIONS

  1. Application.
  2. Bridges Included in “Road.”
  3. Establishment of County Roads.
  4. Liability for Construction and Maintenance.
  5. Improvement and Maintenance.
  6. “Public.”
  7. Required Findings.
  8. Public Status Lost.
1. Application.

This chapter applies solely to the alteration and discontinuance of county roads. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

2. Bridges Included in “Road.”

Bridges are necessarily included in the term “roads.” Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

3. Establishment of County Roads.

Prior to the 1964 amendment public roads were established by the county court.

Before a public road can be accepted as part of county road system, and improved and maintained by the county, it must have been established by order of the county court. Rose v. Nolen, 166 Ky. 336 , 179 S.W. 229, 1915 Ky. LEXIS 687 ( Ky. 1915 ).

Failure of county to establish road used by public as a county road does not deprive public of its use as a highway, if, independent of statute, conditions surrounding its use are such as to create right of use by public. Rose v. Nolen, 166 Ky. 336 , 179 S.W. 229, 1915 Ky. LEXIS 687 ( Ky. 1915 ).

The establishment of a public road is a function of the county court and a fiscal court cannot under KRS 67.080 purchase a toll turnpike not established by the county court. Roberts v. Taylor, 226 Ky. 640 , 11 S.W.2d 710, 1928 Ky. LEXIS 152 ( Ky. 1928 ).

“Public highways” are public roads established by the county courts. Roberts v. Taylor, 226 Ky. 640 , 11 S.W.2d 710, 1928 Ky. LEXIS 152 ( Ky. 1928 ).

A public road may be established only in the manner provided by statute, or by dedication to the public use and acceptance by the proper authorities as a public road. Neither dedication nor acceptance need be formal, and both can be presumed from continual use by the public for 15 years or more, accompanied by acts of control on the part of the county court; but mere use, without the exercise of control by the county court, is not sufficient. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ) (decision prior to enactment of KRS 178.115 ).

A permissive use of road never ripens into presumption of grant, but where road is used as matter of right for 15 years, presumption of grant arises. Bryant v. Penn, 280 Ky. 428 , 133 S.W.2d 521, 1939 Ky. LEXIS 131 ( Ky. 1939 ).

Before a road open to the public shall be recognized as a county road, it must be established by order of county court. Illinois C. R. Co. v. Hopkins County, 369 S.W.2d 116, 1963 Ky. LEXIS 63 ( Ky. 1963 ).

A street may be dedicated to public use by approval of the planning commission and recording of a plat pursuant to KRS 100.277 and 100.283 , but it must still be accepted by the fiscal court through the procedures in KRS chapter 178 before it becomes a street which is open for the use of the public generally; acceptance by the county is not mandatory. Kemper v. Cooke, 576 S.W.2d 263, 1979 Ky. App. LEXIS 364 (Ky. Ct. App. 1979).

Fiscal court could not rely on the presumption of regularity to prove that a road was a county road, having produced no order accepting the road into its system of maintenance or changing its name to the name of a road that had been accepted by such an order. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

Obstruction of a lane was improper because it was an open public road instead of a private passway; the location of the public road could not have been altered by the construction or installation of a private drive. A portion of the lane formerly maintained by the county that provided necessary access for a private person continued to serve as an open public road; the lane was not a county road because it had never been adopted as such. Sproul v. Ky. Props. Holding, LLC, 2014 Ky. App. Unpub. LEXIS 1031 (Ky. Ct. App. Mar. 7, 2014), rev'd, superseded, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

Court of Appeals properly held that a neighbor failed to prove the existence of any county road, public passway, or easement across an owner's property because the road was never officially adopted by the county and the neighbor's evidence was insufficient to establish adverse use of the road by the public by estoppel or prescription. Ellington v. Becraft, 534 S.W.3d 785, 2017 Ky. LEXIS 510 ( Ky. 2017 ).

4. Liability for Construction and Maintenance.

Although bridge within city had been built by the county and was a part of state highway project, it was a part of city streets and under exclusive control of the city; therefore city was liable for its failure to maintain bridge in reasonably safe condition. Pineville v. Lawson, 225 Ky. 542 , 9 S.W.2d 517, 1928 Ky. LEXIS 815 ( Ky. 1928 ).

City and county were jointly liable for damage resulting from construction of viaduct within city limits, as part of state highway project. Ashland v. Queen, 254 Ky. 329 , 71 S.W.2d 650, 1934 Ky. LEXIS 79 ( Ky. 1934 ).

Judgment on the pleadings was properly granted in favor of a county in a city’s action for reimbursement for repairs made to a county road within the city’s annexed territory because once the city annexed the county road, it was the responsibility of the city to maintain that road and the county was relieved of maintenance responsibilities for the road. City of Pioneer Vill. v. Bullitt County, 104 S.W.3d 757, 2003 Ky. LEXIS 31 ( Ky. 2003 ).

5. Improvement and Maintenance.

As the acts of county officials in improving or maintaining a road, standing alone, do not constitute a public user capable of ripening into a prescriptive title, by parity of reasoning neither can they alone amount to such a continued public user as will negate a public abandonment. Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

6. “Public.”

Where a certain roadway served no useful purpose except to serve as an access road to two private homes which had not been inhabited for a number of years, the road was not “public” and the order of the county fiscal court finding it to be a “public road” and making it a county road on the condition that adjoining landowners execute right-of-way deeds, in the absence of such deeds, was invalid. Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

It is not necessary to the establishment of a proposed county road that it be an existing public road or, indeed, that it be an existing road or passway of any kind. Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

Although a county had constructed and maintained a private road for nearly 30 years, the lack of public use prevented the county from acquiring the road by prescription. Perry v. Powell County, 2000 U.S. Dist. LEXIS 22633 (E.D. Ky. Dec. 11, 2000).

Public road may be acquired by prescription only upon: (1) 15 years public use; and (2) a like number of years of control and maintenance by the government. Maintenance of the road, standing alone, will not constitute a public user capable of ripening into a prescriptive title. The County also must show that the use was adverse rather than permissive, open, continuous, and so manifest as to afford notice to an ordinarily prudent owner. Perry v. Powell County, 2000 U.S. Dist. LEXIS 22633 (E.D. Ky. Dec. 11, 2000).

7. Required Findings.

It was error for court to fail to make finding as to whether work being done on road was an alteration or relocation so as to bring it under this chapter, requiring compliance in issuing notice and advertisement of the relocation, the letting of contracts and specifications for the work. Lampton v. Pinaire, 610 S.W.2d 915, 1980 Ky. App. LEXIS 408 (Ky. Ct. App. 1980).

8. Public Status Lost.

Trial court properly enjoined a landowner from obstructing the adjoining landowners’ access to a road, even though it had lost its status as a public road by abandonment, as the landowner failed to prove that the roadbed reverted to his, rather than the landowners’, tract of land. Blankenship v. Acton, 159 S.W.3d 330, 2004 Ky. App. LEXIS 190 (Ky. Ct. App. 2004).

Cited:

Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ); Tudor v. Shannon, 294 Ky. 380 , 171 S.W.2d 423, 1943 Ky. LEXIS 426 ( Ky. 1943 ); Shearer v. Hall, 399 S.W.2d 701, 1965 Ky. LEXIS 31 ( Ky. 1965 ).

DECISIONS UNDER PRIOR LAW

1. Establishment of County Roads.

Road which had been an open way, traveled by the public, for more than 20 years and as far back as memory of witnesses ran, was held to be a public highway. Witt v. Hughes, 66 S.W. 281, 23 Ky. L. Rptr. 1836 (1902).

Road generally used by public for 25 or 30 years, although there was no evidence it was a “county road,” was held to be a public highway. Smith v. Illinois C. R. Co., 105 S.W. 96, 31 Ky. L. Rptr. 1323 (1907).

Opinions of Attorney General.

The acceptance of city streets as a part of the county road system is subject to county budgetary and constitutional (financial) limitations, and is subject to the limitations involved in subsection (2) of this section, as amended. OAG 65-381 .

Counties do not have to allocate road funds to construct, reconstruct or improve city streets even when said streets have been designated as a part of the county road system. OAG 65-501 .

Any road within the city limits which has been accepted since June, 1964 by the fiscal court of the county as a part of the county road system is eligible to have county road funds spent for the maintenance thereof. OAG 66-672 .

Where an area containing a county roadway segment is annexed by a city of the sixth class, the maintenance and upkeep of the road segment annexed must be borne by the city. OAG 68-506 .

A cable television corporation generally, in order to install its cable system and related equipment on, over, or across the right of way of a county road system, must acquire a franchise from the fiscal court pursuant to Const., § 164, and according to the term and bidding procedure outlined therein. OAG 70-241 .

Subsection (1)(b), when defining “county roads,” envisions a formal acceptance, on the part of the fiscal court by an appropriate order, of a road as a part of the county road system. OAG 72-80 .

Under KRS chapter 178 a county fiscal court could contribute to the maintenance of a city street if it so elects and could make such street a county through road. OAG 72-514 .

Fiscal court is under no duty to construct a road within a city or take city street segments into the county road system, such action being permissive only. OAG 73-466 .

Under this section and KRS 178.080 roads crossing national forest land, which have been used for years by the public and for which easements were reserved in the deeds of the land to the United States, should not be maintained by the county until they have been accepted by the fiscal court as a part of the county road system; otherwise the county would be maintaining private roads which it is without authority to do. OAG 74-733 .

So long as a road is part of the county road system and so long as the road segment has not been properly closed, the fiscal court must see to it that the road is properly maintained for the public use. OAG 76-297 .

Although a road segment lying within the boundaries of a sixth-class city may be included in a special services district program established by the county, the legislative body of the city has no authority to turn over any money from its gasoline tax fund or its revenue sharing fund to the fiscal court for maintenance of the city street segment. OAG 76-331 .

A road located within the corporate limits of a city cannot be accepted into the county road system until and unless it is first accepted by the legislative body of the city as a part of the city street system. OAG 76-481 .

County men and machines could be used to repair city streets, provided the fiscal court passed an order making such streets a part of the county road system for maintenance purposes and the city would agree to furnish the materials. OAG 78-211 .

While county road fund money cannot be spent on road segments which are not a part of the county road system, if the fiscal court desires to take city street segments into the county system for maintenance purposes it may do so by an appropriate order (specific and formal), and subject to proper budgetary and financial procedure and limitations, but such an order must not interfere with the exclusive jurisdiction of the city legislative body over city streets. OAG 78-211 .

The fiscal court has authority to appropriate money for the construction or maintenance or improvement of any road segment lying within the boundaries of the county and, in general, this permissibility would also apply to bridges. OAG 78-250 .

This section permits a fiscal court to take city streets into the county road system, subject to proper budgetary and financial limitations although the fiscal court in entering such a formal order would have to keep in mind that a city of the fifth class, under KRS 94.360 (now repealed), has exclusive jurisdiction or control over the public ways or streets of that city. OAG 78-250 .

The fiscal court has exclusive authority over county roads, including the authority to construct, maintain and operate such roads in the public interest of the health, safety, welfare and convenience of the inhabitants of the county. OAG 79-393 .

Rural and secondary fund money can be spent on a road which is a part of a county road system, as defined in this section, even though county road aid funds authorized by KRS 177.320(2) (county roads and bridges) and 179.410 to 179.430 (KRS 179.420 and 179.430 now repealed) can be spent only on such county roads, since a “secondary and rural” road for purposes of fund distribution may include a county road, but a “county road” can be only a road meeting the definition under this section and KRS 179.010(1). OAG 79-533 .

The term “secondary and rural” is broad enough to include “county roads,” but “county roads” are not necessarily “secondary and rural.” OAG 79-533 .

The fiscal court may approve of an administrative code provision whereby the county judge/executive could, under a properly defined emergency situation, take steps to effect repair of a county road or bridge, subject, however, to a ratification of such action by the fiscal court as a body at the first meeting opportunity. OAG 80-368 .

The responsibility for determining precisely just what specifically designated road segments and bridges will be constructed, reconstructed, maintained or repaired, rests with the fiscal court as a body, not the county judge/executive, and the county judge/executive cannot order the road department to begin work on a particular bridge without fiscal court approval. OAG 80-368 .

If a fiscal court votes to establish a road as a county road but the evidence indicates that the proposed road would be of private benefit only, the county attorney could file an injunctive civil suit in circuit court, seeking the enjoining of any action implementing the decision to establish the road. OAG 80-382 .

A county road is a public road which has been accepted by the fiscal court as a part of the county road system by a formal order of the fiscal court and the fiscal court has a duty to maintain county roads, however, the mere maintenance of a road, without any formal fiscal court orders, would not make it a county road; therefore, the fiscal court has the authority to cease the maintaining of a road, without any formal action, concerning which road no formal orders of fiscal court were entered of record. OAG 80-489 .

If the public has acquired the free use of a roadway by user, considering that a public user ordinarily ripens into a prescriptive easement in 15 years, the fiscal court could continue to maintain the road if the traveling public requests the fiscal court to do so, or even if it appears that the roadway is used by the traveling public in a substantial way, even against the objections of the adjacent landowners; in such situation the fiscal court would be merely permissively using the users’ prescriptive rights as a vehicle for maintaining the public road. OAG 80-489 .

The fiscal court may expend county funds for the maintenance of the road leading to the public cemetery, provided that such road has been taken into the county road system by way of a formal order of the fiscal court. OAG 80-562 .

The conventional system of county road acceptance under paragraph (b) of subsection (1) of this section and 178.115 , and the special acceptance procedure under KRS 179.470 are mutually exclusive; thus a subdivision road may be taken into the county road system by the conventional method, and the provisions of KRS 179.470 would not apply. OAG 80-583 .

The fiscal court has the authority to accept a paved road in a subdivision and place the road in the county road system without cost to the owners of lots in the subdivision. OAG 80-602 .

The county, through fiscal court, has no responsibility nor authority for bringing an injunctive action, where a mere public road (not a county road) has been obstructed. OAG 80-613 .

Subsection (3) of KRS 179.470 would apply where a county contains one city of the fourth class and the rest of the county is basically unincorporated, except for a subdivision located in an unincorporated area of the county just outside the city limits in which subdivision all but two streets have previously been placed on the county road maintenance system and dedicated to public use; however, the subdivision’s streets may be taken into the county road system pursuant to subsection (1) (a) of this section and 178.115 pursuant to the judgment of the fiscal court and under this more conventional method KRS 179.470 would not apply. OAG 80-636 .

Where the county road department agrees to provide maintenance to subdivision streets in return for payments by the residents of the subdivision through the road committee, direct reimbursements are not authorized under this section, KRS 178.080 , KRS 178.115 , or KRS 179.470 ; however, the reimbursement of maintenance expenses of subdivision roads through special assessments under KRS 179.470 would be allowed and would accrue to that part of the county road fund allocated for the maintenance of subdivision streets rather than the general road fund; thus, where the fiscal court adopts the road project under KRS 179.470 before the fiscal court finally adopts the budget, the cost of the road project can be set up under a special road account and where the road project is approved by the fiscal court after the budget is approved, the budget would have to be amended under KRS 68.280 to set up the special road project and unanticipated revenue by way of special assessments. OAG 81-19 .

Where KRS 42.490 transfers the coal haul road money from unencumbered fund balances under KRS 42.300 (repealed), KRS 42.330 (repealed) and KRS 177.970 (repealed) to the local government assistance fund under KRS 42.450 et seq. of a county which has no county road over which coal is being hauled, the county through the fiscal court can spend the funds on one or more of the priority categories listed under subsections 2(a) through 2(j) of KRS 42.455 including any county road under subsection 2(c) within the limits of this section, even though no coal is hauled over it. OAG 81-15 .

Where a proposed street will run from a county recreational park to a city street, city commission approval of the proposed street means that the street will become a part of the city street system, and the city will have exclusive municipal jurisdiction or control over it under KRS 82.082 ; however, the fiscal court of the county may maintain the proposed street as a part of the county road system under the authority of this section and KRS 67.083 , assuming that the city approves of the dedication, subject to the approval of the city commission. OAG 81-142 .

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. The only exceptions to this basic rule relate to sidewalks and bus turn-arounds for school children, as treated under KRS 178.290 . OAG 82-136 .

A county bridge may only be constructed on a county right-of-way and linking segments of a county road and the bridge must be a part of a public road accepted by the fiscal court as a part of the county road system; a formal order of fiscal court is necessary to establish a county road. OAG 82-180 .

The fiscal court has no authority to construct a bridge or bridges linking a county to a private drive and the same principle applies to the repair of such bridges that are not a part of a “public road,” which public road is a part of the county road system; likewise, the mere beginning of such “private bridges” in no way obligates the fiscal court to finish the projects, since to do so would be strictly illegal. OAG 82-180 .

In the event the fiscal court as a body enacts a resolution accepting a roadway as a part of the county road system, the county attorney has a duty to take all reasonable legal action to determine the title status, if it becomes actually necessary. OAG 82-228 .

There can be no “county road” in the legal and technical sense until and unless fiscal court, as a body, enacts an order or resolution specifically making a particular road a part of the county road system. OAG 82-228 .

Once the fiscal court “accepts” a road segment as a part of the county road system, a formal order of fiscal court would be necessary for its effective abandonment by the county. OAG 82-363 .

Where an old county road is fenced or blocked off by adjacent property owners, if it is determined that the county accepted the road as a county road, then the fiscal court can either abandon it by a formal order or it may improve the road and take legal steps to eliminate the fencing and blocking off activities of adjacent property owners, depending upon what is felt to be in the best interests of the county as a whole. If the fiscal court never “accepted” the road formally, or informally prior to 1914, as a county road, and the fiscal court does not deem it to be in the public interest to now formally accept it as a county road, then it would appear that the fiscal court has no further responsibility nor interest in the controversy. OAG 82-363 .

Where old county roads were abandoned to varying degrees and were not maintained by the county for over 50 years, but were never officially closed, if the fiscal court either formally (on and after 1914) or informally (prior to 1914) accepted the roads as a part of the county road system, then the fiscal court had a duty to maintain them. If the fiscal court believed it in the best public interest to abandon such roads as county roads, it must do so by a formal order. OAG 82-363 .

Generally, a fiscal court has no authority to use county road equipment and crews on city streets, except where the city street segment has been made a part of the county road system for purposes of construction, maintenance, or repair; thus, a fiscal court may contribute to the maintenance or construction of a city street if it so elects by making such street a county through road; however, such county action is permissive only. OAG 82-418 .

Since a county cannot furnish county equipment and road employees to maintain or construct a city street unless such street is made a part of the county road system, the mere fact that an interlocal agreement is being entered into that does not encompass the city street’s being made a part of the county road system would not convert it into a lawful project. OAG 82-418 .

If the fiscal court had never entered a formal order accepting a road as a part of the county road system and had never acquired the easement or title to the road by instrument or user, it was not a “county road,” as defined in subdivision (1)(b) of this section. However, if the fiscal court had entered a formal order of acceptance and if the public user had ripened into a prescriptive easement for 15 years, it was a “county road.” OAG 82-445 .

The fiscal court can “establish” a road or strip of land as a part of the county road system prior to obtaining easements or title from the owners. However, the fiscal court cannot start road work on the land in question until the owner has received or been tendered compensation; the fiscal court must either pay the owners for the land to be used for the county road or must tender the compensation prior to the county’s going on the land and beginning the road work. OAG 83-125 .

As to the fiscal court’s determining whether the establishment of a county road or bridge will be in the county’s or general public interest, the fiscal court may properly consider: (1) the number of families living in the immediate area; (2) the availability of proper funding under KRS Chapter 68; (3) the potential traffic count in the area; (4) the public convenience in terms of social and economic perspective; (5) the potential benefit of the project to the public in general; and (6) the question of whether the project is essentially public in nature. OAG 83-267 .

KRS 68.100 and Const., § 180, would prohibit the expenditure of county road money on the construction and maintenance of swinging bridges, which are isolated walk bridges generally found in the mountains, and which by definition are not an integral part of a “county road.” Thus, by definition of a county road, a legal county bridge is a bridge which is a necessary and integral part of a county road. OAG 83-267 .

There must validly exist a county right-of-way on both sides of a stream in order for the county to build a bridge across the stream, and there can be no public interest involved where the bridge dead-ends on one piece of private property. OAG 83-267 .

Once the fiscal court entered an order accepting and establishing the particular county roads in question as a part of the county road system, such roads became county roads under subdivision (1)(b) of this section, even assuming that the minimal width of 30 feet was not observed. It was then up to the fiscal court to acquire the additional right-of-ways which would bring these county roads at least up to the mandated minimal width. OAG 83-290 .

Although the city has exclusive jurisdiction and control over its city streets, a fiscal court, with the consent of the city, may, pursuant to KRS 67.083 and this section, take city streets into the county road system by fiscal court order for the purpose of expending county money on the construction or improvement of such streets. OAG 83-321 .

The county cannot legally accept title to city streets so as to militate against the jurisdiction of the city; in any event, where a city street is made a part of the county road system by fiscal court order, it would in no way take away the city’s control and jurisdiction as relates to city street right-of-way needed for cable television and the county could not include city streets in its ordinance for a cable television franchise. OAG 83-321 .

The fiscal court’s jurisdiction, including its powers relating to the county roads and bridges, extends only to territory within the particular county’s boundaries. Thus, a county had no statutory authority to unilaterally spend county money on a bridge located in another county. OAG 83-340 .

A fiscal court may not haul and apply county road materials to a city street which is wholly unconnected with the county road system, even if the city paid the costs of the materials. OAG 83-398 .

A county fiscal court may not haul and apply county road materials to a city street which is wholly unconnected with the county road system, with the city paying the costs of the materials; also, KRS 79.110 and 79.120 would not permit the city and county to contract for the county to supply some portion of the cost of the service on the theory that the residents of the city are also residents of the county paying both city and county taxes. OAG 83-439 .

This section implies that a road segment adopted as a part of the county road system requires any necessary construction and maintenance as a part of the county road system; ordinarily the fiscal court can maintain only those road segments specifically acquired as a part of the county road system. OAG 84-65 .

Where subdivision road segment used by public school buses in county containing a fourth-class city had not been acquired as a part of the county’s road system, the fiscal court had no authority to make repairs on that road. OAG 84-65 .

The discontinuance of a public road, which is not a county road, as defined by subdivision (1)(b) of this section, requires no formal action of the fiscal court; the fact that the county once maintained it is not controlling. OAG 84-358 .

County acceptance of a road segment as a part of the county road system requires a formal order of the fiscal court; though a road may be public because of its public use, it is not a county road where the fiscal court has not formally adopted it as a part of the county road system. Thus if the road is merely a public road, and is not a county road, the fiscal court has no responsibility for its upkeep or discontinuance. OAG 84-358 .

The gross weight limit of 36,000 pounds, provided in KRS 189.221(4), applies to any truck, semitrailer truck or truck and trailer unit, operating upon any highway regardless of the nature of its cargo, including coal, timber or other natural resources; the truck weight limitation, which applies explicitly to “any highway,” would include county roads. OAG 85-40 .

“County roads” are public roads which have been formally accepted by the fiscal court of the county as a part of the county road system. OAG 85-73 .

“County roads and bridges,” for the purpose of distribution of the county road fund, are all public roads and bridges outside of incorporated cities except primary roads and federal parkways and bridges thereon. OAG 85-73 .

Under the statutory definitions, a “secondary and rural” road for purposes of fund distribution by the state, under KRS 177.320(1), may include a “county road,” as well as a “secondary and rural road.” However, a “county road,” for purposes of fund distribution, under KRS 177.320(2), can only be a road meeting the definition of subdivision (1)(b) of this section. OAG 85-73 .

Considering that the statutes permit the spending of Rural and Secondary Road Fund money on “county roads” (as defined by this section), under the explicit terms of KRS 177.330(1), the Department of Rural and Municipal Aid and the fiscal court must come to an agreement in order that the Transportation Cabinet can proceed with a “county road” project, pursuant to KRS Chapters 177 and 179. OAG 85-73 .

A county may not continue to maintain a road which is not a county road, even if the public has acquired the free use of the road by prescriptive easement and the traveling public requests the fiscal court to maintain the road, unless the fiscal court acts in what it perceives to be the best interests of the county by designating the road as a county road. (modifying OAG 80-489 .) OAG 88-59 .

A road accepted into the county road system must have a minimum right-of-way width of 30 feet, irrespective of whether it had previously existed as a road used by the public for a substantial period. OAG 91-114 .

Establishment of a public road as a “county road” occurs when a public road is accepted by the fiscal court as part of the county road system, irrespective of when such road was built or originated, thus it follows that a public road “accepted by a fiscal court into the county road system” after the effective date of Acts 1964, ch. 68 § 1 (June 18, 1964), must have a minimum right-of-way width of 30 feet. OAG 64-148 is hereby overruled to the extent it concludes that “subsection (2) of 178.040 applies to new locations and to new roads and not to existing roads taken over by the county officials . . . . . ” OAG 91-114 .

A county cannot maintain a road not shown on a county road aid map (County Road Series Map) adopted by the fiscal court, unless such road was entitled to acceptance as a part of the county road system, and has been so accepted by the fiscal court; it is a rebuttable presumption that a road not shown on a County Road Series Map that has been formally adopted for a county, is not a “county road” within the meaning of subsection (1)(b) of this section. OAG 93-48 .

A city may not unilaterally expend funds to maintain a waterway that is not within its boundaries. OAG 12-009 , 2012 Ky AG LEXIS 110.

Research References and Practice Aids

Cross-References.

Allocation of costs of eliminating grade crossing, KRS 277.065 .

Archaeological sites, reporting discovery of, KRS 164.730 .

Construction of railroad crossings, KRS 177.110 .

County or city not to be stockholder in, or loan money to a corporation except for road purposes, Const., § 179.

County road and bridge revolving fund, KRS 66.360 .

Credit of state may be pledged to county for road building purposes, Const., § 157a.

Duties of county surveyors, KRS 73.040 , 73.090 .

Ferry landings to be surfaced and maintained, KRS 280.280 .

Highways construction lakes, KRS 150.625 .

Lien of persons furnishing labor and material for road construction, KRS 376.210 .

Passageways to public schools, KRS 160.320 .

Public road districts in Jefferson County, KRS ch. 184.

See note to KRS 178.020 under heading 3. — Continuance, Isaacs v. Karnes, 303 Ky. 305 , 197 S.W.2d 789, 1946 Ky. LEXIS 858 (1946).

Use of prisoners for state road work, Const., § 253; KRS 197.130 .

178.020. Roads, bridges, and landings continued — Removal from through road system.

Every county road, bridge, and landing, and every city street and alley heretofore lawfully established and opened and not lawfully discontinued or vacated shall continue as such, until properly discontinued. Every road, street, and alley, used and occupied as a public road, street, or alley, shall be presumed to be a public road, street, or alley, as the case may be. Nothing in this section shall be interpreted as interfering with the right of the fiscal court of a county containing a city of the first class or a consolidated local government from detaching a road or a portion thereof from the county through road system.

History. 4925: amend. Acts 1964, ch. 80, § 4; 2002, ch. 346, § 183, effective July 15, 2002.

NOTES TO DECISIONS

  1. Roads.
  2. — Establishment.
  3. — Continuance.
  4. — Discontinuance.
1. Roads.
2. — Establishment.

Neither dedication nor acceptance need be formal but both may be presumed from the continual use of the road by the public for 15 years or more, accompanied by acts of control on the part of the county court such as the appointment of overseers but such use without the exercise of any power over the road by the county court, will not make it a public highway. Louisville & N. R. Co. v. Engle, 278 Ky. 576 , 129 S.W.2d 133, 1939 Ky. LEXIS 470 ( Ky. 1939 ) (decision prior to enactment of KRS 178.115 ).

Where tract of land outside of town’s boundary was divided into lots and streets and plat was filed with county clerk and streets were outlined by plotted furrows at time of public auction of the lots, although streets dedicated in such a manner cannot be regarded as public roads in the sense that they become part of the county’s road system which must be maintained within the meaning of the statute, for they were never legally accepted or established as such, they were and are public roads in the sense that the dedication inured to the benefit of the public, and the public, particularly contiguous property owners, had a right to use them and such right cannot be destroyed by mere encroachment of the owner of the abutting property. Salyers v. Tackett, 322 S.W.2d 707, 1958 Ky. LEXIS 19 ( Ky. 1958 ).

3. — Continuance.

Once a public road, always a public road, until abandoned as provided in the statutes. Mills v. Dawson, 197 Ky. 518 , 247 S.W. 764, 1923 Ky. LEXIS 693 ( Ky. 1923 ). See Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ); Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

A commissioners’ report assessing damages for the appropriation of land as a highway over a road that was already in existence is conclusive that there was no abandonment of that road at the time condemnation proceedings were begun. Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

Where county road passing through lands of several adjoining landowners, near a creek, was no longer used by public because, in reconstruction of road as a state highway, a new right-of-way was established through such lands, but one landowner continued to use old road through neighbor’s land in order to reach a bridge which gave him access to his land on the other side of the creek, the court, in an action by the neighbor to enjoin such use, correctly refused an injunction on the ground that the old road had not been legally discontinued, and in giving such judgment the court was not required to grant plaintiff’s alternative plea that the defendant be required to remove obstructions placed by him across the road near the point of intersection with the new right-of-way, and that it be adjudged that the old road was still a public road. Compton v. Moore, 298 Ky. 763 , 184 S.W.2d 83, 1944 Ky. LEXIS 993 ( Ky. 1944 ).

Where evidence showed that a segment of an old road bed, discarded when state highway was straightened, had never been abandoned with the formalities provided by the statute, this segment of roadway must be considered as a presently existing thoroughfare, in action between landowners involving question of removal of gates and other obstructions. Isaacs v. Karnes, 303 Ky. 305 , 197 S.W.2d 789, 1946 Ky. LEXIS 858 ( Ky. 1946 ).

4. — Discontinuance.

When a county, by order of county court, abandoned portion of highway previously accepted by county court, abandoned portion reverted to abutting property owners, and they might close abandoned portion. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ). See Jones v. Avondale Heights Co., 243 Ky. 135 , 47 S.W.2d 949, 1932 Ky. LEXIS 39 ( Ky. 1932 ).

When a new road is to be opened or an old road discontinued the notice, petition, and commissioner’s report must, lest they be fatally defective, expressly describe the road. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ). See Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

An order of a county court altering, establishing or abandoning a road before process has been issued against landowners along the road is void. Potter v. Matney, 165 Ky. 266 , 176 S.W. 987, 1915 Ky. LEXIS 497 ( Ky. 1915 ). See Jones v. Avondale Heights Co., 243 Ky. 135 , 47 S.W.2d 949, 1932 Ky. LEXIS 39 ( Ky. 1932 ).

When establishing or discontinuing a road, the county court is a court of limited jurisdiction, and its jurisdiction must be affirmatively shown. Potter v. Matney, 165 Ky. 266 , 176 S.W. 987, 1915 Ky. LEXIS 497 ( Ky. 1915 ). See Jones v. Avondale Heights Co., 243 Ky. 135 , 47 S.W.2d 949, 1932 Ky. LEXIS 39 ( Ky. 1932 ).

Old portion of public highway, cut off by construction of new, can be closed only in accordance with provisions of statute, and not by arbitrary action of one abutting property owner. Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ).

County roads can be discontinued only by the statutory method. Maggard v. Breeding, 290 Ky. 701 , 162 S.W.2d 523, 1942 Ky. LEXIS 474 ( Ky. 1942 ).

Where county, in 1892 or prior thereto, closed part of road and abandoned the rest, opening a new road to serve the same public, there was a sufficient closing of the road so that a judgment in a suit between adjoining landowners, permitting one to erect a gate across the road, was valid and binding on their successors in title, although county was not party to suit. Tudor v. Shannon, 294 Ky. 380 , 171 S.W.2d 423, 1943 Ky. LEXIS 426 ( Ky. 1943 ).

Cited:

Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

Opinions of Attorney General.

In a county that has no road engineer or road supervisor, the attempted closing of a county road with the aid of only a county road foreman would not be substantial compliance with the pertinent statutes. OAG 66-366 .

A county and its fiscal court had the authority to designate a road on county property and approaching the county courthouse as a public road. OAG 71-298 .

178.025. Road presumed established — Presumption of width and area of public road right-of-way.

  1. Any road, street, highway, or parcel of ground, dedicated and laid-off as a public way and used without restrictions on a continuous basis by the general public for fifteen (15) consecutive years, shall conclusively be presumed to be a public road.
  2. In the absence of any record, the width of a public road right-of-way shall be presumed to extend to and include that area lying outside the shoulders and ditch lines and within any landmarks such as fences, fence posts, cornerstones, or other similar monuments indicating the boundary lines.
  3. In the absence of both record or landmark, the right-of-way of a public road shall be deemed to extend to and include the shoulders and ditch lines adjacent to said road and to the top of cuts or toe of fills where such exist.

History. Enact. Acts 1966, ch. 108, §§ 1 to 3; 2004, ch. 61, § 2, effective July 13, 2004; 2006, ch. 236, § 1, effective July 12, 2006.

NOTES TO DECISIONS

  1. Application.
  2. Acquisition of Private Property.
  3. Applicable Statute.
  4. Findings of Court.
  5. Public Passage.
1. Application.

Where subsection (2) of this section, governing highway rights-of-way, was not enacted until 44 years after electric lines were constructed, and the legislature did not expressly direct that the statute should be retroactively applied, the court could not apply subsection (2), in order to determine whether lines were in right-of-way, without violating KRS 446.080(3), which prohibits the retroactive application of statutes. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

2. Acquisition of Private Property.

While the legislature can enact a statute which mandates or authorizes a right-of-way of a certain width for a particular road, it cannot legislatively appropriate private property to the commonwealth; private property for public right-of-way must be acquired either by agreement or by the exercise of the power of eminent domain. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

3. Applicable Statute.

Where there was no adequate record as to the width of the right-of-way of highway in 1922 when electric lines were first constructed, the statute then in effect, under which the lines were not in the right-of-way, governed the parties’ rights, and, since the bureau of highways failed to prove that the electric lines were originally constructed within public right-of-way, the bureau, and not the utility, was responsible for costs of moving lines to improve highway. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

4. Findings of Court.

The trial court’s findings that public right-of-way had always been considered to extend to the fences along roads, that subsection (2) of this section had merely codified the rule, and thus, that electric lines constructed prior to enactment of statute were originally constructed on public right-of-way, were clearly erroneous since no authorities recognize the presumption set forth in subsection (2) of this section as a substantive rule, and since former statute in effect at time of construction of the electric lines did not either expressly or by implication create a presumption that all property between a road and the fence lines adjoining it was part of the public right-of-way. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

Lower court erred in concluding that a section of an old road was a public road where it did not identify the facts relied upon to conclude that the county had maintained the road, and that conclusion was essential to determining the character of the old road. Ky. Props. Holding LLC v. Sproul, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

5. Public Passage.

While the general public may have abandoned the public use of the road, the parties to this action, and the property owners whose lands adjoin the road, have not. The prescriptive easement for public use necessarily subsumed the private prescriptive use of the same road by the owners of the properties adjoining it. As to those property owners, the prescriptive easement survives. Jameison v. Eagle Rod & Gun Club, Inc., 2007 Ky. App. LEXIS 432 (Ky. Ct. App. Nov. 9, 2007).

Cited in:

Watson v. Crittenden County Fiscal Court, 771 S.W.2d 47, 1989 Ky. App. LEXIS 65 (Ky. Ct. App. 1989); Sproul v. Ky. Props. Holding, LLC, — S.W.3d —, 2014 Ky. App. LEXIS 40 (Ky. Ct. App. 2014).

Opinions of Attorney General.

This section is unrelated to the 15-year prescriptive easement rule; it merely provides in effect that any road dedicated by the owner or owners of the property as a public way and used by the general public without restrictions for five consecutive years shall conclusively be presumed to be a public road. Therefore, this section has no application where there is no record of any owner dedication. OAG 82-123 .

A road which had been used by the public and maintained by the county government for at least 14 years could be presumed to be a “public road,” provided it met the tests laid out in this section; however, unless the fiscal court formally accepted the road as a “county road,” it did not become a “county road” and, if it was to become formally a “county road,” the minimal width requirement of KRS 178.040(2) had to be complied with. OAG 83-88 .

The discontinuance of a public road, which is not a county road, as defined by KRS 178.010(1)(b), requires no formal action of the fiscal court; the fact that the county once maintained it is not controlling. OAG 84-358 .

A public road that is not a county road can be abandoned without formal action of the fiscal court, and a reverter to former owners would occur, Williams v. Woodward, 240 S.W.2d 94, 1951 Ky. LEXIS 956 ( Ky. 1951 ). Thus, where a public road is not used by the general traveling public for at least 15 continuous and uninterrupted years, an abandonment could be said to have taken place, without any formal action of the fiscal court. OAG 84-358 .

Where no boundaries are readily identifiable, as described in this section, to indicate “public property,” KRS 512.080 may still be enforced. OAG 91-151 .

Research References and Practice Aids

Cross-References.

Cost of relocating utilities on public road, how paid, KRS 179.265 .

Kentucky Law Journal.

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

178.030. Transfers from state to county.

The roads, bridges and landings transferred by the state to the counties in which they are located shall be county roads, bridges and landings. Provided, however, that roads, bridges and landings so transferred shall not become a part of a county through road system in a county containing a city of the first class unless they are made a part of such a system in accordance with KRS 178.330 or 178.333 , or both.

History. 4296: amend. Acts 1964, ch. 80, § 5.

NOTES TO DECISIONS

1. Construction.

The section and KRS 177.020 impliedly authorize the Department of Highways to discontinue and relinquish to the counties any part of the state system of primary roads as it may deem proper, and after such relinquishment the Department of Highways has no further duty to repair or maintain. However, the relinquishment must be by order or formal declaration, of which the county will have notice. Jefferson County v. Department of Highways, 299 Ky. 358 , 185 S.W.2d 546, 1945 Ky. LEXIS 429 ( Ky. 1945 ).

Cited:

Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

Opinions of Attorney General.

Upon notice being given as prescribed by this section, the department of highways may change a state road to a county road. OAG 71-183 .

Research References and Practice Aids

Cross-References.

Names of county roads, markers, KRS 179.330 .

178.040. Change in width of county road or right-of-way — Minimum width of right-of-way — Acquisition of right-of-way.

  1. In order to change the width of a county road, the fiscal court, an urban-county government, or a consolidated local government shall make a special order for a different width. The order shall be recorded in the office of the county clerk. In order to change the width of the right-of-way of a portion of a county through road system the fiscal court of a county containing a city of the first class or a consolidated local government may make a special order for a different width. The order shall be recorded in the office of the county road engineer.
  2. All county roads and all public roads that are being adopted into a county road system after July 13, 2004, shall occupy a minimum right-of-way width of thirty (30) feet, fifteen (15) feet in each direction as measured from the centerline of the road, unless the fiscal court finds that a thirty (30) foot minimum cannot be met due to the topography of the road or other extraordinary circumstances. All county roads and all public roads that were in existence prior to July 13, 2004, shall not be required to occupy a minimum right-of-way width of thirty (30) feet under this subsection. A fiscal court, an urban-county government, or a consolidated local government may order the minimum right-of-way to be a greater width. All roads added to the county through road system in a county containing a city of the first class or a consolidated local government in accordance with KRS 178.333 shall occupy a right-of-way width as ordered by the fiscal court or the consolidated local government.
  3. In acquiring a right-of-way for a county through road within any city, the fiscal court or the county court of a county containing a city of the first class or the consolidated local government may exercise any powers granted them by statute for the acquisition of property.

History. 4288, 4289: amend. Acts 1964, ch. 80, § 6; 1978, ch. 384, § 304, effective June 17, 1978; 2002, ch. 346, § 184, effective July 15, 2002; 2004, ch. 61, § 3, effective July 13, 2004.

NOTES TO DECISIONS

  1. Width.
  2. — Reduction.
  3. — Restoration to Original.
1. Width.
2. — Reduction.

When width of public way was reduced from 100 feet to 60 feet, abandoned 40 feet reverted to abutting property owners. Avondale Heights Co. v. Rhodes, 223 Ky. 409 , 3 S.W.2d 774, 1928 Ky. LEXIS 348 ( Ky. 1928 ).

3. — Restoration to Original.

In action to restore to original width, abutting property owners to whom abandoned portion reverted were necessary parties. Avondale Heights Co. v. Rhodes, 223 Ky. 409 , 3 S.W.2d 774, 1928 Ky. LEXIS 348 ( Ky. 1928 ).

Opinions of Attorney General.

Subsection (2) of this section applies to new locations and to new roads and not to existing public roads taken over by the county officials, whether by formal order of the county court, or by work and material being placed on them. OAG 64-148 .

Once a subdivision plat has been approved pursuant to KRS 100.277 the streets become county roads, and their width is controlled by this section; therefore a county board of adjustments has no authority pursuant to KRS 100.241 to grant a variance of such a street’s right-of-way only to 26 feet since subsection (2) of this section mandates a 30 foot right-of-way, but a lesser width may be all that need be actually paved. OAG 78-567 .

A road which had been used by the public and maintained by the county government for at least 14 years could be presumed to be a “public road,” provided it met the tests laid out in KRS 178.025 ; however, unless the fiscal court formally accepted the road as a “county road,” it did not become a “county road” and, if it was to become formally a “county road,” the minimal width requirement of subsection (2) of this section had to be complied with. OAG 83-88 .

The acquiring of a minimal right-of-way of 30 feet is mandatory if it is to become a county road in the legal, technical sense. OAG 83-88 .

Any county road established on and after the effective date of the 1914 legislation creating this section is subject to a mandated width of 30 feet right-of-way. The fiscal court can make it more than 30 feet, but 30 feet in width, as to the right-of-way, is mandated. OAG 83-290 .

Once the fiscal court entered an order accepting and establishing the particular county roads in question as a part of the county road system, such roads became county roads under KRS 178.010(1)(b), even assuming that the minimal width of 30 feet was not observed. It was then up to the fiscal court to acquire the additional right-of-ways which would bring these county roads at least up to the mandated minimal width. OAG 83-290 .

A road accepted into the county road system must have a minimum right-of-way width of 30 feet, irrespective of whether it had previously existed as a road used by the public for a substantial period. OAG 91-114 .

Establishment of a public road as a “county road” occurs when a public road is accepted by the fiscal court as part of the county road system, irrespective of when such road was built or originated, thus it follows that a public road “accepted by a fiscal court into the county road system” after the effective date of Acts 1964, ch. 68 § 1 (June 18, 1964), must have a minimum right-of-way width of 30 feet. OAG 64-148 is hereby overruled to the extent it concludes that “subsection (2) of 178.040 applies to new locations and to new roads and not to existing roads taken over by the county officials . . . . . ” OAG 91-114 .

178.050. Notice and advertisement of establishment, alteration or discontinuance, and of letting of contracts.

  1. No county road shall be established or discontinued, or the location thereof changed unless due notice thereof has been given according to the provisions of this chapter.
  2. Notices and advertisements for the establishment, alteration or discontinuance of any county road, bridge or landing, and all notices and advertisements for the letting of contracts for construction or maintenance of county roads and bridges under the provisions of this chapter shall be published pursuant to KRS Chapter 424 by the county road engineer.

History. 4298, 4304: amend. Acts 1966, ch. 239, § 153.

NOTES TO DECISIONS

  1. Application.
  2. Notice.
  3. — Contents.
  4. — Publication.
  5. — Posting.
  6. Advertisement for Bids.
1. Application.

This section, KRS 178.080 , 178.090 and 178.110 provide a method of opening or changing a public road where landowners affected do not consent to the change, while KRS 178.060 provides a quick way of changing location of road with consent of landowners affected. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Jones v. Rudd, 263 Ky. 552 , 92 S.W.2d 814, 1936 Ky. LEXIS 215 ( Ky. 1936 ).

This section applies only to county roads, and had no application where state highway department in changing course of state highway, established a new right of way and destroyed the old road, thus county was not liable for damages to property owner whose land abutted on old right of way. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

This section relates solely to the establishment, alteration or discontinuance of county roads and has no application to highways under the control of the state department of highways. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

In suit to determine boundary line between two tracts where county road which had not been used for over 30 years constituted boundary, the circuit court had jurisdiction to determine the location of the road and this section did not apply since no attempt was being made to close, change or construct a county road but was in the nature of a suit to quiet title. Vanhoose v. Williams, 396 S.W.2d 784, 1965 Ky. LEXIS 125 ( Ky. 1965 ).

Judgment on the pleadings was properly granted in favor of a county in a city’s action for reimbursement for repairs made to a county road within the city’s annexed territory because once the city annexed the county road, it was the responsibility of the city to maintain that road and the county was relieved of maintenance responsibilities for the road; further, the statutory provisions regarding the discontinuance of a road did not apply because only the legal character of the road had changed. City of Pioneer Vill. v. Bullitt County, 104 S.W.3d 757, 2003 Ky. LEXIS 31 ( Ky. 2003 ).

2. Notice.

The public notice required by statute for establishment, discontinuance or alteration of road is jurisdictional, and until notice is given the court is without power to proceed. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Stephens v. Hubbard, 234 Ky. 115 , 27 S.W.2d 665, 1930 Ky. LEXIS 122 ( Ky. 1930 ).

Failure to advertise slight alteration to be made in bridge approach was not material, as this section is not exclusive and road may be altered under KRS 178.060 , as seems to have been case here despite lack of prescribed advertising. Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ).

County court may, upon petition, permit gates to be placed across public roads, but petition must be first advertised according to statute. Mack v. Leavell, 243 Ky. 275 , 47 S.W.2d 1067, 1932 Ky. LEXIS 77 ( Ky. 1932 ).

County roads can be discontinued only by the statutory method. Maggard v. Breeding, 290 Ky. 701 , 162 S.W.2d 523, 1942 Ky. LEXIS 474 ( Ky. 1942 ).

Notice provisions in this section were inapplicable to proceeding taken by fiscal court under KRS 178.115 . Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

3. — Contents.

Notice is sufficient if it gives general location of proposed road, and shows its course with relation to lands affected and its terminal points. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

When a new road is to be opened or an old road discontinued the notice must, lest it be fatally defective, expressly describe the road. Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

4. — Publication.

The provision for publication of notice is for a publication once in each week for the two weeks preceding the time of application. Stewart v. Colley, 200 Ky. 804 , 255 S.W. 701, 1923 Ky. LEXIS 192 ( Ky. 1923 ) (decision prior to 1966 amendment).

Where there was a newspaper of general circulation in county and required notice was never published, order of county court abandoning road was void and did not affect its status as a public road. Stephens v. Hubbard, 234 Ky. 115 , 27 S.W.2d 665, 1930 Ky. LEXIS 122 ( Ky. 1930 ).

5. — Posting.

Mere allegation that notices were not properly posted is not sufficient; the facts must be stated. Mack v. Leavell, 243 Ky. 275 , 47 S.W.2d 1067, 1932 Ky. LEXIS 77 ( Ky. 1932 ) (decision prior to 1966 amendment).

6. Advertisement for Bids.

Where fiscal court entered into a lease-purchase agreement for road machinery and county exercised the option to purchase and used the machinery on public roads, advertisement for bids was not required since KRS 179.180 allows lease of machinery by a fiscal court without the requirement of a bid. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Cited:

Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ); Compton v. Moore, 298 Ky. 763 , 184 S.W.2d 83, 1944 Ky. LEXIS 993 ( Ky. 1944 ).

DECISIONS UNDER PRIOR LAW

1. Notice.

Analysis

2. — Jurisdictional.

3. — Contents.

4. — Publication.

2. — Jurisdictional.

The public notice required by statute for establishment, discontinuance or alteration of road was jurisdictional, and until notice was given the court was without power to proceed. Chenault v. Collins, 155 Ky. 312 , 159 S.W. 834, 1913 Ky. LEXIS 257 ( Ky. 1913 ).

Where there was to be merely a widening of existing road, it was not such a change of road as to require notice to be given in order to give court jurisdiction. Keeton v. Alexander, 156 Ky. 78 , 160 S.W. 761, 1913 Ky. LEXIS 374 ( Ky. 1913 ).

3. — Contents.

When a new road was to be opened or an old road discontinued, the notice was required to expressly describe the road or it was fatally defective. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

4. — Publication.

Where there was a newspaper of general circulation in county and required notice was never published, order of county court abandoning road was void and did not affect its status as a public road. Chenault v. Collins, 155 Ky. 312 , 159 S.W. 834, 1913 Ky. LEXIS 257 ( Ky. 1913 ).

Opinions of Attorney General.

In a county that has no road engineer or road supervisor, the attempted closing of a county road with the aid of only a county road foreman would not be substantial compliance with the pertinent statutes. OAG 66-366 .

While a fiscal court may order the discontinuance of a county road, notice is required to be given. OAG 71-245 .

Where a dead-end county road was closed by the fiscal court on a landowner’s misrepresentation that he was the sole owner of the adjoining land, another adjoining landowner or the county attorney could not appeal the decision four years later even if the fiscal court did not give proper notice of the intent to close the road. OAG 71-339 .

Where a road was closed without notice to an adjoining landowner because the fiscal court failed to give the proper notice, the county attorney was not required to take any affirmative action because there was no general public interest involved. OAG 71-339 .

The placing of gates, with locks and keys, on each end of a public lane which connects two county roads cannot be done without formally closing the lane to the public, as prescribed by this chapter, and removing it from the county road system. OAG 80-224 .

Where the principal use of a road, which was partially washed out when the Kentucky River flooded, was for private access to private property, rather than for a public purpose, the road should be discontinued as a county road. Since such discontinuance will effectively deny one landowner reasonable vehicular ingress and egress from his property to the public highway system, the county would presumably be liable for the depreciation in value of the property of the one landowner so affected. OAG 93-10 .

Costs of advertising an ordinance for adoption of a road as a county road, and the cost of preparing a deed in connection with conveying a right-of-way to the county, cannot be properly viewed as costs for “construction, reconstruction and maintenance” as used in subsection (2) of KRS 177.320 , and therefore such costs cannot be paid for from county road aid funds. OAG 93-64 .

Research References and Practice Aids

Cross-References.

County attorney to oppose wrongful opening, alteration or discontinuance of public road, KRS 69.230 .

General assembly not to pass local or special acts concerning opening, altering, maintaining or vacating roads, Const., § 59(16).

See note to KRS 178.070 under heading 1. Application, Peers v. Cox, 356 S.W.2d 768, 1961 Ky. LEXIS 24 (Ky. Ct. App. 1961).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Hearing on Closing of a Road, Form 356.01.

178.060. Changes in location of county road.

  1. The county road engineer may change the location of any county road in his county with the written consent of the owner of the land on which a change is to be made, setting forth the exact changes proposed. The proposed change and the owner’s consent shall be entered in the form of an agreed order of the fiscal court and subject to the approval of the county judge/executive.
  2. The change shall not materially increase the length or grade or require more work to keep the road in repair, or place the road on worse ground than it was before the change, or render the road in any respects worse than it was before the change.
  3. If the county road engineer makes a change in violation of the provisions of this section, the part of the road thus altered shall not be established as a county road, and the former location shall be continued as such.

History. 4299: amend. Acts 1976 (1st Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 305, effective June 17, 1978.

NOTES TO DECISIONS

  1. Application.
  2. Advertisement and Notice.
  3. Change Without Consent.
1. Application.

This section provides a quick way of changing location of road with consent of landowners affected, while KRS 178.050 , 178.090 and 178.110 provide a method of opening or changing a public road where landowners affected do not consent to the change. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Jones v. Rudd, 263 Ky. 552 , 92 S.W.2d 814, 1936 Ky. LEXIS 215 ( Ky. 1936 ).

2. Advertisement and Notice.

Where change of location is with written consent of owner of land, advertisement and notice are not required. Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ). See Jones v. Rudd, 263 Ky. 552 , 92 S.W.2d 814, 1936 Ky. LEXIS 215 ( Ky. 1936 ).

3. Change Without Consent.

This section did not protect a railroad from liability for injury to adjacent property by obstruction of highway, where railroad secured ex parte order from county court for change in location of road but did not have consent of landowners. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

DECISIONS UNDER PRIOR LAW

1. Application.

This section was inapplicable to a proceeding for a change of location involving discontinuing a road lying between the lands of different property owners. Chenault v. Collins, 155 Ky. 312 , 159 S.W. 834, 1913 Ky. LEXIS 257 ( Ky. 1913 ).

Opinions of Attorney General.

A fiscal court, as well as the county court, may authorize a change in location of a county road with the written consent of the landowner. OAG 71-245 .

178.070. Discontinuance of county roads.

The fiscal court may direct any county road to be discontinued. Notice must be published, according to the provisions of KRS 178.050 , and in addition, notices must be placed at three (3) prominent and visible public places within one (1) mile of the road. After posting the notices, the fiscal court shall appoint two (2) viewers who have no vested interest in the discontinuance of the road and who, together with the county road engineer, shall view the road and report in writing at the hearing what inconvenience would result from the discontinuance. Upon presentation of the report and other evidences, if any, at a public meeting of the fiscal court, the court may discontinue the road.

History. 4300: amend. Acts 1964, ch. 68, § 2; 2004, ch. 61, § 4, effective July 13, 2004.

NOTES TO DECISIONS

  1. Application.
  2. Closing of County Road.
  3. Inconvenience.
  4. Mandatory Procedure.
  5. Description.
  6. Closing Railroad Grade Crossing.
  7. Closing Post Road.
  8. Damages.
  9. Obstruction of Highway.
  10. Evidence.
  11. Rights of Abutting Owners.
  12. Injunction to Prevent Closing.
  13. Reversion to Adjacent Landowners.
  14. Appeal.
  15. Road Within Military Base.
1. Application.

This section applies only to county roads, and has no application where department of highways in changing course of state highway, established a new right of way and destroyed the old road, thus, county was not liable for damages to property owner whose land abutted on old right of way. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

This section relates solely to the discontinuance of county roads and has no application to highways under the control of the state department of highways. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

Judgment on the pleadings was properly granted in favor of a county in a city’s action for reimbursement for repairs made to a county road within the city’s annexed territory because once the city annexed the county road, it was the responsibility of the city to maintain that road and the county was relieved of maintenance responsibilities for the road; further, the statutory provisions regarding the discontinuance of a road did not apply because only the legal character of the road had changed. City of Pioneer Vill. v. Bullitt County, 104 S.W.3d 757, 2003 Ky. LEXIS 31 ( Ky. 2003 ).

Where public road was taken over by the Commonwealth and the complete control of it was vested in the department of highways this section did not apply and the department could thereupon abandon the old roadway without formal action and their intention to do so was evidenced by the relocation of the new highway. Williams v. Woodward, 240 S.W.2d 94, 1951 Ky. LEXIS 956 ( Ky. 1951 ).

This section does not give the county court authority to close a portion of a county road to the center line of the road but contemplates that the entire roadway be discontinued from a beginning to a terminal point. Peers v. Cox, 356 S.W.2d 768, 1961 Ky. LEXIS 24 ( Ky. 1961 ).

Plain language of KRS 178.070 , KRS 178.115 , and KRS 178.116 clearly limit their application to “county roads.” Thus, where a gate was erected across a portion of a road that was located within the city limits and was erected across a city street, KRS 178.070 , KRS 178.115 , and KRS 178.116 were inapplicable and the city did not need to obtain fiscal court approval for its closure of a portion of the city street under these statutes. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584, 2004 Ky. App. LEXIS 169 (Ky. Ct. App. 2004).

2. Closing of County Road.

When the Department of Highways has determined that a county road intersecting a turnpike should be closed, and it proceeds under KRS 178.070 to 178.100 to obtain a formal order closing the road, the question of whether or not the road should be closed is not to be litigated since KRS 177.430(3) means that the department shall follow the regular procedure for closing a county road but that as concerns the right to close, the procedure is a mere formality. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

Summary judgment holding that a fiscal court properly discontinued maintenance of a county road pursuant to KRS 178.070 was not appealed, and no petition satisfying the requirements of KRS 178.116(4) was ever filed, therefore, the county road had to remain an open, public road, and a property owner was properly enjoined from erecting a locked gate blocking the road. Bailey v. Pres. Rural Rds. of Madison County, 394 S.W.3d 350, 2011 Ky. LEXIS 175 ( Ky. 2011 ).

3. Inconvenience.

Under KRS 178.070 to 178.100 inconvenience is the determining factor in the closing of a county road. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

4. Mandatory Procedure.

A private agreement between individuals could not alter a public road, nor discontinue a portion of that road. Rockcastle County v. Norton, 189 Ky. 690 , 225 S.W. 1079, 1920 Ky. LEXIS 499 ( Ky. 1920 ).

“Once a public road, always a public road,” until lawfully discontinued. Mills v. Dawson, 197 Ky. 518 , 247 S.W. 764, 1923 Ky. LEXIS 693 ( Ky. 1923 ). See Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ); Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

Where there has been a substantial deviation in road, abutting property owners have right to use old road for access to their premises, and the old portion can be closed only when it becomes necessary and the closing must be done in accordance with provisions of statute. Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ).

An abandonment of a county road can be effected only in the manner provided by statute. Hensley v. Lewis, 278 Ky. 510 , 128 S.W.2d 917, 1939 Ky. LEXIS 442 ( Ky. 1939 ), overruled in part, Smith v. Hughes, 292 Ky. 723 , 167 S.W.2d 847, 1942 Ky. LEXIS 151 ( Ky. 1942 ).

The only way that a county road may be abandoned or discontinued is in the manner prescribed by this section. Freeman v. Dugger, 286 S.W.2d 894, 1956 Ky. LEXIS 427 ( Ky. 1956 ).

5. Description.

When an old road is to be discontinued the notice, petition, and commissioners’ report must, lest they be fatally defective, expressly describe the road. Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

6. Closing Railroad Grade Crossing.

Where Department of Highways changed location of state highway and abandoned old road which crossed a railroad at grade near the point where the new road began its changed course, the county could not close the grade crossing without following the procedure set forth in KRS 178.080 and 178.090 . McCreary County Fiscal Court v. Roberts, 292 Ky. 527 , 166 S.W.2d 977, 1942 Ky. LEXIS 112 ( Ky. 1942 ).

7. Closing Post Road.

In landowner’s action to close old road connecting with newly constructed road, the fact that the old road was a post road did not require its closing to be deferred until second new road was established, where it was shown that the mail had been carried over first new road which had been built before old road was discontinued. Frye v. Johnson, 303 Ky. 744 , 199 S.W.2d 456, 1947 Ky. LEXIS 558 ( Ky. 1947 ).

8. Damages.

A commissioners’ report assessing damages for the appropriation of land as a highway over a road that was already in existence is conclusive that there was no abandonment of that road at the time condemnation proceedings were begun. Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

9. Obstruction of Highway.

The unreasonable obstruction of a highway is a taking of private property within meaning of Const., §§ 13 and 242, and forbidden except when necessary for a public use and allowed then only upon rendering of just compensation. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Railroad is liable to adjacent property owners for obstruction of highway. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

10. Evidence.

Where county, in 1892 or prior thereto, closed part of road and abandoned the rest, opening a new road to serve the same public, there was a sufficient closing of the road so that a judgment in a suit between adjoining landowners, permitting one to erect a gate across the road, was valid and binding on their successors in title, although county was not party to suit. Tudor v. Shannon, 294 Ky. 380 , 171 S.W.2d 423, 1943 Ky. LEXIS 426 ( Ky. 1943 ).

Judgment to close county road founded upon the private opinion and personal knowledge of the trial judge was erroneous since the propriety of a judgment in equity is dependent upon the evidence heard and not what the court may have learned or known outside the record. Stephenson v. Burton, 246 S.W.2d 999, 1951 Ky. LEXIS 1281 ( Ky. 1951 ).

11. Rights of Abutting Owners.

A county road may not be closed if property owner is thereby deprived of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122 , 200 S.W.2d 117, 1947 Ky. LEXIS 594 ( Ky. 1947 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Abandonment of county road would require the taking of the proper statutory steps and abutting property owner would still retain a private easement over the roadbed to the extent that it was required to allow him a reasonable means of ingress and egress. Hylton v. Belcher, 290 S.W.2d 475, 1956 Ky. LEXIS 321 ( Ky. 1956 ).

Abutting land owner on county road has right of reasonably convenient ingress and egress and may prevent the closing of a county road which deprives him of his sole or principal means of ingress or egress but he has no property rights in the continued maintenance of county roads. Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Where no public need is shown and adjacent property owners have reasonable means of ingress and egress a showing of individual inconvenience is insufficient to keep a road open and a refusal to close the road is arbitrary. Walker v. Lyon County Fiscal Court, 425 S.W.2d 730, 1968 Ky. LEXIS 429 ( Ky. 1968 ).

12. Injunction to Prevent Closing.

Abutting property owners on portion of old road sought to be closed may seek to prevent closing by injunction. Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ).

13. Reversion to Adjacent Landowners.

Where a highway which has been surrendered or dedicated for the public use is abandoned, the entire title in the roadbed reverts to the adjacent landowners. Henry v. Board of Trustees, 207 Ky. 846 , 270 S.W. 476, 1925 Ky. LEXIS 198 ( Ky. 1925 ). See Brown v. Roberts, 246 Ky. 316 , 55 S.W.2d 9, 1932 Ky. LEXIS 759 ( Ky. 1932 ).

14. Appeal.

An appeal from a judgment refusing to close a road may be taken from the fiscal court to the circuit court by virtue of KRS 23.030 . Walker v. Lyon County Fiscal Court, 425 S.W.2d 730, 1968 Ky. LEXIS 429 ( Ky. 1968 ).

15. Road Within Military Base.

Where the Army blocked public travel over the portion of a road within a military reservation but continued to use the road for ingress and egress, the road was not legally closed pursuant to this section. Whilden v. Compton, 555 S.W.2d 272, 1977 Ky. App. LEXIS 786 (Ky. Ct. App. 1977).

Cited:

Peers v. Cox, 356 S.W.2d 768, 1961 Ky. LEXIS 24 ( Ky. 1961 ).

DECISIONS UNDER PRIOR LAW

1. Description.

When it was necessary to open a new road or discontinue a road, the notice, petition, report of the commissioners and court orders must have expressly described or designated the road to be opened or discontinued. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

2. Turnpikes.

Former turnpikes which had become public roads under statute stood precisely as any other county roads, and county court had same power to discontinue them. Chenault v. Collins, 155 Ky. 312 , 159 S.W. 834, 1913 Ky. LEXIS 257 ( Ky. 1913 ).

3. Reversion to Adjacent Landowners.

Where a highway which had been surrendered or dedicated for the public use was abandoned, the entire title in the roadbed reverted to the adjacent landowners. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ). See Williams v. Johnson, 149 Ky. 409 , 149 S.W. 821, 1912 Ky. LEXIS 621 ( Ky. 1912 ).

4. Abutting Owners.

A citizen has no right of property in a public road adjacent to his land, and, in absence of statutory provision, is not entitled to damages on account of discontinuance of a county road. Chenault v. Collins, 155 Ky. 312 , 159 S.W. 834, 1913 Ky. LEXIS 257 ( Ky. 1913 ).

5. Abolishment.

County road cannot be abolished merely by oral consent of county judge. Big S. R. Co. v. Floyd County, 125 Ky. 345 , 101 S.W. 354, 31 Ky. L. Rptr. 17 , 1907 Ky. LEXIS 290 ( Ky. 1907 ).

Opinions of Attorney General.

Where one person objected to a road closing but the closing was not wrongful within the meaning of KRS 69.230 , the person aggrieved could appeal the closing but the county attorney would not be obligated to do so. OAG 62-778 .

In a county that has no road engineer or road supervisor, the attempted closing of a county road with the aid of only a county road foreman would not be substantial compliance with the pertinent statutes. OAG 66-366 .

Where a county relinquished roads on a military reservation to the federal government and the government eventually sold off the reservation as surplus land, after which the new owners fenced in the former roads, the roads were abandoned even though the statutory process was not followed. OAG 71-501 .

Although a city alderman holds a municipal office he is not precluded by KRS 61.080 from being appointed for compensation as a county road viewer under this section since in this capacity he neither fills a county office nor a public office. OAG 73-555 .

This section does not apply to roads crossing national forest land which have been used for years by the public and for which easements were reserved in the deeds of the land to the United States. OAG 74-733 .

A county road cannot be legally discontinued unless the provisions relating to the posting of notices, the appointment of viewers to view the road segment involved and the making of a report to the fiscal court are followed. OAG 76-297 .

The General Assembly did not intend to impose KRS 178.116 upon the authority of a fiscal court to close a county road under this section; however, where a county has taken no formal action to discontinue a county road under this section, KRS 178.116 would then apply, provided the terms of the latter statute are met. OAG 84-358 .

This section has no bearing on the discontinuing of a road by operation of law under KRS 178.116 , except that under KRS 178.116 (4), where a county road has been discontinued under this section, then by a joint petition of all private parties entitled to necessary access, the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties affected, or by a joint petition of all parties entitled to necessary access, the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged. OAG 84-358 .

Where the principal use of a road, which was partially washed out when the Kentucky River flooded, was for private access to private property, rather than for a public purpose, the road should be discontinued as a county road. Since such discontinuance will effectively deny one landowner reasonable vehicular ingress and egress from his property to the public highway system, the county would presumably be liable for the depreciation in value of the property of the one landowner so affected. OAG 93-10 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Hearing on Closing of a Road, Form 356.01.

178.080. Establishment and alteration of public roads, bridges and landings, upon petition.

  1. When any person desires the establishment or alteration of a public road, bridge or landing, he shall petition the fiscal court setting forth in his petition specifically the nature and location of the proposed work. The court shall thereupon appoint two (2) viewers who, together with the county road engineer, shall view the ground and report in writing the advantages and disadvantages which, in their opinion, will result to the individual and to the public from the proposed work and the grades and bearings of the proposed road, and other facts and circumstances that may enable the fiscal court to determine whether the work ought to be undertaken by the county.
  2. If the petition is for the establishment or alteration of a public road leading from a main public road, the report shall set out whether such road should be established, stating specifically whether it would be necessary to take any burying ground, garden, yard, orchard, or any part thereof, or to injure or destroy any buildings and the probable cost of the work, the names of the landowners whose property would have to be taken or injured, which of them would require compensation and the probable amount to which each would be entitled. They shall make careful examination of routes or locations other than that proposed or petitioned for, keeping in view the possible future development of the county and the accommodations of the general traveling public, and shall report to the fiscal court at a public meeting in favor of the one they prefer, giving reasons for the preference. A map giving the grades and bearings of the routes or locations shall be returned with the report.
  3. If it appears to the fiscal court that the interests of the general public may be furthered thereby, the fiscal court shall personally examine the proposed work. If the court decides to undertake the proposed work the county judge/executive shall appoint a day for hearing the parties interested, and cause notices thereof to be given to all interested parties.
  4. If the county judge/executive at any time has sufficient evidence before him to enable him to ascertain what would be a just compensation to the proprietors and tenants, and if the proprietors and tenants are willing to accept what the county judge/executive deems just, the county judge/executive, upon such acceptance being reduced to writing and signed by the proprietors and tenants, may determine to undertake the work, subject to the consent and approval of the fiscal court.

History. 4301: amend. Acts 1976 (1st Ex. Sess.), ch. 14, § 167, effective January 2, 1978; 1978, ch. 384, § 306, effective June 17, 1978; 2004, ch. 61, § 5, effective July 13, 2004.

Compiler’s Notes.

The fiscal court has to accept county roads under KRS 178.010 .

NOTES TO DECISIONS

  1. Construction.
  2. Application.
  3. Description.
  4. Report of Viewers.
  5. Order of County Court.
  6. Establishment.
  7. — Procedure.
  8. — Jurisdiction.
  9. — Injunction.
  10. Compensation.
1. Construction.

This section and KRS 178.050 , 178.090 and 178.110 , provide a method of opening or changing a public road where landowners affected do not consent to the change, while KRS 178.060 provides a quick way of changing location of road with consent of landowners affected. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Jones v. Rudd, 263 Ky. 552 , 92 S.W.2d 814, 1936 Ky. LEXIS 215 ( Ky. 1936 ).

2. Application.

Fiscal court may establish a county road under the provisions of KRS 178.115 , and when the provisions of that section are followed this section has no application. Smallwood v. Hardin County, 299 Ky. 53 , 184 S.W.2d 230, 1944 Ky. LEXIS 1022 ( Ky. 1944 ).

This section applies only to county roads, and had no application where state Department of Highways, in changing course of state highway, established a new right-of-way and destroyed the old road, thus county was not liable for damages to property owner whose land abutted on old right of way. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

This section applies only to the establishment and alteration of county roads and has no application to highways under the control of the state department of highways. Dixon v. Giles, 304 Ky. 354 , 200 S.W.2d 919, 1947 Ky. LEXIS 649 ( Ky. 1947 ).

3. Description.

When a new road is to be opened the notice, petition, and commissioners’ report must, lest they be fatally defective, expressly describe the road. Bevins v. Pauley, 257 Ky. 54 , 77 S.W.2d 408, 1934 Ky. LEXIS 527 ( Ky. 1934 ).

4. Report of Viewers.

Road viewers may amend their report. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

Report of viewers describing with considerable particularity the proposed road as well as the portions of the old road that were to be abandoned stating that it would be of great advantage to the public and would be of a disadvantage to no one and giving other particulars was sufficient. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Vaughan v. Heistand, 190 Ky. 365 , 227 S.W. 474, 1921 Ky. LEXIS 445 ( Ky. 1921 ); Stewart v. Colley, 200 Ky. 804 , 255 S.W. 701, 1923 Ky. LEXIS 192 ( Ky. 1923 ).

The requirement that viewers report whether road will run through any burying ground, garden, yard, orchard, or any part thereof, is to aid in proper estimate of damages. Allen v. Cecil, 229 Ky. 713 , 17 S.W.2d 1010, 1929 Ky. LEXIS 831 ( Ky. 1929 ).

The statutes do not now prohibit the opening of a road through an orchard, yard, lawn or garden. Allen v. Cecil, 229 Ky. 713 , 17 S.W.2d 1010, 1929 Ky. LEXIS 831 ( Ky. 1929 ).

5. Order of County Court.

As order of county court on report of viewers was not final, circuit court correctly dismissed appeal therefrom. O'Daneil v. Arnold, 177 Ky. 150 , 197 S.W. 517, 1917 Ky. LEXIS 540 ( Ky. 1917 ).

Order or judgment of county court approving report of viewers and directing alteration of road was a tentative or interlocutory order and not a final judgment of that court on matters involved, since landowner could refuse to accept damages awarded by viewers and require appointment of commissioners to reassess damages. O'Daneil v. Arnold, 177 Ky. 150 , 197 S.W. 517, 1917 Ky. LEXIS 540 ( Ky. 1917 ).

