Views from the Bench – A Judge’s Duty to Publish Findings of Fact By Retired Judge Stan Billingsley

A  JUDGE’S  DUTY TO PUBLISH  FINDINGS OF FACT.

 

By Judge Stan Billingsley (Ret.)

 

When a litigant obtains a judgement from the court, they sometimes find that the court has failed to support its ruling with references to relevant law.  If the litigant has reason to question the ruling of the Court on an issue then they can file a Motion for a Finding of Fact.

 

A typical situation is where the judge has made a ruling which really doesn’t explain or support the ruling with law.  The litigant of course has the right to appeal the decision, but the appellate  court may quickly dismiss the appeal if the record does not reveal a basis for a claim of improper finding by the court.

 

The litigant who questions the trial court’s finding may avoid an early dismissal by moving the trial court for a Findings of Fact.  Further the litigant may avoid years of appeal procedures if they timely file a Motion for A Finding of Fact.  The litigant by filing such a motion makes the trial court disclose the legal arguments.

 

Any ruling that  fails to explain the law supporting the ruling, cries out for the litigant to consider moving the trial judge to demand that the trial court go back and explain the basis for its  incomplete ruling.

 

If the litigant has troubling issues unanswered, then they should move the court issue a Finding of Fact. This must be done before a formal appeal is filed.  The Motion for a Finding of Fact is much easier to prepare then a formal appeal.  The resolution of the Finding of Fact motion may take a month or two, and a formal appeal can take two or three years.

 

CR 52.04:

 

The basic rules regarding Findings of Fact are found in the Civil Rules of Procedure  under Chapter 52.

 

Kentucky Rules of Civil Procedure (CR) Rule  52.04

 

Failure to make finding on essential issue of fact; necessity for request

Currentness

 

“A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.”

 

(Current with amendments received through May 1, 2017)

 

 

CR 52.01:

 

Kentucky Rules of Civil Procedure (CR) Rule 52.01

 

CR 52.01 WHEN REQUIRED; EFFECT

Currentness

 

“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.

 

Requests for findings are not necessary for purposes of review except as provided in Rule 52.04.

 

Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

 

(Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02.)”

Credits

HISTORY: Amended by Order 2012-10, eff. 1-1-13; prior amendments eff. 3-1-74, eff. 4-1-63; adopted eff. 7-1-53   Rules Civ. Proc., Rule 52.01, KY ST RCP Rule 52.01

Current with amendments received through May 1, 2017

 

 

CR 52.02  – TIME  FOR FILING A MOTION FOR A FINDING OF FACT

CR 52.02 Amendment

Currentness

 

Not later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.

Credits

HISTORY: Amended eff. 4-1-63; adopted eff. 7-1-53

Rules Civ. Proc., Rule 52.02, KY ST RCP Rule 52.02

Current with amendments received through May 1, 2017

 

 

 CASE LAW RE: FINDING OF FACT

Anderson v. Johnson, Ky S. Ct.,

Specific Findings of Fact

No. 2010-SC-000646-DGE

 

“The Supreme Court declined to follow Hollon v. Hollon, 623 S.W.2d 898 (Ky. 1981).  Because it misstates what the statutes require and does not adequately address the effect of CR 52 in its entirety, Hollon is overruled.

When the court omits a finding essential to the judgment, CR 52.04 requires a litigant to make a written request or motion to include a fact completing a judgment.

Although CR 52 embodies a burden on the court and the litigant, the court bears the broader burden because it has an express duty to make necessary findings of fact and conclusions of law.

CR 52.01 creates a general duty for the Trial Court to find facts and CR 52.04 applies only after the court has complied with its general duty.

In the case at bar, the court’s order included no findings of fact to support the conclusion   , a violation of CR 52.01.  CR 52.04 is not involved here because the court made no findings, rather than good-faith but incomplete findings.

Prior decisions have indicated that Trial Courts do not need to make specific findings of fact and separate conclusions of law on modification motions.  When a motion results in a hearing dealing with substantive matters, findings of fact are required before a conclusion of law can be made. “.

“…This case is remanded to the Franklin Circuit Family Court to make specific findings of fact and separate conclusions of law consistent with this opinion, followed by an appropriate judgment.”

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SEXUAL OFFENDERS REGISTRATION

 

