[1993/oagheade.htm]

OAG 93-79

November 17, 1993

Don C. Kelly

Secretary of Transportation

Frankfort, Kentucky 40601

Dear Mr. Kelly:

You have asked for a clarification of OAG 93-24. Specifically, you ask whether the Department of Highways may install and maintain culvert pipes as provided in 603 KAR 1:020. We conclude that the answer is yes, and we overrule OAG 93-24.

In OAG 93-24, we addressed the question whether a county may install a culvert on private property adjoining a county road. Under the practice that was described to us, the property owner who desired access to the road would pay for the pipe, and the county highway department would install the culvert without charge to the landowner. We said that such a practice is illegal because the installation of the culvert is a private purpose, not a public one, and the county cannot use public funds for a private purpose. We said that the county's interest in preserving the structural integrity of the road could be satisfied by the adoption of an ordinance specifying construction standards that the landowner must meet in installing a culvert.

Upon further reflection, assisted by the receipt of information from various affected parties, we conclude that our view in OAG 93-24 was too restrictive. While the adoption of construction standards would undoubtedly go far in protecting the integrity of roads, it does not follow that such standards alone provide full protection to the county's investment in its road system. If construction standards are adopted, then the county could face the expense of employing an inspector to insure that the culvert installation meets the specifications. If an installation does not meet the construction standards, and the landowner is unable or unwilling to remedy the problem, then the county could face the expense of removing the faulty installation and correcting any damage to the road. Faced with the prospect of these and possibly other expenses, we cannot say that it would be unreasonable for the county to decide that a more economical or more effective alternative is to perform the installation work itself.

KRS 179.380(1) states, “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.” We construe this provision as obligating the landowner or tenant to construct and maintain approaches to public roads in the absence of such construction or maintenance by the state or county. We do not construe this provision as forbidding the state or county 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.

We therefore overrule OAG 93-24.

Since a county may install culverts as part of a uniform policy regarding culvert installation along county roads, it follows that the same is true regarding the state's installation of culverts along state highways.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General