Order of fiscal court providing for taking of 60-foot strip was not an approval of earlier county court order for 40-foot strip, and did not bind county to build fencing. Livingston County v. Dunn, 203 Ky. 809 , 263 S.W. 344, 1924 Ky. LEXIS 1011 ( Ky. 1924 ).

Ex parte order did not affect right of landowners to recover for damages from wrongful obstruction of road. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Ex parte order of county court for change of road was not judgment rendered in accord with this section and did not affect one not a party to it. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Order of county court altering or establishing a road before process has been issued against landowners along road is void. Jones v. Avondale Heights Co., 243 Ky. 135 , 47 S.W.2d 949, 1932 Ky. LEXIS 39 ( Ky. 1932 ).

Order of county court was only effective from time made. Mack v. Leavell, 243 Ky. 275 , 47 S.W.2d 1067, 1932 Ky. LEXIS 77 ( Ky. 1932 ).

Where proposal was to change the location of road by closing a portion of it when a new road was opened to serve the people and the land east of it and formerly served by it, the judgment to close was conditioned upon the opening of the new road and the placing of obstructions in the old road prior to the opening of the new road was unauthorized. Hays v. Madison County, 274 Ky. 116 , 118 S.W.2d 197, 1938 Ky. LEXIS 239 ( Ky. 1938 ).

6. Establishment.

A private agreement between individuals could not alter a public road, nor discontinue a portion of that road. Rockcastle County v. Norton, 189 Ky. 690 , 225 S.W. 1079, 1920 Ky. LEXIS 499 ( Ky. 1920 ).

Resolution of state highway commission, wherein it attempted to direct county to establish and provide for county road, was void. Johnson v. Clark County, 258 Ky. 563 , 80 S.W.2d 571, 1935 Ky. LEXIS 197 ( Ky. 1935 ).

The “establishment” of a street constitutes a designation of it, and must necessarily take place prior to acquisition of the property involved. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

7. — Procedure.

Where state Department of Highways changed location of state highway and abandoned old road which crossed a railroad at grade near the point where the new road began its changed course, the county could not close the grade crossing without following the procedure set forth in this section and 178.090 . McCreary County Fiscal Court v. Roberts, 292 Ky. 527 , 166 S.W.2d 977, 1942 Ky. LEXIS 112 ( Ky. 1942 ).

The regular procedure for closing a county road shall be followed by Department of Highways in closing under KRS 177.270 , 177.430 and 177.440 public roads that cross a turnpike or grade but the procedure is a mere formality and authority as to whether or not the road is to be closed shall be decided solely by the Department of Highways. Ex parte Commonwealth, Dep't of Highways, 291 S.W.2d 814, 1956 Ky. LEXIS 399 ( Ky. 1956 ).

8. — Jurisdiction.

The county court had no jurisdiction to establish road until landowners had been summoned and given opportunity to show cause against establishment. Potter v. Matney, 165 Ky. 266 , 176 S.W. 987, 1915 Ky. LEXIS 497 ( Ky. 1915 ).

Authority to establish county public roads is vested in the county court. Noe v. Kirtland, 195 Ky. 542 , 242 S.W. 838, 1922 Ky. LEXIS 347 ( Ky. 1922 ). See Roberts v. Taylor, 226 Ky. 640 , 11 S.W.2d 710, 1928 Ky. LEXIS 152 ( Ky. 1928 ); Johnson v. Clark County, 258 Ky. 563 , 80 S.W.2d 571, 1935 Ky. LEXIS 197 ( Ky. 1935 ).

The power to determine necessity for change in county road was lodged in county court and is not to be determined by a jury. Stewart v. Colley, 200 Ky. 804 , 255 S.W. 701, 1923 Ky. LEXIS 192 ( Ky. 1923 ).

When establishing a road the county court is a court of limited jurisdiction, and jurisdictional facts must affirmatively appear. Jones v. Avondale Heights Co., 243 Ky. 135 , 47 S.W.2d 949, 1932 Ky. LEXIS 39 ( Ky. 1932 ).

9. — Injunction.

Petition for injunction against county court to restrain it from proceeding pursuant to this statute to establish county road should be denied because petitioners had an adequate remedy at law to protest establishment of road. McCowan v. Bond, 249 S.W.2d 536, 1952 Ky. LEXIS 824 ( Ky. 1952 ).

10. Compensation.

Compensation for land taken for roadway must be paid or tendered before road is opened or owner deprived of possession. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

Where property is condemned for highway purposes, the owner may show that it is specially adapted for certain uses, if such adaptability adds to the value of the property, but he may not show what use he intended or planned to make of the property. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

Cited:

Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ); Kemper v. Cooke, 576 S.W.2d 263, 1979 Ky. App. LEXIS 364 (Ky. Ct. App. 1979); Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

DECISIONS UNDER PRIOR LAW

1. Establishment.

Where, in establishment of road, landowner reserved right to erect and maintain gates across road at time he gave right of way, gates could not be removed. Allen v. Hopson, 119 Ky. 215 , 83 S.W. 575, 26 Ky. L. Rptr. 1148 , 1904 Ky. LEXIS 161 ( Ky. 1904 ).

Location of county road could not be changed merely by oral consent of county judge. Big S. R. Co. v. Floyd County, 125 Ky. 345 , 101 S.W. 354, 31 Ky. L. Rptr. 17 , 1907 Ky. LEXIS 290 ( Ky. 1907 ).

Authority to establish county public roads was vested in the county court. Rowe v. Alexander, 156 Ky. 507 , 161 S.W. 508, 1913 Ky. LEXIS 460 ( Ky. 1913 ).

2. Description.

When a new road was to be opened the notice, petition, and commissioners’ report were required to expressly describe the road lest they be fatally defective. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

3. Abandonment.

Abandonment of old road invested owner of land with right of possession, which he had surrendered for the public use. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

4. Report of Viewers.

Road commissioners could amend their report. Chamberlaine v. Hignite, 97 S.W. 396, 30 Ky. L. Rptr. 85 (1906). See Story v. Little, 135 Ky. 115 , 121 S.W. 1023, 1909 Ky. LEXIS 272 ( Ky. 1909 ).

While the commissioners could have reported in favor of opening proposed road on other routes than that indicated in petition, they could not have reported on advisability of opening a road in a locality entirely different from that described in petition or one that would not have followed general course of proposed road. Soaper v. Kimsey, 144 Ky. 32 , 137 S.W. 797, 1911 Ky. LEXIS 548 ( Ky. 1911 ).

5. Notice.

Proceeding to widen road was not such a change of road as to require giving of notice. Keeton v. Alexander, 156 Ky. 78 , 160 S.W. 761, 1913 Ky. LEXIS 374 ( Ky. 1913 ).

6. Parties.

Any person could have appeared, and upon motion have been made a party to the proceeding, and could have resisted the application for the alteration of a public road. Carrick v. Garth, 159 Ky. 505 , 167 S.W. 687, 1914 Ky. LEXIS 829 ( Ky. 1914 ).

7. Order of County Court.

When location of public road was changed by order of county court, the change of location operated to close old road, and no order of court was necessary to close old road. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

Opinions of Attorney General.

Under this section and KRS 178.010 roads crossing national forest land, which have been used for years by the public and for which easements were reserved in the deeds of the land to the United States, should not be maintained by the county until they have been accepted by the fiscal court as a part of the county road system; otherwise the county would be maintaining private roads which it is without authority to do. OAG 74-733 .

The specific language of this section must govern, with the viewers being appointed by the fiscal court, acting as a body, and the general procedure of KRS 67.710 not applying. OAG 79-290 .

The fiscal court, in taking action authorizing the alteration of an existing county road, could legally take such action by enacting, at a properly held meeting of fiscal courts, a resolution. OAG 79-410 .

If a fiscal court votes to establish a road as a county road but the evidence indicates that the proposed road would be of private benefit only, the county attorney could file an injunctive civil suit in circuit court, seeking the enjoining of any action implementing the decision to establish the road. OAG 80-382 .

A county could not legally construct a bridge across a creek for the benefit of one or two property owners and provide that the owner or owners of the property upon which the bridge is built convey the necessary land to the county by a right-of-way deed. OAG 80-587 .

Where county road department agrees to provide maintenance to subdivision streets in return for payments by the residents of the subdivision through the road committee, direct reimbursements are not authorized under KRS 178.010 , KRS 178.115 , this section or KRS 179.470 ; however, the reimbursement of maintenance expenses of subdivision roads through special assessments under KRS 179.470 would be allowed and would accrue to that part of the county road fund allocated for the maintenance of subdivision streets rather than the general road fund; thus, where the fiscal court adopts the road project under KRS 179.470 before the fiscal court finally adopts the budget, the cost of the road project can be set up under a special road account and where the road project is approved by the fiscal court after the budget is approved, the budget would have to be amended under KRS 68.280 to set up the special road project and unanticipated revenue by way of special assessments. OAG 81-19 .

As to the fiscal court’s determining whether the establishment of a county road or bridge will be in the county’s interest or the general public’s interest, the fiscal court may properly consider: (1) the number of people or families living in the immediate area; (2) the availability of proper funding under KRS Ch. 68; (3) the potential traffic count in the area; (4) the public convenience in terms of social and economic perspective; (5) the potential benefit of the project to the public in general; and (6) the question of whether the project is essentially public in nature; it must be seen that a particular road or bridge could involve the public good or interest, although the enjoyment and advantages derived from their maintenance is not distributed equally, even between members of the public who are situated alike or are in the same class. OAG 82-180 .

The establishment of a county road to a community of two or more homes is left to the sound judgment of the fiscal court in determining whether the road or bridge will serve the general public interest, and thus justify the expenditure of county tax money; the courts may reverse such decision for road establishment where it appears that the fiscal court acted arbitrarily in considering the general public interest. OAG 82-180 .

The fiscal court has no authority to construct a bridge or bridges linking a county to a private drive and the same principle applies to the repair of such bridges that are not a part of a “public road,” which public road is a part of the county road system; likewise, the mere beginning of such “private bridges” in no way obligates the fiscal court to finish the projects, since to do so would be strictly illegal. OAG 82-180 .

Under the broad legislative policy expressed in KRS 178.115 and this section, the acceptance of a road as a part of the county road system is left to the sound discretion of the fiscal court under the specific guidelines set out in those sections. The action of a fiscal court in exercising such discretion could be reviewed, by direct action, in a circuit court as an alleged arbitrary or capricious exercise of the discretion; no appeal could be taken from a fiscal court order to the district court, however, since that court has no appellate jurisdiction. OAG 82-445 .

Under KRS 178.115 and this section, the initial decision as to the construction or altering of any particular county road by the county is not a mandatory function but is left to the sound discretion of the fiscal court, which body can determine whether or not a proposed project is deemed to be in the best interest of the county so as to constitute the necessity for such road; the “necessity for a road” arises in the context of the county’s condemnation proceedings, once the fiscal court determines that such road construction is in the public interest. OAG 83-323 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Establishment of a Road, Form 356.03.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Viewers, Form 356.05.

178.090. Conditions may be imposed upon petitioner.

Where the petition is for the establishment or alteration of a public road leading from the main public road, the court may refuse to undertake the proposed work or abandon it after having undertaken it, unless the petitioner, or someone for him, deposits with the fiscal court a sum sufficient to pay all damage and cost sustained by reason of the establishment or alteration of the road. In such case the court may, if it thinks proper, establish the road upon condition that the petitioner shall pay all costs and damages, and make and keep the road in repair, and the court may also impose upon the petitioner, his heirs and assigns, and upon the public, such other conditions in reference to the road as the court finds just.

History. 4302: amend. Acts 1978, ch. 384, § 307, effective June 17, 1978.

NOTES TO DECISIONS

1. Passways.

County court has power to open and close county roads but it has no power to compel opening of a private passway in an ex parte proceeding to declare a passway to be a public road. Bond v. Neeley, 300 S.W.2d 250, 1957 Ky. LEXIS 452 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

See notes to KRS 178.080 under heading 7. — Procedure, McCreary County Fiscal Court v. Roberts, 292 Ky. 527 , 166 S.W.2d 977, 1942 Ky. LEXIS 112 (1942); Ex parte Commonwealth, 291 S.W.2d 814, 1956 Ky. LEXIS 399 (1956).

178.100. Action to contest decision of fiscal court.

From a decision of the fiscal court ordering a new road to be opened, or ordering an alteration or discontinuance of an existing road, or allowing gates to be erected across a road or abolishing existing gates, or a decision refusing any such order, the party aggrieved may bring an action in the Circuit Court of the county where the road is located to contest the decision of the fiscal court.

History. 4302a-1: amend. Acts 1976 (1st Ex. Sess.), ch. 14, § 168, effective January 2, 1978; 1978, ch. 384, § 308, effective June 17, 1978; 2004, ch. 61, § 6, effective July 13, 2004.

NOTES TO DECISIONS

  1. Application.
  2. Parties.
  3. — Nonresident Landowner.
  4. Procedure.
  5. New Trial.
  6. Injunction.
  7. Time for Filing.
  8. Evidence.
  9. Exceptions.
  10. Questions for Jury.
  11. Court of Appeals.
  12. Common-law Action Under Const., § 242.
1. Application.

An appeal from a judgment refusing to close a road may not be taken from the fiscal court to the Circuit Court by virtue of this section but it may be taken under KRS 23.030 (now repealed). Walker v. Lyon County Fiscal Court, 425 S.W.2d 730, 1968 Ky. LEXIS 429 ( Ky. 1968 ).

KRS 413.040 was the proper procedure for residents to bring an action against the county and county fiscal court alleging that the county had unlawfully incorporated the private drive into the county road system; the fiscal court took no formal action of the kind that was appealable under KRS 178.100 . Whitley v. Robertson County, 396 S.W.3d 890, 2013 Ky. LEXIS 94 ( Ky. 2013 ).

2. Parties.

The county attorney may, on his own motion and without order from county or fiscal court, appeal to Circuit Court from allowance of damages for proposed road by county court. Breckinridge County v. Rhodes, 127 Ky. 444 , 105 S.W. 903, 32 Ky. L. Rptr. 352 , 1907 Ky. LEXIS 147 ( Ky. 1907 ).

Since any person aggrieved, and not merely landowner, may appear to protest alteration of road, such person may have right of appeal from county court to Circuit Court and party demurring for defect of parties is estopped to complain when persons are later made parties. Carrick v. Garth, 159 Ky. 505 , 167 S.W. 687, 1914 Ky. LEXIS 829 ( Ky. 1914 ). See Carrick v. Garth, 166 Ky. 617 , 179 S.W. 609, 1915 Ky. LEXIS 753 ( Ky. 1915 ).

3. — Nonresident Landowner.

A nonresident landowner who is proceeded against by warning order, but who does not appear in action or file exceptions to commissioners’ report, may appeal to Circuit Court from judgment establishing public road through his land. Brown v. Beard, 153 Ky. 563 , 156 S.W. 152, 1913 Ky. LEXIS 899 ( Ky. 1913 ).

4. Procedure.

Where trial in Circuit Court is de novo, petitioners must on appeal to circuit court prove jurisdictional facts put in issue by exceptions filed in the county court and brought by appeal to the Circuit Court. Louisville & N. R. Co. v. Gerard, 130 Ky. 18 , 112 S.W. 915, 1908 Ky. LEXIS 232 ( Ky. 1908 ).

County court had no jurisdiction of a petition for opening highway where it was not shown either by record or evidence that it was signed by the required number of landowners and the petition could not be amended in circuit court where appeal from dismissal was heard de novo. Terrell v. Drake, 145 Ky. 13 , 140 S.W. 53, 1911 Ky. LEXIS 789 ( Ky. 1911 ).

Court of Appeals erred in reversing a circuit court judgment involving whether a road was a private drive or a county road because the owner simply asked the fiscal court to affirm that the road had never officially be taken into the county’s road system, the fiscal court chose not to act upon his request, the county and the fiscal court were the land-owner’s adversaries in the controversy, and there was no reason why the dispute could not be prosecuted as a declaratory judgment proceeding. Whitley v. Robertson County, 406 S.W.3d 11, 2013 Ky. LEXIS 456 ( Ky. 2013 ).

The appropriate standard of review for a Circuit Court to employ when considering the actions of a Fiscal Court regarding the closing of a county road is limited to determining whether the decision not to close the road was arbitrary, including whether there was substantial evidence to support the decision. A trial de novo is expressly prohibited. Trimble Fiscal Court v. Snyder, 866 S.W.2d 124, 1993 Ky. App. LEXIS 154 (Ky. Ct. App. 1993).

5. New Trial.

The county court may grant a new trial in a road case if application therefor is made in due time and, if not, appeal is the only remedy. Broadway Coal Mining Co. v. Smith, 136 Ky. 725 , 125 S.W. 157, 1910 Ky. LEXIS 536 ( Ky. 1910 ), overruled, Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ). See Commonwealth v. Weissinger, 143 Ky. 368 , 136 S.W. 875, 1911 Ky. LEXIS 424 ( Ky. 1911 ).

6. Injunction.

An appeal from judgment in county court to establish a county road was an adequate remedy at law and an injunction should not have been granted. McCowan v. Bond, 249 S.W.2d 536, 1952 Ky. LEXIS 824 ( Ky. 1952 ).

7. Time for Filing.

In computation of time allowed for filing appeal, the day on which the judgment was rendered should be counted. Logan County v. McCarley, 188 Ky. 705 , 223 S.W. 1094, 1920 Ky. LEXIS 343 ( Ky. 1920 ).

8. Evidence.

Refusal of circuit court, in trying de novo a highway condemnation proceeding, to allow landowner to introduce evidence as to the sale price of similar land in the neighborhood, was error. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

9. Exceptions.

Where landowner tendered exceptions in county court after order had been entered affirming commissioners’ report, and his motion to file was overruled, action of Circuit Court on appeal, in denying motion to dismiss appeal on ground that exceptions had not been filed in county court, amounted to a ruling making the exceptions a part of the record. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

10. Questions for Jury.

A jury need only be impaneled to try questions of fact growing out of the necessity for opening the road and the amount of damages awarded. The provision for a trial by jury does not apply to exceptions pointing out errors which are for the court. Louisville & N. R. Co. v. Gerard, 130 Ky. 18 , 112 S.W. 915, 1908 Ky. LEXIS 232 ( Ky. 1908 ).

Landowners who had appealed to the circuit court from county court judgment awarding them compensation for land taken for highway purposes were entitled to have the amount of damages determined by a jury under Const., § 242. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

11. Court of Appeals.

The Court of Appeals has jurisdiction only of questions of law arising on the record. Story v. Little, 135 Ky. 115 , 121 S.W. 1023, 1909 Ky. LEXIS 272 ( Ky. 1909 ).

12. Common-law Action Under Const., § 242.

Where county took property to widen road without consent of landowner and without condemnation or compensation he could not recover for trespass but his sole remedy was institution of suit for value of property under Const., § 242 which when tried in the Circuit Court should be tried under the law governing such appeals and treated as though it had been an appeal from an assessment legally made in condemnation proceeding after trial before a jury of 12 members with an unanimous verdict and with the measure of damages being the same as in condemnation proceedings in the establishment of a public road. Harlan County v. Cole, 218 Ky. 819 , 292 S.W. 501, 1927 Ky. LEXIS 263 ( Ky. 1927 ).

Opinions of Attorney General.

Where one person objected to a road closing but the closing was not wrongful within the meaning of KRS 69.230 , the person aggrieved could appeal the closing but the county attorney would not be obligated to do so. OAG 62-778 .

A street dedicated to public use under KRS 100.277 and this section may be accepted by the fiscal court as a part of the county road system but acceptance by the fiscal court is not mandatory. OAG 76-489 .

If a fiscal court votes to establish a road as a county road but the evidence indicates that the proposed road would be of private benefit only, the county attorney could file an injunctive civil suit in Circuit Court, seeking the enjoining of any action implementing the decision to establish the road. OAG 80-382 .

178.110. Condemnation of right-of-way — Temporary roads.

  1. If the court decides to establish or alter a county road, bridge or landing, and the compensation to be paid for the right-of-way cannot be fixed by agreement, the right-of-way shall be condemned under the procedure set forth in the Eminent Domain Act of Kentucky.
  2. In case of roadbeds or bridges, or a portion of them, washing or slipping away, or in case of extreme emergency, and when in its judgment conditions warrant it, the fiscal court may immediately open and have surveyed a road or passway to be temporarily used while the commissioners appointed under the Eminent Domain Act of Kentucky are acting, or while the matter is pending in the court to establish a permanent road or passway, and the commissioners shall assess the damages of the temporary road or use thereof. The same proceedings shall be had to recover damages as in recovery in regard to other roads.
  3. But when such compensation is ascertained it shall be at the option of the fiscal court to pay it or to abandon the proposed undertaking. If it decides to pay the compensation, the fiscal court of the county shall include in its next levy an amount sufficient therefor.
  4. Not more than two (2) acres shall be condemned for a landing.

History. 4302: amend. Acts 1976, ch. 140, § 78; 1978, ch. 384, § 309, effective June 17, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Application.
  2. Power to Determine Necessity.
  3. Notice.
  4. Payment of Compensation.
  5. Abandonment of Undertaking.
  6. Judgment.
  7. Estoppel.
1. Application.

KRS 178.050 , 178.080 , 178.090 and this section apply to the opening or changing of a public road where landowners affected do not consent to the change, while KRS 178.060 provides a quick way of changing location of road with consent of landowners affected. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ). See Jones v. Rudd, 263 Ky. 552 , 92 S.W.2d 814, 1936 Ky. LEXIS 215 ( Ky. 1936 ).

2. Power to Determine Necessity.

The power to determine necessity for change in county road was lodged in county court by this section and is not to be determined by a jury. Stewart v. Colley, 200 Ky. 804 , 255 S.W. 701, 1923 Ky. LEXIS 192 ( Ky. 1923 ).

3. Notice.

Property owners were not entitled to 20 days’ notice of hearing set by county court at which time the report of the commissioners fixing the value of property was to be considered. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

4. Payment of Compensation.

County court has option, after reassessment of damages by commissioners, to pay damages or abandon proposed alteration. O'Daneil v. Arnold, 177 Ky. 150 , 197 S.W. 517, 1917 Ky. LEXIS 540 ( Ky. 1917 ).

Compensation for land taken for roadway must be paid or tendered before road is opened or owner deprived of possession. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

5. Abandonment of Undertaking.

If county court determines not to undertake alteration of road, its decision is final and no appeal lies. Noe v. Kirtland, 195 Ky. 542 , 242 S.W. 838, 1922 Ky. LEXIS 347 ( Ky. 1922 ).

6. Judgment.

As order of county court on report of viewers was not final, Circuit Court correctly dismissed appeal therefrom. O'Daneil v. Arnold, 177 Ky. 150 , 197 S.W. 517, 1917 Ky. LEXIS 540 ( Ky. 1917 ).

Order or judgment of county court approving report of viewers and directing alteration of road was a tentative or interlocutory order and not a final judgment of that court on matters involved, since landowner could refuse to accept damages awarded by viewers and require appointment of commissioners to reassess damages and county court could abandon the proposed alteration after filing of commissioners’ report. O'Daneil v. Arnold, 177 Ky. 150 , 197 S.W. 517, 1917 Ky. LEXIS 540 ( Ky. 1917 ).

Judgment against county for land taken for road purposes and damaged was not made void by agreement, between county attorney and persons to whom judgment was later assigned, that, if county attorney would withdraw exceptions and allow report of commissioners to be confirmed, the assignees of the judgment would pay a certain part of the damages awarded. However, the facts constituted a valid defense as to that part of the judgment which the assignees had promised to pay. Upchurch v. Clinton County, 282 Ky. 510 , 139 S.W.2d 432, 1940 Ky. LEXIS 219 ( Ky. 1940 ).

7. Estoppel.

Filling station owner was estopped by his deed to highway department in which it was recited that the conveyance was of a right of way and easement for construction of highway in accordance with plans and specifications on file in the office of the department from claiming damages to his remaining property by reason of the raising of the grade level of the road so as to interfere with the right of ingress and egress to and from his filling station. Meyer v. Jefferson County, 305 S.W.2d 536, 1957 Ky. LEXIS 322 ( Ky. 1957 ).

Cited:

Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ); Roberts v. Taylor, 226 Ky. 640 , 11 S.W.2d 710, 1928 Ky. LEXIS 152 ( Ky. 1928 ); Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ).

DECISIONS UNDER PRIOR LAW

1. Estoppel.

Where stockholders surrendered without consideration part of a turnpike to the fiscal court but refused to surrender another part of the road and county court condemned it and took possession and maintained it as a free county road for over five years, stockholders were estopped by the long acquiescence to deny they had surrendered the road to the county and the transfer was not invalid as against creditors where road was of no value, out of order and subject to forfeiture of franchise by proper proceedings. C. Roush & Co. v. Vanceburg, S. L., T. & M. Turnpike Road Co., 151 Ky. 655 , 152 S.W. 768, 1913 Ky. LEXIS 547 ( Ky. 1913 ).

Opinions of Attorney General.

Where the county has not acquired the necessary right-of-way for a bridge, the fiscal court must do so. OAG 83-267 .

Research References and Practice Aids

Cross-References.

Condemnation of land for public roads, KRS 416.110 .

Condemnation of land for right of way to ferry, KRS 280.210 .

See note to KRS 178.100 under heading 12. Common-law Action Under Const., § 242, Harlan County v. Cole, 218 Ky. 819 , 292 S.W. 501, 1927 Ky. LEXIS 263 (1927).

Wharves may be erected on private lands, KRS 182.020 .

178.115. Power of fiscal court to open, establish or alter road — Procedure — Appeal.

  1. Whenever the fiscal court of any county deems it to be in the best interest of the county to open, establish or alter the location of any public road, street, alley, ditch, culvert, bridge or similar public way or structure in the county, the fiscal court shall adopt a resolution setting forth the necessity for the public road or structure, and thereupon the public road or structure shall be deemed opened, established or altered, as the case may be, on behalf of the county. A certified copy of the resolution shall be posted at the courthouse door of the county within five (5) days after its adoption and a certified copy of the resolution shall be posted by the county road engineer of the county along or at the proposed road or structure within five (5) days after its adoption.
  2. In all cases where public roads or structures have been established, any person or persons aggrieved thereby may prosecute an appeal from a resolution of the fiscal court by filing a petition in equity in the Circuit Court of the county where the road or structure is located setting forth his grievance, to which petition shall be attached an attested or certified copy of the resolution. The petition shall be filed within thirty-five (35) days from the date the resolution was entered. An appeal shall be heard and decided by the court without the intervention of a jury. Any party so appealing shall execute and file a bond for costs at the time such appeal is taken. An appeal to the Court of Appeals may be taken in accordance with the Rules of Civil Procedure.

History. Enact. Acts 1942, ch. 128, §§ 1, 2; 1960, ch. 104, § 12; 2004, ch. 61, § 7, effective July 13, 2004.

NOTES TO DECISIONS

  1. Application.
  2. Authority of Fiscal Court.
  3. Resolution.
  4. — Purpose.
  5. — Posting.
  6. Plans and Specifications.
  7. Establishment.
  8. Standing.
  9. Prescription.
1. Application.

Fiscal court may establish a county road under the provisions of this section, and when the provisions are followed KRS 178.080 has no application. Smallwood v. Hardin County, 299 Ky. 53 , 184 S.W.2d 230, 1944 Ky. LEXIS 1022 ( Ky. 1944 ).

Notice provisions in KRS 178.050(1) apply to alternate proceedings under KRS 178.080 and are inapplicable to proceeding taken by fiscal court under this section. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

Where alternate method of establishing a street under this section is followed, injunction will not lie because procedure under KRS 178.080 was not complied with by the fiscal court. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

Plain language of KRS 178.070 , KRS 178.115 , and KRS 178.116 clearly limit their application to “county roads.” Thus, where a gate was erected across a portion of a road that was located within the city limits and, thus, was erected across a city street, KRS 178.070 , KRS 178.115 , and KRS 178.116 were inapplicable and the city did not need to obtain fiscal court approval for its closure of a portion of the city street under these statutes. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584, 2004 Ky. App. LEXIS 169 (Ky. Ct. App. 2004).

2. Authority of Fiscal Court.

In the absence of a contractual obligation, a rural electric cooperative is not required to relocate its electric line facilities located on private property and the expenditures by the fiscal court to accomplish the relocations are legal expenditures. Pennyrile Rural Electric Cooperative Corp. v. Higgins, 379 S.W.2d 467, 1964 Ky. LEXIS 244 ( Ky. 1964 ).

The fiscal court has the authority to expend public funds under its control for the relocation of roads. Pennyrile Rural Electric Cooperative Corp. v. Higgins, 379 S.W.2d 467, 1964 Ky. LEXIS 244 ( Ky. 1964 ).

3. Resolution.

The fiscal court must declare a public necessity and although a public necessity cannot be inferred from the mere passage of a resolution indicating a purpose to proceed with the project it is not vital that the words “necessity” or “necessary” be used and the words “in the best interest of the county” are sufficient. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

It was of no consequence that the recitation of necessity and descriptions of the property appeared in the preamble rather than the body of the resolution. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

4. — Purpose.

The real purpose of a resolution is to give the property owners advance notice in order that they may protest or take such other action as may be proper and the accomplishment of this purpose does not require an exact choice of words. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

5. — Posting.

The posting of certified copies of the resolution is mandatory but the requirement that it be done by the county road engineer is directory and if the posting is duly accomplished it is not invalidated on the ground that the wrong person did it. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

6. Plans and Specifications.

The clerical omission to attach and file the plans and specifications for the project with the resolution was not prejudicial where the property was sufficiently identified in the resolution to accomplish its purpose. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

7. Establishment.

The “establishment” of a street constitutes a designation of it, and must necessarily take place prior to acquisition of the property involved. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

Lower court erred in concluding that a section of an old road was a public road where it did not identify the facts relied upon to conclude that the county had maintained the road, and that conclusion was essential to determining the character of the old road. Ky. Props. Holding LLC v. Sproul, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

8. Standing.

In case disputing fiscal court’s acceptance of roadway as a county road, landowner need not prove his title to the land involved; whether the alleged road is on his property or merely borders it, he is an aggrieved party with standing to contest the fiscal court’s order through an action in the circuit court. Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

9. Prescription.

A public road may be acquired by prescription only upon (1) 15 years public use and (2) a like number of years of control and maintenance by the government. Watson v. Crittenden County Fiscal Court, 771 S.W.2d 47, 1989 Ky. App. LEXIS 65 (Ky. Ct. App. 1989), overruled in part, Ellington v. Becraft, 534 S.W.3d 785, 2017 Ky. LEXIS 510 ( Ky. 2017 ).

Opinions of Attorney General.

The general fund of one county cannot be expended to purchase right of way for county roads in another county. OAG 64-191 .

Under this section, the acceptance of a county road for maintenance is left to the sound discretion of the fiscal court and depends upon whether the fiscal court deems such road to be in the best interest of the county. Even if the sections relating to subdivisions have been complied with (see KRS 100.277 and 100.301 ) and even if a dedication of portions of the subdivision to public purposes has been made expressly, the county is not obligated automatically to accept such dedicated land for street or road purposes. OAG 72-80 .

The acceptance of a road segment into the county road system rests in the sound discretion of the fiscal court, and it is not necessary that roads be deeded to the county before they are accepted by the county as the fiscal court can enter a resolution under this section establishing a county road prior to any acquisition or conveyance of necessary land. OAG 72-81 .

Generally, the acceptance of a road for county maintenance, as a part of the county road system, is left to the sound discretion of the fiscal court, but 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. OAG 78-121 .

The fiscal court has the authority to establish an existing road as a county road and whether it does or not is left to the sound discretion of the fiscal court after determining whether such an action is in the county’s best interest, considering such factors as the cost of acquisition and maintenance of the road, the condition of the road at the present time and the impact of such action on the county’s budget. OAG 78-181 .

Once a road becomes a part of the county road system, the fiscal court has the duty to be diligent in keeping it in repair. OAG 78-121 .

A county, through its fiscal court, may build a road leading to a subdivision if it will lie in the county, but not within city boundaries, and there is no requirement that the road be a throughway or that it give access to more than one area. OAG 78-374 .

KRS 67.075(1) amends this section by implication. OAG 79-294 .

Since the format of “resolution or order” is irreconcilable with “ordinance,” the matter of accepting roads as a part of the county road system is a matter of general and lasting nature, and the road matter should take the form of an ordinance. OAG 79-294 .

The fiscal court, in taking action authorizing the alteration of an existing county road, could legally take such action by enacting, at a properly held meeting of fiscal courts, a resolution. OAG 79-410 .

The fiscal court may approve of an administrative code provision whereby the county judge/executive could, under a properly defined emergency situation, take steps to effect repair of a county road or bridge, subject, however, to a ratification of such action by the fiscal court as a body at the first meeting opportunity. OAG 80-368 .

The responsibility for determining precisely just what specifically designated road segments and bridges will be constructed, reconstructed, maintained or repaired, rests with the fiscal court as a body, not the county judge/executive, and the county judge/executive cannot order the road department to begin work on a particular bridge without fiscal court approval. OAG 80-368 .

The conventional system of county road acceptance under KRS 178.010(1)(b) and this section, and the special acceptance procedure under KRS 179.470 are mutually exclusive; thus a subdivision road may be taken into the county road system by the conventional method, and the provisions of KRS 179.470 would not apply. OAG 80-583 .

The fiscal court has the authority to accept a paved road in a subdivision and place the road in the county road system without cost to the owners of lots in the subdivision. OAG 80-602 .

Subsection (3) of KRS 179.470 would apply where a county contains one city of the fourth class and the rest of the county is basically unincorporated, except for a subdivision located in an unincorporated area of the county just outside the city limits in which subdivision all but two streets have previously been placed on the county road maintenance system and dedicated to public use; however, the subdivision’s streets may be taken into the county road system pursuant to KRS 178.010(1)(a) and this section pursuant to the judgment of the fiscal court and under this more conventional method KRS 179.470 would not apply. OAG 80-636 .

Where county road department agrees to provide maintenance to subdivision streets in return for payments by the residents of the subdivision through the road committee, direct reimbursements are not authorized under KRS 178.010 , this section, KRS 178.080 or KRS 179.470 ; however, reimbursement of maintenance expenses of subdivision roads through special assessments under KRS 179.470 would be allowed and would accrue to that part of the county road fund allocated for the maintenance of subdivision streets rather than the general road fund; thus, where the fiscal court adopts the road project under KRS 179.470 before the fiscal court finally adopts the budget, the cost of the road project can be set up under a special road account and where the road project is approved by the fiscal court after the budget is approved, the budget would have to be amended under KRS 68.280 to set up the special road project and unanticipated revenue by way of special assessments. OAG 81-19 .

As to the fiscal court’s determining whether the establishment of a county road or bridge will be in the county’s interest or the general public’s interest, the fiscal court may properly consider: (1) the number of people or families living in the immediate area; (2) the availability of proper funding under KRS Ch. 68; (3) the potential traffic count in the area; (4) the public convenience in terms of social and economic perspective; (5) the potential benefit of the project to the public in general; and (6) the question of whether the project is essentially public in nature; it must be seen that a particular road or bridge could involve the public good or interest, although the enjoyment and advantages derived from their maintenance is not distributed equally, even between members of the public who are situated alike or are in the same class. OAG 82-180 .

The establishment of a county road to a community of two (2) or more homes is left to the sound judgment of the fiscal court in determining whether the road or bridge will serve the general public interest, and thus justify the expenditure of a county tax money; the courts may reverse such decision for road establishment where it appears that the fiscal court acted arbitrarily in considering the general public interest. OAG 82-180 .

The fiscal court has no authority to construct a bridge or bridges linking a county to a private drive and the same principle applies to the repair of such bridges that are not a part of a “public road,” which public road is a part of the county road system; likewise, the mere beginning of such “private bridges” in no way obligates the fiscal court to finish the projects, since to do so would be strictly illegal. OAG 82-180 .

The ordinance for the establishment of a road must declare that the project is in the best interests of the county, if the fiscal court believes it is, and the property involved in the improvement must be described sufficiently to put any contesting party on notice thereof; the posting of certified copies of such ordinance is made mandatory by this section and the posting of the ordinance on the road itself is required to be done by the county road engineer. OAG 82-180 .

Under the broad legislative policy expressed in KRS 178.080 and this section, the acceptance of a road as a part of the county road system is left to the sound discretion of the fiscal court under the specific guidelines set out in those sections. The action of a fiscal court in exercising such discretion could be reviewed, by direct action, in a circuit court as an alleged arbitrary or capricious exercise of the discretion; no appeal could be taken from a fiscal court order to the district court, however, since that court has no appellate jurisdiction. OAG 82-445 .

A road which had been used by the public and maintained by the county government for at least 14 years could be presumed to be a “public road,” provided it met the tests laid out in KRS 178.025 ; however, unless the fiscal court formally accepted the road as a “county road,” it did not become a “county road” and, if it was to become formally a “county road,” the minimal width requirement of KRS 178.040(2) had to be complied with. OAG 83-88 .

As to the fiscal court’s determining whether the establishment of a county road or bridge will be in the county’s or general public interest, the fiscal court may properly consider: (1) the number of families living in the immediate area; (2) the availability of proper funding under KRS Chapter 68; (3) the potential traffic count in the area; (4) the public convenience in terms of social and economic perspective; (5) the potential benefit of the project to the public in general; and (6) the question of whether the project is essentially public in nature. OAG 83-267 .

There must validly exist a county right-of-way on both sides of a stream in order for the county to build a bridge across the stream, and there can be no public interest involved where the bridge dead-ends on one piece of private property. OAG 83-267 .

Where the county has not acquired the necessary right-of-way for a bridge, the fiscal court must do so. OAG 83-267 .

KRS 178.116(4), concerning access to closed roads, can be resorted to by the joint petition of all private parties entitled to necessary access, even though the time for appeal of the decision to close a road has expired. OAG 83-304 .

Under KRS 178.080 and this section, the initial decision as to the construction or altering of any particular county road by the county is not a mandatory function but is left to the sound discretion of the fiscal court, which body can determine whether or not a proposed project is deemed to be in the best interest of the county so as to constitute the necessity for such road; the “necessity for a road” arises in the context of the county’s condemnation proceedings, once the fiscal court determines that such road construction is in the public interest. OAG 83-323 .

This section implies that a road segment adopted as a part of the county road system requires any necessary construction and maintenance as a part of the county road system; ordinarily the fiscal court can maintain only those road segments specifically acquired as a part of the county road system. OAG 84-65 .

Research References and Practice Aids

Cross-References.

See notes to KRS 178.120 under heading 2. Power of Condemnation; 3. Requirements; 4. Defenses, Chesapeake & O. Ry. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. 1949).

178.116. Discontinuance of a road.

  1. Any county road, or road formerly maintained by the county or state, shall be deemed discontinued and possession shall revert to the owner or owners of the tract of land to which it originally belonged unless at least one (1) of the following conditions exists:
    1. A public need is served by the road;
    2. The road provides a necessary access for a private person;
    3. The road has been maintained and policed by the county or state within a three (3) year period.
  2. If the only condition which exists is for a necessary access for a private person, by a joint petition of all parties entitled to such access, the road shall be deemed discontinued and possession shall revert to the owner or owners of the tract of land to which it originally belonged.
  3. If the only condition which exists is for a necessary access for a private person, by joint petition of all parties entitled to such access, the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties involved.
  4. If a county road has been discontinued under the provisions of KRS 178.070 , then by a joint petition of all private parties entitled to necessary access the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties involved, or by a joint petition of all parties entitled to necessary access the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged.
  5. For the purposes of this chapter “necessary access” shall be construed to include access to any farm, tract of land, or dwelling, or to any portions of such farm, tract of land, or dwelling.

History. Enact. Acts 1980, ch. 243, § 3, effective July 15, 1980.

NOTES TO DECISIONS

  1. Court Approval Before Closure of Street.
  2. Public Status May Be Lost Through Abandonment.
  3. Filing of Joint Petition.
  4. Open Public Road.
  5. Necessary Access.
  6. Application.
1. Court Approval Before Closure of Street.

Plain language of KRS 178.070 , KRS 178.115 , and KRS 178.116 clearly limit their application to “county roads.” Thus, where a gate was erected across a portion of a road that was located within the city limits and was erected across a city street, KRS 178.070 , KRS 178.115 , and KRS 178.116 were inapplicable and the city did not need to obtain fiscal court approval for its closure of a portion of the city street under these statutes. City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584, 2004 Ky. App. LEXIS 169 (Ky. Ct. App. 2004).

2. Public Status May Be Lost Through Abandonment.

KRS 178.116 does not modify the rule set out in Sarver that a public road that is neither a county road nor a road that was previously maintained by the county or state may still be discontinued by abandonment without formal governmental action. Blankenship v. Acton, 159 S.W.3d 330, 2004 Ky. App. LEXIS 190 (Ky. Ct. App. 2004).

3. Filing of Joint Petition.

Summary judgment holding that a fiscal court properly discontinued maintenance of a county road pursuant to KRS 178.070 was not appealed, and no petition satisfying the requirements of KRS 178.116(4) was ever filed, therefore, the county road had to remain an open, public road, and a property owner was properly enjoined from erecting a locked gate blocking the road. Bailey v. Pres. Rural Rds. of Madison County, 394 S.W.3d 350, 2011 Ky. LEXIS 175 ( Ky. 2011 ).

4. Open Public Road.

Obstruction of a lane was improper because it was an open public road instead of a private passway; the location of the public road could not have been altered by the construction or installation of a private drive. A portion of the lane formerly maintained by the county that provided necessary access for a private person continued to serve as an open public road; the lane was not a county road because it had never been adopted as such. Sproul v. Ky. Props. Holding, LLC, 2014 Ky. App. Unpub. LEXIS 1031 (Ky. Ct. App. Mar. 7, 2014), rev'd, superseded, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

5. Necessary Access.

County road provided “necessary access” to the owners' property within the meaning of this statute because, although the owners had limited permissive use of a passway, this was in stark contrast to their right to reasonable access to the public highway system. While the owners of the property at issue had a temporary means of accessing their property, this limited, permissive easement could not ripen into a permanent, legal right of ingress and egress. Greene v. Greenup County, 530 S.W.3d 463, 2015 Ky. App. LEXIS 84 (Ky. Ct. App. 2015).

Lower court erred in concluding that a section of an old road was not an abandoned or discontinued public road where the neighboring landowner had been furnished an alternate route to access his property, there was no practical necessity for the landowner to use the entirety of the old road, and thus, the portion of the old road did not provide the landowner necessary access to his property. Ky. Props. Holding LLC v. Sproul, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

6. Application.

Lower court misapplied Ky. Rev. Stat. Ann. § 178.116 and case law in evaluating whether the old road was a public road where the statute only applied in assessing whether a discontinuation had occurred, and the case law simply clarified what occurred after a county discontinued maintenance of a county road. Ky. Props. Holding LLC v. Sproul, 507 S.W.3d 563, 2016 Ky. LEXIS 428 ( Ky. 2016 ).

Opinions of Attorney General.

Subsection (4) of this section, concerning access to closed roads, can be resorted to by the joint petition of all private parties entitled to necessary access even though the time for appeal of the decision to close a road has expired. OAG 83-304 .

Unless action is taken under subsection (4) of this section by joint petition wherein the road is closed to the public but remains open to the private parties needing access, the old road bed would revert to the owner or owners of the land out of which the road was built, and a reopening of the road would require the fiscal court to start all over again by condemnation. OAG 83-304 .

This section requires no formal action of the fiscal court, since the General Assembly has made discontinuance automatic except for the existence of at least one of the described conditions; the statute works by operation of law, not by acts of the fiscal court. OAG 84-358 .

KRS 178.070 has no bearing on the discontinuing of a road by operation of law under this section, except that under subsection (4) of this section, where a county road has been discontinued under KRS 178.070 , then by a joint petition of all private parties entitled to necessary access, the road shall be closed to public use but remain open in accordance with its condition and use for the access of the private parties affected, or by a joint petition of all parties entitled to necessary access, the road shall revert to the owner or owners of the tract or tracts of land to which it originally belonged. OAG 84-358 .

The General Assembly did not intend to impose this section upon the authority of a fiscal court to close a county road under KRS 178.070 ; however, where a county has taken no formal action to discontinue a county road under KRS 178.070 , this section would then apply, provided the terms of the latter statute are met. OAG 84-358 .

178.117. Private improvement of public road in unincorporated territory — When permitted — Procedure.

  1. Any person or corporation, public or private, or any group of such persons or corporations or both, residing in or owning property adjacent to any publicly dedicated road in unincorporated territory in any county and desiring to make any improvements to the publicly dedicated road shall submit to the fiscal court, the urban-county government, or the consolidated local government for approval plans and specifications for its improvements at their own expense. Any request for private improvement shall include all the information required by KRS 184.020 to accompany a request for the creation of a public road district pursuant to that section.
  2. The sponsors of the private improvement of the publicly dedicated road shall present their request, together with the attached maps and estimates of cost, to the fiscal court, the urban-county government, or the consolidated local government, who shall turn over to the county engineer for his or her consideration the maps and estimates of cost. In considering whether to permit the requested improvement, the fiscal court, the urban-county government, or the consolidated local government, and the county engineer shall follow the same procedures provided for in KRS 184.040 and the same appellate rights provided for in these sections are available to the petitioners. When the county engineer receives from the fiscal court, the urban-county government, or the consolidated local government an application for approval of plans or specifications for the private improvement of publicly dedicated roads by some individual or corporation, or a combination thereof, the county engineer shall be authorized and empowered to examine, inspect, and investigate, as seems to be advisable, the sufficiency of the improvements which the application seeks to serve the purposes intended, and to establish and make reasonable charges for his or her services on the basis of a schedule adjusted according to the services required to conduct the investigation or on any other reasonable method.
  3. When it appears to the county engineer that the completion of the improvement by or on behalf of any individual or corporation requires inspection and supervision in order to assure the protection of the public safety and the proper subsequent completion of the work for the purposes intended, the county engineer shall include findings in his or her recommendation to the fiscal court, the urban-county government, or the consolidated local government approving, modifying, or disapproving the particular plans and projects, and shall charge the person or corporation for the inspection and supervision on the basis of the actual cost of inspection plus a reasonable additional cost of supervision.

History. Enact. Acts 1964, ch. 80, § 10; 1976 (1st Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 310, effective June 17, 1978; 1984, ch. 64, § 18, effective July 13, 1984; 2002, ch. 346, § 185, effective July 15, 2002; 2004, ch. 61, § 8, effective July 13, 2004.

178.120. Condemnation of land by fiscal court.

Whenever the fiscal court of any county deems it to be in the best interest of the county to open, establish, construct, alter or repair any public road, street, alley, ditch or bridge of the county and the fiscal court is unable to contract with the owner of the land, required for such purpose, for its purchase or to acquire the same by gift, the land may be condemned under the procedure set forth in the Eminent Domain Act of Kentucky.

History. 4302a-2: amend. Acts 1976, ch. 140, § 79.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Construction.
  2. Power of Condemnation.
  3. Requirements.
  4. Defenses.
1. Construction.

This section authorizes the fiscal courts to institute condemnation proceedings for the acquisition of land for county road purposes once such roads have been opened and established by the county court as provided in KRS 178.080 and creates an additional and alternate method for the institution of condemnation proceedings to acquire right-of-way for county roads. Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ) (decision prior to enactment of KRS 178.115 ).

2. Power of Condemnation.

Although under Kentucky law the necessity for the exercise of eminent domain is primarily and almost exclusively for the determination of the legislative branch of government it may be determined by the courts under this section in the condemnation proceeding even though the legislative body vested with the power to condemn has concluded under KRS 178.115 that the land sought to be condemned is necessary for the public use. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

If the legislature has determined the use or purpose of condemnation to be a public one, its judgment will be respected by the courts, unless the use be palpably private or the necessity for the taking plainly without reasonable foundation. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

The power of eminent domain is so inherently governmental in character and so essential for the public welfare as not to be susceptible of abridgement by agreement so a contract to substitute overhead crossings for grade crossings cannot prevent a county from opening and maintaining a road across railway tracks at another time or at another place. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

A state or a county cannot by contract divest itself of its power of eminent domain; that is, to take private property without just compensation. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

3. Requirements.

No authority is vested in the United States district court or in the United States Court of Appeals to require, as a condition precedent to entry of judgment of condemnation of a right-of-way or easement, that a county shall reimburse a railroad for its expenditures in complying with its contract relating to the construction of a single overhead crossing and the closing of three grade crossings. All that can be awarded the railroad is just compensation for its property taken by the county in the exercise of its power of eminent domain. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

This section authorizes the fiscal court of any county, whenever it deems it to be in the best interest of the county to construct or alter any public road, to condemn land for such purpose if the fiscal court shall be unable to contract with the owner. Jefferson County v. Clausen, 297 Ky. 414 , 180 S.W.2d 297, 1944 Ky. LEXIS 745 ( Ky. 1944 ).

The “establishment” of a street constitutes a designation of it, and must necessarily take place prior to acquisition of the property involved. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

4. Defenses.

If the county is exercising its power of eminent domain unreasonably and arbitrarily, railroad should not be shut off from showing, if it can, in condemnation proceeding under this section, that as a matter of fact, there have been no changed conditions which necessitate in the public interest the condemnation of the proposed right-of-way, or easement, across its tracks. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

Right of appeal under KRS 178.115 within 35 days from order or resolution of fiscal court proclaiming necessity for condemnation of right-of-way to circuit court does not make circuit court judgment final and landowner may challenge the necessity of the taking in subsequent condemnation proceedings under this section to acquire the land. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

An appeal by property owners under KRS 178.115 has to do only with the establishment of the public project even though the fiscal court uses one resolution to accomplish the purposes of KRS 178.115 and this section, and questions involving negotiations with landowners and choice of condemnation procedures cannot be raised in the appeal under KRS 178.115. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

Cited:

Smallwood v. Hardin County, 299 Ky. 53 , 184 S.W.2d 230, 1944 Ky. LEXIS 1022 ( Ky. 1944 ).

178.125. Condemnation of additional land adjacent to existing road — Procedure.

  1. Whenever the fiscal court of any county deems it to be in the best interest of the county to acquire additional land adjacent to an existing county road to provide for future widening and improvement of said road, and the fiscal court is unable to contract with the owners of the land required for such purposes for its purchase or to acquire the same by gift, the land may be condemned under the provisions set forth in the Eminent Domain Act of Kentucky.
  2. The resolution authorizing condemnation shall set forth the facts of the proposed acquisition, including a description of the land sought to be acquired, which description may be stated in widths from the existing centerline of the road proposed to be improved. In condemnation for future improvement under this section it shall not be necessary for the county to have completed plans for actual construction; Provided, the property owner is furnished with an accurate description of the property sought to be condemned. The right-of-way thus obtained shall be for reasonably foreseeable future construction and improvement in conformity with the existing grade of said road and with free access to adjacent property.

History. Enact. Acts 1960, ch. 220; 1976, ch. 140, § 80.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (1) of this section is compiled as KRS 416.540 to 416.680 .

178.130. County may do work or award contracts. [Repealed.]

Compiler’s Notes.

This section (4356m) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978. For present law see KRS 67.080 , 67.083 and 67.084 .

178.140. Awarding of contracts — Rejection of bids.

  1. All bids for the construction or maintenance of county roads and bridges shall be received at the time and place specified in the advertisement, and shall be opened publicly at the time of awarding, and the amount of items comprising each bid shall be publicly announced.
  2. The contract shall be awarded to the lowest and best bidder, who shall furnish satisfactory security in an amount equal to the amount of the contract in question, to be approved by the county judge/executive of the county.
  3. The fiscal court may reserve twenty percent (20%) of the amount accruing on the contract until the completion of the work and the approval thereof by the county road engineer.
  4. The fiscal court may reject any and all bids, and may readvertise for and receive bids. If satisfactory bids cannot be obtained, the fiscal court may have the work done in the manner it deems best.

History. 4303, 4304, 4356m.

NOTES TO DECISIONS

  1. Construction.
  2. Rejection of Bids.
  3. Levy of Tax.
1. Construction.

The fiscal court is not precluded from making, constructing, reconstructing, or maintaining the public roads of the county in any other manner than that specified in this section and KRS 178.160 (now repealed) but all contracts must be let under provisions of KRS 178.050 . Russell County v. Hill, 164 Ky. 360 , 175 S.W. 988, 1915 Ky. LEXIS 396 ( Ky. 1915 ).

2. Rejection of Bids.

If no suitable bids are received, fiscal court may reject bids and adopt some other plan of constructing, reconstructing or maintaining road. Russell County v. Hill, 164 Ky. 360 , 175 S.W. 988, 1915 Ky. LEXIS 396 ( Ky. 1915 ).

3. Levy of Tax.

Fiscal court may levy ad valorem and poll taxes for road purposes. Russell County v. Hill, 164 Ky. 360 , 175 S.W. 988, 1915 Ky. LEXIS 396 ( Ky. 1915 ).

DECISIONS UNDER PRIOR LAW

1. Authority to Contract.

The fiscal court could not delegate to an agent its authority to make contract for maintenance of roads. O'Kelly v. Lockwood, 154 Ky. 544 , 157 S.W. 1096, 1913 Ky. LEXIS 117 ( Ky. 1913 ).

2. Ratification of Contract.

By subsequent action fiscal court could ratify acts of its agent in attempting to contract for court. O'Kelly v. Lockwood, 154 Ky. 544 , 157 S.W. 1096, 1913 Ky. LEXIS 117 ( Ky. 1913 ).

178.150. Department of Highways to render assistance in certain cases.

  1. When it is necessary to build or repair a bridge and the building and repair will cost more than five hundred dollars ($500), the county road engineer shall notify the Department of Highways that such work is to be done. The Department of Highways shall then furnish to the county road engineer plans, specifications and estimates of cost, which he shall submit to the fiscal court. The county road engineer shall keep in his records the plans, specifications and estimates of cost furnished by the Department of Highways, and also the plans, specifications and estimates of cost and the actual cost of the repair or construction work which is actually done. The fiscal court shall not be required to accept the plans, specifications and estimates furnished by the Department of Highways.
  2. This same plan shall be followed in making the purchase of all county road machinery, when the amount of the purchase is five hundred dollars ($500) or more.
  3. When a new hard surface road is to be built, or an old dirt road converted into a hard surface road, the county road engineer of the county in which the improvement is to be made shall notify the Department of Highways, and the department shall send an assistant engineer to assist in laying out the road, and in drawing plans and specifications and making up estimates of cost for the road. This shall be done at the expense of the state. The fiscal court shall not be compelled to accept the plans and specifications of the engineer furnished by the Department of Highways, but a record of them shall be kept. After contracts are awarded, the estimates furnished by the Department of Highways and the contract price shall be published as advertisements provided for in KRS 178.050 .

History. 4305.

NOTES TO DECISIONS

  1. Construction.
  2. Mandamus to Compel Repair.
1. Construction.

The fiscal court, notwithstanding this section, has the jurisdiction conferred upon it by KRS 67.080 , and is not controlled nor precluded by this section when exercising its jurisdiction in the building or repairing of bridges and maintaining public roads as authorized by KRS 67.080 . Bailey v. Carter County, 247 Ky. 639 , 57 S.W.2d 667, 1933 Ky. LEXIS 446 ( Ky. 1933 ).

This section must be read and interpreted in connection with KRS 178.130 and 178.140(4). Bailey v. Carter County, 247 Ky. 639 , 57 S.W.2d 667, 1933 Ky. LEXIS 446 ( Ky. 1933 ).

2. Mandamus to Compel Repair.

While the question of necessity of first constructing a bridge was exclusively a matter within discretion of fiscal court, which could not be controlled by mandamus, taxpayers may by mandamus compel fiscal court to discharge duty of repairing bridge. Bailey v. Carter County, 247 Ky. 639 , 57 S.W.2d 667, 1933 Ky. LEXIS 446 ( Ky. 1933 ).

178.155. Effect of lack of maintenance of road by county for fifteen years. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 278, § 1, effective July 15, 1986) was repealed by Acts 2004, ch. 1, § 12, effective July 14, 2004.

178.160. Construction and maintenance of hard surface roads by contract. [Repealed.]

Compiler’s Notes.

This section (4306) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978. For present law see KRS 67.080 , 67.083 and 67.084 .

178.170. Bonds for hard surface roads — Issuance.

  1. The fiscal court, after an election as provided in subsection (2), may issue and sell bonds for the purpose of constructing or reconstructing public roads and bridges. The bonds shall bear interest at a rate or rates or method of determining rates as the fiscal court determines, be payable at least annually, and shall be in denominations of not less than one hundred dollars ($100) nor more than one thousand dollars ($1000). The bonds shall mature within forty (40) years, and may be redeemed within that time at the pleasure of the court.
  2. Upon the petition of one hundred and fifty (150) legal voters who are freeholders of the county, the county judge/executive shall make an order on his order book directing an election to be held in the county at the next regularly-scheduled November election if the question as it will appear on the ballot is submitted to the county clerk not later than the second Tuesday in August preceding the regular election. The order shall direct the sheriff to advertise the election and its object by publication pursuant to KRS Chapter 424 and also by printed handbills posted at not less than four (4) public places in each voting precinct in the county and at the courthouse door. The election shall be held under the general election laws. The question shall be: “Are you in favor of issuing  . . . . .  in bonds for the purpose of building roads and bridges?”
  3. All the money raised by the sale of bonds under this section shall be used solely for the construction of hard surface roads.

History. 4307: amend. Acts 1966, ch. 239, § 154; 1978, ch. 384, § 311, effective June 17, 1978; 1980, ch. 188, § 135, effective July 15, 1980; 1996, ch. 195, § 66, effective July 15, 1996; 1996, ch. 274, § 39, effective July 15, 1996.

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts chs. 195 and 274. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 195, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Bridge.
  4. Authority of County Court.
  5. Bonds.
  6. — Issuance.
  7. — Amount of Indebtedness.
  8. — Sale.
  9. — Negotiability.
  10. — Refunding.
  11. — Use of Funds.
  12. — Loan of Proceeds.
  13. — Retirement.
  14. Election.
  15. — Petition.
  16. — Time for Holding.
  17. — Notice.
  18. — Submission.
  19. — Ballots.
  20. — Majority Vote.
  21. — Commissioners.
1. Constitutionality.

The provision of law which limited maximum period of maturity to 30 years violated Const., § 159 which fixes the maximum period at 40 years. Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

2. Construction.

The voting of a 20¢ tax levy under KRS 178.210 did not preclude voting to issue bonds under this section. Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

Const., § 157a and this section provide an independent method of financing road construction and improvement. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

3. Bridge.

A bridge is nothing more than that part of a road which crosses a stream. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ).

4. Authority of County Court.

This section does not confer authority on county court to pass on validity of election, and it cannot interfere with issue of bonds by fiscal court. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

5. Bonds.
6. — Issuance.

Where bonds carried certificate stating that provision had been made for collection of annual tax sufficient to pay interest and create sinking fund for payment of principal, county was estopped, as against purchaser for value who relied on certificate, from questioning whether procedure necessary to issuance of bonds was properly carried out. Pulaski County v. Eichstaedt, 110 F.2d 79, 1940 U.S. App. LEXIS 4484 (6th Cir. Ky. 1940 ).

It is optional with the fiscal court to say, when it issues its bonds, whether it will make them redeemable on or before their maturity, or let them run until full maturity. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

The fiscal court may insert the redemption clause in some bonds, and omit it from others. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

The qualifying phrase “at the pleasure of the court,” refers to the time the bonds are issued, and the right to redeem must be then reserved or it cannot be exercised. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

Mandamus lies to compel fiscal court to issue bonds. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

When road bonds have been duly voted, it becomes the duty of the fiscal court to issue the bonds in way provided by statute, and the court has no discretion in the matter except as to certain details. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

The amount of bonds which can be issued and sold depends upon amount of taxable property at time they are sold. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

The bonds which can be issued under Const., § 157a and this section must be limited to such an amount as the 20¢ tax (KRS 178.200 ) will pay the interest on and create a sinking fund for and pay off within the time they are authorized to run. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

A delay of approximately five years and four months, between issue of last preceding block of authorized road bonds and authorization of proposed present issue for balance of amount voted, did not constitute abandonment of authority to issue, although ten years had elapsed since voting of bonds. Weathers v. Todd County, 271 Ky. 172 , 111 S.W.2d 638, 1937 Ky. LEXIS 220 ( Ky. 1937 ).

Bond provision that “the full faith, credit and resources of said county are hereby irrevocably pledged” means that the faith and credit of the county is pledged to the extent of the resources to be found in the law. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

7. — Amount of Indebtedness.

The amount of bonded indebtedness permitted for road and bridge purposes must be determined by whether it is less than five percent of the assessed value of taxable property, and by estimation of what amount of bonds carrying the applicable rate of interest can be liquidated by a 20¢ tax for 40 years calculated on the assessed value of taxable property. Whichever sum is smaller is the limit of a valid debt. Existing road and bridge indebtedness must be taken into consideration. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

The indebtedness authorized by Const., § 157a and this section may be in addition to the aggregate county indebtedness authorized and limited by Const., §§ 157 and 158. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

8. — Sale.

When the customary commission for similar services is about one-eighth of one percent, an agreed commission of five percent (5%) for sale of road bonds is grossly excessive and such a contract is invalid. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

The fiscal court may, under certain circumstances, pay a reasonable and customary commission to agents or brokers to effect a sale of road bonds. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

Orders of fiscal court regarding administrative matters pertaining to sale of bonds are legislative in nature rather than judicial, and may be revoked, modified or altered at a subsequent term of court, provided such action does not affect previously acquired rights of any one who acted upon faith of original entry. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

The county may not allow a buyer of road bonds a deduction from purchase price to cover cost of printing bonds, legal opinions and necessary incidental expenses. Duff v. Knott County, 238 Ky. 71 , 36 S.W.2d 870, 1931 Ky. LEXIS 194 ( Ky. 1931 ).

The requirement that the bonds be sold for not less than par is mandatory, and admits of no evasion. Duff v. Knott County, 238 Ky. 71 , 36 S.W.2d 870, 1931 Ky. LEXIS 194 ( Ky. 1931 ).

Members of the fiscal court are liable to the county for the balance due from brokerage firm to whom they unlawfully sold bonds below par and on credit, since the statute is mandatory. Webster County v. Hall, 275 Ky. 54 , 120 S.W.2d 756, 1938 Ky. LEXIS 367 ( Ky. 1938 ).

9. — Negotiability.

The bonds authorized by this section are negotiable. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

County may not plead fraud or lack of consideration against innocent holders for value or bona fide holders in due course of its negotiable bonds. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

10. — Refunding.

When county was in default on issue of road and bridge bonds, and plan was worked out to refund issue by exchanging a new issue bearing a lower rate of interest, county had authority to agree to pay, out of road and bridge sinking fund, reasonable compensation to agent who perfected plan, the costs of publishing call notices, and service charges to an agency for handling interest and principal payments. Governor v. Wolfe County, 291 Ky. 267 , 163 S.W.2d 485, 1942 Ky. LEXIS 213 ( Ky. 1942 ).

11. — Use of Funds.

The power to issue bonds for public road purposes necessarily carries with it the power to build bridges, which are a part of the road, and a vote for bonds for building roads is in effect a vote for bonds for building bridges. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ).

Road bond election was not invalid because question was submitted on ballot as “Are you in favor of issuing $300,000 in bonds for the purpose of building roads? ”, omitting the words “and bridges.” Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ).

Money derived from sale of road bonds voted upon understanding and belief induced by orders and judgments of fiscal court, entered before the election designating and fixing a certain given road upon which the improvements were to be made with the money, cannot afterwards be diverted by fiscal court to improvement of other highways. Scott v. Forrest, 174 Ky. 672 , 192 S.W. 691, 1917 Ky. LEXIS 234 ( Ky. 1917 ). See Campbell v. Clinton County, 176 Ky. 396 , 195 S.W. 787, 1917 Ky. LEXIS 55 ( Ky. 1917 ).

The county may use a reasonable portion of proceeds of bonds for payment of expenses necessarily incurred in preparing, printing and selling the bonds. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ). See Duff v. Knott County, 238 Ky. 71 , 36 S.W.2d 870, 1931 Ky. LEXIS 194 ( Ky. 1931 ).

Funds from bond issue may be used to build bridge and approaches on dirt road, although dirt road will not be improved in vicinity of bridge. Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ).

Portion of proceeds of new road bond issue may be used to retire remaining bonds of old county road bond issue. Caldwell & Co. v. Russell County Fiscal Court, 220 Ky. 698 , 295 S.W. 1003, 1927 Ky. LEXIS 602 ( Ky. 1927 ).

Proceeds of bond issue voted by county in 1919 for “building roads and bridges” could be used to buy rights of way for state highway, there being no law in 1919 or at the present time prohibiting county from buying rights of way with money raised through issuance of bonds. Rice v. Marcum, 294 Ky. 486 , 172 S.W.2d 75, 1943 Ky. LEXIS 483 ( Ky. 1943 ).

Where fiscal court, prior to bond election, enters order designating for improvement from proceeds of bonds more roads than can be constructed from such proceeds, the fiscal court may spend the entire sum on any one or more of the designated roads without being guilty of diverting the funds. Clay County v. Kentucky Dep't of Highways, 294 Ky. 638 , 172 S.W.2d 436, 1943 Ky. LEXIS 500 ( Ky. 1943 ).

12. — Loan of Proceeds.

The fiscal court may advance or loan to the state a portion of the proceeds of road bonds, if it is competent for the state to borrow. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

13. — Retirement.

County is not required to retire road and bridge bonds from funds other than receipts from the special levy, although it has the option to apply moneys from its general fund. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

14. Election.
15. — Petition.

Petition for road bond election need not be filed at a regular term of the county court. Finley v. Rose, 165 Ky. 408 , 177 S.W. 433, 1915 Ky. LEXIS 563 ( Ky. 1915 ). See Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

It is not necessary that 150 petitioners sign the selfsame paper, but it is sufficient where they sign separate petitions identical in terms. Evans v. Johnson Fiscal Court, 194 Ky. 849 , 241 S.W. 66, 1922 Ky. LEXIS 254 ( Ky. 1922 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ); Hale v. Martin County Fiscal Court, 203 Ky. 156 , 261 S.W. 1094, 1924 Ky. LEXIS 863 ( Ky. 1924 ).

The date of petition is when it is filed in county court, and it is not required that petition nor signatures be dated. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

While this section does not specifically authorize inclusion in petition of names of roads upon which proceeds of bonds shall be used, such designation is not unlawful. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

The petition need not expressly state the amount of bonded indebtedness to be voted on, and the county judge (now county judge/executive) may determine the amount to be incurred. Pendleton v. Letcher County Fiscal Court, 194 Ky. 688 , 240 S.W. 358, 1922 Ky. LEXIS 219 ( Ky. 1922 ). See Payne v. Fiscal Court of Carlisle County, 200 Ky. 41 , 252 S.W. 127, 1923 Ky. LEXIS 14 ( Ky. 1923 ).

While petition did not specifically state signers were “freeholders,” the equivalent was included in statement they were “citizens, landowners, legal voters and taxpayers,” and this was a compliance with the statute. Pendleton v. Letcher County Fiscal Court, 194 Ky. 688 , 240 S.W. 358, 1922 Ky. LEXIS 219 ( Ky. 1922 ). See Payne v. Fiscal Court of Carlisle County, 200 Ky. 41 , 252 S.W. 127, 1923 Ky. LEXIS 14 ( Ky. 1923 ).

It is not necessary for petition to lie over after filing longer than next regular term of county court. Webb v. Howard, 197 Ky. 177 , 246 S.W. 444, 1923 Ky. LEXIS 594 ( Ky. 1923 ).

Description in petition of road proposed was sufficiently definite and certain. Hale v. Martin County Fiscal Court, 203 Ky. 156 , 261 S.W. 1094, 1924 Ky. LEXIS 863 ( Ky. 1924 ).

The petition for election must expressly contain the facts set out in this section to authorize calling of election, as existence of such facts is not only jurisdictional but must be evidenced by a proper writing composing a part of election proceedings. Pulliam v. Board of Trustees, 216 Ky. 266 , 287 S.W. 735, 1926 Ky. LEXIS 902 ( Ky. 1926 ).

16. — Time for Holding.

It is not necessary that the petition for election should lie over from one term of county court to another before election is called. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ). See Finley v. Rose, 165 Ky. 408 , 177 S.W. 433, 1915 Ky. LEXIS 563 ( Ky. 1915 ); Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

A county road bond election may be held on a day other than the regular election day. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ). See Albright v. Ballard, 164 Ky. 747 , 176 S.W. 185, 1915 Ky. LEXIS 441 ( Ky. 1915 ).

Constitution, § 157a left to the discretion of the general assembly the time of holding road bond elections, and the general assembly exercised that discretion by delegating to the several county courts the power to hold such elections upon any day, provided only it was 60 days after the filing of the petition. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ). See Albright v. Ballard, 164 Ky. 747 , 176 S.W. 185, 1915 Ky. LEXIS 441 ( Ky. 1915 ).

A special road bond election may be held upon the general election day. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

If the petition for election on road bond issue fails to specify day for election, the county court may fix a day not later than 60 days after application is lodged. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Pendleton v. Letcher County Fiscal Court, 194 Ky. 688 , 240 S.W. 358, 1922 Ky. LEXIS 219 ( Ky. 1922 ); Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ); Payne v. Fiscal Court of Carlisle County, 200 Ky. 41 , 252 S.W. 127, 1923 Ky. LEXIS 14 ( Ky. 1923 ).

The statutory direction with regard to fixing date of election, except after the time required by statute, is not mandatory but directory, and the county court may order election held upon a day other than one named in petition. Horning v. Fiscal Court of Caldwell County, 187 Ky. 87 , 218 S.W. 989, 1920 Ky. LEXIS 84 ( Ky. 1920 ).

The fact that an election the previous November resulted adversely to proposition to issue road bonds was not a bar to a similar election the following January. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

17. — Notice.

The requirements of the statute as to giving of notice of the election are mandatory, but a substantial compliance will suffice. Billington v. Moore, 168 Ky. 22 , 181 S.W. 651, 1916 Ky. LEXIS 502 ( Ky. 1916 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

There was a substantial compliance with provision for advertising in newspaper where between the time of the order for election and the time it was held order was published in two weekly county newspapers for three weeks before election, the first publication being 34 days before the election. Billington v. Moore, 168 Ky. 22 , 181 S.W. 651, 1916 Ky. LEXIS 502 ( Ky. 1916 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ) (decision prior to 1966 amendment).