SEXUAL OFFENDERS REGISTRATION
************************
Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky. 02/21/2002) No. 1999-CA-000703-MR (Ky.App. 07/07/2000) – The leading case interpreting Chapter l7 is presented here in full. Click on headings to jump to that topic within the decision.
Commonwealth Of Kentucky Court Of Appeals
No. 1999-CA-000703-MR
July 7, 2000
A.        THE 1994 ACT
B.        THE 1998 ACT
A.        DOUBLE JEOPARDY
B.        EX POST FACTO LAWS
WILLIAM KEITH HYATT, JR., APPELLANT
V.
COMMONWEALTH OF KENTUCKY, APPELLEE
APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
INDICTMENT  NO. 92-CR-00024
Brief and Oral Argument for Appellant: Carol R. Camp Assistant Public Advocate Frankfort, Kentucky Brief for Appellee: Albert B. Chandler III Attorney General Anitria M. Franklin Assistant Attorney General Frankfort, Kentucky Oral Argument For Appellee: Anitria M. Franklin
Before: Dyche, Emberton and Huddleston, Judges.
The opinion of the court was delivered by: Huddleston, Judge
TO BE PUBLISHED
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
William Keith Hyatt, Jr. appeals from an Anderson Circuit Court order classifying him as a high risk sex offender pursuant to Kentucky Revised Statute (KRS) 17.570. The issues presented are: (1) whether Kentucky’s sex offender registration law, KRS 17.500-.991, violates the United States Constitution and Kentucky Constitution because the law exposes Hyatt to double jeopardy; (2) whether the sex offender registration law is an ex post facto law; (3) whether Hyatt has a constitutionally protected privacy interest in the disclosure of personal information under the United States Constitution and Kentucky Constitution and is thus entitled to procedural due process; and (4) whether the trial court violated Hyatt’s due process rights by not providing the prerelease sex offender risk assessment to his counsel until the morning of the hearing, by failing to have the person who completed the risk assessment attend the hearing, by not requiring the victim to testify at the hearing, and by not allowing Hyatt to call expert witnesses to refute the risk assessment report’s conclusions.
I. FACTS AND PROCEDURAL HISTORY
Over a period of years, Hyatt sexually abused his younger sister. In October or November 1990, Hyatt, who was apparently intoxicated, threw his thirteen-year-old sister onto a couch in their parents’ home and fondled her vaginal area and breasts. The victim managed to escape and fled to the kitchen. Hyatt followed and, while holding a knife to the victim’s throat, threatened to kill her if she told anyone.
In April 1991, Lawrenceburg Social Services became aware of the abuse and referred the allegation to the Kentucky State Police. Hyatt was subsequently arrested and charged with first-degree sexual abuse. On July 18, a grand jury charged Hyatt in an indictment with one count of first-degree sexual abuse. On October 8, Hyatt pled guilty, and the circuit court sentenced him to imprisonment for one year. The sentence was suspended and Hyatt was placed on probation for three years.
In 1992, Hyatt’s probation was revoked for various violations.
At some point after Hyatt had pled guilty to first-degree abuse, the victim divulged additional details about the abuse. According to the victim, Hyatt had also forced her to perform oral sex on him and forced her to have sexual intercourse. Hyatt was then charged in an indictment with first-degree rape and first-degree sodomy. On January 11, 1993, Hyatt pled guilty to amended charges of second-degree rape and second-degree sodomy. He was sentenced to imprisonment for five years on each count to be served consecutively.
On January 11, 1999, Hyatt was ordered to undergo a sex offender assessment pursuant to KRS 17.570. Hyatt requested assistance of counsel at the hearing and sought to appear in person. On the morning of the hearing, the prerelease sex offender risk assessment conducted by Dr. Dennis E. Wagner, a licensed psychologist, arrived by facsimile. The Commonwealth did not enter the original into evidence at the hearing, nor was Dr. Wagner present to testify. The court admitted the report, and Hyatt did not present any evidence to counter the report’s conclusions. Thus, relying exclusively on the report, the court classified Hyatt as a high risk sex offender pursuant to KRS 17.550. *fn1 This appeal followed. *fn2
II. LEGISLATIVE HISTORY
In response to public outrage after the abduction and sexual abuse of children, a number of states across this country attempted to find ways to protect children. In particular, legislators expressed concern for the high rate of recidivism by the perpetrators of sex crimes. The State of New Jersey gained the national spotlight after it adopted a sex offender law, which was named “Megan’s Law” after one of the victims of a sex crime. *fn3
In 1994, Congress adopted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program to encourage states to adopt sex offender registration laws. *fn4 If a state failed to adopt a version of Megan’s Law with certain provisions, Congress would withhold ten percent of funds that the state would ordinarily receive under 42 United States Code (U.S.C.) § 3756, the Omnibus Crime Control and Safe Streets Act of 1968. *fn5
A. THE 1994 ACT
In 1994, the General Assembly adopted Kentucky’s first version of Megan’s Law. The act, codified at KRS 17.500-.540, required persons to register in certain circumstances after committing a sex crime . A “sex crime” was defined under the 1994 Act, and is still defined, as “a felony offense defined in KRS Chapter 510, KRS 530.020, 530.064, or 531.310, a felony attempt to commit a sex crime, or similar offenses in another jurisdiction.” *fn6 These crimes include all degrees of rape, sodomy and sexual abuse; incest; unlawful transaction with a minor in the first degree; and the use of a minor in a sexual performance.
Under the 1994 Act, an actor who committed a sex crime was required to register beginning January 1, 1995, if the actor was:
[A] person eighteen (18) years of age or older at the time of the offense who is released on probation, shock probation, conditional discharge by the court, parole, or a final discharge from a penal institution for committing or attempting to commit a sex crime shall, within fourteen (14) days after his release, register with the local probation and parole office in the county in which he resides. *fn7
The law also required the jail, prison or other institution to inform the sex offender prior to discharge of that person’s duty to register, have the prisoner read and sign a form acknowledging awareness of the duty to register and have the prisoner complete the necessary registration form. *fn8 The law also mandated that courts inform a person found guilty of sex crimes by a guilty plea or jury verdict of his duty to register, have the individual sign an acknowledgment of such responsibilities and have the person complete the registration form. *fn9 The act also contained provisions for the registration of sex offenders convicted in other states who moved to Kentucky prior to the expiration of the other jurisdiction’s registration period. *fn10
Under the 1994 Act, sex offenders were required to register “for a period of ten (10) years following their discharge from confinement or ten (10) years following their maximum discharge date on probation, shock probation, conditional discharge, parole, or other form of early release, whichever period is greater.” *fn11 If a sex offender failed to register with local authorities, he could be convicted of committing a Class A misdemeanor, for providing “false, misleading, or incomplete information.” *fn12 The provisions of the law became effective on July 15, 1994, and applied to any person who pled guilty or was convicted of a sex crime after that date. *fn13
B. THE 1998 ACT
In 1998, the General Assembly amended the sex offender registration laws and imposed additional requirements. The amendment required the classification of sex offenders based on their potential for recidivism and public notification to varying degrees depending on the sex offender’s classification.
The 1998 Act defines a “sex offender” as “a person who has been convicted of a sex crime as defined in KRS 17.500 who suffers from a mental or behavioral abnormality or personality disorder characterized by a pattern or repetitive, compulsive behavior that makes the offender a threat to public safety.” *fn14 A major departure from the 1994 Act is that the 1998 law creates a process of classifying the potential for recidivism by sex offenders.
KRS 17.550(1)-(3) divides sex offenders into three classes based on their potential for recidivism. A “low risk sex offender” is a sex offender who has “a low risk of recommitting a sex crime” as determined by the Sex Offender Risk Assessment Advisory Board’s criteria. *fn15 A “moderate risk sex offender” is a sex offender who has a “moderate risk of recommitting a sex crime” according to Board’s criteria. *fn16 “[L]ow or moderate risk sex offenders shall remain registered for a period of ten (10) years following their discharge from confinement or ten (10) years following their maximum discharge date on probation, shock probation, conditional discharge, parole, or other form of early release, whichever period is greater.” *fn17 If the sex offender is incarcerated during the registration period for committing another offense or due to a violation of the terms of his conditional discharge, parole or probation, the registration is tolled during the period of imprisonment. *fn18
As part of the process of creating a recidivism risk assessment program, the law created a Sex Offender Risk Assessment Advisory Board. *fn19 To classify sex offenders, the law empowered the Board to certify providers to conduct the assessments. *fn20 Under KRS 17.554(2):
The [B]oard shall develop a risk assessment procedure that shall be used by certified providers in assessing the risk of recommitting a sex crime by a sex offender and the threat posed to public safety. The procedure shall be based upon, but not limited to the following factors:
(a) Criminal history;
(b) Nature of the offense;
(c) Conditions of release that minimize risk;
(d) Physical conditions that minimize risk;
(e) Psychological or psychiatric profiles;
(f) Recent behavior that indicates an increased risk of recommitting a sex crime;
(g) Recent threats or gestures against persons or expressions of an intent to commit additional offenses; and
(h) Review of the victim impact statement.
A certified provider then conducts a risk assessment based on the criteria set forth in the law and the procedures established by the Board.
KRS 17.570(1) provides that:
Upon conviction of a “sex crime” as defined in KRS 17.500 and within sixty (60) calendar days prior to the discharge, release, or parole of a sex offender, the sentencing court shall order a sex offender risk assessment by a certified provider for the following purposes:
(a) To determine whether the offender should be classified as a high, moderate, or low risk sex offender;
(b) To designate the length of time a sex offender shall register pursuant to KRS 17.500 to 17.540; and
(c) To designate the type of community notification that shall be provided upon the release of the sex offender pursuant to KRS 17.500 to 17.540.
After the risk assessment has been completed, the circuit court must hold a hearing and “review the recommendations of the certified provider along with any statement by a victim or victims and any materials submitted by the sex offender.” *fn21 The Kentucky Rules of Criminal Procedure (RCr) apply, and the sex offender has the right to attend the hearing and be heard. *fn22 The circuit court must inform the sex offender of the right to have appointed counsel. *fn23 After the hearing, the circuit court must make findings of fact and conclusions of law in classifying the sex offender’s risk of recidivism, which can then be appealed. *fn24 When the sex offender is released from incarceration, the court or official in charge of the institution must forward the risk determination to the sheriff of the county of the sex offender’s residence. *fn25 If the sex offender has the ability, the court can require the sex offender to pay the cost of the hearing. *fn26
A “high risk sex offender” is a sex offender who has “a high risk of recommitting a sex crime” as classified by the Board. *fn27 In addition, an offender who meets the definition of “sexually violent predator” under 42 U.S.C. § 14071(a)(3)(C) may also be considered a high risk sex offender under KRS 17.550(3). *fn28 A high risk sex offender must register for life unless reclassified. *fn29 However, a high risk sex offender can petition for relief from the sentencing court by filing a petition ten years or more “after the date of discharge from probation, parole, or release from incarceration, whichever is most recent.” *fn30 Following an adverse decision on the first petition, the sex offender can repetition for relief every five years thereafter. *fn31 Prior to ruling on the petition, the sentencing court will order an updated risk assessment from a certified provider and then follow with a hearing pursuant to KRS 17.570. *fn32
An important differentiation from the 1994 Act is who can have access to sex offender registry information and to what extent. The information that the sex offender must provide to the registry includes:
[N]ame, Social Security number, age, race, sex, date of birth, height, weight, hair and eye color, aliases used, residence, vehicle registration data, a brief description of the crime or crimes committed, and other information the cabinet determines, by administrative regulation, may be useful in the identification of sex offenders. *fn33
The information is then made available, in varying degrees, to groups according to risk classification. *fn34 If the sex offender moves, it is the sex offender’s responsibility to complete a registry update within ten days of the move. *fn35 Failing to comply with the registration requirements or knowingly providing “false, misleading, or incomplete information” is a Class A misdemeanor. *fn36
Under the 1998 Act, KRS 17.510-.520, as amended, KRS 17.550-.991 “appl[ies] to persons individually sentenced or incarcerated after the effective date of this Act [(July 15, 1998)].” *fn37 However, KRS 17.520, 17.552, 17.570-.578, and 17.991 did not become effective until January 11, 1999. *fn38
III. WHETHER THE APPLICATION OF KRS 17.500-.991 TO HYATT VIOLATES THE CONSTITUTIONAL PROHIBITIONS AGAINST DOUBLE JEOPARDY AND EX POST FACTO LAWS
Hyatt argues that Kentucky’s sex offender registration statutes have various constitutional flaws. In particular, Hyatt claims that these statutes expose him to double jeopardy and are ex post facto laws.
A. DOUBLE JEOPARDY
The Fifth Amendment to the United States Constitution, in relevant part, provides that: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” The United States Supreme Court has determined that the Fifth Amendment is applicable to the states by way of the Fourteenth Amendment. *fn39 Section 13 of the Kentucky Constitution also provides that “[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb . . . .”
In Hourigan v. Commonwealth, *fn40 the Kentucky Supreme Court addressed a double jeopardy claim. The Court stated that the double jeopardy clauses of the United States Constitution and the Kentucky Constitution “protect a criminal defendant from three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” *fn41 Similarly, the U.S. Supreme Court in Hudson v. United States *fn42 noted:
The Double Jeopardy Clause provides that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could, “`in common parlance,'” be described as punishment. The Clause protects only against the imposition of multiple criminal punishments for the same offense, . . . and then only when such occurs in successive proceedings. *fn43
In addressing whether a law exposes a defendant to double jeopardy because it imposes additional punishment, the Court has established a two-part test:
A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Even in those cases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty.” *fn44
Applying the first part of the analysis to the present case, we must attempt to ascertain the purpose of KRS 17.500-.991. The General Assembly does not maintain detailed records of its debates or its committees hearings. Furthermore, the preamble of the adopting act is virtually silent on the legislation’s purpose. *fn45 Thus, we must rely on the plain language and clear intent of the statutes. *fn46
We do not find that the statutes serve anything but a regulatory purpose. The sex offender registration statutes are codified in Chapter 17 of KRS, a chapter dealing with public safety. This suggests that the statutes serve a regulatory purpose, but does not conclusively resolve this question.
The statutes can be grouped according to their purpose. KRS 17.552-.568 establish the Board, outline its role in the registration of sex offenders and create the requirements for the certification of professionals who conduct risk assessments. As discussed, the Board is responsible for creating procedures for conducting assessments. KRS 17.554(2), for example, directs the Board to “develop a risk assessment procedure to be used by certified providers in assessing the risk of recommitting a sex crime by a sex offender and the threat posed to public safety.” *fn47 The statute also expressly outlines the factors to be utilized in the assessment. None of the factors suggest a punitive purpose, and the factors are an indication that the registration serves a regulatory function.
Other statutes – KRS 17.510-.520, KRS 17.570 and KRS 15.574 -deal primarily with the process of classifying and registering sex offenders. Neither these statutes nor, in fact, any of the challenged statutes use the word “punitive” or “punishment.” These statutes merely direct the sentencing court to order a risk assessment for the criminal prior to release. Based on that assessment and the hearing on the assessment, the circuit court then classifies the prisoner’s risk of recidivism, which affects the information to be provided to the registry, the length of registration and who is entitled to the registry information.
KRS 17.530 and KRS 17.572 address the dissemination of the registration information to law enforcement and the public. Based on the classification of the criminal, the statutes allow the dissemination of varying amounts of personal information. KRS 17.510 even provides a penalty for the misuse of registry information.
In light of the statutory scheme, we cannot say that the statutes punish prisoners twice. Rather, the statutes create a mechanism for protecting public welfare and safety by monitoring the location of sex offenders and providing information to law enforcement officials and the public.
Although we have determined that the language of the statutes does not indicate a punitive purpose, we must then determine whether the statutes do, in actuality, punish a criminal twice for the same crime. To apply the second part of the analysis, the U.S. Supreme Court in Kennedy v. Mendoza-Martinez *fn48 set out factors to consider in determining whether a law imposes a second punishment: (1) “[w]hether the sanction involves an affirmative disability or restraint;” (2) “whether it has historically been regarded as a punishment;” (3) “whether it comes into play only on a finding of scienter;” (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence;” (5) “whether the behavior to which it applies is already a crime;” (6) “whether an alternative purpose to which it may rationally be connected is assignable for it;” and (7) “whether it appears excessive in relation to the alternative purpose assigned . . . .” *fn49 Commenting on the application of these factors, the Court, in United States v. Ward, *fn50 said that “[t]his list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of [whether a law is punitive] . . . .” *fn51 If these factors are applied, “[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute, [they] must be considered in relation to the statute on its face.” *fn52
Applying the first Kennedy factor, we must determine whether these statues are sanctions that involve “an affirmative disability or restraint.” In answering this question, the U.S. Supreme Court in Hudson concluded that the indefinite barring of someone from the banking industry did not arise to the level of affirmative disability or restraint. *fn53
In this case, Hyatt can still seek employment and live in the location of his choice. However, he must notify the appropriate officials of his location by updating his registry information pursuant to KRS 17.510(10). We do not believe that this arises to the level of affirmative disability or restraint.
Under the second Kennedy factor, we must determine whether this sanction has traditionally been viewed as punishment. Traditional forms of punishment include incarceration, incapacitation and rehabilitation.
The laws in question do not impose restrictions on sex offenders that can be equated with traditional forms of incarceration or incapacitation. The registry laws do not force sex offenders to conform their conduct. The purpose of the sex offender registration laws is to protect the public welfare and safety by notifying the public of the location of sex offenders and, possibly, other personal information.
The dissemination of information has not been considered a traditional form of punishment. As the United States Court of Appeals for the Sixth Circuit noted in Cutshall v. Sundquist *fn54 in applying the second Kennedy factor to Tennessee’s sex offender registration statutes:
We are mindful of the fact that shaming punishments, such as banishment and pillory, have historically been used to punish criminals. However, these practices involved more than the mere dissemination of information. Moreover, the possibility of a shaming effect from disclosure of registry information is certainly not the clearest of proof necessary to overcome the legislative intent that the Act serve regulatory and not punitive purposes. Dissemination of information is fundamentally different from traditional forms of punishment . . . . *fn55
Thus, we find that this Kennedy factor has not been met.
In addition, we must determine whether the provisions of the laws are implicated only by a showing of scienter under the third Kennedy factor. Scienter is defined as “knowingly.” *fn56
The sex offender registration statutes apply to any criminal who was convicted of committing “a felony offense defined in KRS Chapter 510, KRS 530.020, 530.064, or 531.310, a felony attempt to commit a sex crime, or similar offenses in another jurisdiction.” *fn57 The registration statutes do not consider the state of mind of the criminal in committing the act. Instead, the statutes apply to all persons convicted of a sex crime. The statutes then require the sentencing court to direct a certified provider to assess a sex offender’s potential for recidivism prior to release, probation, etc. The circuit court conducts a hearing on the risk assessment results and classifies the sex offenders. *fn58 Thus, no finding of scienter is required in forcing a sex offender to register.
Next, we must determine if the statutes further the traditional aims of punishment, namely retribution and deterrence. It would be intellectually dishonest to argue that the statutes do not serve any deterrent function. If a sex offender knows that law enforcement officials are aware of the location of his residence and place of employment, the sex offender may be less likely to commit another sex crime. However, as the U.S. Supreme Court observed in Hudson, “[t]o hold that the mere presence of a deterrent purpose renders such sanctions `criminal’ for double jeopardy purposes would severely undermine the Government’s ability to engage in effective regulation . . . .” *fn59 In addition, as the United States Court of Appeals for the Second Circuit noted in Doe v. Pataki, *fn60 “[e]ven if the [sex offender registration law] advances some goals traditionally associated with the criminal law, it primarily `serve[s] important non-punitive goals’ of protecting the public from potential dangers and facilitating future law enforcement efforts.” *fn61  While the statutes do serve to deter recidivism, like the Pataki court, we do not believe this factor alone is enough to warrant declaring the statutes unconstitutional.
Fifth, we must consider whether the statutes apply to acts which are already crimes under Kentucky law. A sex offender is a criminal convicted of a sex crime under KRS Chapter 510, KRS 530.020, 530.064, 531.310, a felony attempt to commit a sex crime or similar offenses in another jurisdiction. The sex offender registration statutes only apply to individuals convicted of a sex crime. Thus, it cannot be denied that the sex offender registration statutes only apply to convicted sex offenders.
However, we do not believe this fact makes the registration statutes punitive for double jeopardy purposes. In Herbert v. Billy, *fn62 the U.S. Court of Appeals for the Sixth Circuit considered a constitutional challenge to convictions under Ohio law when the appellants had their drivers’ licenses suspended and were subsequently convicted of driving under the influence. The appellants argued that these laws exposed them to Double Jeopardy under the Fifth Amendment of the United States Constitution. In upholding the constitutionality of the statutes, the Court found that the suspension statute was not punitive.
To hold otherwise would undermine the state’s ability to effectively regulate its highways. In similar circumstances, the Hudson Court said that a finding of double jeopardy “would severely undermine the Government’s ability to engage in effective regulation of institutions such as banks.” *fn63
Consistent with the holding in that case, we do not believe that the registration requirements impose any additional punishment on Hyatt. To hold otherwise would severely undermine the Commonwealth’s interest in public welfare and safety due to the high rate of recidivism of sex offenders.
Finally, the sixth and seventh Kennedy factors require us to determine whether the registration laws have a remedial purpose and whether the laws are excessive compared to the remedial purpose. We conclude that the laws do not have such a purpose and are not excessive.
Kentucky sex offender registrations laws both protect the public and aid law enforcement in monitoring sex offenders. Congress and many states have considered the heinousness of sex crimes and their impact on children. We recognize that the registration laws do impose at least some burden on sex offenders. In his brief, Hyatt asserts that:
Being designated as a high risk sex offender has also caused Mr. Hyatt considerable personal hardship. Two newspaper articles have been published about his release. He has been unable to find stable employment. An attempt was made to involuntarily commit him to Eastern State Hospital. He is currently incarcerated in the Franklin County jail accused of stealing a car. He has received threatening letters from the families of some women with whom he allegedly corresponded while in prison. As a direct result of his high risk designation, Mr. Hyatt has had affirmative disabilities and restraints imposed upon him from four different sources: the Anderson Circuit Court, the statute itself, his family, and his local community.
As Hyatt himself acknowledges, many of the burdens of which Hyatt complains are not a result of the statutes but from the potential abuse by the public of the information contained in the sex offender registry.
As the Sixth Circuit Court of Appeals commented in upholding Tennessee’s sex offender registration laws, “[g]iven the gravity of the state’s interest in protecting the public from recidivist sex offenders, and the small burdens imposed on registrants, we cannot say that the requirements of the Act exceed its remedial purpose.” *fn64 The Court’s words are equally true in this case. While Hyatt must register for life – subject to his right to petition for reclassification pursuant to KRS 17.578 – this burden is not unduly onerous compared to the Commonwealth’s interest in protecting the public.
As did the circuit court, we reject Hyatt’s allegation that the statutes are unconstitutional because they impose an additional punishment. Thus, we conclude that Kentucky’s sex offender registration laws do not expose individuals to double jeopardy when applied to a criminal who has been convicted of committing a sex crime.
 