There was a substantial compliance with provision for giving of notice by sheriff even though he did not state in notice that election would be held as provided by order of court. Horning v. Fiscal Court of Caldwell County, 187 Ky. 87 , 218 S.W. 989, 1920 Ky. LEXIS 84 ( Ky. 1920 ) (decision prior to 1966 amendment).

Where there was no newspaper published in the county and none from outside the county generally read therein, it was sufficient to have thoroughly advertised road bond election by printed handbills. Harrison v. Jackson County Fiscal Court, 197 Ky. 57 , 245 S.W. 848, 1922 Ky. LEXIS 614 ( Ky. 1922 ) (decision prior to 1966 amendment).

It is mandatory that at least 30 days’ publication of notice of election be made in a newspaper published in the county, if one is so published, and publication for 27 days next before the election is not a substantial compliance, and the election is invalid. Pendley v. Butler County Fiscal Court, 229 Ky. 45 , 16 S.W.2d 500, 1929 Ky. LEXIS 680 ( Ky. 1929 ) (decision prior to 1966 amendment).

If the voters have been afforded ample opportunity to become informed on the question to be submitted and the purpose of this section has been accomplished, the election should not be invalidated by a strict and narrow construction of the statute. Kenton County v. Ankenbauer, 293 S.W.2d 873, 1956 Ky. LEXIS 100 ( Ky. 1956 ).

Mere news articles cannot be accepted as a substitute for the official notice required by law, but where there was a series of paid newspaper advertisements that for all practical purposes fulfilled the requirements of the section and such a deluge of publicity that the voters could not have escaped being informed of the election, the election should not be invalidated. Kenton County v. Ankenbauer, 293 S.W.2d 873, 1956 Ky. LEXIS 100 ( Ky. 1956 ) (decision prior to 1966 amendment).

Where there is a daily newspaper this section requires publication of notice every day for 30 days, excluding Sunday. Kenton County v. Ankenbauer, 293 S.W.2d 873, 1956 Ky. LEXIS 100 ( Ky. 1956 ) (decision prior to 1966 amendment).

18. — Submission.

The form in which question of issuance of road bonds was submitted was so ambiguous and unintelligible as to not be a substantial compliance with this section, and the election was void. Armstrong v. Fiscal Court of Carter County, 162 Ky. 564 , 172 S.W. 972, 1915 Ky. LEXIS 118 ( Ky. 1915 ).

It is not required that the voters pass upon or suggest when proposed bonds mature or what rate of interest they bear. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ). See Albright v. Ballard, 164 Ky. 747 , 176 S.W. 185, 1915 Ky. LEXIS 441 ( Ky. 1915 ).

The time for maturity of road bonds need not be stated in question submitted to voters, other than time fixed by statute. Bowman v. Fayette County, 168 Ky. 524 , 182 S.W. 633, 1916 Ky. LEXIS 587 ( Ky. 1916 ).

The question of voting a 20¢ special road tax may be submitted at same special election as question of issue of road bonds. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

It is not necessary for court in calling election to name time when bonds would mature and be redeemed. Webb v. Howard, 197 Ky. 177 , 246 S.W. 444, 1923 Ky. LEXIS 594 ( Ky. 1923 ).

19. — Ballots.

Where, by printer’s mistake, first ballots printed contained error in amount of bond issue, clerk properly substituted new ballots correctly printed. Finley v. Rose, 165 Ky. 408 , 177 S.W. 433, 1915 Ky. LEXIS 563 ( Ky. 1915 ).

Road bond proposition may be printed upon ballot used in general election. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

In absence of averment or showing to contrary, the clerk will be conclusively presumed to have prepared ballots in accordance with law. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

20. — Majority Vote.

The election provided for in this section is governed by Const., § 157a, and requires the assent only of a majority of the voters participating in the election. Bowman v. Fayette County, 168 Ky. 524 , 182 S.W. 633, 1916 Ky. LEXIS 587 ( Ky. 1916 ). See Gatton v. Fiscal Court of Daviess County, 169 Ky. 425 , 184 S.W. 1, 1916 Ky. LEXIS 705 ( Ky. 1916 ); Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 (Ky. 1916); Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 (Ky. 1916); Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

21. — Commissioners.

The election commissioners have neither duty nor power to decide that a road bond election has been assented to or denied, and their only duty is to certify the result of the election. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

It is not required that election commissioners certify result of election to the fiscal court. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ). See Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

Cited:

Skaggs v. Fyffe, 266 Ky. 337 , 98 S.W.2d 884, 1936 Ky. LEXIS 640 ( Ky. 1936 ); Olive Hill v. Howard, 273 S.W.2d 387, 1954 Ky. LEXIS 1172 ( Ky. 1954 ); Ashcraft v. Estill County, 290 S.W.2d 31, 1956 Ky. LEXIS 304 ( Ky. 1956 ).

Opinions of Attorney General.

KRS 58.430 , by its express language, repealed the interest ceiling provisions of this section. OAG 71-493 .

Research References and Practice Aids

Cross-References.

Allocation of tax proceeds to road fund, KRS 47.010 .

Conduct of regular elections, KRS Ch. 118.

Day on which elections must be held, Const., § 148.

Fiscal court, general jurisdiction and duties, KRS 67.080 .

Indebtedness that counties may incur for road purposes, Const., § 157a.

Kentucky Law Journal.

Peak, Constitutional Limitations on County Indebtedness in Kentucky, 28 Ky. L.J. 32 (1939).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to County Court to Call Election for Issuing Road Bonds, Form 356.17.

Caldwell’s Kentucky Form Book, 5th Ed., Road Bond, Form 356.15.

178.180. Commissioners may be appointed to handle proceeds of bonds.

  1. The fiscal court of any county may select or appoint four (4) or more commissioners who are freeholders and legal voters and residents of the county, to act as a road commission in the handling of any funds derived from the sale of bonds authorized and voted by the county for the purpose of constructing and reconstructing roads and bridges. The commissioners shall be equally divided between the two (2) dominant political parties of the county.
  2. The commissioners shall each give a bond, approved by the county judge/executive. The commissioners shall be allowed a reasonable compensation for their services by the fiscal court, to be paid out of the county road fund.
  3. The commissioners shall be selected at least fifteen (15) days before the date of the election on the question of the bond issue, and their names shall be published pursuant to KRS Chapter 424.

History. 4307a-1, 4307a-3: amend. Acts 1966, ch. 239, § 155.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Appointment.
  4. Statements Regarding Bond Issue.
1. Constitutionality.

This section and KRS 178.190 do not violate Const., §§ 27, 28, 51 or 144. Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

2. Construction.

This section and KRS 178.190 were not impliedly repealed by KRS 67.080 . Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

This section and KRS 178.190 were not repealed by KRS 181.020 to 181.050 as the latter sections merely gave an additional power to counties containing a city of second class. Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

3. Appointment.

It is left to will of fiscal court whether it will appoint or not appoint a road commission, and circuit court cannot compel fiscal court to appoint commissioners against its will. Muhlenburg County Fiscal Court v. Muhlenburg County Road Com., 225 Ky. 432 , 9 S.W.2d 129, 1928 Ky. LEXIS 801 ( Ky. 1928 ).

Road commissioners, if fiscal court desires to appoint a commission, must be appointed at least 15 days before road bond election. Muhlenburg County Fiscal Court v. Muhlenburg County Road Com., 225 Ky. 432 , 9 S.W.2d 129, 1928 Ky. LEXIS 801 ( Ky. 1928 ).

4. Statements Regarding Bond Issue.

Statements regarding apportionment of proceeds of road bond issue made by publicity committee appointed by fiscal court, some of whose members were also members of county road commission, did not constitute pre-election promises of fiscal court or road commission nor was fiscal court in any way bound by them. Conrad v. Pendleton County, 209 Ky. 526 , 273 S.W. 57, 1925 Ky. LEXIS 535 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

Bonds of officers, KRS Ch. 62.

178.190. Duties of commissioners — Supervision.

  1. The duties of the commissioners in regard to the construction, reconstruction and designation of roads to be built with the proceeds of the bond issue, shall be the same as those now exercised by the fiscal court.
  2. If the county receives financial aid from the state, the commissioners shall act under the supervision of the Department of Highways.

History. 4307a-2, 4307a-4.

178.200. Tax levy to retire bonds and pay interest.

  1. If bonds are sold to enable the fiscal court to construct roads and bridges, the fiscal court shall levy a tax of not over twenty cents ($0.20) on the one hundred dollars ($100) of the assessed valuation of the county. The tax shall be collected as other county taxes and allocated, first, to the payment of the interest on the bonds, and the balance placed to the credit of a sinking fund for the redemption of the bonds.
  2. Any accumulation in the sinking fund may be loaned by the fiscal court on first mortgage real estate security, on the basis of fifty percent (50%) of its value, at the legal rate of interest, which shall accrue to the sinking fund, but before the loan is made all titles shall be looked up and papers approved by the county attorney.
  3. For the 1966 tax year and for all subsequent years the rate levied by the levying authority under the provisions of this section for levies which were approved prior to December 16, 1965, shall be the compensating tax rate as defined in KRS 132.010 , except as provided in subsection (4) of this section.
  4. Notwithstanding the limitations contained in subsection (3) of this section no tax rate shall be set lower than that necessary to provide such funds as are required to meet principal and interest payments on outstanding bonded indebtedness.

History. 4308: amend. Acts 1965 (1st Ex. Sess.), ch. 2, § 9.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Maximum Road Tax.
  3. Appropriation from General Taxes.
  4. Application of Funds.
  5. Powers of Fiscal Court.
  6. Refunding Bond Issue.
  7. Loan of Sinking Fund.
  8. Collection Fee.
1. Constitutionality.

The levy of tax provided for in this section is valid under Const., § 157a to the extent of 20¢. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ). See Cleary v. Pieper, 169 Ky. 434 , 184 S.W. 4, 1916 Ky. LEXIS 707 ( Ky. 1916 ); Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

The provision of law which authorized maximum tax rate of 30¢ violated Ky. Const., § 157a, which fixes maximum rate at 20¢. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ) (decision prior to 1965 amendment).

2. Maximum Road Tax.

The 20¢ tax levy provided for in this section may be made in addition to the tax of 50¢ for general purposes provided for by Const., § 157. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

Constitution, § 157a limits the rate of county taxation for road purposes to 20¢, and whether the proceeds from such a levy are realized at once by the issue of bonds under KRS 178.170 , or whether the levy is an annual one to be spent each year on roads as and when collected under KRS 178.210 , the adoption of either statutory plan has no enlarging effect on the authority of the fiscal court to impose the tax and levies made under either provision may not run concurrently. Anderson v. Gillis, 242 Ky. 404 , 46 S.W.2d 508, 1932 Ky. LEXIS 282 ( Ky. 1932 ). See Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

3. Appropriation from General Taxes.

A fiscal court may supplement a 20¢ road tax, levied under either this section or KRS 178.210 , by appropriating for road purposes so much as it may desire out of its ordinary county tax of 50¢ for general purposes. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ). See Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

4. Application of Funds.

All money raised by a 20¢ tax for road purposes must be applied to payment of indebtedness created under Const., § 157a until this indebtedness has been satisfied in full, and if any part is appropriated or used by fiscal court for any other purpose the members of the court become subject to civil and criminal liability. Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 129 ( Ky. 1916 ). See Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

5. Powers of Fiscal Court.

A fiscal court has no authority to lend the proceeds of bonds, or sell bonds on credit, since the court has only the powers expressly granted by this statute. Webster County v. Hall, 275 Ky. 54 , 120 S.W.2d 756, 1938 Ky. LEXIS 367 ( Ky. 1938 ).

6. Refunding Bond Issue.

Where county was in default on issue of road and bridge bonds, and plan was worked out to refund issue by exchanging a new issue bearing a lower rate of interest, county had authority to agree to pay, out of road and bridge sinking fund, reasonable compensation to agent who perfected plan, the costs of publishing call notices, and service charges to an agency for handling interest and principal payments. Governor v. Wolfe County, 291 Ky. 267 , 163 S.W.2d 485, 1942 Ky. LEXIS 213 ( Ky. 1942 ).

7. Loan of Sinking Fund.

Where fiscal court did not require county treasurer to obtain security for loan of sinking fund for road bonds, treasurer is not liable for loss of funds on closing of bank. Edwards v. Logan County, 244 Ky. 296 , 50 S.W.2d 83, 1932 Ky. LEXIS 393 ( Ky. 1932 ).

Fiscal court had no power to cancel interest on note and mortgage representing investment of sinking fund under this section where there was no dispute as to amount due, maker was financially responsible, and mortgage security was ample. Ward v. Roberts, 281 Ky. 418 , 136 S.W.2d 549, 1940 Ky. LEXIS 50 ( Ky. 1940 ).

8. Collection Fee.

The sheriff is entitled to four percent commission for collecting tax levied to pay interest and provide a sinking fund for payment of county road bonds issued under KRS 178.170 . Caldwell County v. Farmer, 231 Ky. 200 , 21 S.W.2d 244, 1929 Ky. LEXIS 238 ( Ky. 1929 ). See Bailey v. Magoffin County, 238 Ky. 805 , 38 S.W.2d 923, 1931 Ky. LEXIS 314 ( Ky. 1931 ).

Research References and Practice Aids

Kentucky Law Journal.

Property Tax Revenue Assessment Levels and Taxing Rate: The Kentucky Rollback Law, 60 Ky. L.J. 105 (1971).

178.210. Special tax for construction of roads — Submission to vote — Short-term bonds.

  1. The fiscal court of any county may submit to the voters at a special election to be held for that purpose, the question of voting a tax of any sum not exceeding twenty cents ($0.20) on the hundred dollars ($100) on all property subject by law to local taxation, for the construction of the public roads and bridges of the county, as the fiscal court directs. The order of the fiscal court calling the election shall specify the amount of the tax to be levied each year and the number of years for which the tax may be imposed, not exceeding ten (10) years, and shall also provide that no money in excess of the amount that can be raised by the levy in any one (1) year shall be expended in that year.
  2. The fiscal court may borrow money and issue bonds therefor in advance of the collection of the tax for any year, but the amount borrowed shall not exceed eighty percent (80%) of the estimated tax for the year. The amount of the tax shall be estimated according to the assessment and collection of the preceding year. Any money so borrowed shall be paid out of the money raised from the tax in the year in which the money is borrowed.
  3. For the 1966 tax year and for all subsequent years the rate levied by the levying authority under the provisions of this section for levies which were approved prior to December 16, 1965, shall be the compensating tax rate as defined in KRS 132.010 , except as provided in subsection (4) of this section.
  4. Notwithstanding the limitations contained in subsection (3) of this section no tax rate shall be set lower than that necessary to provide such funds as are required to meet principal and interest payments on outstanding bonded indebtedness.

History. 4307b-1, 4307b-2: amend. Acts 1965 (1st Ex. Sess.), ch. 2, § 10.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Voting Tax Levy.
  4. Twenty Cent Limit.
  5. Funds.
  6. — Use.
  7. Enjoining Collection.
1. Constitutionality.

This section is valid as authorized by Const., § 157a. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

2. Construction.

Constitution, § 157a limits the rate of county taxation for road purposes to 20¢ and whether the proceeds from such a levy are realized at once by the issue of bonds under KRS 178.170 , or whether the levy is an annual one to be spent each year on roads as and when collected under this section, the adoption of either statutory plan has no enlarging effect on the authority of the fiscal court to impose the tax and levies made under either provision may not run concurrently. Anderson v. Gillis, 242 Ky. 404 , 46 S.W.2d 508, 1932 Ky. LEXIS 282 ( Ky. 1932 ). See Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

3. Voting Tax Levy.

The question of tax levy provided for in this section may be voted on at a special election called for that purpose or on day of regular election. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

The question of voting this 20¢ tax may be voted on at the same election as the road bond issue under KRS 178.170 , whether it be a special or regular election. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

No actual existing indebtedness is required but only a good faith purpose to undertake and accomplish specified road and bridge construction or improvement, in order to warrant submission of question of whether tax shall be levied and the levying of the tax if voted. Hughes v. Eison, 190 Ky. 661 , 228 S.W. 676, 1921 Ky. LEXIS 509 ( Ky. 1921 ).

4. Twenty Cent Limit.

Where levy of 20¢ road tax was still in effect on unpaid part of county road bond issue, the county could not make an additional tax levy under Const., § 157a or this section. Rockcastle County v. Louisville & N. R. Co., 232 Ky. 439 , 23 S.W.2d 276, 1929 Ky. LEXIS 447 ( Ky. 1929 ).

The total amount for road purposes is limited to 20¢ per $100 of assessed valuation, not to 20¢ for current expenditures and 20¢ for payment of outstanding bonds. Anderson v. Gillis, 242 Ky. 404 , 46 S.W.2d 508, 1932 Ky. LEXIS 282 ( Ky. 1932 ).

5. Funds.
6. — Use.

A sufficient part of special road tax of 20¢ voted under this section on same day road bonds were voted under KRS 178.170 , must be set aside to pay interest on and liquidate bonds, but such part as annually remains may be used in building roads and bridges. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

Special road tax of 20¢ voted under this section prior to voting of road bonds under KRS 178.170 must be appropriated first as needed for bond issue, and what is left over may then be devoted to purposes provided for by this section. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ). See Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

Fiscal court has no discretion, in determining whether funds realized from tax levy may be spent for purpose other than specified statutory purpose, as this section is mandatory insofar as purpose for which money must be used is concerned. Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

A distinction in the use of the words “improvement” and “construct” and “repair” and “maintain” has been recognized in statutes concerning highways and roads; improvement and construct mean to make better the original status while maintain and repair mean to preserve or remedy the original condition. Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

Since the purpose of this section is to improve and construct rather than to repair and maintain, the diversion or expenditure of the funds realized from the collection of the special tax levy for repair or maintenance of county roads or bridges was improper and illegal and as such expenditures were not within the purview of the specified purpose of this section they were in violation of Const., § 180 and KRS 68.110 . Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

To hold that the words “improve and construct,” when used in this section, include maintenance and repair of roads would be giving these ordinary words a strained and unwarranted meaning, a meaning not contemplated by the legislators. Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

Where fiscal court used funds from special tax levy, levied for purpose of improving and constructing county roads and bridges, for the purposes of repairing and maintaining roads and bridges, the funds were being improperly used and court erred in failing to grant a permanent injunction to prevent them from expending such proceeds in such improper manner. Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

7. Enjoining Collection.

In action to enjoin collection of illegal county road tax, both the county and a representative of bondholders should be made parties to the litigation. Anderson v. Gillis, 242 Ky. 404 , 46 S.W.2d 508, 1932 Ky. LEXIS 282 ( Ky. 1932 ). See Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

DECISIONS UNDER PRIOR LAW

1. Use of Funds.

A fiscal court may supplement a 20¢ road tax, levied under either KRS 178.200 or this section, by appropriating for road purposes so much as it may desire out of its ordinary county tax of 50¢ for general purposes. Russell County v. Hill, 164 Ky. 360 , 175 S.W. 988, 1915 Ky. LEXIS 396 ( Ky. 1915 ); Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ); Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

All money raised by a 20¢ tax for road purposes must be applied to payment of indebtedness created under Const., § 157a until this indebtedness has been satisfied in full, and if any part was appropriated or used by fiscal court for any other purpose the members of the court become subject to civil and criminal liability. Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 129 ( Ky. 1916 ).

Opinions of Attorney General.

The question of levying a special tax of 20¢ on each $100 of taxable property for the construction of roads authorized under KRS 178.210 to 178.240 can be voted on in the May primary provided a separate ballot is used. OAG 62-218 .

If equipment purchased from special levy funds is used for any purpose other than the construction or improvement of the county’s roads, it must definitely be shown what part of its cost can be attributed to that use and that cost must be paid from funds other than those of the special tax levy. OAG 66-368 .

A county could legally purchase equipment from special levy funds if that equipment was to be used for the construction or improvement of the county’s roads. OAG 66-368 .

The compensating tax rate is not applicable to any tax approved by the voters after December 16, 1965. OAG 66-749 .

If the county taxes and special district taxes, excluding school taxes and excluding a special road tax, charged to the sheriff for the year are less than $150,000, the sheriff will be allowed, by the county treasurer for collecting such taxes, 10% on the first $10,000 and 4% on the remainder but if the amount is $150,000 or more, the sheriff will be allowed 10% upon the first $5,000 and 4% on the residue and the sheriff’s fee for collecting the special road tax is 1% of the amount collected. OAG 74-64 .

It is proper and legal to place on an election ballot, other than the general election ballot, a question to the voters on whether they would be in favor of a special road tax (authorized under Const., § 157a and this section) which could be used for new construction of roads and bridges. OAG 82-602 .

Research References and Practice Aids

Cross-References.

Additional tax for road purposes, Const., § 157a.

178.220. Vote on special tax — Form of question.

  1. The question submitted to the voters shall be: “Are you in favor of a property tax of . . . . .  cents on each one hundred dollars’ ($100) worth of property in the county, to be levied each year for  . . . . .  years, for the purpose of improving or constructing, either or both, the roads and bridges of the county?” The rate of taxation and the number of years for which the tax is to be levied shall be inserted in respective blank spaces, and two (2) small squares shall be placed opposite and on the right of the question, one (1) for votes for and one (1) for votes against the measure, designated respectively by the words “Yes” and “No.”
  2. If a majority of those voting upon this proposition are in favor of it, then as soon as the result has been ascertained and certified, the fiscal court shall make provision for the road and bridge work contemplated.

History. 4307b-3.

178.230. Collection of special tax — Sheriff’s fee.

The sheriff shall collect the taxes at the same time and in the same manner that he collects other taxes and shall pay the proceeds over as the fiscal court directs. For the collection of the tax levied under KRS 178.210 to 178.240 , the sheriff shall be entitled to a commission of one percent (1%) of the amount collected.

History. 4307b-4.

NOTES TO DECISIONS

1. Construction.

This section limits sheriff to one percent (1%) commission only on road tax levied under KRS 178.210 . Caldwell County v. Farmer, 231 Ky. 200 , 21 S.W.2d 244, 1929 Ky. LEXIS 238 ( Ky. 1929 ). See Perry County v. Holliday, 231 Ky. 587 , 21 S.W.2d 989, 1929 Ky. LEXIS 326 ( Ky. 1929 ); Bailey v. Magoffin County, 238 Ky. 805 , 38 S.W.2d 923, 1931 Ky. LEXIS 314 ( Ky. 1931 ).

178.240. Advertisement of special tax election — Conduct of election.

  1. The fiscal court shall direct the sheriff to advertise the time and purpose of the election and the amount of tax to be levied each year. The advertisement shall be published pursuant to KRS Chapter 424.
  2. The election shall be held under the general election laws.

History. 4307b-5, 4307b-6: amend. Acts 1966, ch. 239, § 156.

DECISIONS UNDER PRIOR LAW

1. Time of Election.

An election to determine whether fiscal court shall issue county bonds for road and bridge improvement may be held on a day other than the day for the regular election. Albright v. Ballard, 164 Ky. 747 , 176 S.W. 185, 1915 Ky. LEXIS 441 ( Ky. 1915 ).

Research References and Practice Aids

Cross-References.

Day on which elections must be held, Const., § 148.

178.250. Joint bridges and roads between counties.

  1. When it is necessary to build or repair any bridge across any stream on the line between two (2) counties, or to construct or repair any road between two (2) counties, or along the boundary line thereof, the fiscal courts of the counties may enter into such agreement therefor as they find best, but if they disagree, the fiscal court of each county shall appoint two (2) special commissioners who, together with the county road engineer of each county and a representative of the Department of Highways, shall meet and arrange the matter.
  2. The fiscal court of each county interested shall notify the Department of Highways of the action taken and request its assistance in the matter and the decision reached by the committee thus appointed, acting jointly with the representative of the Department of Highways, shall be binding.
  3. If the fiscal court of any county, upon being requested to do so, fails to appoint commissioners, or if either court fails in any respect to fulfill its part of the agreement with respect to work, the remedy by mandamus shall lie before the Circuit Court of the county whose fiscal court is complained of on behalf of the fiscal court of the other county, and the Circuit Court shall compel the fiscal court complained of to do what ought to be done in the matter.

History. 4309.

NOTES TO DECISIONS

  1. Necessity.
  2. Appointment of Commissioners.
  3. Ability of County to Pay.
  4. Change in Mode of Travel.
  5. Mandamus.
1. Necessity.

The courts will not review action of fiscal courts in determining necessity for a joint bridge where it is not alleged they acted corruptly or in bad faith. Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10 , 2 S.W.2d 1039, 1928 Ky. LEXIS 275 ( Ky. 1928 ).

A fiscal court cannot delegate to the commissioners authority to determine the public necessity for a bridge. Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10 , 2 S.W.2d 1039, 1928 Ky. LEXIS 275 ( Ky. 1928 ).

The statute does not provide for a declaration of necessity, and when the two (2) fiscal courts order a bridge constructed the order itself is in effect a declaration that the bridge is a public necessity. Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10 , 2 S.W.2d 1039, 1928 Ky. LEXIS 275 ( Ky. 1928 ).

2. Appointment of Commissioners.

It is only in case of disagreement that it becomes necessary to appoint commissioners who must act jointly with highway representative, and where commissioners were appointed for sole purpose of reporting on suitable location, and fiscal courts agreed and ordered bridge built, the failure of highway representative to join in report did not affect validity of joint action of fiscal courts. Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10 , 2 S.W.2d 1039, 1928 Ky. LEXIS 275 ( Ky. 1928 ).

3. Ability of County to Pay.

It is not a defense to one county that the other will be unable to pay its part of cost of bridge. Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10 , 2 S.W.2d 1039, 1928 Ky. LEXIS 275 ( Ky. 1928 ).

4. Change in Mode of Travel.

A claim that such changes have been made in modes of travel since rendition of judgment several years prior, will not relieve one county from carrying out judgment of Circuit Court ordering it to proceed to cooperate with other county in completion of joint bridge by appointing commissioners and planning for bridge. Basham v. Kissinger, 212 Ky. 522 , 279 S.W. 976, 1926 Ky. LEXIS 188 ( Ky. 1926 ).

5. Mandamus.

Since judgment had never been vacated, modified or appealed from, there was nothing Circuit Court could do but mandamus objecting county to appoint commissioners, and carry out judgment. Basham v. Kissinger, 212 Ky. 522 , 279 S.W. 976, 1926 Ky. LEXIS 188 ( Ky. 1926 ).

Cited:

Bradbury v. Barker, 311 Ky. 120 , 223 S.W.2d 578, 1949 Ky. LEXIS 1066 ( Ky. 1949 ).

DECISIONS UNDER PRIOR LAW

1. Erection Cost of One County Only.

A county may, at its own cost, erect across a boundary steam a bridge, one end of which is in another county. Washer v. Bullitt County, 110 U.S. 558, 4 S. Ct. 249, 28 L. Ed. 249, 1884 U.S. LEXIS 1717 (U.S. 1884).

The statutory provision for erection of a joint bridge does not take away the common-law right of each county to erect such a bridge at its sole cost. Washer v. Bullitt County, 110 U.S. 558, 4 S. Ct. 249, 28 L. Ed. 249, 1884 U.S. LEXIS 1717 (U.S. 1884).

Opinions of Attorney General.

The general fund of one county cannot be expended to purchase right-of-way for county roads in another county. OAG 64-191 .

178.260. Contracts for work on joint bridges and roads.

If the fiscal courts decide to make the improvements, the county road engineer of each county shall request the Department of Highways to furnish plans, specifications and estimates of cost, in accordance with KRS 178.150 , and shall advertise for bids, as provided in KRS 178.050 , in each of the counties, and the contract shall be awarded to the lowest responsible bidder who shall furnish satisfactory security to be approved by the county judge/executive of each county. The fiscal courts, voting separately, shall approve the plans and specifications and shall jointly award the contract.

History. 4310.

NOTES TO DECISIONS

Cited:

Bradbury v. Barker, 311 Ky. 120 , 223 S.W.2d 578, 1949 Ky. LEXIS 1066 ( Ky. 1949 ).

178.270. Costs of joint roads and bridges.

  1. The contract for the work shall specify the portion of the costs to be paid by each fiscal court, and each county shall be severally liable for its proportion. The cost of the work shall be borne in proportion to the total assessed value of each county.
  2. After the completion of the work, the improvement shall be maintained by the fiscal courts or other authorities of the counties or other political divisions joining in the improvements, who shall bear and pay the same proportion of the costs that they severally bore toward the cost of the original improvements.

History. 4311.

NOTES TO DECISIONS

1. Improvements.

This section is mandatory and the cost of improvements must be shared equally by the counties who shared the cost of construction equally regardless of the total assessed value of the bridge within the county and even though the road is closed in one county making the bridge of no value to the public in the county. Bradbury v. Barker, 311 Ky. 120 , 223 S.W.2d 578, 1949 Ky. LEXIS 1066 ( Ky. 1949 ).

178.280. Abandoned turnpikes and improved roads to be maintained by county. [Repealed.]

Compiler’s Notes.

This section (4318) was repealed by Acts 1964, ch. 80, § 7.

178.290. Construction of sidewalks along public roads — School bus turn-around areas.

  1. Any person may build a sidewalk composed of gravel, concrete, or other suitable material along the side of any public road in this state. The sidewalk shall not exceed sixty (60) inches in width and the construction and repair and the use of the sidewalk shall be without expense of any kind to any other person who may want to use it. All persons who desire shall be permitted to use the sidewalk, and it shall be so constructed as not to interfere with the traveling public on any public road. The governing body of each city, county, urban-county, consolidated local government, and charter county may build and repair sidewalks along public roads where the need exists for the safety of school children. Before the beginning of construction of the sidewalk, written approval must be obtained from the governmental agency having jurisdiction over the public road.
  2. The fiscal court may, where needed, build and maintain suitable areas for the safe turning around of school buses.

History. 4318: amend. Acts 1964, ch. 51, § 1; 1970, ch. 250, § 1; 2006, ch. 236, § 2, effective July 12, 2006.

NOTES TO DECISIONS

1. Condemnation by County.

This section could not be construed as prohibiting county from condemning property. Jones v. Cook, 378 S.W.2d 795, 1964 Ky. LEXIS 204 ( Ky. 1964 ).

Opinions of Attorney General.

The fiscal court can, in its sound discretion, and where such construction is needed, build and maintain suitable areas for the safe turning around of school buses, but the county would have to acquire at least an easement right from affected landowners for such areas sufficient to justify the cost to the county. OAG 72-134 .

Where a school bus must travel two-tenths or three-tenths of a mile from a county road over a private drive to reach an area maintained as a turn around pursuant to subsection (2) of this section, the county must acquire the private drive interval by agreement or condemnation, since this section strongly suggests that a turn around is part of the county road system and does not contemplate a private ownership or interval between the county’s road holdings. OAG 81-428 .

The fiscal court could, with written permission of the city having jurisdiction over a 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 have to procure the appropriate easement rights. OAG 82-136 .

The only exceptions to the basic rule that formal acceptance of a road into the county road system is a prerequisite to a fiscal court’s authority to spend county money on a road or to improve or maintain it, relate to sidewalks and bus turn-arounds for school children, as treated under this section. OAG 82-136 .

Under this section, 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; neither the school board nor the private owner is responsible for such construction. OAG 82-136 .

There does not appear to be any statute permitting the fiscal court to place county gravel on school parking lots, even though the gravel would be on public property and the school system would pay the cost of the materials. OAG 83-398 .

A school board cannot lawfully agree to provide materials paid for with school funds, or provide school funds themselves, whether under an intergovernmental agreement or otherwise, for the construction or maintenance of school bus turnarounds within the meaning of subsection (2) of this section. OAG 93-63 .

Fiscal court was not authorized to expend funds for the construction or maintenance of a private driveway needed to accommodate the parking of a school bus on property owned by a school bus driver. OAG 94-21 .

County Through Road Systems

178.300. Road passing over or obstructed by dam.

  1. Where a county road passes over a dam, the owner or occupier of the dam shall keep such dam in good order and at least fourteen (14) feet wide at the top. He shall also keep in good order a bridge of like width over the pierhead, floodgates or any waste cut through or around the dam and shall erect and keep in good order a strong railing on both sides of such bridges or dam.
  2. Every owner of a dam built after 1914, which dam, or the race or ditch connected therewith, obstructs any county road by the backing of water or otherwise, shall whenever it is necessary for the safe and convenient crossing of the same, or the pond created thereby, build and keep in repair over the dam, pond, race or ditch, a bridge like that specified in subsection (1) of this section.

History. 4322.

178.310. County roads taken for railroad purposes — Correction of unsafe conditions.

  1. The fiscal court of a county in which any county road or portion thereof is taken for railroad purposes may, upon petition of any party interested, served upon the railroad company as any other civil process, appoint a committee of three (3) to inquire whether the road or portion thereof is unsafe for travel by reason of the railroad, and whether an alteration of the old road or the construction of a new road is necessary.
  2. The committee shall examine the place where the danger is complained of, and shall give fifteen (15) days’ written notice to the persons making the complaint and the persons complained of, of an opportunity to be heard. After the hearing, the committee shall report its findings to the fiscal court, which may make an order concerning the matter.
  3. If the fiscal court orders any alteration or construction, and the railroad company fails to comply with the order, the fiscal court shall have the work done and may recover the cost from the railroad company, in the same manner that the cost of removing obstructions is recovered under KRS 179.280 .
  4. This section shall not apply to street railways or to public roads located in incorporated cities which have control of their roads, streets and alleys, or to roads which have been constructed since the railroad.

History. 4351: amended Acts 1978, ch. 384, § 312, effective June 17, 1978.

Research References and Practice Aids

Cross-References.

Penalty for breach of this section, KRS 179.990 .

178.320. Title to rights-of-way and records of discontinued roads to be filed in county clerk’s office.

  1. The county road engineer shall turn over to the county clerk all documents of title to all rights-of-way, whether acquired by gift or condemnation, and all documents relating to discontinuations of public roads, including maps, plats and surveys.
  2. The county clerk shall keep on convenient file or in books prepared for that purpose a complete record of all such documents.

History. 4297, 4321.

NOTES TO DECISIONS

1. Absence of Records.

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

178.330. County through road system for county containing city of first class or consolidated local government — Establishment — Effect.

  1. It is hereby declared that in counties containing a city of the first class or a consolidated local government a system of county through roads over which traffic can be routed or which can serve as major connecting links to state highways is a necessary and integral part of a unified system of highways, roads, and streets needed for the movement of traffic in such a metropolitan area and that the construction, reconstruction, widening, relocation, repair, maintenance, and improvement of such a system of county through roads is a proper and legitimate public function as an alternative to other authorizations or requirements.
  2. The fiscal court of a county containing a city of the first class or the consolidated local government, acting upon the basis of an engineering and traffic investigation by the county road engineer, may designate for purposes of construction, reconstruction, widening, relocation, repair, maintenance, and improvement from among the public roads within the county certain roads proposed to constitute the “county through road system.” County through roads may include:
    1. Main traveled roads;
    2. Roads in unincorporated areas necessary for the circulation of traffic within the county;
    3. Streets and roads through, within, or adjacent to cities of any class necessary for the circulation of traffic within the county; or
    4. Major roads connecting two (2) primary roads maintained by the state.
  3. As soon as the proposed county through roads are designated as provided in subsection (2) of this section, the fiscal court or a consolidated local government shall cause such county through roads to be marked on a map to be deposited with the county road engineer and to be open to public inspection. Upon the filing of the map, the clerk of the fiscal court or the clerk of a consolidated local government shall, in conformance with KRS 424.130(1)(b), have published in a newspaper of bona fide general circulation within the county:
    1. A notice of the proposed adoption of a county through road system;
    2. A description of roads or portions thereof proposed to be included;
    3. Notice of the date upon which the fiscal court or a consolidated local government will consider the adoption of the county through road system; and
    4. Notice that the map of the proposed county through road system is open to inspection in the office of the county road engineer.
  4. At any time before the adoption of the county through road system, any freeholder of the county may file a petition with the county road engineer asking for any change in the designated county through roads, setting forth the reason for the proposed change. Such petition shall be accompanied by a plat showing such proposed change. Any such petition shall be considered by the fiscal court or the consolidated local government at its meeting held on the date advertised in accordance with subsection (3) of this section. The fiscal court or the consolidated local government may accept or reject any such suggested changes in the proposed county through road system. The fiscal court or the consolidated local government may continue the consideration to a later meeting which must be advertised as provided in subsection (3) of this section. The roads which the fiscal court or the consolidated local government so designated by official resolution shall be conclusively established as the county through road system.
  5. Classifications or designations of a county through road system established by this section shall not affect or change classifications or designations made by other sections of the Kentucky Revised Statutes such as “county roads,” “main county roads,” “rural and secondary roads,” “turnpikes,” “city streets,” or similar terms; except that when there is an irreconcilable conflict arising from the actual application of this section in a given instance and a designation or classification made in other sections of the Kentucky Revised Statutes, this section shall prevail. Nothing in KRS 178.020 to 178.040 , 178.117 , 178.330 to 178.337 , 179.070 , and 179.330 shall preclude the expenditure on the county through road system, including portions within cities, of state funds allocated for public highways under the provisions of KRS 179.410 and 179.415 , or 177.320 to 177.369 , or any other section of the Kentucky Revised Statutes in accordance with the provisions of KRS 177.330 , 177.340 , or 179.440 .
  6. The provisions of KRS 178.050 to 178.100 shall not apply to a county through road system established or maintained under KRS 178.330 to 178.337 .

County through roads shall not include roads on the state highway system.

History. Enact. Acts 1964, ch. 80, § 1; 1980, ch. 188, § 136, effective July 15, 1980; 2002, ch. 346, § 186, effective July 15, 2002.

178.333. Addition of roads to through road system for county containing city of first class or consolidated local government — New roads — Relocation.

  1. The fiscal court of a county containing a city of the first class or a consolidated local government may, at any time, add other roads, or portions of roads, to the county through road system adopted in accordance with KRS 178.330 . The fiscal court or a consolidated local government shall cause the proposed addition to be marked on a map to be deposited with the county road engineer and to be open to public inspection. The same procedure set forth in KRS 178.330 for the establishment or maintenance of the county through road system shall be followed in the case of roads or portions of roads added thereto. Notice of the proposed addition to the system shall conform to KRS 424.130(1)(b).
  2. The fiscal court of a county containing a city of the first class or a consolidated local government may establish or maintain a new road in compliance with the provisions of KRS 178.115 to 178.125 , or relocate a road in accordance with KRS 178.115 , and at the same time add it to the county through road system, following the same procedure as is now set forth in KRS 178.330 and subsection (1) of this section, including notice in accordance with KRS 424.130(1)(b).
  3. The decisions of the fiscal court or the consolidated local government made in accordance with this section shall be final.

History. Enact. Acts 1964, ch. 80, § 2; 2002, ch. 346, § 187, effective July 15, 2002.

178.337. Removal of road from system — When city streets in system.

  1. After an engineering and traffic investigation and the receipt of recommendations by the county road engineer, a county through road or a portion thereof established or maintained as provided in KRS 178.330 may be detached from the county through road system. The fiscal court or the consolidated local government shall cause the proposed deletion to be marked on a map to be deposited with county road engineer and to be open to public inspection. The same procedure set forth in KRS 178.330 for the establishment or maintenance of a county through road system shall be followed in the case of roads or portions of roads detached therefrom. Notice of the proposed deletion from the system shall conform to KRS 424.130(1)(b). The fiscal court or the consolidated local government may in its discretion detach or retain the road as a part of the county through road system. The decisions of the fiscal court or the consolidated local government made in accordance with this section shall be final. Whenever any county through road has been added or detached from the county through road system in accordance with KRS 178.330 to 178.337 , the county road engineer shall accordingly amend the map of the county through road system, which map shall at all times be available for public inspection in the office of the county road engineer. Nothing herein shall be construed as automatically deleting from the county through road system any portion of the system in territory which becomes incorporated as a city or which becomes annexed to a city.
  2. Nothing in this chapter shall be construed to take from the jurisdiction or control of the legislative body of any incorporated city or consolidated local government, any road, bridge, landing, or wharf, or any other thing exclusively under the jurisdiction or control of such city or a consolidated local government. Provided, however, that roads within a city in a county containing a city of the first class or a consolidated local government may be made a part of the county through road system, in accordance with KRS 178.330 or 178.333 , or both, with the agreement of the legislative body of said city.
  3. Nothing in this chapter shall prevent any fiscal court or a consolidated local government from acquiring land by gift for public purposes.

History. Enact. Acts 1964, ch. 80, § 3; 1978, ch. 384, § 313, effective June 17, 1978; 2002, ch. 346, § 188, effective July 15, 2002; 2014, ch. 92, § 251, effective January 1, 2015.

Grade Crossing Elimination

178.350. Application of KRS 178.350 to 178.385 limited to counties containing city of first class or consolidated local government.

The provisions of KRS 178.350 to 178.385 shall apply only in counties containing a city of the first class or a consolidated local government.

History. Enact. Acts 1952, ch. 187, § 1, effective June 19, 1952; 2002, ch. 346, § 189, effective July 15, 2002.

178.355. Procedure for ordering elimination of grade crossings or change of existing overhead or underpass structure crossing county road.

  1. Whenever the fiscal court considers it reasonably necessary for the public safety, it may in the manner hereinafter provided, order any railroad company, either steam or electric, owning or operating a railroad in its county, to eliminate any existing grade crossing or change any existing overhead or underpass structure where any county road crosses the railroad tracks of such company.
  2. The fiscal court shall give at least ten (10) days’ notice by certified mail, return receipt requested to the railroad company of a hearing to be held at a time and place stated in the notice, at which hearing it shall consider whether or not the proposed grade separation or change is reasonably necessary and the most advantageous method of effecting the grade separation or change. In determining whether the proposed grade separation or change is reasonably necessary, the fiscal court shall receive evidence of, and shall consider, all relevant facts, including the present and prospective density of highway traffic and the present and prospective frequency and speed of train movements over the crossing, the adequacy of existing or proposed signals or warning devices for the protection of highway traffic at the grade crossings, the possibility and probability of personal injury to the public using the highway and to employees and passengers of the railroad company and damage to property, and the cost of the grade separation or change in relation to benefits resulting from the proposed construction. If the fiscal court finds that the grade separation or change is reasonably necessary, it shall make an order to that effect and furnish a copy thereof by certified mail, return receipt requested to the railroad company. The order shall specify a general plan for the new or changed grade separation. The order shall direct the railroad company to prepare plans, specifications and estimates of cost for the grade separation or change in accordance with the general plan prescribed by the order, or may provide that the plans, specifications and estimates of cost shall be prepared by the county if the grade separation structure shall pass over the railroad tracks. The plans, specifications and estimates of cost may, if requested by any public utility, provide facilities for such public utility.
  3. Within ninety (90) days after the entry of an order directing a grade separation or change, and the preparation of plans, specifications and estimates of cost by the railroad company, the railroad company shall present to the fiscal court, plans, specifications and estimates of cost for the grade separation or change, including the necessary approaches thereto.
  4. After receipt of the plans, specifications and estimates of cost from the railroad company the fiscal court shall give at least ten (10) days’ notice by certified mail, return receipt requested to the railroad company of a time and place for final hearing with respect to the grade separation or change. If the fiscal court elects to prepare plans, specifications and estimates of cost, it shall furnish copies thereof to the railroad company prior to or at the time it gives notice of a final hearing. At the final hearing the fiscal court shall consider whether or not the plans make reasonably adequate provision for present and future safety and convenience of highway traffic and present and future safety and efficiency of operation of trains of the railroad company, its employees and passengers, and for the development of highway and railroad facilities, and shall approve or modify the plans and specifications. It shall then consider and determine the method of doing the work, whether by the railroad company or by the county, or partly by one and partly by the other, and whether by contract or by the employees of the county or the railroad company, or both, or by any combination of these methods, and if by contract, the method and manner of advertising for bids, the time and place of opening the bids, the time when work shall be begun and completed, and all similar matters of an administrative nature. The fiscal court shall embody its conclusions in a final order, a copy of which shall be sent by certified mail, return receipt requested to the railroad company.
  5. The fiscal court may reject or order the rejection of all bids submitted for the work, or any part thereof, and require a readvertisement for bids. The fiscal court may reject all bids and elect to do the work itself, or partly by itself and by the railroad company, or by contractors, or by a combination of these methods. If the work includes a structure to support the railroad tracks, the railroad company shall have the right to supervise the construction of that part of the work. If the fiscal court elects to do the work itself there shall not be charged to the railroad company any sum in excess of that it would have been required to pay had the contract been let to the lowest bidder.
  6. In all cases where the work is let by the railroad company on contract, the work shall be done under the general supervision of the county road engineer.
  7. The cost of all work incident to or occasioned by the elimination of the grade crossing and the construction of a substituted crossing, or the reconstruction of an existing overhead or underpass structure, including, without limitation of the generality of the foregoing, the cost of preparing plans and specifications, the cost of acquisition of necessary property and property damage, if any, the construction of approaches, drainage structures, and streets and pavements, shall be paid in the proportion of fifteen percent (15%) by the railroad company and eighty-five percent (85%) by the county.
  8. As the work progresses the fiscal court shall furnish to the railroad company, and the railroad company shall furnish to the fiscal court, a monthly statement showing in detail all amounts expended in connection with the work. On or about the fifteenth of each month, the county road engineer shall prepare a statement showing the total amount expended to the close of the preceding month, the amount paid or expended by each party up to that time, and the amount due from the county to the railroad company or from the railroad company to the county. Upon receipt of the statement each party shall pay to the other the amounts shown to be due thereby.
  9. All payments made on such monthly statements shall be considered only payments on account, and upon final completion of the work the county road engineer shall prepare and furnish to the railroad company a statement showing the total cost of the work, the amount paid or expended by the county or the railroad company, and the amount due from one to the other. Each party shall be afforded reasonable opportunities to verify the statements of expenditures by the other, and the balance due as certified by the county road engineer in his final statement shall be paid by one party to the other promptly upon receipt of such final statement.
  10. The fiscal court and any railroad company may agree by contract as to the method of eliminating any grade crossing or changing any existing overhead or underpass structure. In event of such agreement all notices, hearings and proceedings shall be deemed to have been waived, and the work of eliminating the grade crossing or making the change shall be performed in accordance with the terms of the contract, with the same effect as though the work were being performed pursuant to a final order of the fiscal court.

History. Enact. Acts 1952, ch. 187, § 2, effective June 19, 1952; 1974, ch. 315, § 23; 1980, ch. 114, § 31, effective July 15, 1980.

Research References and Practice Aids

ALR

Constitutional power to compel railroad to relocate its tracks to abolish grade crossing. 55 A.L.R. 660; 62 A.L.R. 815; 109 A.L.R. 768.

178.360. Grade separation of proposed railroad and county road crossings.

  1. After June 19, 1952, if the fiscal court proposes to construct a new county road across an existing railroad, or a railroad company proposes to construct a new railroad across an existing county road, the party proposing such construction shall provide the other party with plans and specifications for its proposed construction, showing the location thereof, and, if the proposed crossing is to be separated, a general plan for such separation. The fiscal court shall give at least ten (10) days’ notice of a hearing to be held at a time and place stated in the notice, at which hearing it shall consider whether the proposed crossing shall be approved and whether a grade separation is reasonably necessary for the present and future safety and convenience of highway traffic and present and future efficient operation of the railroad company’s facilities and the safety of its employees and passengers, and in accordance with the standards prescribed for grade separations in KRS 178.355 .
  2. If the fiscal court shall find that a grade separation is reasonably necessary at such proposed crossing, it shall approve, or provide for the submission and subsequent approval of, plans and specifications for the grade separation. The determinations of the fiscal court shall be by order, and its final determination shall be by final order, which shall fix the method of doing the work in the manner provided in subsection (4) of KRS 178.355 , and which shall be served on the railroad company by certified mail, return receipt requested. If the fiscal court orders a grade separation at such proposed crossing, the entire cost of such separation shall be borne by the party proposing the crossing.
  3. The fiscal court and the railroad company may agree by contract as to the method of constructing grade separations under this section and the distribution or allocation of cost thereof, under this section, and in such event, all notices, hearings and orders shall be deemed to have been waived, and the construction of the crossing shall be performed in accordance with the terms of the contract, with the same effect as though the work was being performed pursuant to a final order of the fiscal court.

History. Enact. Acts 1952, ch. 187, § 3, effective June 19, 1952; 1974, ch. 315, § 24; 1980, ch. 114, § 32, effective July 15, 1980.

Research References and Practice Aids

Cross-References.

Fiscal court, general jurisdiction and duties, KRS 67.080 .

178.365. County road engineer to approve contracts.

All contracts let by the railroad company under KRS 178.350 to 178.385 shall be submitted to and approved by the county road engineer.

History. Enact. Acts 1952, ch. 187, § 4, effective June 19, 1952.

Research References and Practice Aids

Cross-References.

County road engineer, KRS 179.020 .

178.370. Maintenance of roadway, sidewalks, bridge, structure and approaches.

After the construction of any grade separation under KRS 178.350 to 178.385 , the county shall maintain the roadway paving and sidewalks. If the road crosses the railroad by an overhead bridge or elevated structure, the county shall maintain the bridge or structure and its approaches. If the road passes under the railroad tracks, the railroad company shall maintain the structure supporting its tracks and its abutments.

History. Enact. Acts 1952, ch. 187, § 5, effective June 19, 1952.

178.375. Appeals to Circuit Court from final orders of fiscal court.

  1. Any railroad company dissatisfied with a final order of the fiscal court directing the elimination of any existing grade crossing or change of existing overhead or underpass structure under KRS 178.355 , or a final order in respect of a new crossing under KRS 178.360 , may, within twenty (20) days after receipt by the railroad company of a copy of the order, attested by the clerk of the fiscal court, file in the clerk’s office of the Circuit Court of the county, together with a statement of the reasons why the order should not be enforced. On the filing of a copy of the order and the statement, the circuit clerk shall issue summons thereon in the same manner as summons is issued in equity actions in the Circuit Court. The trial of all appeals under this section shall be by a chancellor, and the evidence shall be taken by depositions or as the Circuit Court may direct.
  2. On the hearing of the appeal, the Circuit Court shall determine whether under the standards hereinbefore prescribed, a grade separation or change in an existing overhead or underpass structure is reasonably necessary for the public safety, whether the plans and specifications prescribed by such order make reasonably adequate provision for present and future safety and convenience of highway traffic and present and future safety of operation of trains of the railroad company, its employees and passengers, and for future development of highway and railroad facilities.
  3. Upon submission of the case, the Circuit Court shall embody its findings and conclusions of law in a final judgment, which may enjoin the fiscal court from enforcing its order, or direct the railroad company to proceed with the work in accordance with the order of the fiscal court, or in accordance with other plans and specifications prescribed by the court, or direct the fiscal court to proceed with the work in accordance with plans and specifications prescribed by the court.

History. Enact. Acts 1952, ch. 187, § 6; 1976, ch. 62, § 95.

178.380. Appeals to Court of Appeals.

Either the county or the railroad company dissatisfied with the final judgment of the Circuit Court may appeal to the Court of Appeals in accordance with the Rules of Civil Procedure.

History. Enact. Acts 1952, ch. 187, § 7; 1960, ch. 104, § 13; 1976, ch. 62, § 96.

178.385. Enforcement of order or judgment.

If any railroad company fails to comply with any order of the fiscal court issued under authority of KRS 178.350 to 178.385 or with a final judgment of the Circuit Court or Court of Appeals, the county through its fiscal court may cause to be instituted in the Circuit Court of the county an action to compel compliance with the order by mandatory process of the court.

History. Enact. Acts 1952, ch. 187, § 8, effective June 19, 1952.

Dedication of Roads, Streets or Highways

178.400. Definitions for KRS 178.405 to 178.425.

As used in KRS 178.405 to 178.425 , “general public” means any person in addition to an owner, agent, or tenant of property that abuts any road, street, or highway.

History. Enact. Acts 1976, ch. 272, § 1.

NOTES TO DECISIONS

1. Applicability.

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

178.405. Conditions requisite.

When any private road, street, or highway in an unincorporated area in any county has been used by the general public openly, continuously, and notoriously for a period of at least fifteen (15) years, it shall be implied that such road, street, or highway may be dedicated to public use; Provided, that fifty-five percent (55%) of all property owners abutting the private road, street, or highway sign a petition stating that they are willing to dedicate the road, street, or highway to public use.

History. Enact. Acts 1976, ch. 272, § 2; 2002, ch. 346, § 190, effective July 15, 2002; 2004, ch. 61, § 9, effective July 13, 2004.

178.410. Fiscal court determination.

Upon application by any person or corporation, public or private, the fiscal court shall determine whether the conditions of KRS 178.405 have been satisfied. If the court’s determination is in the affirmative, it shall notify the county works department and other appropriate agencies or departments that the road, street, or highway has been dedicated to public use.

History. Enact. Acts 1976, ch. 272, § 3.

178.415. Fee simple title in county — Minimum width.

When the fiscal court has made a determination in accordance with the provisions of KRS 178.410 that the road, street, or highway has been dedicated to public use, the county shall have a fee simple title to the part of the road, street, or highway which the plat, filed in the office of the county clerk, indicates as being for street purposes. However, if the road, street, or highway is dedicated in accordance with the provisions of KRS 178.405 , and a plat does not exist, then the fiscal court shall establish a thirty (30) foot minimum width as a condition precedent to dedication to public use, unless the fiscal court finds that a thirty (30) foot minimum cannot be met due to the topography of the road or other extraordinary circumstances.

History. Enact. Acts 1976, ch. 272, § 4; 1978, ch. 384, § 314, effective June 17, 1978; 2004, ch. 61, § 10, effective July 13, 2004.

178.420. Maintenance by county works department.

The county works department shall maintain a road, street, or highway which it has acquired pursuant to the provisions of KRS 178.405 to 178.425 in the same manner as it maintains any other county road.

History. Enact. Acts 1976, ch. 272, § 5.

178.425. Applicability to dead-end passways.

The provisions of KRS 178.405 to 178.425 do not apply to any private road, street, or highway while it exists as a dead-end passway with less than four (4) platted lots or with less than four (4) lots that are not platted. At the time such passway is no longer a dead-end passway, the provisions of KRS 178.405 to 178.425 shall become applicable.

History. Enact. Acts 1976, ch. 272, § 6.

Penalties

178.990. Penalties.

  1. Any county road engineer who fails to comply with the provisions of KRS 178.050 shall be fined not less than ten ($10) nor more than one hundred dollars ($100) for each offense.
  2. Any county road engineer who makes a change in the location of a road without complying with the provisions of this chapter shall be fined not less than twenty-five dollars ($25).
  3. Any person who injures a sidewalk constructed under the provisions of KRS 178.290 and fails to repair or replace the sidewalk shall be fined not less than four ($4) nor more than fifty dollars ($50).
  4. Any owner or occupier of a dam who fails to comply with the provisions of KRS 178.300 shall be fined two dollars ($2) for every twenty-four (24) hours of noncompliance. Where a milldam is carried away or destroyed, the owner or occupier shall not be subject to the fine until one (1) month after the mill has been put in operation.
  5. If a fiscal court or county judge/executive willfully fails to perform any duty required of it by the provisions of this chapter, except KRS 178.170 and 178.210 to 178.240 , every member of such court concurring in the failure shall be fined not less than ten ($10) nor more than one hundred dollars ($100) by the Circuit Court of the county.
  6. All fines imposed by this chapter shall be paid into the county road fund, except that in case of a privately owned road or bridge, the fines shall accrue to the owner.
  7. No fines imposed by this chapter shall bar action for damages for breach of contract.

History. 4299, 4304, 4318, 4320, 4322, 4346, 4349: amend. Acts 1978, ch. 384, § 315, effective June 17, 1978.

Opinions of Attorney General.

While the grand jury and courts cannot disturb the fiscal court when it is properly performing its ministerial duties in keeping the courthouse and county roads in proper repair, the members of the fiscal court would be subject to indictment and prosecution where charges are properly drawn alleging misfeasance or malfeasance in office, or wilful neglect in discharge of official duties. OAG 72-88 .

Research References and Practice Aids

Cross-References.

Penalty for failure of county engineer to prosecute, KRS 179.990 .

Kentucky Law Journal.

Moreland, Criminal Jurisdiction of the Kentucky Courts: A Tentative Codification. 47 Ky. L.J. 7 (1958).

CHAPTER 179 County Road Engineer and Maintenance of Public Roads

179.010. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “County roads” are as defined in KRS 178.010 .
  2. “County engineer” means county road engineer.
  3. “Obstructions” includes any object which prevents the easy, safe and convenient use of a county road for public travel.

History. 4308-2, 4338: amend. Acts 1962, ch. 162, § 1; 1964, ch. 68, § 3.

NOTES TO DECISIONS

  1. Obstructions.
  2. — Temporary.
  3. — Road Most Convenient.
  4. — Removal.
  5. Authority to Hire and Discharge Employees.
  6. County Roads and Bridges.
1. Obstructions.

The building and maintenance of a railroad across a public highway is not an obstruction within the meaning of this section. Commonwealth v. Chesapeake & O. R. Co., 189 Ky. 599 , 225 S.W. 502, 1920 Ky. LEXIS 481 ( Ky. 1920 ).

This section, defining “obstructions,” has no reference to safety zone posts placed in street to protect pedestrians. Goucher v. Louisville R. Co., 247 Ky. 504 , 57 S.W.2d 472, 1933 Ky. LEXIS 416 ( Ky. 1933 ).

2. — Temporary.

In action for damages to farm by obstruction of road where evidence was that obstruction was temporary, it was error to permit proof as to difference in market value before and after placing of obstruction. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Measure of damages to land caused by temporary obstruction of road was the diminution in the value of the use of the land during the existence of the obstruction, or the reasonable cost of removing the obstruction. Damages resulting from inability to market coal from land would be element in determining value of use. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

3. — Road Most Convenient.

Where landowner had access to highway by less convenient method than obstructed road, it was his duty to minimize his damages claimed for loss of profits from inability to market coal from land by using other means of access, and could not claim damages on basis of no access merely because most convenient road was obstructed. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

4. — Removal.

A fence which constitutes an obstruction of a public road may be removed by any member of the public entitled to use the road, if done in a peaceable manner. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Where court had held that obstruction of road was unlawful, plaintiff had right to remove obstruction, and cost of removing obstruction was sole measure of damages for period following decision holding obstruction unlawful. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

5. Authority to Hire and Discharge Employees.

In this chapter the authority to hire and discharge employees is vested not in the county road engineer, but, first, in the fiscal court, and second, if it fails to exercise that authority, in the county judge. Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 ( Ky. 1947 ).

6. County Roads and Bridges.

For the purpose of distribution of the county road fund under KRS 179.410 , “county roads and bridges” were all public roads and bridges outside of incorporated cities, except primary roads and federal parkways and bridges thereon. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Cited:

Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ); Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ); Shearer v. Hall, 399 S.W.2d 701, 1965 Ky. LEXIS 31 ( Ky. 1965 ).

Opinions of Attorney General.

A county may maintain and repair roads and driveways located on the property of the local school district provided that the county first acquire title to the roads and driveways. OAG 62-288 .

“County roads and bridges,” for the purpose of distribution of the county road fund, are all public roads and bridges outside of incorporated cities except primary roads and federal parkways and bridges thereon. OAG 85-73 .

The phrase “county engineer” as used in KRS 179.380(1), means county road engineers, and would mean county road supervisor where applicable. OAG 93-24 .

Research References and Practice Aids

Cross-References.

Acquisition of public roads by adverse possession, KRS 413.050 .

Archaeological sites, reporting discovery of, KRS 164.730 .

Construction work costing two thousand dollars or more to be supervised by professional engineer or architect, KRS 322.360 .

Ferry owners of lessees to grade banks of stream at landings, KRS 280.280 .

Fiscal court may levy taxes, rate of tax, KRS 68.090 .

Justices of peace not to be interested in improvement contracts, furnish material nor act as overseers, KRS 61.210 .

Lands may be acquired by gift; title to right of way, KRS 178.110 , 178.320 .

Legislature not to pass local and special acts concerning opening, altering, maintaining or vacating roads, Const., § 59(16).

Purchase of ferries, KRS 180.260 .

Working of prisoners on county roads, how fed and lodged, KRS 197.130 ; Const., § 253.

179.020. County road engineer or supervisor.

  1. The county judge/executive of each county, with the consent of the fiscal court, may employ a county road engineer. Any person so employed shall be either a civil or highway engineer licensed in accordance with KRS Chapter 322, or a person who successfully passed an examination for county road engineer under this section prior to March 24, 1950, and who qualified and served as such.
  2. If the fiscal court does not provide for a county road engineer, the duties of the county road engineer, except insofar as they may be in conflict with the provisions of KRS Chapter 322, shall be performed by a county road supervisor, who shall be employed by the county judge/executive with the consent of the fiscal court, and who may be removed in the same manner provided for county road engineers. No person shall be employed as county road supervisor unless he meets the following requirements:
    1. He has at least three (3) years’ practical road building experience of a nature satisfactory to examining authorities selected by the Department of Highways for the Commonwealth of Kentucky; and
    2. He has passed an examination, either oral or written, or both, given by the examining authorities, and has received a certificate of qualification from the authorities.
  3. The county surveyor may be employed as county road engineer, if qualified under subsection (1) of this section, or as county road supervisor if qualified under subsection (2) of this section, and for his services as engineer or supervisor he shall receive a salary in addition to fees allowed by law for his services as county surveyor.
  4. When no qualified applicant who is acceptable to the fiscal court is available for employment, the county judge/executive, with the consent of the fiscal court, may employ a temporary supervisor not qualified under subsection (2) of this section for a period of three (3) months, but in no event shall a temporary supervisor be used for more than three (3) months during any one (1) term of a county judge/executive.
  5. This section shall not be construed to prohibit the supervision of the construction and maintenance of roads, without additional compensation, by the county judge/executive, or by committees of the fiscal court, in counties where the position of road engineer or road supervisor has not been established by the fiscal court.
  6. Two (2) or more counties, by a contract approved by order of the fiscal court of each of the counties, may authorize the county judges/executive of the contracting counties to employ the same employee as county road engineer or county road supervisor to serve in all counties so contracting, and for the apportionment of the amount of his salary to be paid by each county.
  7. The period of employment for any county road engineer or county road supervisor shall be two (2) or four (4) years, in the discretion of the fiscal court, beginning with the second Tuesday in January of an odd-numbered year. Other terms of employment, and the salaries of all persons employed under the provisions of this section, shall be fixed by the fiscal court.
  8. Those persons serving as a county road engineer or supervisor on July 15, 1998, shall continue to serve in that capacity until the second Tuesday in January of 1999, at which time the position of county road engineer or supervisor shall be reappointed for a period of employment as provided in subsection (7) of this section.

History. 4325: amend. Acts 1950, ch. 31; 1966, ch. 255, § 165; 1998, ch. 418, § 1, effective July 15, 1998.

NOTES TO DECISIONS

  1. Appointment of Road Engineer.
  2. Fiscal Court Authority.
  3. — Employment of Members.
  4. Uniform Jurisdiction of Court.
  5. Bond and Oath.
1. Appointment of Road Engineer.

The appointment of a county road engineer under authority conferred by this section is permissive or discretionary, although if made by the county judge (now county judge/executive) the appointment must be consented to by the fiscal court. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ).

Only the county judge (now county judge/executive), and not the county commissioners as members of the fiscal court, can appoint a county road engineer. Bristow v. Shrout, 264 Ky. 125 , 94 S.W.2d 352, 1936 Ky. LEXIS 294 ( Ky. 1936 ).

Appointment by county judge (now county judge/executive) of county road engineer to succeed himself was noneffective as not having received assent of fiscal court, but being in office, he could continue therein until his successor was appointed and qualified. Bristow v. Shrout, 264 Ky. 125 , 94 S.W.2d 352, 1936 Ky. LEXIS 294 ( Ky. 1936 ).

2. Fiscal Court Authority.

The fiscal court has no power under this section to employ a superintendent of bridges. Asher v. Boatright, 294 Ky. 120 , 171 S.W.2d 27, 1943 Ky. LEXIS 398 ( Ky. 1943 ).

3. — Employment of Members.

Where neither a county road engineer nor a county surveyor is employed to look after the county roads, members of the fiscal court could be designated and paid to discharge these duties. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

Members of fiscal court may not employ themselves to aid in acting county road engineer already appointed by them. Knox Fiscal Court v. Davis, 267 Ky. 155 , 101 S.W.2d 409, 1936 Ky. LEXIS 758 ( Ky. 1936 ).

4. Uniform Jurisdiction of Court.

Law providing that fiscal court with approval of the county judge (now county judge/executive) could appoint county road engineer for a term of four (4) years in counties with population in excess of 200,000 violated the provision of Const., §§ 59, 60 and 161 that jurisdiction of county court shall be uniform, where the original statute, applicable to all counties, provided for appointment of the county road engineer for a term of two (2) years by the county judge (now county judge/executive) with the approval of the fiscal court. Beauchamp v. Henning, 292 Ky. 557 , 166 S.W.2d 427, 1942 Ky. LEXIS 78 ( Ky. 1942 ).

5. Bond and Oath.

County road engineer who did not execute the required bond nor take necessary oath of office was never legally in possession of the office. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ).

Cited:

Allison v. Borders, 299 Ky. 806 , 187 S.W.2d 728, 1945 Ky. LEXIS 796 (1945); Trimble County v. Moore, 275 S.W.2d 50, 1955 Ky. LEXIS 341 ( Ky. 1955 ); Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ); Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

DECISIONS UNDER PRIOR LAW

1. Appointment of Road Engineer.

There was not a valid appointment of road engineer by county judge (now county judge/executive) where order only showed affirmative vote of two magistrates and did not show remaining four had opportunity of expressing their consent to or disapproval of appointment. Morgan v. Champion, 150 Ky. 396 , 150 S.W. 517, 1912 Ky. LEXIS 911 ( Ky. 1912 ). See Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45 , 229 S.W. 139, 1921 Ky. LEXIS 284 ( Ky. 1921 ).

Under law that provided that the county judge (now county judge/executive) by and with the consent of the fiscal court should appoint a county road engineer, members of fiscal court could have been compelled to vote on appointment of person nominated by county judge for road engineer, but could have either consented or refused to consent to appointment. Commonwealth ex rel. Hawkins v. McCrone, 153 Ky. 296 , 155 S.W. 369, 1913 Ky. LEXIS 816 ( Ky. 1913 ). See Chaney v. Tartar, 155 Ky. 617 , 159 S.W. 1148, 1913 Ky. LEXIS 293 ( Ky. 1913 ).

2. Supervisor of Roads.

The county supervisor of roads was not liable on his official bond for injury to person caused by breaking of plank on bridge. Coleman v. Eaker, 111 Ky. 131 , 63 S.W. 484, 23 Ky. L. Rptr. 513 , 1901 Ky. LEXIS 194 ( Ky. 1901 ).

Opinions of Attorney General.

Where in a vacancy in the position of county road supervisor only one candidate was qualified and the fiscal court had a tie in the vote for the nomination and the tie continued for fifteen (15) days, the county judge (now county judge/executive) could make an appointment to the position by appropriate order. OAG 64-722 .

The services of a temporary supervisor of county roads automatically terminate at the end of three (3) months and the county judge (now county judge/executive) and fiscal court are precluded from reappointing him or any other temporary supervisor during the same term of the county judge (now county judge/executive) making the appointment. OAG 65-376 .

The county judge (now county judge/executive) and fiscal court are not authorized to employ a county road supervisor for a new term prior to the expiration of the present term of the county road supervisor. OAG 66-28 .

In a county where the position of road engineer or road supervisor had not been established, the magistrates could be reimbursed for mileage expenses out of the county treasury for actual mileage traveled in supervising the county road system. OAG 66-57 .

No road supervision work of the county judge (now county judge/executive), whether of a direct or indirect nature, can be set up as an allocable part of the judge’s salary or expenses, paid from the county treasury, and as a pro rata basis for paying such portion of the salary or expenses (attributed to highway work) from the county road fund. OAG 68-581 .

Under this section a county judge (now county judge/executive) may not override a majority of the fiscal court in selecting a county road supervisor. OAG 70-89 .

This section does not authorize the employment of a county road supervisor for a new term prior to the expiration of an existing term. OAG 70-115 .

This section requires that either a road engineer or road supervisor be appointed and be consented to within a reasonable time after the vacancy first occurs and failure to fill the position within a reasonable time will subject the fiscal court to a mandamus action. OAG 70-704 .

Where the county judge (now county judge/executive) and fiscal court do not provide for a county road engineer, this section requires the employment of a county road supervisor within a reasonable time. OAG 70-704 .

While there is a vacancy in the position of road engineer or road supervisor, the fiscal court has the responsibility for the direct supervision of county road employees in pursuing the road program but as a temporary measure only. OAG 70-704 .

A magistrate cannot be paid a fixed monthly compensation for his services rendered by way of inspecting county roads in his district when there is no county road engineer or road supervisor. OAG 70-791 .

KRS 61.210 and 61.220 do not contemplate supervisory work being done by the fiscal court on a district member basis. OAG 71-315 .

As it appears from KRS 179.060 and this section that the county engineer is not a county officer and neither KRS 61.080 nor section 165 of the Kentucky Constitution prohibits a person from holding a form of county employment and a city office or city employment at the same time, there is no incompatibility nor conflict of interest with respect to the city hiring as city engineer the person who is presently serving as county engineer. OAG 74-92 .

The county judge (now county judge/executive) appoints a county road supervisor subject to the consent of the fiscal court and in case of a tie on the consent it will remain a tie unless someone changes his mind. OAG 74-99 .

The appointment of a county road supervisor is covered by this section and not by KRS 67.040 (4), the “tie vote” statute, which applies to selection of county officers and employees generally and not to county finance matters. OAG 74-99 (opinion prior to 1978 amendment of KRS 67.040 ).

Where the the county judge (now county judge/executive) appoints a county road engineer whom the fiscal court refuses to approve and the judge refuses to make another appointment, the resulting vacancy in the office of county road engineer does not relieve the fiscal court from its mandatory duty under KRS 179.110 (repealed) to employ the necessary persons for the construction and maintenance of county roads and bridges. OAG 75-280 .

Where a fiscal court cannot agree on a candidate for county road engineer appointed by the county judge (now county judge/executive), the duties of road engineer normally should be performed by a county road supervisor appointed by the county judge (now county judge/executive) and if no appointment is made by the judge and approved by the court the position is vacant. OAG 75-280 .

KRS 67.040 concerning the breaking of tie votes in the fiscal court after fifteen (15) days by the county judge (now county judge/executive) does not apply to the selection of county road engineers and supervisors under this section. OAG 75-280 .

Where a county judge (now county judge/executive) appoints a county road engineer and a majority of the fiscal court refuses to approve the appointment, the fiscal court may not then hire a county road engineer who has not been appointed by the county judge (now county judge/executive). OAG 75-280 .