B. EX POST FACTO LAWS
The United States Constitution prohibits the enactment of ex post facto laws by states. *fn65 Similarly, Section 19 of the Kentucky Constitution provides that “[n]o ex post facto law . . . shall be enacted.”
In addressing an allegation that a law was ex post facto, the U.S. Supreme Court said in Weaver v. Graham *fn66 that “the ex post facto prohibition . . . forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” *fn67 We have stated that “two elements must be present for a law to be considered ex post facto: (1) `it must apply to events occurring before its enactment,’ and (2) `it must disadvantage the offender.'” *fn68
Applying the first element to this case, there is no question but that the sex offender registration statutes are being applied retroactively. Hyatt committed the crimes to which he pled guilty prior to 1991. The sex offender registration statutes did not become effective until 1994. Thus, we conclude that the first element has been met.
We must now focus on whether Hyatt has been disadvantaged by the application of the statutes. In answering this question, we must consider whether the statutes are punitive or regulatory.
Hyatt “bears the `heavy burden’ of overcoming the regulatory or remedial purpose served by notification, a burden that may be sustained only by the `clearest proof’ that notification is `so punitive in form and effect’ as to render it punitive despite [a] [] prospective, regulatory intent.” *fn69 In Kansas v. Hendricks, *fn70 the U.S. Supreme Court applied many of the same Kennedy factors in determining whether a statute was an ex post facto law. In the same manner, we will apply the Kennedy factors in this case that were articulated earlier. *fn71
In light of our previous analysis, we conclude that Kentucky sex offender registration statutes are not intended to punish sex offenders. Thus, the laws, KRS 17.500-.991, do not impose additional punishment on Hyatt and are not ex post facto laws under the United States Constitution or Kentucky Constitution.
IV. JURISDICTION
Hyatt argues that the circuit court lacked subject matter jurisdiction because the court scheduled the hearing prior to the effective date of KRS 17.570, which requires the hearing. Although this issue was not raised below, Hyatt believes that it can be raised for the first time on appeal in light of the decision in Commonwealth Health Corp. v. Croslin, *fn72 where the Supreme Court noted that “defects in subject matter jurisdiction may be raised by the parties or the court at any time and cannot be waived.” *fn73 We agree that we can address Hyatt’s challenge to the subject matter jurisdiction of the circuit court.
KRS 17.570(1) directs the sentencing court to order a risk assessment sixty days prior to the sex offender’s release from incarceration. A certified provider conducts the assessment and sends a report to the court. In this case, the court ordered the assessment on January 11, 1999. However, KRS 17.570 did not become effective until January 15.
The circuit court did not classify Hyatt as a sex offender prior to the effective date of the law, nor did Dr. Wagner conduct his assessment prior to that date. Rather, the circuit court merely ordered that the evaluation take place. We believe that the January 11 order providing for the evaluation did not invalidate the court’s subsequent classification of Hyatt as a sex offender.
V. DUE PROCESS
Hyatt also argues that the circuit court violated his due process rights by: (1) not providing a copy of the risk assessment to him or his counsel until the morning of the hearing; (2) not requiring Dr. Wagner, the certified provider, to authenticate the report or submit to cross-examination regarding its contents; (3) not requiring the victim to testify; and (4) not allowing Hyatt to present expert testimony to refute Dr. Wagner’s recommendation that Hyatt should be classified as a high risk sex offender. Because we agree with some of Hyatt’s arguments, we reverse and remand this case for another risk assessment hearing.
A. DUE PROCESS RIGHTS IMPLICATED BY RIGHT OF PRIVACY
Hyatt avers that the release of personal information contained in the sex offender registry violates his right of privacy under the United States Constitution. Even if this right is not protected in these circumstances under the U.S. Constitution, Hyatt argues in the alternative that Kentucky has recognized a more expansive right of privacy that applies in this case, and he draws our attention to the Kentucky Supreme Court’s decision in Commonwealth v. Wasson. *fn74 Because he has a privacy interest in the release of personal information, Hyatt insists he was entitled to procedural due process during the risk assessment hearing.
Both the federal and state constitutions guarantee due process of law. *fn75 In appraising claims for violation of procedural due process, the U.S. Supreme Court has utilized a two-part analysis: (1) “whether the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of `life, liberty or property’;” and (2) “if protected interests are implicated, . . . then . . . what procedures constitute `due process of law.'” *fn76
Applying that analysis to the case sub judice, we must examine the interest asserted by Hyatt – his personal right of privacy. While not an enumerated right in the U.S. Constitution, the Supreme Court has interpreted the Constitution to grant that right in limited areas. As the Court said in Paul v. Davis: *fn77
 [P]ersonal rights found in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty” . . . . The activities detailed as being within this definitions were . . . matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct. *fn78
In Whalen v. Roe, *fn79 the Supreme Court classified privacy interests into two categories: “the individual interest in avoiding the disclosure of personal matters, and . . . the interest in independence in making certain kinds of important decisions.” *fn80 Hyatt argument focuses on the first category.
While everyone enjoys certain privacy rights, those rights must be balanced with the needs and demands of society. This case presents the competing interests government has in public welfare and safety by making the public aware of the location of sex offenders versus Hyatt’s individual right of privacy. As we noted in Board of Education v. Lexington-Fayette Urban County Human Rights Comm’n, *fn81 the right of privacy “is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the right is not absolute.” *fn82
Assuming that Hyatt could show that he has a privacy right, the Supreme Court has stated that “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” *fn83 Like the Pennslyvania Superior Court in Commonwealth v. Mountain, *fn84 we believe that “the registration provision of [the sex offender registration] law is a non-punitive measure with only the very slightest inconvenience to the defendant and the overwhelming policy objective of assuring public safety.” *fn85
In the context of privacy rights versus sex offender registration statutes, other courts have reached similar conclusions. In Lanni v. Engler, *fn86 the court rejected a convicted sex offender’s argument that he was entitled to procedural due process because the court found that there was no deprivation of a property or liberty interest. The court commented that “[t]he Act merely compiles truthful, public information and makes it more readily available. * * * Moreover, this Court finds that any detrimental effects that may flow from the Act would flow most directly from the plaintiff’s own misconduct and private citizen’s reaction thereto, and only tangentially from state action.” *fn87 Although differing in its analysis, the United States Court of Appeals for the Third Circuit reached the same result in Paul P. v. Verniero. *fn88 The Court noted that it had previously concluded that the state interest “`would suffice to justify the deprivation even if a fundamental right of the registrant’s were implicated.’ * * * The public interest in knowing where prior sex offenders live so that susceptible individuals can be appropriately cautioned does not differ whether the issue is the registrant’s claim under the Double Jeopardy or Ex Post Facto Clauses, or is the registrant’s claim to privacy.” *fn89
Considering Hyatt’s claim under the U.S. Constitution, we conclude that no privacy interest is implicated. Thus, we need not consider the procedural due process required on this claim under that Constitution. Assessing Hyatt’s claim under the Kentucky Constitution, we reach the same conclusion.
Assuming arguendo that the U.S. Constitution does not guarantee the right of privacy in these circumstances, Hyatt draws our attention to the fact that the Kentucky Supreme Court has recognized an expanded right of privacy under our state constitution and in support cites Commonwealth v. Wasson. *fn90 In Wasson, the Court did recognize the right of individuals to engage in homosexual sodomy – a right which had been rejected by the U.S. Supreme Court in Bowers v. Hardwick *fn91 as being protected under the U.S. Constitution. However, we find Hyatt’s argument unpersuasive on privacy grounds in these circumstances. The public’s need for information outweighs Hyatt’s privacy interest.
In Lynch v. Commonwealth, *fn92 the Supreme Court noted that “the enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the police power of the state, which includes reasonable conditions as may be determined by governmental authority to be essential to public welfare, safety, and good order of the people.” *fn93 The Commonwealth has an interest in protecting the public welfare and safety of all its residents. In exercising this power, the General Assembly has determined that the registration of sex offenders and the distribution of information regarding sex offenders is necessary to protect the public welfare and safety. In the absence of any constitutional infirmity, we cannot fault this aim.
B. PROCEDURAL DUE PROCESS RIGHTS REGARDING THE HEARING
1. UNTIMELY ARRIVAL OF RISK ASSESSMENT REPORT AND FAILURE OF DR. WAGNER TO ATTEND HEARING
Hyatt contends that the circuit court erred in admitting Dr. Wagner’s risk assessment report even though it arrived the morning of the hearing. We believe that Hyatt’s procedural due process rights were violated in the risk assessment hearing because the report arrived too late to provide Hyatt notice of its contents, to allow his counsel to read and digest it, and to allow sufficient time for preparation, including calling expert witnesses to counter Dr. Wagner’s conclusions.
Even though Hyatt has not established that he has a privacy interest, he does have an interest in the risk assessment being conducted in conformity with KRS 17.500-.991. As this Court pointed out in Belcher v. Kentucky Parole Board *fn94 – a case addressing due process rights in a parole proceeding – “[a criminal] has a legitimate interest in a decision rendered in conformity with the established procedures and policies; one which is based upon consideration of relevant criteria.” *fn95 And as the Supreme Court said in Kentucky Central Life Insurance Co. v. Stephens, *fn96 “[n]ot always does due process require a trial or the strict application of evidentiary rules and/or unlimited discovery . . . . Procedural due process is not a static concept, but calls for such procedural protections as the particular situation may demand.” *fn97 The Court went on to say that “[w]hile determining whether the process afforded is adequate, the court should consider the private interests affected, the governmental interests affected, and the fairness and reliability of the existing procedures and the probable value, if any, of additional procedural safeguards.” *fn98
KRS 17.570 provides procedural safeguards guaranteed a sex offender. In relevant part, the statute provides that:
(3) In making the determination of risk, the sentencing court shall review the recommendations of the certified provider along with any statement by a victim or victims and any materials submitted by the sex offender.
(4) The court shall conduct a hearing in accordance with the Rules of Criminal Procedure and shall allow the sex offender to appear and be heard.
(5) The court shall inform the sex offender of the right to have counsel appointed in accordance with KRS 31.070 and 31.110.
 (6) The sentencing court shall issue findings of fact and conclusions of law and enter an order designating the level of risk.
 (7) The order designating risk shall be subject to appeal. *fn99
According to the U.S. Supreme Court:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. *fn100
Likewise, in Memphis Light, Gas & Water Div. v. Craft, *fn101 the Court noted that “[t]he purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending `hearing.'” *fn102 This notice includes the opportunity to know what evidence will be presented against the party and have adequate time to collect his own evidence to refute it.
Here, the circuit court failed to address the risk assessment report’s untimely arrival for review by Hyatt. The report arrived at approximately 9:00 a.m. for a 10:30 a.m. hearing. The circuit court did delay the hearing until 11:30 a.m., but that did not rectify the infirmity. The court should have delayed the hearing until the parties had been given an opportunity to read and evaluate the report, and it should have given Hyatt an opportunity to present witnesses on his behalf if desired. Although the amount of procedural due process required is flexible, the circuit court violated Hyatt’s procedural due process rights by failing to give him timely notice of the contents of the report.
However, we reject Hyatt’s argument that the court erred by failing to require Dr. Wagner’s attendance at the hearing. Hyatt certainly had the right to compel Dr. Wagner’s attendance by subpoena. If Hyatt believes Dr. Wagner’s testimony is critical to his challenge of the report’s conclusions, Hyatt may subpoena Dr. Wagner on remand and subject him to cross-examination.
2. HYATT’S INABILITY TO CALL EXPERT WITNESSES
Hyatt also insists that his due process rights were violated because he was unable to call expert witnesses to challenge the conclusions reached in the assessment report. We agree.
Both the Fourteenth Amendment to the U.S. Constitution and Section 11 of the Kentucky Constitution guarantee the right of a defendant to call witnesses on his behalf. *fn103 While due process rights may be limited in certain proceedings, we believe that Hyatt was entitled to notice of the report’s contents in order to be able to present experts to testify during the risk assessment hearing.
The circuit court should have given Hyatt an opportunity to call expert witnesses to refute Dr. Wagner’s risk assessment. By failing to give Hyatt this opportunity, the court denied Hyatt due process of law under the Fourteenth Amendment to the U.S. Constitution and Section 11 of the Kentucky Constitution.
3. FAILURE OF VICTIM TO TESTIFY
Finally, Hyatt argues that the victim should have been forced to testify at the hearing. He alleges that the victim’s failure to testify violated his right to confront witnesses under U.S. Constitution and Kentucky Constitution. We disagree.
When an individual has been indicted for committing a crime, he has a constitutional right to confront his or her accusers. *fn104 This right of confrontation has generally been held only to apply to trials. *fn105
This case is distinguishable because it involves a risk assessment hearing pursuant to KRS 17.570, not a criminal trial. Hyatt waived his constitutional right to confront the victim by pleading guilty. *fn106 The subsequent hearing is to determine the potential for recidivism of the sex offender; the sex offender is not being charged with a new crime. Rather, the statutes subject the sex offender to registration for a crime to which he has previously pled guilty, or been found guilty by a judge or jury. As we have concluded, the sex offender classification process serves a regulatory purpose and does not impose additional punishment upon an offender. In considering Hyatt’s claim for violation of his procedural due process rights, flexible due process entitled him to a hearing to challenge the veracity of the sex offender risk assessment report and to produce his own expert witnesses. His procedural due process rights do not extend to a confrontation with the victim. Thus, we conclude that a sex offender does not have a right to confront the victim during the risk assessment hearing.
VI. CONCLUSION
[We affirm that portion of the Anderson Circuit Court order upholding the constitutionality of KRS 17.500-.991. For the reasons stated, we reverse the order insofar as it classifies Hyatt as a sex offender and remand this case for further proceedings consistent with this opinion. *fn107
EMBERTON, Judge, CONCURS.
DYCHE, Judge, CONCURS IN RESULT.
           

 


 

            Opinion Footnotes
           

 


 