When the fiscal court votes on the county judge/executive’s nominee for road supervisor, the county judge/executive has the right to vote even on his own nominee since he has all the powers of any other member of the fiscal court, including the right to vote on all matters coming before the body. OAG 78-117 .

Where a county road supervisor was hired in 1967 who was otherwise qualified, but who had not been appointed in accordance with the provisions of this section, he was not legally in office but could have been appointed retroactively to meet the requirements of this section, and could have remained in office until his successor was appointed pursuant to this section. OAG 78-430 .

A failure to fill the position of road engineer or road supervisor within a reasonable time will subject fiscal court to a mandamus action. OAG 80-541 .

Pending appointment of a road engineer the fiscal court was responsible for seeing to it that the county bridge and road program continued without a break, but would be prohibited from receiving any additional compensation for such temporary work. OAG 80-541 .

Subsection (5) of this section was designed as a temporary expedient or emergency measure and where the fiscal court had not appointed either a road engineer or road supervisor, the section required the employment of an engineer or supervisor within a reasonable time; the fiscal court’s intent to substitute a committee consisting of the fiscal court members for such appointment on a permanent or indefinite basis was clearly illegal. OAG 80-541 .

Supervision by the county judge/executive or a fiscal court committee was intended to be a temporary expedient where no qualifying applicant was found or accepted. OAG 80-542 .

The fiscal court has an option as to whether to hire a county road engineer or a county road supervisor; where a county road engineer is not, for any good reason, hired, the fiscal court must hire a county road supervisor. OAG 80-542 .

The underlying purpose of this section is to provide for the basic continuity of the technical services of a road engineer or supervisor in each county. OAG 80-542 .

This section contemplates the appointment of a road engineer or supervisor on a regular full time basis; if the engineer or supervisor works in two (2) or more counties under subsection (6) of this section, he is a full-time employee who divides his time among the contracting counties. OAG 80-542 .

This section does not authorize the mere borrowing of another county’s road engineer or supervisor to be used on a consulting basis, the remaining supervisory tasks being assumed by the county judge/executive or fiscal court committee. OAG 80-542 .

When a multi-county road engineer is not working in a particular contracting county, the county judge/executive must supervise the road program without him since the county judge/executive is the overall executive head over the county road program, but the executive role of the county judge/executive was not intended to take the place of a road engineer or supervisor. OAG 80-542 .

A magistrate cannot simultaneously serve as a county road supervisor under this section, since the fiscal court controls and establishes the county road program and the magistrate cannot sit on the fiscal court and participate in directing what he is going to do as a county road supervisor. OAG 81-381 .

The supervision of the construction and maintenance of county roads by the county judge/executive pursuant to subsection (5) of this section is purely temporary and of an emergency nature; the burden is upon the county judge/executive and the fiscal court to either establish the county road engineer position or the county road supervisor position. OAG 82-22 .

The appointment of a county road engineer or county road supervisor is mandatory. OAG 82-142 .

The entire fiscal court may be compelled by the Circuit Court through mandamus to appoint a county road supervisor, or other necessary employee, if they arbitrarily refuse to do so. The judicial court will not name the particular person to be appointed. OAG 82-142 .

Where the county judge/executive makes his appointment of a county road supervisor, or other county personnel, the fiscal court as a body cannot arbitrarily withhold its consent. OAG 82-142 .

Fiscal court has no authority to establish an assistant to the county road supervisor, since the road and bridge function is to be carried out by the county road engineer or county road supervisor, whomever is appointed under this section. The fiscal court may designate some county road employee to assist the county road supervisor, but he may not be considered an assistant county road supervisor in the technical sense, and he can in no way take over or assume the role of the county road supervisor in the latter’s absence. OAG 82-328 .

KRS 179.060 provides, in effect, pursuant to subsection (2) of this section, that the county judge/executive can remove a county road supervisor, without the consent of the fiscal court. However, it can be said that KRS 67.710(7) amended KRS 179.060 by implication, and KRS 67.710(7) requires the county judge/executive to exercise his authority to remove county personnel with the approval of the fiscal court. OAG 84-205 .

There is no statutory impediment to the county road foreman also being appointed as county building inspector; however, the fiscal court would have to determine factually whether or not the road supervisor could perform both jobs with care and ability, if he could not, then a common-law incompatibility would exist. OAG 84-253 .

The phrase “county engineer” as used in former KRS 179.380(1), means county road engineers, and would mean county road supervisor where applicable. OAG 93-24 .

Research References and Practice Aids

Cross-References.

Oaths and bonds, KRS Ch. 62.

See note to KRS 179.060 under heading 2. Injunction, Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 (1947).

179.030. County engineer in counties of 200,000 population. [Repealed.]

Compiler’s Notes.

This section (4356L-1 to 4356L-5) was repealed by Acts 1944, ch. 173, § 11.

179.040. County engineer — Office — Supplies — Records to be turned over to successors.

  1. The county engineer shall have a properly furnished and equipped office at the county seat of his county.
  2. The fiscal court shall furnish the county road engineer and his employees in the county with all necessary books, stationery and printed forms for the records and uses of their offices.
  3. Each county engineer shall deliver the books, accounts and papers pertaining to his office to his successor at the expiration of his term of office.

History. 4325, 4356g, 4356h.

NOTES TO DECISIONS

1. Surrender of Books.

Mandatory injunction may be granted to compel county road engineer, who never gave bond or took oath of office, to surrender books, vouchers and other property. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ).

Cited:

Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

Research References and Practice Aids

Cross-References.

Public road officials to turn over books and money to successors, KRS 61.320 .

179.050. Transportation of engineer — When fiscal court to furnish.

In all counties levying a road tax amounting to over fifty thousand dollars ($50,000), the fiscal court shall, and in other counties the fiscal court may, furnish the county engineer with transportation in performing duties connected with the superintending, construction, repair and maintenance of roads in the county. For this purpose the fiscal court may purchase or rent teams or automobiles which may be used by the county judge/executive or committees of the fiscal court or board of commissioners for inspection of the roads to determine recommendations for needed work and repairs.

History. 4325, 4356v-3.

NOTES TO DECISIONS

1. Levy of Less Than Specific Amount.

In absence of abuse of discretion in paying transportation expenses of county road engineer the courts will not interfere with fiscal court of counties levying a road tax amounting to less than $50,000. Oldham County v. Arvin, 251 Ky. 317 , 64 S.W.2d 907, 1933 Ky. LEXIS 856 ( Ky. 1933 ).

A county levying a road tax amounting to less than $50,000 per year may pay expenses of transportation, such as accessories for automobile, of road engineer while in discharge of his duties. Oldham County v. Arvin, 251 Ky. 317 , 64 S.W.2d 907, 1933 Ky. LEXIS 856 ( Ky. 1933 ).

179.060. Removal of engineer — Filling of vacancy.

  1. The county judge/executive may remove the county engineer, appointed under KRS 179.020 , at any time for incompetency, malfeasance or misfeasance in office upon written charges after a hearing of which ten (10) days’ notice shall be given by serving a copy of the charges upon the county engineer. The hearing shall be at the courthouse, in the county seat.
  2. If upon the hearing the charges are sustained, the county judge/executive shall remove the county engineer and immediately notify him by mail of his removal. The notice shall state specifically the grounds for removal. The record of the proceedings shall be filed in the office of the county clerk.
  3. Within ten (10) days after the removal, the county judge/executive, with the consent of the fiscal court, shall appoint a county engineer to fill the vacancy caused by the removal. The person so appointed shall hold office for the unexpired term or until a final order of a court of competent jurisdiction determines that the original county engineer was wrongfully and illegally removed and directs his reinstatement.

History. 4326.

NOTES TO DECISIONS

  1. Appeal.
  2. Injunction.
1. Appeal.

As petition did not allege facts showing action of county judge (now county judge/executive) in removing county road engineer from office was either corrupt or arbitrary, there was no right of appeal to the circuit court. Reese v. Hickman County, 187 Ky. 641 , 220 S.W. 314, 1920 Ky. LEXIS 180 ( Ky. 1920 ).

Where no record of the evidence heard and considered by the county judge (now county judge/executive) was furnished for judicial review, the Circuit Court’s summary judgment in favor of county judge (now county judge/executive) who ordered the removal of a county engineer was erroneous. Cockriel v. Embry, 513 S.W.2d 487, 1974 Ky. LEXIS 372 ( Ky. 1974 ).

2. Injunction.

Where county engineer was removed in a proceeding under this section and the order of removal had never been set aside, modified or appealed from he could not thereafter sue in his official capacity for a mandatory injunction to require fiscal court to vacate order. Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 ( Ky. 1947 ).

Opinions of Attorney General.

As it appears from KRS 179.020 and this section that the county engineer is not a county officer and neither KRS 61.080 nor section 165 of the Kentucky Constitution prohibits a person from holding a form of county employment and a city office or city employment at the same time, there is no incompatibility nor conflict of interest with respect to the city hiring as city engineer the person who is presently serving as county engineer. OAG 74-92 .

The appointment of a county road engineer or county road supervisor is mandatory. OAG 82-142 .

The entire fiscal court may be compelled by the Circuit Court through mandamus to appoint a county road supervisor, or other necessary employee, if they arbitrarily refuse to do so. The judicial court will not name the particular person to be appointed. OAG 82-142 .

Where the county judge/executive makes his appointment of a county road supervisor, or other county personnel, the fiscal court as a body cannot arbitrarily withhold its consent. OAG 82-142 .

This section provides, in effect, pursuant to KRS 179.020(2), that the county judge/executive can remove a county road supervisor, without the consent of the fiscal court. However, it can be said that KRS 67.710(7) amended this section by implication, and KRS 67.710(7) requires the county judge/executive to exercise his authority to remove county personnel with the approval of the fiscal court. OAG 84-205 .

179.070. General powers and duties of engineer — Requirement of site development plan in certain counties.

  1. The county engineer shall:
    1. Have general charge of all county roads and bridges within the county;
    2. See that county roads and bridges are improved and maintained as provided by law;
    3. Supervise the construction and maintenance of county roads and bridges and other work of like nature undertaken by the fiscal court or a consolidated local government;
    4. Make reports as the county, consolidated local government, or fiscal court directs;
    5. Advise and direct employees of contractors how best to repair, maintain, and improve county roads and bridges;
    6. Examine the various formations and deposits of gravel and stone in the county to ascertain the materials most available and best suited for the improvement of roads therein, and, when requested by the Department of Highways, submit samples of materials and deposits and make a written report concerning the materials;
    7. Establish or cause to be established necessary grades and recommend means of drainage, repair, and improvement;
    8. Together with the fiscal court or consolidated local government, consider and either reject or approve plans, specifications, and estimates submitted for the erection or repair of bridges and the construction or maintenance of county roads;
    9. Inspect or cause to be inspected each county road or bridge during its construction or improvement, and certify to the fiscal court or the consolidated local government the progress of the work and whether or not the work is being done according to the contract, plans, and specifications prepared therefor. If the work is not being done in accordance with the contract, plans, and specifications, the county engineer may stop any further work thereunder until the fiscal court or consolidated local government has inspected and passed upon it;
    10. Remove 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;
    11. Make recommendation to municipal authorities in a county containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census, the mayor in a consolidated local government, or the county judge/executive of a county containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census for the establishment of speed limits in accordance with the powers granted to municipal authorities, consolidated local governments, and the county judge/executive by KRS 189.390(5)(a), and make recommendations to the county judge/executive or consolidated local government for the establishment of parking restrictions by the county judge/executive or consolidated local government in accordance with KRS 189.390(5)(c); and
    12. Make engineering and traffic investigations and make recommendations based thereupon to the fiscal court of counties containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census or a consolidated local government for the adoption of traffic regulations for any publicly dedicated road in unincorporated portions of the county or for any road made a portion of a county through road system, established in accordance with KRS 178.330 or 178.333 , or both, in any manner reasonably calculated to promote the safety and convenience of the traveling public and to protect and preserve the roads and streets. The fiscal court or consolidated local government may adopt regulations which may include but not be limited to the establishment on roads designated in the first sentence of this subsection, of traffic lanes, the installation or removal of electric signals and other signs and markers, the removal of traffic bumps, the limitation or prohibition of parking, and the regulation or prohibition of a size or weight deemed likely to impede traffic or injure the streets; provided, however, that if such regulation of size and weight of vehicles conflicts with state regulations, the latter shall prevail. Nothing herein shall be construed to prevent the fiscal court or consolidated local government from contracting with city authorities for the joint installation of signs, markers, and electric signals and for their maintenance.
  2. In counties containing a city of the first class or consolidated local government, or when authorized by ordinance of the fiscal court of a county containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census, having the services of a county engineer, every person, subdivider, builder, contractor, or developer of any construction project shall submit to the county engineer for his written approval a site development plan providing for the proper drainage of surface water from the development or construction site so as to prevent flooding of property in the area. If the proposed site plan does not adequately provide for such drainage, the county engineer shall order such changes as necessary before approving the site plan.

History. 4238: amend. Acts 1964, ch. 80, § 8; 1972, ch. 348, § 1; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 384, § 316, effective June 17, 1978; 1990, ch. 261, § 1, effective July 13, 1990; 1992, ch. 143, § 2, effective July 14, 1992; 2002, ch. 346, § 191, effective July 15, 2002; 2014, ch. 92, § 252, effective January 1, 2015.

Legislative Research Commission Notes.

(9/2/92). The internal numbering of this statute has been changed by the Reviser of Statutes acting under KRS 7.136(1).

NOTES TO DECISIONS

0.5. Qualified Immunity.

  1. Construction.
  2. Hiring and Discharging Employes.
  3. Bridges.
  4. Construction and Maintenance Management.
  5. Private Right of Action.
0.5. Qualified Immunity.

Under KRS 179.070 , the county engineer had the duty and authority to remove a downed tree, and he was liable for any negligence in failing to remove the trees or in improperly removing the trees; the engineer was not entitled to qualified official immunity. Wales v. Pullen, 390 S.W.3d 160, 2012 Ky. App. LEXIS 298 (Ky. Ct. App. 2012).

1. Construction.

This section does not require a road district to provide drainage. Wade v. Crowe, 258 S.W.2d 490, 1953 Ky. LEXIS 845 ( Ky. 1953 ).

2. Hiring and Discharging Employes.

Inconsistencies and ambiguities in KRS 179.110 (now repealed) and related sections including this section, respecting hiring and firing of workmen on county roads and fixing their compensation justify reference to journal of legislature to ascertain intention. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

In light cast upon intention of legislature by reference to its journal, it is manifest that legislature did not intend that power to hire and discharge workmen should be lodged in county road engineer. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

The authority to hire and discharge employees is vested not in the county road engineer but, first, in the fiscal court, and, second, if it fails to exercise that authority in the county judge (now county judge/executive) and the fiscal court had the right to discharge the superintendent of garage and office engineer in county road department over the objection of the county road engineer. Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 ( Ky. 1947 ).

3. Bridges.

The fiscal court has no authority to employ a superintendent of bridges since such duties are required to be performed by the county road engineer. Asher v. Boatright, 294 Ky. 120 , 171 S.W.2d 27, 1943 Ky. LEXIS 398 ( Ky. 1943 ).

4. Construction and Maintenance Management.

Management of road construction and maintenance is in control of county judge (now county judge/executive), regardless of whether provision is made for county road engineer. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ); Bristow v. Shrout, 264 Ky. 125 , 94 S.W.2d 352, 1936 Ky. LEXIS 294 ( Ky. 1936 ). But see Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 ( Ky. 1947 ).

Court of Appeals erred in granting a new trial because ample evidence on the issue of the county engineer's duty—to remove a tree that had fallen on a road or to warn motorists of the hazard—was presented and supported the jury verdict where the trial court's jury instructions did not misstate the engineer's duties, the duty was ministerial, after the jury heard extensive testimony that the director of public works had assigned the duty of tree removal to the assistant director in charge of operations and maintenance, and being instructed on the specific duties required of the county engineer, the jury unanimously found that he had not breached his duty, and the statute was directory and substantial compliance could satisfy its provisions. Storm v. Martin, 540 S.W.3d 795, 2017 Ky. LEXIS 508 ( Ky. 2017 ).

5. Private Right of Action.

KRS 446.070 allows a plaintiff to pursue an action under this section based on the failure of a county engineer to remove trees or other obstacles from a right-of-way because the $100 penalty prescribed in this section does not give a remedy to the aggrieved party. Ezell v. Christian County, 245 F.3d 853, 2001 FED App. 0117P, 2001 U.S. App. LEXIS 6431 (6th Cir. Ky. 2001 ).

DECISIONS UNDER PRIOR LAW

1. Liability of County Supervisor.

The county supervisor of roads was not liable on his official bond for injury to person caused by breaking of plank on bridge. Coleman v. Eaker, 111 Ky. 131 , 63 S.W. 484, 23 Ky. L. Rptr. 513 , 1901 Ky. LEXIS 194 ( Ky. 1901 ).

2. Expenditure for Bridge Construction.

The fiscal court could not have delegated to appointed bridge commissioners the power to determine amount of expenditure for building bridges. Floyd County v. Owego Bridge Co., 143 Ky. 693 , 137 S.W. 237, 1911 Ky. LEXIS 492 ( Ky. 1911 ).

NOTES TO UNPUBLISHED DECISIONS

  1. Qualified immunity.
  2. Construction and Maintenance Management.
1. Qualified immunity.

Under KRS 179.070 , the county engineer had the duty and authority to remove a downed tree, and he was liable for any negligence in failing to remove the trees or in improperly removing the trees; the engineer was not entitled to qualified official immunity. Wales v. Pullen, 390 S.W.3d 160, 2012 Ky. App. LEXIS 298 (Ky. Ct. App. 2012).

Unpublished Decision: Municipal employees were not entitled to summary judgment on the ground of qualified official immunity when it was alleged that the employees were negligent in failing to maintain the trees and signage in a safe and reasonable manner at an intersection where a motor vehicle accident occurred because genuine issues of material fact existed due to the conflicting evidence regarding the personal responsibility of each of the employees as a “county engineer” for the removal of hazardous vegetation burdening the local highways. Hicks v. Young, 2019 Ky. App. LEXIS 7 (Ky. Ct. App. Jan. 25, 2019), review denied, ordered not published, 2019 Ky. LEXIS 194 (Ky. June 5, 2019).

2. Construction and Maintenance Management.

Management of road construction and maintenance is in control of county judge (now county judge/executive), regardless of whether provision is made for county road engineer. Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ); Bristow v. Shrout, 264 Ky. 125 , 94 S.W.2d 352, 1936 Ky. LEXIS 294 ( Ky. 1936 ). But see Robards v. Barker, 306 Ky. 32 , 206 S.W.2d 67, 1947 Ky. LEXIS 949 ( Ky. 1947 ).

Court of Appeals erred in granting a new trial because ample evidence on the issue of the county engineer's duty—to remove a tree that had fallen on a road or to warn motorists of the hazard—was presented and supported the jury verdict where the trial court's jury instructions did not misstate the engineer's duties, the duty was ministerial, after the jury heard extensive testimony that the director of public works had assigned the duty of tree removal to the assistant director in charge of operations and maintenance, and being instructed on the specific duties required of the county engineer, the jury unanimously found that he had not breached his duty, and the statute was directory and substantial compliance could satisfy its provisions. Storm v. Martin, 540 S.W.3d 795, 2017 Ky. LEXIS 508 ( Ky. 2017 ).

Unpublished Decision: Road supervisor’s duty to clear foliage from alongside the county roads was not created by Ky. Rev. Stat. Ann. § 179.070(1)(j); the duty the motorist claimed the road supervisor owed him to clear foliage before he had his accident, to the extent such a duty existed, was a discretionary one under Ky. Rev. Stat. Ann. §§ 179.220 , 179.230 , and there being no evidence offered that the road supervisor’s actions were performed in bad faith, he was entitled to qualified official immunity. Mason v. Barnett, 2018 Ky. App. LEXIS 264 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Nov. 2, 2018), review denied, ordered not published, 2019 Ky. LEXIS 330 (Ky. Aug. 21, 2019).

Opinions of Attorney General.

The county road supervisor cannot legally be delegated any authority as a purchasing agent. OAG 78-621 .

Since the overall supervision of the county road program is the responsibility of the county judge/executive, the road supervisor or engineer is required to carry out his technical road duties, but under the supervision of the county judge/executive; this means that when the fiscal court wants an engineer report on the program, the fiscal court should request the county judge/executive to have himself and the road supervisor present at the fiscal court meeting or meetings for purposes of the report and any discussion which may ensue. OAG 80-412 .

Since the reporting of the road supervisor at a fiscal court meeting is mandatory, and since the county judge/executive should be present when the report is given, it is mandatory that the county judge/executive be present with the road supervisor on such report occasions. OAG 80-610 .

The county may force the removal of a gate obstructing a county road even though the gate has been there a long period of time, and further, a fiscal court cannot agree to keep a county road “gated” as this would be in violation of subdivision (10) of this section and KRS 179.240 . OAG 82-87 .

There was no conflict between subdivision (10) of this section and an ordinance designed to deal with the private landowner’s responsibility, where he was responsible for the existence of such road obstruction. OAG 84-348 .

Research References and Practice Aids

Cross-References.

Change in location of county roads, KRS 178.060 .

Contracts for county road work, bids, KRS 178.050 , 178.140 .

County road engineer to request plans from bureau of highways in certain cases, KRS 178.150 .

Public road districts, duties as to establishment of, KRS 184.040 .

Width and grade of county roads, KRS 178.040 .

179.080. County road precincts. [Repealed.]

Compiler’s Notes.

This section (4292, 4293) was repealed by Acts 1960, ch. 60, § 1.

179.090. Overseer for road precinct; appointment; exempt from road poll tax. [Repealed.]

Compiler’s Notes.

This section (4356p, 4356q) was repealed by Acts 1960, ch. 60, § 1.

179.100. Duties of overseer. [Repealed.]

Compiler’s Notes.

This section (4356r) was repealed by Acts 1960, ch. 60, § 1.

179.110. Employment and compensation of county road employes. [Repealed.]

Compiler’s Notes.

This section (4329: Acts 1948, ch. 12, § 1) was repealed by Acts 1976 (1st Ex. Sess.), ch. 20, § 8, effective January 2, 1978.

179.120. Fiscal court may require men to work on roads; compensation. [Repealed.]

Compiler’s Notes.

This section (216aa-22, 4356o) was repealed by Acts 1960, ch. 60, § 1.

179.130. Payment of money in lieu of road work. [Repealed.]

Compiler’s Notes.

This section (4356o-1) was repealed by Acts 1960, ch. 60, § 1.

179.140. County roads to be divided into sections. [Repealed.]

Compiler’s Notes.

This section (4330) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

179.150. Engineer to request contractors to put their sections in repair — Duty of engineer when contractor fails.

  1. If any citizen of a road precinct complains to the county engineer, that any contractor has failed to keep his section of road in repair in accordance with the specifications, the county engineer shall cause examinations to be made within five (5) days after the complaint has been made and if upon examination he deems the complaint well founded, he shall give written notice to the party complained of, requesting him to put his section in repair according to the specifications within a reasonable time.
  2. If the contractor fails to obey the request, the county engineer shall cause the road to be put in repair, and the cost of the repair shall be deducted from any money allowed the contractor for opening and keeping in repair the section. The fiscal court shall issue a warrant on the treasurer for the money certified, in favor of the persons employed to put the section in repair. If the amount under the control of the court is not sufficient to pay for the repairs, then the additional cost shall be recoverable from the contractor by the county engineer as other claims of equal amount are recoverable by law.

History. 4332.

179.160. Engineer not to employ relatives — Reports to fiscal court.

  1. No county engineer shall employ as a laborer on the public roads, his father, son, son-in-law, grandson, brother, brother-in-law, nephew, or first cousin by blood.
  2. On January 1 and July 1 and at such other times as the fiscal court or the county judge/executive requires, the county engineer shall present a full itemized statement of the expenditures made by him since his last report, giving number and names of employees and number of horses employed by him, the time each was employed, the amount paid to and for each, and such other matter as he deems necessary or the court requires. Statements of account shall be prepared according to the public accounting laws of the state, and be certified to by the agent of the county engineer having charge of the work.

History. 4331: amend. Acts 1978, ch. 384, § 317, effective June 17, 1978.

NOTES TO DECISIONS

  1. Hiring and Firing Employes.
  2. Reports to Fiscal Court.
1. Hiring and Firing Employes.

In light cast upon intention of legislature by reference to its journal, it is manifest that legislature did not intend that power to hire and discharge workmen should be lodged in county road engineer. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

The legislature did not intend that the power of hiring and firing foremen and laborers on county roads should be lodged in the county road engineer but that the authority should be vested first in the fiscal court under KRS 179.110 (now repealed) and 179.140 (now repealed) and secondly in the county judge (now county judge/executive) under KRS 179.110 if the court failed to exercise its authority. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

Inconsistencies and ambiguities in KRS 179.110 (now repealed) and related sections respecting hiring and firing of workmen on county roads and fixing their compensation justify reference to journal of legislature to ascertain intention. Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

2. Reports to Fiscal Court.

It is not the duty of a justice of the peace to prepare and certify to the fiscal court, work sheets giving data relative to persons working on public roads in his district. Commonwealth use of Warren County v. Cox' Adm'r, 264 Ky. 327 , 94 S.W.2d 632, 1936 Ky. LEXIS 305 ( Ky. 1936 ).

Cited:

Chatham v. Davenport, 187 Ky. 801 , 220 S.W. 1062, 1920 Ky. LEXIS 209 ( Ky. 1920 ); Bristow v. Shrout, 264 Ky. 125 , 94 S.W.2d 352, 1936 Ky. LEXIS 294 ( Ky. 1936 ).

Research References and Practice Aids

Cross-References.

Report and accounting of state funds, KRS Ch. 46.

179.170. Fiscal court may purchase machinery — Engineer to care for road machinery. [Repealed.]

Compiler’s Notes.

This section (4335, 4356v-2) was repealed by Acts 1978, ch.118, § 19, effective June 17, 1978.

179.180. Engineer may lease or hire machinery.

With the approval of the fiscal court the county engineer may lease or hire stone crushers, road rollers, traction engines and other road machinery. The expense thereof shall be paid by the fiscal court as other such claims are paid by it out of the road fund for the repair and improvement of the public roads of the county.

History. 4336.

NOTES TO DECISIONS

1. Lease-Purchase Contract.

Where fiscal court entered into a lease-purchase contract for road machinery and county thereafter exercised option to purchase the machinery and paid nearly the full purchase price and constantly used the machinery and suit was filed by citizen and taxpayer for return of the money on theory contract was illegal because no advertisement for bids was made as provided in KRS 178.050 and because the machinery was not purchased from county road funds or from proceeds of bonds issued as provided by this chapter, if the purchase contract was void the lease contract would still be in effect and all unpaid rent would be due since this section allows the lease of machinery by a fiscal court without bid. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Cited:

  1. & W. Equipment Co. v. Carroll, 377 S.W.2d 895, 1964 Ky. LEXIS 509 ( Ky. 1964 ).

179.190. Engineer may acquire gravel and stone and natural sources thereof. [Repealed.]

Compiler’s Notes.

This section (4337) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

Legislative Research Commission Note.

KRS 67.150 , 70.550 , 70.560 , 70.570 , 97.791 , 179.190 , 182.030 , 182.040 , 204.050 , were amended in Reviser’s Bill, 1978 Acts, ch. 384, HB 607, secs. 145, 165, 166, 167, 226, 318, 322, 323 and 341; however, 1978 Acts, ch. 118, HB 152, sec. 19 repealed them and prevails. See KRS 7.136(3).

179.200. Engineer to inspect roads and bridges, remove stones and weeds, record description of roads and construct foot bridges. [Repealed.]

Compiler’s Notes.

This section (4334) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

179.210. Removal of obstructions by contractor or engineer — Repair of bridges — Payment of cost.

When a county road is suddenly obstructed or a county bridge becomes unsafe, if it is under contract for continuous maintenance as provided in KRS 178.140 , the county engineer shall immediately notify the contractor on whose section of road the obstruction occurs, and within twenty-four (24) hours or as soon as practicable thereafter, such contractor shall remove the obstruction. If the contractor makes no effort to remove the obstruction within twenty-four (24) hours, the county engineer shall immediately employ necessary persons, machinery and teams, and without avoidable delay, cause the obstruction to be removed from the public road, or the bridge to be made safe. The cost of removal shall be recoverable from the contractor, as provided in KRS 179.150 . But if the section of obstructed road is not under contract, the county road engineer shall immediately remove the obstructions in like manner, and the cost thereof shall be paid by the fiscal court out of the county road fund.

History. 4334.

179.220. Fiscal court may order weeds, shrubs and overhanging branches to be removed — Hedges to be trimmed.

When ordered by the fiscal court, every owner and manager of lands bordering on the public roads shall clear away and carry from alongside the roads, all bushes, weeds, shrubs and overhanging limbs of trees and other obstructions, and keep all hedge fences along the road so trimmed that they at no time will become more than five (5) feet high.

History. 4342a-1.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
1. Constitutionality.

This section, KRS 179.230 and 179.990 are constitutional, as enacted for the public safety under the police power. Commonwealth v. Watson, 223 Ky. 427 , 3 S.W.2d 1077, 1928 Ky. LEXIS 362 ( Ky. 1928 ).

2. Construction.

The act is broad enough to include bushes and weeds within the limits of the highway. Commonwealth v. Watson, 223 Ky. 427 , 3 S.W.2d 1077, 1928 Ky. LEXIS 362 ( Ky. 1928 ).

DECISIONS UNDER PRIOR LAW

1. Liability of Landowner.

Where overseer authorized adjacent landowner to dig ditch alongside road to drain mudhole in road, and ditching was necessary, landowner was not liable to county for injuries to road from ditch. Hickman County v. Viverett, 158 Ky. 485 , 165 S.W. 688, 1914 Ky. LEXIS 660 ( Ky. 1914 ).

Opinions of Attorney General.

An ordinance which fixed a penalty of ten dollars to $50.00, while KRS 179.990(2), dealing with the same subject matter as dealt with in this section, fixed a penalty of $20.00 to $50.00 was unconstitutional to the extent it fixed a penalty for violation at less than that imposed by statute for the offense. OAG 84-348 .

Where the trees, bushes or other obstacles are located on privately-owned land adjoining the county road right-of-way, and where the county judge/executive, with the help of the county road supervisor, determines that the trees or other obstacles are located on private property and determines that such obstacles interfere with the visibility of drivers traversing the particular road segment so as to constitute a traffic hazard, the county judge/executive may proceed to seek enforcement of county ordinance that requires landowners to remove such obstacles. OAG 84-348 .

179.230. When removal to be made — Notice of requirements to be published.

  1. The brush, bushes, weeds, overhanging limbs of trees and all other obstructions along the roads shall be removed between July 1 and August 20 of each year, and the county engineer shall publish in some county paper for at least two (2) consecutive weeks before July 1 of every year, in the manner provided in KRS Chapter 424, the requirements of KRS 179.220 and of this section and the order of the fiscal court.
  2. The cost of the publication required by subsection (1) of this section shall be paid by the fiscal court of the county in which the notices were published and posted.

History. 4342a-2, 4342a-4: amend. Acts 1970, ch. 92, § 57.

NOTES TO UNPUBLISHED DECISIONS

1. Discretionary Duty.

Unpublished Decision: Road supervisor’s duty to clear foliage from alongside the county roads was not created by Ky. Rev. Stat. Ann. § 179.070(1)(j); the duty the motorist claimed the road supervisor owed him to clear foliage before he had his accident, to the extent such a duty existed, was a discretionary one under Ky. Rev. Stat. Ann. §§ 179.220 , 179.230 , and there being no evidence offered that the road supervisor’s actions were performed in bad faith, he was entitled to qualified official immunity. Mason v. Barnett, 2018 Ky. App. LEXIS 264 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Nov. 2, 2018), review denied, ordered not published, 2019 Ky. LEXIS 330 (Ky. Aug. 21, 2019).

179.240. Owner to remove obstructions — Dead trees not to be left standing near roads.

  1. The owner or occupant of land situated along a public road shall remove from the right-of-way, all obstructions, including fences and buildings, which have been placed there either by himself or by his consent.
  2. No person shall kill a tree and leave it standing within fifty (50) feet of any public road.

History. 4339, 4343.

NOTES TO DECISIONS

  1. Obstructions.
  2. — Removal.
  3. — Liability.
1. Obstructions.
2. — Removal.

A fence constructed by adjacent landowners which constituted an obstruction of a public road could be removed by any member of the public entitled to use the road, if done in a peaceable manner. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

3. — Liability.

In action for damages to farm by obstruction of road where evidence was that obstruction was temporary, it was error to permit proof as to difference in market value before and after placing of obstruction. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Measure of damages to land caused by temporary obstruction of road was the diminution in the value of the use of the land during the existence of the obstruction, or the reasonable cost of removing the obstruction. Damages resulting from inability to market coal from land would be element in determining value of use. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Where court had held that obstruction of road was unlawful, plaintiff had right to remove obstruction, and cost of removing obstruction was sole measure of damages for period following decision holding obstruction unlawful. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Where landowner had access to highway by less convenient method than obstructed road, it was his duty to minimize his damages claimed for loss of profits from inability to market coal from land by using other means of access, and he could not claim damages on basis of no access merely because most convenient road was obstructed. Anderson v. Hayes, 281 Ky. 484 , 136 S.W.2d 558, 1940 Ky. LEXIS 53 ( Ky. 1940 ).

Opinions of Attorney General.

The county may force the removal of a gate obstructing a county road even though the gate has been there a long period of time, and further, a fiscal court cannot agree to keep a county road “gated” as this would be in violation of KRS 179.070(10) and this section. OAG 82-87 .

Where the trees, bushes or other obstacles are located on privately-owned land adjoining the county road right-of-way, and where the county judge/executive, with the help of the county road supervisor, determines that the trees or other obstacles are located on private property and determines that such obstacles interfere with the visibility of drivers traversing the particular road segment so as to constitute a traffic hazard, the county judge/executive may proceed to seek enforcement of county ordinance that requires landowners to remove such obstacles. OAG 84-348 .

Research References and Practice Aids

Cross-References.

Removal of injurious materials on public roads, KRS 189.754 .

Transmission lines and appliances may be constructed along or across public roads and waters, KRS 416.140 .

179.250. Poles and wires not to obstruct roads.

Telephone, telegraph, electric railway or other electrical companies shall remove and reset poles and wires when they obstruct the use of public roads.

History. 4340.

NOTES TO DECISIONS

1. High Voltage Wires.

Placing of high voltage wires across river within 11 feet of bridge was not negligence, and power company was not liable for death of workman who was electrocuted when metal rod he was removing in repairing bridge came in contact with wires. Morton's Adm'r v. Kentucky-Tennessee Light & Power Co., 282 Ky. 174 , 138 S.W.2d 345, 1940 Ky. LEXIS 151 ( Ky. 1940 ).

Opinions of Attorney General.

Where a city deeded its publicly owned right of way along a city street to the department of highways, the department could not assume the responsibility for, or the costs of relocating sewer lines and laterals located within the public way. OAG 60-498 .

Research References and Practice Aids

Cross-References.

Construction standards of cooperative; safety, KRS 279.580 .

Use of roads for lines of municipal electric plant, KRS 96.570 .

179.260. Pipelines not to obstruct roads.

Pipeline companies whose lines have been laid across or along any public road shall fill up all excavations made by them and shall make the public road in all respects as good as it was before the excavation was made, and keep it in such condition.

History. 4341.

NOTES TO DECISIONS

1. Lines Too Near Surface.

The placing of a pipeline on or slightly under the surface of a highway may be negligence if it is so located or maintained that it could be reasonably anticipated that anyone exercising due care may be injured thereby. Mullins v. United Carbon Co., 282 Ky. 111 , 137 S.W.2d 1089, 1940 Ky. LEXIS 130 ( Ky. 1940 ).

Where pipeline laid along highway and across plaintiff’s driveway broke when plaintiff drove his auto across it in entering his driveway, he was entitled to recover from pipeline company for personal injuries thus sustained. Mullins v. United Carbon Co., 282 Ky. 111 , 137 S.W.2d 1089, 1940 Ky. LEXIS 130 ( Ky. 1940 ).

179.265. Cost of relocating utility facilities paid by public.

The cost of relocating any utility facilities originally constructed on other than public right of way required to be moved in the reconstruction or improvement of a public road shall be borne by the Department of Highways in the case of a road on the state system of highways, or by the public agency having jurisdiction over that public road and sponsoring the reconstruction or improvement.

History. Enact. Acts 1966, ch. 108, § 4.

NOTES TO DECISIONS

  1. Retroactive Application.
  2. Burden of Proof.
  3. Determination of Rights.
  4. Findings of Court.
1. Retroactive Application.

Where KRS 178.025(2), governing highway rights-of-way, was not enacted until 44 years after the electric lines were constructed, and the legislature did not expressly direct that the statute should be retroactively applied, the court could not apply KRS 178.025(2), in order to determine whether the electric lines were in right-of-way, without violating KRS 446.080(3), which prohibits the retroactive application of statutes. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

2. Burden of Proof.

Liability under this section depends upon whether the utility facility is constructed on public right-of-way and, thus, for the bureau of highways to prevail, it must establish that a particular utility facility is constructed on right-of-way, while the utility would have to prove that it was not; therefore, the affirmative of the issue, i.e., whether a particular utility facility was originally constructed on public right-of-way, is on the bureau (now department) and, if no evidence as to this issue is adduced by either side, the bureau’s (now department’s) claim under the statute would be defeated. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

The burden of proof under this section is on the bureau (now department) of highways; the bureau (now department) is, however, entitled to claim the benefit of the presumptions set forth in KRS 178.025(2) and the 1914 statute which preceded it. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

3. Determination of Rights.

This section mandates that the parties’ rights be determined as of the date on which utility’s lines were originally constructed. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

Where there was no adequate record as to the width of the right-of-way of the highway in 1922 when the electric lines were first constructed, the statute then in effect, under which the electric lines were not in the right-of-way, governed the parties’ rights, and, since the bureau (now department) of highways failed to prove that the electric lines were originally constructed within public right-of-way, the bureau (now department), and not the utility, was responsible for costs of moving lines to improve highway. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

4. Findings of Court.

Where there was no evidence to support a finding that there was any public occupancy of the disputed area prior to construction of electric lines, nor any evidence that it had ever been publicly maintained, the bureau (now department) of highways did not acquire prescriptive rights superior to utility’s so as to require utility to pay the costs of moving the electric lines to improve road. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

The trial court’s findings that public right-of-way had always been considered to extend to the fences along roads, that KRS 178.025(2) had merely codified that rule, and thus, that electric lines constructed prior to enactment of statute were originally constructed on public right-of-way, were clearly erroneous since no authorities recognize the presumption set forth in KRS 178.025(2) as a substantive rule, and since former statute in effect at time of construction of the electric lines did not either expressly or by implication create a presumption that all property between a road and the fence lines adjoining it was part of the public right-of-way. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

Research References and Practice Aids

Cross-References.

Relocation of publically owned utility equipment and appliances, cost to be borne by state, KRS 177.035 .

Water, gas and electric companies transmitting water, gas or electricity, construction and maintenance of lines or appliances, KRS 416.140 .

179.270. Engineer to remove obstructions when owner fails.

If the obstructions are not removed or reset, or if the excavations are not properly filled and maintained, within thirty (30) days after the service of a notice by the county engineer personally or by mail upon the owner or occupant or upon the company at its principal place of business, or an agent of the company within the county, requesting the removal or resetting, the county engineer shall cause the obstructions to be removed or reset and such repairs on the excavation to be made as may be necessary to place the road in its original condition. The expenses thereby incurred shall be paid in the first instance out of the money levied and collected and available therefor, and shall be charged against the owner or occupant and levied and collected as provided in KRS 179.280 .

History. 4341.

179.280. Procedure for assessing cost when engineer removes obstructions — Collection and disposition of charges.

Before assessing the costs of removing obstructions or resetting poles and wires as provided in KRS 179.240 to 179.270 , the county engineer shall serve personally, or by mail, upon the owner or occupant, a written notice, stating that at the time and place specified therein, he or his agent will assess the costs against the owner or occupant neglecting to remove the obstruction or reset the poles and wires. The notice shall be served at least ten (10) days before the time of the assessment. If directed against a corporation, it may be served upon it at its principal place of business or upon any agent within the district or county. At the time and place specified the road engineer shall hear the parties interested and shall thereupon complete the assessment, stating therein the name of the owner or occupant and the amount assessed against him. The county engineer shall return the assessment to the fiscal court of the county and the court shall cause the amount to be levied against the owner or occupant, and any uncollected assessment shall be a lien upon the property affected. The amount levied shall be collected as other taxes levied by the court, and shall be paid into the county road fund to be applied to reimbursing the fund from which the cost was defrayed.

History. 4342.

NOTES TO DECISIONS

Cited:

Fiscal Court of Fayette County v. Nichols, 287 Ky. 478 , 153 S.W.2d 986, 1941 Ky. LEXIS 570 ( Ky. 1941 ).

Opinions of Attorney General.

A county ordinance can require a public utility company to restore at its own expense and in an approved manner any public way disturbed by the public utility company placing, using, or maintaining any pole, wire, conduit, pipe, line or other fixture. OAG 79-346 .

In a franchise to a utility is the implied condition that the utility may be required to remove and relocate its facilities when such removal and relocation are in the interest of public convenience or safety. OAG 79-346 .

Research References and Practice Aids

Cross-References.

Levy and assessment of property taxes, KRS Ch. 132.

179.290. Railroad companies not to obstruct county roads.

Every railroad company, including traction line companies, which obstructs any public road, shall as far as possible put the road so obstructed in as good condition at every crossing of the railroad as it was before the obstruction, within six (6) months after the completion of the construction, repair or use of the railroad.

History. 4350.

NOTES TO DECISIONS

  1. Application.
  2. Railroads.
  3. — Rights.
  4. — Liability.
  5. Obstruction as Proximate Cause of Injury.
1. Application.

This section applies to an obstruction made by building a new railroad or by a change or addition, and does not cover a case where the railroad was constructed many years before, the remedy for which is an indictment for maintaining a nuisance. Commonwealth v. Chesapeake & O. R. Co., 189 Ky. 599 , 225 S.W. 502, 1920 Ky. LEXIS 481 ( Ky. 1920 ).

2. Railroads.
3. — Rights.

Although KRS 67.080 enjoins the fiscal court with the duty of providing for the “good condition of the highways in the county,” it is clear that a county has no statutory authority to prevent a railroad from crossing a county highway at grade level if the railroad company complies with the requirements of this section and KRS 277.060 . Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

Where railroad crossings over roads at grade level are constructed and maintained in a legal manner, under a statutory right, they cannot be said to constitute a public nuisance. Jefferson County v. Louisville & N. R. Co., 245 S.W.2d 611, 1951 Ky. LEXIS 1264 ( Ky. 1951 ).

4. — Liability.

A street railway company is not liable for injuries to travelers on the streets caused by slipperiness resulting from ice and snow, if the railway company has performed its duty to see that the street between the rails and adjacent thereto is kept so nearly level with the rails as not to endanger the lives or property of people using the street or crossing the rails. Pfiester's Adm'r v. Jones, 291 Ky. 151 , 163 S.W.2d 304, 1942 Ky. LEXIS 194 ( Ky. 1942 ).

5. Obstruction as Proximate Cause of Injury.

Where person was injured while traveling along creek bed rather than public highway, obstructions on highway were not proximate cause of injury. Dawkins Lumber Co. v. Row, 210 Ky. 666 , 276 S.W. 493, 1925 Ky. LEXIS 749 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

Elimination of grade crossing, or elimination in existing crossing, hearing by bureau (now department) of highways, costs, KRS 177.130 , 177.170 .

179.300. Engineer may enter private lands to prevent flooding of roads.

The county road engineer may enter upon any of the lands adjacent to any public road for the purpose of opening any existing ditch or drain, or for digging a new ditch or drain for the free passage of water for the drainage of public roads. He may enter upon land adjoining streams to drive piles, throw up embankments, or to perform any other work necessary to keep the streams within their proper channels, and to prevent their encroachment upon public roads or abutments of bridges. He may also enter upon the lands adjoining a public road, which during the time of high water is subject to overflow from streams to remove or change the position of a fence or other obstructions, preventing the free flow of water under or through a bridge or culvert whenever it is necessary for the protection of a public road or bridge.

History. 4352.

NOTES TO DECISIONS

1. Constitutionality.

So far as this section and KRS 179.310 attempt to confer upon county road engineer authority to take or injure private property for public purposes, without theretofore having paid or secured the damages that would result therefrom, they are unconstitutional. Wharton v. Barber, 188 Ky. 57 , 221 S.W. 499, 1920 Ky. LEXIS 231 ( Ky. 1920 ).

Research References and Practice Aids

Cross-References.

Drainage of roads established by public road districts, KRS 184.010 .

179.310. Payment of damages for engineer’s entry upon private lands.

  1. When lands are entered upon under the provisions of KRS 179.300 , the county engineer may agree with the owner of the lands subject to the approval of the fiscal court, as to the amount of damages sustained by the owner because of the entry, and the amount of damages shall be paid by the fiscal court out of the county road fund.
  2. If the county engineer is unable to agree with the owner upon the amount of the damages, the amount shall be determined and paid in the manner provided in KRS 178.110 .

History. 4353.

179.320. Erection of guideboards on county roads.

  1. When authorized or directed by the fiscal court, the county engineer shall cause guideboards to be made and placed at each intersection of a county road with another county road or with a state highway. The guideboard shall indicate the direction and distance to the county seat or other noted places to which the road leads. The letters and figures on the guideboards shall be sufficiently large and distinct to be read from a distance of forty (40) feet, and the boards shall not be placed closer than five (5) miles apart.
  2. All expenses connected with the erection of such guideboards shall be paid by the fiscal court out of the county levy.

History. 4334, 4353a-1, 4353a-3.

179.330. Names of county roads — How changed and established — Erection of signs.

  1. Every county road shall be known by the name by which it was designated on the map or plat or record in the office of the county clerk of the county in which it is located or by the order of the court establishing the road, or by the deed conveying the right-of-way for the road to the county.
  2. When the name of any road has been designated as provided in subsection (1) of this section, the name of the road can only be changed by an order of the county judge/executive or the mayor of a consolidated local government. Such order may be issued on a petition and proceeding in which fifty percent (50%) or more of the property owners abutting upon the road have joined in the petition or have been summoned for a hearing upon the petition by the county judge/executive or the mayor of a consolidated local government at a day and time designated for the hearing or in counties containing a city of the first class or consolidated local government upon the recommendation of the county engineer and of the planning and zoning commission. On similar proceeding an order may be issued designating a name for any unnamed road in the county.
  3. The fiscal court or a consolidated local government may cause signs bearing the name of each road as fixed by the county judge/executive or the mayor of a consolidated local government, to be placed on the roads, or it may, by a resolution duly recorded, authorize any person or organization to erect signs, approved as to form by the fiscal court or a consolidated local government, bearing the name designated to the road by the county judge/executive or the mayor of a consolidated local government.
  4. No person or organization shall remove or damage any sign erected as hereinabove provided for, or erect or place or cause to be erected or placed, upon a road any sign or signs, indicating, marking, or designating a road by any other name than as hereinabove provided for.
  5. Nothing in this section shall prohibit the Department of Highways from designating roads built under the supervision of the Department of Highways, either by name or number.

History. 4324-1, 4324-2: amend. Acts 1964, ch. 80, § 9; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 384, § 319, effective June 17, 1978; 2002, ch. 346, § 192, effective July 15, 2002.

NOTES TO DECISIONS

1. Absence of Order.

Fiscal court could not rely on the presumption of regularity to prove that a road was a county road, having produced no order accepting the road into its system of maintenance or changing its name to the name of a road that had been accepted by such an order. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

179.340. Planting of shade trees along roads — Care of shade trees. [Repealed.]

Compiler’s Notes.

This section (4354, 4355) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

179.350. Roads to be measured by engineer — Report.

When directed to do so by the Department of Highways, the county engineer shall cause all public roads within his county to be measured. Measurement shall be made either by the use of the cyclometer or otherwise as directed. The report on the measurement shall indicate the roads which have been surfaced with gravel, those which have been surfaced with crushed stone, brick, concrete, or other hard materials, and those which have been shaped and crowned, and the mileage of all roads.

History. 4356a.

179.360. Engineer to examine toll bridges — Owner to repair bridge — Engineer to repair bridge when owner fails.

  1. Whenever complaint in writing, on oath, is made to the county engineer that a privately owned toll bridge in the county is unsafe for public use, the county engineer shall immediately cause an examination of the bridge to be made, and if he finds that the bridge is unsafe for public use, he shall immediately notify the owner of the toll bridge or an agent of the owner that he has carefully examined the bridge on complaint and found it unsafe for public use. The owner shall immediately commence repairing the bridge and cause the necessary repairs to be made within one (1) week from the day the notice is given, or within reasonable time thereafter. No toll shall be charged for the use of the bridge until it is fully repaired.
  2. When the owner fails to repair the bridge as provided in subsection (1) of this section, the county engineer shall cause the repairs to be made and the owners of the bridge shall be liable for the expense thereof and for the services of a foreman at three dollars ($3) per day, and upon the neglect or refusal to pay such expenses upon presentation of any account thereof, the county engineer may recover expenses by action in the name of the county.

History. 4356c.

Research References and Practice Aids

Cross-References.

Construction and repair of joint bridges, KRS 178.250 to 178.270 .

179.370. Closing of roads and bridges for repairs — Temporary roads.

  1. If it appears necessary to close a county road or bridge which is being constructed or repaired, the county engineer shall execute a notice in duplicate, stating the necessity for closing the road or bridge, and describing the portion to be closed. He shall cause a copy of the notice to be posted at each end of the portion of the road or bridge to be closed, and shall close such portion to travel by erecting suitable obstructions and posting conspicuous notices to the effect that it is closed. Not more than one (1) mile of any county road shall be closed at one (1) time.
  2. The county engineer shall provide a new location for constructing a temporary road to be used in lieu of the closed road, and may erect temporary bridges when necessary. For the purposes of locating or constructing the temporary road or bridge, the county engineer may enter upon the lands adjoining or near the closed road, and may, with the approval of the fiscal court, agree with the owners of the lands as to the damages caused thereby.
  3. If the county engineer is unable to agree with the owner upon the amount of damages sustained, the amount shall be ascertained and paid as provided in KRS 178.110 .
  4. When a county road, or bridge, has been closed to the public as provided in this section, no person shall disregard the obstructions and notices and drive or ride over the portion of the road, or bridge, so closed.

History. 4356f.

NOTES TO DECISIONS

Cited:

Cranley v. Boyd County, 266 Ky. 569 , 99 S.W.2d 737, 1936 Ky. LEXIS 710 ( Ky. 1936 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ), overruled in part, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Insurance, maintenance and operation of state bridges, KRS 180.130 and 180.190 .

179.375. Acceptance of donations of roads and driveways to churches, cemeteries and schools.

All counties may accept donations in fee to roads and driveways used by the public in connection with churches, cemeteries and public school buildings. After such acceptance by any county, such roads and driveways shall become a part of the county road system and may be constructed, reconstructed and maintained in accordance with existing law.

History. Enact. Acts 1962, ch. 162, § 2.

NOTES TO DECISIONS

1. Absence of Records.

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

179.380. Approaches to be kept in repair by owner or tenant.

  1. The owner or tenant of lands fronting on a public road shall construct and keep in repair all approaches or driveways to and from the public road under the direction of the county engineer.
  2. No owner or tenant shall fill up any ditch or place anything in any ditch so as to interfere with the purposes for which it was made.

History. 4356b.

NOTES TO DECISIONS

1. Authority to Improve Private Property.

A county is unauthorized to improve the private property of its citizens. Scott v. Massachusetts Bonding & Ins. Co., 273 S.W.2d 350, 1954 Ky. LEXIS 1154 ( Ky. 1954 ).

Opinions of Attorney General.

A county road department is prohibited from providing, at public expense, labor necessary to install a culvert to enhance access to private property from a county road. OAG 93-24 .

A culvert or sewer pipe installed on a county road right-of-way to facilitate access to private property was a part of an “approach” or driveway within the meaning of subsection (1) of this section. OAG 93-24 .

The phrase “county engineer” as used in subsection (1) of this section, means county road engineers, and would mean county road supervisor where applicable. OAG 93-24 .

The Department of Highways may install and maintain culvert pipes as provided in 603 KAR 1:020. OAG 93-79 .

Pursuant to subsection (1) of this section, a landowner or tenant is obligated to construct and maintain approaches to public roads in the absence of such construction or maintenance by the state or county; however, the state or county is not forbidden to perform a portion of the construction work itself in order to insure that the integrity of the road will not be compromised as a result of improper installation work. OAG 93-79 .

179.390. Payment of claims for county road work — Engineer to present annual itemized account to fiscal court. [Repealed.]

Compiler’s Notes.

This section (4333) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

179.400. Counties receiving state aid — Fiscal court to appropriate money for road purposes — Contract or cooperative agreement with department for construction, reconstruction, and maintenance of county roads and bridges.

  1. The fiscal court of any county receiving state aid shall appropriate sufficient money to keep all county roads in the county in good repair and free from obstructions. The cost of all repairs and removals of obstruction shall be paid by the treasurer of the county upon the order of the fiscal court, and all bills for repairs or for removal of obstructions shall be verified by affidavit, and shall be certified to be correct by the county engineer.
  2. The fiscal court of any county receiving state aid may, if it deems proper, enter into contract or cooperative agreement with the Department of Rural and Municipal Aid for the construction, reconstruction, and maintenance of county roads and bridges selected by the fiscal court. Any contract or cooperative agreement shall designate those roads which the department shall be required to construct, reconstruct, or maintain and shall not be in excess of the projected county allotment for any one (1) fiscal year. The county shall not be responsible for payment to the department of any costs not specified with the contract or cooperative agreement.

History. 4356t-14: amend. Acts 1984, ch. 350, § 8, effective July 13, 1984; 2005, ch. 98, § 11, effective June 20, 2005; 2009, ch. 13, § 14, effective June 25, 2009.

NOTES TO DECISIONS

1. Discretionary Improvement of Particular Roads.

Group of citizens of city were not entitled to mandatory injunction compelling fiscal court to improve surface of a particular road, the fiscal court having sole discretion to determine on which roads improvements shall be made and what the nature of the improvements shall be. Madison Fiscal Court v. Edester, 301 Ky. 1 , 190 S.W.2d 695, 1945 Ky. LEXIS 685 ( Ky. 1 945 ).

This section does not and was not intended to impose any duty upon the fiscal courts to make repairs or improvements on any particular road or roads; it places upon the county the duty generally to keep its roads in repair and to appropriate the money that is available for that purpose, but it is within the discretion of the fiscal court to determine the road or roads which shall be improved and the time and method of such improvements. Madison Fiscal Court v. Edester, 301 Ky. 1 , 190 S.W.2d 695, 1945 Ky. LEXIS 685 ( Ky. 1 945 ).

Opinions of Attorney General.

Counties do not have to allocate road funds to construct, reconstruct or improve city streets even when said streets have been designated as a part of the county road system. OAG 65-501 .

The proper use and the allocation of the county road fund lies within the sound discretion of the fiscal court and the courts are not inclined to reverse their actions relating to appropriations and allocations unless the facts reveal that they have acted arbitrarily or unreasonably in making such appropriations and allocations. OAG 78-334 .

Considering that the statutes permit the spending of Rural and Secondary Road Fund money on “county roads” (as defined by KRS 178.010 ), under the explicit terms of KRS 177.330(1), the Department of Rural and Municipal Aid and the fiscal court must come to an agreement in order that the Transportation Cabinet can proceed with a “county road” project, pursuant to KRS Ch. 177 and this chapter. OAG 85-73 .

179.410. Allocation of funds appropriated to counties.

The Department for Local Government shall allocate the sum appropriated by the General Assembly from the funds arising under the provisions of KRS 177.320(2), for the construction, reconstruction, improvement, and maintenance of county roads and bridges in accordance with the provisions of KRS 177.360(1).

History. 4308-2: amend. Acts 1944, ch. 105; 1946, ch. 174; 1964, ch. 10, § 1; 1974, ch. 291, § 2; 1980, ch. 218, § 13, effective July 1, 1980; 1984, ch. 350, § 9, effective July 13, 1984; 1986, ch. 374, § 12, effective July 15, 1986; 1998, ch. 69, § 67, effective July 15, 1998; 2007, ch. 47, § 84, effective June 26, 2007; 2010, ch. 117, § 80, effective July 15, 2010.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Decrease in Appropriations.
  3. County Roads and Bridges.
  4. Formula.
1. Constitutionality.

The 1964 amendment to this section did not violate Const., § 51. Cook v. Ward, 381 S.W.2d 168, 1964 Ky. LEXIS 318 ( Ky. 1964 ).

2. Decrease in Appropriations.

A county was authorized to issue bonds to cover indebtedness for necessary governmental expenses where debt did not exceed constitutional limit and the major part of the indebtedness was due to a large decrease in state appropriations for county roads and bridges. Russell v. Fiscal Court of Boyd County, 274 Ky. 375 , 118 S.W.2d 756, 1938 Ky. LEXIS 283 ( Ky. 1938 ).

3. County Roads and Bridges.

“County roads and bridges” for the purpose of distribution of the county road fund were found to be all public roads and bridges outside of incorporated cities, except primary roads and federal parkways and bridges thereon. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

4. Formula.

Where complaining taxpayers argued that the formula for allocation was arbitrary and discriminatory in violation of sections 2, 3, 59 and 60 of the Kentucky Constitution and the fourteenth amendment of the U.S. Constitution because it gave no weight to overall population or to number of cars per mile of rural roads, the court concluded that such factors were not so directly related to the accomplishment of the public purpose of improving and maintaining rural roads as to require that they be included in the formula. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Opinions of Attorney General.

Where a county fiscal court designated a road on county property as a public road, a portion of the funds allocated to the county under this section should be expended, if the county desires, on the blacktopping of the roadway, subject to the availability of funds and the specific conditions contained in KRS 179.420 (now repealed). OAG 71-298 .

The term “secondary and rural” is broad enough to include “county roads,” but “county roads” are not necessarily “secondary and rural.” OAG 79-533 .

Since no state road equipment purchased by the division of equipment, bureau (now department) of highways had been bought with county road funds, and since there was no agreement on the part of the state to transfer any equipment used on county roads to the counties, and because there is no statute providing for that, there is no legal basis for transferring state road equipment used on county roads to the counties. OAG 80-356 .

“County roads and bridges,” for the purpose of distribution of the county road fund, are all public roads and bridges outside of incorporated cities except primary roads and federal parkways and bridges thereon. OAG 85-73 .

Research References and Practice Aids

Cross-References.

Appropriations for county roads, KRS Ch. 47.

Rural and secondary roads, improvement by state, KRS 177.320 to 177.369 .

179.415. Payment of pro rata share of funds appropriated to counties.

  1. On and after the fiscal year beginning July 1, 1980, and each fiscal year thereafter, the Department for Local Government shall pay to each county its pro rata share of any funds appropriated and any unexpended balance of funds appropriated for construction, reconstruction, improvement, and maintenance of county roads and bridges. During each fiscal year, the Department for Local Government shall make quarterly payments to each such county of the funds allocated in accordance with KRS 177.369 .
  2. The expenditure of any money received by the county in accordance with the provisions of subsection (1) of this section shall be made solely for the purpose of construction, reconstruction, improvement, and maintenance of county roads and bridges.
  3. Any county which has received any money in accordance with the provisions of subsection (1) of this section shall retain all records of the expenditure of the money for a period of five (5) years and said records shall be subject to audit by the Department for Local Government for said period of time in order to determine the proper expenditure of said money for the purpose required by KRS 179.410 .

History. Enact. Acts 1980, ch. 218, § 14, effective July 1, 1980; 1986, ch. 374, § 13, effective July 15, 1986; 1998, ch. 69, § 68, effective July 15, 1998; 2007, ch. 47, § 85, effective June 26, 2007; 2010, ch. 117, § 81, effective July 15, 2010.

Opinions of Attorney General.

A county’s pro rata share of road funds paid by the department of finance (now Finance and Administration Cabinet) may be expended, as applied to county roads and bridges and county urban roads and bridges, for labor, materials purchased, equipment purchased and equipment which the fiscal court finds it necessary to rent for one or more specific road projects. OAG 80-252 .

Since no state road equipment purchased by the division of equipment, bureau (now department) of highways had been bought with county road funds, and since there was no agreement on the part of the state to transfer any equipment used on county roads to the counties, and because there is no statute providing for that, there is no legal basis for transferring state road equipment used on county roads to the counties. OAG 80-356 .

179.420. Use of state money appropriated to counties — Joint plans. [Repealed.]

Compiler’s Notes.

This section (4308-2, 4308-3: amend. Acts 1944, ch. 64, § 1; 1960, ch. 140, § 1) was repealed by Acts 1980, ch. 218, § 15, effective July 1, 1980.

179.430. Department of highways to direct expenditures — Prescribe rules. [Repealed.]

Compiler’s Notes.

This section (4308-4, 4308-5: amend. Acts 1960, ch. 140, § 2, effective June 16, 1960) was repealed by Acts 1980, ch. 218, § 15, effective July 1, 1980.

179.440. Counties may spend county road funds.

Nothing in KRS 179.410 and 179.415 shall prohibit any county from spending county road funds for the further and additional maintenance, reconstruction and improvement of county roads.

History. 4308-6.

179.450. Engineer to bring actions for county. [Repealed.]

Compiler’s Notes.

This section (4356d) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

179.460. Engineer not to influence voters.

No county engineer shall directly or indirectly influence or attempt to influence any voter in any election in the casting of his vote.

History. 4356n.

Opinions of Attorney General.

This section in prohibiting a county road engineer from directly or indirectly influencing or attempting to influence any voter in any state, county or district election in the casting of his vote for or against any candidate in effect prohibits a county road engineer from running for any elective office. OAG 77-18 .

179.470. Maintenance of subdivision roads in counties.

  1. In counties containing a city with a population equal to or greater than eight thousand (8,000) but less than twenty thousand (20,000), and not containing a city of the first class or a consolidated local government, any street or road located outside of the corporate limits of an incorporated city which is a street or road of a subdivision established by a recorded plat that dedicates the street or road to public use, shall be maintained by the fiscal court of the county in the same manner that roads established under KRS 178.115 are maintained, if the street or road is at least one thousand (1,000) feet in length and at least fifty percent (50%) of the lots abutting the street or road contain houses which are occupied, and the street or road has been or shall be so constructed as to meet the approval of the county road engineer or, if there is no county road engineer, the approval of the fiscal court, such approval being based upon the established standards for county road construction within the county.
  2. Notwithstanding the provisions of KRS 178.010(2), in counties containing a city of the first class or a consolidated local government, any street or road located in the area of the county not within a city with a population that equals or exceeds three thousand (3,000) or within the area formerly comprising a city of the first class, which is a street or road of a subdivision that dedicated the street or road to public use, may be maintained by the fiscal court of the county or consolidated local government as the case may be, in the same manner as provided in subsection (1) and subject to the same conditions. In addition, street lights and other improvements already established may be maintained by the fiscal court or consolidated local government. The county or consolidated local government shall be reimbursed for the cost of such maintenance by the abutting property owner whose proportionate share of the cost of maintenance shall be added to the owner’s county tax bill and collected in the same manner as other taxes.
  3. Notwithstanding the provisions of KRS 178.010(2), in counties containing a population between eighty thousand (80,000) and one hundred fifteen thousand (115,000) and a city with a population equal to or greater than twenty thousand (20,000) or in counties containing a city with a population that is less than eight thousand (8,000) and not a city with a population that equals or exceeds eight thousand (8,000), any street or road in an unincorporated area or a city with a population of less than one thousand (1,000) of the county, which is at least two hundred (200) feet in length and dedicated to public use, may be maintained by the fiscal court of the county in the same manner as provided in subsection (1) of this section. In addition, street lights, garbage collection, water, and sewer services may be provided by the fiscal court. The county shall be reimbursed for the cost of such maintenance and services by the abutting property owner whose proportionate share of the cost of maintenance and services shall be added to the owner’s county tax bill and collected in the same manner as county taxes. Further, upon the petition of fifty percent (50%) or more of the abutting property owners of the street or road, the fiscal court may by proper resolution provide for the improvements.
  4. No street or road shall be accepted by a fiscal court or consolidated local government under the provisions of subsection (2) or (3) of this section for county maintenance unless twenty-five percent (25%) of the abutting property owners petition the fiscal court or consolidated local government for county maintenance. The fiscal court or consolidated local government within thirty (30) days thereafter shall hold a public hearing on the petition. If fifty percent (50%) of the abutting property owners agree in writing to accept county maintenance, the fiscal court of the county or the consolidated local government may maintain the road or street in the same manner as provided in subsection (2) or (3) of this section as applicable and subject to the same conditions.
  5. For the purposes of this section, the population of a city shall be determined by using the most recent federal decennial census data.

History. Enact. Acts 1950, ch. 5; 1956, ch. 217; 1972, ch. 79, § 1; 1976, ch. 337, § 1; 1980, ch. 105, § 1, effective July 15, 1980; 2002, ch. 346, § 193, effective July 15, 2002; 2014, ch. 92, § 253, effective January 1, 2015.

NOTES TO DECISIONS

1. Unrecorded Plat.

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

Opinions of Attorney General.

Although a road segment lying within the boundaries of a sixth-class city may be included in a special services district program established by the county, the legislative body of the city has no authority to turn over any money from its gasoline tax fund or its revenue sharing fund to the fiscal court for maintenance of the city street segment. OAG 76-331 .

Concerning the maintenance of a subdivision street or road by the county, the conditions are that the street or road must be at least 200 feet in length and dedicated to public use, and the maintenance must be performed under approval of the county road engineer or the fiscal court under established standards for county roads, as the case may be, and at least 50 percent of the lots abutting the street or road must contain occupied houses. OAG 80-583 .

The conventional system of county road acceptance under KRS 178.010(1)(b) and 178.115 , and the special acceptance procedure under this section are mutually exclusive; thus a subdivision road may be taken into the county road system by the conventional method, and the provisions of this section would not apply. OAG 80-583 .

Where a fiscal court, in a county containing a fourth class city, accepts a subdivision road or street for maintenance, including other improvements, such as street lights or garbage collection, it is mandatory that at least 50% of the lots abutting the street or road contain houses which are occupied; and special assessments to recover the county’s cost may be imposed by the county against the benefited property owners where road maintenance or other services, such as street lights and garbage collection, or both street maintenance and other services described in the statute, are involved. OAG 80-583 .

Accepting a subdivision road for maintenance or for other described services or both by fiscal court is permissive (not mandatory); however, making the special assessments for subdivision road improvements is mandatory, where this section is used. OAG 80-602 .

The fiscal court has the authority to accept a paved road in a subdivision and place the road in the county road system without cost to the owners of lots in the subdivision. OAG 80-602 .

This section contains no restrictions on the fiscal court’s accepting a “subdivision road” or a “nonsubdivision road” as a part of the county road system pursuant to KRS 178.010(1)(b) and 178.115 . OAG 80-602 .

If a subdivision street is taken over by the county for maintenance pursuant to this section, the fiscal court is responsible for seeing to it that the executive branch of county government maintains files showing the details of the special assessment placed against all abutting property owners; this would include any necessary plats or drawings of each affected lot and a separate file system for each street taken over would be logical. OAG 80-636 .

In adopting the procedures of this section, special assessments may be imposed under the specific terms of KRS 91A.200 to 91A.290 and the properties subject to assessment for road maintenance are those abutting or contiguous to the road (or both sides of the road). OAG 80-636 .

Subsection (3) of this section would apply where a county contains one city of the fourth class and the rest of the county is basically unincorporated, except for a subdivision located in an unincorporated area of the county just outside the city limits in which subdivision all but two streets have previously been placed on the county road maintenance system and dedicated to public use; however, the subdivision’s streets may be taken into the county road system pursuant to KRS 178.010(1)(a) and 178.115 pursuant to the judgment of the fiscal court and, under this more conventional method, this section would not apply. OAG 80-636 .

While subsection (3) of this section mentions that the cost of the maintenance of the roads should be added to the owner’s tax bill, this could not be done, since the special assessment for maintenance of roads is merely a special charge fixed on property to finance an improvement, it is not a tax and could not very often be integrated with the tax billing procedure and the language in a statute must receive a practical construction. OAG 80-636 .

The language in subsection (3) of this section “notwithstanding the provisions of KRS 178.010(2)” simply means that the exclusive jurisdiction of the sixth-class city over its streets must give way to the fiscal court where a city street segment is taken into the county road system under this section; the city can, where the county applies this section, be absolved from the duty of maintaining such city street. OAG 80-638 .

Where the county road department agrees to provide maintenance to subdivision streets in return for payments by the residents of the subdivision through the road committee, direct reimbursements are not authorized under KRS 178.010 , KRS 178.115 , KRS 178.080 or this section; however, the reimbursement of maintenance expenses of subdivision roads through special assessments under this section would be allowed and would accrue to that part of the county road fund allocated for the maintenance of subdivision streets rather than the general road fund; thus, where the fiscal court adopts the road project under this section before the fiscal court finally adopts the budget, the cost of the road project can be set up under a special road account and where the road project is approved by the fiscal court after the budget is approved, the budget would have to be amended under KRS 68.280 to set up the special road project and unanticipated revenue by way of special assessments. OAG 81-19 .

Although a county which contains a fourth-class city may maintain any street or road which is at least 200 feet in length, dedicated to public use and located in an unincorporated area of the county pursuant to subsection (3) of this section, there is no statutory requirement for a county fiscal court to appoint trustees to maintain streets in an unincorporated area. OAG 81-169 .

The method of assessment to be applied for the county’s maintenance of subdivision roads under this section, including any services of street lights, garbage collection, water and sewer systems, is to be determined through the sound judgment of the fiscal court, which assessment shall be geared to the legislative criterion that the cost of the improvement shall be apportioned equitably on a fair basis. In so using that standard, resort may be had to the use of one or more of the methods outlined in KRS 91A.210 , depending upon the nature of the improvement and the general circumstances of property ownership related thereto. OAG 82-527 .

One of the basic conditions for the applicability of this section, as relates to maintenance of subdivision roads in counties, is that the subdivision road segment must have been dedicated to public use and where a subdivision road segment is private, this section can have no application. OAG 84-65 .

Where subdivision road segment used by public school buses in county containing a fourth-class city had not been acquired as a part of the county’s road system, the fiscal court had no authority to make repairs on that road. OAG 84-65 .

The provisions of subsections (2) and (3) of this section, requiring owners of property abutting certain subdivision roads, in certain counties, to reimburse the county for a proportionate share of the cost of maintenance of such roads, remain effective after the 1990 amendment to KRS 100.277(4); accordingly, a county does not assume “legal and financial responsibility” for maintenance of subdivision roads accepted prior to July 1990, if, by “assumption of legal and financial responsibility,” one means assumption of full responsibility for maintenance of such roads, without reimbursement from owners of property abutting them, where subsections (2) and (3) of this section are applicable. OAG 92-52 .

The attorney general opined that the 1990 amendment of KRS 100.277(4) does not provide, even in effect, for assumption of “legal and financial responsibility” for maintenance of all subdivision roads accepted prior to July, 1990, under this section, by a fiscal court. OAG 92-52 .

179.480. Dust control treatment of county road by producers transporting natural resources thereon.

  1. Upon a finding by the fiscal court that there exists an unabated dust nuisance on a county road resulting from the transportation of natural resources by truck, said court may require the producers of the natural resources that are being hauled on said road to treat said road to control dust. Said producer or producers shall be notified of the fiscal court’s finding by certified mail and shall be afforded a reasonable opportunity to treat said road to control dust prior to the county fiscal court initiating dust control treatment. The cost of treatment shall be apportioned among all producers of natural resources using said road. If a producer does not pay his proportionate share within sixty (60) days of the mailing of the bill, the fiscal court may prohibit the movement of the producer’s natural resources on county roads until the charges are paid.
  2. The proportionate share of costs of any producer shall be determined as the percentage which the tonnage of natural resources hauled by or for the producer over county roads bears to the total tonnage of natural resources hauled on the county roads. The fiscal court shall consult with producers to devise an equitable method for determining proportionate cost shares before instituting charges, but the fiscal court shall be the final authority in determining proportionate costs.
  3. Treatment of county roads for dust pursuant to this section shall not include paving, or laying of rock.

History. Enact. Acts 1984, ch. 373, § 1, effective July 13, 1984.

Subdivision Road Districts

179.700. Definitions.

As used in KRS 179.700 to 179.735 unless the context requires otherwise:

  1. “Subdivision” means a group of residential structures or residential lots in an unincorporated part of the county which is served by roads constructed to provide ingress and egress for the residents. Subdivisions may contain nonresidential property so long as the principal nature of the subdivision is residential.
  2. “Subdivision road district” means a district in a county or counties which has been established for the maintenance of public roads which are not state or county roads within that district.

History. Enact. Acts 1982, ch. 330, § 1, effective July 15, 1982.

Opinions of Attorney General.

A county has no statutory authority to expend any county road money or any other county money on public roads belonging to a subdivision road district, as defined in subdivision (2) of this section. It follows that a county has no authority to use county labor, equipment, or materials in assisting a subdivision road district in connection with its public roads, whether at cost or for free. OAG 83-189 .

Research References and Practice Aids

Cross-References.

Procedures for creating taxing districts, KRS 65.180 to 65.190 .

179.705. Creation of subdivision road districts — Limitation on tax levy.

  1. A subdivision road district may be created in accordance with the procedures of KRS 65.182 for the purpose of maintaining subdivision roads by the procedures set forth in this section.
  2. In no event shall the subdivision road district be empowered to levy a special ad valorem tax of more than ten cents ($0.10) on each one hundred dollars ($100) of the assessed valuation of property in the district.

History. Enact. Acts 1982, ch. 330, § 2, effective July 15, 1982; 1984, ch. 100, § 15, effective July 13, 1984.

179.710. Changing territorial limits of established district — Liability for taxes after change.

  1. The territorial limits of an established subdivision road district, as established pursuant to KRS 179.700 to 179.735 may be enlarged or diminished in the following way: The trustees of the district shall file a petition in the county clerk’s office of the county in which that district and the territory to be annexed or stricken off, or the greater part thereof, is located, describing the territory to be annexed or stricken and setting out the reasons therefor. Notice of the filing of such petition shall be given by publication and posting in the same manner as provided for in KRS 65.182 . On the day fixed in the notice, the county judge/executive shall, if the proper notice has been given, and the publication made, and no written objection or remonstrance is interposed enter an order annexing or striking off the territory described in the petition. Fifty-one percent (51%) or more of the freeholders of the territory sought to be annexed or stricken off may, at any time before the date fixed in the notice, remonstrate in writing, filed in the clerk’s office, to the action proposed. If such written remonstrance be filed, the clerk shall properly give notice to the trustees of the subdivision road district and the county judge/executive shall hear and determine the same. If upon such hearing, the county judge/executive finds from the evidence that a failure to annex or strike off such territory will materially retard the functioning of the district and materially adversely affect the owners and the inhabitants of the territory sought to be annexed or stricken off, he shall enter an order, granting the annexation or striking off the territory. In the latter event, no new petition to annex or strike off all or any part of the same territory shall be entertained for a period of two (2) years. Any aggrieved person may bring an action in Circuit Court to contest the decision of the county judge/executive.
  2. The property in any territory annexed to a subdivision road district shall not be liable to taxation for the purpose of paying any indebtedness incurred by the district prior to the date of the annexation of such territory, except such indebtedness as represents balance owing on purchase price of road equipment.
  3. The property in any territory stricken off from a subdivision road district by the incorporation of or annexation by a city of this Commonwealth shall not be relieved of liability of such taxes as may be necessary to pay its proportionate share of the indebtedness incurred while such territory was a part of that district.
  4. Territories stricken by action of the county judge/executive under the provisions of subsection (1) of this section shall be relieved of liability for all indebtedness incurred by the subdivision road district.

History. Enact. Acts 1982, ch. 330, § 3, effective July 15, 1982.

Legislative Research Commission Note.

A reference in the third sentence of subsection (1) of this section was changed to KRS 65.182 by the Reviser of Statutes pursuant to KRS 7.136 . The publication and notice referred to in this sentence were deleted from KRS 179.705 by 1984 Ky. Acts, ch. 100, sec. 15. KRS 65.182 contains the current applicable provision, but requires publication only.

179.715. Board of trustees — Selection — Terms — Officers — Removal of appointed members.

  1. Upon creation of a subdivision road district as provided in KRS 179.700 to 179.735 , the affairs of the district shall be conducted by the board of trustees consisting of seven (7) members, four (4) to be elected by the residents of the district as hereinafter set out and three (3) to be appointed by the county judge/executive. Four (4) members of the board of trustees shall be elected by the residents of the subdivision road district and shall be residents and property owners of the district. The county judge/executive of the county in which the greater part of the district is located shall, with approval of the fiscal court, appoint three (3) members of the board of trustees, who shall reside in a county in which the district is located. At the first election held after the district is formed, two (2) residents and property owners of the district shall be elected to serve on the board of trustees for a period of two (2) years and two (2) for a period of four (4) years. On the expiration of the respective terms, the successor to each shall have the same qualifications as his predecessor and shall be elected for a term of four (4) years. In the event of a vacancy in the term of an elected trustee, the remaining elected trustees shall elect a trustee to fill the vacancy for the balance of the term. The original appointed members of the board of trustees shall be appointed for terms of one (1), two (2), and three (3) years respectively; and on the expiration of their respective terms, the successor to each shall have the same qualifications as his predecessor and shall be appointed for a term of four (4) years. In the event of a vacancy in the term of an appointed trustee, the county judge/executive shall appoint a trustee for the remainder of the term.
  2. The elective offices of members of the board of trustees shall be filled by an election to be held once each year on a date determined by the county judge/executive. The polls shall be located at the principal voting location in the district. The date, time, and place of the election shall be advertised in accordance with KRS 424.120 . This notice shall be advertised at least thirty (30) days prior to the election date and shall include the names and addresses of the candidates to be voted on for each position of trustee. The terms of the three (3) trustees appointed by the county judge/executive shall start at the same time as the term of the elected trustees. The terms of the trustees shall begin on the beginning of the fiscal year or calendar year, depending on which basis the subdivision road district is being operated.
  3. Such trustees shall elect from their number a chairman, a secretary, and a treasurer, the latter of whom shall give bond in such amount as shall be determined by the county judge/executive of the county in which the greater part of the subdivision road district is located, conditioned upon the faithful discharge of the duties of his office, and the faithful accounting for all funds which may come into his possession as such treasurer. The premiums on such bonds shall be paid out of the funds of the district.
  4. An appointed member of the board of trustees may be removed pursuant to KRS 65.007 .

History. Enact. Acts 1982, ch. 330, § 4, effective July 15, 1982; 1996, ch. 136, § 4, effective July 15, 1996.

179.720. Taxes levied by district — Maintenance of roads by county.

  1. Upon the creation of a subdivision road district as provided in KRS 179.700 to 179.735 , the trustees of such district are hereby authorized to levy a tax rate upon the property in said district, provided that said property is subject to county tax, and not exceeding ten cents ($0.10) per one hundred dollars ($100) of valuation as assessed for county taxes, for the purpose of defraying the expenses of the maintenance of roads within the subdivision district. The rate set in this subsection shall apply, notwithstanding the provisions of KRS 132.023 .
  2. The trustees of a district may contract with the county containing the district to perform maintenance on or to provide personnel, materials or equipment for maintenance to be performed upon any road in the district. The county may maintain or provide personnel, materials or equipment for the maintenance of the roads of a district, so long as the district agrees to pay the county’s total cost of providing services, personnel, materials or equipment.
  3. The property valuation administrator of the county or counties involved, with the cooperation of the board of trustees, shall note on the tax rolls the taxpayers and valuation of the property subject to such assessment. The county clerk shall compute the tax on the regular state and county tax bills in such manner as may be directed by regulation of the Department of Revenue.
  4. Such taxes shall be subject to the same delinquency date, discounts, penalties and interest as are applied to the collection of ad valorem taxes and shall be collected by the sheriff of the county or counties involved and accounted for to the treasurer of the district. The sheriff shall be entitled to a fee of four percent (4%) of the amount collected by him.

History. Enact. Acts 1982, ch. 330, § 5, effective July 15, 1982; 1986, ch. 65, § 1, effective July 15, 1986; 2005, ch. 85, § 604, effective June 20, 2005.

Opinions of Attorney General.

A county has no statutory authority to expend any county road money or any other county money on public roads belonging to a subdivision road district, as defined in KRS 179.700(2). It follows that a county has no authority to use county labor, equipment, or materials in assisting a subdivision road district in connection with its public roads, whether at cost or for free. OAG 83-189 .

179.725. Minute book.

  1. The secretary of the board of trustees shall keep a minute book, appropriately bound and marked, in which the minutes of each meeting of the board shall be kept, together with all resolutions, tax levies, and other important material the board may designate. A copy of all material required to be kept by the secretary shall be on file in the office of the clerk of the county in which the greater part of the subdivision road district lies. The public shall have the right to inspect the book and its contents at all times.
  2. Subdivision road districts shall be subject to the provisions of KRS 65.007 , 65.060 to 65.070 and 65.164 to 65.176 .

History. Enact. Acts 1982, ch. 330, § 6, effective July 15, 1982.

179.730. Legal representation.

  1. The board may, in its discretion, employ or retain a regularly licensed attorney to advise it on all matters pertaining to its duties and may delegate such authority to said attorney not forbidden by law.
  2. In addition to the attorney provided for in subsection (1) of this section, the county attorney in the county in which the subdivision road district lies shall advise and represent the board in all matters and on the occasions when the board so requests.

History. Enact. Acts 1982, ch. 330, § 7, effective July 15, 1982.

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

179.735. Reimbursed expenses.

Members of the board of trustees of a subdivision road district shall be reimbursed for the necessary and reasonable expenses which they incur in the performance of their duties.

History. Enact. Acts 1982, ch. 330, § 8, effective July 15, 1982.

Penalties

179.990. Penalties.

  1. Any county engineer who fails to comply with the provisions of subsection (3) of KRS 179.040 shall be fined five hundred dollars ($500).
  2. Any person who fails to perform the duties imposed by KRS 179.220 and 179.230 shall be fined not less than twenty dollars ($20) nor more than fifty dollars ($50).
  3. Any county engineer who fails to publish the notices required by KRS 179.230 shall be fined not less than twenty-five dollars ($25), nor more than one hundred dollars ($100).
  4. Any person who violates subsection (2) of KRS 179.240 shall be fined not less than ten dollars ($10) nor more than fifty dollars ($50).
  5. Any railroad company that fails to comply with the provisions of KRS 179.290 within the specified time, shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for each failure.
  6. Any county engineer who willfully fails to comply with the provisions of KRS 179.320 for sixty (60) days after the fiscal court has ordered the guideboards to be erected, shall be fined not more than twenty-five dollars ($25).
  7. Any person who violates subsection (4) of KRS 179.330 , shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) for each offense.
  8. Any owner of a toll bridge who fails to repair the bridge when ordered to do so under the provisions of KRS 179.360 shall be fined fifty dollars ($50).
  9. Any person who violates subsection (4) of KRS 179.370 shall be fined not less than five dollars ($5) nor more than twenty-five dollars ($25).
  10. Any person who violates subsection (2) of KRS 179.380 shall be fined not less than ten dollars ($10) nor more than fifty dollars ($50).
  11. Any county engineer who violates KRS 179.460 shall be fined not less than twenty dollars ($20) nor more than one hundred dollars ($100) for each offense.
  12. Any county engineer who fails to perform the duties of his office shall, unless a different penalty is prescribed, be fined not over one hundred dollars ($100).
  13. Any county engineer who fails to cause contractors for county road and bridge work to perform their duties shall be fined not over one hundred dollars ($100).
  14. Any county engineer who fails to prosecute for any penalty provided in KRS Chapters 178 and 179, knowing that the penalty has been incurred, shall be fined twenty-five dollars ($25) for each failure to prosecute.
  15. If a fiscal court or county judge/executive willfully fails to perform any duty required of it by the provisions of this chapter, except KRS 179.230 and 179.320 , every member of the court concurring in the failure shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) by the Circuit Court of the county.
  16. All fines imposed by this chapter shall be paid into the county road fund.
  17. No fine imposed by this chapter shall bar an action for damages for breach of contract.
  18. Any person, subdivider, builder, contractor or developer of any construction project who violates subsection (2) of KRS 179.070 shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for each offense.

History. 4320, 4324-1, 4327, 4342a-3, 4343, 4346, 4349, 4350, 4353a-2, 4356b, 4356c, 4356e, 4356f, 4356h, 4356n, 4356o, 4356q: amend. Acts 1962, ch. 210, § 25; 1972, ch. 348, § 2; 1978, ch. 384, § 320, effective June 17, 1978.

Legislative Research Commission Note.

(9/2/92). The former reference to subsection (13) of KRS 179.070 contained in subsection (18) of this statute has been changed to subsection (2) because of the internal renumbering of KRS 179.070 .

NOTES TO DECISIONS

1. Application.

Offense of obstructing flow of water in creek, causing ford to become so deep as to interfere with public travel, is a common-law offense, and KRS 179.010 and this section are inapplicable. Louisville & N. R. Co. v. Commonwealth, 231 Ky. 554 , 21 S.W.2d 981, 1929 Ky. LEXIS 323 ( Ky. 1929 ).

Opinions of Attorney General.

While the grand jury and courts cannot disturb the fiscal court when it is properly performing its ministerial duties in keeping the courthouse and county roads in proper repair, the members of the fiscal court would be subject to indictment and prosecution where charges are properly drawn alleging misfeasance or malfeasance in office, or wilful neglect in discharge of official duties. OAG 72-88 .

An ordinance which fixed a penalty of ten dollars to $50.00, while subsection (2) of this section, dealing with the same subject matter as dealt with in KRS 179.220 , fixed a penalty of $20.00 to $50.00 was unconstitutional to the extent it fixed a penalty for violation at less than that imposed by statute for the offense. OAG 84-348 .

Research References and Practice Aids

Kentucky Law Journal.

Moreland, Criminal Jurisdiction of the Kentucky Courts: A Tentative Codification, 47 Ky. L.J. 7 (1958).

CHAPTER 180 State Bridges, Tunnels, and Ferries

180.010. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Advertising” means the giving of notice by publication pursuant to KRS Chapter 424; and
  2. “Department” means Department of Highways.

History. 4356s-11: amend. Acts 1966, ch. 239, § 157.

NOTES TO DECISIONS

Cited:

Security Trust Co. v. Paris, 264 Ky. 846 , 95 S.W.2d 781, 1936 Ky. LEXIS 408 ( Ky. 1936 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

180.020. Bridges may be built or acquired by state.

The Department of Highways may build or cause to be built, and may acquire for the state, bridges and bridge approaches on the state primary road system across any stream in the state or across any boundary line stream between the state and an adjoining state. The department may acquire by gift, purchase or condemnation any bridge or other real or personal property that it deems useful in ultimately doing away with toll bridges on the primary road system. The department shall specifically approve each item that goes into the cost of every bridge built or caused to be built by it.

History. 4356s-1, 4356s-2.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Power of Condemnation.
  4. Determination of Necessity.
  5. Payment.
  6. — Cost of Toll Bridges.
  7. — Part of Tolls for Noncompetitive Agreement.
  8. Purchase.
  9. — Rights to Revenue.
  10. — Bridge Company Capital Stock.
1. Constitutionality.

The “Murphy Toll Bridge Act” or the “State Highway Toll Bridge Act” (KRS 180.020 to 180.240 ), is valid and not in violation of Const., §§ 19, 27, 28, 49, 50, 51, 59, 171, or 177. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

The “State Highway Toll Bridge Act” (KRS 180.020 to 180.240 ), vesting power in the highway commission (now department of highways) to fix rates of toll, issue bonds and fix their maturities and terms on which bids shall be made and contracts accepted does not violate any sections of the Constitution since the power vested is purely administrative. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

2. Purpose.

The purpose of the toll bridge act is to free as soon as possible the toll bridges of the state by imposing the cost of maintenance on the state road fund and devoting the tolls to the retirement of the bonds issued for their acquisition. Commonwealth ex rel. Meredith v. Donaldson, 292 Ky. 267 , 166 S.W.2d 303, 1942 Ky. LEXIS 71 ( Ky. 1942 ).

3. Power of Condemnation.

The state highway commission (now Department of Highways) was well within its express authority, as contained in this section and 180.030 , in passing resolution for obtaining borrow pit land to construct bridge approach. Davidson v. Commonwealth, 249 Ky. 568 , 61 S.W.2d 34, 1933 Ky. LEXIS 565 ( Ky. 1933 ).

The legislative power of determination as to condemnation is unqualified, other than that compensation shall be made, and is not reviewable by the courts. Davidson v. Commonwealth, 249 Ky. 568 , 61 S.W.2d 34, 1933 Ky. LEXIS 565 ( Ky. 1933 ).

4. Determination of Necessity.

The court, without the jury, is the proper tribunal to determine necessity of appropriation of land in all cases where it is and becomes an issuable fact. Davidson v. Commonwealth, 249 Ky. 568 , 61 S.W.2d 34, 1933 Ky. LEXIS 565 ( Ky. 1933 ).

5. Payment.
6. — Cost of Toll Bridges.

The state highway commission (now Department of Highways) may pay, out of the general road fund, the cost of acquiring or constructing, maintaining, and insuring toll bridges. State Highway Com. v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 ( Ky. 1929 ).

7. — Part of Tolls for Noncompetitive Agreement.

Department of Highways may agree to pay railway company part of tolls collected, in consideration of railway company’s refraining from competing with Commonwealth. Long v. Mayo, 271 Ky. 192 , 111 S.W.2d 633, 1937 Ky. LEXIS 218 ( Ky. 1937 ).

8. Purchase.
9. — Rights to Revenue.

Department of revenue (now Revenue Cabinet) may purchase rights of bridge company to revenue from bridge, without specific statutory authorization. Long v. Mayo, 271 Ky. 192 , 111 S.W.2d 633, 1937 Ky. LEXIS 218 ( Ky. 1937 ).

10. — Bridge Company Capital Stock.

The Department of Highways may purchase the capital stock of a bridge company, and this is not prohibited by Const., § 177. Long v. Mayo, 271 Ky. 192 , 111 S.W.2d 633, 1937 Ky. LEXIS 218 ( Ky. 1937 ).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ); Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Private toll bridges and ferries, KRS Ch. 280.

State to be made grantee or lessee of land, KRS 56.030 .

180.030. Condemnation proceedings.

  1. When the department cannot by agreement with the owner acquire any bridge or the real or personal property or rights needed for bridge or approach purposes, it may condemn such bridge, real or personal property or rights in the manner provided in the Eminent Domain Act of Kentucky.
  2. The Attorney General shall represent the department in condemnation proceedings, and he shall be assisted by the county attorneys of the county or counties where the property is located.
  3. Real estate used by any steam or electric railroad as a right of way shall not be condemned for bridge or approach purposes.

History. 4356s-3: amend. Acts 1944, ch. 173, § 12; 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 140, § 81.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (1) of this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Constitutionality.
  2. Right to Collect Tolls.
  3. Damages.
1. Constitutionality.

The adoption by reference to preexisting statutes of procedure for condemnation is not violative of Const., § 51. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

2. Right to Collect Tolls.

Where bridge is taken by condemnation, bridge owners must receive compensation for the taking of franchise giving the right to collect tolls. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

3. Damages.

In condemnation proceeding under this section, the assessment list for taxation made by owner for immediately preceding years is competent evidence on amount of damage sought to be recovered, but its weight and effect is to be determined by jury. Davidson v. Commonwealth, 249 Ky. 568 , 61 S.W.2d 34, 1933 Ky. LEXIS 565 ( Ky. 1933 ).

Cited:

Cole v. McCracken County, 297 Ky. 797 , 181 S.W.2d 461, 1944 Ky. LEXIS 835 ( Ky. 1944 ).

180.040. Bridges must be on primary roads.

No contract shall be made for the purchase or construction of any bridge or part of a bridge under KRS 180.020 to 180.250 unless:

  1. A road, suitable for heavy travel during all seasons of the year, is in existence, connecting the approaches of the bridge, or the Kentucky approach of an interstate bridge, with roads forming a part of the state primary road system; or
  2. Sufficient funds have been appropriated and allocated for the construction of such a road.

History. 4356s-21.

180.050. Department may build bridge or let contract for construction — Department officials not to be personally interested.

  1. The department may, through its own engineers, design and build bridges either with its own employees or by contract, and pay for the construction thereof out of the funds derived from the sale of bonds. No bridge shall be built by the department with its own employees, except after advertising for bids and the reception and rejection thereof as is provided for the construction of primary roads and subject to the further provisions of this chapter as to advertising.
  2. No officer or employee of the department shall have any interest in or association, either direct or indirect, with any person or association having any interest in building or acquiring any bridge or in the sale or purchase of any bond authorized by this chapter.

History. 4356s-1, 4356s-5.

NOTES TO DECISIONS

1. Payment of Cost of Toll Bridges.

The state highway commission (now department of highways) may pay, out of the general road fund, the cost of acquiring or constructing, maintaining, and insuring toll bridges. State Highway Com. v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 ( Ky. 1929 ).

180.060. Advertising — Opening of bids — Letting of contracts.

  1. The department shall formulate a general plan for advertising, which plan shall be filed in the office of the department and be available to any person inquiring therefor.
  2. All competitive bids received under the terms of this chapter shall be opened and read publicly by representatives of the department at a designated place, day, and hour, all of which shall be announced in the advertising relative thereto. At the time the bids are opened, the department shall announce the department’s engineer’s estimate and make it a part of the department’s records pertaining to the letting of any contract for which bids were received. Each bid, together with the name of the bidder and the department’s engineer’s estimate, shall be recorded and be open to public inspection.
  3. All bridges and approaches or substantial portions thereof when built by contract shall be let to the lowest and best bidder after advertisement, and after the preparation of detailed plans and specifications, which shall be submitted to all prospective bidders in ample time before a contract is awarded.
  4. The commission may reject any and all bids made either for material, for construction or for the bonds or any one (1) or more of them.

History. 4356s-9, 4356s-11; 1994, ch. 278, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1. Rejection of Bids.

Under this section the state highway commission (now Department of Highways) has absolute discretion, and may reject any or all bid proposals with or without cause, and the department cannot be required to enter into a contract against its will. Bancamerica-Blair Corp. v. State Highway Com., 265 Ky. 100 , 95 S.W.2d 1068, 1936 Ky. LEXIS 421 ( Ky. 1936 ).

In absence of bad faith or dishonesty, disappointed bidder has no legal or beneficial interest in contract. Bancamerica-Blair Corp. v. State Highway Com., 265 Ky. 100 , 95 S.W.2d 1068, 1936 Ky. LEXIS 421 ( Ky. 1936 ).

Where agreement for purchase of bridge by the state authorized commissioner of highways to cancel the contract if bids for proposed bonds did not bring a price equal to at least par for 2% interest rate, but the advertisement for sale of the bonds merely recited that “no bid for less than par and accrued interest will be given favorable consideration,” the failure to state the minimum interest rate did not render the advertisement invalid, as the commissioner could reject any and all bids with or without cause. Rice v. Watkins, 306 Ky. 41 , 206 S.W.2d 65, 1947 Ky. LEXIS 948 ( Ky. 1947 ).

180.070. Negotiable bridge bonds may be issued.

The department may issue negotiable bonds in order to raise funds to:

  1. Acquire rights of way or other real or personal property necessary for constructing a bridge or bridge approach;
  2. Pay for the purchase or condemnation of a bridge or bridge approach;
  3. Build or cause to be built any bridge including approaches;
  4. Pay for the preparations of plans, specifications and blueprints, and other expenses incidental to the building or purchase of the bridge or bridge approach; and
  5. Pay the cost of bridge construction, repair, enlargement or reconstruction authorized under KRS 180.105 or KRS 180.106 .

History. 4356s-4, 4356s-25: amend. Acts 1954, ch. 199, § 3.

NOTES TO DECISIONS

1. Issuance for Interstate Bridge.

State highway commission (now department of highways) may issue bonds to pay one-half cost of interstate bridge although other state has right to approve rates and classification of tolls fixed by the commission (now department) and although there is no right to collect tolls after bridge is paid for. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Cited:

Pulaski County v. Ben Hur Life Ass’n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

Research References and Practice Aids

Cross-References.

See note to KRS 180.050 under heading “ 1. Payment of Cost of Toll Bridges.” State Hwy. Comm’n v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 (1929).

State agency may issue revenue bonds for any public project, KRS 58.010 to 58.120 .

Kentucky Law Journal.

Morrow, County Debt Difficulties in Kentucky, Legal Problems, 31 Ky. L.J. 242 (1943).

Martin, Administrative Action For Efficient Debt Management: The Kentucky Case, The Setting, 49 Ky. L.J. 505 (1961).

180.080. Bonds — Interest — Maturity — Redemption.

  1. The bonds shall bear interest at a rate or rates or method of determining rates, payable at least annually, as fixed by the department, and shall mature not less than one (1) year from their issuance, at a date fixed by the department. The interest on the bonds shall be paid at least annually. The bonds shall be free from taxation.
  2. The bonds may provide that they or any of them may be called for redemption prior to maturity, on interest payment dates not earlier than one (1) year from date of issuance of the bonds at a price and under conditions fixed by the department before issuing the bonds.

History. 4356s-4, 4356s-5, 4356s-26: amend. Acts 1968, ch. 110, § 22; 1996, ch. 274, § 40, effective July 15, 1996.

NOTES TO DECISIONS

  1. Payment.
  2. Interest Rate.
  3. Refunding Bonds.
1. Payment.

Contract for sale of bridge bonds pledging credit of the commission (now department) was invalid, as law required principal and interest to be paid solely from revenue from bridges. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

2. Interest Rate.

Where agreement for purchase of bridge by the state authorized commissioner of highways to cancel the contract if bids for proposed bonds did not bring a price equal to at least par for 2% interest rate, but the advertisement for sale of the bonds merely recited that “no bid for less than par and accrued interest will be given favorable consideration,” the failure to state the minimum interest rate did not render the advertisement invalid, as the commissioner could reject any and all bids with or without cause. Rice v. Watkins, 306 Ky. 41 , 206 S.W.2d 65, 1947 Ky. LEXIS 948 ( Ky. 1947 ).

3. Refunding Bonds.

The state highway commission (now Department of Highways) has implied power and authority to issue bridge revenue refunding bonds at a lower interest rate to retire outstanding bonds, provided the refunding bonds are secured in same manner and have same covenants as bonds to be refunded. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

180.090. Bonds may be paid out of tolls — How tolls may be reduced.

The department may collect tolls and fix toll rates for a period of time sufficient to pay off the principal and interest on bonds issued under KRS 180.070 . When the bonds mature, payment shall be made to the holders out of revenue derived from bridges or as provided in subsection (2) of KRS 180.130 . The rate of tolls to be collected, if fixed in any bonds, shall not be reduced without the consent of the holders of the bonds.

History. 4356s-5, 4356s-6.

NOTES TO DECISIONS

  1. Bonds.
  2. — Payment.
  3. — Not Obligation of State.
  4. Tolls.
  5. — Cessation.
  6. — School Children Exempt.
1. Bonds.
2. — Payment.

Such bonds shall be retired only by money received from gross tolls of bridges. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

3. — Not Obligation of State.

Bonds to pay for toll bridges are not an obligation of the state even though they are executed in name of Commonwealth, under its seal, and attested by secretary of state. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

4. Tolls.
5. — Cessation.

When a sufficient sum has been collected from tolls to retire outstanding bonds, the tolls must cease. The commissioner of highways may not continue tolls for the purpose of reimbursing the road fund for maintenance expenditures. Commonwealth ex rel. Meredith v. Donaldson, 292 Ky. 267 , 166 S.W.2d 303, 1942 Ky. LEXIS 71 ( Ky. 1942 ).

6. — School Children Exempt.

The Toll Bridge Act (KRS 180.020 to 180.240 ) did not authorize and empower the state highway commission (now Department of Highways) to contract for the payment of toll by school children in crossing the bridges provided for, or by those exclusively engaged in transporting them to and from school. State Highway Com. v. County Board of Education, 264 Ky. 95 , 94 S.W.2d 302, 1936 Ky. LEXIS 279 ( Ky. 1936 ).

Cited:

Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 ( Ky. 1940 ).

180.095. Farmer’s truck to pay same toll as passenger car.

At any toll bridge where the Department of Highways is authorized to set the rates of toll to be collected, the rates and round trip privileges for a truck licensed in this state as a farmer’s truck under the provisions of KRS 186.050 shall be the same as are applicable to passenger cars at that bridge.

History. Enact. Acts 1942, ch. 74.

180.100. Tolls to cease or be reduced when bonds are paid.

After any bonded indebtedness or lien incurred under the provisions of KRS 180.070 has been fully discharged, the department may charge only such toll as it deems necessary to pay the cost of some extraordinary casualty or calamity.

History. 4356s-7.

NOTES TO DECISIONS

1. Cessation.

When a sufficient sum has been collected from tolls to retire outstanding bonds, the tolls must cease. The commissioner of highways may not continue tolls for the purpose of reimbursing the road fund for maintenance expenditures. Commonwealth ex rel. Meredith v. Donaldson, 292 Ky. 267 , 166 S.W.2d 303, 1942 Ky. LEXIS 71 ( Ky. 1942 ).

180.105. Interstate bridges may be united in one project for construction, enlargement, repair or reconstruction — Issuance of bonds and collection of tolls for projects.

  1. Whenever the commissioner of highways shall deem it necessary to construct a new bridge, or to enlarge an existing bridge by the addition of new lanes of traffic, or, by reason of a major catastrophe, to repair or reconstruct an existing bridge, he may, by order, unite into a single bridge project all interstate bridges owned by the Department of Highways which are situated not more than ten (10) miles distant from each other.
  2. When, pursuant to subsection (1) of this section, any bridges are united into a single bridge project, bonds may be issued for the purpose of paying the cost of the building and construction of any such new bridge, or the performing of any of the other functions authorized under subsection (1) of this section, which may include the cost of reconstruction, maintenance and operation of said bridge or bridges united into a single bridge project only for and during the time the said bonds are being paid and only up until the time same are retired and paid, and in order to pay and retire any and all bonds so issued, the Department of Highways may charge and collect tolls for vehicular traffic over the bridge or bridges constituting such single bridge project; provided, however, that the charging and collection of tolls shall not begin until the completion of any new bridge built or constructed or upon the completion of any of the other functions authorized under subsection (1) of this section, and shall terminate and be at an end after the completion of the payment of the bonds issued for said purpose or purposes; and further provided that nothing in this section, or elsewhere contained, shall be construed to authorize the imposition, charge or collecting of tolls at any time for the maintenance or operation of said bridge or bridges after the bonds have been retired and paid.

History. Enact. Acts 1954, ch. 199, § 1, effective June 17, 1954.

180.106. Department may repair, enlarge or reconstruct interstate bridge without contribution from other state — Tolls.

Notwithstanding the provisions of any other section of this chapter, the Department of Highways may repair, enlarge, or reconstruct any interstate bridge not situated in a county already possessing two (2) such bridges owned by the department, which at the time is being maintained and operated at the expense of the department without contribution from the other state concerned or any of its instrumentalities, and may continue or reimpose, charge, and collect tolls for traffic over such interstate bridge for the purpose of paying the cost thereof, including the cost of any bonds issued for such purposes.

History. Enact. Acts 1954, ch. 199, § 2, effective June 17, 1954.

180.110. Bonds to be secured by lien on bridge revenues — State not to be obligated.

  1. The bonds issued under KRS 180.070 and interest thereon shall be secured by a first lien on the gross tolls and other revenues of the bridges for which the bonds were issued.
  2. No bonds issued under KRS 180.070 shall be an obligation of the state, and no lien of any kind shall be given in favor of the bonds upon any bridge or real estate appurtenant thereto.

History. 4356s-4, 4356s-17.

NOTES TO DECISIONS

  1. Bonds.
  2. — Payment from Bridge Revenue.
  3. — Not Obligation of State.
  4. Exempt from Tolls.
1. Bonds.
2. — Payment from Bridge Revenue.

Bridge revenue bonds shall be retired only by money received from gross tolls of bridges. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

3. — Not Obligation of State.

Bonds to pay for toll bridges are not an obligation of the state even though they are executed in name of Commonwealth, under its seal, and attested by secretary of state. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

4. Exempt from Tolls.

The state highway commission (now Department of Highways) was not authorized to contract for the payment of toll by school children in crossing the bridges provided for, or by those exclusively engaged in transporting them to and from school. State Highway Com. v. County Board of Education, 264 Ky. 95 , 94 S.W.2d 302, 1936 Ky. LEXIS 279 ( Ky. 1936 ).

180.120. Bridges to be united in one project to pay bonds.

The department shall unite into one (1) project for financing purposes all or as many bridges to be built or purchased as it deems practicable, so that the tolls and other revenue derived from all of the bridges thus united shall be continued until all of the bonds for the united bridges are paid, and so that all such tolls shall be used for the payment of the principal and interest of all such bonds. But no bridge already purchased or built by or for the state shall be included in such bond issue. The lien of the bonds for any such united project shall be a lien upon the gross tolls and other revenues of all of the bridges in the project.

History. 4356s-18, 4356s-37.

180.130. Maintenance and operation of bridges — Cost of bridge may be paid from bridge tolls or appropriations.

  1. The cost of maintenance and operation of all bridges purchased, built, repaired, enlarged, or reconstructed, in whole or in part, from the bonds issued under KRS 180.070 shall be paid from appropriations made to the department; provided, however, that while any such bonds are outstanding the department may be reimbursed for such cost out of the bridge tolls and revenues, if and to the extent permitted by the trust indenture for such bonds, and otherwise may be so reimbursed by the continuation of tolls for traffic over the pertinent bridge or bridges after the bonds are retired, but no longer than necessary to pay such costs as may have been borne by the department during the life of the bonds.
  2. The department may pay from its appropriations any part of the cost of any bridges for which the bonds are issued.

History. 4356s-28, 4356s-29: amend. Acts 1954, ch. 202, § 1.

NOTES TO DECISIONS

  1. Purpose.
  2. Cessation of Tolls.
1. Purpose.

It was the intention of the legislature to make it the duty of the commission (now department) in the exercise of its sound discretion to operate and maintain the bridges and to fix the toll rates so as to acquire bridges free of tolls at earliest possible date. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

2. Cessation of Tolls.

When a sufficient sum has been collected from tolls to retire outstanding bonds, the tolls must cease. The commissioner of highways may not continue tolls for the purpose of reimbursing the road fund for maintenance expenditures. Commonwealth ex rel. Meredith v. Donaldson, 292 Ky. 267 , 166 S.W.2d 303, 1942 Ky. LEXIS 71 ( Ky. 1942 ).

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ).

180.140. Bonds to be advertised and sold to highest bidder.

  1. All bonds issued under the provisions of KRS 180.070 shall be sold to the highest and best bidder after having been advertised.
  2. In advertising for bids for the bonds it shall not be necessary to state the exact face amount of the bonds, if the conditions are stated upon which the face amount may be determined prior to the delivery of the bonds.
  3. Bids may be invited at the same time for the bonds of more than one (1) bridge project, and a bid may cover more than one (1) project.

History. 4356s-10, 4356s-20.

NOTES TO DECISIONS

  1. Application.
  2. Bonds.
  3. — Sale.
  4. — Advertising.
  5. — Rejection of Bids.
  6. — Interest in Contract.
1. Application.

The statutory provision for advertising, competitive bidding, and awarding of contract to highest and best bidder, apply to refunding bonds as well as to original issue. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

2. Bonds.
3. — Sale.

The commission (now department) may not enter into private negotiations for the sale of bonds, and a contract entered into as a result of such negotiations is invalid. State Highway Com. v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 ( Ky. 1929 ).

4. — Advertising.

Advertising should call for bids in accordance with terms and conditions of set-up which should specify the face value of the bonds, the rate of interest, the time of maturity, when redeemable, at what price they may be redeemed, and a statement of what state highway commission (now Department of Highways) agrees to do and of what bidder agrees to do. State Highway Com. v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 ( Ky. 1929 ).

5. — Rejection of Bids.

Under KRS 180.060 the state highway commission (now Department of Highways) has absolute discretion, and may reject any or all bid proposals with or without cause, and the department cannot be required to enter into a contract against its will. Bancamerica-Blair Corp. v. State Highway Com., 265 Ky. 100 , 95 S.W.2d 1068, 1936 Ky. LEXIS 421 ( Ky. 1936 ).

6. — Interest in Contract.

In absence of bad faith or dishonesty, disappointed bidder has no legal or beneficial interest in contract. Bancamerica-Blair Corp. v. State Highway Com., 265 Ky. 100 , 95 S.W.2d 1068, 1936 Ky. LEXIS 421 ( Ky. 1936 ).

180.150. Bonds not to be delivered until conditions are met.

  1. No bonds issued under KRS 180.070 shall be delivered unless the conditions required by KRS 180.040 exist.
  2. If any contract for the sale of the bonds provides that the amount of bonds purchased shall be computed upon the basis of a traffic survey or estimate based upon the happening of specified traffic conditions, no bonds to pay any of the cost of the bridge for which the bonds are to be issued shall be delivered until the happening of such conditions or the appropriation and allocation of sufficient funds for the happening thereof, unless the original purchasers consent to delivery.

History. 4356s-21.

180.160. Department may impose and agree to conditions in sale of bonds — Duration of contract.

The department may impose such conditions as it deems best in any contract for the sale of the bonds, and may assent in the contract to reasonable conditions imposed upon the department in its issuance and delivery of the bonds. The conditions may include a covenant of the department that within the period the purchasers are required or permitted to accept and pay for bonds purchased but remaining undelivered, and for six (6) months thereafter, the department will not advertise for sale, sell or issue any bonds or other obligations payable from bridge tolls without the purchasers’ consent. No such covenant shall extend beyond the biennial period in which the contract is made.

History. 4356s-19.

NOTES TO DECISIONS

  1. Conditions Imposed on Bidders.
  2. Payment of Toll.
1. Conditions Imposed on Bidders.

An advertisement by the commissioner of highways for bids for bonds to purchase a bridge was not invalid in requiring bidders to bear the expense of printing the bonds and trust agreement, and to pay fee of attorney for drawing trust agreement and passing on validity of issue, since under this section the department of highways could impose any reasonable condition, and since department could not employ attorney to represent purchasers of bonds. Rice v. Watkins, 306 Ky. 41 , 206 S.W.2d 65, 1947 Ky. LEXIS 948 ( Ky. 1947 ).

2. Payment of Toll.

This section does not authorize the state highway commission (now Department of Highways) to contract for payment of toll by school children or by those exclusively engaged in transporting them to and from school. State Highway Com. v. County Board of Education, 264 Ky. 95 , 94 S.W.2d 302, 1936 Ky. LEXIS 279 ( Ky. 1936 ).

Research References and Practice Aids

ALR

Power and discretion of officer or board authorized to issue bonds of governmental unit as regards terms or conditions to be included therein. 119 A.L.R. 190.

180.170. Department may contract to maintain bridges and not to alienate them.

The department may covenant in connection with any issue of bonds that as long as the bonds are outstanding it will not sell, mortgage or make any other disposition of the bridge property for which the bonds are issued and that it will maintain and continuously operate the bridge or bridges in the project for which the bonds are issued.

History. 4356s-31.

NOTES TO DECISIONS

Cited:

Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 ( Ky. 1953 ).

180.180. Department may carry insurance on bridges.

  1. The department may carry a reasonable amount of insurance to cover any accident or destruction to any bridge until it has been fully paid for and used only as a free bridge.
  2. The department may carry a reasonable amount of casualty insurance on any bridge while under construction, which bridge is being built by the commission and not by contract.

History. 4356s-12.

NOTES TO DECISIONS

1. Payment of Insurance from General Fund.

The state highway commission (now Department of Highways) may pay, out of the general fund, the cost of insuring toll bridges. State Highway Com. v. Veling, 230 Ky. 381 , 19 S.W.2d 967, 1929 Ky. LEXIS 77 ( Ky. 1929 ).

Research References and Practice Aids

Cross-References.

Insurance on state property, KRS 56.070 .

180.190. Department may contract to keep bridges insured.

The department may contract in advance of the issuance of the bonds that while bonds of the project are outstanding, it will keep the bridges in the project adequately insured for the protection of the state and the bondholders, in companies satisfactory to the bondholders, under an “all-risk coverage” policy either for the full insurable value or for the face value of the bonds outstanding for such project, whichever is the lesser amount. The department may also contract to carry, during the same period, insurance policies in companies satisfactory to the bondholders, covering the use and occupancy of the bridges in such project, in an amount sufficient to provide an income for one (1) year equal to at least one (1) year’s interest upon the bonds then outstanding. The premium upon the policies shall be paid from appropriations out of the state road fund unless other provision for payment, but not out of bridge tolls and revenues, is made by law. The department may carry insurance of a lesser extent or amount if adequate in the judgment of the department and the original purchasers of the bonds.

History. 4356s-27.

180.200. Temporary bonds may be issued.

Pending the preparation of bonds under KRS 180.070 and with the consent of the purchasers thereof, the department may issue temporary bonds of the same face amount, date, maturity, interest rate and other details as the bonds issued under KRS 180.070 except that no coupons need be attached to the temporary bonds. The interest upon the temporary bonds shall be payable under such conditions as the department determines and the temporary bonds shall be exchangeable for bonds issued under KRS 180.070 when prepared and executed.

History. 4356s-22.

180.210. Auditing of bonds and accounts.

The department may covenant in the contract for the sale of the bonds that at least twice a year after the bridges in the project are placed in operation, the department will cause audits of all bonds and accounts to be made by certified public accountants, showing the receipts and disbursements of bridge tolls, the purchase and redemption of bonds and the amounts deposited in banks and trust companies. Reports of such audits shall be open to the inspection of all persons interested and copies thereof shall be furnished the original purchasers of the bonds and the trustee provided for in KRS 180.220 .

History. 4356s-30.

180.220. Trustee to be appointed — Trust indenture.

  1. Each issue of the bonds shall be further secured by a trust indenture made between the department and a trustee.
  2. The trustee shall be a trust company or bank having the powers of a trust company, having its principal office in Kentucky, and at the time it begins to function as trustee, it shall have a combined capital and surplus of at least one million dollars ($1,000,000). The trustee shall be satisfactory to the original purchasers of the bonds.
  3. The trust indenture may contain those provisions customarily found in trust agreements securing the bonds and debentures of corporations, and shall set forth the duties and covenants of the department in respect to bridges to be constructed or purchased and the conservation and application of funds and the insurance of money on hand or on deposit and the rights and remedies of the trustee and the holders of the bonds, restricting in reasonable manner the individual right of action of bondholders in favor of action in their behalf by the trustee and purchasers.

History. 4356s-33.

180.230. New bonds may be issued for mutilated, lost or destroyed bonds.

The department may issue new bonds in lieu of bonds mutilated, lost or destroyed under such terms and conditions as it determines.

History. 4356s-32.

180.240. Highway bridge fund — Use of fund.

The money collected under KRS 180.020 to 180.250 shall be paid into the State Treasury and constitute the highway bridge fund. No part thereof shall be withdrawn from the Treasury, except for the purposes of refunding to the state road fund the cost of preparing plans, specifications, purchasing real estate, exercising the rights of eminent domain, issuing and selling of bonds, the payment for labor and material and all expenses necessary to begin the construction of a bridge, and all other purposes specifically set out or reasonably implied in KRS 180.020 to 180.240 , including the acquisition or building of bridges.

History. 4356s-13.

NOTES TO DECISIONS

1. Construction.

The “Toll Bridge Act” (KRS 180.020 to 180.240 ) manifests an intention of the legislature to impose the cost of maintenance of the toll bridges on the state road fund, devoting the tolls to retirement of bonds issued for their acquisition. Commonwealth ex rel. Meredith v. Donaldson, 292 Ky. 267 , 166 S.W.2d 303, 1942 Ky. LEXIS 71 ( Ky. 1942 ).

180.250. KRS 180.020 to 180.240 not to conflict with federal laws or orders.

No bridge shall be built, purchased, or operated pursuant to KRS 180.020 to 180.240 nor shall any bridge tolls be charged or collected on such bridges except so far as the same may be consistent with any applicable Act of Congress or any legally authorized and applicable order of any officer, commission, or board of government of the United States.

History. 4356s-23.

180.260. Department may acquire ferries to protect toll bridges.

  1. The Department of Highways may purchase or condemn any ferry that is located within ten (10) miles of a toll bridge owned in whole or in part by the state, if the department considers it necessary or advisable in order to protect the bridge from ferry competition.
  2. Any ferry acquired under subsection (1) of this section shall be paid for out of appropriations out of the state road fund.

History. 4356s-39, 4356s-40.

180.270. Condemnation of competing ferries.

If the department is unable to contract with the owner of the competing ferry for the purchase of the ferry, the department may institute condemnation proceedings in the county where the ferry is located, for the purpose of acquiring the ferry. The condemnation proceedings shall be in the name of the state, under the procedure set out in the Eminent Domain Act of Kentucky. In the proceedings the department shall be represented by the Attorney General and by the county attorney of the county in which the proceedings are filed. Where the ferry operates between two (2) counties the proceedings may be filed in either county.

History. 4356s-41: amend. Acts 1974, ch. 74, Art. IV, § 20(1); 1976, ch. 140, § 82.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

180.272. Definition for KRS 180.272 to 180.278.

As used in KRS 180.272 to 180.278 , “interstate bridge” shall mean any bridge across a navigable stream one (1) terminus of which is located in the Commonwealth of Kentucky and the other terminus of which is located in a neighboring state other than the Commonwealth of Kentucky.

History. Enact. Acts 1962, ch. 305, § 1.

180.274. Application of KRS 180.272 to 180.278.

The provisions of KRS 180.272 to 180.278 shall apply to any bridge or bridges constructed by any agency, commission or administrative body of the Commonwealth of Kentucky acting alone or in conjunction with any agency, commission or administrative body of any other state, or the federal government.

History. Enact. Acts 1962, ch. 305, § 2.

180.276. Acquisition of ferries near interstate bridges — Valuation.

Prior to the opening for public use of any interstate bridge, the construction of which is authorized by any law of the Commonwealth of Kentucky, regardless of the state agency, commission or administrative body so authorized to make such construction, the state agency, commission or administrative body so authorized to construct, operate and maintain any such interstate bridge shall purchase the ferry, equipment, franchises, rights and privileges used in connection with the operation of any ferry which has been in continuous operation for at least fifteen (15) years prior thereto and which is located within five (5) miles of the site of said bridge, and pay the owner therefor a fair cash value; provided, that in the event such agency, commission or administrative body and the owner of such ferry shall be unable to agree upon a fair cash value, the valuation of such property shall be determined by three (3) persons; one (1) to be selected by the agency authorized to make such construction, one (1) to be selected by the owners of the ferry and the third to be selected by these two (2). The ferry shall be valued as a going concern, but no allowance shall be made for future growth. In the event the owner of such ferry shall not agree to the establishment of such valuation according to the foregoing method, then in such event, the agency, commission or administrative body shall not be required to purchase such assets from the owner of the ferry.

History. Enact. Acts 1962, ch. 305, § 3.

NOTES TO DECISIONS

  1. Application.
  2. Equitable Estoppel.
1. Application.

The terms of this compensation statute apply to the operation of “any ferry,” not to any particular type of ferry; accordingly, the owner of a ferry designed for pedestrian travel, rather than vehicular travel, was entitled to compensation under this section when a nearby interstate bridge was opened, even though the bridge provided for vehicular traffic to the specific exclusion of pedestrian travel. Laughead v. Commonwealth, Dep't of Transp., Bureau of Highways, 657 S.W.2d 228, 1983 Ky. LEXIS 301 ( Ky. 1983 ).

2. Equitable Estoppel.

The Commonwealth was equitably estopped from claiming that a former ferry operator was not entitled to compensation under the terms of this section on the ground that he stopped operating his ferry business and sold his boats over a year before the interstate bridge was opened, where the evidence showed that prior to selling his boats the ferry operator repeatedly requested that the Commonwealth negotiate with him pursuant to the terms of this section, but that the Commonwealth refused the requests to negotiate based on its opinion that this section was unconstitutional. Laughead v. Commonwealth, Dep't of Transp., Bureau of Highways, 657 S.W.2d 228, 1983 Ky. LEXIS 301 ( Ky. 1983 ).

Opinions of Attorney General.

Inasmuch as the alleged economic loss occasioned by the building of an interstate bridge is not a “taking” or is not a trespass as to be equivalent to a “taking,” the purchase of a ferry for the sole purpose of protecting the owner from financial loss would not be a proper implementation of the eminent domain concept. OAG 76-308 .

180.278. Agreement upon party to undertake acquisition of ferries.

Should the Commonwealth of Kentucky, or any agency, commission or administrative body thereof, join with any other state or any agency, commission or administrative body thereof for the purpose of constructing any bridge or bridges as referred to in KRS 180.272 to 180.278 , the parties to such joint venture or undertaking shall agree as to which of them shall proceed to acquire a ferry or ferries, as referred to in KRS 180.276 .

History. Enact. Acts 1962, ch. 305, § 4.

180.280. Bridges and tunnels — When part of primary road system.

Bridges and tunnels shall be considered as part of the state primary road system where it is necessary or desirable to construct bridges or tunnels as part of state primary roads. Except as otherwise provided in KRS 180.020 to 180.240 as to toll bridges, all general laws relating to the construction of primary roads shall be construed to include bridges and tunnels, except that bids for the construction or reconstruction of only one (1) type of bridge or tunnel shall be received and only one (1) type shall be advertised, based on the plans and specifications for the particular bridge or tunnel.

History. 4356sa-1.

Research References and Practice Aids

Cross-References.

County and city bridges, tunnels and ferries, KRS Ch. 181.

180.290. Bridges and tunnels crossing boundary streams — Cooperation with other governmental agencies.

The department may, out of state highway funds, construct and maintain, either by itself or with any adjoining state, or any county or municipality of this or any adjoining state, or the United States government, or any two (2) or more of them, bridges across or tunnels under any boundary line stream of this state for the purpose of connecting any primary road of this state with a hard surface road or street in an adjoining state. In constructing bridges across or tunnels under any such boundary line stream, the department may locate the bridge or tunnel at any point it deems wise, but the bridge or tunnel shall not be located further than ten (10) miles from the terminus of the primary road intended to be reached by the bridge or tunnel. The department may construct any road necessary to connect a bridge or tunnel with the primary road intended to be served thereby.

History. 4356sa-2.

NOTES TO DECISIONS

  1. Bonds for Interstate Bridge.
  2. Specific Performance of Contract.
1. Bonds for Interstate Bridge.

Bridge bonds for Kentucky’s share of cost of interstate bridge were valid. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

2. Specific Performance of Contract.

Indiana was directed to specifically perform her part of contract with Kentucky for building bridge across Ohio River. Kentucky v. Indiana, 281 U.S. 163, 50 S. Ct. 275, 74 L. Ed. 784, 1930 U.S. LEXIS 373 (U.S. 1930).

Research References and Practice Aids

ALR

Cooperation or compacts between states as to construction and maintenance of bridges. 134 A.L.R. 1414, 1421.

180.300. Contract with other governmental agencies for acquisition and maintenance of bridges and tunnels.

The department may enter into written contracts with the owner of any bridge over or tunnel under any boundary line stream of this state for the purchase or lease of the bridge or tunnel to connect any primary road of this state with a hard surface road or street in an adjoining state, when the adjoining state or a subdivision thereof or county or city in this state, or the United States joins with the department in the purchase or lease of the bridge or tunnel and jointly or severally contributes to the purchase price or the annual rental price thereof, an amount equal to or in excess of the amount which the department proposes to expend for the purchase or lease of the connecting bridge or tunnel. When the bridge or tunnel is so purchased or leased, the department shall enter into a contract with the other cooperating governments or subdivisions for the joint maintenance of the bridge or tunnel.

History. 4356sa-3.

NOTES TO DECISIONS

Cited:

Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 ( Ky. 1940 ).

Research References and Practice Aids

Kentucky Law Journal.

Ferguson, Interstate Agreements, 39 Ky. L.J. 31 (1950).

180.310. Agreement as to amount each party to contribute — Payment.

The department may agree upon the purchase price and cost of the bridge or upon the terms of the lease, with the owner and such other parties named in KRS 180.300 or any of them, and may further agree upon the proportion of the purchase price or annual rental to be contributed by the department and by the other contributing parties. When the contract of purchase or lease and the agreement apportioning the purchase price or annual rental is approved by the Attorney General of this state, the department shall deliver a copy of the contract of purchase or lease and the agreement of apportionment to the Finance and Administration Cabinet, which shall draw a warrant on the State Treasurer at the time and for the amount provided in the purchase or lease contract and agreement of apportionment. The warrant shall specify that it is to be payable only out of the state highway road funds, and it shall be delivered to the seller or owner of the bridge or tunnel concurrently with the warrants or vouchers of the other contributing parties.

History. 4356sa-3.

NOTES TO DECISIONS

Cited:

Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 ( Ky. 1940 ).

180.320. Persons crossing toll bridges and ferries must pay toll. [Repealed.]

Compiler’s Notes.

This section (4356zb-2: amend. Acts 1944, ch. 112, § 2) was repealed by Acts 1984, ch. 113, § 8, effective July 13, 1984.

180.330. Collectors of tolls to have powers of peace officers; limitation. [Repealed.]

Compiler’s Notes.

This section (4356zb-4, 4356zb-5) was repealed by Acts 1984, ch. 113, § 8, effective July 13, 1984.

180.340. Oath of collector of tolls — Approval and filing.

Every collector of tolls upon any bridge or ferry owned or operated by the state shall, before entering upon the discharge of his duties, take and subscribe to the constitutional oath of office. The oath shall be executed either before the county judge/executive of the county in which the collector resides, or in the office of the department, and shall be approved by the commissioner of highways. The original or a certified copy of the oath shall be duly filed and entered of record in the office of the department.

History. 4356zb-5: amend. Acts 1946, ch. 27, § 41; 1974, ch. 74, Art. IV, § 20(1); 1978, ch. 384, § 321, effective June 17, 1978.

180.350. Department may prescribe rules and regulations.

The department may make and promulgate rules and regulations necessary to effectuate the purpose of KRS 180.320 to 180.340 .

History. 4356zb-6.

180.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (4356zb-2) was repealed by Acts 1986, ch. 331, § 63, effective July 15, 1986.

CHAPTER 181 County and City Bridges, Tunnels, and Ferries

181.010. Definitions.

  1. As used in this chapter, unless the context otherwise requires:
    1. “Bridge” includes the bridge and the approaches thereto;
    2. “Employee” includes agents, servants and independent contractors;
    3. “Owner” means any person having any title or interest in lands, structures, rights-of-way, franchises, easements or other interests in land; and
    4. “Streets” includes lanes and alleys.
  2. As used in KRS 181.560 to 181.840 , unless the context otherwise requires:
    1. “Cost of bridge” as applied to a bridge acquired by purchase, includes the purchase price, cost of improvements, financing charges, interest during any period of disuse before completion of improvements and for a period of six (6) months after purchase or completion, cost of traffic estimates and of engineering and legal expenses, specifications and surveys, estimates of cost and of revenues, other expenses incident to determining the feasibility or practicability of the enterprise, and administrative and other expenses incident to financing and acquiring the bridge and placing it in operation;
    2. “Cost of bridge” as applied to a bridge to be constructed, includes the cost of construction, the cost of acquiring necessary land, property rights, easements and franchises, financing charges, interest during construction and for a period of six (6) months thereafter, cost of traffic estimates and of engineering and legal expenses, plans, specifications, surveys, estimates of cost and of revenues, other expenses incident to determining the practicability of the enterprise, and expenses incident to financing the constructing of the bridge and placing it in operation; and
    3. “Improvements” means repairs, replacements and additions to a bridge acquired by purchase which are deemed necessary to place the bridge in a safe and efficient condition for public use, when such improvements are ordered prior to the sale of bonds for acquisition of the bridge.

History. 3037k-1, 3037L-1, 3235g-8: amend. Acts 1952, ch. 189, § 19; 1966, ch. 255, § 166.

NOTES TO DECISIONS

Cited:

Cole v. McCracken County, 297 Ky. 797 , 181 S.W.2d 461, 1944 Ky. LEXIS 835 ( Ky. 1944 ); McKinney v. Owensboro, 305 Ky. 254 , 203 S.W.2d 24, 1947 Ky. LEXIS 780 ( Ky. 1947 ).

Research References and Practice Aids

Cross-References.

Furnishers of labor and material to have lien, KRS 376.210 .

Payment of tolls, national guard exempted from, KRS 38.430 .

Bridges and Tunnels

181.020. Construction and purchase of interstate bridges and tunnels.

All counties may purchase, construct, or reconstruct bridges over or tunnels under any boundary line stream of this state, and may purchase or obtain by gift or otherwise necessary approaches and other property from the adjoining state or subdivision thereof and from any person in the adjoining state.

History. 938p-1; 2014, ch. 92, § 254, effective January 1, 2015.

NOTES TO DECISIONS

1. Construction.

KRS 181.020 to 181.050 did not repeal KRS 178.180 and 178.190 , but merely gave an additional power to counties containing a city of the second class. Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

Research References and Practice Aids

Cross-References.

Fiscal court may erect and maintain bridge, KRS 67.080 .

Fiscal court may issue bonds, KRS 66.080 .

181.030. Counties may issue bonds to pay for bridges or tunnels.

Any county may issue and sell bonds for the purchase price or the cost of construction or reconstruction of such bridge or tunnel, including the necessary approach thereto and the necessary property for the construction or support of the bridge or tunnel, as now provided by law for the issuance and sale of bonds for the construction of roads, bridges and tunnels in this state.

History. 938p-2: amend. Acts 1978, ch. 384, § 51, effective June 17, 1978; 2014, ch. 92, § 255, effective January 1, 2015.

Research References and Practice Aids

Cross-References.

Establishment, alteration and discontinuance of county roads, KRS Ch. 178.

Issuance of bonds and control of funds, KRS Ch. 66.

181.040. Tolls may be charged — Use of tolls to retire bonds.

In lieu of levying a tax for the retirement of such bonds any such county may, in its discretion, collect tolls for the use of the bridge or tunnel, and all tolls collected, after payment of the necessary cost of collection and maintenance, shall be paid to the county treasurer, and shall be kept in a separate fund and used solely for paying the principal and interest on the bonds.

History. 938p-3.

NOTES TO DECISIONS

1. Fixing Rate of Tolls.

The legislature may delegate authority to fix the rate of bridge tolls. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ). See Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Research References and Practice Aids

Cross-References.

County engineer to examine toll bridges, KRS 179.360 .

County finance and county treasurer, KRS Ch. 68.

181.050. Bridge or tunnel to be free when bonds are paid and to be part of primary road system.

When enough tolls have been collected, after payment of the cost of collection and maintenance, to fully retire the bonds, the bridge or tunnel shall be free of all toll charges and become a part of the primary system of state roads.

History. 938p-4.

181.060. Bridge commission. [Repealed.]

Compiler’s Notes.

This section (3037k-2) was repealed by Acts 1966, ch. 255, § 283.

181.070. Temporary joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-3, 3037k-5) was repealed by Acts 1966, ch. 255, § 283.

181.080. Officers of temporary joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-4, 3037k-5) was repealed by Acts 1966, ch. 255, § 283.

181.090. Name and powers of temporary joint commission; employes. [Repealed.]

Compiler’s Notes.

This section (3037k-4) was repealed by Acts 1966, ch. 255, § 283.

181.100. Funds of temporary joint commission; deposit; disbursements. [Repealed.]

Compiler’s Notes.

This section (3037k-5) was repealed by Acts 1966, ch. 255, § 283.

181.110. Duties of the temporary joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-6) was repealed by Acts 1966, ch. 255, § 283.

181.120. Right of entry; limitation on commission’s authority to bind itself; supervision of expenditures; bids for contracts. [Repealed.]

Compiler’s Notes.

This section (3037k-6) was repealed by Acts 1966, ch. 255, § 283.

181.130. Purchase of property. [Repealed.]

Compiler’s Notes.

This section (3037k-8) was repealed by Acts 1966, ch. 255, § 283.

181.140. Condemnation of property. [Repealed.]

Compiler’s Notes.

This section (3037k-9) was repealed by Acts 1966, ch. 255, § 283.

181.150. Removal of obstructions. [Repealed.]

Compiler’s Notes.

This section (3037k-10) was repealed by Acts 1966, ch. 255, § 283.

181.160. Completion of bridges; return of unexpended funds to state commissions. [Repealed.]

Compiler’s Notes.

This section (3037k-11) was repealed by Acts 1966, ch. 255, § 283.

181.170. Completion of bridges; transfer of functions and property. [Repealed.]

Compiler’s Notes.

This section (3037k-12) was repealed by Acts 1966, ch. 255, § 283.

181.180. Permanent joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-12) was repealed by Acts 1966, ch. 255, § 283.

181.190. Duties of permanent joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-13) was repealed by Acts 1966, ch. 255, § 283.

181.200. Disposition of net earnings of bridges. [Repealed.]

Compiler’s Notes.

This section (3037k-13) was repealed by Acts 1966, ch. 255, § 283.

181.210. Ordinance to determine whether bridge is to be free or toll; taxation for free bridge; tolls. [Repealed.]

Compiler’s Notes.

This section (3037k-14) was repealed by Acts 1966, ch. 255, § 283.

181.220. Kentucky commission may act independently. [Repealed.]

Compiler’s Notes.

This section (3037k-15) was repealed by Acts 1966, ch. 255, § 283.

181.230. Kentucky commission may form temporary joint commission after acting independently. [Repealed.]

Compiler’s Notes.

This section (3037k-16) was repealed by Acts 1966, ch. 255, § 283.

181.240. Public ways to be restored to original condition. [Repealed.]

Compiler’s Notes.

This section (3037k-17) was repealed by Acts 1966, ch. 255, § 283.

181.250. Bond issue; ordinance submitting question to vote; vote upon. [Repealed.]

Compiler’s Notes.

This section (3037k-18, 3037k-20) was repealed by Acts 1966, ch. 255, § 283.

181.260. Issuance and sale of bonds; disposition of proceeds. [Repealed.]

Compiler’s Notes.

This section (3037k-19) was repealed by Acts 1966, ch. 255, § 283.

181.270. Disbursements to come from sale of bonds; Kentucky commission may borrow money; expenditure to be charged to joint commission. [Repealed.]

Compiler’s Notes.

This section (3037k-20) was repealed by Acts 1966, ch. 255, § 283.

181.280. Interest and principal on bonds during construction of bridges. [Repealed.]

Compiler’s Notes.

This section (3037k-7) was repealed by Acts 1966, ch. 255, § 283.

181.290. Successive ordinances may be submitted for issuance of bonds. [Repealed.]

Compiler’s Notes.

This section (3037k-21) was repealed by Acts 1966, ch. 255, § 283.

181.300. Alternative bridge commission in first-class cities. [Repealed.]

Compiler’s Notes.

This section (3037L-2) was repealed by Acts 1952, ch. 189, § 19.

181.310. Compensation of commissioners; employes. [Repealed.]

Compiler’s Notes.

This section (3037L-2) was repealed by Acts 1952, ch. 189, § 19.

181.320. Duties of commission. [Repealed.]

Compiler’s Notes.

This section (3037L-3) was repealed by Acts 1952, ch. 189, § 19.

181.330. Right of entry; limitation on commission’s authority to bind itself; bids for contracts. [Repealed.]

Compiler’s Notes.

This section (3037L-3) was repealed by Acts 1952, ch. 189, § 19.

181.340. Purchase of property. [Repealed.]

Compiler’s Notes.

This section (3037L-4) was repealed by Acts 1952, ch. 189, § 19.

181.350. Condemnation of property. [Repealed.]

Compiler’s Notes.

This section (3037L-5) was repealed by Acts 1952, ch. 189, § 19.

181.360. Removal of obstructions. [Repealed.]

Compiler’s Notes.

This section (3037L-6) was repealed by Acts 1952, ch. 189, § 19.

181.370. Duties of the commission upon completion of bridge. [Repealed.]

Compiler’s Notes.

This section (3037L-7) was repealed by Acts 1952, ch. 189, § 19.

181.380. Public ways and works to be restored to original condition. [Repealed.]

Compiler’s Notes.

This section (3037L-8) was repealed by Acts 1952, ch. 189, § 19.

181.390. Commission may issue bridge bonds; city not to be obligated. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.400. Commission to provide form, denomination and place of payment of bonds; exempt from taxation. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.410. Interest on bonds; maturity; redemption before maturity. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.420. Registration of bonds; sale; price of sale. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.430. Disposition of proceeds; withdrawals; surplus. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.440. Commission may purchase bonds; not to reissue bonds. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.450. Temporary bonds. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.460. Trustee may be selected; provisions of trust agreement. [Repealed.]

Compiler’s Notes.

This section (3037L-9) was repealed by Acts 1952, ch. 189, § 19.

181.470. Tolls; fixing of rates; use of proceeds. [Repealed.]

Compiler’s Notes.

This section (3037L-10) was repealed by Acts 1952, ch. 189, § 19.

181.480. When tolls to cease. [Repealed.]

Compiler’s Notes.

This section (3037L-11) was repealed by Acts 1946, ch. 196, § 2.

181.490. Effect of proceedings begun under alternative method. [Repealed.]

Compiler’s Notes.

This section (3037L-12) was repealed by Acts 1952, ch. 189, § 19.

181.500. Commission to be dissolved when bonds are paid; transfer of title to state; subsequent maintenance. [Repealed.]

Compiler’s Notes.

This section (3037L-13) was repealed by Acts 1952, ch. 189, § 19.

181.510. Contracts to do away with tolls.

  1. Any city may  enter into contracts for the purpose of doing away with tolls on bridges  wholly or partly within the city.
  2. The person contracting  with the city shall agree to:
    1. Acquire ownership  of the bridge or portion thereof, unless it has already acquired such  ownership;
    2. Operate and maintain  the bridge;
    3. Collect tolls  for traffic over the bridge or portion of bridge;
    4. Subject to the  provisions of KRS 181.520 ,  apply the revenues of the bridge to the amortization of the cost of  the bridge or portion of bridge; and
    5. Turn over the  bridge or portion of bridge to the city upon completion of the amortization.

History. 3235g-1, 3235g-2; 2014, ch. 92, § 257, effective January 1, 2015.

NOTES TO DECISIONS

1. Invalid Contract.

A contract transferring option to operate bridge from city to bridge company was invalid because of provision for exemption from taxation, where bridge company was in fact an independent entity and not an agent of the city. Covington v. Reynolds, 240 Ky. 86 , 41 S.W.2d 664, 1931 Ky. LEXIS 348 ( Ky. 1931 ).

Research References and Practice Aids

Cross-References.

County or city not to become stockholder or lend credit to corporation, exception, Const., § 179.

181.515. Powers of KRS 181.510 to 181.550 possessed by urban-county governments.

Having the powers of the city of the highest class at the time of the creation of an urban-county government, the provisions of KRS 181.510 to 181.550 are hereby affirmed to be possessed by urban-county governments. Any reference to a city, mayor, city legislative body, or agency of a city in KRS 181.510 to 181.550 shall also mean an urban-county government, mayor of an urban-county government, legislative body of an urban-county government, or agency of an urban-county government, respectively.

History. Enact. Acts 2014, ch. 92, § 256, effective January 1, 2015.

181.520. Disposition of proceeds of bridge under contract — Payment of repairs and maintenance.

  1. Before applying  the revenues of the bridge to the amortization of the cost of the  bridge as provided in KRS 181.510 ,  the person contracting with the city may deduct the reasonable expense  of operation, repair and maintenance and a reasonable return to itself,  not exceeding fifteen percent (15%) of the revenues after deducting  the expense.
  2. The contract  shall provide that if alterations or improvements are necessitated  by law, or by order of a governmental department, or are necessitated  by casualty or other necessity, and are not in the nature of ordinary  repairs or maintenance, all of the revenues, after deducting the reasonable  expense of operation, repair and maintenance, shall be applied to  the amortization of the cost of the bridge and the cost of the alterations  and improvements. All such costs shall be deemed to include reasonable  interest and financing cost.

History. 3235g-2.

181.530. Obligations of city in regard to the bridge.

In the contract the city may agree to transfer and assign to the person contracting with it, any interest or right the city has in the bridge or portion, or any interest or right of the city to acquire the bridge or portion, and shall agree to take over the bridge when turned over to it as provided in KRS 181.510 , and thereafter to maintain and operate it as a free bridge until it is taken over and maintained and operated by the state or an agency of the state.