*fn1 Specific details regarding the hearing will be developed as necessary in addressing Hyatt’s arguments.
*fn2 Hyatt requests that we take judicial notice of various exhibits totaling approximately one hundred pages, which include newspaper articles containing comments of legislators who voted on Kentucky sex offender registration laws. Because the exhibits are irrelevant to the ultimate issues before this Court, we decline to do so.
*fn3 See Doe v. Poritz, 662 A.2d 367 (1995) (upholding the constitutionality of Megan’s Law in New Jersey).
*fn4 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 170101, 108 Stat. 1796, 2038 (codified as amended at 42 U.S.C. § 14071). Congress subsequently amended the statute in Pub. L. No. 104-145, § 2, 110 Stat. 1345, 1345 (1996); the Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104-236, §§ 3-7, 110 Stat. 3093, 3096-97; the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, § 115(a)(1)-(5), 111 Stat. 2440, 2461-63; and the Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, § 607(a), 112 Stat. 2974, 2985.
*fn5 42 U.S.C. § 14071(g)(2)(A).
*fn6  KRS 17.500(4).
*fn7   Act of April 11, 1994, ch. 392, § 2, 1994 Kentucky Acts 1165, 1165 (codified at KRS 17.510) (repealed in part and amended in part 1998).
*fn8 Id. § 2, 1994 Kentucky Acts at 1165-66.
*fn9 Id. § 2, 1994 Kentucky Acts at 1166.
*fn10 Id.
*fn11 Id. § 3, 1994 Kentucky Acts at 1166 (codified at KRS 17.520) (repealed in part and amended in part 1998).
*fn12 Id. § 2, 1994 Kentucky Acts at 1167 (codified as amended at KRS 17.510(11)-(12)).
*fn13 Id. § 6, 1994 Kentucky Acts at 1167.
*fn14  KRS 17.550(2).
*fn15  KRS 17.550(5).
*fn16 KRS 17.550(4).
*fn17  KRS 17.520(2).
*fn18 KRS 17.520(3).
*fn19  Act of April 14, 1998, ch. 606, § 142, 1998 Kentucky Acts 3598, 3676-77 (codified at KRS 17.554). See also id. § 143, 1998 Kentucky Acts at 3677 (outlining the composition and operation of the Board).
*fn20 KRS 17.554(1).
*fn21 KRS 17.570(3).
*fn22  KRS 17.570(4).
*fn23 KRS 17.570(5).
*fn24 KRS 17.570(6).
*fn25 KRS 17.570(8).
*fn26 KRS 17.570(2).
*fn27  KRS 17.550(3).
*fn28 Under 42 U.S.C. § 14071(a)(3)(C), a “sexually violent predator” is “a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.”
*fn29 KRS 17.520.
*fn30 KRS 17.578(1).
*fn31 Id.
*fn32 KRS 17.578(2)-(3).
*fn33 KRS 17.500(3).
*fn34 KRS 17.572 provides: (1) If the offender is determined to be a high risk sex offender, the notification shall include offender information as defined in KRS 17.500 and any special conditions imposed by the court or the Parole Board. The Social Security number of the offender shall not be released to those persons identified in paragraphs (c), (d), and (f) of this subsection. The following individuals shall be notified by the sheriff of the county to which the offender is to be released: (a) The law enforcement agency having jurisdiction; (b) The law enforcement agency having had jurisdiction at the time of the offender’s conviction; (c) Victims who have requested to be notified; (d) The Information Services Center, Kentucky State Police; (e) Any agency, organization, or group serving individuals who have similar characteristics to the previous victims of the offender, if the agency, organization, or group has filed a request for notification with the local sheriff; and (f) The general public through statewide media outlets and by any other means as technology becomes available. (2) Upon a finding by the sentencing court that the offender is a high risk sexual offender, the designation shall continue until the sentencing court determines that the individual is no longer a high risk sex offender. (3) An offender who has been designated by the sentencing court to be a high risk sex offender shall upon his release by the court, parole board, or the cabinet be required to register for his lifetime in accordance with the provisions of KRS 17.510 and shall be subject to community notification pursuant to this section and KRS 17.574. (4) If the offender is determined to be a moderate risk sex offender, the notification shall include offender information as defined under KRS 17.500, the zip code in which the offender resides, and any special conditions imposed by the court or the Parole Board. The Social Security number, personal residential address, and vehicle registration shall not be disclosed to the individuals identified in paragraphs (c) and (e) of this subsection. The following individuals shall be notified by the sheriff of the county to which the offender is released: (a) The law enforcement agency having jurisdiction; (b) The law enforcement agency having had jurisdiction at the time of the offender’s conviction; (c) Victims who have requested to be notified; (d) The Information Services Center, Kentucky State Police; and (e) Any agency, organization, or group serving individuals who have similar characteristics to the previous victim or victims of the sexual offender, if the agency, organization, or group has filed a request for notification with the local sheriff. (5) If the offender is determined to be a low risk sex offender, the notification shall include offender information as defined in KRS 17.500. The Social Security number, personal residential address and, vehicle registration shall not be disclosed to the persons identified in paragraph (c) of this subsection. The following individuals shall be notified by the sheriff of the county to which the offender is released: (a) The law enforcement agency having jurisdiction; (b) The law enforcement agency having had jurisdiction at the time of the offender’s conviction; (c) Victims who have requested to be notified; and (d) The Information Services Center, Kentucky State Police.
*fn35 KRS 17.510(10).
*fn36 KRS 17.510(11)-(12).
*fn37 Act of April 14, 1998, ch. 606, § 199, 1998 Kentucky Acts 3598, 3694. See also Ky. Const. § 55 (“No act . . . shall become a law until ninety days after the adjournment of the session at which it was passed, except in cases of emergency . . .”).
*fn38 Id. § 200, 1998 Kentucky Acts at 3694.
*fn39 See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969).
*fn40 Ky., 962 S.W.2d 860 (1998).
*fn41 Id. at 862 (citing United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)).
*fn42 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
*fn43 Id. at 98-99, 118 S. Ct. at 493, 139 L. Ed. 2d at 458-59 (internal citations omitted).
*fn44 Id. at 99, 118 S. Ct. at 493, 139 L. Ed. 2d at 459 (internal citations omitted).
*fn45 Act of April 11, 1994, ch. 392, preamble, 1994 Kentucky Acts 1165, 1165 (“AN ACT relating to the registration of sexual offenders.”); Act of April 14, 1998, ch. 606, preamble, 1998 Kentucky Acts 3598, 3598 (“AN ACT relating to criminal justice matters.”).
*fn46 Bob Hook Chevrolet Isuzu, Inc. v. Transportation Cabinet, Ky., 983 S.W.2d 488, 492 (1998) (“A statute should be construed, if possible, so as to effectuate the plain meaning and unambiguous intent expressed in the law.”) (citing McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307, 309 (1994)).
*fn47 KRS 17.554(2) (emphasis supplied). See also 501 KAR 6:200 (establishing the procedure for sex offender risk assessments).
*fn48 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963).
*fn49 Id. at 168-69, 83 S. Ct. at 567-68, 9 L. Ed. 2d at 661 (footnotes omitted) (citations omitted). See also Burnett v. Commonwealth, Ky. App., 3 S.W.3d 359, 361 (1999) (applying the Kennedy factors in a double jeopardy context).
*fn50 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980).
*fn51 Id. at 249, 100 S. Ct. at 2641, 65 L. Ed. 2d at 750.
*fn52 Kennedy, 372 U.S. at 169, 83 S. Ct. at 568, 9 L. Ed. 2d at 661.
*fn53  Hudson, 522 U.S. at 103, 118 S. Ct. at 495, 139 L. Ed. 2d at 462.
*fn54 193 F.3d 466 (6th Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000).
*fn55  Id. at 475.
*fn56 Black’s Law Dictionary 1345 (6th ed. 1990).
*fn57 KRS 17.500(4).
*fn58 See Kansas v. Hendricks, 521 U.S. 346, 362, 117 S. Ct. 2072, 2082, 138 L. Ed. 2d 501, 515 (1997) (noting that “[t]he absence of [] a requirement [of a finding of scienter] is evidence that confinement under [a sexually violent predator incarceration] statute is not intended to be retributive.”).
*fn59 Hudson, 522 U.S. at 105, 118 S. Ct. at 496, 139 L. Ed. 2d at 463.
*fn60 120 F.3d 1263 (2d Cir. 1997).
*fn61 Id. at 1283 (citing United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 2148, 135 L. Ed. 2d 549, 569 (1996)).
*fn62 160 F.3d 1131 (6th Cir. 1998).
*fn63 Id. at 1138 (quoting Hudson v United States, 522 U.S. 93, 496, 118 S. Ct. 488, 496, 139 L. Ed. 2d 450, 463 (1997)).
*fn64 Cutshall v. Sundquist, supra, n. 54, at 476.
*fn65 U.S. Const. art. I, § 10 (“No State shall . . . pass any . . . ex post facto Law . . . .”). See also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, ___ (1798) (stating that it is prohibited under the Ex Post Facto Clause to retroactively apply any law that “inflicts a greater punishment, than the law annexed to the crime, when committed”).
*fn66 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
*fn67 Id. at 30, 101 S. Ct. at 965, 67 L. Ed. 2d at 24.
*fn68 Lattimore v. Corrections Cabinet, Ky. App., 790 S.W.2d 238, 239 (1990) (quoting Weaver, 450 U.S. at 29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23) (footnotes omitted).
*fn69 Roe v. Office of Adult Probation, 125 F.3d 47, 54 (2d Cir. 1997) (internal citations omitted).
*fn70 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997).
*fn71 See text accompanying note 49, supra. See also Cutshall v. Sundquist, supra, n. 54, (applying the Kennedy factors in determining whether Tennessee’s sex offender registration laws were ex post facto laws).
*fn72 Ky., 920 S.W.2d 46 (1996).
*fn73 Id. at 47 (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43, 53 L. Ed. 126, ___ (1908)). See also Johnson v. Bishop, Ky. App., 587 S.W.2d 284, 285 (1979) (“[S]ubject matter jurisdiction may not be conferred by waiver, or even consent, while a question as to such jurisdiction generally may be raised at any time.”) (citing Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970)).
*fn74 Ky., 842 S.W.2d 487 (1992).
*fn75 U.S. Const. amend. XIV, § 1 (“[No] State [shall] deprive any person of life, liberty, or property, without due process of law . . .”); Ky. Const. § 11 (“In all criminal prosecutions the accused . . . can[not] be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land . . .”).
*fn76 Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711, 731 (1977) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S. Ct. 2701, 2705-07, 33 L. Ed. 2d 548, 556-58 (1972)). See also Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir. 1997) (“We engage in a two-part analysis when addressing a procedural due process argument, asking, first, whether the plaintiffs have a protected interest at stake, and if so, what process is due.”) (citing Schneider v. United States, 27 F.3d 1427, 1333 (8th Cir. 1994)).
*fn77 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976).
*fn78 Id. at 713, 96 S. Ct. at 1166, 47 L. Ed. 2d at 420-21 (internal citations omitted).
*fn79 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
*fn80 Id. at 599-600, 97 S. Ct. at 876, 51 L. Ed. 2d at 73 (footnotes omitted) (citations omitted).
*fn81 Ky. App., 625 S.W.2d 109 (1981).
*fn82 Id. at 110 (quoting Perry v. Moskins Stores, Inc., Ky., 249 S.W.2d 812, 813 (1952)) (citations omitted).
*fn83 Board of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548, 556 (1972) (emphasis supplied).
*fn84  711 A.2d 473 (Pa. Super. Ct. 1998)
*fn85  Id. at 477-78 (citations omitted).
*fn86 994 F. Supp. 849 (E.D. Mich. 1998).
*fn87 Id. at 855. Under Michigan sex offender registration statute effective at the time of the Lanni case, Michigan’s sex offender registry contained “name, aliases, address, physical description, birth date, and offense of conviction.” Id. at 852. The registry is organized by ZIP code, which limits who has access to the information. Michigan also maintains a registry only accessible to law enforcement agencies, which has the following information: “offender’s name, social security number, address, a brief summary of information regarding each conviction, a complete physical description, blood type, and DNA information.” Id. at 851.
*fn88 170 F.3d 396 (3d Cir. 1999).
*fn89 Id. at 404 (internal citation omitted).
*fn90 Supra, n. 74.
*fn91 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
*fn92 Ky., 902 S.W.2d 813 (1995).
*fn93 Id. at 816 (citing Mansbach Scrap Iron Co. v. City of Ashland, 235 Ky. 265, 30 S.W.2d 968 (1930); Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962)).
*fn94 Ky. App., 917 S.W.2d 584 (1996).
*fn95 Id. at 587. See also Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498-99 (1972) (outlining the minimum due process requirements for a parole revocation hearing, which includes the right to present witnesses and to know the evidence to be presented against the parolee).
*fn96 Ky., 897 S.W.2d 583 (1995).
*fn97 Id. at 590 (citing Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). See also Commonwealth v. Raines, Ky., 847 S.W.2d 724, 727 (1993), overruled on other grounds by Commonwealth v. Howard, Ky., 969 S.W.2d 700 (1998) (citing Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
*fn98 Stephens, 897 S.W.2d at 590 (citing Palmer by Palmer v. Merluzzi, 868 F.2d 90 (3d Cir. 1989).
*fn99  KRS 17.570(3)-(7).
*fn100  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, ___ (1950) (internal citations omitted).
*fn101 436 U.S. 1, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978).
*fn102 Id. at 14, 98 S. Ct. at 1563, 56 L. Ed. 2d at 42.
*fn103 Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W.2d 823, 824 (1928) (“Section 11 of the Constitution provides that in all criminal prosecutions the accused has the right `to have compulsory process for obtaining witnesses in his favor’.”); United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995) (“The right of a defendant to establish a defense by presenting his own witnesses is a fundamental element of due process.”) (citing Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972)).
*fn104 U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .”); Ky. Const. § 11 (“In all criminal prosecutions the accused has the right . . . to meet the witnesses face to face . . . .”).
*fn105 Nelson v. O’Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (1971). But see In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 982 (1948) (holding that the right applies to contempt proceeding); Wilmer v. Committee on Character & Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963) (concluding that the right is applicable to bar admission proceedings); Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (determining that the right applies to juvenile delinquency proceedings); United States v. Ushery, 968 F.2d 575, 583 (6th Cir. 1992) (holding that a criminal defendant is not entitled to confront during sentencing proceedings) (citing United States v. Kikumara, 918 F.2d 1084 (3d Cir. 1990); United States v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990)).
*fn106 Centers v. Commonwealth, Ky. App., 799 S.W.2d 51 (1990) (noting that a criminal defendant waives the right to confront accusers by pleading guilty).
*fn107 In April 2000, the General Assembly enacted Senate Bill 263 which became effective immediately upon the Governor’s signature. Senate Bill 263 eliminates the process of ordering a risk assessment prior to the classification of a sex offender and the entire classification scheme. On remand, the circuit court shall conduct the hearing in accordance with the pre-2000 amendments. In this opinion, we do not address the constitutionality of Senate Bill 263.

KRS CHAPTER 177 STATE AND FEDERAL HIGHWAYS LIMITED ACCESS FACILITIES TURNPIKES ROAD BONDS BILLBOARDS — RECYCLERS – PAGE ONE

Back to KRS Annotated Home Page Index


 


TITLE XV – ROADS, WATERWAYS, AND AVIATION 


 
































































































































































KRS CHAPTER  177 ? STATE AND FEDERAL HIGHWAYS ? LIMITED ACCESS FACILITIES ? TURNPIKES ? ROAD BONDS ? BILLBOARDS — RECYCLERS  – PAGE ONE


KRS 177.010    thru    KRS 177.370  186 statutes


Definitions, Highways, Transportation and Tourism Interagency Committee, Removal of snow from certain state roads ,Railroad Crossings, Limited Access Facilities, Highway encroachment permit, Payment for right-of-way, Use of Gasoline Tax Revenues,


Definitions


KRS 177.010 Definitions for KRS 177.010 to 177.890


Highways


KRS 177.020 State primary roads to be designated and controlled by the Department of Highways — Notice to fiscal court and affected citizens — Definition of rural and secondary roads — Transfer of county roads to rural secondary system


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


cities


KRS 177.025 Removal of snow from certain state roads by county plows on order of


county judge/executive


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


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


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


KRS 177.042 Designation of city streets by commissioner of highways — Record —


Statement to city


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


KRS 177.047 Permission of department required for obstructions or excavations in


streets


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


KRS 177.055 Construction and maintenance of urban roads and streets


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


KRS 177.060 Payment for right-of-way


KRS 177.070 Purchase of right-of-way — Donations


KRS 177.072 Motorcycle awareness signs


KRS 177.073 Official signs and notices as to scenic and historical attractions


KRS 177.0734 Definitions for KRS 177.0734 and 177.0736


KRS 177.0736 Logo and service signs — Administrative regulations


KRS 177.0738 Logo signs for eligible businesses


KRS 177.0739 Bed and breakfast establishments, shopping malls, and shopping areas eligible to obtain specific service highway signs


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KRS 177.074 Naming of state road or bridge


KRS 177.0745 Designation of Grange City Covered Bridge


KRS 177.076 Definitions for KRS 177.076 to 177.079


KRS 177.077 Limited supplemental guide signs — Administrative regulations ? Criteria for approval — Hearings — Effect on pre-existing signs


KRS 177.078 Application — Fees


KRS 177.079 Commissioner required to apply to Federal Highway Administration for experimental usage of signs


KRS 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


KRS 177.082 County attorney to represent Department of Highways in condemnation proceedings — Petition


KRS 177.090 Acquisition of land along federal-aid highways for scenic beauty —


Condemnation


KRS 177.103 Definitions for KRS 177.106


KRS 177.106 Highway encroachment permit — Removal


Transportation and Tourism Interagency Committee


KRS 177.107 Transportation and Tourism Interagency Committee — Purpose


KRS 177.108 Membership — Compensation — Officers — Meetings — Proxy voting


KRS 177.109 Duties and responsibilities


Railroad Crossings


KRS 177.110 Railroad crossings — Construction of KRS 177.120 to 177.210


KRS 177.120 Department may order elimination of grade crossings or substitution — Standards to be set by administrative regulations — Closure of grade crossings


KRS 177.130 Hearing — Order — Plans, specifications, and estimates of cost


KRS 177.140 Railroad company to present plans and estimates of cost


KRS 177.150 Final hearing — Notice — Final order — Waiver of proceedings — Appeal


KRS 177.160 Rejection of bids — Department may do work


KRS 177.170 Division of costs — Payment


KRS 177.180 Highway engineer to approve contracts


KRS 177.190 Appeal by railroad company to Circuit Court


KRS 177.200 Appeal to Court of Appeals


KRS 177.210 Department may bring action to enforce order


Limited Access Facilities


KRS 177.220 Definition of “limited access facility.”


KRS 177.230 Establishment of limited access facilities — Regulation of use


KRS 177.240 Design of facilities — Regulation of access — Construction of public


facilities, including restrooms


KRS 177.250 Acquisition of property and property rights — Options to acquire —


Administrative regulations


KRS 177.260 Precedence of condemnation cases in courts


KRS 177.270 Use of existing facilities — Grade crossing elimination — Public way


connections


KRS 177.280 Agreements of local governmental units respecting facilities


KRS 177.290 Local service roads and streets


KRS 177.300 Traffic rules on limited access facilities


KRS 177.305 Prevention of spillage from trucks hauling coal


KRS 177.310 Declaration of policy


KRS 177.315 Spacing of access control points on limited access facilities for those having limited rights or easement of access


KRS 177.317 Hal Rogers Parkway — Access control and spacing


Use of Gasoline Tax Revenues


KRS 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


KRS 177.330 Consultation by Department of Intergovernmental Programs with fiscal courts for selection of roads to be improved — Recommendations — Roads


through towns of fifth or sixth class


KRS 177.340 Selection of roads to be improved in case of disagreement with fiscal court — Roads become part of state highway system


KRS 177.350 Standards for construction and improvement of state-maintained


secondary and rural roads — Studies — Surveys — Maps — Personnel —


Equipment


KRS 177.360 Allocation of funds for state-maintained roads — Apportionments to be


made on basis of revenue estimates — Uniform financial information report


required


KRS 177.365 Reservation of certain tax receipts for urban roads and streets —


Definitions


KRS 177.366 Allocation of municipal aid funds — Apportionments to be made on basis of revenue estimates — Uniform financial information report


KRS 177.369 Payment of pro rata share of funds appropriated to incorporated cities


and counties


 


 


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Definitions


KRS 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:


(a) A county road as defined in KRS 178.010(1)(b);


(b) 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;


(c) 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.


Effective: July 15, 2002


History: Amended 2002 Ky. Acts ch. 64, sec. 1, effective July 15, 2002. — Amended


1996 Ky. Acts ch. 238, sec. 1, effective July 15, 1996. — Amended 1992 Ky. Acts


ch. 229, sec. 8, effective July 14, 1992. — Amended 1964 Ky. Acts ch. 23, sec. 1. —


Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat.


sec. 4356t-17-2e.


2002-2004 Budget Reference. See State/Executive Branch Budget, 2003 Ky. Acts


ch. 156, pt. IX, item 63(d), at 1885; and State/Executive Branch Budget


Memorandum, 2003 Ky. Acts ch. 143, at 1346 (Final Budget Memorandum, at 985).


 


ANNOTATION FOR THIS STATUTE:


 


1. Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321 (Ky. App., 1987)    Kentucky Utilities cites Commonwealth v. Berryman, Ky., 363 S.W.2d 525 (1963), where the Court on its own initiative held that the 30-day time limit for taking an appeal from county court to circuit court under KRS 177.010 et seq. [the predecessor of KRS 416.620] is “subject matter jurisdictional,” therefore it was reversible error for the circuit court to permit a filing of appeal that was two days late. (The county court judgment and circuit court under the former statute are the equivalent of the present statute’s interlocutory judgment and filing of exceptions, respectively). At 526, this Court stated:


The word “jurisdiction” is more easily used than understood. Conceived in terms of power, or effective authority, it may represent policy instead. Applied to questions of time, it is a convenient label to mark a requirement as ultra-mandatory. We think the requirement of KRS 177.087 that an appeal be taken within 30


Page 323


days falls in that category. A fundamental purpose of the statute was to compel each party to speak up within 30 days or forever after hold his peace. The conspicuous absence of provision for additional time in which to cross appeal rather clearly evinces a legislative policy against it.


        However persuasive Berryman may be as to a court’s jurisdictional requirements, it is significant to note that under the present statute the interlocutory judgment is entered and exceptions are filed to the same court; therefore, Berryman and its “jurisdictional” language are inapplicable here.


 


 


2. Dixon v. Giles, 304 Ky. 354 (KY, 1947) 4. Highways; Injunction. ? Where railroad, which had right of way easement only, abandoned railway in 1933 and made quitclaim conveyance to county which operated road over right of way until it became part of general highway system but road was relocated and Highway Department conveyed strip involved to fee owner prior to 1945, the fee owner had right to close old road and was entitled to an injunction against trespasses thereon. Laws 1934, c. 306; Ky. St. sec. 4356-t-1 et seq.; KRS 177.010 et seq., 178.010 et seq.


 


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Highways


KRS 177.020 State primary roads to be designated and controlled by the Department of Highways — Notice to fiscal court and affected citizens — Definition of rural and secondary roads — Transfer of county roads to rural secondary system.


(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 such system of


roads in this state which are usually considered farm to market roads and that were


classified as part of the rural secondary road system by the Department of Highways


on January 1, 1986. By January 1, 1987, the Department of Intergovernmental


Programs shall meet with the fiscal courts in each of the counties to receive


recommendations regarding the transfer of roads, included as part of the county


road system on January 1, 1986, to the rural secondary system. Prior to such


meeting with the Department of Intergovernmental Programs, the fiscal court shall


consult with the legislative bodies of municipalities within the county regarding


their recommendations for the transfer of county roads located within the


jurisdiction of the municipality. On July 1, 1987, the Transportation Cabinet shall


by official order accept at least two thousand (2,000) miles of roads in the county


road system into the rural secondary system. In accepting such roads into the rural


secondary system, the Transportation Cabinet shall accept in each county at least


seventy-five percent (75%) of the total number of miles in each county determined


by multiplying the total number of county road miles accepted in the rural


secondary system by the percentage of county road aid funds received in each


county in fiscal year 1984-85 compared to the total amount of county road aid funds


generated in fiscal year 1984-85. The determination of the total funds received by


each county from the county road aid program in fiscal year 1984-85 and the total


amount of county road aid funds generated in fiscal year 1984-85 shall be made by


the Department of Intergovernmental Programs. The roads so transferred 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.


Effective: June 20, 2005


History: Amended 2005 Ky. Acts ch. 98, sec. 6, effective June 20, 2005. — Amended


1992 Ky. Acts ch. 80, sec. 1, effective July 14, 1992. — Amended 1986 Ky. Acts


ch. 174, sec. 18, effective July 15, 1986. — Amended 1980 Ky. Acts ch. 243, sec. 1,


effective July 15, 1980. — Amended 1974 Ky. Acts ch. 74, Art. IV, sec. 20(1). —


Amended 1972 Ky. Acts ch. 242, sec. 1. — Created 1964 Ky. Acts ch. 23, secs. 2 and 3.


History for former KRS 177.020: Repealed 1964 Ky. Acts ch. 23, sec. 3. — Recodified


1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 4356t-


5, 4356t-17-2a, 4356t-17-2b, 4356t-17-2c, 4356t-17-2d.


 


ANNOTATION FOR THIS STATUTE:


 


1. McKinney v. Jessamine County (Ky. App., 2003) The McKinneys also argue that KRS 177.020 vests control of U.S. 27 solely with the Commonwealth. As such, they maintain that the encroachment permit issued by the Commonwealth to the prior landowner, Charles Moore, supercedes or otherwise supplants that Commission’s exercise of jurisdiction over the matter. The circuit court adopted the Commission’s argument on this issue, to wit, that the clear and unambiguous terms of the permit provided 1) that the permit was personal to Moore and “shall not inure to his successors and assigns”, and 2) that the “permit does not alleviate any requirements of any other government agency.” The terms and conditions of the permit refute the McKinneys’ argument on this issue, and the circuit court properly so found.


 


2. Geupel Contruction Company, Inc. v. Commonwealth Transportation Cabinet, 2003 KY 161 (KYCA, 2003)


 


[49]     KRS 177.020(7) provides that the “establishment, construction, or maintenance of the state primary road system shall be under the direction and control of the Department of Highways.” The Transportation Cabinet is authorized to promulgate administrative regulations consistent with its jurisdiction. Id. The Cabinet is an administrative agency covered by the provisions of KRS Chapter 13B.


 


 


3. Cottrell v. Martin A. Ceder, Inc., 376 S.W.2d 536 (Ky., 1964)    The accident occurred on the Harrodsburg Road near the south city limits of Lexington. Though state-maintained (cf. KRS 177.020) as part of U. S. Highway 68, the highway itself was within the corporate boundaries of the city, whereas the territory on each side, including the houses fronting thereon, had not been annexed and was outside the city. The area was suburban residential in character and Bunton’s home was one of many houses lining the west side of the road, which at the point in question was a 4-lane highway divided by a median strip. The westerly or southbound pavement was 26.2 feet wide and for a distance of 500 feet or more approaching from the north was straight.


 


4. Ex parte Com., Dept. of Highways, 291 S.W.2d 814 (Ky., 1956)     Our view if strengthened by the fact that under KRS 177.020 the Department of Highways has the power to take over any


Page 816


county road and make it a part of the state primary road system, and having done so, may by its own order discontinue such road. Williams v. Woodward, Ky., 240 S.W.2d 94.


        As we interpret the statutes in question, when the Department of Highways has determined that a county road intersecting a turnpike should be closed, and 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.


        This brings us to the question of liability for damages. We think it is fairly well established that a property owner on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498. It may well be that where the closing will have such a result, the closing may not be effected until the damages have been ascertained and paid. This is the situation that was dealt with Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498. However, some ambiguity exists concerning the proper procedure to be followed in the determination and allowance of damages.


 


 


5. Jefferson Co. v. Department of Highways, 299 Ky. 358 (KY, 1945) Highways. ? The statutes vesting in Department of Highways power of determining which parts of road system it shall construct and maintain and providing that roads transferred by state to counties shall be county roads, impliedly authorizes Department to discontinue any part of state system and thereafter such abandoned portions are no longer parts of state system and it is not duty of Department to repair or maintain them. KRS 177.020(3), 177.030, 178.030.


 


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KRS 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: Created 1964 Ky. Acts ch. 23, sec. 2.


 


ANNOTATION FOR THIS STATUTE:


 


1. Ganote v. Com., Dept. of Highways, 409 S.W.2d 165 (Ky., 1966)    The Department of Highways is authorized to acquire rights of way in cities and to defray the costs of construction, reconstruction, maintenance or repair of a city street designated by the Department as part of the State Primary Road System, and the cities are authorized to deed to the Commonwealth any right of way owned by the cities which is so designated. KRS 177.021. When such power apparently has been exercised, as in the case at bar, the state is liable to adjoining or abutting property owners for any of their property taken. Const., Section 13. Here, the state has not ‘taken’ the landowners’ property, it has merely exercised a privilege it had–to utilize the rest of its right of way for a deceleration lane.


 


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KRS 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.


Effective: July 15, 1994


History: Created 1994 Ky. Acts ch. 374, sec. 1, effective July 15, 1994.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356t-5.


 


ANNOTATION FOR THIS STATUTE:


 


1. Jefferson Co. v. Department of Highways, 299 Ky. 358 (KY, 1945)  In 1920, the Legislature created a system of State highways and specifically designated as part of the primary system the roads leading east from Louisville to Shelbyville and beyond, and south from Louisville to Elizabethtown and beyond. The State took over these roads and sometime after 1934, in relocating and reconstructing them, left 0.9 of a mile of the old road at Eastwood, and 1.9 miles at Middletown on the Shelbyville highway (U.S. No. 60), and 1.1 miles at Orell on the


Page 359


Elizabethtown highway (U.S. No. 31W), all in Jefferson County. An issue arose between the Department of Highways and the county as to which is responsible for repairing and maintaining these portions of the old highway. The county takes the position that they have continued as a part of the State system and that the county does not have either the duty or the authority to keep them up, resting its case upon the ancient maxim, “Once a highway, always a highway.” It submits that while the statutes provided that the then State Highway Commission could deviate from an established road, Sec. 4356t-17-2c, now KRS 177.020 (3), they did not and do not now provide that portions left where there is a deviation cease to be a part of the State system and become county roads. It is not questioned that the expense of maintaining State highways is to be borne by the Commonwealth, or it and the Federal Government, and not by the counties, KRS 177.030, but the Department of Highways takes the position that the abandonment of portions of an old road in its relocation relieves it of responsibility therefor.


 


 


2. Clay County v. Ky. Dept. of Highways, 294 Ky. 638 (KY, 1943)     5. Highways. ? Where offer of fiscal court of county to lend to commonwealth highway commission, for construction of a road, proceeds of proposed bond issue was accepted, but thereafter, following decision of Court of Appeals that such transactions created state debts under Constitution, commission resolved to accept no more loans from counties for road improvement, and fiscal court sold bonds and ordered appropriation to commonwealth to be used by highway commission in constructing the road, and highway commission accepted the order, proceeds were “donated” and not “loaned” to commonwealth and no recovery by county could be had (KRS 177.030; Constitution, secs. 50, 179).


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KRS 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:


(a) 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


(b) 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.


Effective: July 13, 2004


History: Amended 2004 Ky. Acts ch. 154, sec. 1, effective July 13, 2004. — Amended


1994 Ky. Acts ch. 112, sec. 1, effective March 29, 1994; and repealed and reenacted


by ch. 279, sec. 2, effective July 15, 1994. — Amended 1990 Ky. Acts ch. 281, sec. 1,


effective July 13, 1990. — Amended 1988 Ky. Acts ch. 207, sec. 1, effective July 15,


1988. — Amended 1974 Ky. Acts ch. 74, Art. IV, sec. 20(1). — Created 1972 Ky.


Acts ch. 361, sec. 1.


Legislative Research Commission Note.(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.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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 of the


first through sixth class 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:


(a) 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


(b) 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.


Effective: July 15, 2002


History: Amended 2002 Ky. Acts ch. 298, sec. 2, effective July 15, 2002. — Created


1990 Ky. Acts ch. 191, sec. 1, effective July 13, 1990.


 


NO ANNOTATION FOR THIS STATUTE:


 


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?  .040   Repealed, 1942.


?  .041   Repealed, 1964.


 


KRS 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: Created 1942 Ky. Acts ch. 30, sec. 2.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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: Amended 1950 Ky. Acts ch. 90, sec. 1. — Created 1942 Ky. Acts ch. 30, sec. 3.


 


ANNOTATION FOR THIS STATUTE:


 


1. City of Hazard v. Main St. Realty Co., 262 S.W.2d 87 (Ky., 1953)  Under KRS 177.041, it is provided that when a city street has been designated as


Page 89


part of the primary road system, ‘the future maintenance, repair, construction and reconstruction of such streets shall be done by the Department of Highways’. However, KRS 177.043 provides that the Department of Highways ‘may’ maintain and repair, construct and reconstruct such city streets, and may enter into contracts with cities for that purpose. KRS 177.044 provides that before constructing or reconstructing a street by the department the plans must be approved by the city. KRS 177.045 prohibits the department from constructing, reconstructing, repairing or maintaining a street until the city has deeded to the department all right of ways it owns upon the street.


 


3. Perry v. City of Cumberland, 312 Ky. 375, 227 S.W.2d 411 (Ky., 1950) Perry v. City of Cumberland, 312 Ky. 375 (KY, 1950)    Prior to the enactment in 1942 of the statutes above referred to, apparently the City of Cumberland had exclusive control of all its streets and public ways, and consequently had the duty of maintaining them in a reasonably safe condition. The 1942 act, however, specifically shifted that control with respect to maintenance, repair, construction and reconstruction to the Department of Highways where a street was designated as a part of the state system. Under KRS 177.043 the City was left only with authority to “sweep, sprinkle, light or police” such streets. This limited supervision obviously did not require the City to remove, repair or place safeguards around the drainage facilities of the highway. The control of the culvert, after the conveyance of the right-of-way by the City, passed to the Department of Highways.


        Since a city’s liability grows out of its dominion over the public place involved, it is relieved of responsibility when the Legislature invests another governmental


Page 379


agency with such dominion. As stated in 25 Am. Jur., Highways, Section 396:


        “It may be stated generally that as between particular public agencies liability rests upon the one which is charged with the duty of maintenance and repair in the particular instance.”


 


 


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?  .044   Repealed, 1962.


?  .045   Repealed, 1964.


?  .046   Repealed, 1964.


KRS 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: Created 1942 Ky. Acts ch. 30, sec. 7.