History. 3235g-3.

181.540. Owners to be relieved from obligations.

Upon the execution of the contract, the present owners of the bridge or portion sold shall be relieved from any duty imposed upon such owners by legislative enactment to maintain or keep the bridge or portion open to the public.

History. 3235g-4.

181.550. Bridge to be public property.

The bridge or portion, so long as operated under such contract, and thereafter so long as operated free of tolls as provided in KRS 181.530 , shall be deemed public property used for public purposes.

History. 3235g-5.

NOTES TO DECISIONS

1. Constitutionality.

If this section meant to authorize an exemption from taxation during a period when private interests are the owners of the legal title and beneficial use of a bridge, it is clearly unconstitutional under Const., § 170. Covington v. Reynolds, 240 Ky. 86 , 41 S.W.2d 664, 1931 Ky. LEXIS 348 ( Ky. 1931 ).

181.560. Bonds may be issued for construction or purchase of interstate bridges.

In addition to the powers granted in KRS 181.510 to 181.550 , cities may purchase or construct and improve, operate, and maintain bridges over navigable streams so as to connect such cities with an adjoining state. In order to pay the cost of such acquisition or construction and improvements, the cities may issue bridge revenue bonds as provided in KRS 181.660 .

History. 3235g-7, 3235g-28; 2014, ch. 92, § 259, effective January 1, 2015.

NOTES TO DECISIONS

1. Constitutionality.

Law providing for creation of city bridge commission to acquire bridges to connect the city with an adjoining state does not violate Const., § 160 by divesting city commissioners of their powers or by improperly controlling administrative function. Covington Bridge Com. v. Covington, 257 Ky. 813 , 79 S.W.2d 216, 1934 Ky. LEXIS 571 ( Ky. 1934 ).

181.565. Powers of KRS 181.560 to 181.840 possessed by urban-county governments.

Having the powers of the city of the highest class at the time of the creation of an urban-county government, the provisions of KRS 181.560 to 181.840 are hereby affirmed to be possessed by urban-county governments. Any reference to a city, mayor, city legislative body, or agency of a city in KRS 181.560 to 181.840 shall also mean an urban-county government, mayor of an urban-county government, legislative body of an urban-county government, or agency of an urban-county government, respectively.

History. Enact. Acts 2014, ch. 92, § 258, effective January 1, 2015.

181.570. Bridge commission.

  1. Any city may,  by ordinance, create a bridge commission consisting of the chief executive  of the city and four (4) persons appointed by such chief executive  with the approval of the city legislative body. Each appointee shall  be at least twenty-five (25) years of age.
  2. The original  appointments shall be made for terms of four (4) years, and their  successors shall be appointed for one (1), two (2), three (3), and  four (4) years respectively. Thereafter the appointments shall be  for four-year terms. Not more than two (2) appointees shall be members  of the same political party, and all members shall be eligible for  reappointment. Vacancies shall be filled for the unexpired term in  the same manner as original appointments.
  3. No officer or  employee of the city, whether he receives compensation or not, shall  be appointed to the commission.
  4. Each appointee  shall take, subscribe and file the constitutional oath of office,  and shall execute a bond, approved by the city legislative body, in  the sum of five thousand dollars ($5000). The bond shall be filed  with the other official bonds of the city.

History. 3235g-9; 2014, ch. 92, § 260, effective January 1, 2015.

181.580. Commission is a corporation — Officers — Compensation.

  1. The commission  shall constitute a corporation under the name of (insert name of city)  Bridge Commission with the usual corporate powers.
  2. The commission  shall elect a chairman and a vice chairman from its members, and a  secretary-treasurer who need not be a member of the commission.
  3. The members of  the commission, other than the chief executive, shall receive compensation  fixed by the city legislative body, either as a salary or as payment  for meetings attended, but the compensation of the chairman shall  not exceed one thousand dollars ($1000) per annum and the compensation  of each other member shall not exceed five hundred dollars ($500)  per annum. The commission shall fix the compensation of the secretary-treasurer  in its discretion.
  4. All compensation  of members and employees shall be paid solely from funds provided  under the provisions of KRS 181.560 to 181.840 , and  the commission shall not exercise any powers given it to bind the  commission beyond the extent to which money is provided under KRS 181.560 to 181.840 .

History. 3235g-10.

181.590. Powers of bridge commission.

The commission may:

  1. Establish bylaws,  rules and regulations for its own government;
  2. Make and enter  into all contracts or agreements necessary or incidental to the performance  of its duties and the execution of its powers; and
  3. Employ engineers,  attorneys, and other necessary employees, and fix their compensation.

History. 3235g-10.

NOTES TO DECISIONS

  1. Independent Agency of City.
  2. Control of Bridge Commission.
1. Independent Agency of City.

The power of the city legislative body to organize and install in office the bridge commission under KRS 181.570 is permissive and not mandatory, but after appointment and qualification the commission is an independent agency of the city, and, so long as it acts honestly and in good faith in performance of its duties, the city commissioners are without authority to dispute, impede, or interrupt its actions under the statute. Covington Bridge Com. v. Covington, 257 Ky. 813 , 79 S.W.2d 216, 1934 Ky. LEXIS 571 ( Ky. 1934 ).

2. Control of Bridge Commission.

Neither this section nor any other provision of the statutes clothes the city commissioners with the power or right to dictate or control the discretion of the bridge commission in the performance of its statutory duties. Covington Bridge Com. v. Covington, 257 Ky. 813 , 79 S.W.2d 216, 1934 Ky. LEXIS 571 ( Ky. 1934 ).

181.600. Restrictions on members and employees.

  1. No member, engineer,  superintendent or foreman of the bridge commission shall:
    1. Be employed by  or hold any official or pecuniary relation to any person selling or  furnishing material for the construction, improvement or maintenance  of the bridge;
    2. Be a candidate  for or hold any public office other than that of commissioner; or
    3. Be a member of  any political committee.
  2. No commissioner  shall be an employee under the bridge commission.
  3. If any commissioner,  engineer, superintendent or foreman violates the provisions of paragraph  (b) or (c) of subsection (1) of this section, his office or position  shall be ipso facto vacated.

History. 3235g-11.

181.610. Purchase of bridges.

  1. The commission  may purchase any toll bridge over a navigable stream so as to connect  the city with an adjoining state, or any such toll bridge wholly or  partly constructed, or any franchises, easements, permits or contracts  for the construction of such bridges, upon terms and at prices considered  by the bridge commission to be reasonable and that can be agreed upon  between the commission and the owner.
  2. Title shall be  taken in the name of the city, subject to such mortgage or other lien  as the seller reserves under the provisions of KRS 181.750 .
  3. Upon the execution  of any contract for the purchase of an existing bridge the seller  shall be relieved from any obligation or duty theretofore imposed  upon the owner by charter, legislative enactment, or otherwise to  maintain and keep the bridge open to the public.

History. 3235g-12.

181.620. Condemnation of property.

  1. Whenever a reasonable  price cannot be agreed upon, the commission may condemn any property  necessary or convenient for the improvement or the efficient operation  of any property acquired or constructed under KRS 181.560 to 181.840 , or for  the purpose of constructing any bridge or portion of bridge, or for  securing a right-of-way leading to the bridge or its approaches, in  the manner provided in the Eminent Domain Act of Kentucky.
  2. The commission  may also exercise in Kentucky and adjoining states such powers of  eminent domain as are conferred upon the city or commission by any  Act of Congress.
  3. Title to any  property condemned by the commission shall be taken in the name of  the city. The city shall be under no obligation to accept and pay  for any property condemned, or any costs incidental to any condemnation  proceedings, and shall in no event pay for property condemned or the  cost of the proceedings except from the funds received under the provisions  of KRS 181.560 to 181.840 .
  4. The court having  jurisdiction of the condemnation proceedings may make such orders  as may be just to the city and to the owners of the property to be  condemned, and may require a bond or other security to secure the  owners against any loss or damage to be sustained by reason of the  failure of the city to accept and pay for the property. The bond or  security shall impose no liability upon the city, except such as may  be paid from the funds received under KRS 181.560 to 181.840 .

History. 3235g-13: amend. Acts 1976, ch. 140, § 83.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (1) of this section is compiled as KRS 416.540 to 416.680 .

181.630. Improvements to be contracted for before bonds are sold.

  1. Before purchasing  a bridge, the commission shall determine what repairs, additions or  improvements will be necessary to place the bridge in safe and efficient  condition for public use. The commission shall cause an estimate of  the cost of the improvements to be made and submitted to it by an  engineer appointed by the commission.
  2. The commission  shall contract for improvements before the sale of any bridge revenue  bonds for the acquisition of the bridge.

History. 3235g-14.

181.640. Purchase of real property — Contracts to be advertised and awarded.

  1. The commission  may purchase within this and any adjoining state all real property  and interest in real property necessary for the construction of the  bridge, upon such terms and at such prices as it considers reasonable  and that can be agreed upon between it and the owner. Title shall  be taken in the name of the city.
  2. No contract for  the construction of the bridge exceeding the sum of twenty-five hundred  dollars ($2500) shall be made without advertising for bids. The bids  shall be opened publicly and an award made to the best bidder. The  commission may reject any or all bids.

History. 3235g-15.

181.650. Removal of obstructions — Public ways and works to be restored.

  1. All owners of  physical obstructions in, over or upon the public streets or highways  or in, under or over the stream over which a bridge is to be constructed,  if such obstructions interfere with the construction or improvement  of the bridge, shall, upon reasonable notice from the commission,  promptly accommodate or remove the obstructions at their own expense,  except as otherwise provided or required by law. The city legislative  body may, by ordinance, prescribe the penalty for failure to comply  with this subsection.
  2. Any public ways  or public works damaged or destroyed by reason of the building of  the bridge or approaches shall be restored or repaired by the commission  and placed in their original condition as nearly as practicable.

History. 3235g-16.

181.660. Commission may issue bonds — Form — Place of payment — Registration.

  1. The commission  may provide by resolution for the issuance of negotiable bonds to  pay the cost of any such interstate bridge. The resolution shall recite  an estimate of the cost. The bonds may be issued without a vote of  the people.
  2. The commission  shall determine the form of the bonds, including interest coupons  to be attached. The bonds shall be signed by the chairman of the commission  and the chief executive of the city, under the city’s seal,  attested by the city clerk or recorder, and the coupons shall bear  the facsimile signature of the chairman.
  3. The commission  shall fix the denominations of the bonds and the places of payment  of principal and interest, which may be at any bank or trust company  in or out of the state.
  4. The signatures  of officers who cease to be officers before delivery of the bonds,  shall be as valid as if they had remained in office until delivery.
  5. Provision may  be made for the registration of any of the bonds in the name of the  principal alone.

History. 3235g-17.

Research References and Practice Aids

ALR

Power and discretion of officer or board authorized to issue bonds of governmental unit as regards terms or conditions to be included therein. 119 A.L.R. 190.

Power and discretion of officer or board authorized to issue bonds of governmental unit to include therein conditions as to place of payment. 119 A.L.R. 211.

181.670. Interest on bonds — Maturity — Redemption before maturity.

  1. The bonds shall  bear interest at a rate or rates or method of determining rates, payable  at least annually, and shall mature not more than thirty (30) years  from the date of their issuance, at a date fixed by the commission.
  2. The bonds may  be made redeemable before maturity, at the option of the commission,  under terms fixed by the commission prior to the issuance of the bonds.

History. 3235g-17: 1996, ch. 274, § 41, effective July 15, 1996.

181.680. Bonds to be paid from bridge revenues only.

  1. The principal  and interest on the bonds shall be payable solely from the special  fund provided for their payment.
  2. The bonds shall  contain a statement on their face that the city shall not be obligated  to pay the principal or interest thereon except from the revenues  of the bridge.

History. 3235g-17.

181.690. Sale of bonds — Use of proceeds and manner of withdrawal.

  1. The commission  may sell the bonds at private sale without advertisement or in any  other manner and for such price as it considers for the best interest  of the city, taking into consideration the financial responsibility  of the purchaser, the terms and conditions of the purchase, and the  availability of the proceeds of the bonds when required for payment  of the cost of the bridge.
  2. The proceeds  of the sale of the bonds shall be used solely for the payment of the  cost of the bridge, and shall be checked out by the chairman or vice  chairman, and the secretary-treasurer of the commission under such  restrictions as the commission provides.

History. 3235g-17.

181.700. Bonds to be lawful investments — Tax-exempt.

  1. The bonds shall  be lawful investments of banks, trust companies, trustees, and of  commissioners of the sinking fund of municipalities and counties,  and shall be acceptable as security for the deposit of public money.
  2. The bonds and  the income thereof shall be exempt from taxation.

History. 3235g-17.

181.710. Additional bonds may be issued — Effect of surplus.

  1. If the proceeds  of the bonds are less than the cost of the bridge, additional bonds  may be issued in the same manner to provide the amount of the deficit,  and unless otherwise provided in the trust indenture, shall be deemed  to be of the same issue and shall be entitled to payment from the  same fund without preference or priority of the bonds first issued  for the same bridge.
  2. If the proceeds  of the bonds exceed the cost of the bridge, the surplus shall be paid  into the fund for the payment of principal and interest of the bonds.

History. 3235g-17.

181.720. Temporary bonds.

Prior to the preparation of the bonds provided for in KRS 181.660 , the commission may issue temporary bonds with or without coupons. The temporary bonds shall be issued under the restrictions set out in KRS 181.660 to 181.710 , and shall be exchangeable for the bonds issued under KRS 181.660.

History. 3235g-17.

181.730. Application of, and lien on, proceeds of bonds.

All money received from the sale of bonds issued under KRS 181.660 to 181.720 shall be applied solely to the payment of the cost of the bridge or to the appurtenant sinking fund, and the holders of the bonds or the trustee, as provided in KRS 181.740 , shall have a lien upon such money until it is so applied.

History. 3235g-18.

181.740. Trustee may be selected — Provisions of trust indenture — Expenses of indenture.

  1. The commission  may secure any issue of bonds by a trust indenture between the city  and a corporate trustee, which may be any trust company or bank having  the powers of a trust company within or outside of the state, or such  corporate trustee and an individual as cotrustee.
  2. The trust indenture  may contain provisions for protecting and enforcing the rights and  remedies of the bondholders, including covenants setting forth the  duties of the commission in relation to the acquisition, construction,  improvement, maintenance, operation and insurance of the bridge, and  the custody, safeguarding and application of all money.
  3. The trust indenture  may also provide that the bridge shall be acquired, constructed, or  partly acquired and partly constructed, and paid for under the supervision  and approval of consulting engineers or other persons employed or  designated by the commission and satisfactory to the bondholders,  who may be given the right to require that the security given by contractors  and by any depository of the proceeds of the bonds or revenues of  the bridge or other money pertaining thereto be satisfactory to them.
  4. The indenture  may set forth the rights and remedies of the bondholders and trustee,  restricting the individual right of action of bondholders as is customary  in trust indentures securing bonds and debentures of corporations.
  5. The commission  may provide by resolution or by trust indenture for the payment of  the proceeds of the sale of the bonds and revenues of the bridge to  such officer, board or depository as it may determine for the custody  thereof, and may provide the method of disbursement thereof, with  such safeguards and restrictions as it finds best.
  6. All expenses  incurred in carrying out the trust indenture may be treated as a part  of the cost of maintenance and operation of the bridge affected by  the indenture.

History. 3235g-19.

181.750. Trust indenture may create a lien on the bridge property, when.

No trust indenture shall convey or mortgage the bridge unless the trust indenture is entered into for the purpose of securing bonds issued to acquire a bridge by purchase, in which event the trust indenture may create a lien by way of deed of trust or mortgage upon the bridge, and may contain reasonable provisions for the enforcement of the lien, including, but without limiting the same by the particular statement thereof, and provisions for the taking of possession and the sale by the trustee of the bridge, together with the franchises for the operation thereof, in the event of failure to pay the principal and interest of the bonds or any part thereof at the time appointed for the payment thereof, or in the event of any other default under the terms of the indenture.

History. 3235g-19.

181.760. Commission to fix and collect bridge tolls.

The commission shall fix and collect tolls for transit over each bridge. The tolls shall be adjusted, in respect of the aggregate of tolls from each bridge for which bonds are issued, so as to provide a fund sufficient to pay the principal and interest on the bonds, and to provide an additional fund to pay the cost of maintaining, repairing and operating the bridge, subject, however, to any applicable law or regulation of the United States.

History. 3235g-20.

181.770. Allocation of fund for payment of principal and interest.

  1. The fund for  payment of principal and interest on the bonds shall be set aside  each month in a sinking fund for the payment of:
    1. The interest  upon such bonds as it falls due;
    2. The necessary  fiscal agency charges for paying bonds and interest; and
    3. The payment of  the principal of the bonds, such sinking fund to be a fund for all  such bonds without distinction or priority of one over another.
  2. Prior to the  issuance of the bonds the commission may provide by resolution or  by trust indenture for using the sinking fund or any part thereof  in the purchase of any of the outstanding bonds payable therefrom  at the market price, but not exceeding the price at which the bonds  shall at the next interest date be payable or redeemable, and all  bonds redeemed or purchased shall be canceled and shall not again  be issued.
  3. The money in  the sinking fund, if not used within a reasonable time for the purchase  of bonds for cancellation, shall be applied to the redemption of bonds  by lot at the redemption price then applicable.

History. 3235g-20.

181.780. Tolls to cease when bonds are paid — Exception.

When the principal and interest on the particular bonds issued for a bridge have been paid or a sufficient amount have been provided and is being held for their payment, the commission shall cease to charge tolls for the use of the bridge and thereafter such bridge shall be free unless tolls shall be required for maintaining, repairing and operating the bridge.

History. 3235g-21.

181.790. Trustee and bondholders may bring actions to protect rights.

Any holder of the bonds or coupons attached thereto, and the trustee, unless the rights given by this section are restricted by resolution passed before the issuance of the bonds or by the trust indenture, may bring an action, either at law or in equity, to protect and enforce any right granted under KRS 181.560 to 181.840 or under such resolution or trust indenture and may enforce performance of all duties required by KRS 181.560 to 181.840 , or by such resolution or trust indenture to be performed by the city issuing the bonds, or by the commission or any officer thereof, including the fixing, charging and collecting of tolls for transit over the bridge.

History. 3235g-22.

181.800. Commission may accept contributions.

  1. The commission  may receive contributions of either money or property or other things  of value, to be held and applied for the purposes of KRS 181.560 to 181.840 .
  2. The commission  may enter into agreements with any adjoining state or any subdivision  thereof, whereby such adjoining state or subdivision may contribute  either money or property to the cost of the construction, acquisition  or the operation and maintenance of any bridge connecting the city  with the adjoining state.

History. 3235g-23.

181.810. Competing bridges and ferries must have permit. [Repealed.]

Compiler’s Notes.

This section (3235g-24) was repealed by Acts 1984, ch. 113, § 8, effective July 13, 1984.

181.820. Acquisition of ferries.

The commission of any city authorizing bridge revenue bonds under KRS 181.660 or 181.720 , may purchase all ferries, together with necessary lands and appurtenances thereto, which are operating across the stream to be spanned by the bridge to be acquired or constructed and which are within five (5) miles of the location of such bridge. The purchase price of such ferries shall be deemed a part of the cost of the bridge and shall be paid solely from funds received under the provisions of KRS 181.560 to 181.840 . The commission may maintain and operate any ferry so purchased and fix such rates of toll for the use thereof as it deems proper, or it may in its discretion sell or otherwise dispose of any ferry so purchased, or it may abandon or dismantle the ferries when it seems expedient to do so. All tolls collected for the use of the ferries and the proceeds of any sale or disposition of any ferries shall be used to pay the cost of maintaining, repairing and operating the ferries, and any residue shall be paid into the sinking fund provided for the bonds.

History. 3235g-25.

181.830. Additional powers of commission.

In addition to the powers and duties and subject to the limitations enumerated in KRS 181.560 to 181.840 , the commission may do all things necessary or convenient in the construction or acquisition, maintenance and operation of any bridge to be constructed or acquired under the provisions of KRS 181.560 to 181.840 , and in the financing thereof, in order that the bridge may be operated free of tolls as early as possible and practicable.

History. 3235g-26.

181.840. Dissolution of commission — City legislative body to operate and maintain bridge.

When the principal and interest on all of the bonds have been paid or their payment fully provided for, the commission shall stand dissolved. Thereupon the city legislative body shall assume the operation and maintenance of the bridge, and, unless the cost of operation, maintenance and repair is otherwise provided for, shall assume the collection of tolls for the payment of the cost, and shall do all other acts necessary and convenient for the maintenance of the bridge.

History. 3235g-27.

Cities of First Class

181.850. Bridge commissions in cities of first class or consolidated local government. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 1, effective June 19, 1952; 2002, ch. 346, § 194, effective July 15, 2002) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.851. Definitions for KRS 181.850 to 181.869. [Repealed.]

Compiler’s Notes.

(Enact. Acts 1952, ch. 189, § 2, effective June 19, 1952; 2002, ch. 346, § 195, effective July 15, 2002) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.852. General grant of powers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 3, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.853. Acquisition of property. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 4, effective June 19, 1952; 2002, ch. 346, § 196, effective July 15, 2002) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.854. Bridge revenue bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 5, effective June 19, 1952; 1996, ch. 274, § 42, effective July 15, 1996) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.855. Trust agreement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 6, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.856. Revenues. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2003, ch. 148, § 12, effective June 24, 2003; 2005, ch. 85, § 512, effective June 20, 2005) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.857. Trust funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 8, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.858. Remedies of bond or coupon holders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 9, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.859. Bridge commission property and bonds exempt from taxation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 10, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.860. Bonds eligible for investment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 11, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.861. Maintenance of bridges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 12, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.862. Restoration of or compensation for private property damaged or destroyed. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 12, effective June 19, 1952; 1978, ch. 384, § 52, effective June 17, 1978) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.863. Authority of counties, cities and other political subdivisions to lease, lend or sell property to commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 12, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.864. Annual report and audit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 12, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.865. Commission officer or employee not to have interest in sale or purchase of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 12, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.866. Bridge revenue refunding bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 13, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.867. Credit of city not pledged. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 14, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.868. Reversion of existing bridges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 15, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

181.869. Provisions of KRS 181.850 to 181.869 deemed to prescribe alternative method of providing bridges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 189, § 16, effective June 19, 1952) was repealed by 2009 (1st Ex. Sess.), ch. 1, § 114, effective June 26, 2009.

CHAPTER 182 Waterways and Milldams

182.010. Streams not to be obstructed — Exceptions.

  1. No person shall place a dam or other obstruction below ten (10) miles from the head of a stream which is navigable for the running of push boats, or the floating of sawlogs, staves or ties. The owner shall remove any such existing dam or obstruction which has not been erected in accordance with the statutes.
  2. This section shall not apply to dams constructed in streams for the purpose of generating, by water power, electricity for distribution and sale.

History. 1392b.

NOTES TO DECISIONS

1. Illegal Structures.

A boom erected in a stream in violation of this section is an illegal structure, and its owners cannot recover damages from persons negligently cutting trees into stream and causing boom to be destroyed. McCown v. Langhorne, 147 Ky. 354 , 144 S.W. 39, 1912 Ky. LEXIS 241 ( Ky. 1912 ).

Research References and Practice Aids

Cross-References.

Archaeological sites, reporting discovery of, KRS 164.730 .

Boats and boating, KRS Ch. 235.

Corporations improving navigation and selling water power and electricity may exercise eminent domain, KRS 416.130 .

Corporations producing or supplying water, electricity, gas or gasoline may construct and maintain transmission lines along or across public roads and waters, KRS 416.140 .

Ditches, drains and levees, penalty for injury thereto by owner of land or by stock of owner, KRS 268.580 .

Regulation of ferries, KRS 280.130 .

Sanitation districts, KRS Ch. 220.

State planning board to make maps and surveys of ports and waterways, KRS 147.100 .

When natural drain to be considered a public ditch, KRS 267.460 , 268.560 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Logs and Timber, § 352.00.

182.020. Wharves, piers and bulkheads on private land — Abatement.

  1. Any person owning land upon a watercourse may erect a wharf on his land, or a pier or bulkhead in the watercourse opposite his land, but he must not obstruct navigation nor injure the private rights of any person in doing so.
  2. If the Circuit Court of the county in which the wharf, pier or bulkhead is located, believes that the wharf, pier or bulkhead obstructs navigation or encroaches on any public landing so as to prevent the free use thereof, the court may abate it.

History. 4323: amend. Acts 1976 (1st Ex. Sess.), ch. 14, § 169, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Private corporations may construct bridges over navigable streams, KRS 280.300 .

182.030. Wharves on public roads. [Repealed.]

Compiler’s Notes.

This section (4324) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

Legislative Research Commission Note.

KRS 67.150 , 70.550 , 70.560 , 70.570 , 97.791 , 179.190 , 182.030 , 182.040 , 204.050 , were amended in Revisor’s Bill, 1978 Acts ch. 384, HB 607, secs. 145, 165, 166, 167, 226, 318, 322, 323 and 341; however, 1978 Acts ch. 118, HB 152, sec. 19 repealed them and prevails. See KRS 7.136(3).

182.040. Port-wardens may be appointed in certain counties. [Repealed.]

Compiler’s Notes.

This section (3934) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

Legislative Research Commission Note.

KRS 67.150 , 70.550 , 70.560 , 70.570 , 97.791 , 179.190 , 182.030 , 182.040 , 204.050 , were amended in Revisor’s Bill, 1978 Acts ch. 384, HB 607, secs. 145, 165, 166, 167, 226, 318, 322, 323 and 341; however, 1978 Acts ch. 118, HB 152, sec. 19 repealed them and prevails. See KRS 7.136(3).

182.050. Certificate of appointment — Oath. [Repealed.]

Compiler’s Notes.

This section (3935) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.060. Port-warden to examine watercraft and cargo. [Repealed.]

Compiler’s Notes.

This section (3936) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.070. Notice of examination — When given and to whom. [Repealed.]

Compiler’s Notes.

This section (3937) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.080. Statement of port-warden after examination. [Repealed.]

Compiler’s Notes.

This section (3938) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.090. Record of statement. [Repealed.]

Compiler’s Notes.

This section (3939) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.100. Parties may demand assistance of other port-wardens. [Repealed.]

Compiler’s Notes.

This section (3940) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.110. Fees to be paid port-wardens. [Repealed.]

Compiler’s Notes.

This section (3941) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

Legislative Research Commission Note.

KRS 67.150 , 70.550 , 70.560 , 70.570 , 97.791 , 179.190 , 182.030 , 182.040 , 204.050 , were amended in Revisor’s Bill, 1978 Acts ch. 384, HB 607, secs. 145, 165, 166, 167, 226, 318, 322, 323 and 341; however, 1978 Acts ch. 118, HB 152, sec. 19 repealed them and prevails. See KRS 7.136(3).

182.120. Counties and cities along Cumberland River may acquire waterfront areas and terminals. [Repealed.]

Compiler’s Notes.

This section (4286a-1) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.130. Fiscal courts may indemnify United States for damage caused by federal improvements.

The fiscal court of any county through which any river passes, or which borders upon any river, may indemnify the United States against any claims for damages, and any damage, that may result by overflow of the river from its being improved by the United States. The fiscal court shall act by order entered upon its record books at any regular term or at any special term called for that purpose. The fiscal court may appropriate out of the county treasury necessary money to comply with the requirements of this section.

History. 2376f-1.

182.140. Watercraft used as residence to be licensed.

No person shall reside upon any watercraft, except steam vessels, upon any navigable watercourse within this state without first obtaining from the county clerk, of the county in which his business or residence is to be carried on, a license for each family. The license shall only be granted upon satisfactory proof of the good character of the applicant, and the payment of a license fee of five dollars ($5) and the clerk’s fees for making out the license. The license shall be good for one (1) year from the date thereof.

History. 182, 185, 186.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Right to License.
1. Constitutionality.

This section is not unconstitutional, and is not obnoxious to the federal Constitution in respect to commerce among the states. Robertson v. Commonwealth, 101 Ky. 285 , 40 S.W. 920, 19 Ky. L. Rptr. 442 , 1897 Ky. LEXIS 190 ( Ky. 1897 ).

2. Right to License.

The right of the state to impose the conditions prescribed in this section is embraced within its police power. Robertson v. Commonwealth, 101 Ky. 285 , 40 S.W. 920, 19 Ky. L. Rptr. 442 , 1897 Ky. LEXIS 190 ( Ky. 1897 ).

Research References and Practice Aids

Cross-References.

Boats and boating, KRS Ch. 235.

182.150. Form of license — Boat to be identified.

The license shall describe the kind of watercraft, the nature of the business or residence to be carried on therein, and the points at which or between which the craft may lie or ply. On the side of each boat shall be painted, in large letters, the name of the applicant, the home of the boat, and the date of the expiration of the license.

History. 183.

182.160. County clerk to keep record — Clerk’s fees.

The clerk granting the license shall keep a record showing the name of the licensee, the date of the license and when it will expire, and the business or residence authorized. The clerk shall be allowed to charge a fee of two dollars fifty cents ($2.50), to be paid by the applicant.

History. 184.

182.170. Condemnation of land for mill or factory. [Repealed.]

Compiler’s Notes.

This section (2712: amend. Acts 1976, ch. 140, § 84) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.180. Report of commissioners. [Repealed.]

Compiler’s Notes.

This section (2713: amend. Acts 1976 (1st Ex. Sess.), ch. 140, § 170) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.190. When court may grant leave to build the mill or factory — Restrictions. [Repealed.]

Compiler’s Notes.

This section (2714) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

182.200. Owner of condemned land may build fences — Restrictions.

The owner or person in possession of the condemned land through which a canal may be cut, may cross it with such fencing, water gates and bridging as are necessary and will not prevent the flow of water through the canal.

History. 2715.

182.210. Person acquiring leave for mill or factory not to disturb existing rights.

No person shall, by reason of leave to build a mill or factory, draw the water from the millpond of another existing at the time of the condemnation, or do anything injurious to a vested interest in any waterworks then existing on the watercourse.

History. 2716.

182.220. Period in which work must be begun — Effect of failure.

  1. If the applicant does not begin the proposed work in good faith within one (1) year from obtaining the leave, and within three (3) years so far finish it as to have the mill or factory in good condition for use, or if it is destroyed and made unfit for use, and the rebuilding or repair thereof be not so begun within a year, and finished within three (3) years from the time of such destruction or getting out of repair, the title to the land so obtained under the condemnation shall revert to the former owner, his heirs or assigns, and all the privileges obtained under the leave shall cease, subject to subsection (2) of this section.
  2. If the owner of the mill and privileges is, at such time, an infant, imprisoned, or of unsound mind, he shall be allowed the same time after such disability is removed, if the time so excepted does not exceed seven (7) years.

History. 2718.

182.230. Report or judgment not to bar regular action or prosecution. [Repealed.]

Compiler’s Notes.

This section (2719) was repealed by Acts 1980, ch. 188, § 310, effective July 15, 1980.

182.240. Circuit Court may revoke leave.

If the terms and conditions upon which the leave is granted are not substantially complied with by the applicant so that the public or any individual does or might receive detriment thereby, upon conviction thereof, under the presentment of a grand jury, the leave to build the dam shall be revoked, and the dam ordered to be abated by the Circuit Court.

History. 2720.

182.300. Tennessee-Tombigbee Waterway Development Compact.

The Governor on behalf of the Commonwealth is authorized to execute a compact, in substantially the following form, with the other states that are parties to the compact; and the General Assembly, with the provision contained in KRS 182.310 , signifies in advance its approval and ratification of the compact, which is as follows:

History. Enact. Acts 1962, ch. 265, § 1.

ARTICLE I

The purpose of this compact is to promote the development of a navigable waterway connecting the Tennessee and Tombigbee Rivers by way of the east fork of the Tombigbee River and Mackeys and Yellow Creeks so as to provide a nine (9) foot navigable channel from the junction of the Tombigbee and Warrior Rivers at Demopolis in the State of Alabama to the junction of Yellow Creek with the Tennessee River at Pickwick Pool in the State of Mississippi, and to establish a joint interstate authority to assist in these efforts.

ARTICLE II

This compact shall become effective immediately as to the states ratifying it whenever the States of Alabama and Mississippi have ratified it and Congress has given consent thereto. Any state not mentioned in this article which is contiguous with any member state may become a party to this compact, subject to approval by the legislature of each of the member states.

ARTICLE III

The states which are parties to this compact (hereinafter referred to as “party states”) do hereby establish and create a joint agency which shall be known as the Tennessee-Tombigbee Waterway Development Authority (hereinafter referred to as the “authority”). The membership of which authority shall consist of the Governor of each party state and five (5) other citizens of each party state, to be appointed by the Governor thereof. Each appointive member of the authority shall be a citizen of that state who is interested in the promotion and development of waterways and water transportation. The appointive members of the authority shall serve for terms of four (4) years each. Vacancies on the authority shall be filled by appointment by the Governor for the unexpired portion of the term. The members of the authority shall not be compensated, but each shall be entitled to actual expenses incurred in attending meetings, or incurred otherwise in the performance of his duties as a member of the authority. The members of the authority shall hold regular quarterly meetings and such special meetings as its business may require. They shall choose annually a chairman and vice chairman from among their members, and the chairmanship shall rotate each year among the party states in order of their acceptance of this compact. The secretary of the authority (hereinafter provided for) shall notify each member in writing of all meetings of the authority in such a manner and under such rules and regulations as the authority may prescribe. The authority shall adopt rules and regulations for the transaction of its business; and the secretary shall keep a record of all its business, and shall furnish a copy thereof to each member of the authority. It shall be the duty of the authority, in general, to promote, encourage, and coordinate the efforts of the party states to secure the development of the Tennessee-Tombigbee Waterway. Toward this end, the authority shall have power to hold hearings; to conduct studies and surveys of all problems, benefits, and other matters associated with the development of the Tennessee-Tombigbee Waterway, and to make reports thereon; to acquire, by gift or otherwise, and hold and dispose of such money and property as may be provided for the proper performance of their function; to cooperate with other public or private groups, whether local, state, regional, or national, having an interest in waterways development; to formulate and execute plans and policies for emphasizing the purpose of this compact before the Congress of the United States and other appropriate officers and agencies of the United States; and to exercise such other powers as may be appropriate to enable it to accomplish its functions and duties in connection with the development of the Tennessee-Tombigbee Waterway and to carry out the purposes of this compact.

ARTICLE IV

The authority shall appoint a secretary, who shall be a person familiar with the nature, procedures, and significance of inland waterways development and the informational, educational, and publicity methods of stimulating general interest in such developments, and who shall be the compact administrator. His term of office shall be at the pleasure of the authority and he shall receive such compensation as the authority shall prescribe. He shall maintain custody of the authority’s books, records, and papers, which he shall keep at the office of the authority, and he shall perform all functions and duties, and exercise all powers and authorities, that may be delegated to him by the authority.

ARTICLE V

Each party state agrees that, when authorized by its legislature, it will from time to time make available and pay over to the authority such funds as may be required for the establishment and operation of the authority. The contribution of each party state shall be in the proportion that its population bears to the total population of the states which are parties hereto, as shown by the most recent official report of the United States Bureau of the Census, or upon such other basis as may be agreed upon.

ARTICLE VI

Nothing in this compact shall be construed so as to conflict with any existing statute, or to limit the powers of any party state, or to repeal or prevent legislation, or to authorize or permit curtailment or diminution of any other waterway project, or to affect any existing or future cooperative arrangement or relationship between any federal agency and a party state.

ARTICLE VII

This compact shall continue in force and remain binding upon each party state until the legislature or Governor of each or either state takes action to withdraw therefrom; provided that such withdrawal shall not become effective until six (6) months after the date of the action taken by the legislature or Governor. Notice of such action shall be given to the other party state or states by the Secretary of State of the party state which takes such action.

182.305. Lieutenant Governor to be member of board.

One (1) of the five (5) members of the Tennessee-Tombigbee Waterway Development Authority appointed by the Governor pursuant to Article III of the compact set forth in KRS 182.300 shall be the Lieutenant Governor.

History. Enact. Acts 1980, ch. 141, § 11, effective July 15, 1980.

182.310. Contributions not required.

In authorizing the Governor to execute the compact set out in KRS 182.300 , the General Assembly understands that contributions under Article V of the compact will not be required from Kentucky, beyond the amount necessary to pay the expenses of Kentucky members of the authority established by the compact. If at any time a contribution beyond that amount should be required from Kentucky, then Kentucky’s participation in the compact becomes subject to further consideration by the General Assembly.

History. Enact. Acts 1962, ch. 265, § 2.

182.320. Grant of powers.

With the provision contained in KRS 182.310 , there is granted to the Governor, to the members of the authority for Kentucky, and to the compact administrator all the powers, provided for in the compact and in KRS 182.310 and 182.320 . All officers of the Commonwealth are authorized and directed to do all things falling within their respective jurisdictions which are necessary or incidental to carrying out the purposes of the compact.

History. Enact. Acts 1962, ch. 265, § 3.

182.990. Penalties.

  1. Any person violating the provisions of KRS 182.010 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500) for each offense.
  2. Any person violating the provisions of KRS 182.140 to 182.160 , shall be fined not less than twenty-five ($25) nor more than one hundred dollars ($100) or imprisoned not less than five (5) nor more than twenty (20) days, or both.

History. 182, 1392b.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Diverting Water from Plaintiff’s Mill, Form 353.01.

CHAPTER 183 Aviation

183.010. Definitions.

As used in this chapter unless the context otherwise requires:

  1. “Federal Aviation Administration” shall mean that agency or board of the United States government empowered to regulate operation of aircraft; aviation facilities and persons operating and maintaining aircraft;
  2. “Secretary” means the secretary of the Transportation Cabinet;
  3. “Cabinet” means the Transportation Cabinet, the statutory administrative department of the Commonwealth of Kentucky.

History. 165-48: amend. Acts 1942, ch. 10, § 1; 1944, ch. 24, § 1; 1944, ch. 147, § 1; 1945 (1st Ex. Sess.), ch. 3, § 1; 1946, ch. 48, § 1; 1958, ch. 153, § 1; 1960, ch. 179, § 2; 1974, ch. 74, Art. IV, §§ 20(4), 20(6); 1976, ch. 308, § 1.

NOTES TO DECISIONS

Cited:

Commonwealth Air Transport, Inc. v. Stuart, 303 Ky. 69 , 196 S.W.2d 866, 1946 Ky. LEXIS 778 ( Ky. 1946 ).

Research References and Practice Aids

Cross-References.

Airports in first-class cities, control, contracts for use of, KRS 97.252 .

Archaeological sites, reporting discovery of, KRS 164.730 .

Issuance of bonds and control of funds, KRS Ch. 66.

Planning and zoning, KRS Ch. 100.

Kentucky Law Journal.

Lewis, Kostas and Carnes, Consolidation — Complete or Functional — Of City and County Governments in Kentucky, Part III, Possible Under Kentucky Law, K., Planning and Zoning, 42 Ky. L.J. 295 (1954).

Moreland, Criminal Jurisdiction of the Kentucky Courts: A Tentative Codification, 47 Ky. L.J. 7 (1958).

Martin, Administrative Action for Efficient Debt Management: The Kentucky Case, 49 Ky. L.J. 505 (1961).

183.011. Definitions of aviation terms.

  1. “Aeronautics” means the science and art of flight and includes but is not limited to transportation by aircraft; the operation, construction, repair, or maintenance of aircraft, aircraft power plants, and accessories, including the repair, packing, and maintenance of parachutes; the design, establishment, construction, extension, operation, improvement, repair, or maintenance of airports or other air navigation facilities; and instruction in flying or ground subjects pertaining thereto.
  2. “Aircraft” means any contrivance now known, or hereafter invented, used or designed for navigation of or flight in the air.
  3. “Air navigation” means the operation or navigation of aircraft in the air space over this state, or upon any airport within this state.
  4. “Airport” means any area, of land or water, which is designed for the landing and take-off of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for receiving or discharging passengers or cargo, and all appurtenant areas used or suitable for airport building or other airport facilities, and all appurtenant rights-of-way, whether theretofore or hereinafter established.
  5. “Airport board,” “airboard,” or “board” means a board established as provided in this chapter and any airport board or airboard created pursuant to the provisions of KRS Chapter 183 as it existed prior to the enactment of 1960 Ky. Acts ch. 179 shall be deemed to have been established pursuant to this chapter with all of the powers, functions, and duties as herein prescribed.
  6. “Airport facilities” includes land, buildings, equipment, runways, and other improvements and appurtenances necessary for the establishment and maintenance of airports.
  7. “Airport hazard” means any structure, object, or natural growth, or use of land, which obstructs the air space required for the flight of aircraft in landing or taking off at any airport or is otherwise hazardous to such landing or taking off.
  8. “Certificate” means a certificate issued by the cabinet.
  9. “Civil aircraft” means any aircraft other than a public aircraft.
  10. “Charter operator” means all persons who transport or seek to transport persons or property in intrastate commerce for hire on unscheduled service and not between fixed points.
  11. “Commercial airport” means an airport certified by the Federal Aviation Administration in accordance with 14 C.F.R. pt. 139.
  12. “Common carrier” shall include all carriers for hire or compensation by air who operate, or seek to operate, over fixed routes or between fixed termini within the Commonwealth of Kentucky.
  13. “Commuter air carrier” means a common carrier of persons or property in intrastate commerce for hire or compensation by air, operating under federal aviation regulation (FAR) Part 135 or other appropriate parts or regulations and who operates or seeks to operate on regular schedules with multi-engine aircraft between two (2) or more fixed airport termini or over fixed routes only within the Commonwealth of Kentucky and publishes flight schedules which specify the times, days of week, and places between which such flights are performed.
  14. “Development” and “airport development” mean:
    1. Any work involved in planning, designing, constructing, improving, or repairing a public airport or portion thereof, including the construction, alteration, and repair of airport buildings and the removal, lowering, relocation, and marking and lighting of airport hazards; and
    2. Any acquisition of land, or any interest therein, or of any easement through or other interest in air space which is necessary to permit any required work or to remove, mitigate, prevent, or limit the establishment of airport hazards and expenses incident to the carrying out of the provisions of this chapter.
  15. “General aviation airport” means any public-use airport that:
    1. Does not have scheduled passenger service; or
    2. Is not inspected and certified by the Federal Aviation Administration (FAA) for commercial or scheduled air service in accordance with 14 C.F.R. pt. 139.
  16. “Navigable air space” means air space above the minimum altitudes of flight prescribed by the regulations of the Federal Aviation Administration or cabinet consistent therewith, and includes the air space necessary for normal landing or take off of aircraft.
  17. “Operate,” as pertains to an unmanned aircraft, means the actions taken by an operator of an unmanned aircraft. “Operate” refers only to the actions of an operator on the ground and is not intended to regulate an unmanned aircraft flying in navigable airspace.
  18. “Operation of aircraft” or “operate aircraft” means the use, navigation, or piloting of aircraft in the air space over this state, or upon any airport within this state. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control as owner, lessee, or otherwise of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this state.
  19. “Operator” means a person operating or flying an unmanned aircraft.
  20. “Overhead line” means any cable, pipeline, wire, or similar substance of any kind or description.
  21. “Permit” means a permit issued by the cabinet.
  22. “Public aircraft” means an aircraft used exclusively in the service of any government or of any political subdivision thereof, including the government of the state, territory, or possession of the United States, or the District of Columbia, but not including any government-owned aircraft engaged in carrying persons or property for commercial purposes.
  23. “Public airport” means any airport which is used or to be used for public purposes under the control of a public agency, the landing area of which is publicly owned.
  24. “Public use airport” means any airport in the state airport plan open for use by the general public, not including a private airport used primarily for the benefit of the owner.
  25. “State airport plan” means the plan of the cabinet for the development of public and certain private airports for the benefit of the people of this state.
  26. “State airway” means a route in the navigable air space over the lands or waters of this state, designated by the cabinet as a route suitable for air navigation.
  27. “Structure” means any object constructed or installed by man, including but not limited to buildings, towers, smokestacks, and overhead transmission lines.
  28. “Tree” includes objects of natural growth.
  29. “Unmanned aircraft” means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.
  30. “Unmanned aircraft facility map” means a map that may be developed by a commercial airport to display the airport facility’s airspace overlaid with latitude and longitude rectangular gridlines, or any other commercially available system, that reflects the areas where it is unsafe to operate an unmanned aircraft without authorization by the commercial airport operator on property owned by a commercial airport and in specific areas consistent with obstructions to navigation under 14 C.F.R. pt. 77.

History. Enact. Acts 1958, ch. 153, § 2; 1960, ch. 179, § 3; 1964, ch. 134, § 2; 1974, ch. 115, § 1; 1976, ch. 308, § 2; 1996, ch. 174, § 10, effective July 15, 1996; 1996, ch. 318, § 67, effective July 15, 1996; 2017 ch. 153, § 3, effective June 29, 2017; 2019 ch. 121, § 3, effective June 27, 2019.

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts chs. 174 and 318. Where these Acts are not in conflict, they have been codified together. Where a conflict exists between Acts ch. 174 and a nonsubstantive, stylistic amendment in Acts ch. 318, Acts ch. 174 prevails under Acts ch. 318, sec. 358.

Opinions of Attorney General.

The Elizabethtown Airport Board is a public agency subject to the Open Records provisions of KRS 61.870 to 61.884 . OAG 89-53 .

183.012. Definitions of local administrative units.

  1. “City” means any incorporated city;
  2. As used in this chapter, “governmental unit” means any city, or the combination of any two (2) or more thereof, or any county, urban-county government, or combination of two (2) or more such counties, city or cities, acting jointly with any county or counties or an airboard or board established as provided in this chapter;
  3. As used in this chapter, “ordinance,” in the case of a county, means resolution of the county legislative body, and in the case of an airport board or airboard means a resolution or regulation of the board.
  4. “State” or “this state” means the Commonwealth of Kentucky;
  5. “Person” means any individual, firm, partnership, corporation, company, association, joint stock association, or body politic; and includes any trustee, receiver, assignee, or other similar representative thereof.

History. Enact. Acts 1958, ch. 153, § 3; 1960, ch. 179, § 4; 1964, ch. 134, § 3; 1974, ch. 115, § 2.

NOTES TO DECISIONS

1. Airport Boards.

Where the county airport board and a county airport corporation were sued in a wrongful death action after a plane crash, the trial court properly determined that the airport board and corporation were agencies of the county government under KRS 183.012(2) and were entitled to sovereign immunity. By providing essential transportation infrastructure to the citizens of the Commonwealth of Kentucky, the airport board and the airport corporation were exercising a function integral to state government under KRS 183.133(6); as such, the organizations and their members could not be held liable in tort. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 2009 Ky. LEXIS 235 ( Ky. 2009 ).

Cited:

Padgett v. Louisville & Jefferson County Air Board, 492 F.2d 1258, 1974 U.S. App. LEXIS 10048 (6th Cir. 1974).

183.020. Kentucky Aeronautics Commission; members; qualifications; terms. [Repealed.]

Compiler’s Notes.

This section (165-45: amend. Acts 1946, ch. 48, § 2) was repealed by Acts 1948, ch. 225, § 5.

183.021. Department of aeronautics created — Functions — Commissioner. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 225, § 1; 1960, ch. 179, § 5; 1964, ch. 134, § 4) was repealed by Acts 1974, ch. 74, Art. IV, § 21.

183.022. Advisory Board of Aeronautics. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 225, § 2; 1960, ch. 179, § 6) was repealed by Acts 1964, ch. 134, § 27.

183.023. Aeronautics Commission and Director abolished; transfer of functions, properties and funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 225, § 3) was repealed by Acts 1960, ch. 179, § 1.

183.024. Rules and regulations.

The Transportation Cabinet may prescribe such rules and regulations, not inconsistent with law, and may do all things reasonable or necessary to carry out the provisions of this chapter and other statutes relating or incidental to the field of aeronautics.

History. Enact. Acts 1948, ch. 225, § 4; 1960, ch. 179, § 7, effective March 25, 1960; 1982, ch. 183, § 4, effective July 15, 1982.

183.030. Compensation; officers; employes; rules and regulations; general powers. [Repealed.]

Compiler’s Notes.

This section (165-45, 165-46: amend. Acts 1946, ch. 48, § 3) was repealed by Acts 1948, ch. 225, § 5.

183.031. Investigations, hearings, inquiries and decisions by commission; orders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 48, § 8) was repealed by Acts 1948, ch. 225, § 5.

183.032. Adjudicatory powers and proceedings.

  1. Processes and proceedings under this chapter shall be as summary and simple as possible. The cabinet, or any employee thereof, for the purpose of this chapter, may subpoena witnesses, administer or cause to have administered oaths; and examine, or cause to have examined, parties and such parts of the books and records of the parties to a proceeding as relate to the question under consideration.
  2. The sheriff shall serve all subpoenas of the cabinet and shall receive from the cabinet the same fee as provided by law for like service in civil actions.
  3. Each witness who appears in obedience to such subpoena shall receive for attendance the fees and mileage for witnesses in civil cases in the Circuit Court to be paid by the party at whose request the witness was subpoenaed.
  4. The Circuit Court shall, on application of the department or any officer thereof, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records.

History. Enact. Acts 1946, ch. 48, § 9; 1958, ch. 153, § 5; 1960, ch. 179, § 8.

183.033. Traveling expenses of commission and employes; use of aircraft for travel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 48, § 11) was repealed by Acts 1948, ch. 225, § 5.

183.040. Kentucky Aeronautics Director; appointment; duties; powers. [Repealed.]

Compiler’s Notes.

This section (165-47: amend. Acts 1946, ch. 48, § 5) was repealed by Acts 1948, ch. 225, § 5.

183.050. Federal licensing and registration requirement for pilots and aircraft.

No person shall operate an aircraft within the state unless he and it are licensed and registered by the Federal Aviation Administration.

History. 165-49: amend. Acts 1958, ch. 153, § 6; 1960, ch. 179, § 9; 1976, ch. 308, § 3.

183.060. Licensing of pilots; qualifications. [Repealed.]

Compiler’s Notes.

This section (165-50) was repealed by Acts 1958, ch. 153, § 49.

183.061. Prohibition against operation of or acting as crewmember of civil aircraft while using or under the influence of alcohol or other substance — Consent to tests — Penalty — Reports to Federal Aviation Administration.

  1. As used in this section, “crewmember” means any person performing or assigned to perform any duty in a civil aircraft during the time which the aircraft is undergoing preflight inspection, boarding, or carrying passengers or crew, or any time the aircraft is under power or in flight.
  2. It is unlawful for any person to operate, attempt to operate, or act, or attempt to act, as a crewmember of any civil aircraft in this Commonwealth:
    1. Within eight (8) hours after the consumption of any alcoholic beverage; or
    2. While under the influence of alcohol; or
    3. While using any substance that affects his faculties in any way contrary to safety; or
    4. With four one-hundredths of one percent (0.04%) or more by weight of alcohol in his blood.
  3. Any person who operates or attempts to operate or acts or attempts to act as a crewmember of any aircraft in this Commonwealth is considered to have given his consent to one (1) or more tests of his blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration or presence of a substance which affects his faculties in any way contrary to safety, if arrested for a violation of this section.
  4. Testing for alcohol concentration or other substances shall be done in the manner prescribed in KRS Chapter 189A, and the defendant shall have the same rights as provided by KRS Chapter 189A with regard to refusing the test.
  5. Any person who violates the provisions of subsection (2) of this section shall be punished as provided in KRS 189A.010 . Any person who refuses a test offered pursuant to subsection (3) shall be fined two hundred dollars ($200) or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days, or both. Conviction for a violation of subsection (2) shall not bar a conviction for refusal to take tests for alcohol or other substances. Conviction for refusal to take tests for violation of alcohol or other substances shall not bar a conviction for a violation of subsection (2).
  6. The filing of charges, results of chemical testing, and results of the trial or other subsequent proceedings shall be reported to the division, branch, or office of the Federal Aviation Administration having jurisdiction for regulation and certification by the law enforcement agency making the arrest within thirty (30) days of the date of arrest. Law enforcement agencies possessing evidence of a violation of this section shall present the evidence for use by the Federal Aviation Administration as well as for prosecution by the state under this section.

History. Enact. Acts 1992, ch. 327, § 1, effective July 14, 1992.

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

183.070. State licensing and registration requirement.

The cabinet may require that all aircraft operating from any airport, or other landing facility, within this state, shall be licensed with the cabinet. It may further require that all pilots operating aircraft from any airport or other landing facility within this state shall be registered with the cabinet. Provisions and fees for licensing of aircraft and registration of pilots shall be by regulations established by the cabinet.

History. 165-51: amend. Acts 1958, ch. 153, § 7; 1960, ch. 179, § 10.

183.075. Human trafficking hotline telephone number to be prominently displayed in each airport’s publicly accessible restrooms.

  1. As used in this section, “airport” has the same meaning as in KRS 183.011 .
  2. An airport shall post in all of its publicly accessible restrooms a printed sign in English and Spanish at least eleven (11) inches by fourteen (14) inches in size, with letters at least one (1) inch high, displaying the current telephone hotline number of the National Human Trafficking Resource Center or any federally funded successor entity. The sign shall be:
    1. Created using gender-neutral language supplied by the Office of the Attorney General; and
    2. Posted in a prominent place easily seen by patrons.

HISTORY: 2020 ch. 75, § 3, effective July 15, 2020.

183.080. Air traffic rules.

The cabinet may promulgate air traffic rules applicable to the operation of aircraft within the state, but the rules shall be in conformity with the air traffic rules adopted by the Federal Aviation Administration as nearly as possible. The cabinet may also promulgate such other rules, not in conflict with the Federal Aviation Administration regulations necessary for safe, adequate, and convenient operation of airports, air navigation, air transportation, and all matters relating to said functions.

History. 165-52: amend. Acts 1958, ch. 153, § 8; 1960, ch. 179, § 11; 1976, ch. 308, § 4.

183.085. Unmanned aircraft facility map for commercial airport.

  1. A commercial airport may prepare an unmanned aircraft facility map. In preparing the map, a commercial airport shall consult with the Federal Aviation Administration air traffic control tower at the airport,
  2. Any unmanned aircraft facility map developed by a commercial airport shall be filed with the secretary of the airport board and shall be prominently displayed on the airport’s Web site.
  3. An unmanned aircraft facility map shall not extend beyond the approach surface areas specifically described in 14 C.F.R. sec. 77.19(d), and as published in the official airport master plan record.
  4. If the Federal Aviation Administration creates and makes available a map for the commercial airport that restricts the areas where it is unsafe to operate an unmanned aircraft in the areas described in 14 C.F.R. sec. 77.19(d), that map shall be the unmanned aircraft facility map of the commercial airport.

HISTORY: 2017 ch. 153, § 1, effective June 29, 2017.

183.086. Restrictions on operation of unmanned aircraft — Exemption.

  1. An operator of an unmanned aircraft or a direct supervisor of an operator of an unmanned aircraft, if that direct supervisor holds a remote pilot certificate under 14 C.F.R. Part 107, shall not operate or allow an unmanned aircraft to operate:
    1. In a manner that allows an incursion of an unmanned aircraft into areas prohibited for the operation, taking off, and landing of an unmanned aircraft as designated by a commercial airport’s unmanned aircraft facility map, except with the approval of the commercial airport operator; or
    2. In a reckless manner so as to create a risk of serious physical injury to another or a risk of damage to property.
  2. The provisions of this section shall not apply to an operator of an unmanned aircraft for a commercial purpose in compliance with Federal Aviation Administration regulations, authorizations, or exemptions.

HISTORY: 2017 ch. 153, § 2, effective June 29, 2017.

183.090. Inspection of general aviation airport facilities — Certificate of approval — Revocation.

  1. The cabinet shall cause all general aviation airport facilities in the state to be inspected to determine the safety and adequacy of such facilities. No person shall operate any aircraft from a general aviation airport declared unfit by the cabinet.
  2. In determining whether it shall issue a certificate of approval for the use or operation of a general aviation airport, the cabinet shall take into consideration its location, size, layout, safety of operations, the relationship of the airport to a comprehensive plan for statewide and nationwide development, whether the adjoining area is free from obstructions based on a proper glide ratio, the nature of the terrain, the nature of the uses to which the airport will be put, and the possibilities for future development.
  3. The cabinet is empowered to temporarily or permanently revoke any certificate of approval issued by it when it shall determine that a general aviation airport is not being maintained or used in accordance with the provisions of this chapter and the administrative regulations promulgated in accordance with it.

History. 165-54: amend. Acts 1946, ch. 48, § 6; 1958, ch. 153, § 9; 1960, ch. 179, § 12; 2019 ch. 121, § 1, effective June 27, 2019.

183.100. Compliance with air traffic rules.

No person shall operate any aircraft within the state in any form of navigation whatsoever in violation of the air traffic rules promulgated by the cabinet or the Federal Aviation Administration. For enforcement purposes, cabinet personnel shall have access at all reasonable times to appropriate books, records, and logs of any person operating aircraft in the state.

History. 165-53: amend. Acts 1958, ch. 153, § 10; 1960, ch. 179, § 13; 1976, ch. 308, § 5.

NOTES TO DECISIONS

1. Violation.

The pilot’s violation of this section did not prevent the creation of any contract for fare between the pilot and the insured passenger; the insured passenger had no duty to ascertain whether the plane and pilot could pass an inspection. Therefore, the insured’s beneficiary was entitled to accidental death benefits which were only payable if the insured was a fare paying passenger. Sutherland v. Great Fidelity Life Ins. Co., 707 S.W.2d 344, 1986 Ky. LEXIS 258 ( Ky. 1986 ).

Research References and Practice Aids

ALR

Validity, construction, and application of state criminal statute prohibiting reckless operation of aircraft. 89 A.L.R.3d 893.

183.110. Police powers of secretary, officers and employees.

  1. The secretary and officers and employees of the cabinet designated by order of the secretary shall be peace officers and may arrest any person found violating any provision of this chapter or any civil air regulation promulgated by the Federal Aviation Administration.
  2. The secretary, in his discretion, may commission any official or employee of an airport board or governmental unit not authorized by KRS 183.880 to establish a safety and security department as peace officers and such persons so commissioned shall have all of the powers of peace officers in respect to the enforcement of this chapter or any civil air regulation promulgated by the Federal Aviation Administration and rules and regulations promulgated by airport boards or governmental units.

History. 165-55: amend. Acts 1958, ch. 153, § 11; 1960, ch. 179, § 14; 1974, ch. 74, Art. IV, § 20(6); 1976, ch. 300, § 1.

Opinions of Attorney General.

The Kentucky law enforcement council is not required to train airport security guards at its expense, however it may do so pursuant to the authority of KRS 15.340(2), at the employer’s expense. OAG 73-573 ; 73-728.

A special policeman appointed under KRS 95.160 , as a state officer, would have a great deal more authority in the enforcement of statutes than an officer appointed under subsection (2) of this section who is neither a peace officer nor a state officer but is an officer, in the technical sense, of some sovereignty and, since a state officer cannot be a municipal officer, the two positions would be incompatible. OAG 74-13 .

Airport security police have neither authority to arrest for disorderly conduct under KRS 437.016 (repealed) nor the power of arrest pursuant to a city ordinance. OAG 74-13 .

183.120. Acquisition of facilities by cabinet — Aid to other agencies.

  1. The cabinet may acquire or dispose by contract, purchase, lease, donation, condemnation or otherwise, airports, buildings, runways, grounds and other facilities suitable for airport purposes and the proper safeguards to flying where such acquisition or disposal shall be in the public interest.
  2. The cabinet may make additions and improvements to such airports, or facilities and either alone or with the cooperation of others provide personnel, heat, light, water, fuel, telephone service, drainage, runways, fueling facilities, radio and navigation facilities, and other costs of operation and maintenance, including insurance, and may bear the expense of removal or change of obstructions that menace air travel.
  3. The cabinet may enter into contracts of lease for land or facilities to which title is vested in the Commonwealth with any city, or cities, county, or counties, governmental unit, political subdivision, airboard or person for the furtherance of the purposes of this chapter. All rents or revenues derived from such contracts of lease shall become the property of the cabinet to be expended by it in carrying out the purposes of this chapter.
  4. The cabinet may give such advice and assistance, including financial aid, engineering and technical assistance within the limits of its resources as it deems advisable, to enable any governmental unit or board to acquire, construct, expand, maintain and operate airports or otherwise assist in the development of aeronautics within their limits. Such aid may include the exercise of the cabinet’s power of eminent domain, if such usage is requested by the governmental unit or board. Where such eminent domain powers are utilized, title to acquire property may vest in the governmental unit.

History. 165-57: amend. Acts 1958, ch. 153, § 12; 1960, ch. 179, § 15.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

183.121. State airways system — State airport plan — Aeronautics controversies — Injunctive proceedings.

  1. The cabinet may designate, design, establish, expand, or modify a state airways system which will best serve the interests of the state. It may chart such airways systems and arrange for publication and distribution of such maps, charts, notices and bulletins relating to such airways as may be required in the public interest. The system shall be supplementary to and coordinated in design and operation with the federal airways system. It may include all types of air navigation facilities, whether publicly or privately owned, provided that such facilities conform to federal safety standards.
  2. It may participate as party plaintiff or defendant, or as intervener on behalf of the state, or on behalf of any air board or governmental unit or other person in any controversy involving any right of the state or others pertaining to aeronautics.
  3. To enforce the provisions of this chapter the cabinet may in addition to all other remedies institute and prosecute injunctive proceedings without the execution of a bond.
  4. The Franklin Circuit Court shall hold concurrent venue with the courts of this Commonwealth of all civil and injunctive actions instituted by the cabinet for the enforcement of this chapter and the orders, rules and regulations of the cabinet thereunder.

History. Enact. Acts 1946, ch. 48, § 4; 1958, ch. 153, § 13; 1960, ch. 179, § 16.

Research References and Practice Aids

ALR

Airport operations or flight of aircraft as nuisance. 79 A.L.R.3d 253.

183.122. Condemnation — Effect on zoning of adjacent property.

  1. Where necessary, in order to provide unobstructed air space for the landing and taking off of aircraft utilizing airports acquired or operated under the provisions of this chapter, the cabinet is hereby granted authority to condemn and acquire, in the same manner as is provided for the acquisition of property for airport purposes, easements through or other interests in air space over land or water, interests in airport hazards outside the boundaries of the airports and such other airport protection privileges, together with rights of ingress and egress thereto and therefrom, as are necessary to insure safe approaches to the landing areas of said airports and the safe and efficient operation thereof. The cabinet is authorized to acquire, in the same manner, the right or easement, for a term of years or perpetually, to place or maintain suitable marks for the daytime marking and suitable lights or marks for the night marking of airport hazards, including the right of ingress and egress to and from such airport hazards for the purpose of maintaining and repairing such lights and marks.
  2. The secretary may, by order, authorize any airport board or governmental unit to condemn and acquire, with the full power of the Commonwealth, in the manner provided in the Eminent Domain Act of Kentucky, any of the interests, easements, airport protection privileges, interests in air space, rights, or hazard marking privileges described in subsection (1), or any real or personal property. Any condemnation proceeding which may be necessary for such acquisition, if filed under this subsection, shall be filed in the name of the Commonwealth on relation of the secretary of transportation, and of the airport board or governmental unit making such acquisition.
  3. The authority granted in subsections (1) and (2) shall not be so construed as to limit the right, power, or authority of the state or any municipality or governmental unit to zone property adjacent to any airport pursuant to any law of this state.

History. Enact. Acts 1946, ch. 48, § 7; 1958, ch. 153, § 14; 1960, ch. 179, § 17; 1974, ch. 74, Art. IV, § 20(6); 1976, ch. 140, § 85.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (2) of this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

Cited:

Bowling Green-Warren County Airport Bd. v. Long, 364 S.W.2d 167, 1962 Ky. LEXIS 280 ( Ky. 1962 ).

183.123. Declaration of public purposes of governmental actions in the field of aviation.

The acquisition of any lands for the purpose of establishing airports or other air navigation facilities; the acquisition of any airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipping, and operation of airports and other air navigation facilities, whether by the state separately or jointly with any governmental unit thereof or air board; the assistance of the state in any such acquisition, establishment, construction, enlargement, improvement, maintenance, equipping and operation; and the exercise of any other powers of the cabinet as set out in this chapter, including the zoning of land in and around air facilities, are hereby declared to be public and governmental functions exercised for a public purpose, and matters of public necessity, and such lands and other property and privileges acquired, zoned and used in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired, zoned and used for public and governmental purposes and as a matter of public necessity.

History. Enact. Acts 1946, ch. 48, § 12; 1958, ch. 153, § 15; 1960, ch. 179, § 18.

NOTES TO DECISIONS

1. Sovereign Immunity.

Where the county airport board and a county airport corporation were sued in a wrongful death action after a plane crash, the trial court properly determined that the airport board and corporation were agencies of the county government and entitled to sovereign immunity. By providing essential transportation infrastructure to the citizens of the Commonwealth of Kentucky, the airport board and the airport corporation were exercising a function integral to state government under KRS 183.123 ; as such, the organizations and their members could not be held liable in tort. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 2009 Ky. LEXIS 235 ( Ky. 2009 ).

183.125. Purchase of liability insurance.

  1. The cabinet may purchase necessary insurance to provide adequate protection for the public; its authorized pilots and employees; pilots employed by other departments of state government; aircraft owned, leased or operated by the cabinet; aircraft owned, leased or operated by other departments of state government; the health and lives of persons being transported in aircraft owned, leased or operated by authorized pilots employed by the state.
  2. The commissioner of insurance, upon recommendation of the secretary of the Transportation Cabinet, shall initiate and be responsible for the purchase of such insurance. If other departments of state government desire that their pilots, employees, aircraft and passengers shall be insured under such policy, then the commissioner of insurance shall prorate the cost of the insurance among the departments participating.
  3. Each policy shall contain a provision reciting that the defense of immunity of the state against such liability shall be waived, but only to the extent of the limits of the policy. Judgment against the state in any case shall not exceed the limits of the policy. The venue of action shall be as provided by the civil rules. The limits of liability of the policy shall be determined by the commissioner of insurance, the secretary of the Transportation Cabinet and the commissioners of any other participating departments.
  4. Any policy purchased under this section, shall be purchased only from insurers authorized to do business in this state and shall be countersigned by a licensed resident agent.

History. Enact. Acts 1960, ch. 179, § 80, effective March 25, 1960; 2010, ch. 24, § 232, effective July 15, 2010.

Opinions of Attorney General.

A person injured by the negligence of a state employee has an option whether to proceed through the board of claims or against the individual employee, but the remedy, once elected, is exclusive. OAG 61-994 .

Research References and Practice Aids

ALR

Airport operations liability insurance. 92 A.L.R.3d 1267.

183.130. Federal aid.

  1. The cabinet is the proper agency of the state to accept and receive financial or other aid from the United States government for the acquisition, construction, maintenance and operation of airports, air markings and other air navigational aids or otherwise in carrying out the promotion of aviation, whether the work is to be done by the state or at the expense of cities or governmental units aided by grants or aids from the United States.
  2. When acquisition or construction of airports or other facilities is made at the joint expense of the cabinet, board or governmental units and the United States government, the cabinet shall, on behalf of such board or governmental unit, accept and receipt for any money paid over by the United States government and forthwith pay such money over to the board or governmental unit under the terms and conditions imposed by the United States government in making the grants.

History. 165-58: amend. Acts 1958, ch. 153, § 16; 1960, ch. 179, § 19.

Research References and Practice Aids

Cross-References.

Disposition of private funds and contributions available to state departments and agencies, KRS 41.290 .

Local Air Boards

183.132. Local air boards.

  1. Any urban-county government, city, or county, or city and county acting jointly, or any combination of two (2) or more cities, counties, or both, may establish a nonpartisan air board composed of six (6) members or, under subsection (5) of this section, of eleven (11), twelve (12), or thirteen (13) members. Any city other than the first class and county jointly or an urban-county government established pursuant to KRS Chapter 67A may establish a nonpartisan board composed of ten (10) members. Any existing six (6) member board, including a board established in an urban-county government, may be expanded to ten (10) members by action of the government entity or entities that established the six (6) member board.
  2. Any city of the first class, jointly with the county containing the city or a consolidated local government, may establish or maintain a nonpartisan air board. Membership of the board shall be appointed in accordance with subsection (7) or (12) of this section. Any air board established or maintained in a county containing a city of the first class or consolidated local government shall be composed of eleven (11) members.
  3. The board shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with, and do all things reasonable or necessary to effectively carry out the duties prescribed by statute. The board shall constitute a legislative body for the purposes of KRS 183.630 to 183.740 .
  4. The members of an air board composed of six (6) members shall be appointed as follows:
    1. If the air board is established by a city, the members shall be appointed by the mayor of the city;
    2. If the air board is established as a joint city-county air board, the members shall be appointed jointly by the mayor of the city and the county judge/executive;
    3. If a combination of cities, counties, or both, establishes a joint air board, the mayors and county judges/executive involved shall jointly choose six (6) members and shall jointly choose successors;
    4. If the air board is established by an urban-county government, the mayor of the urban-county government or an officer of the urban-county government designated by the mayor shall serve as one (1) member of the board. The remaining five (5) members shall be appointed by the mayor. One (1) of the members appointed by the mayor shall live within a three (3) mile radius of the airport.
  5. If the air board is established by a county, the members shall be appointed by the county judge/executive, except that in the event that an airport is located outside the boundary of the county establishing the airport board, the voting members of the air board are appointed as follows:
    1. One (1) member appointed by the Governor of the Commonwealth;
    2. Ten (10), eleven (11), or twelve (12) members appointed from the following jurisdictions located within a twenty (20) mile radius of the airport operations:
      1. Eight (8) members appointed by the judge/executive of the county establishing the air board, with the approval of the county fiscal court. If the air board is located within a metropolitan statistical area, as defined by the United States Bureau of the Census, the county judge/executive, with the approval of the county fiscal court, may choose to appoint two (2) of these members as follows:
        1. One (1) member may be appointed following nomination by the chief executive officer of the largest city within the metropolitan statistical area;
        2. One (1) member may be appointed following nomination by the chief executive officer of the county containing the largest city within the metropolitan statistical area, if that county does not already have representation on the board; and
        3. The county judge/executive of the county establishing the air board may choose whether to invite the chief executive officers identified in subdivisions a. and b. of this subparagraph to nominate members. If the county judge/executive does invite a chief executive officer to make a nomination and the chief executive officer makes a nomination, the county judge/executive may choose whether to appoint that nominee or to appoint another person instead;
      2. Two (2) members appointed by the county judge/executive of the county containing the majority of territory encompassing the airport. This appointment shall be made with the approval of both the fiscal court of the county containing the majority of territory encompassing the airport and the fiscal court of the county establishing the air board; and
      3. One (1) or two (2) additional members, if there are any counties within the prescribed geographic limits that do not otherwise have an appointment to the air board. If there is one (1) such county, this appointment shall be made by the county judge/executive of that county, with the approval of that county’s fiscal court. If there are two (2) or more such counties, these appointments shall be made by the county judges/executive of the two (2) counties among them having the largest population, and the appointments shall receive the approval of those respective counties’ fiscal courts and the fiscal court of the county establishing the air board; and
    3. Board members of any air board established prior to June 24, 2015, that is operating an airport that is located outside the boundary of the county establishing the airport board shall serve out the remainder of their terms. Additional voting members shall assume their offices on the July 1 following June 24, 2015, and be appointed as follows:
      1. The member appointed by the Governor shall be appointed for an initial term of one (1) year;
      2. One (1) member from the county containing the majority of territory encompassing the airport shall be appointed for an initial term of two (2) years;
      3. One (1) member from the county containing the majority of territory encompassing the airport shall be appointed for an initial term of three (3) years;
      4. One (1) member from the county establishing the airport board shall be appointed for an initial term of four (4) years; and
      5. If there are any, the members from the counties that are not otherwise represented on the air board within the prescribed geographic limit shall be appointed for an initial term of four (4) years.
  6. The members of an air board composed of ten (10) members in a city other than a city of the first class and county jointly other than an urban-county government established pursuant to KRS Chapter 67A shall be appointed as follows:
    1. Five (5) members shall be appointed by the mayor of the city, without approval of the legislative body;
    2. Five (5) members shall be appointed by the county judge/executive without approval of the other members of the fiscal court.
  7. An air board consisting of eleven (11) members and established jointly by a city of the first class and the county containing the first class city shall be composed of members as follows:
    1. The mayor of the city of the first class;
    2. The county judge/executive of the county containing the city of the first class;
    3. Three (3) members appointed by the mayor of the city of the first class;
    4. Three (3) members appointed by the county judge/executive of the county, with the approval of the fiscal court;
    5. Two (2) members, who shall be residents of the county containing a city of the first class or of counties contiguous thereto, appointed by the Governor; and
    6. One (1) member, who shall be a member of the executive board of an incorporated alliance of incorporated neighborhood associations and cities with a population of less than three thousand (3,000) based upon the most recent federal decennial census which represents citizens living within a five (5) mile radius of airport operations, appointed by the Governor. If more than one (1) incorporated alliance exists, the Governor shall select the appointee from the executive boards of any of the incorporated alliances. If no alliances exist, the Governor shall appoint a citizen of the county who resides within a five (5) mile radius of airport operations.
  8. An air board consisting of eleven (11) members and established or maintained by a consolidated local government upon its establishment shall be composed of members as follows:
    1. The mayor of the consolidated local government;
    2. Seven (7) members appointed by the mayor of the consolidated local government;
    3. Two (2) members who shall be residents of the county containing the consolidated local government or residents of counties contiguous to the county containing the consolidated local government, appointed by the Governor; and
    4. One (1) member who shall be a member of the executive board of an incorporated alliance of incorporated neighborhood associations and cities with a population of less than three thousand (3,000) based upon the most recent federal decennial census which represents citizens living within a five (5) mile radius of airport operations, appointed by the Governor. If more than one (1) incorporated alliance exists, the Governor shall select the appointee from the executive boards of any of the incorporated alliances. If no alliances exist, the Governor shall appoint a citizen of the county who resides within a five (5) mile radius of airport operations.
  9. The members of an air board composed of ten (10) members established by an urban-county government shall be composed of the mayor of the urban-county government or an officer of the urban-county government designated by the mayor. The remaining nine (9) members shall be appointed by the mayor. Two (2) of the members appointed by the mayor shall live within a three (3) mile radius of the airport.
  10. Members of the board composed of six (6) members shall serve for a term of four (4) years each and until their successors are appointed and qualified. The initial appointments shall be made so that two (2) members are appointed for two (2) years, two (2) members for three (3) years, and two (2) members for four (4) years. Upon expiration of the staggered terms, successors shall be appointed for a term of four (4) years.
  11. Members of the board composed of ten (10) members in a city other than a city of the first class and county jointly shall serve for a term of four (4) years each and until their successors are appointed and qualified. The initial appointments made by the mayor and the county judge/executive shall be made so that one (1) member is appointed for two (2) years, two (2) members are appointed for three (3) years, and two (2) members are appointed for four (4) years. If an existing six (6) member board is being increased to a ten (10) member board, initial appointments of the four (4) new members shall be made so that the mayor and the county judge/executive, or the mayor if the board is established by an urban-county government, each appoint one (1) member for two (2) years and one (1) member for four (4) years. Upon expiration of the initial terms, successors shall be appointed for a term of four (4) years. In the case of a board established by an urban-county government, the term of the mayor for the urban-county government, or the officer of the urban-county government designated by the mayor, shall be coextensive with the term of the mayor.
  12. Members of an air board composed of eleven (11) members and established or maintained jointly by a city of the first class and the county containing a city of the first class shall serve for a term of three (3) years each and until their successors are appointed and qualified. The terms of the mayor and the county judge/executive shall be coextensive with their terms of office. The mayor and the county judge/executive shall each make their initial appointments to a board established jointly by a city of the first class and the county containing a city of the first class so that one (1) member is appointed for one (1) year, one (1) member is appointed for two (2) years, and one (1) member is appointed for three (3) years. The Governor shall make the initial appointments so that one (1) member is appointed for two (2) years and one (1) member is appointed for three (3) years. Upon the expiration of the initial terms, successors shall be appointed for a term of four (4) years.
  13. Members of an air board composed of eleven (11) members in a county that has established a consolidated local government in a county containing a former city of the first class shall serve until their successors are appointed and qualified. The terms of office on the air board of the mayor of the previously existing city of the first class and the county judge/executive of this county shall expire upon the establishment of a consolidated local government. Upon the establishment of a consolidated local government, if the consolidated local government maintains the previously existing air board, the incumbent members, except the mayor of the previously existing city of the first class and the county judge/executive of that county, shall continue to serve as members of the board for the time remaining of their current terms of appointment. The Governor shall appoint members pursuant to subsection (8) (c) and (d) of this section. The mayor of the consolidated local government shall serve on the board for a term which shall be coextensive with his or her term of office. Incumbent members shall be eligible for reappointment upon the expiration of their terms. The terms of all other board members shall be for four (4) years. Upon the establishment of a consolidated local government and maintenance of a previously existing air board, any incumbent member whose term had expired but who had continued to serve because the member’s successor had not been appointed, shall continue to serve until a successor is appointed. Successors shall be appointed by the mayor or the Governor as provided by law within sixty (60) days after the establishment of the consolidated local government. As the terms of the previously serving members of an air board being maintained by a consolidated local government expire, the mayor of the consolidated local government and the Governor shall respectively make their new appointments.
  14. Members of the board shall serve without compensation but shall be allowed any reasonable expenses incurred by them in the conduct of the affairs of the board. The board shall, upon the appointment of its members, organize and elect officers. The board, except for a board composed of eleven (11) members, shall choose a chairman and vice chairman who shall serve for terms of one (1) year. Where the board is composed of eleven (11) members and established jointly by a city of the first class and the county containing a city of the first class, the mayor of the city of the first class and the county judge/executive shall jointly appoint the chairman from among the membership of the board. Where the board is composed of eleven (11) members and is in a county containing a consolidated local government, the mayor shall appoint the chairman from among the membership of the board. The board shall also choose a secretary-treasurer who may or may not be a member of the board. The board may fix a salary for the secretary-treasurer and the secretary-treasurer shall execute an official bond to be set and approved by the board, and the cost of the bond shall be paid by the board.
  15. The board may employ necessary counsel, agents, and employees to carry out its work and functions and prescribe rules and regulations as it deems necessary.
  16. The secretary-treasurer shall keep the minutes of all meetings of the board and shall also keep a set of books showing the receipts and expenditures of the board. The secretary-treasurer shall preserve on file duplicate vouchers for all expenditures and shall present to the board, upon request, complete reports of all financial transactions and the financial condition of the board. The books and vouchers shall at all times be subject to examination by the legislative body or bodies by whom the board was created. The secretary-treasurer shall transmit at least once annually a detailed report of all acts and doings of the board to the legislative body or bodies by whom the board was created.
  17. In the event that a joint air board is created by cities, counties, or both, and thereafter a city or county desires to withdraw from participation, then the remaining participants may jointly choose a successor member or members of the board. A local government wanting to withdraw from participation in the board shall not be entitled to return of any moneys or property advanced to the board.
  18. A quorum for the transacting of the business of a six (6) member board shall consist of four (4) members, a ten (10) member board shall consist of six (6) members, and an eleven (11) member board shall consist of six (6) members. Meetings of the board may be called by the chairman or by four (4) members. In case of tie voting by the board, the issue shall be deemed to have failed passage.
  19. A board member may be replaced by the appointing authority upon a showing to the authority of misconduct as a board member or upon conviction of a felony. A board member shall not hold any official office with the appointing authority, except for the mayor of a city of the first class and the county judge/executive on a board made up of eleven (11) members and established jointly by a city of the first class and the county containing a city of the first class, or the mayor of an urban-county government or a consolidated local government, or an officer of the urban-county government designated by the mayor on a board established by an urban-county government.

Thereafter, their replacements shall serve a full four (4) year term. All members may be reappointed for subsequent terms. The majority of all air board appointees shall be residents of the county establishing the air board.

History. Enact. Acts 1960, ch. 179, § 32; 1964, ch. 134, § 5; 1984, ch. 269, § 1, effective July 13, 1984; 1986, ch. 196, § 1, effective July 15, 1986; 1986, ch. 347, § 1, effective July 15, 1986; 1996, ch. 194, § 58, effective July 15, 1996; 1998, ch. 25, § 1, effective July 15, 1998; 1998, ch. 439, § 1, effective July 15, 1998; 2002, ch. 346, § 197, effective July 15, 2002; 2003, ch. 173, § 1, effective June 24, 2003; 2014, ch. 92, § 261, effective January 1, 2015; 2015 ch. 114, § 3, effective June 24, 2015.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 25 and 439. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 439, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

  1. Generally.
  2. Liability of Air Board.
  3. Immunity of Board.
  4. Organizational Requirements.
  5. Control Over KRS Ch. 83A.
  6. Approval of Appointments.
  7. Condemnation.
1. Generally.

This section authorizes any city or county or city and county jointly to establish an air board which in turn creates and conducts a facility to assist the air navigation industry. Inco, Ltd. v. Lexington-Fayette Urban County Airport Bd., 705 S.W.2d 933, 1985 Ky. App. LEXIS 679 (Ky. Ct. App. 1985).

2. Liability of Air Board.

County air board created under this section was not liable for diminution in market value of home near airport which might be caused by reasonable operations including noise of jet planes, activities of tenants and use of railroad spur. Louisville & Jefferson County Air Board v. Porter, 397 S.W.2d 146, 1965 Ky. LEXIS 67 ( Ky. 1965 ).

3. Immunity of Board.

The air board is a legislative body and, as such, its members are granted absolute immunity for statements made while acting within the scope of the duties imposed upon them by the statute. Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 1978 Ky. App. LEXIS 472 (Ky. Ct. App. 1978).

Where the county airport board and a county airport corporation were sued in a wrongful death action after a plane crash, the trial court properly determined that the airport board and corporation were agencies of the county government created in accordance with KRS 183.132(1) and entitled to sovereign immunity. By providing essential transportation infrastructure to the citizens of the Commonwealth of Kentucky, the airport board and the airport corporation were exercising a function integral to state government; as such, the organizations and their members could not be held liable in tort. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 2009 Ky. LEXIS 235 ( Ky. 2009 ).

4. Organizational Requirements.

Without clear evidence that the airport board was properly established in accordance with this section, the county air board had no authority to deprive private citizens of their property. Bernard v. Russell County Air Bd., 718 S.W.2d 123, 1986 Ky. LEXIS 297 ( Ky. 1986 ).

The county air board did not comply with the requirements of an airport board organization as enumerated in this section, where the air board frequently conducted business with less than a quorum present, there were neither minutes for the airport board’s first meeting, nor was there sufficient evidence of regular meetings thereafter, and no copy of the original appointment of the air board by the county judge-executive was in the record or proven to be in existence. Bernard v. Russell County Air Bd., 718 S.W.2d 123, 1986 Ky. LEXIS 297 ( Ky. 1986 ).

5. Control Over KRS Ch. 83A.

Since this section specifically addresses the appointment of air board members, it must control over the general provisions of Chapter 83A. Preston v. Floyd/Johnson County Pilots Ass'n, 867 S.W.2d 474, 1993 Ky. App. LEXIS 36 (Ky. Ct. App. 1993).

6. Approval of Appointments.

Although this section does not expressly say that council approval of mayoral appointments is unnecessary, it is the only reasonable interpretation of the statute. Preston v. Floyd/Johnson County Pilots Ass'n, 867 S.W.2d 474, 1993 Ky. App. LEXIS 36 (Ky. Ct. App. 1993).

7. Condemnation.

Under subsection (5) of KRS 183.133 , the county air board must comply with the procedure for condemnation set out in KRS 416.560 ; the board does not have authority to condemn absent county participation. Bernard v. Russell County Air Bd., 718 S.W.2d 123, 1986 Ky. LEXIS 297 ( Ky. 1986 ).

Cited:

Padgett v. Louisville & Jefferson County Air Board, 492 F.2d 1258, 1974 U.S. App. LEXIS 10048 (6th Cir. 1974); Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ); Watkins v. Reed, 557 F. Supp. 278, 1983 U.S. Dist. LEXIS 19485 (E.D. Ky. 1983 ).

DECISIONS UNDER PRIOR LAW

1. Purchase of Land in Another County.

Land lying in another county, purchased by a county for airport purposes, remained a part of the original county for general governmental purposes, and the purchase did not violate any provision of the Constitution. Kenton County Fiscal Court v. Richards, 291 Ky. 132 , 163 S.W.2d 302, 1942 Ky. LEXIS 193 ( Ky. 1942 ).

Opinions of Attorney General.

A county attorney may be employed as private counsel by a joint city-county air board and the compensation paid him would not be considered as part of the income derived as county attorney. OAG 65-837 .

It is not necessary for a corporation organized pursuant to this section to file articles of incorporation with the secretary of state. OAG 68-238 .

Upon the expiration of the term of a member of the joint air board, and the mayor and county judge (now county judge/executive) not being able to agree upon a jointly named successor, the member, whose term expired, will continue in office until his successor is duly appointed and qualified. OAG 70-70 .

The city council does not have to approve or affirm the mayor’s actions in the appointment of the members of a city air board. OAG 70-275 .

The selection of membership of the air board by the county judges (now county judges/executive) consenting to three (3) members suggested by the mayor and the mayor consenting to three (3) members suggested by the county judge (now county/executive) is a practical and pragmatic method of complying with the appointment requirements of subsection (3)(c) (now (4)(c)) of this statute where the action of one county and one city is involved. OAG 73-670 .

There is no conflict of interest, under KRS 61.210 or 61.220 , if a corporation whose president is county magistrate has a contract with a county airport board established under this section as the airport authority is neither a city nor a county board but a separate corporate entity. OAG 74-253 .

A county cannot pledge money to an airport board for airport purposes out of the general fund, without the vote of the people as required by Const., § 157, unless the amount pledged can be found within the available income revenue for the fiscal year. OAG 74-399 .

A mayor, as an essential part of the appointing authority, does not have the power to select and submit his name for appointment to membership on the city-county air board. OAG 74-755 (modified by OAG 84-384 ).

Since a city-county airport board is an independent corporate entity, neither a city nor a county agency, membership on such board is not an office contemplated by Const., § 165 or KRS 61.080 and is not incompatible with the office of commonwealth’s attorney. OAG 75-72 .

A member of the city council may legally serve on the county air board at the same time. OAG 75-238 .

Insofar as this section does not expressly prohibit the establishment of two separate local air boards in the same county, a county may establish a second and separate air board despite the existence of another local air board created in joint action with a city, where one airport may be insufficient to serve the needs of all the residents of the county. OAG 76-173 .

Since a city-county air board is a separate political entity from the creating agency, a member of the city council could be appointed to the air board by the mayor. OAG 76-257 .

Since there is no authorization for the use of proxies by members of the air board created pursuant to this section, the use of proxies by or on behalf of board members would be illegal and a board member must be present at a regular or called meeting in order to cast a valid vote on any subject to be acted upon by the board. OAG 78-235 .

Of course the fiscal court has no authority to create an additional membership to the air board of any kind, regardless of whether it is advisory or not, since by attempting to create an advisory member to this board the fiscal court in effect would be attempting to amend this section which establishes the membership of that board. OAG 78-505 .

The county judge/executive may legally appoint the county attorney as a member of the county air board. OAG 78-610 .

Any appointment to the air board must be made by way of nomination made by the county judge/executive, subject to the approval or disapproval of the nomination by the members of the fiscal court acting as a body. OAG 78-746 .

KRS 67.710(8) and subsection (3)(b) (now (4)(b)) of this section are in irreconcilable conflict, and in this situation the later statute should control, and while this section was last amended in 1964, KRS 67.710(8) was passed during the extraordinary session of 1976, and, therefore, 67.710(8) controls. OAG 78-746 .

An airport board is a municipal corporation. OAG 79-240 .

Since the air board is a public body engaged in the performance of a public duty, without express statutory permission it is not permitted to delegate and surrender to others its official powers which are discretionary in character and require the exercise of judgment. OAG 79-240 .

Since this section governing local air boards does not expressly prohibit the dissolution of the board by the city establishing it, the city probably can do so under the home rule charter (KRS 82.082 ) by the enactment of appropriate local legislation even though this chapter does contain a so-called comprehensive scheme of legislation on the general subject. OAG 80-345 .

Since subsection (10) (now subsection (11)) of this section and KRS 67.710(8) are in conflict as to who removes a member of a county air board, KRS 67.710(8), as the later enactment, prevails and a member of a county air board is removed by the county judge/executive with the approval of the fiscal court; the statutes are not in conflict as to the reasons for removal, however, and a member of a county air board can only be removed by the county judge/executive and the fiscal court for those specific reasons set forth in subsection (10) (now subsection (11)) of this section. OAG 80-403 .

Where an air board is established by a county, the air board members are nominated by the county judge/executive, subject to the approval of fiscal court as a body under KRS 67.710(8), and since the fiscal court is therefor the appointing authority, a justice of the peace serving on the fiscal court is prohibited by subsection (10) (now (17)) of this section from becoming an air board member. OAG 80-436 .

The persistent or chronic absenteeism of a board member in connection with air board meetings constitutes “misconduct” under subsection (10) (now (17)) of this section; thus where a member has been persistently absent from the meetings without excuse, the mayor and county judge/executive may, after conducting a hearing on the question of absences, and after determining that the member missed three (3) consecutive meetings without any justifiable cause or excuse, remove and replace the offending member under the subject by-law of the air board and subsection (10) (now (17)) of this section. OAG 80-469 .

In the absence of legislative guidelines of the general assembly, an air board cannot be dissolved or discontinued. OAG 80-556 .

Where the air board repeatedly, and as a definite pattern, and over a substantial period of time holds meetings resulting in a tie vote, thus resulting in a failure to carry out its statutory duties, the fiscal court may file a mandamus action in circuit court against the board, seeking a judgment compelling the members to perform merely ministerial duties or to direct that its discretionary duties be performed, though not to direct the particular manner of the performance of a discretionary duty. OAG 80-556 .

Since a city-county air board is entrusted with the control and custody of public funds, the officers of the air board must comply with the provisions of KRS 424.220 concerning the preparation and publication of an annual financial statement. OAG 80-577 .

For the purpose of legal advertisements, the “publication area” for the Kenton County airport board is Kenton County, inasmuch as the operation of the Kenton County airport, though conducted in the main in Boone County, is an official activity of the airport board, which was created by Kenton County and which is derivatively a board of Kenton County. OAG 80-584 .

Persons appointed to fill vacancies on local air boards pursuant to subsection (4) (now (8)) of this section can only serve throughout the remainder of the unexpired term of their predecessors and would, under no circumstances, serve full four-year terms calculated from the date of their appointment. OAG 81-348 .

A regional airport board created by four counties acting jointly may be expanded from a six-member board to a ten (10) member board; if the four fiscal courts vote to expand the board membership to ten, then the ten (10) members shall be appointed by the joint action of the county judge/executives of the participating counties, without the necessity for approval by the respective fiscal courts, as a body, of the member counties. OAG 84-269 .

Since an airport board is a joint board, it is a hybrid agency authorized by statute between the cities and county; thus, a municipal officer could be appointed to such board without violating the prohibition against a municipal officer holding any other municipal, county or state office at the same time, contained in KRS 61.080 and Const., § 165, provided the appointment is made jointly by the mayor of the other city and the county judge/executive, and the appointee is not present during the voting. OAG 84-384 , modifying OAG 74-755 .

Airport authority, as the air board, has the authority to establish and fix reasonable charges or fees, to be applied to UPS, for the rendition of emergency service involving UPS aircraft rendered either on the airfield or UPS ramps, either for an annual fee, or on a per occasion basis. OAG 85-97 .

Under the explicit language of KRS 183.476 , the air board, i.e., the Regional Airport Authority, has the power, inter alia, to establish an airport and to maintain, equip and operate such airport. Implicit within that operational power is the authority to provide emergency crashfire rescue service to aircraft utilizing the airport runways. The aircraft of the UPS air parcel delivery operation is integrated with the operation of the airfield, since UPS aircraft land and take off on the regular runways at Standiford Field, although their aircraft are parked and normally fueled on the UPS ramps. Therefore, the Authority may enter into an agreement with the city of Louisville by which the authority undertakes to render such emergency service to UPS aircraft which may be in trouble either on the airfield runways or when they reach the UPS parking ramps. OAG 85-97 .

Fiscal court’s motion limiting to two the number of consecutive terms that members of the airport board, library board, water commission, district board of health, planning commission and parks and recreation board might serve was illegal, since there is no statutory authority for such action. While KRS 173.340 and 212.855 impose a limit on consecutive terms, as relate to a library board and a district board of health, the General Assembly has established no policy limiting the number of consecutive terms for members of the other boards and commissions, and there is no statutory authority for the fiscal court’s enacting such a policy as relates to the four bodies not covered by statute. OAG 85-116 .

Research References and Practice Aids

Cross-References.

Action against governmental unit arising out of use of airport; notice required, KRS 411.115 .

Kentucky Law Journal.

Kentucky Law Survey, Ashdown and Hoskins, Torts, 67 Ky. L.J. 695 (1978-1979).

Note: A “Preposterous Anomaly”: Sovereign Immunity in Kentucky Following the Crash of Comair Flight 5191, 98 Ky. L.J. 889 (2009/2010).

183.133. Purpose, duties and powers of the board — Rules and regulations, publication — Enforcement — Promotion of facilities.

  1. The purpose of the board shall be to establish, maintain, operate, and expand necessary, desirable or appropriate airport and air navigation facilities. It shall have the duty and such powers as may be necessary, or desirable to promote and develop aviation, including air transportation, airports and air navigation facilities.
  2. The board shall establish and fix reasonable rates, charges and fees for the use of the landing area, ramps and other common aviation facilities. In fixing such rates, charges or fees the board may take into consideration, among other factors, the total capital investment by the board or other local or state governmental authority, the revenue needed properly to maintain such facilities, the revenue needed properly to expand the airport and its facilities, the portion of the facilities utilized by the licensee or contracting party and its customers and the volume and type of business conducted. Any party aggrieved by the rates, charges or fees may appeal from the action of the board to the Circuit Court of the county within which the board operates, within ninety (90) days from the date that the board finally publishes such rates, charges or fees and gives notice of same to the contracting party or licensee. The Circuit Court may hear evidence and determine whether or not the rates, charges or fees are, or are not, reasonable in amount. Appeal from the judgment of the Circuit Court may be prosecuted as any other civil appeal.
  3. The board shall likewise have power, from time to time, to fix rates, charges or fees by contract, or by publishing general rates, charges or fees for commercial vendors, concessionaires or other persons for the use or occupancy of terminal or other ground use facilities, under such terms or conditions as it may deem to be in the best interest of maintaining, operating or expanding necessary airport or air navigation facilities, and the public use thereof.
  4. The board may acquire by contract, lease, purchase, gift, condemnation or otherwise any real or personal property, or rights therein, necessary for establishing, operating or expanding airports and air navigation facilities. The board may erect, equip, operate and maintain on such property, buildings and equipment necessary, desirable or appropriate for airport or air navigation facilities. The board may dispose of any real or personal property, or rights therein, which, in the opinion of the board are no longer needed for operating or expanding the airport or air navigation facilities.
  5. The board or any other governmental unit may by resolution reciting that the property is needed for airport or air navigation purposes direct the condemnation of any property, including navigation or other easements. The procedure for condemnation shall conform to the procedures set out in the Eminent Domain Act of Kentucky.
  6. The board or any other governmental unit may from time to time make, adopt and enforce such rules, regulations and ordinances as it may find necessary, desirable or appropriate for carrying into effect the purposes of this chapter, including those relating to the operation and control of the airport, airport facilities or air navigation facilities owned or operated by such board or such other governmental unit. All rules, regulations and ordinances adopted pursuant to this section shall be published according to the provisions of KRS 424.130 , and the board or other governmental unit adopting them shall keep a permanent record of such rules, regulations and ordinances available for public inspection, on the airport premises. Prosecution for a violation of any rule, regulation or ordinance adopted pursuant to this section shall be in the District Court of any county within which the airport is located.
  7. Any board may engage in activities to promote, encourage or develop the use of airports or air navigation facilities under its control and any board which has members thereof appointed by the Governor shall be assisted in such activities by the state Cabinet for Economic Development if it requests such assistance from the cabinet.

History. Enact. Acts 1960, ch. 179, § 33; 1964, ch. 134, § 6; 1970, ch. 244, § 1; 1976, ch. 140, § 86; 1976 (1st Ex. Sess.), ch. 14, § 171, effective January 2, 1978; 1986, ch. 347, § 2, effective July 15, 1986.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (5) of this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

  1. Condemnation.
  2. Concession Rights.
  3. Ordinances.
  4. Sovereign Immunity.
1. Condemnation.

Although it was not a proper procedure and was not approved for future cases, awards for consequential damages were justified where evidence introduced without objection showed easements were being taken and that the awards for consequential damages in reality included awards for the “taking” of the easements. Bowling Green-Warren County Airport Bd. v. Long, 364 S.W.2d 167, 1962 Ky. LEXIS 280 ( Ky. 1962 ).

On an appeal from county court judgment in condemnation action to Circuit Court, landowner had right to raise the issue of condemnor’s right to take possession under this section. Stillpass v. Kenton County Ariport Board, Inc., 403 S.W.2d 46, 1966 Ky. LEXIS 324 ( Ky. 1966 ).

When the right to take possession under this section is in issue, if the owner will be irreparably injured by an immediate loss of possession, he may ask for and is entitled to a temporary injunction at any time after he perfects an appeal to the Circuit Court. Stillpass v. Kenton County Ariport Board, Inc., 403 S.W.2d 46, 1966 Ky. LEXIS 324 ( Ky. 1966 ).

Where it was not necessary for the circuit court in a prohibition case in which condemnor was not a party to reach the question of condemnor’s right to take possession under this section (the remedy of prohibition being inappropriate and subject to denial anyway) but the Circuit Court did decide that the county airport board had the right to take, the question of whether the judgment in the prohibition case concluded the issue of condemnor’s right to take remained a live coal in the hands of the trial court yet to be determined in the condemnation case and if the trial court decided in the negative, then the basic issue of the right to condemn had to be heard and decided on its merits. Stillpass v. Kenton County Ariport Board, Inc., 403 S.W.2d 46, 1966 Ky. LEXIS 324 ( Ky. 1966 ).

Where the property owner’s right to maintain and enjoy their trees was acquired before the right of the air board to remove obstructions was fixed by law, even though the property owner’s right was not in conformity with the zoning rules of the Kentucky airport zoning commission, the right is protected by the Constitution and may not be taken except by condemnation. Shipp v. Louisville & Jefferson County Air Board, 431 S.W.2d 867, 1968 Ky. LEXIS 382 ( Ky. 1968 ), cert. denied, 393 U.S. 1088, 89 S. Ct. 880, 21 L. Ed. 2d 782, 1969 U.S. LEXIS 2537 (U.S. 1969).

By virtue of the word “any” in subsections (4) and (5) of this section, an airport board was authorized to acquire land outside the county by condemnation for the purpose of expanding its airport. Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ).

2. Concession Rights.

Where the county airport board entered into a contract with an individual to lease the concession rights at the airport, the board could not subsequently impose a charge of two and one-half cents ($0.025) per gallon on all fuel delivered to the airport to the lessee for resale. Bowling Green-Warren County Airport Board v. Bridges Aircraft Sales & Service, Inc., 460 S.W.2d 18, 1970 Ky. LEXIS 580 ( Ky. 1970 ).

3. Ordinances.

The air board’s power to adopt such ordinances as it may find necessary to effectuate the duties imposed by statute, violations of which ordinances shall be prosecuted in police court or county court, is clearly a legislative function. Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 1978 Ky. App. LEXIS 472 (Ky. Ct. App. 1978).

4. Sovereign Immunity.

Where the county airport board and a county airport corporation were sued in a wrongful death action after a plane crash, the trial court properly determined that the airport board and corporation were agencies of the county government and entitled to sovereign immunity. By providing essential transportation infrastructure to the citizens of the Commonwealth of Kentucky, the airport board and the airport corporation were exercising a function integral to state government under KRS 183.133(6); as such, the organizations and their members could not be held liable in tort. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 2009 Ky. LEXIS 235 ( Ky. 2009 ).

Cited:

Cartmell v. Urban Renewal & Community Development Agency, 430 S.W.2d 649, 1968 Ky. LEXIS 408 ( Ky. 1968 ); Watkins v. Reed, 557 F. Supp. 278, 1983 U.S. Dist. LEXIS 19485 (E.D. Ky. 1983 ).

DECISIONS UNDER PRIOR LAW

1. Establishment of Rates.

It was not an unlawful delegation of powers for air board to provide in lease of airport facilities that if an agreement for renewal rate could not be reached the matter would be submitted to a board of arbitrators rather than a court. American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 1959 U.S. App. LEXIS 3478 (6th Cir. Ky. 1959 ).

2. Condemnation.

In view of powers conferred on air board, and fact that petition did not allege abuse of discretion, inquiry by court was properly precluded as to wisdom or propriety of extending boundaries of existing air field by acquisition of adjacent property, and was properly confined to board’s right to make acquisition by means contemplated, to wit, payment by volunteer and creation of lien upon property. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

In the absence of bad faith or unreasonable delay upon the part of county air board in instituting condemnation proceedings, the owner was not constitutionally entitled to recover damages by reason of the commencement and prosecution of such proceedings when they were thereafter abandoned. Kroger Co. v. Louisville & Jefferson County Air Board, 308 S.W.2d 435, 1957 Ky. LEXIS 137 ( Ky. 1957 ).

County air board was under no compulsion to attempt an out-of-court negotiation for acquisition of condemnee’s land prior to filing suit since law under which air board was proceeding did not expressly require an effort to secure the property amicably prior to the commencement of the condemnation proceedings. Kroger Co. v. Louisville & Jefferson County Air Board, 308 S.W.2d 435, 1957 Ky. LEXIS 137 ( Ky. 1957 ).

The grantee of the power of eminent domain could ordinarily exercise a large discretion not only in respect of the particular property, but also as to the amount of land to be taken for the public purpose and this discretion was not reviewable by the courts, unless, possibly, where there had been a gross abuse or manifest fraud. Kroger Co. v. Louisville & Jefferson County Air Board, 308 S.W.2d 435, 1957 Ky. LEXIS 137 ( Ky. 1957 ).

3. Acquisition of Property.

Air board was not forbidden by constitution or statutes to acquire property encumbered by purchase-money lien where it did not assume liability to pay lien. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

Opinions of Attorney General.

The Lexington-Fayette County air board is a political subdivision of the Commonwealth and as such is prohibited by KRS 138.200 (now repealed) and 138.565 (now repealed) from levying a “charge” of 2¢ per gallon, which is in fact an excise tax, on the delivery of aviation fuels, oils and greases to Blue-Grass Field. OAG 65-237 .

The ordinary and reasonable meaning of the language contained in subsections (4) and (5) of this section suggests only the right to condemn within the territorial limits of the city and county in which the air board is located. OAG 72-788 .

As an air board has the authority, where necessary, to acquire a ground transportation system for incoming and outgoing passengers, a variant of such ownership and operation of a bus system such as subsidizing a private corporation to accomplish this purpose, is permissible under existing law. OAG 74-40 .

An airport board may authorize an agent to collect tie-down fees at the local airport. OAG 74-62 .

This section empowers a county airport board to sell coal which it finds on airport property in the construction of airport facilities on either an advertised bidding basis or a negotiated basis. OAG 74-191 .

The Winchester-Clark County Airport Board may acquire land in Fayette county for the establishment and operation of an airport facility provided that the property is reasonably needed to serve the area for which the board was created. OAG 75-331 .

Where the title to property is vested in the county airport board of one county, that board is solely responsible for the maintenance and operation of airport facilities established on that property even though the property is located within the boundaries of another county also having an airport board. OAG 75-422 .

Where a city has taken over complete control of an airport facility, the city would have authority to condemn real property in an adjoining county in order to erect a communication radio beacon, as long as the communication site is reasonably needed to serve the airport. OAG 76-247 .

An air board is not a department, instrumentality or agency of such a government within the meaning of KRS 416.560(1). OAG 78-526 .

An air board need not proceed with a condemnation proceeding through the governing bodies of the city and county as suggested by KRS 416.560(1), and such a proceeding may be initiated by the board itself. OAG 78-526 .

The air board must pass a resolution specifying an appropriate need for such property before condemnation proceedings can be initiated. OAG 78-526 .

Even though subsection (6) of this section permits airport boards to issue rules and regulations to implement their statutory powers and duties, such regulations must be consistent with the provisions of this chapter. OAG 79-240 .

A local air board is a local public agency, as defined in KRS 45A.345 (9), subject to those sections of the Kentucky model procurement code dealing with procurement by a local public agency, KRS 45A.345 to 45A.460 ; if the air board is the lessor the code does not have to be applied but if the air board is the lessee the code does apply and must be utilized. OAG 80-117 .

183.1335. Compliance with KRS 65A.010 to 65A.090.

The board shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 2013, ch. 40, § 62, effective March 21, 2013.

183.134. Appropriations for airports — Bond issue, election, tax.

  1. In order to provide money for the purchase of property necessary for the establishment or expansion of airports and to construct, equip, and maintain buildings necessary, desirable, or appropriate for airport purposes, or to acquire rights or interests or contracts for services, the legislative body of any governmental unit owning in whole or part any airport or operating an airport, or having any rights or interests in an airport or contracts for services from an airport, may make an annual appropriation from its general fund; or the governmental unit may make an annual levy to collect a tax on taxable property situated in the governmental unit for airport development. Any appropriation shall be made by the legislative body in amounts, in proportion and upon terms as the legislative body may determine. All funds derived from an appropriation or tax shall be turned over to the airport board, if any, for the purpose of carrying out the duties and powers of the board.
  2. Whenever a governmental unit deems it necessary to acquire, construct, maintain, expand, finance, or improve any airport facilities or air navigation facilities or rights or interests in any facilities, or to contract for services from the facilities, or for any or all of these purposes, and the annual funds raised from other sources are not sufficient to accomplish the purpose, the governmental unit shall make a careful estimate of the amount of money required for the purpose and shall certify to the proper tax levying authority the fact that an election for an issue of bonds for aviation purposes shall be held, together with the amount of money for which bonds shall be issued and the purpose to which the proceeds shall be applied. The taxing authority shall then adopt an ordinance or resolution submitting to the qualified voters of the district the question as to whether bonds shall be issued for the purpose. The question shall be so framed that the voter may by his vote answer “For” or “Against.”
  3. The ordinance or resolution shall fix the time the bonds shall run and, if a serial issue, the amount to mature at each time. It shall limit the rate of interest to be permitted on the bonds and the total amount of bonds to be issued, and shall provide for the levy of a tax to pay the interest and to create a sinking fund to retire them at their maturity.
  4. The election shall be held at a time fixed in the ordinance or resolution, not less than fifteen (15) nor more than thirty (30) days from the time the certificate of the governmental unit is filed with the tax levying authority, and reasonable notice of the election shall be given. The election shall be conducted and carried out in the governmental unit district in all respects as required by the general election laws, and shall be held by the same officers as required by the general election laws. The expense of the election shall be paid by the fiscal court except where the election is held in a district embracing a city with a population equal to or greater than one thousand (1,000) based upon the most recent federal decennial census, in which case the cost of the election shall be paid by the governing body of the city.
  5. Notwithstanding the limitations contained in KRS 132.023 , any governmental unit which after March 21, 1968, levies a tax for aviation purposes under this chapter may exclude the tax from consideration in calculating the compensating tax rate as now or subsequently defined in KRS 132.010 or any amendments or other act substituted relating to that section.

History. Enact. Acts 1960, ch. 179, § 34; 1964, ch. 134, § 7; 1968, ch. 83, § 1; 1980, ch. 188, § 137, effective July 15, 1980; 1996, ch. 274, § 43, effective July 15, 1996; 2014, ch. 92, § 262, effective January 1, 2015.

Opinions of Attorney General.

Unless a city possesses legal title to an airport or contracts for the use of the airport facilities, the city cannot appropriate public moneys toward the upkeep and maintenance of the airport. OAG 62-1070 .

Under the terms of this section, a city is authorized to continue to make an annual appropriation to the airport board in whatever amounts it deems necessary irrespective of whether or not the county continues to participate. OAG 70-819 .

183.135. Power to borrow money.

The board may borrow money on its own credit in anticipation of revenue to be derived from taxes, appropriations, or other income. For these purposes, the board may pledge the taxes, appropriations, or income anticipated. The board may pledge the airport and facilities, or any interest in the airport and its facilities, or contract for service from the airport or its facilities, as security for moneys borrowed.

History. Enact. Acts 1960, ch. 179, § 35; 1968, ch. 83, § 2; 1996, ch. 274, § 44, effective July 15, 1996.

DECISIONS UNDER PRIOR LAW

1. Lien on Airport.

Financing plan, whereby banks agreed to advance money to pay condemnation award on acquisition of additional land to extend air field and to obtain lien therefor on land, but without obligation by air board to repay the money or by city to levy tax for board’s benefit, did not constitute borrowing of money by board and obligation to repay it out of revenues for ensuing year in violation of Const., § 157. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

In taxpayers’ action, financing plan whereby banks agreed to advance money to pay condemnation award on acquisition by air board of additional land to extend air field and obtain lien thereon, would not be invalidated on ground that it was ultra vires of banks to advance funds on security of real estate lien, since taxpayers had no direct interest in question whether banks were acting ultra vires. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

Retention of lien on property to extend boundaries of air field by banks which agreed to advance money to pay condemnation award at direction of air board did not violate law providing that title to property was vested in air board, where, in taxpayers’ action, court adjudged such payment would entitle banks to lien and that execution of financing plan pursuant to which such payment was made would not create debt by air board to repay banks nor oblige fiscal court to levy tax for board’s benefit. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

Where banks agreed to advance money to pay condemnation award on acquisition of additional land to extend air field and to obtain lien on land therefor, subsequent lease of air field by air board to federal government was subordinate to banks’ lien. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

Opinions of Attorney General.

When Const., §§ 157 and 158 are read in their entirety, the restrictions of those sections are to be applied to a unit of government constituting a “municipality” and a “taxing unit” at the same time, in other words, those designated categories must coexist in order for the restrictions to apply; an urban-county airport board has no taxing power, and since it is not a “taxing unit” it is not subject to the restrictions of Const., §§ 157 and 158. OAG 80-333 .

183.136. Board may issue revenue bonds or purchase securities of other governmental agency.

  1. The board is authorized to defray the cost of acquiring, constructing, maintaining, expanding, financing or improving any airport facilities or air navigation facilities or any part thereof or interest therein, or contract for services therefrom, through the issuance of revenue bonds in the manner provided in KRS 183.630 through 183.740 , or through the purchase of securities, stocks, or bonds of any other governmental unit or body politic.
  2. The board may, as an alternative method and in addition to all other methods provided by law, acquire, construct, maintain, expand, finance or improve airports, airport facilities or air navigation facilities or any part thereof or interest therein, or contract for services therefrom, and issue revenue bonds in connection therewith under the terms and provisions of KRS Chapter 58 and under said law the term “governmental agency” means the board and any airport board or airport created pursuant to the provisions of KRS Chapter 183 as it existed prior to the enactment of Chapter 179, Acts of the General Assembly, Regular Session 1960, shall be deemed to have been established pursuant to this chapter with all of the powers, functions and duties as herein prescribed, and the term “public project” means airports and airport facilities and air navigation facilities.

History. Enact. Acts 1960, ch. 179, § 36; 1964, ch. 134, § 8; 1968, ch. 83, § 3.

NOTES TO DECISIONS

Cited:

Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ).

183.137. Contracts for use of airport — Expenditures for airport.

  1. The board may contract with any person or governmental agency for the use of the airport. Such contract shall not prevent, restrict or hamper the general use of the airport by the public.
  2. All unpledged or surplus revenue derived from use of the airport shall be first applied to the maintenance of the airport. A governmental unit may expend funds for this purpose out of its general funds or any other available funds.
  3. Any airport board is excused, under any contract or lease, from accepting performance from or rendering performance to an entity other than the entity with which it originally entered into the contract or lease, unless the airport board has specifically consented to the assignment and assumption of the contract or lease to the new party following review of such factors as the airport board deems appropriate, including the impact of the assignment upon airport safety and security.

History. Enact. Acts 1960, ch. 179, § 37; 2004, ch. 83, § 1, effective July 13, 2004.

Opinions of Attorney General.

Unless a city possesses legal title to an airport or contracts for the use of the airport facilities, the city cannot appropriate public moneys toward the upkeep and maintenance of the airport. OAG 62-1070 .

A lease executed only by the former chairman of an airport board and lessee, without any formal action of approval by the airport board, is void. OAG 79-240 .

183.138. Title to property acquired by board — Tax exemptions.

The title to all property acquired by the board may vest in the board or in any other governmental unit owning, operating or controlling an airport, or which has established an air board under this chapter, or in the cabinet. All property acquired for the establishment and maintenance of an airport shall be exempt from taxation and assessment to the same extent as other property used for public purposes. All fees charged by the board or collected by the board for the admission to or use of the airport or its facilities shall also be exempt from taxation.

History. Enact. Acts 1960, ch. 179, § 38; 1964, ch. 134, § 9.

NOTES TO DECISIONS

1. Taxation of Leasehold.

Where county air board owned fee and motel corporation owned improvements, assessment against motel corporation for state and county ad valorem tax on leasehold was discriminatory and a violation of Const., § 171 since the usual practice was to assess lessee’s improvements on tax exempt property. Kentucky Tax Com. v. Jefferson Motel, Inc., 387 S.W.2d 293, 1965 Ky. LEXIS 465 ( Ky. 1965 ).

Despite the leaseholders’ proof that the leased facilities and the uses to which they were put were necessary to the establishment and maintenance of a modern airport, it did not follow that the leasehold interests were tax-exempt, because out ot the total bundle of rights that represented the ownership of real estate, those rights encompassed within the leasehold estates were not owned by the airport, but by the lessees, and if the statute were construed as an effort to exempt those rights it would contravene § 174 of the Kentucky Constitution, which provides that all property shall be taxed in proportion to its value “unless exempted by this Constitution.” Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

2. — Property Held By Nonprofit Persons, Association or Partnership.

It was error to adjudge individuals’ leasehold interests in airport property to be used for building and maintaining an airplane hangar exempt from taxation because no profit was earned in connection with such property. No exemption is provided for exempt property held by nonprofit natural persons, associations or partnerships. Pike County Bd. of Assessment Appeals & Revenue Cabinet v. Friend, 932 S.W.2d 378, 1996 Ky. App. LEXIS 110 (Ky. Ct. App. 1996).

Opinions of Attorney General.

Where title to property is vested in the county airport board of one county, that board is solely responsible for the maintenance and operation of the airport facilities established on that property even though the property is located within the boundaries of another county also having an airport board. OAG 75-422 .

183.139. Advisory board for Capital City Airport. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 179, § 81) was repealed by Acts 1964, ch. 134, § 27.

183.140. Establishment of commuter air carrier services — Financial aid, benefits or services by airport boards.

  1. The Transportation Cabinet is authorized to establish in cooperation with airport boards, established pursuant to KRS 183.132 through 183.138 , a pilot demonstration air service project for the purpose of developing air services on a regularly scheduled basis for the movement of passengers, mail and cargo by a commuter air carrier between five (5) or more airport termini in the Commonwealth of Kentucky at least one of which does not receive service from a carrier certificated by the civil aeronautics board, in the public interest of convenience and necessity for air transportation.
  2. The Transportation Cabinet may reimburse any airport board for direct financial aid, or benefits and services in lieu thereof, which the airport board has expended for the development of commuter air carrier services that provide regularly scheduled passenger, mail and cargo service or any combination thereof to the airport terminus operated by the airport board.
  3. Any airport board established pursuant to KRS 183.132 through 183.138 is authorized to provide direct financial aid, or benefits and services in lieu thereof, to commuter air carriers that provide regularly scheduled passenger, mail, and cargo service or any combination thereof to their community.

History. Enact. Acts 1974, ch. 115, § 3; 1978, ch. 285, § 1, effective June 17, 1978.

Compiler’s Notes.

Former KRS 183.140 (938j-1: amend. Acts 1944, ch. 138, § 1; 1958, ch. 153, § 17) was repealed by Acts 1960, ch. 179, § 1 and this section enacted by 1974, ch. 115, § 3 was compiled using the same section number.

183.150. Reimbursement to airport boards.

Within the limits of the appropriation made to the cabinet, the cabinet may by agreement provide reimbursement to airport boards, for a period not to extend beyond June 30, 1980, to reimburse them for direct financial aid, or benefits and services in lieu thereof, which the airport boards have expended, in accordance with KRS 183.140 for the development of commuter air services that have provided their communities with regularly scheduled passenger, mail and cargo service or any combination thereof.

History. Enact. Acts 1974, ch. 115, § 4; 1976, ch. 309, § 1; 1978, ch. 285, § 2, effective June 17, 1978.

Compiler’s Notes.

Former KRS 183.150 (938j-6: amend. Acts 1944, ch. 138, § 2; 1958, ch. 153, § 18) was repealed by Acts 1960, ch. 179, § 1 and this section enacted by Acts 1974, ch. 115, § 4 was compiled using the same section number.

183.160. Application for federal funds for operating subsidies.

The Transportation Cabinet is authorized to make application for any available federal funds for operating subsidies, either on a matching basis or otherwise and to make such funds as are received available to airport boards in order to accomplish the purposes of KRS 183.140 and 183.150 , or where federal laws or regulations preclude the Transportation Cabinet from direct application for such funds the cabinet is authorized to provide assistance to local airport boards as necessary to enable them to make application for and obtain such federal funds, in order to accomplish the purposes of KRS 183.140 .

History. Enact. Acts 1974, ch. 115, § 5.

Compiler’s Notes.

Former KRS 183.160 (938j-2: amend. Acts 1948, ch. 221; 1958, ch. 153, § 19) was repealed by Acts 1960, ch. 179, § 1 and this section enacted by Acts 1974, ch. 115, § 5 was compiled using the same section number.

183.165. Landing strips for personal use — Limitation on regulation by local government — Fee.

  1. All statutes to the contrary notwithstanding, any property owner who resides in a county with a population of thirty-five thousand (35,000) or greater, and who owns at least one thousand (1,000) contiguous acres, may construct a landing strip for their personal use that is capable of handling two (2) private aircraft. The landing strip shall not be used for public or commercial purposes.
  2. The landing strip authorized under this section shall meet all regulations or standards promulgated by the Federal Aviation Administration concerning areas regulated for the safe maneuvering approach and landing of aircraft.
  3. All local governments shall be prohibited from regulating landing strips authorized under this section and shall be prohibited from enacting planning and zoning ordinances contrary to the provisions of this section.
  4. For the purposes of this section, roadways or railroad rights-of-way shall not be considered a separation of contiguous acres.
  5. The property owner may be required to pay a fee of one hundred dollars ($100) per year to the county in which the airport is located.

History. Enact. Acts 2002, ch. 306, § 3, effective July 15, 2002; 2002, ch. 361, § 13, effective July 15, 2002.

Legislative Research Commission Note.

(7/15/2002). This section was created by 2002 Ky. Acts chs. 306 and 361. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 361, which was last enacted by the General Assembly, prevails. See KRS 446.250 .

183.170. Acquistion of facilities by air board. [Repealed.]

Compiler’s Notes.

This section (938j-1: amend. Acts 1958, ch. 153, § 20, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.180. Condemnation of property for board purposes. [Repealed.]

Compiler’s Notes.

This section (938j-7: amend. Acts 1958, ch. 153, § 21, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.190. Finance of airports. [Repealed.]

Compiler’s Notes.

This section (938j-4: amend. Acts 1954, ch. 170, § 1; 1958, ch. 153, § 22, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

Airport Loans

183.200. Declaration of purpose.

Recognizing that the rapid development of a statewide system of airports is of prime importance in the industrial development of the state, the General Assembly reaffirms its previous declarations that the acquisition, establishment, construction, enlargement, improvement, maintenance, equipping and operation of airports is a public purpose, and further declares assistance in the financing of local airport projects to be within the proper province of state government.

History. Enact. Acts 1968, ch. 122, § 1.

Compiler’s Notes.

Former KRS 183.200 (938j-5: amend. Acts 1954, ch. 170, § 2; 1958, ch. 153, § 23) was repealed by Acts 1960, ch. 179, § 1, and this section enacted by Acts 1968, ch. 122, § 1, was compiled using the same section number.

NOTES TO DECISIONS

Airport Boards.

Where the county airport board and a county airport corporation were sued in a wrongful death action after a plane crash, the trial court properly determined that the airport board and corporation were agencies of the county government created under KRS 183.200 and were entitled to sovereign immunity. By providing essential transportation infrastructure to the citizens of the Commonwealth of Kentucky, the airport board and the airport corporation were exercising a function integral to state government under KRS 183.123 ; as such, the organizations and their members could not be held liable in tort. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 2009 Ky. LEXIS 235 ( Ky. 2009 ).

183.203. Applications for assistance — Airport loan committee, functions.

  1. A local airport board may apply to the secretary of the Transportation Cabinet for assistance in carrying out any project authorized by KRS 183.132 to 183.138 and KRS 183.762 to 183.772 . The secretary shall approve or disapprove the application subject to the provisions of KRS 183.200 to 183.213 and the regulations of the cabinet.
  2. In considering applications submitted pursuant to subsection (1) of this section, the Governor may appoint an airport loan committee consisting of not less than three (3) nor more than five (5) citizens of the Commonwealth interested in airport development who shall upon the request of the secretary review the applications and make recommendations to the secretary.
  3. Members of the committee shall receive twenty-five dollars ($25) for each day in actual session and shall be reimbursed for travel expenses and other reasonable expenses incident to performance of their duties.

History. Enact. Acts 1968, ch. 122, § 2.

183.205. Board may issue revenue bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 131/2) was repealed by Acts 1960, ch. 179, § 1.

183.207. Eligibility for loan.

To be eligible to receive a loan under KRS 183.200 to 183.213 a local airport board shall:

  1. Furnish towards the project an amount equal to at least one-fourth (1/4) of its share of the project.
  2. Show its inability to obtain the amount applied for from any source other than the cabinet.

History. Enact. Acts 1968, ch. 122, § 3.

183.210. Loan terms — Security.

A loan made pursuant to KRS 183.200 to 183.213 :

  1. Shall be repayable in not more than ten (10) years, although the secretary may contract that it shall be repayable in less time.
  2. Shall be secured by a mortgage on airport property or such other security as the secretary may deem acceptable.

History. Enact. Acts 1968, ch. 122, § 4.

Compiler’s Notes.

Former KRS 183.210 (938j-6) was repealed by Acts 1960, ch. 179, § 1 and this section enacted by Acts 1968, ch. 122, § 4, was compiled using the same section number.

183.213. Regulations.

  1. The cabinet shall promulgate regulations governing loans made under KRS 183.200 to 183.210 . The regulations shall provide:
    1. The rate of interest to be charged;
    2. The terms of the loans;
    3. Standards for determining the soundness and feasibility of projects;
    4. The form and contents of applications for loans; and
    5. Such other matters as the secretary may determine to be necessary consistent with the provisions of KRS 183.200 to 183.210 .
  2. Regulations governing the granting of loans shall be based on the expressed purposes of KRS 183.200 to 183.210 and shall be such as to reasonably protect the loan by the secretary.

History. Enact. Acts 1968, ch. 122, § 5.

183.215. Alternative method for acquiring and developing airports and issuing revenue bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 195, § 1, effective June 17, 1954) was repealed by Acts 1960, ch. 179, § 1.

183.220. Certain counties may appropriate money for airports; when. [Repealed.]

Compiler’s Notes.

This section (1840d) was repealed by Acts 1960, ch. 179, § 1.

183.230. Park boards in first-class cities may establish airports. [Repealed.]

Compiler’s Notes.

This section (2859a-1) was repealed by Acts 1942, ch. 34, § 5.

183.240. Money that may be expended for airport. [Repealed.]

Compiler’s Notes.

This section (2859a-2) was repealed by Acts 1942, ch. 34, § 5.

183.250. Board may make rules and regulations for use of airports. [Repealed.]

Compiler’s Notes.

This section (2859a-3) was repealed by Acts 1942, ch. 34, § 5.

183.260. Board may make contracts for use of airport; limitations. [Repealed.]

Compiler’s Notes.

This section (2859a-4) was repealed by Acts 1942, ch. 34, § 5.

183.270. Disposition of revenues of airport. [Repealed.]

Compiler’s Notes.

This section (2859a-5) was repealed by Acts 1942, ch. 34, § 5.

183.280. Sale of gasoline to persons using airport. [Repealed.]

Compiler’s Notes.

This section (2859a-6) was repealed by Acts 1942, ch. 34, § 5.

183.290. Airports to be considered park property. [Repealed.]

Compiler’s Notes.

This section (2859a-7) was repealed by Acts 1942, ch. 34, § 5.

183.300. Cities of second, third, fourth or fifth class and counties containing such cities may establish airports. [Repealed.]

Compiler’s Notes.

This section (2741q) was repealed by Acts 1942, ch. 10, § 15.

183.310. Money that may be expended; airports may be leased or assigned. [Repealed.]

Compiler’s Notes.

This section (2741q) was repealed by Acts 1942, ch. 10, § 15.

183.320. Rules and regulations for use of airports; city and county authority includes airports. [Repealed.]

Compiler’s Notes.

This section (2741q-1) was repealed by Acts 1942, ch. 10, § 15.

183.330. Contracts for use of airports; limitations. [Repealed.]

Compiler’s Notes.

This section (2741q-2) was repealed by Acts 1942, ch. 10, § 15.

183.340. Disposition of revenues of airports. [Repealed.]

Compiler’s Notes.

This section (2741q-3) was repealed by Acts 1942, ch. 10, § 15.

183.350. Sale of gasoline and oil. [Repealed.]

Compiler’s Notes.

This section (2741q-4) was repealed by Acts 1942, ch. 10, § 15.

183.360. Governing authorities of cities and counties to manage airports. [Repealed.]

Compiler’s Notes.

This section (2741q-5) was repealed by Acts 1942, ch. 10, § 15.

183.370. Airports in counties and cities of second to sixth classes — Condemnation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 2; 1958, ch. 153, § 24) was repealed by Acts 1960, ch. 179, § 1.

183.380. Lease of airport; management with or without airport board. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 3) was repealed by Acts 1960, ch. 179, § 1.

183.390. Airport boards — Authority — Terms of members. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 9; 1958, ch. 153, § 25, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.400. Nature and powers of airport boards — Compensation and employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, §§ 5 and 6; 1958, ch. 153, § 26, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.410. Officers of board. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 7) was repealed by Acts 1960, ch. 179, § 1.

183.420. Duties of secretary-treasurer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 8) was repealed by Acts 1960, ch. 179, § 1.

183.430. Regulations and fees — Policing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 9; 1958, ch. 153, § 27, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.440. Contracts for use of airport. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 10; 1958, ch. 153, § 28, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.450. Expenditures for airport. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 11; 1958, ch. 153, § 29, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.460. Storage and sale of gasoline and oil. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 12) was repealed by Acts 1960, ch. 179, § 1.

183.470. Title to airport property — Property and income exempt from taxation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 10, § 13) was repealed by Acts 1960, ch. 179, § 1.

Acquisition of Airport Facilities

183.475. Acquisition of airport facilities by counties bordering state boundary.

All counties in this state located on the boundary line between this state and any other state, or which are contiguous to such counties, as well as all governmental units which are located in such boundary counties, or contiguous counties, are hereby authorized, separately, jointly with each other or jointly with any other municipality or political subdivision of any such boundary state to acquire, equip, construct, expand, lease, improve, police and operate airports within this state or either within or without the geographical limits of any county, municipality or political subdivision of any such boundary state; and for those purposes to exercise any other powers or functions and be subject to any provisions provided by KRS Chapter 183 as to aviation, without regard to any express or implied limitations thereof to or within this state, including but not limited to those provided by KRS 183.010 through 183.012 , “Definitions,” KRS 183.132 through 183.138 , “Local Air Boards,” KRS 183.475 through 183.490 , “Acquisition of Airport Facilities,” KRS 183.630 through 183.740 , “Bonds,” KRS 183.762 through 183.772 , “Airport Development,” and any amendments or supplements thereto which may be provided therein subsequent to this amendment.

History. Enact. Acts 1946, ch. 48, § 13; 1958, ch. 153, § 30; 1960, ch. 179, § 20; 1968, ch. 83, § 4; 1980, ch. 188, § 138, effective July 15, 1980.

NOTES TO DECISIONS

Cited:

Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ).

183.476. Functions by municipalities in field of aviation are governmental in character.

The acquisition of any lands for the purpose of establishing airports or other air navigation facilities; the acquisition of airport protection privileges; the acquisition, establishment, construction, enlargement, improvement, maintenance, equipping and operation of airports and other air navigation facilities, and the exercise of any other powers granted to air boards or municipalities in this chapter, are hereby declared to be public, governmental and municipal functions, exercised for a public purpose, and matters of public necessity, and such lands and other property, easements and privileges acquired and used by such air boards or municipalities in the manner and for the purposes enumerated in this chapter shall and are hereby declared to be acquired and used for public, governmental and municipal purposes and as a matter of public necessity.

History. Enact. Acts 1946, ch. 48, § 10; 1960, ch. 179, § 21.

NOTES TO DECISIONS

1. Submission of Controversy.

Air board had at least prima facie authority to submit controversy concerning lease agreements for decision by a board of arbitrators rather than a court and this was not an unlawful delegation of powers. American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 1959 U.S. App. LEXIS 3478 (6th Cir. Ky. 1959 ).

Cited:

Padgett v. Louisville & Jefferson County Air Board, 492 F.2d 1258, 1974 U.S. App. LEXIS 10048 (6th Cir. 1974).

Opinions of Attorney General.

Under this section a city is relieved of tort liability for damages that might arise over an accident at a municipally operated airport. OAG 60-171 .

An urban-county airport board is a public or municipal corporation and an instrumentality of the Commonwealth and as a municipal corporation it possesses only such power as the Constitution and the general assembly have expressly or impliedly granted. OAG 80-333 .

The Airport Authority, as the air board, has the authority to establish and fix reasonable charges or fees, to be applied to UPS, for the rendition of emergency service involving UPS aircraft rendered either on the airfield or UPS ramps, either for an annual fee, or on a per occasion basis. OAG 85-97 .

Under the explicit language of this section, the air board, i.e., the Regional Airport Authority, has the power, inter alia, to establish an airport and to maintain, equip and operate such airport. Implicit within that operational power is the authority to provide emergency crashfire rescue service to aircraft utilizing the airport runways. The aircraft of the UPS air parcel delivery operation is integrated with the operation of the airfield, since UPS aircraft land and take off on the regular runways at Standiford Field, although their aircraft are parked and normally fueled on the UPS ramps. Therefore, the Authority may enter into an agreement with the city of Louisville by which the Authority undertakes to render such emergency service to UPS aircraft which may be in trouble either on the airfield runways or when they reach the UPS parking ramps. OAG 85-97 .

Research References and Practice Aids

Kentucky Law Journal.

Note: A “Preposterous Anomaly”: Sovereign Immunity in Kentucky Following the Crash of Comair Flight 5191, 98 Ky. L.J. 889 (2009/2010).

183.480. Jurisdiction over privately owned airports. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 24, § 2; 1958, ch. 153, § 31) was repealed by Acts 1960, ch. 179, § 1.

183.490. Condemnation for privately owned airports.

The cabinet, with the consent of the owner of a private airport, may, by resolution, reciting that any lands or property adjoining an airport are needed for purposes of establishing or expanding the airport and related facilities, direct the condemnation of such property. Whereupon, condemnation proceedings shall be conducted in the name of the cabinet at the expense of the person owning or operating said airport, and the procedure for condemnation shall conform to the procedure set out in the Eminent Domain Act of Kentucky. The cabinet shall have no liability for the results of such proceedings, and all costs, damages and compensation awarded shall be paid by the owners or operators of such airport. Title shall vest in the person owning the airport. Such airport shall be a public use airport.

History. Enact. Acts 1944, ch. 24, § 3; 1958, ch. 153, § 32; 1960, ch. 179, § 22; 1976, ch. 140, § 87.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

183.500. Extension of runways across roads — Signals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 24, § 4; 1958, ch. 153, § 33; 1960, ch. 179, § 23, effective March 25, 1960) was repealed by Acts 1976, ch. 308, § 9.

183.505. Transportation Cabinet authorized to aid publicly used airports — Regulations.

Notwithstanding any other provision of law, the cabinet may give such advice and assistance, including financial aid, engineering and technical assistance, within the limits of its resources, as it deems advisable, to enable any person to acquire, construct, expand, maintain and operate airports devoted to public use and may establish regulations to insure that such airports shall continue to be devoted to public use under reasonable conditions and for reasonable periods of time.

History. Enact. Acts 1972, ch. 215, § 1.

183.510. Condemnation for landing strips. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 24, § 5) was repealed by Acts 1960, ch. 179, § 1.

183.520. Maintenance of runways of county and city airports by Department of Highways. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 42, § 1) was repealed by Acts 1958, ch. 153, § 49.

183.525. Kentucky aviation economic development fund — Sources and distribution of fund moneys — Use of fund moneys.

  1. The “Kentucky Aviation Economic Development Fund” is established in the State Treasury. Beginning on July 1, 2000, all receipts collected under KRS Chapter 139 from the sales or use tax on aviation jet fuel shall be deposited in this fund.
  2. The fund may also receive state appropriations, gifts, grants, and federal funds and shall include earnings from investments of moneys from the fund.
  3. Any fund balance at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  4. The Transportation Cabinet shall use all moneys deposited in the fund or accruing to the fund for the development, rehabilitation, and maintenance of publicly owned or operated aviation facilities and for other aviation programs within the Commonwealth that will benefit publicly owned or operated aviation facilities.
  5. The cabinet shall be prohibited from expending moneys deposited in the fund for administrative costs incurred by the cabinet or for any purpose other than the development, rehabilitation, and maintenance of publicly owned or operated aviation facilities and other aviation programs benefiting publicly owned or operated aviation facilities.

History. Enact. Acts 1998, ch. 400, § 1, effective July 15, 1998.

Compiler's Notes.

Acts 1998, ch. 400, § 5 provided: “This Act is effective for tax periods beginning on or after July 1, 2000.”

Research References and Practice Aids

2020-2022 Budget Reference.

See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 2, (1) at 949.See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 2, (2) at 949.

2018-2020 Budget Reference.

See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 2, (1) at 1934.See Transportation Cabinet Budget, 2018 Ky. Acts ch. 208, Pt. I, A, 2, (2) at 1934.

Intrastate Air Commerce

183.530. Regulation of intrastate air commerce. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 2; 1958, ch. 153, § 34; 1960, ch. 179, § 24) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.540. Intrastate certificates of convenience and necessity — Charter permits — Hearings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 3; 1958, ch. 153, § 35; 1960, ch. 179, § 25) was repealed by Acts 1984, ch. 113, § 8, effective July 13, 1984.

183.549. Charter permit for air transportation of persons for hire on unscheduled basis. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 337, § 1, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.550. Application for charter permits — Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 4; 1958, ch. 153, § 36; 1960, ch. 179, § 26; 1976, ch. 314, § 1; 1986, ch. 337, § 2, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.560. Hearings on applications — Notice — Appearance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 5; 1958, ch. 153, § 37; 1960, ch. 179, § 27; 1986, ch. 337, § 3, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.570. Determination of application — Issuance of permit — Revocation — Transfer — Limitations — Rehearing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 6; 1958, ch. 153, § 38; 1960, ch. 179, § 28; 1986, ch. 337, § 4, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.580. Rate schedules. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 7; 1958, ch. 153, § 39; 1960, ch. 179, § 29) was repealed by Acts 1986, ch. 337, § 7, effective July 15, 1986.

183.590. Powers of cabinet — Bond for permit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 8; 1958, ch. 153, § 40; 1960, ch. 179, § 30; 1986, ch. 337, § 5, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996.

183.600. Director. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 147, § 9) was repealed by Acts 1946, ch. 48, § 14.

183.610. Revocation, suspension or modification of certificates; abandonment of route. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 147, § 10) was repealed by Acts 1958, ch. 153, § 49.

183.620. Appeals from actions of cabinet. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 167, § 13; 1958, ch. 153, § 41; 1960, ch. 179, § 31; 1976, ch. 62, § 97; 1986, ch. 337, § 6, effective July 15, 1986) was repealed by Acts 1996, ch. 174, § 13, effective July 15, 1996, and Acts 1996, ch. 318, § 357, effective July 15, 1996.

Bonds

183.630. Governmental unit may issue revenue bonds for airport purposes.

For the purpose of defraying the cost of acquiring, constructing, maintaining, expanding, financing or improving any airport facilities or air navigation facilities, or any part thereof or interest therein, or contract for services therefrom the cabinet may, with the approval of the Governor, borrow money and issue negotiable bonds. A governmental unit may borrow money and issue negotiable bonds, for the same purposes, but only after an ordinance or resolution has been adopted by the legislative body specifying the proposed undertaking, the amount of bonds to be issued and the maximum rate of interest the bonds are to bear. The ordinance or resolution shall further provide that the revenue bonds are to be issued pursuant to the provisions of KRS 183.630 to 183.740 .

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 2; 1960, ch. 179, § 39; 1964, ch. 134, § 10; 1968, ch. 83, § 5.

NOTES TO DECISIONS

1. Construction.

KRS 66.210 (now repealed) and 66.310 and Ky. Const., §§ 157 and 158 do not apply to bonds issued for purpose of equipping an already acquired air field where payment of interest and liquidation of such bonds are to be met from the operation of the airport and where no debt is created which must be met by taxation of the citizens or their properties. Droege v. Kenton County Fiscal Court, 300 Ky. 186 , 188 S.W.2d 320, 1945 Ky. LEXIS 518 ( Ky. 1945 ) (decision prior to 1964 amendment).

Cited:

Padgett v. Louisville & Jefferson County Air Board, 492 F.2d 1258, 1974 U.S. App. LEXIS 10048 (6th Cir. 1974); Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 1978 Ky. App. LEXIS 472 (Ky. Ct. App. 1978).

Research References and Practice Aids

Cross-References.

Governmental unit may issue revenue bonds for any public project, KRS 58.010 to 58.120 .

183.635. Procedure when city and county act jointly.

Where a city and county or governmental unit are acting jointly, any action contemplated by KRS 183.630 to 183.740 to be taken by the legislative body or bodies of the governmental unit, shall be taken by ordinance of such governmental unit.

History. Enact. Acts 1958, ch. 153, § 4; 1960, ch. 179, § 40; 1964, ch. 134, § 11.

183.640. Interest rate and maturity of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 3; 1960, ch. 179, § 41) was repealed by Acts 1970, ch. 244, § 2.

183.650. Bonds negotiable and tax free — Method of sale — Payable solely from revenues.

Bonds issued pursuant to KRS 183.630 to 183.740 shall be negotiable and shall not be subject to taxation. If any officer whose signature or countersignature appears on the bonds or coupons ceases to be such officer before delivery of the bonds, his signature or countersignature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until delivery. The bonds may be sold, at either a public or a private sale notwithstanding any other provisions of the Kentucky Revised Statutes, and the bonds shall be exempt from the newspaper advertisement and publications requirements for municipal bonds under KRS 424.360 , with the sale to be held in such manner, upon such terms and for such price as the governmental unit or the Finance and Administration Cabinet may determine will best effect the purposes of this chapter. The bonds shall be payable solely from the revenue derived from airport facilities or taxes levied for airport development and shall not constitute an indebtedness of the governmental unit or the Commonwealth within the meaning of the Constitution. It shall be plainly stated on the face of each bond that it has been issued under the provisions of KRS 183.630 to 183.740 and that it does not constitute an indebtedness of the governmental unit or the Commonwealth within the meaning of the Constitution.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 4; 1960, ch. 179, § 42; 1980, ch. 375, § 1, effective July 15, 1980.

183.660. Application of proceeds of bonds.

All money received from the bonds shall be applied solely for the acquisition, construction, maintenance, expansion, financing or improvement of the airport facilities or air navigation facilities, and the necessary expense of preparing, printing and selling said bonds, or to advance the payment of the interest on the bonds during the first three (3) years following the date of the bonds.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 5; 1960, ch. 179, § 43; 1964, ch. 134, § 12.

183.670. Receiver.

If there is any default in the payment of principal or interest of any bond, any court having jurisdiction of the action may appoint a receiver to administer the airport facilities on behalf of the air board, governmental unit or the Commonwealth with power to charge and collect rates, charges and fees sufficient to provide for the payment of any bonds or obligations outstanding against the airport facilities, and for the payment of operating expenses, and to apply the income and revenue in conformity with KRS 183.630 to 183.740 .

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 6; 1960, ch. 179, § 44.