 


ANNOTATION FOR THIS STATUTE:


 


1. Mt. Vernon Tel. Co. v. City of Mt. Vernon, 230 S.W.2d 451, 313 Ky. 93 (Ky., 1950)  Appellant alleges that in the operation of its telephone system, in order to provide adequate service to its patrons it has constructed and proposes to construct a number of poles on Richmond Street and Main Street; that the poles have been placed in what is designated by the State Highway Department as the “utility strip”; that the poles so placed “constitute no obstruction” of the streets; that Main and Richmond Streets have been designated by the Commissioner of Highways as part of the primary system as provided by KRS 177.045; that the City has made conveyances to the Department of Highways in accordance with that section, and that appellant has procured from the Department of Highways a permit pursuant to KRS 177.047 “authorizing plaintiff to construct and maintain said poles and indemnity to said Department of Highways has been provided against any damages to said streets”; that in order to afford reasonably adequate telephone service to its patrons, it is necessary for it to erect poles, lines and wires along Richmond and Main Streets; that the poles have been and will be constructed and maintained under the rules and regulations of the Department of Highways in such a manner as to afford no obstruction of the streets or interference with the travel and use thereof;


Page 95


that appellant has an investment of approximately $50,000 in its telephone system; that the ordinance as it applies to appellant “is unreasonable and oppressive in that it denies to this plaintiff the right to afford adequate telephone service to its patrons, and in that it denies to its patrons the benefits of an adequate telephone system.”


 


 


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?  .048   Repealed, 1964.


KRS 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: Amended 1964 Ky. Acts ch. 88, sec. 1. — Recodified 1942 Ky. Acts ch. 208,


sec. 1, effective October 1, 1942, from Ky. Stat. sec. 4356t-11.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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: Created 1974 Ky. Acts ch. 67, sec. 1.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: March 29, 1994


History: Created 1994 Ky. Acts ch. 112, sec. 2, effective March 29, 1994.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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: Amended 1962 Ky. Acts ch. 163, sec. 1. — Recodified 1942 Ky. Acts ch. 208,


sec. 1, effective October 1, 1942, from Ky. Stat. sec. 4356t-7.


 


ANNOTATION FOR THIS STATUTE:


 


1. Com., Dept. of Highways v. Alexander, 388 S.W.2d 599 (Ky., 1965)      At the time the Department of Highways commenced the reconstruction work, condemnation proceedings brought by the county against the Alexanders and Gibsons were pending, but the county had succeeded in getting the proceedings into an undelievably messed-up condition. Subsequently the county simply abandoned the proceedings, apparently hoping that by artful dodging it could escape the obligation under KRS 177.060 to pay for the rights of way.


        After the reconstruction work was completed the Alexanders and the Gibsons brought suit against Warren County to recover damages for the taking of and injury to their properties. The county moved that the Department of Highways be made a party defendant on the completely fallacious theory that it was an ‘indispensable party.’ The court sustained the motion and the department was brought in as a party defendant. The plaintiffs amended their complaint so as to ask formally for relief against the department, but not to charge the department specifically with any wrongful conduct. The department answered and asserted a cross-claim against Warren County, asking indemnity for any amount adjudged against the department.


 


 


2. Com., Dept. of Highways v. Thacker, 384 S.W.2d 79 (Ky., 1964)    A summary of the facts is that in the late 1950’s Perry County requested that the Brown’s Fork Road in that county be made a part of the state’s primary highway system and be reconstructed. Accordingly, the Department, giving his consent, caused a survey to be made and plans to be prepared and, having done this, the Fiscal Court of Perry County, in conformity with KRS 177.060(1), set about to obtain the necessary right of way. There is no dispute that the road was to be built according to the survey and the plans.


        KRS 177.060(1) reads: ‘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.’


        In order to place itself more clearly within the terms and conditions of the quoted subsection, the Fiscal Court of Perry County on November 25, 1957, unamimously adopted this order in part: ‘On motion of Bradley Combs, seconded by McKinely McIntosh, it is ordered by the Perry Fiscal Court, that the court assumes, as between it and the Commonwealth of Kentuckey, Department of Highways, any liability that might arise growing out of any claim based on failure of properly acquired right of way as shown by plans * * *.’


3. Com., Dept. of Highways v. Davidson, 383 S.W.2d 346 (Ky., 1964)   Appellant presents these points as bases for reversal: (1) The Davidsons are estopped by the deeds granting right of way; (2) KRS 177.060 precludes this action against the Department of Highways; and (3) the evidence was not sufficient to sustain the verdict.


        In 1952 the Department of Highways, through an official order of its Commissioner, authorized reconstruction of the Folsomdale-Boaz road in Graves County. The order authorized and directed the Fiscal Court of Graves County to obtain the required right of way for the construction, according to widths and alignments shown by the official plans. This procedure was as prescribed by KRS 177.060; the cited statute, with exceptions not here pertinent, imposes on the county ‘all cost of acquiring any necessary land or right of way for primary road purposes.’ The same statute states ‘* * * and all damages incurred shall be paid by the county.’


 


4. Cantrell v. Pike County, 255 S.W.2d 988 (Ky., 1953)   The liability of a county for the payment of compensation for the taking of private property in the construction of a State highway is fixed by KRS 177.060, which, so far as pertinent, provides as follows:


‘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.’


        Except for the provisions of the statute, there could be no liability against a county for the taking of land or damages resulting from the construction of a highway by the State. Therefore, the liability of the county must be measured by the statute rather than Sections 13 and 242 of the Constitution. Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870, 873, it was held that Jefferson County was not liable under the statutes to an abutting property owner where the State Highway Commission had lowered the grade of a State highway. There, is was said:


‘But whether so or not, we construe the present statute requiring the county to bear the cost of acquiring a right of way and damages incurred by reason thereof or as an incident of construction by the State Highway Commission of state roads as not embracing liability for such damages as is claimed in this case, under such conditions as is described. The thought of the Legislature expressed in the phrase ‘damages incurred’ was undoubtedly damages incident to the acquisition of a right of way in the exercise of the power of eminent domain.’


        We think this case is conclusive of the question presented here. Whatever rights appellants may have, it is clear that there is no liability on the part of Pike County, and the lower court properly directed the verdict for appellee.


 


 


5. Department of Highways v. Corey, 247 S.W.2d 389 (Ky., 1952)  Since the right of way was acquired by the County under authority of KRS 177.060(1) which provides, ‘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’, the Highway Department contends that the County is the proper party to be sued in this action. The right of way purchased by the County was conveyed directly by Mrs. Corey to the ‘Commonwealth of Kentucky for the use and benefit of the Department of Highways,’ and was denominated as a ‘deed for highway purposes’ and a ‘State Right of Way Deed.’ The damage contemplated in KRS 177.060 is the damage or compensation


Page 391


assessed in the acquiring of a right of way, Muhlenberg County v. Ray, 215 Ky. 295, 284 S.W. 1074; Metcalf v. Lyttle, County Judge, 219 Ky. 488, 293 S.W. 979, 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. Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161; Commonwealth v. Kelley, supra. While part of the consideration for the conveyance was the benefit to the adjoining land from the improvement of the road, it hardly can be said that a benefit has occurred when the road has been so constructed that the land adjoining it no longer is usable.


 


6. Dept. of Highways of Kentucky v. Parker, 306 Ky. 14 (KY, 1947)   3. Eminent Domain. ? Actions for alleged wrongful taking of abutting land when department of highways reconstructed a highway was not maintainable against state or its agency, the department of highways, since statute requires county through which road runs, to pay all cost of acquiring right of way for primary road purposes and incidental damages incurred in connection therewith. KRS 177.060; Const. secs. 13, 242.


        4. Eminent Domain. ? An action to recover for taking of land for highway purposes being in the nature of retroactive condemnation of land, the verdict must be agreed to by the entire jury.


 


 


7. Lehman v. Williams, 301 Ky. 729 (KY, 1946) The plaintiff in his petition studiously avoided reference to the Commonwealth of Kentucky apparently upon the theory that a suit, even where property has been taken, cannot be maintained against the state. However, the suit is essentially one against the commonwealth for property taken and for an injunction against its officials and agencies to prevent future injuries. Section 13 of our Constitution provides that no man’s property shall be taken or applied to public use without the consent of his representatives and without just compensation being previously made to him. Kentucky Bell Corporation v. Commonwealth, 295 Ky. 21, 172 S.W. 2d 661, 663, the Corporation sued the Commonwealth of Kentucky, the Department of Highways, the Commissioner of Highways and Bell County for damages for the taking, injuring, and destruction of its real estate in the construction of a state highway. The trial court directed a verdict for the Commonwealth, and the jury returned a verdict in favor of the County. On appeal the judgment was affirmed, both as to the Commonwealth and the County, on the ground there was evidence to support the jury’s finding that the plaintiff had been fully compensated for the property taken, and on the further ground as to the Commonwealth that KRS 177.060 requires the county to pay for the right of way taken for highway purposes whether it be acquired by contract or by condemnation proceedings. However, in the course of the opinion it was said:


        “Plaintiff relies upon 29 C.J.S., Eminent Domain, sec. 195, p. 1095; Kentucky State Park Commission v. Wilder, 256 Ky. 313, 76 S.W. 2d 4 (second appeal reported in 260 Ky. 190, 84 S.W. 2d 38); Kentucky Game and Fish Commission v. Burnette, 290 Ky. 786, 163


Page 731


S.W. 2d 50, as establishing the Commonwealth’s liability under secs. 13 and 242 of the Kentucky Constitution for the taking of its property. These authorities support the rule that 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 the sections of the Constitution just mentioned.”


8. Commonwealth v. Tate, 297 Ky. 826 (KY, 1944)   The Commonwealth contends that the appellees had an adequate remedy at law under KRS 177.060, which provides that 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, and, consequently, the resolution authorizing this suit is special legislation and violative of section 59, subsection 29, of the Kentucky Constitution. In order to eliminate a curve at the point in question and to afford a wider base for the proposed fill, the Department of Highways acquired by purchase or gift a strip of land adjoining its right of way on the north. It does not appear that the county had any part in this transaction. KRS 177.060 reads in part: “(3) When a highway has been located


Page 828


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.”


 


9. Department of Highways v. Current, 299 Ky. 127 (KY, 1944)        3. Statutes. ? Section 177.060, relating to payment for additional right of way required by Highway Department, must be construed as a whole. KRS 177.060.


        4. Eminent Domain. ? Where Department of Highways took property for alteration and relocation of a United States highway, the property owner was not entitled to recover against county in which land was located, but the State alone was liable. KRS 177.060, 177.060 (3); Constitution, sec. 242.


 


 


10. Kentucky Bell Corporation v. Commonwealth, 295 Ky. 21 (KY, 1943)    2. Eminent Domain; Highways. ? The statute providing that county shall pay all cost of acquiring right of way for primary road purposes and incidental damages incurred therein requires county to pay for such right of way, whether acquired by contract or by condemnation proceedings, and even though acquired at Highway Commission’s instance. KRS 177.060.


        3. Eminent Domain. ? In action against Commonwealth, Department of Highways, and county to recover damages for taking, injury and destruction of plaintiff’s realty in construction of state highway, court properly directed verdict for Commonwealth, in view of statute requiring county to pay all cost of acquiring right of way for primary road purposes and incidental damages incurred therein. KRS 177.060; Constitution, secs. 13, 242.


        4. Eminent Domain. ? In action against Commonwealth, Department of Highways, and county to recover damages for taking, injury and destruction of realty in construction of state highway, where parties abandoned as invalid county court’s condemnation judgment and special commissioner’s deed imposing obligation on Commonwealth to remove railroad loading tracks from right of way without expense to plaintiff, county became liable for damages in amount governed by rules applicable to condemnation proceedings, subject to any legal defense it might have. KRS 177.060.


 


 


11. Philpott v. Monroe County, 293 Ky. 236 (KY, 1943)        Eminent Domain. ? County was not liable to owner of realty for damage resulting from construction by state highway commission of state highway adjacent to realty so as to lower grade of street, though county furnished commission with right of way as required by statute, since the state, rather than the county, was liable for any injury to the realty (KRS 177.060).


 


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?  .065   Repealed, 1970.


?  .066   Repealed, 1972.


KRS 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 rightof-


way.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356t-7.


 


ANNOTATION FOR THIS STATUTE:


 


1. Com., Dept. of Highways v. Thacker, 384 S.W.2d 79 (Ky., 1964)    KRS 177.060(1) reads: ‘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.’


        In order to place itself more clearly within the terms and conditions of the quoted subsection, the Fiscal Court of Perry County on November 25, 1957, unamimously adopted this order in part: ‘On motion of Bradley Combs, seconded by McKinely McIntosh, it is ordered by the Perry Fiscal Court, that the court assumes, as between it and the Commonwealth of Kentuckey, Department of Highways, any liability that might arise growing out of any claim based on failure of properly acquired right of way as shown by plans * * *.’


        Shortly thereafter Perry County acquired the right of way for the road project and conveyed, or caused to be conveyed, the land to the Department. In due course the contract for the reconstruction of the road was awarded to John Bullock, d/b/a Bullock Construction Company, one of the appellees. After the completion of the road this action was filed by Fanny Sally Thacker and others against the Department, Perry County and John Bullock, d/b/a Bullock Construction Company. Plaintiff-appellees alleged in their complaint that in the reconstruction of the road the lateral support to and adjoining their property was removed, thereby causing breaks and slips to develop so as to render it valueless and uninhabitable. They asked for damages to the extent of $4000.


        At the trial a verdict was directed for defendants, perry County and John Bullock, but the trial court refused, when so moved, to take similar action in behalf of the Department. The case was submitted to the jury at the conclusion of all the evidence with the result heretofore mentioned.


        The subsection alluded to requires the counties to pay for the necessary right of ways for roads to be improved or constructed by the Department, and, in addition, to compensate for all damages incurred in the execution of the plans and specifications of a road constrcted on the land acquired.


        Breathitt County v. Hudson, 265 Ky. 21, 95 S.W.2d 1132, after stating in general terms that, under KRS 177.060(1), the county is liable for compensation to a property owner where there has been an actual taking or an appropriation of his property, the opinion said: ‘This embraces permanent, substantial trespass, or invasion, or direct injury, or consequential damage, to the remaining land, such as causing slides and subsidence, or the covering of it with debris, where such act was in accordance with prudent plans of the state highway commission.’


        These cases are cited as sustaining this ruling: Harlan County v. Cole, 218 Ky. 819, 292 S.W.2d 501; Terhune v. Gorham, 225 Ky. 249, 8 S.W.2d 431; Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Terhune v. Ben W. Gorham & Co., 229 Ky. 229, 16 S.W.2d 1060; Jones v. Louisville & N. R. Co., 233 Ky. 152, 25 S.W.2d 31; Reed v. Ben W. Gorham & Co., 233 Ky. 215, 25 S.W.2d 377; Barass v. Ohio County, 240 Ky. 149, 41 S.W.2d 928; City of Ashland v. Queen, 254 Ky. 329, 71 S.W.2d 650; Adkins v. Harlan County, 259 Ky. 400, 82 S.W.2d 425.


Page 81


        We are not unmindful, however, of the fact that beginning with Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870, and coming up through Cantrell v. Pike County, Ky., 255 S.W.2d 988, a line of cases has held that a claim against a county is not legally sustainable under KRS 177.060(1) where the Department negligently inflicts damage to that portion of a property owner’s tract which was not acquired for highway purposes. Likewise, a contractor building a road is liable for damages resulting from his own negligence or by reason of an unauthorized trespass upon property off the right of way. Combs v. Codell Construction Co., 244 Ky. 772, 52 S.W.2d 719.