183.680. Maintenance, operation and depreciation funds — Rates.

At or before the issuance of bonds the legislative body of the governmental unit shall, by ordinance or resolution, set aside and pledge the income and revenue of the airport facilities into a separate and special fund to be used and applied in payment of the cost thereof and in the maintenance, operation and depreciation thereof. The ordinance or resolution shall definitely fix and determine the amount of revenue necessary to be set apart and applied to the payment of principal and interest of the bonds and the proportion of the balance of the income and revenue to be set aside as a proper and adequate depreciation account, and the remaining proportion of such balance shall be set aside for the reasonable and proper operation and maintenance of the airport facilities. The rates and fees to be charged for the services of the airport facilities shall be fixed and revised from time to time so as to be sufficient to provide for payment of interest upon all bonds and to create a sinking fund to pay the principal thereof when due, and to provide for the operation and maintenance of the airport facilities and an adequate depreciation account. The provision of KRS 183.137(2) that the money derived from the use of the airport shall be first applied to the maintenance of the airport shall not apply in the case of airport facilities for which revenue bonds have been issued under KRS 183.630 to 183.740 .

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 7; 1960, ch. 179, § 45.

183.690. Transfer of surplus to depreciation account.

If a surplus is accumulated in the operating and maintenance funds equal to the cost of maintaining and operating the airport facilities during the remainder of the calendar, operating or fiscal year, and during the succeeding like year, any excess over such amount may be transferred at any time by the legislative body of the governmental unit to the depreciation account, to be used for improvements, extensions or additions to the airport facilities or the air navigation facilities.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 8; 1960, ch. 179, § 46; 1964, ch. 134, § 13.

183.700. Expenditure and investment of depreciation fund.

The funds accumulating to the depreciation account shall be expended in balancing depreciation in the airport facilities or in making new constructions, extensions or additions thereto. Any such accumulations may be invested as the legislative body of the governmental unit may designate, and if invested the income from such investment shall be carried into the depreciation account.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 9; 1960, ch. 179, § 47.

183.710. Refunding bonds.

The governmental unit may issue new bonds to provide funds for the payment of any outstanding bonds, in accordance with the procedure prescribed by KRS 183.630 to 183.740 . The new bonds shall be secured to the same extent and shall have the same source of payment as the bonds refunded.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 10; 1960, ch. 179, § 48.

183.720. Additional bonds.

If the legislative body of the governmental unit finds that the bonds authorized will be insufficient to accomplish the purpose desired, additional bonds may be authorized and issued in the same manner.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 11; 1960, ch. 179, § 49.

183.730. Additional bonds, purposes of issue.

Any governmental unit acquiring, constructing, maintaining, expanding, financing or improving any air navigation facilities or any airport facilities pursuant to the provisions of KRS 183.630 to 183.740 may, at the time of issuing the bonds for such acquisition, construction, maintenance, expansion, financing or improvement, provide for additional bonds for extensions and permanent improvements to be placed in escrow and to be negotiated from time to time as proceeds for that purpose may be necessary. Bonds placed in escrow shall, when negotiated, have equal standing with the bonds of the same issue.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 12; 1960, ch. 179, § 50; 1964, ch. 134, § 14.

183.740. KRS 183.630 to 183.730 constitutes alternate method of acquisition — Effect of other statutes.

KRS 183.630 to 183.730 shall constitute a method for the acquisition, construction, maintenance, expansion, financing or improvement of air navigation facilities or airport facilities or any part thereof or interest therein, or contract for services therefrom, by governmental units or the Commonwealth in addition or as an alternate, to any other method authorized by statute. It is intended to authorize the acquisition, construction, maintenance, expansion, financing, or improvement of additional facilities for an airport acquired under authority of KRS 183.133 or interest therein, or contract for services therefrom, as well as the original acquisition, construction, maintenance, expansion, financing, or improvement of land and other facilities for an airport. Governmental units shall have all authority conferred by KRS 183.133 for the acquisition, construction, maintenance, expansion, financing or improvement of air navigation facilities or airport facilities, or any part thereof or interest therein, or contract for services therefrom. Except as otherwise provided in KRS 183.630 to 183.730 , the provisions of KRS 183.133 to 183.138 shall apply to the operation of airport facilities acquired under KRS 183.630 to 183.730.

History. Enact. Acts 1945 (1st Ex. Sess.), ch. 3, § 13; 1960, ch. 179, § 51; 1964, ch. 134, § 15; 1968, ch. 83, § 6.

NOTES TO DECISIONS

Cited:

Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ).

183.745. Zoning powers of department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 189, §§ 1 and 2, effective June 17, 1954) was repealed by Acts 1960, ch. 179, § 1.

183.746. Zoning board for airport zoning by department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 189, § 3, effective June 17, 1954) was repealed by Acts 1960, ch. 179, § 1.

183.750. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 1) was repealed by Acts 1960, ch. 153, § 49.

183.751. Airport hazards not in public interest. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 2; 1958, ch. 153, § 42, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.752. Airports’ zoning powers — Joint boards. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 3; 1958, ch. 153, § 43, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.753. Granting of permits — Nonconforming uses — Variances — Marking and lighting of obstructions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 4) was repealed by Acts 1960, ch. 179, § 1.

183.754. Adoption of airport zoning regulations — Administration and enforcement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 5, pars. 1 and 2; 1958, ch. 153, § 44, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.755. Board of appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 5 [3]) was repealed by Acts 1960, ch. 179, § 1.

183.756. Appeal from board of appeals to courts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 6) was repealed by Acts 1960, ch. 179, § 1.

183.757. Acquisition of airport protection easements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 8) was repealed by Acts 1960, ch. 179, § 1.

183.758. Injunction against zoning violation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 49, § 7; 1958, ch. 153, § 46, effective June 19, 1958) was repealed by Acts 1960, ch. 179, § 1.

183.760. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 239, § 1) was repealed by Acts 1958, ch. 153, § 49.

183.761. National defense considerations in airport development. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 239, § 2; 1960, ch. 179, § 65) was repealed by Acts 1964, ch. 134, § 27.

Airport Development

183.762. Contracts with federal government for federal aid in airport development.

The Kentucky Transportation Cabinet, any governmental unit, or the cabinet together with any governmental unit may contract with the federal government in regard to the development of airports under any Act of Congress providing federal aid to the states in airport development.

History. Enact. Acts 1948, ch. 239, § 3; 1960, ch. 179, § 66.

183.763. Contractual powers.

The cabinet may contract with a governmental unit or other person, and a governmental unit may contract with the cabinet or any person in regard to the development of airports and other aeronautical matters.

History. Enact. Acts 1948, ch. 239, § 4; 1958, ch. 153, § 47; 1960, ch. 179, § 67; 1964, ch. 134, § 16.

183.764. State aid for public airports.

The cabinet is authorized to render financial assistance by grant or loan or both to any governmental unit in the development of an airport owned or controlled or to be owned or controlled by such governmental unit out of appropriations made by the General Assembly for such purposes. Such financial assistance may be furnished in connection with federal aid, local or other funds available for airport purposes.

History. Enact. Acts 1948, ch. 239, § 5; 1960, ch. 179, § 68; 1964, ch. 134, § 17.

183.765. Airport development.

Airport development in Kentucky may be undertaken and paid for by the state, the United States and governmental units. Costs for development may be borne by any one (1) of these or by any combination.

History. Enact. Acts 1948, ch. 239, § 6; 1960, ch. 179, § 69; 1964, ch. 134, § 18; 1982, ch. 274, § 1, effective July 15, 1982.

183.766. State may match federal funds.

The cabinet may set apart out of moneys appropriated to it for state airport development an amount equal to any sum allotted to the state by the federal government or any sum necessary to carry on cooperative work with the federal government.

History. Enact. Acts 1948, ch. 239, § 7; 1960, ch. 179, § 70.

183.767. State aid conditioned on acquisition of necessary land.

As a condition precedent to the expenditure of any state funds for the development of any airport in the state, the cabinet may require that the governmental unit or units shall have, or be in a position to acquire, all lands or other property interests which in the judgment of the cabinet are necessary for the development of the airport.

History. Enact. Acts 1948, ch. 239, § 8; 1960, ch. 179, § 71; 1964, ch. 134, § 19.

183.768. No aid for private airports.

The cabinet shall not expend any funds appropriated or made available by the state for the development of public airports, upon any private airports.

History. Enact. Acts 1948, ch. 239, § 9; 1960, ch. 179, § 72.

183.769. Compliance with laws and regulations.

Whenever state funds are used or sought to be used, all governmental units in this state, whether acting alone or jointly with another governmental unit or with the United States government or with the state, shall comply with the terms of KRS 183.763 to 183.772 and all rules and regulations adopted thereunder, and secure the approval of the cabinet.

History. Enact. Acts 1948, ch. 239, § 10; 1960, ch. 179, § 73; 1964, ch. 134, § 20.

183.770. Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 239, § 11) was repealed by Acts 1960, ch. 179, § 1.

183.771. Title to airport property.

The provisions of KRS 56.030 do not apply to land or interest in land or easements thereon partly or wholly paid for out of state funds used in the construction, alteration, or development of public airports in the state.

History. Enact. Acts 1948, ch. 239, § 12; 1960, ch. 179, § 74.

183.772. Kentucky airport development fund — Sources — Use — Continuation.

There is hereby created in the state treasury a special fund to be known as the “Kentucky Airport Development Fund”. All moneys deposited or paid into this fund, including repayment of any loans made therefrom, are appropriated and shall be available to the cabinet for the purposes of KRS 183.763 through 183.771 . All moneys in such fund shall be expended solely for the development of airports or administrative cost incidental to the development of airports. The fund shall consist of all money appropriated by the state and all money received from the United States or from any other source for the purpose of airport development. All moneys in the Kentucky airport development fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements as are provided by law for other special funds in the State Treasury, except that any balance in this fund shall not lapse at any time but shall be continuously available to the cabinet for the purposes of carrying out the provisions of KRS 183.763 through 183.771 . A general statement that all continuing appropriations are repealed shall not be construed as abolishing this fund.

History. Enact. Acts 1948, ch. 239, § 13; 1950, ch. 133; 1960, ch. 179, § 75; 1964, ch. 134, § 21.

183.781. Definitions for KRS 183.781 to 183.793. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 1) was repealed by Acts 1962, ch. 70, § 8.

183.782. Airport Development Commission; membership; expenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 2) was repealed by Acts 1962, ch. 70, § 8.

183.783. Commission’s powers and duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 3) was repealed by Acts 1962, ch. 70, § 8.

183.784. Power to accept gifts, borrow money, issue bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 4) was repealed by Acts 1962, ch. 70, § 8.

183.785. Details of airport project acquisition. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 5) was repealed by Acts 1962, ch. 70, § 8.

183.786. Qualities of bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 6) was repealed by Acts 1962, ch. 70, § 8.

183.787. Commission’s disposition of funds received. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 7) was repealed by Acts 1962, ch. 70, § 8.

183.788. Sinking fund reserve. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 8) was repealed by Acts 1962, ch. 70, § 8.

183.789. Two or more agencies; effect of default of one. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 9) was repealed by Acts 1962, ch. 70, § 8.

183.790. Further bond issue for same project. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 10) was repealed by Acts 1962, ch. 70, § 8.

183.791. Bondholder’s rights. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 11) was repealed by Acts 1962, ch. 70, § 8.

183.792. Refunding bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 12) was repealed by Acts 1962, ch. 70, § 8.

183.793. Additional and alternative character of KRS 183.781 to 183.793. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 144, § 13) was repealed by Acts 1962, ch. 70, § 8.

Civil Air Patrol

183.820. Unit of Civil Air Patrol. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 57, § 1; 1960, ch. 179, § 76, effective March 25, 1960; 1978, ch. 155, § 114, effective June 17, 1978) was repealed and reenacted as KRS 39.600 by Acts 1980, ch. 188, § 139, effective July 15, 1980.

183.830. Functions of unit. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 57, § 2; 1960, ch. 179, § 77, effective March 25, 1960; 1974, ch. 74, Art. IV, § 20(5)) was repealed and reenacted as KRS 39.610 by Acts 1980, ch. 188, § 140, effective July 15, 1980.

183.840. Coordination with federal government. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 57, § 3; 1960, ch. 179, § 78, effective March 25, 1960; 1974, ch. 74, Art. IV, §§ 20(5), (6); 1978, ch. 155, § 115, effective June 17, 1978) was repealed and reenacted as KRS 39.620 by Acts 1980, ch. 188, § 141, effective July 15, 1980.

183.850. Restrictions on use of appropriated funds. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 57, § 4; 1960, ch. 179, § 79, effective March 25, 1960; 1974 Ky. Acts ch. 74, Art. IV, § 20(5) and (6); 1978, ch. 155, § 116, effective June 17, 1978) was repealed and reenacted as KRS 39.630 by Acts 1980, ch. 188, § 142, effective July 15, 1980.

Airport Zoning

183.861. Establishment of Airport Zoning Commission — Jurisdiction over land use issues.

  1. There is hereby created and established within the cabinet, a commission to be known as the “Kentucky Airport Zoning Commission” which, notwithstanding the provisions of KRS Chapters 100 and 147, shall be empowered to issue orders, rules, and regulations pertaining to use of land within and around the facilities identified in subsection (2) of this section as will promote the public interest and protect and encourage the proper use of the airports and their facilities.
  2. The commission shall have jurisdiction over land use issues around the following facilities in the Commonwealth:
    1. All military airports;
    2. All public-use facilities of the following types:
      1. Airports;
      2. Heliports; and
      3. Seaplane bases; and
    3. All private-use airports which have a paved runway in excess of two thousand nine hundred (2,900) feet.

History. Enact. Acts 1960, ch. 179, § 52, effective March 25, 1960; 2000, ch. 80, § 1, effective July 14, 2000; 2004, ch. 112, § 1, effective July 13, 2004; 2019 ch. 121, § 2, effective June 27, 2019.

NOTES TO DECISIONS

1. Delegation of Authority.

Considering the need for zoning and regulation of hazards around airports, the totality of the legislative findings contained in KRS 183.861 to 183.873 , and the actual delegation of authority to the airport zoning commission in those statutes, the delegation of authority to the commission under those statutes is not unconstitutional and is reasonable under the circumstances. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

Cited:

Pike v. Kentucky Power Co., 876 F. Supp. 143, 1993 U.S. Dist. LEXIS 20744 (E.D. Ky. 1993 ).

183.862. Commission membership — Compensation — Vote of ex officio chairman.

  1. Such commission shall consist of six (6) members and the secretary of the Transportation Cabinet or in his absence his designated representative who shall be the ex officio chairman of such commission. The ex officio chairman of the commission shall not be entitled to vote on any commission action unless there is a tie vote at which time the ex officio chairman may cast the deciding vote. The members of such commission shall be appointed by the Governor for a term of four (4) years. The members shall serve for a term of four (4) years, and until their successors are appointed, provided however that the first two (2) members appointed shall serve for a term of two (2) years; the next two (2) for three (3) years; and the final two (2) for four (4) years. Upon the expiration of the first terms, successors shall be appointed for a term of four (4) years.
  2. Each member shall be a person experienced in and familiar with the field of aeronautics.
  3. Members of the commission shall receive fifty dollars ($50) for each day in actual session and shall be reimbursed for travel expenses and other reasonable expenses incident to performance of their duties.

History. Enact. Acts 1960, ch. 179, § 53; 1964, ch. 134, § 22; 1974, ch. 74, Art. IV, § 20(6); 1978, ch. 154, § 15, effective June 17, 1978; 1986, ch. 20, § 1, effective July 15, 1986.

183.8621. Commission administrator — Appointment — Qualifications — Duties.

Upon recommendation of an individual by the secretary, the commission shall appoint an administrator of the commission who shall have immediate supervision of the employees of the commission and perform such duties as are assigned him. The administrator shall be an individual familiar with aeronautics and the commission policy. He shall keep and be custodian of the records and airport zoning maps adopted by the commission, and shall devote his full time to the duties of his office.

History. Enact. Acts 1976, ch. 316, § 2.

183.863. Corporate nature — Quorum.

The commission shall be a body politic and corporate with the usual corporate attributes, including, but not limited to the power to sue and be sued, contract and be contracted with and to do all things reasonable or necessary to effectively carry out the duties prescribed. It shall meet on the call of the chairman or four (4) or more members. A quorum shall consist of four (4) members.

History. Enact. Acts 1960, ch. 179, § 54, effective March 25, 1960.

Opinions of Attorney General.

Inasmuch as KRS 183.862 makes the secretary of the department of transportation (now transportation cabinet) ex officio chairman of the Kentucky airport zoning commission, the secretary and three other members of the commission are sufficient to constitute a quorum. OAG 75-617 .

183.864. Venue of legal actions.

The Franklin Circuit Court shall hold concurrent venue with the courts of this Commonwealth in all civil and injunctive actions instituted by the commission for the enforcement of applicable statutes, rules, regulations and orders issued.

History. Enact. Acts 1960, ch. 179, § 55, effective March 25, 1960.

183.865. Commission functions.

All of the powers, provisions, and duties relating to the zoning and use of land, structures, and air space within and around military and public use airports, heliports, and sea plane bases within the state are hereby conferred upon, delegated to and vested in the commission. The commission shall also exercise all powers, provisions, and duties relating to the use of navigable air space within the state. Nothing contained in this chapter shall prevent a governmental unit from acquiring airports, airport facilities, or air navigation facilities, or from taking any action authorized by law for the elimination of any airport hazard, either alone or jointly with the commission.

History. Enact. Acts 1960, ch. 179, § 56; 1964, ch. 134, § 23; 1966, ch. 255, § 167; 2000, ch. 80, § 2, effective July 14, 2000.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Navigable Air Space.
1. Constitutionality.

Considering the need for zoning and regulation of hazards around airports, the totality of the legislative findings contained in KRS 183.861 to 183.873 , and the actual delegation of authority to the airport zoning commission in those statutes, the delegation of authority to the commission under those statutes is not unconstitutional and is reasonable under the circumstances. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

2. Navigable Air Space.

“Navigable air space” as contemplated by this section and KRS 183.866 is limited to areas within and around publicly-owned airports; it does not mean every square inch of useable, navigable air space within the state; thus, the Airport Zoning Commission lacked jurisdiction to prevent construction of a broadcast tower more than 20 miles from the nearest airport. Cosmos Broadcasting Corp. v. Commonwealth, Transp. Cabinet, Aeronautical Div., 759 S.W.2d 824, 1988 Ky. App. LEXIS 100 (Ky. Ct. App. 1988).

183.866. Legislative findings as to airport hazards.

It is hereby found and declared that an airport hazard endangers the lives and property of users of the airport and of occupants of land in the vicinity, and in effect reduces the size of the area available for landing, taking off and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein, and therefore such hazards are not in the interest of the public health, public safety or general welfare. It is further found that any obstructions to the use of navigable air space destroy and impair the safe use of such air space thereby endangering aircraft and are not in the interest of public health, public safety or general welfare.

History. Enact. Acts 1960, ch. 179, § 57, effective March 25, 1960.

NOTES TO DECISIONS

  1. Delegation of Authority.
  2. Unreasonable Regulation.
  3. Navigable Air Space.
1. Delegation of Authority.

Considering the need for zoning and regulation of hazards around airports, the totality of the legislative findings contained in KRS 183.861 to 183.873 , and the actual delegation of authority to the airport zoning commission in those statutes, the delegation of authority to the commission under those statutes is not unconstitutional and is reasonable under the circumstances. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

2. Unreasonable Regulation.

Where the airport zoning commission adopted a regulation summarily assuming jurisdiction over all air space which lay above a line extending outward and upward from an airport runway at a slope of 100 to one for a horizontal distance of 20,000 feet, such a blanket standard was patently unreasonable since the commission failed to comply with the statutory requirement that it consider hazards around airports on an airport-by-airport basis. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

3. Navigable Air Space.

“Navigable air space” as contemplated by KRS 183.865 and this section is limited to areas within and around publicly-owned airports; it does not mean every square inch of useable, navigable air space within the state; thus, the Airport Zoning Commission lacked jurisdiction to prevent construction of a broadcast tower more than 20 miles from the nearest airport. Cosmos Broadcasting Corp. v. Commonwealth, Transp. Cabinet, Aeronautical Div., 759 S.W.2d 824, 1988 Ky. App. LEXIS 100 (Ky. Ct. App. 1988).

183.867. Zoning jurisdiction — Regulations — Public files.

  1. The commission shall require that every military and public use airport, heliport, and sea plane base in the state file with it, from time to time, as required, maps showing the airport and area surrounding the airport used for approach or landing purposes. The commission shall thereafter designate on the maps, by reference to the regulations or standards promulgated by the Federal Aviation Administration concerning the area required for the safe maneuvering approach and landing of aircraft, the area over which jurisdiction will be assumed for zoning purposes. The commission shall notify any local zoning bodies of the area so designated and may exercise jurisdiction of the area insofar as it pertains to the safe and proper maneuvering of aircraft and the safe and proper use of the airport involved. The local zoning body may retain jurisdiction of zoning in such areas as to all other matters.
  2. The commission may adopt regulations pertaining to the zoning of areas over which jurisdiction is assumed as will provide for the proper and safe use of the area and airport.
  3. The commission shall maintain a public file in the offices of the cabinet showing maps of each military and public use airport, heliport, and sea plane base within the state and the area around the airport over which it has assumed jurisdiction for zoning purposes and such shall constitute public notice of the restrictions and zoning applicable to the areas or airport. The commission shall also maintain a public file showing any regulations adopted pertaining to land uses in areas zoned and these regulations shall constitute public notice of same.

History. Enact. Acts 1960, ch. 179, § 58; 1964, ch. 134, § 24; 1976, ch. 308, § 6; 2000, ch. 80, § 3, effective July 14, 2000.

NOTES TO DECISIONS

  1. Lack of Zoning.
  2. Unreasonable Regulation.
1. Lack of Zoning.

Where city and county master plan of zoning did not restrict airfield property to any particular use but merely showed boundaries, the airfield was left unzoned and no special use permit was required for it to be used for any purpose not prohibited by law. Louisville & Jefferson County Air Board v. Porter, 397 S.W.2d 146, 1965 Ky. LEXIS 67 ( Ky. 1965 ).

2. Unreasonable Regulation.

Where the airport zoning commission adopted a regulation summarily assuming jurisdiction over all air space which lay above a line extending outward and upward from an airport runway at a slope of 100 to one for a horizontal distance of 20,000 feet, such a blanket standard was patently unreasonable since the commission failed to comply with the statutory requirement that it consider hazards around airports on an airport-by-airport basis. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

DECISIONS UNDER PRIOR LAW

1. Regulations.

Airport zoning law authorizing zoning for the purpose of eliminating “airport hazards,” limited regulations to those having a reasonable relation to the accomplishment of the specified purpose and a regulation restricting land to a class “B” use including apartment houses and hospitals was not intended to eliminate congestions of people but to forbid commercial uses and it was illegal and void. Banks v. Fayette County Board of Airport Zoning Appeals, 313 S.W.2d 416, 1958 Ky. LEXIS 263 ( Ky. 1958 ).

Opinions of Attorney General.

The airport zoning commission has jurisdiction, for zoning purposes, over that land in and around publicly owned airports for the purpose of maintaining safe and proper maneuvering of aircraft and the safe and proper use of the airport itself. OAG 70-765 .

Research References and Practice Aids

Kentucky Law Journal.

Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of K.R.S. Chapter 100, V., The Power to Zone 1., Zoning Authorized, 56 Ky. L.J. 556 (1968).

183.868. Factors to be considered in zoning.

In addition to considering the regulations or standards promulgated by the Federal Aviation Administration in zoning the use of land and structures in areas over which jurisdiction is assumed, the commission shall consider among other things the safety of airport users and surface persons and property, the character of flying operations conducted at the airport, the nature of the terrain, the height of existing structures and trees above the level of the airport, the views of officials of the Federal Aviation Administration as to the safe approaches required for operations at the airport, the future development of the airport including extensions to runways that may be required, the density of dwellings that may safely be permitted in the area, protection of the public investment in the airport and its facilities, the interest of the public in developing a sound public air transportation system within the state and the views and opinions of those owning land in such area.

History. Enact. Acts 1960, ch. 179, § 59; 1976, ch. 308, § 7.

NOTES TO DECISIONS

  1. Delegation of Authority.
  2. Federal Standards.
  3. Unreasonable Regulation.
1. Delegation of Authority.

Considering the need for zoning and regulation of hazards around airports, the totality of the legislative findings contained in KRS 183.861 to 183.873 , and the actual delegation of authority to the airport zoning commission in those statutes, the delegation of authority to the commission under those statutes is not unconstitutional and is reasonable under the circumstances. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

2. Federal Standards.

Although the airport zoning commission is not required to be bound by the Federal Aviation Administration standards, the commission is required to consider those standards along with other factors, since those standards do indicate what generally might be reasonable. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

3. Unreasonable Regulation.

Where the airport zoning commission adopted a regulation summarily assuming jurisdiction over all air space which lay above a line extending outward and upward from an airport runway at a slope of 100 to one for a horizontal distance of 20,000 feet, such a blanket standard was patently unreasonable since the commission failed to comply with the statutory requirement that it consider hazards around airports on airport-by-airport basis. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

183.869. Variance permits.

When the commission has assumed zoning jurisdiction over an airport and surrounding area by appropriate regulation and the filing of a map with the zoning boundaries marked thereon, no person shall thereafter change, modify or alter the use of any land or structures within such area for a purpose inconsistent with the applicable zoning regulations established by the commission except upon application to the commission for a special permit to do so. The commission shall, before issuing any such permit, give consideration to the standards set out in the preceding section.

History. Enact. Acts 1960, ch. 179, § 60, effective March 25, 1960.

183.8691. Permit application fees.

The commission shall have authority to establish by regulation reasonable application fees for the issuance of permits.

History. Enact. Acts 1976, ch. 316, § 1.

183.870. Maximum building height regulation.

The commission shall establish by regulation the maximum height to which any structure may be erected within the navigable air space of the state. In establishing such maximum heights, the commission shall consider, among other things, the regulations or standards promulgated by the Federal Aviation Administration, the terrain involved, the location of the structure in relation to airports, the safety of aircraft, the safety of surface persons and structures, the future development of the area involved, the density of population and dwelling within the area involved, the interest of the public in developing a sound public air transportation system within the state and the interest of the person desiring to erect such structure, except that upon application to the commission, special permission may be granted to exceed such heights. The commission shall, before issuing any such permit, give consideration to the standards set out herein.

History. Enact. Acts 1960, ch. 179, § 61; 1970, ch. 247, § 1; 1976, ch. 308, § 8; 1978, ch. 285, § 3, effective June 17, 1978.

183.871. Commission hearings.

Any person may petition the commission for a hearing regarding any orders issued, and upon receipt of a petition, the commission shall convene and hear the matter in accordance with KRS Chapter 13B. It shall thereafter vote on the matter, and issue its final order based on the decision of the majority of the members present. Appeals from final orders of the commission may thereafter be prosecuted under the procedure set out in KRS Chapter 13B.

History. Enact. Acts 1960, ch. 179, § 62, effective March 25, 1960; 1996, ch. 174, § 11, effective July 15, 1996; 1996, ch. 318, § 68, effective July 15, 1996.

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts chs. 174 and 318 which are in conflict. Under KRS 446.250 , Acts ch. 318, which was last enacted by the General Assembly, prevails.

183.872. Acquisition of property rights.

In any case in which it is desired to remove, lower or otherwise terminate a nonconforming use; or the approach protection necessary cannot, because of unconstitutional limitations, be provided by zoning regulations; or it appears advisable that the necessary approach protection be provided by acquisition of property rights rather than by zoning regulations, the cabinet, commission, air board or boards, or governmental unit may acquire by purchase, grant, condemnation or otherwise, such air right, easement, or other estate or interest in the property or nonconforming use in question as may be necessary to effectuate the purposes of this chapter.

History. Enact. Acts 1960, ch. 179, § 63, effective March 25, 1960.

NOTES TO DECISIONS

1. Compensation for Taking.

Although a power company would still have its power lines and easements, where the airport zoning commission’s orders placed a servitude upon the company’s property which did not exist, and the orders required the power company to spend substantial sums which devalued the easement and property rights, the proposed orders of the commission constituted a taking of the power company’s property rights for which the power company should receive just compensation. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

Cited:

Shipp v. Louisville & Jefferson County Air Board, 431 S.W.2d 867, 1968 Ky. LEXIS 382 ( Ky. 1968 ), cert. denied, 393 U.S. 1088, 89 S. Ct. 880, 21 L. Ed. 2d 782, 1969 U.S. LEXIS 2537 (1969).

183.873. Injunction against zoning violation.

In addition to any other penalty prescribed in this chapter, the commission may institute in any court of competent jurisdiction, an action to prevent, restrain, correct or abate any violation of this chapter or of any zoning regulations adopted, or of any order or ruling made in connection with their administration or enforcement.

History. Enact. Acts 1960, ch. 179, § 64, effective March 25, 1960.

NOTES TO DECISIONS

1. Delegation of Regulatory Authority.

Considering the need for zoning and regulation of hazards around airports, the totality of the legislative findings contained in KRS 183.861 to 183.873 , and the actual delegation of authority to the airport zoning commission in those statutes, the delegation of authority to the commission under those statutes is not unconstitutional and is reasonable under the circumstances. Kentucky Airport Zoning Com. v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

Cited:

Shipp v. Louisville & Jefferson County Air Board, 431 S.W.2d 867, 1968 Ky. LEXIS 382 ( Ky. 1968 ), cert. denied, 393 U.S. 1088, 89 S. Ct. 880, 21 L. Ed. 2d 782, 1969 U.S. LEXIS 2537 (1969).

Airport Safety and Security

183.880. Establishment of safety and security department by airport board — Oath by appointees.

The airport board created by a county containing a city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census, an urban-county government, or created jointly by a city of the first class and county is authorized to establish a safety and security department and appoint safety and security officers and other employees for the public airport for which it is responsible, to prescribe distinctive uniforms for the safety and security officers of the airport board, and to designate and operate emergency vehicles. Safety and security officers so appointed shall take an appropriate oath of office, in form and manner consistent with the Constitution of Kentucky, and shall serve at the pleasure of the airport board.

History. Enact. Acts 1976, ch. 300, § 2; 2014, ch. 92, § 263, effective January 1, 2015.

Opinions of Attorney General.

The Airport Authority, as the air board, has the authority to establish and fix reasonable charges or fees, to be applied to UPS, for the rendition of emergency service involving UPS aircraft rendered either on the airfield or UPS ramps, either for an annual fee, or on a per occasion basis. OAG 85-97 .

Under the explicit language of KRS 183.476 , the air board, i.e., the Regional Airport Authority, has the power, inter alia, to establish an airport and to maintain, equip and operate such airport. Implicit within that operational power is the authority to provide emergency crashfire rescue service to aircraft utilizing the airport runways. The aircraft of the UPS air parcel delivery operation is integrated with the operation of the airfield, since UPS aircraft land and take off on the regular runways at Standiford Field, although their aircraft are parked and normally fueled on the UPS ramps. Therefore, the Authority may enter into an agreement with the city of Louisville by which the Authority undertakes to render such emergency service to UPS aircraft which may be in trouble either on the airfield runways or when they reach the UPS parking ramps. OAG 85-97 .

183.881. Powers and duties of safety and security officers.

  1. Safety and security officers so appointed shall be peace officers and conservators of the peace. They shall have general police powers to arrest, without process, all persons who within their view commit any crime or misdemeanor. They shall possess all of the common law and statutory powers, privileges, and immunities of sheriffs, except that they shall be empowered to serve civil process to the extent authorized by the employing airport board. Without limiting the generality of the foregoing, such safety and security officers are hereby specifically authorized and empowered, and it shall be their duty:
    1. To preserve the peace, maintain order and prevent unlawful use of force or violence or other unlawful conduct on the airport facility of their respective airport board, and to protect all persons and property located thereon from injury, harm and damage;
    2. To enforce, and to assist officials of their respective airport boards in the enforcement of the lawful rules and regulations of said airport board, and to assist and cooperate with the law enforcement agencies and officers.
  2. Safety and security officers may exercise their powers away from the locations described in subsection (1) of this section only upon the following conditions:
    1. When in hot pursuit of an actual or suspected violator of the law;
    2. When authorized to do so pursuant to the agreement authorized by subsection (1) of this section;
    3. When requested to act by the chief of police of the city or county in which the airport board’s property is located;
    4. When requested to act by the sheriff of the county in which the airport board’s property is located;
    5. When requested to act by the commissioner of the Department of Kentucky State Police;
    6. When requested to act by the authorized delegates of those persons or agencies listed in paragraph (c), (d) or (e) above;
    7. When requested to assist a state, county, or municipal police officer, sheriff, or other peace officer in the performance of his or her lawful duties; or
    8. When operating under an interlocal cooperation agreement pursuant to KRS Chapter 65.
  3. Safety and security officers appointed pursuant to KRS 183.110 and 183.880 to 183.886 shall have, in addition to the other powers enumerated herein, the power to conduct investigations anywhere in this Commonwealth, provided such investigation relates to criminal offenses which occurred on property owned, leased, or controlled by the airport board. Where desirable and at the discretion of the airport board’s police officials, the airport board’s safety and security department may coordinate said investigations with any law enforcement agency of this Commonwealth or with agencies of the federal government.
  4. Safety and security departments created and operated by the airport boards shall, for all purposes, be deemed public police departments and the sworn safety and security officers thereof are, for all purposes, deemed public police officers.
  5. Nothing in KRS 183.110 and 183.880 to 183.886 shall be construed as a diminution or modification of the authority or responsibility of any city or county police department, the Department of Kentucky State Police, sheriff, constable, or other peace officer either on the property of an airport board or otherwise.

Provided, however, that such safety and security officers shall exercise the powers herein granted upon any real property owned or occupied by their respective airport boards including the streets passing through and adjacent thereto. Said powers may be exercised in any county of the Commonwealth where the airport board owns, uses, or occupies property. Additional jurisdiction may be established by agreement with the chief of police of the municipality or sheriff of the county or the appropriate law enforcement agency in which such property is located, dependent upon the jurisdiction involved.

History. Enact. Acts 1976, ch. 300, § 3; 2007, ch. 85, § 187, effective June 26, 2007.

Opinions of Attorney General.

Airport safety and security officers have all of the powers and authority enumerated for special law enforcement officers in KRS 61.900 to KRS 61.926 , in addition to those powers enumerated in this section, since subsection (6)(e) of KRS 61.900 includes public airport authority security officers in its definition of “special law enforcement officer.” OAG 81-396 .

With respect to the arrest powers of airport safety and security officers, the phrase “who within their view commit” contained in subsection (1) of this section means, if a misdemeanor is involved, a crime committed in the physical presence of the officer; if a felony is involved, the phrase “within their view” means those factors within the officer’s knowledge which constitute probable cause, as opposed to physical sight or presence. OAG 81-396 .

183.8811. Use of electronic equipment for security functions — Precautionary procedures when bomb, explosive or deadly weapon suspected.

An air board may utilize electronic equipment or such techniques and procedures as it determines necessary to insure the safety of the public on airplanes and on airport property from persons using or attempting to use bombs, explosives, firearms or other deadly weapons. When a bomb, explosive or other deadly weapon is detected on airport property, or there is good reason to suspect that an individual may have such a device or weapon that he is attempting to conceal from proper authorities, a law enforcement officer, airline employee or air board agent or employee may take prudent and necessary precautionary measures to protect individual lives and property.

History. Enact. Acts 1982, ch. 26, § 1, effective July 15, 1982.

183.882. Qualifications of safety and security officers.

All persons appointed as safety and security officers pursuant to KRS 183.110 and 183.880 to 183.886 shall, at the time of their employment, be:

  1. Not less than eighteen (18) years of age; and
  2. Comply with the requirements of KRS 61.300 , other than the age and residency requirements; and
  3. Shall possess whatever other requirements as may be set by the airport board which employs them.

History. Enact. Acts 1976, ch. 300, § 4.

183.883. Appointment, promotion and compensation of personnel.

The airport board may provide for the appointment or promotion to the ranks and grades and positions of the department such officers and civilians as are considered by the airport board to be necessary for the efficient administration of the department. Such officers and civilians shall receive such compensation as shall be fixed and paid by the board.

History. Enact. Acts 1976, ch. 300, § 5.

183.884. Emergency vehicles — Equipment — Reporting of criminal statistics.

  1. Vehicles used for emergency purposes by the safety and security department of an airport board shall be considered as emergency vehicles and shall be equipped with blue lights and sirens and shall be operated in conformance with the requirements of KRS Chapter 189.
  2. Safety and security departments of the airport boards may install, maintain, and operate radio systems on police or other frequencies under licenses issued by the Federal Communications Commission, or its successor.
  3. Safety and security departments of airport boards shall comply with the requirements of the Kentucky Revised Statutes and the Justice and Public Safety Cabinet with regard to reporting of criminal and other statistics.

History. Enact. Acts 1976, ch. 300, § 6; 2007, ch. 85, § 188, effective June 26, 2007.

Compiler’s Notes.

A technical correction has been made to this section by the Reviser of Statutes under authority of KRS 7.136 .

183.885. Traffic and parking regulation powers.

  1. The airport boards, each having the power and authority to govern and control the method and purpose of use of property owned or occupied by their respective airports, including travel over such property, is each hereby confirmed in its authority to regulate the traffic and parking of motor vehicles or other vehicles as well as the traffic of pedestrians on, over and across the runways, streets, roads, paths and grounds of real property owned, used or occupied by such airport. Such regulations applicable to traffic and parking may include, but not be limited to, the following provisions:
    1. Provisions governing the registration, speed, operation, parking and times, places and manner of use of motor vehicles, and other vehicles.
    2. Provisions prescribing penalties for the violation of such regulations, which penalties may include the imposition of reasonable charges, the removing and impounding (at the expense of the violator) of vehicles which are operated or parked in violation of such regulations, and the denial of permission to operate vehicles on the property of such airport.
    3. Provisions establishing reasonable charges and fees for the registration of vehicles and for the use of parking spaces or facilities owned or occupied by such airport.
  2. Motor vehicle moving violations of regulations issued under this section shall be deemed violations of the appropriate equivalent sections of the motor vehicle laws of the Commonwealth and may be prosecuted in the courts having territorial jurisdiction over the physical location of the offense.

Provided, however, that nothing herein contained shall be deemed to limit or restrict the powers of any other governmental authority having jurisdiction over public streets, roads, or ways.

History. Enact. Acts 1976, ch. 300, § 7.

NOTES TO DECISIONS

Cited:

Watkins v. Reed, 557 F. Supp. 278, 1983 U.S. Dist. LEXIS 19485 (E.D. Ky. 1983 ), aff’d, 734 F.2d 17, 1984 U.S. App. LEXIS 14355 (6th Cir. Ky. 1984 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Tower of Babel Revisited: State Action and the 1982 Supreme Court, 10 N. Ky. L. Rev. 305 (1983).

183.886. Impersonation of officer.

No person shall falsely represent himself to be a safety and security officer, agent or employee of a safety and security department of an airport board and in such assumed character, arrest, or detain or search, or question, in any manner the person or property of any person, nor shall any person without the authority of the airport board wear its official uniform, insignia, badge, or identification of the department.

History. Enact. Acts 1976, ch. 300, § 8(1).

183.887. Pointing laser or other light at aircraft operator.

  1. As used in this section, “laser” means any device designed or used to amplify electromagnetic radiation by stimulated emission that emits a beam.
  2. A person shall not knowingly direct at an aircraft any light emitted from a laser device or any other source which is capable of interfering with the vision of a person operating the aircraft.
  3. This section shall not apply to:
    1. An authorized individual in the conduct of research and development or flight test operations conducted by an aircraft manufacturer, the Federal Aviation Administration, or any other person authorized by the Federal Aviation Administration to conduct such research and development or flight test operations; or
    2. Members or elements of the United States Department of Defense or United States Department of Homeland Security acting in an official capacity for the purpose of research, development, operations, testing, or training.

HISTORY: 2015 ch. 114, § 1, effective June 24, 2015.

Penalties

183.990. Penalties.

  1. Any person violating any of the provisions of this chapter with respect to operation of aircraft, or violating the provisions of any rule, regulation, or ordinance adopted under KRS 183.133(6), shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) or imprisoned not more than ninety (90) days or both.
  2. Each violation of the statutes pertaining to the state airport zoning commission or of any order, rule, or regulation promulgated pursuant thereto shall be punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisonment for not more than thirty (30) days or both and each day a violation continues to exist shall constitute a separate offense.
  3. Any person who violates the provisions of KRS 183.886 shall be fined not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or shall be imprisoned in the county jail for not less than ten (10) nor more than ninety (90) days, or both.
  4. Any person who violates the provisions of KRS 183.086 or 183.887(2) shall be guilty of:
    1. A Class A misdemeanor; or
    2. A Class D felony, if the violation causes a significant change of course or a serious disruption to the safe travel of the aircraft that threatens the physical safety of the passengers and crew of the aircraft.

HISTORY: 165-56: amend. Acts 1944, ch. 147, § 12; 1946, ch. 49, § 7; 1958, ch. 153, § 48; 1960, ch. 179, § 82; 1964, ch. 134, § 25; 1976, ch. 300, § 8(2); 1996, ch. 174, § 12, effective July 15, 1996; 2015 ch. 114, § 2, effective June 24, 2015; 2017 ch. 153, § 4, effective June 29, 2017.

Research References and Practice Aids

Kentucky Law Journal.

Moreland, Criminal Jurisdiction of Kentucky Courts: A Tentative Codification, 47 Ky. L.J. 7 (1958).

CHAPTER 184 Public Road Districts

184.010. Public road districts authorized in counties.

Public road districts may be established in counties for the purpose of providing the general public and persons residing upon or owning property adjacent to such roads with all-weather roads, appropriate drainage of said roads and sidewalks on either or both sides of said roads with reasonable maintenance during the existence of the road district.

History. Enact. Acts 1942, ch. 65, § 1; 1952, ch. 11, § 1; 1968, ch. 55, § 1; 1980, ch. 56, § 1, effective July 15, 1980; 2014, ch. 92, § 264, effective January 1, 2015.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Test for Arbitrary Action.
  4. Drainage.
1. Constitutionality.

KRS 184.010 to 184.300 providing for establishment of public road districts affecting only counties containing cities of the first class was not local legislation violative of Const., § 59, where classification rested upon a distinctive and natural reason rather than an arbitrary one. Allison v. Borders, 299 Ky. 806 , 187 S.W.2d 728, 1945 Ky. LEXIS 796 ( Ky. 1945 ) (decision prior to 1968 amendment).

When a law applicable to less than all the counties of the state is valid as a proper and reasonable classification, it is a general law since it applies to all the counties within the classification and the uniformity provided for in Const., § 141 (now repealed) is not destroyed merely because some of the administrative or other duties are to be performed by the county judge (now county judge/executive). Allison v. Borders, 299 Ky. 806 , 187 S.W.2d 728, 1945 Ky. LEXIS 796 ( Ky. 1945 ) (decision prior to 1968 amendment).

Public road districts act did not violate Const., § 51 by failing to mention in the title that the delinquent must pay “the cost of the action, including attorneys’ fees” where it appeared in the body of the act and the costs and fees were related to the subject of enforcing liens against the property of delinquents and the title to the act provided for “levy of assessments against abutting property owners, the creation of lien upon such property for such assessments, . . . . . for suit against delinquent property owners . . . . . ” Daly v. Look, 267 S.W.2d 77, 1954 Ky. LEXIS 827 ( Ky. 1954 ).

2. Construction.

KRS 184.010 to 184.300 is remedial in nature and its construction should be liberal. Poynter v. Worth, 249 S.W.2d 525, 1952 Ky. LEXIS 818 ( Ky. 1952 ).

3. Test for Arbitrary Action.

The test applied by the courts in determining whether the local authorities have acted arbitrarily is whether property assessed for the improvement will be enhanced by the result of the improvement. Louisville Memorial Gardens, Inc. v. Carpenter, 261 S.W.2d 627, 1953 Ky. LEXIS 1029 ( Ky. 1953 ).

4. Drainage.

No provision of public road act requires the proposed district to provide drainage as a prerequisite to its right to construct the road. Wade v. Crowe, 258 S.W.2d 490, 1953 Ky. LEXIS 845 ( Ky. 1953 ).

Cited:

Lynch v. Schuler, 239 S.W.2d 251, 1951 Ky. LEXIS 871 ( Ky. 1951 ); Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ); Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 1960 Ky. LEXIS 324 ( Ky. 1960 ).

184.020. Establishment of public road district — Preparation of map — Estimate of cost.

  1. A public road district may be established in accordance with the procedures of KRS 65.810 to improve any public road (which is neither a county road nor a state road) in the following areas:
    1. Within cities containing a population equal to or greater than three thousand (3,000) but less than twenty thousand (20,000);
    2. Within cities containing a population of less than one thousand (1,000) that are located within counties that contain a consolidated local government or a city with a population equal to or greater than twenty thousand (20,000); or
    3. Within an area that abuts a public road, which is neither a county road nor a state road, that is in an unincorporated area in a county that contains a city with a population equal to or greater than three thousand (3,000).
  2. In addition to the information required to be submitted to the fiscal court pursuant to KRS 65.810 , the sponsors shall prepare or have prepared for them a map of that section of such public road which they desire to have improved. Such map shall show the boundary lines and terminal points of the road desired to be improved and shall set forth on such map the names of the owners of all property and the number of linear feet owned by them abutting upon such road, the location and size of drainage ditches and sidewalks. The sponsors of said road district shall also have estimated for them by an engineer, who must be a private engineer licensed by the Commonwealth of Kentucky, pursuant to KRS Chapter 322, the approximate cost of constructing the improvements desired and reasonable maintenance for the duration of the road district, together with a statement of the approximate cost which shall be borne by each owner of property abutting on the road, determined by the number of linear feet of property owned by each abutting property holder.
  3. For the purposes of this section, the population of a city shall be determined by using data from the most recent federal decennial census.

History. Enact. Acts 1942, ch. 65, § 2; 1952, ch. 11, § 2; 1968, ch. 55, § 2; 1980, ch. 56, § 2, effective July 15, 1980; 1984, ch. 64, § 14, effective July 13, 1984; 2014, ch. 92, § 265, effective January 1, 2015.

NOTES TO DECISIONS

1. Intersection with Another Road.

“Center lines of intersections” clearly indicates that the intersection referred to is such as would not be the mere extended portion of the road described and “other roads” means different roads from mere extended portions of described roads. Clark v. Riehl, 313 Ky. 142 , 230 S.W.2d 626, 1950 Ky. LEXIS 838 ( Ky. 1950 ) (decision prior to 1952 amendment).

This section requiring terminal points on road described to be improved “shall always be center line of intersection with other roads,” mandatorily requires district to commence at the centerline of the junction of the described road and other road pursuing a different course. Clark v. Riehl, 313 Ky. 142 , 230 S.W.2d 626, 1950 Ky. LEXIS 838 ( Ky. 1950 ) (decision prior to 1952 amendment).

The map attached to the petition must show that the terminal points on each road in the district intersects with another road and where the map showed one end of a road did not intersect with the centerline of another road the petition was fatally defective. Lynch v. Schuler, 239 S.W.2d 251, 1951 Ky. LEXIS 871 ( Ky. 1951 ) (decision prior to 1952 amendment).

Where proposed road did not intersect any other road but ran to a dead end this section could not be construed to “cover the entire length of a single road.” Poynter v. Worth, 249 S.W.2d 525, 1952 Ky. LEXIS 818 ( Ky. 1952 ) (decision prior to 1952 amendment).

Opinions of Attorney General.

Since a public road district can only be established by a person or a group of persons owning property abutting upon a public road (which is neither a county road nor a state road) public road districts within a county may not be combined into one big road district involving all of the unincorporated portion of the county. OAG 73-413 .

184.030. What petition to contain. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 65, § 3; 1968, ch. 55, § 3) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

184.040. Examination of submitted plan of service by county road engineer.

When a petition and plan of service have been submitted to the fiscal court as provided in KRS 65.810 and 184.020 the fiscal court shall turn these documents over to the county engineer for his consideration. The county engineer shall, within ten (10) days from his receipt of such documents from the fiscal court, examine said documents, examine the road proposed to be improved, or maintained, study the estimates of the cost and type of surface proposed to be used, or study the estimates of the cost and type of the contemplated maintenance and return to the fiscal court with recommendations of approval or disapproval the documents theretofore delivered to him.

History. Enact. Acts 1942, ch. 65, § 4; 1966, ch. 239, § 158; 1968, ch. 55, § 4; 1984, ch. 64, § 15, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Poynter v. Worth, 249 S.W.2d 525, 1952 Ky. LEXIS 818 ( Ky. 1952 ); Wade v. Crowe, 258 S.W.2d 490, 1953 Ky. LEXIS 845 ( Ky. 1953 ).

184.050. Trial of objections — Appeal. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 65, § 5; 1960, ch. 104, § 14; 1968, ch. 55, § 5; 1976 (1st Ex. Sess.), ch. 14, § 172, effective January 2, 1978; 1978, ch. 384, § 324, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

184.060. Appointment of board of directors — Qualifications — Term — Vacancies — Removal of member.

  1. In the event that a road district is created pursuant to KRS 65.810 and 184.020 , the county judge/executive shall appoint, with the approval of the fiscal court, three (3) persons as members of the road district board of directors, whose duty it shall be to control and manage the affairs of the district. Each director shall be at least twenty-five (25) years of age, shall be an owner of land abutting upon the road to be improved and shall have lived on such land for a period of at least six (6) months prior to his appointment. The members of the first board of directors shall hold their offices, respectively, for two (2), three (3) and four (4) years from the date of their appointment, and thereafter each director shall be appointed for a term of four (4) years. Vacancies resulting from any cause other than expiration of a term of office shall be filled by the county judge/executive and only for the unexpired term.
  2. A member of the board of directors may be removed from office as provided by KRS 65.007 .

History. Enact. Acts 1942, ch. 65, § 6; 1976 (1st Ex. Sess.), ch. 14, § 173, effective January 2, 1978; 1978, ch. 384, § 325, effective June 17, 1978; 1980, ch. 18, § 19, effective July 15, 1980; 1984, ch. 64, § 16, effective July 13, 1984.

184.070. Oath and bond of directors.

  1. Each director, before entering upon his official duties, shall take and subscribe to an oath before the county clerk that he will honestly, faithfully and impartially perform the duties of his office and that he will not be interested directly or indirectly in any contract let for the purpose of carrying out any of the provisions of this chapter. Said oath shall be filed among the minutes of the road district and noted on the minutes of the county judge/executive.
  2. Each director shall give a good and sufficient bond in an amount to be fixed by order entered by the county judge/executive, said bond to be approved of by the county judge/executive and to provide for the faithful performance of his duties and as security for all moneys coming into his hands. The cost of such bonds shall be borne by the road district.

History. Enact. Acts 1942, ch. 65, § 7; 1978, ch. 384, § 326, effective June 17, 1978.

184.080. Powers and duties of board of directors — Officers — Employees — Compensation — Regulations — Approval of accounts and acts of directors — Compliance with KRS 65A.010 to 65A.090 — Dissolution of district.

  1. The board of directors, which is hereby declared to be the governing body of the road district, shall keep a record of its proceedings, shall adopt and have a seal, and shall exercise all powers and manage and control all the affairs and property of the district.
  2. The board of directors shall elect one (1) of its members chairman, one (1) secretary and one (1) treasurer.
  3. The board may employ an attorney and an engineer, who shall serve in such capacities during the pleasure of the board and for such reasonable compensation as may be fixed by the board and approved by order of the county judge/executive.
  4. Each member of the board may receive a salary of not in excess of two hundred dollars ($200) per annum for his services, which salary shall be fixed at the first meeting of said board, and approved of by order of the county judge/executive, and thereafter may be decreased as the duties of the members decrease.
  5. The board may adopt such rules and regulations as are necessary for its proper functioning.
  6. The chairman, secretary and treasurer of the district shall perform such duties as are usually performed by such officers.
  7. The county judge/executive, by method similar to that for approving settlements of fiduciaries, shall approve the accounts and acts of all directors upon death, resignation or at expiration of their term of office, which county judge/executive approval shall relieve the surety upon the bond of such director, the cost of which shall be a charge against the district.
  8. The district board shall comply with the provisions of KRS 65A.010 to 65A.090 .
  9. When the affairs of the district have been completed, the directors and officers shall by verified petition ask the county judge/executive for a dissolution of the district, which petition shall include an accounting of all moneys received and disbursed by the district and shall be referred to the county judge/executive and when approved by the county judge/executive shall release said officers, directors and their sureties, the cost of which shall be a charge against the district.

History. Enact. Acts 1942, ch. 65, § 8; 1952, ch. 11, § 3; 1978, ch. 384, § 327, effective June 17, 1978; 2013, ch. 40, § 63, effective March 21, 2013.

184.090. Meetings of board.

The board of directors shall fix the time and place for regular meetings of the board and may hold such other meetings as are called by the chairman or any two (2) members of the board upon two (2) days’ notice in writing to all members of the board. A majority of the directors shall constitute a quorum, and the concurrence of the majority in any matter within the scope of its duties shall be decisive. All actions taken by the directors shall be by resolution.

History. Enact. Acts 1942, ch. 65, § 9.

184.100. Approval of plans and specifications by board — Preliminary costs.

Upon qualification of the members of the board of directors, the board shall take up with its engineer the plans and specifications proposed for the construction or maintenance of the road, and may make such changes therein as may, within the scope of the improvement or maintenance petition for, appear necessary. The cost of preparation of such plans and specifications and any other reasonable costs borne by the sponsors of the project prior to the organization of the district which are properly proved by vouchers shall be included in the cost of construction of the project and shall be repaid to such sponsors out of moneys collected or received for the construction of such project.

History. Enact. Acts 1942, ch. 65, § 10; 1968, ch. 55, § 6.

184.110. Advertisement for bids for road construction or maintenance — Letting of contract.

Upon the final approval of the plans and specifications, the board of directors shall adopt a resolution approving and accepting said plan, and advertising for bids for the construction or maintenance of the road according to such plans and specifications. The board shall advertise for bids for such work by publication pursuant to KRS Chapter 424. The contract for such work shall be let to the lowest responsible bidder, who shall give bond with approved and adequate security for the faithful performance of the contract. The notice of the letting of the contract shall specify the general nature of the work to be done, the time and date of reception of bids, and the place where detailed information as to the work to be performed can be obtained. All bids shall be opened and read at the time and place specified in the notice, and the board of directors may either accept the lowest and best bid or, in their sound discretion, reject all bids and readvertise.

History. Enact. Acts 1942, ch. 65, § 11; 1966, ch. 239, § 159; 1968, ch. 55, § 7.

184.120. Determination of cost — Assessment against owners.

When a bid has been accepted and the cost of constructing the road improvement or the cost of the maintenance has thus been determined, the board of directors shall prepare a statement of all costs of constructing the project or providing road maintenance (including the cost of organizing the district, preliminary expenses, fees of directors, engineer and attorney, and a sum sufficient to provide for any unforeseen contingencies up to and including the completion of the project, together with a fund adequate to provide for continuing costs of the district which may include reasonable maintenance of the roads, drainage, ditches and sidewalks for a period of ten (10) years) and shall thereupon determine the front-foot cost of constructing the road improvement or the front-foot cost of providing road maintenance. The board of directors shall then assess against each owner of the property abutting upon the road improved or maintained within the limits of the district that proportion of the cost of constructing the entire improvement or that proportion of the cost of providing proper maintenance which his front footage abutting upon the road bears to the total front footage of all properties abutting upon the road within the district. In determining the total front footage intersection shall be included.

History. Enact. Acts 1942, ch. 65, § 12; 1952, ch. 11, § 4; 1968, ch. 55, § 8.

NOTES TO DECISIONS

  1. Easement Not Assessable.
  2. Front Footage.
1. Easement Not Assessable.

This section intends only the assessment of corporeal property as to which there is the attribute of ownership in the sense of the right of occupancy and enjoyment and does not intend assessment of an easement. Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 1960 Ky. LEXIS 324 ( Ky. 1960 ).

2. Front Footage.

The phrase “front footage” merely means the linear number of feet the property abuts on the improvement. Daly v. Look, 267 S.W.2d 77, 1954 Ky. LEXIS 827 ( Ky. 1954 ).

184.130. Lien of assessments.

The assessment made by the board of directors against each owner of property abutting upon the road improvement shall be and become a lien on the property of such owner and shall be prior and superior to all other liens except those of taxes.

History. Enact. Acts 1942, ch. 65, § 13.

NOTES TO DECISIONS

1. Easement Not Subject to Lien.

This section imposes a lien only upon such property as could be assessed, and it follows that if an easement is not assessable property it is not subject to the lien. Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 1960 Ky. LEXIS 324 ( Ky. 1960 ).

184.140. Notice of assessment — Methods of payment.

The board of directors shall notify each property owner in writing of the assessment made against him and shall also cause printed notices setting forth the assessments against each property owner to be posted in at least ten (10) public places along the road to be improved or maintained. The property owner may pay the assessment against his property in cash without interest within thirty (30) days from the date of the notice, or may elect to pay the assessment by paying the assessment in ten (10) equal annual installments, the first of which shall be paid within such thirty (30) days without interest, and an agreement executed to pay the other nine (9) installments annually with interest at the rate or rates or method of determining rates as the board of directors determines, payable annually. The notice of assessment shall state the terms.

History. Enact. Acts 1942, ch. 65, § 14; 1968, ch. 55, § 9; 1996, ch. 274, § 45, effective July 15, 1996.

184.150. Agreements for payment on ten-year plan — When payments due.

  1. Any property owner who desires to exercise the privilege of payment by installment shall, before the expiration of said thirty (30) days, pay in cash one-tenth (1/10) of the assessment against him and enter into an agreement in writing with the road district that, in consideration of such privilege, he will make no objection to any illegality or irregularity in the assessment, levy or imposition of the assessment against his property. Any property owner entering into such an agreement shall be concluded thereby and shall waive any defense which he might otherwise have against the payment of the assessment levied against his property. Said agreement shall be filed and recorded among the records of the board of directors of the road district, and shall be binding upon any successor in title to the property.
  2. After the first payment of one-tenth (1/10) of the assessment shall have been made in cash at the time the property owner elects to pay the balance on the installment plan, the remaining installments shall be due and payable one (1) each year on the anniversary of the last day of the thirty-day (30) period for executing the installment payment agreement, together with interest as herein provided for nine (9) years.

History. Enact. Acts 1942, ch. 65, § 15.

184.160. Entire assessment due in absence of agreement — Interest — Collection.

In all cases where agreements to pay assessments in installments have not been filed within the time limit, the entire amount of the assessment shall be payable in cash. Any assessment not paid within thirty (30) days from the date of notice, shall bear interest at the rate or rates or method of determining rates as the board of directors deems best from the date of the assessment and levy, and shall be collected by suit.

History. Enact. Acts 1942, ch. 65, § 16; 1996, ch. 274, § 46, effective July 15, 1996.

184.170. Execution of agreement by life tenant or person under disability.

If any property against which an assessment has been levied is owned by an infant, by a person adjudged mentally disabled or a life tenant, the agreement herein provided for may be executed by the statutory guardian of such infant or the guardian, conservator or curator of such mentally disabled person, with the same effect as if executed by a person free from disability, or by the life tenant, whose agreement shall be binding upon the owner of the fee.

History. Enact. Acts 1942, ch. 65, § 17; 1982, ch. 141, § 63, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 68 of Acts 1980, ch. 396, which would have taken effect on July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

184.180. Privilege of prepayment.

Any person may, at any interest-payment period after the fifth installment of his assessment has become due and has been paid, pay the entire balance of such assessment against his property with accrued interest to the next succeeding interest period. In the event that an owner who has entered into an installment payment agreement desires to pay his assessment in full before the fifth installment thereof has become due, he may pay the same by paying the face amount of his obligation, plus all installments of interest up to and including the next interest period following the fifth installment.

History. Enact. Acts 1942, ch. 65, § 18.

184.190. Notice of maturity of installments.

It shall be the duty of the board of directors to cause to be mailed to each property owner liable for an assessment, to his last known address, a notice of the amount falling due ten (10) days prior to the date on which any installment of principal becomes due. The failure of such property owner to receive a notice shall neither exempt him from liability for the assessment nor prejudice the collection thereof or the enforcement of the lien therefor.

History. Enact. Acts 1942, ch. 65, § 19.

184.200. Penalty in case of installment default — Acceleration — Enforcement of lien.

If any person liable for any part of said assessment defaults in the payment of any installment thereof or interest thereon for one (1) month after payment becomes due, a penalty of ten percent (10%) of the installment in arrears shall be added thereto, which shall constitute a like lien as the assessment, and thereafter all unpaid installments of the assessment against such person shall, at the option of the district, or of any holder of an apportionment warrant or bond secured thereby, forthwith become due and payable. It shall be the duty of the district, for the use and benefit of the owner or owners of such bonds or apportionment warrants, to institute, in its own name and at its own cost, proper proceedings for the enforcement of such lien, except that the costs of the action, including attorneys’ fees, shall be added to the amount of the delinquent assessment and shall be first payable out of the moneys received through enforcement of the district’s lien. If the district fails to institute such proceedings for thirty (30) days after notice of such default, any owner of a bond or apportionment warrant secured by such lien may, in his own name and on his own behalf and on the behalf of other owners of such bonds or apportionment warrants, institute and prosecute such proceedings in any court of competent jurisdiction.

History. Enact. Acts 1942, ch. 65, § 20.

184.210. Application of money from installment payments, interest and penalties.

It shall be the duty of the district treasurer promptly to apply all moneys paid in on installments of principal or interest and on penalties to the payment of the bonds and coupons or apportionment warrants issued hereunder. If the fund accumulated from the collection of assessments, interest and penalties be more than sufficient to pay all principal and interest due, said treasurer shall refund to each person paying an assessment for the project a proportionate amount of the excess. Failure on the part of the district to collect any payment when due shall create no liability against the district and shall create no liability against the members of the board of directors, except for gross negligence or malfeasance in office.

History. Enact. Acts 1942, ch. 65, § 21.

184.220. Foreclosure of liens — Redemption.

In the event that a property owner fails or refuses to pay his assessment in cash within thirty (30) days or to pay one-tenth (1/10) of his assessment in cash within thirty (30) days and execute an agreement to pay the balance in nine (9) equal annual installments with interest, as aforesaid, or in the event that a property owner fails or refuses to pay any semiannual installment of interest or annual installment of principal due under such agreement when the same becomes due, then the board of directors shall, after making reasonable efforts to collect the same, direct its attorney to file a suit in equity to foreclose the lien of the road district against such delinquent property owner. In all actions to enforce liens, a copy of the resolution of the board of directors authorizing the work to be done and assessing the lien against the property owners, attested by the secretary of said board, shall be filed with the petition and shall constitute prima facie evidence of all facts necessary to be established by the plaintiff in such an action to entitle it to relief. In such actions, the court shall provide in its order confirming any report of sale that any defendant or defendants or anyone claiming through him or them may, within two (2) years from the date of the order confirming a report of sale, redeem the property sold by paying to the purchaser the purchase price, with interest thereon from the day of sale at the rate of ten percent (10%) per annum to the date of payment; in the event that there be no redemption within the time allowed, the order of confirmation shall be final and a deed shall be executed to the purchaser or his assignee.

History. Enact. Acts 1942, ch. 65, § 22.

184.230. Lis pendens notices make liens effective.

At the end of the thirty (30) day period following the notification of all property owners of the assessment against their property, the attorney for the district, upon receiving instructions so to do, shall file in the office of the county clerk a lis pendens notice against each parcel of property the owner of which has entered into an agreement to pay his assessment in installments or who has failed or refused either to pay his assessment in cash or to enter into an agreement, and the lien hereinbefore created shall thereupon be and become effective as against each parcel of property so affected.

History. Enact. Acts 1942, ch. 65, § 23.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lis Pendens, § 312.00.

184.240. Authority to issue apportionment warrants or road district bonds.

In order to obtain funds sufficient to pay for the construction of the proposed improvement, or sufficient to pay for the reasonable maintenance of the road, being the balance required after the receipt of full cash payments and initial installment payments, but not including in such balance payments due from owners who failed or refused to make full cash payments or to enter into installment payment agreements, the board of directors may, in its discretion, provide by resolution for the issuance of interest-bearing apportionment warrants against each parcel of property or may direct the issuance and sale of road district bonds, as hereinafter provided. No bonds shall be issued unless the aggregate amount of installment payments, subsequent to the first cash payment is one thousand dollars ($1000) or more.

History. Enact. Acts 1942, ch. 65, § 24; 1968, ch. 55, § 10.

184.250. Form of apportionment warrants — Sale.

In the event that the board of directors determines to issue apportionment warrants, the warrants shall be issued against each parcel of property against which there is a lien for an unpaid balance of the assessment, shall bear interest at the rate or rates or method of determining rates deemed proper by the board, be payable at least annually, and shall be payable, as to principal, in nine (9) equal installments. The apportionment warrants may be sold at public or private sale at a price or prices determined by the board of directors or to the contractor, who must accept the same in full payment of the assessments which they represent. The apportionment warrants shall be executed by the chairman and the secretary of the board of directors and may be sold either at public or private sale.

History. Enact. Acts 1942, ch. 65, § 25; 1996, ch. 274, § 47, effective July 15, 1996.

184.260. Road improvement bonds — Form — Term — Tax exemptions — Rights of holders — Payment.

  1. In the event that the board of directors determines to issue road improvement bonds, or road district bonds for maintenance purposes, it may pledge the special assessment and liens on the property for the payment of the principal and interest of the bonds and shall apply the proceeds exclusively to the payment of the bonds. The bonds shall bear a date not less than thirty (30) days nor more than sixty (60) days after the date which was the last day for the execution by the property owners of installment payment agreements. The bonds shall be negotiable and payable to bearer, shall provide for the semiannual or more frequent payment of interest, shall bear coupons to provide for the payment of the interest, shall be numbered consecutively, shall be in denominations of one hundred dollars ($100) or its multiple (provided that any odd amount not in multiple of one hundred dollars ($100) may be included in the last bond to mature), shall be divided into nine (9) series as nearly equal as practicable, one (1) series maturing each year, and shall be payable at the office of the treasurer of the road district or at a bank or trust company named in the bonds. The bonds shall have the name of the road for the improvement or maintenance of which they are issued printed or engraved on the bonds, shall state the character and extent of the improvements, or the character and extent of the contemplated maintenance, shall be signed by the chairman and secretary of the board of directors, and the coupons shall be signed by the secretary either personally or by his engraved or lithographed facsimile signature.
  2. It shall not be necessary in the bonds to recite the steps taken for the improvement of the road, maintenance of the road, or in making the assessment of the cost, but it shall be sufficient to make a general reference to the proceedings and to this chapter. The bonds shall be exempt from all taxation by or in the Commonwealth of Kentucky. The bonds shall convey and transfer to the owner of the bonds all lien, right, title, and interest in and to the assessments and liens upon the respective parcels of land abutting upon the improvement. The liens, until released after payment, shall be security for the bonds and coupons until they are paid.
  3. The bonds shall be subject to prepayment and redemption at any interest period which does not occur within four (4) years from the date of the issue of the bonds. The treasurer of the district shall, when funds have accumulated from any special assessment sufficient to redeem in excess of the next series falling due, by lot select from the next succeeding issue falling due, bonds of a par value equal to the excess in the fund arising from the excess collection and shall advertise by publication pursuant to KRS Chapter 424 the designation and numbers of the bond or bonds so drawn to the effect that on the specified date, the bonds will be redeemed at their par value and accrued interest. The bonds specified in the notice shall bear no interest after the date fixed for their redemption, which provision shall be set forth in substance on the bonds.

History. Enact. Acts 1942, ch. 65, § 26; 1966, ch. 239, § 160; 1968, ch. 55, § 11; 1996, ch. 274, § 48, effective July 15, 1996.

184.270. Sale of bonds — Sources of payment.

The bonds shall be sold at public sale to the highest responsible bidder. The sale shall be advertised by publication pursuant to KRS Chapter 424. If no bidder offers a purchase price deemed acceptable by the board of directors for the purchase of the bonds, then the road district shall have the right to turn them over to the contractor in full payment of that portion of the contract price of the improvement or that portion of the contract price of the contemplated maintenance represented by par and accrued interest. The contractor shall accept the bonds and give credit on the contract price for the full face value and accrued interest on the bonds. Any premium realized from the sale of the bonds and any penalties collected on account of the delinquency of any installment payments of assessments shall be added to the bond fund for the payment of the bonds and interest on the bonds. The bonds and interest shall be payable out of funds actually paid to and collected by the road district on account of the improvement assessment in anticipation of which the bonds were issued.

History. Enact. Acts 1942, ch. 65, § 27; 1966, ch. 239, § 161; 1968, ch. 55, § 12; 1996, ch. 274, § 49, effective July 15, 1996.

184.280. Duties and liabilities of treasurer of district — Bond.

The treasurer of the road district shall be charged with the keeping of all moneys collected on account of the special assessment, interest and penalties, and he shall disburse the same only in payment of the construction costs, apportionment warrants or bonds, as the case may be, or for regular expenses of the district. The treasurer shall be bonded in an amount to be fixed by order entered by the county judge/executive and shall be liable upon his official bond for the safe-keeping of the funds of the district.

History. Enact. Acts 1942, ch. 65, § 28; 1978, ch. 384, § 328, effective June 17, 1978.

184.290. Effect of sale of land on other liens.

The sale of any parcel of land for the nonpayment of any special tax or assessment thereon or for any general tax shall not thereby release said parcel of ground from any other special tax or assessment existing thereon unless the same be asserted in the action in which such parcels are sold.

History. Enact. Acts 1942, ch. 65, § 28.

184.300. Parties in action to foreclose lien — Application of proceeds — Pleadings — Purchase at sale by district.

In any action to foreclose its lien brought by the road district or by any bondholder, it shall not be necessary to make the other bondholders parties. The proceeds of the suit shall be paid to the treasurer of the district and by him applied to the redemption of matured bonds as if the payment had been made without suit. In such a suit, an allegation in substance that the improvement of the road had been duly made and completed and such assessment levied therefor and bonds for unpaid portion of the cost had been issued pursuant to resolutions and proceedings duly adopted and had by the board of directors in accordance with law, shall be a sufficient pleading of such resolutions and proceedings without setting the same out in full or making further reference thereto. The road district is hereby authorized to bid an amount not in excess of its lien and costs for any property sold in such suit.

History. Enact. Acts 1942, ch. 65, § 28.