        In the case at bar, the trial court found the road was constructed in strict compliance with the plans and specifications of the Department and, for this reason, a verdict was directed in favor of John Bullock, the contractor who built the road.


        A recovery by appellees from the Department was sought upon the theory that there was a taking of their land, because there was a destruction of a portion of it, and this fact, they alleged, entitled them to compensation from the Department alone under the provisions of Section 13 or Section 242 of the Constitution of Kentucky.


        The plans for the construction of the road called for a cut down the side of a hill which would leave an embankment alongside appellees’ property. The breaks and slips that occurred were an incident, a direct consequence, of carrying out the plans and specifications in the building of the road. As the road was constructed in a proper manner by the contractor, and as it was built in accordance with the terms and conditions of KRS 177.060(1), an obligation was imposed upon Perry County, not only to obtain the necessary right of way, but also to pay for any damages incurred by the property owners, appellees herein.


        In the light of what we have stated the Department is not liable to appellees for the damages they allegedly sustained.


 


 


2. Cantrell v. Pike County, 255 S.W.2d 988 (Ky., 1953)  The liability of a county for the payment of compensation for the taking of private property in the construction of a State highway is fixed by KRS 177.060, which, so far as pertinent, provides as follows:


‘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.’


        Except for the provisions of the statute, there could be no liability against a county for the taking of land or damages resulting from the construction of a highway by the State. Therefore, the liability of the county must be measured by the statute rather than Sections 13 and 242 of the Constitution. Bader v. Jefferson County, 274 Ky. 486, 119 S.W.2d 870, 873, it was held that Jefferson County was not liable under the statutes to an abutting property owner where the State Highway Commission had lowered the grade of a State highway. There, is was said:


‘But whether so or not, we construe the present statute requiring the county to bear the cost of acquiring a right of way and damages incurred by reason thereof or as an incident of construction by the State Highway Commission of state roads as not embracing liability for such damages as is claimed in this case, under such conditions as is described. The thought of the Legislature expressed in the phrase ‘damages incurred’ was undoubtedly damages incident to the acquisition of a right of way in the exercise of the power of eminent domain.’


 


 


3. Department of Highways v. Corey, 247 S.W.2d 389 (Ky., 1952) Since the right of way was acquired by the County under authority of KRS 177.060(1) which provides, ‘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’, the Highway Department contends that the County is the proper party to be sued in this action. The right of way purchased by the County was conveyed directly by Mrs. Corey to the ‘Commonwealth of Kentucky for the use and benefit of the Department of Highways,’ and was denominated as a ‘deed for highway purposes’ and a ‘State Right of Way Deed.’ The damage contemplated in KRS 177.060 is the damage or compensation


Page 391


assessed in the acquiring of a right of way, Muhlenberg County v. Ray, 215 Ky. 295, 284 S.W. 1074; Metcalf v. Lyttle, County Judge, 219 Ky. 488, 293 S.W. 979, 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. Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161; Commonwealth v. Kelley, supra. While part of the consideration for the conveyance was the benefit to the adjoining land from the improvement of the road, it hardly can be said that a benefit has occurred when the road has been so constructed that the land adjoining it no longer is usable.


 


4. Commonwealth v. Tate, 297 Ky. 826 (KY, 1944)    KRS 177.070 provides that “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.” When condemnation proceedings are resorted to by the Department of Highways, suit must be brought by the county attorney. KRS 177.080. Thus it is contemplated by the statutes governing the acquirement of rights of way for state highways that the county shall have a voice in the agreement or proceedings whereby such rights of way are acquired where it is required to pay the cost and damages. Here the Department of Highways owned a right of way on which it had maintained a highway for many years and it had a right to and did acquire additional right of way required as a result of a change in the highway. Under the circumstances, the county was not liable for the cost of the additional right of way nor for consequential damages resulting from the reconstruction of the road. Bader v. Jefferson County, 274 Ky. 486, 119 S.W. 2d 870. Consequently, appellants’ first contention falls.


 


5. Campbell County v. Braun, 295 Ky. 96 (KY, 1943)   1. Counties. ? The fiscal court is the governing body of a county and can speak only through its records and, therefore, citizens of county interested in construction of highway and in obtaining right of way therefor could only bind county if authorized to do so by an order duly entered by fiscal court. KRS 177.070.


        2. Fraud. ? In action against county for value of land taken for highway and damages to plaintiff’s farm therefrom, petition alleging that certain citizens and state highway engineer fraudulently represented to plaintiff that road would provide him with many building site lots abutting on road and would greatly enhance value of farm, though they knew that plans of road called for deep cuts and high fills which would make road inaccessible to abutting land, was insufficient, as against demurrer, for failure to allege any order by fiscal court appointing such citizens to represent fiscal court in obtaining right of way or order ratifying or approving their action. KRS 177.070.


        3. Counties ? Under statute providing method for fiscal court to acquire rights of way for highway purposes, fiscal court alone is invested with this power and cannot delegate it to others. KRS 177.070


 


 


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KRS 177.072 Motorcycle awareness signs.


(1) As used in this section:


(a) “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


(b) “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.


Effective: June 20, 2005


History: Created 2005 Ky. Acts ch. 113, sec. 1, effective June 20, 2005.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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 on the provisions of this section.


History: Created 1974 Ky. Acts ch. 317, sec. 1.


 


ANNOTATION FOR THIS STATUTE:


 


1. Com., Dept. of Transp. v. Central Kentucky Angus Ass’n, 555 S.W.2d 627 (Ky. App., 1977)  The Bureau of Highways is required by KRS 177.073 to erect official directional signs pertaining to both privately and publicly owned natural wonders, scenic attractions, etc. under regulations promulgated by the Commissioner of Highways. Nothing in the statute grants authority to private individuals to erect and maintain such signs while waiting for the Bureau of Highways to take action under the statute.


        The constitutionality of KRS 177.830-177.890 (The Billboard Act) was upheld Moore v. Ward, Ky., 377 S.W.2d 881 (1964).


        In our opinion these statutes envision a program under which only carefully selected signs, deemed by an administrative agency to be in the interest of the travelling public, shall be erected. There is no authorization for the agency or the courts to exempt certain private signs from the prohibition of the act even though the signs may, in some instances, announce the presence of an outstanding attraction which would merit notice to the travelling public under the guidelines established by the statutes and regulations thereunder.


        Owners of private attractions who desire the erection of highways signs advising the motoring public of those attractions are required to proceed under KRS 177.073.


 


 


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KRS 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.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 526, sec. 5, effective July 15, 1998. — Created


1992 Ky. Acts ch. 402, sec. 1, effective July 14, 1992.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 526, sec. 6, effective July 15, 1998. — Amended


1994 Ky. Acts ch. 90, sec. 1, effective July 15, 1994. ? Created 1992 Ky. Acts


ch. 402, sec. 2, effective July 14, 1992.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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:


(a) Selection of eligible businesses;


(b) Distances to eligible businesses;


(c) Acceptance of logo signs that conform to the MUTCD;


(d) Removing or covering logo signs during off-seasons for eligible businesses


operated on a seasonal basis;


(e) Defining the circumstances in which specific service signs are erected; and


(f) Determining the costs to eligible businesses for initial installation, annual


maintenance, and removal of logo signs.


Effective: July 14, 1992


History: Created 1992 Ky. Acts ch. 426, sec. 1, effective July 14, 1992.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: June 24, 2003


History: Amended 2003 Ky. Acts ch. 57, sec. 1, effective June 24, 2003. — Created


2002 Ky. Acts ch. 298, sec. 1, effective July 15, 2002.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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:


(a) Shall name a road or road segment to comply with the provisions of


subsections (2) and (3) of this section; and


(b) 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 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:


(a) The trooper’s name;


(b) The name and address of any living relatives of the trooper, if known;


(c) Date and circumstances of the trooper’s death; and


(d) 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 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 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 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 has been petitioned


to name a road or bridge presented in the resolution and if so petitioned, his 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.”


Effective: July 15, 2002


History: Amended 2002 Ky. Acts ch. 64, sec. 2, effective July 15, 2002. — Amended


1996 Ky. Acts ch. 356, sec. 2, effective July 15, 1996. — Created 1990 Ky. Acts


ch. 180, sec. 1, effective July 13, 1990.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 177.0745 Designation of Grange City Covered Bridge.


The Hillsboro Covered Bridge in Fleming County is renamed and designated the “Grange


City Covered Bridge.”


Effective: July 15, 1998


History: Created 1998 Ky. Acts ch. 404, sec. 2, effective July 15, 1998.


 


NO ANNOTATION FOR THIS STATUTE:


 


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?  .075   Repealed, 1952.


KRS 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:


(a) Lodging facilities; or


(b) 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


(c) 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:


(a) Contains a minimum of fifty thousand (50,000) square feet of building space;


(b) Is located on property encompassing at least five (5) acres adjacent or


complementary to a cultural, recreational, or entertainment facility, or natural


recreational area;


(c) Provides a variety of entertainment and leisure options;


 (d) 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


(e) 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.


Effective: July 14, 2000


History: Amended 2000 Ky. Acts ch. 353, sec. 1, effective July 14, 2000. — Created


1998 Ky. Acts ch. 526, sec. 1, effective July 15, 1998.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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:


(a) 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;


(b) 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:


(a) 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;


(b) 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.


Effective: July 14, 2000


History: Amended 2000 Ky. Acts ch. 353, sec. 2, effective July 14, 2000. — Created


1998 Ky. Acts ch. 526, sec. 2, effective July 15, 1998.


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.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 177.078 Application — Fees.


(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:


(a) Evidence that demonstrates the average annual attendance;


(b) Evidence that the tourist area or attraction is established as a permanent


business; and


(c) 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 pay a fee not to exceed five


hundred dollars ($500) per year for a period of ten (10) years or the total cost of the


sign and its installation, amortized for a period of ten (10) years, whichever is less,


to the Transportation Cabinet.


Effective: July 14, 2000


History: Amended 2000 Ky. Acts ch. 353, sec. 3, effective July 14, 2000. — Created


1998 Ky. Acts ch. 526, sec. 3, effective July 15, 1998.


 


ANNOTATION FOR THIS STATUTE:


 


1. Sheffield v. Com., Dept. of Highways, 376 S.W.2d 688 (Ky., 1964)  After the judgment was entered in county court Sheffield and Coy made timely filing of a statement of appeal in Hopkins Circuit Court pursuant to KRS 177.078. A statement of appeal was filed in which only Jess Sheffield and Raymond Coy were designated as appellants; the Department was designated as appellee. No reference was made to the two coal companies. None was necessary. Sheffield and Coy were authorized to appeal to the circuit court; it was not necessary for them to name the two coal companies as parties. See Riley v. Commonwealth of Kentucky, 1963, Ky., 375 S.W.2d 245. The Riley decision completely governs the instant appeal; the ruling of the circuit court was erroneous.


 


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KRS 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.


Effective: July 15, 1998


History: Created 1998 Ky. Acts ch. 526, sec. 4, effective July 15, 1998.


 


NO ANNOTATION FOR THIS STATUTE:


 


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?  .080   Repealed, 1950.


KRS 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.


Effective: July 15, 1980


History: Amended 1980 Ky. Acts ch. 231, sec. 2, effective July 15, 1980. — Amended


1976 Ky. Acts ch. 140, sec. 74. — Amended 1974 Ky. Acts ch. 74, Art. IV,


sec. 20(1). — Created 1952 Ky. Acts ch. 49, secs. 1 and 10, effective June 19, 1952.


 


ANNOTATION FOR THIS STATUTE:


 


1. Kelly v. Thompson, 983 S.W.2d 457 (Ky., 1998)    As properly noted by the Court of Appeals, KRS 177.081 is the statutory basis for the power of eminent domain exercised by the Transportation Cabinet in conformity with Sections 13 and 242 of the Kentucky Constitution. It is within the authority of the General Assembly to define the limits of the right of eminent domain and to establish the specific terms under which the condemning authority may exercise such power. As such, it would necessarily include defining the property interest taken and retained in an eminent domain action.


Page 459


        Following the amendment of KRS 416.670 in 1980, which gave condemnees and their successors the right to repurchase under certain statutory conditions property taken by the State, this Court held in Miles, supra, at 370, that:


The statute provides the state with a simple and direct method of giving property owners the right to seek return of property previously condemned and later determined to be unneeded for the project…. A holding that any portion of the condemned land which is not developed by the state should be offered to the original property owner for repurchase is certainly not a burden on the state but is actually a benefit to both the Commonwealth and the citizen property owners which was clearly contemplated by the general assembly in adopting the statute.


        We are persuaded that the rationale of Miles should be applied in this case. This Court has clearly established the right of a property owner to repurchase land declared as surplus by the Commonwealth in Miles. See also City of Covington v. Hardebeck, Ky.App., 883 S.W.2d 499 (1994). KRS 416.670 was amended so as to apply to condemnations occurring both prior to and after 1980 provided the property owner seeks to exercise the right of repurchase given to him in conformity with the statutory conditions. In 1980, the Commonwealth provided the Thompsons with a “right of redemption” in property it owned which they previously did not have. Accordingly, they or their successors have the right to exercise that right in conformity with KRS 416.670.


 


3. Com. Transp. Cabinet Dept. of Highways v. Taub, 766 S.W.2d 49 (Ky., 1988)    In support of its contention that the Court of Appeals erred in reversing the trial court, the Commonwealth directs our attention to KRS 177.081, an act by which the Legislature delegated broad authority to the bureau of highways (Department of Transportation) to determine necessity and condemn land for an adequate system of highways. The Commonwealth contends that the Secretary exercised his discretion under the statute in an informed manner in making such determination, and absent a showing of fraud, bad faith, or abuse of discretion, the decision of the Secretary is final. The Commonwealth relies upon this Court’s decisions Commonwealth, Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262 (1963) and Commonwealth, Dept. of Highways v. Vandertoll, Ky., 388 S.W.2d 358 (1965).


 


4. Mother of God Cemetery Ass’n, Inc. v. Com., Transp. Cabinet, Dept. of Highways, 759 S.W.2d 69 (Ky. App., 1988)   The first issue is whether the section of the cemetery charter exempting the land from taking by condemnation is invalid. The cemetery is in a relatively unusual position in that this exemption was granted specifically to this property by an Act of the General Assembly. This Act is still in effect and has the force of a statute. Thus, no part of it should be declared invalid unless specifically repealed by the legislature or unless there is an unavoidable inconsistency with a later statute which makes it impossible for both acts to stand. Hallahan v. Sawyer, Ky., 390 S.W.2d 664 (1965). Repeals of statutes by implication are not favored. Logsdon v. Howard, 280 Ky. 342, 133 S.W.2d 60 (1939). Here the later statutes in question are those generally pertaining to the Department of Highway’s power of eminent domain, KRS 177.081 and KRS 416.540-416.680, and do not refer to the cemetery property nor to the Act of the General Assembly of 1888 Chapter 35. A general statute is not to be construed as repealing a previous particular act absent some express reference thereto or complete irreconcilability therewith. City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404 (1961). Neither is present in this case. The two are capable of coexisting without contradiction until one tries to apply them to the cemetery property. At that time the specific exemption prevails over the general legislation. Fiscal Court Commissioners of Jefferson County v. Jefferson County Judge/Executive, Ky.App., 614 S.W.2d 954, 958 (1981), citing City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969). It is a basic rule of statutory construction that the intention of the legislature should be ascertained and given effect. Fiscal Court Commissioners, supra, 614 S.W.2d at 957 citing Fiscal Court of Jefferson County v. City of Louisville, Ky., 559 S.W.2d 478 (1977). Looking at Section 2(a) of the 1888 Act Chapter 35, it is clear that the legislature was cognizant of the power of the state to take property and intended to exempt this particular property therefrom. Reviewing KRS 177.081 and KRS 416.540-416.680, it is evident that the legislature intended to set forth procedures for exercising the power of eminent domain, and to grant the power to the Transportation Cabinet. We see no inherent inconsistency between the two. Further, we presume that had the legislature intended the subsequent act to repeal the former one, it would have expressed itself so as to leave no doubt as to its purpose. Oldham County v. Arvin, 251 Ky. 317, 64 S.W.2d 907 (1933).


 


5. Com., Dept. of Transp., Bureau of Highways v. Catlett, 568 S.W.2d 759 (Ky. App., 1978)    KRS 177.081 read, in essential part, as follows:


(1) The commonwealth of Kentucky, bureau of highways, . . . may . . . condemn the lands . . . designated as necessary.


(2) The proceedings for condemnation shall be as provided in the Eminent Domain Act of Kentucky.


        KRS 416.570 provided as follows:


Filing of Petition. . . . a condemnor seeking to condemn property or the use and occupation thereof, shall file a verified petition in the Circuit court of the county in which all or the greater portion of the property sought to be condemned is located . . . (Emphasis added).


        KRS 177.082 read as follows:


County attorney to represent bureau of highways in condemnation proceedings Petition. The commonwealth of Kentucky, bureau of highways, when seeking to condemn lands . . . shall direct the county attorney or any attorney authorized to represent the commonwealth to file a petition in the office of the County court clerk in the county in which all or the greater portion of the land . . . is located. (Emphasis added).


        Thus we have two specific statutes, one directing that the verified petition be filed in the circuit court and the other directing that the petition be filed in the office of the county court clerk. This is not a question of a general statute against a specific statute but is, instead, two specific statutes.


        Although the intent of the legislature is manifestly clear, we do not have to speculate on legislative intent in such a situation. The law is clearly set out in the case of Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962 (1939), when the court said, “All statutes are presumed to be enacted for the furtherance of a purpose of the legislature and should be construed so as to accomplish such purpose rather than to render them nugatory.” At worst, these conflicting statutes granted concurrent jurisdiction and did not grant sole jurisdiction to the county court.


        Accordingly, these cases are reversed and remanded to the lower court for further proceedings consistent herewith.


 


 


6. Com., Dept. of Highways v. Salmon Corp., 489 S.W.2d 32 (Ky., 1972) The ground on which the circuit court denied the right to condemn the access-road parcel was that no official order had been entered, as required by KRS 177.081, designating that parcel as necessary for the construction of an adequate system of highways. The petition in the condemnation proceedings, filed in the county court in September 1970, referred to an order of the Commissioner of Highways dated March 20, 1964, which order described a segment of I–64 to be constructed in Fayette, Scott and Woodford Counties, recited that ‘In order to construct and maintain this facility, it is necessary that additional rght of way be provided,’ and declared:


‘It is hereby declared a public necessity that this right of way be obtained according to the alignment and widths as shown on the plans, which are on file in the Frankfort Office of the Department of Highways, as this alignment and these widths are necessary for the proper construction and maintenance of this facility. * * *’ (our emphasis)


        The plans on file at the time the order was entered did not call for acquisition of right of way for the Hamilton access road. It appears that the plans were changed to include that road about one year after the order was entered, but the order never was amended or reissued.


        The pertinent provisions of KRS 177.081 are as follows:


‘(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


Page 34


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. * * * 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.’ (our emphasis)


 


7. Maze v. Com., Dept. of Highways, 461 S.W.2d 72 (Ky., 1970) KRS 177.081 states, in part: ‘* * * (T)he 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.’ Commonwealth, Dept. of Highways v. Burchett, Ky., 1963, 367 S.W.2d 262, in discussing this statutory provision, held that when the department of highways by official order determines that an acquisition is necessary a condemnee, in order to defeat such an acquisition, has the burden of proving fraud, bad faith, or abuse of discretion.


‘Here, appellant proved that plans for the highway are not ‘finalized.’ Commissioner of Highways, Henry Ward, testified the land would be used for a roadside park and rest area and that a pedestrian crosswalk is contemplated at this site. He stated that the department of highways wishes to preserve, as far as possible, the parklike atmosphere of the area, for the reason that it is situated next to Seneca Park. He also mentioned that the median strip of the travel portion of the highway might be extended from the usual 45 feet to 60 feet.’


‘In the case at hand, appellees failed to establish even a scintilla of fraud, bad faith, or abuse of discretion upon the part of appellant in its proceeding to condemn appellees’ tract of land. It follows that the finding of the trial court was clearly erroneous under CR 52.01 in determining that necessity did not exist for taking the entire acreage.’


Page 75


8. Com., Dept. of Highways v. Boyer, 434 S.W.2d 630 (Ky., 1968)     This is a highway condemnation case in which the Commonwealth appeals a judgment of the Henry Circuit Court. Trial was had after a proceeding in the county court pursuant to KRS 177.081 through 177.089.


        The Commonwealth condemned 32.42 acres as right-of-way for I–71 cutting a swath through the 138 acre farm of Paul and Helen Boyer, appellees, located in Henry County. The taking severed 24.44 acres from the main tract. Substantially all improvements are on the larger portion. Commissioners appointed by the county court awarded the appellees $13,628.80 for the property taken and the circuit court action resulted in a verdict of $16,000.00.


        The Commonwealth sets forth two grounds for reversal:


‘I The trial court erred in overruling appellant’s motion to strike estimates of value of appellees’ witnesses which were based upon irrelevant measure of value in that a separate fixing of damages for fencing was made by each of appellees’ witnesses.


II The verdict is palpably excessive and it is not supported by evidence of probative value.’


        In view of our disposition of the case it will be necessary to address ourselves to the first argument only.


        The Commonwealth agreed to fence both sides of the right-of-way for I–71 and to construct a service or ‘frontage’ road for


Page 631


access to the severed 24.44 acre tract. The appellees maintain that in order to utilize this 24.44 acres it will be necessary for them to construct a fence along the east boundary of the tract, separating that portion of their farm from the service road. The fence would be about 200 rods in length and serve to keep stock from wandering upon the service road.


 


‘Under the rule promulgated in this opinion, that only before and after values are to be considered, there is no place for a separate allowance for fencing. Certainly the landowner is not entitled to fencing costs on top of an allowance for the total diminution of value of his property. * * * We hereby abolish the old fencing rule and we hold that the provisions of KRS 416.110 for separate fixing of damages for fencing, trees and shrubbery are inoperative, for the same reason as stated above why statutory provisions requiring the separate fixing of taking and resulting damages are inoperative.’


        Since Sherrod we have consistently ruled against the separate pricing of various items of damage claimed. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963); Com., Dept. of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249 (1964); Com., Dept. of Highways v. Hopson, Ky., 396 S.W.2d 805 (1965); Com., Dept. of Highways v. Conley, Ky., 386 S.W.2d 750 (1965); Com., Dept. of Highways v. Cottrell, Ky., 400 S.W.2d 228 (1966); Com., Dept. of Highways v. Larence, Ky., 426 S.W.2d 776 (1966); and Snyder v. Com., Dept. of Highways, Ky., 423 S.W.2d 890 (1968).


        Constant reiteration by this court of the proper procedure to be followed in ascertaining the before and after value of property involved is not desirable, but in order to emphasize the distinctions involved in


Page 632


this quest, we repeat our previous statement from Tyree, supra.


‘A further conclusion is that in the trial of condemnation cases it should be kept in mind at all times that the various elements and factors of damage that may be involved are not items of damage to be priced and totalled for the purpose of reaching a verdict, but are only reasons to be given in support of opinion testimony of before and after values–the tract of land would bring a stated price before the taking because of certain features it possessed, and would bring a stated (lower) price after the taking because of certain conditions resulting from the taking.’


        In Com., Dept. of Highways v. Larence, supra, we said:


‘All property has both advantages and disadvantages that contribute to or detract from its value. It is virtually impossible to make detailed calculations as to what measures and what expenditures are necessary to restore property to its former use or adapt it to its highest and best use without entering the realm of conjecture. Real estate has market value on an ‘as is’ basis, and the soundest course is to adhere to simple before and after values on that basis. Under ordinary circumstances the expert valuation witnesses for either side may point out in a general way those things which in their opinion must or can be done in order to adapt or restore the property to its highest and best use and which, presumably, a prospective buyer of the property in its present condition (after the taking) would take into consideration in arriving at the price he would be willing to pay for it, but not in terms of cost figures or other similar details.’


        We have quoted the above rules to make it crystal clear that while ‘supporting facts’ are admissible, Tyree, supra, dollar figures must not be placed on individual damage factors. It is overall values which are to be presented, although it is proper, however, on cross-examination, to delve into factors used by the witness to ascertain whether he has reached the values in a manner which we have approved. Com., Dept. of Highways v. Napier, Ky., 387 S.W.2d 861 (1965).


 


10. Cartmell v. Urban Renewal and Community Development Agency of City of Maysville, 430 S.W.2d 649 (Ky., 1968) follows, therefore, that the landholder cannot, after the tender to him of the damages awarded by the verdict of the jury in the circuit court, delay the railroad company in taking possession of the land under the judgment by the execution of a supersedeas bond.’


        Stillpass v. Kenton County Airport Board, Inc., Ky., 403 S.W.2d 46 (1966), a condemnation suit under KRS 183.133(5) and KRS 177.081 et seq., we said: ‘When the right to take is in issue, and 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.’ KRS 177.087(3) provided that ‘Appeals may be taken to the Court of Appeals from the final judgment of the circuit court as in other cases except that an appeal by the owner shall not operate as a supersedeas.’ The statutes controlling Stillpass did not prohibit the court from enjoining a taken during an appeal to the circuit court.


        Many other eminent domain statutes prohibit interference with a public or quasi-public project through delays while appeals are pending above the circuit court level. See KRS 94.710(3) Public purpose in second class cities; KRS 177.087(3) Highways; KRS 416.080 Railroads; KRS 416.200 Telephone lines; and KRS 416.280(3) Pipelines. Obvious legislative intent is to protect public or quasi-public projects against delays even though the rights of the condemnee remain in litigation. 1


 


 


11. Com., Dept. of Highways v. Stamper, 424 S.W.2d 821 (Ky., 1967) The condemnees challenged the Department’s right to proceed on the basis that there had not been good faith efforts looking toward negotiation with the owners prior to the institution of the condemnation proceedings as required by KRS 177.081(1). On January 17, 1966, a hearing was had in the Carter County Court at which evidence was heard on that issue. On the same date, the county judge signed a purported judgment upholding the right of the Department to proceed and permitting the Department to take possession of the condemned land upon its payment into court of $30,000, the amount fixed by the commissioners. The purported judgment was recorded in the county court order book by means of a photostatic process so that the order book reflected an exact picture of the judgment as originally typed and as originally signed by the county judge. However, the county judge did not at that time sign the judgment on the county court order book.


 


12. Stillpass v. Kenton County Airport Bd., Inc., 403 S.W.2d 46 (Ky., 1966)   This is an attempt by the defendant landowners in a condemnation proceeding instituted under the provisions of KRS 183.133(5) and KRS 177.081 et seq. to appeal from an order and amended order of the circuit court determining that the condemnor has the right to take the property in question and overruling the landowners’ motion for an injunction.


        So far as the injunctive aspect of the proceeding is concerned, CR 65.07 provides the correct procedure for securing interlocutory relief from this court when it has been denied by the trial court. That procedure was not invoked in this case.


        With respect to the determination that the condemnor has the right to take, although the order recites that it ‘constitutes a final adjudication of the issue of Appellee’s right to take, and that the only issue remaining in this case is the issue of just compensation,’ nowhere in either of the orders is contained ‘a determination that there is no just reason for delay,’ which is specifically required by CR 54.02 in order to render appealable any decision that does not dispose of all the issues in a case. Hence the attempted appeal must be dismissed. Peters v. Board of Education of Hardin County, Ky., 378 S.W.2d 638 (1964).


        Since the parties have gone to the trouble of briefing the case on its merits, and in order to avoid the necessity of encountering the question again on a subsequent appeal, we shall nevertheless extend this opinion to clarify the present status of the issue of whether the condemnor has the right to take.


        In accordance with KRS 177.082 the action was brought in the Boone County Court. As permitted by KRS 177.085, an answer was filed challenging the right to condemn. Without conducting a hearing on that issue, though a hearing is required by KRS 177.086(4), the county court appointed commissioners, received their report, and entered a judgment finding that the petitioner has the right to condemn and awarding the amount of compensation fixed by the commissioners’ report.


        Conceiving that the judgment of the county court was void or, if only voidable, the court was acting so erroneously and in violation of their constitutional rights that extraordinary relief was authorized, the landowners filed in this court a petition for temporary and permanent writs to prohibit the county judge from authorizing the petitioner to take possession. Our opinion Stillpass v. Niblack, Ky., 378 S.W.2d 794 (1964), pointed out that this is the wrong court in which to bring a prohibition suit against a county judge and that in any event a direct appeal to the circuit court in the condemnation proceeding was an adequate avenue of relief. It was noted also in that opinion that the landowners in the meantime had unsuccessfully sought a writ of prohibition from the Boone Circuit Court, but that the record before us did not disclose whether they had appealed either the county court judgment in the condemnation case or the circuit court judgment in the prohibition case.


Cumulative citations:


 


13. Com., Dept. of Highways v. Musick, 400 S.W.2d 513 (Ky., 1966)


 


14. Com., Dept. of Highways v. Citizens Ice & Fuel Co., 394 S.W.2d 903 (Ky., 1965)


 


15. Com., Dept. of Highways v. York, 390 S.W.2d 190 (Ky., 1965)


 


16. Com., Dept. of Highways v. Belk, 389 S.W.2d 920 (Ky., 1965)


 


17. Com., Dept. of Highways v. Bennett, 387 S.W.2d 594 (Ky., 1965)


 


18. Com., Dept. of Highways v. Congregation Anshei S’Fard, 390 S.W.2d 454 (Ky., 1965)


 


19. Com., Dept. of Highways v. Bennett, 386 S.W.2d 733 (Ky., 1965)


 


20. Sturgill v. Com., Dept. of Highways, 384 S.W.2d 89 (Ky., 1964)


 


21. Com., Dept. of Highways v. Parsons, 383 S.W.2d 360 (Ky., 1964)


 


22. Com., Dept. of Highways v. Vandertoll, 388 S.W.2d 358 (Ky., 1964)


 


23. Com., Dept. of Highways v. West, 383 S.W.2d 116 (Ky., 1964)


 


24. Robinette v. Com., Dept. of Highways, 380 S.W.2d 78 (Ky., 1964)


 


25. Sheffield v. Com., Dept. of Highways, 376 S.W.2d 688 (Ky., 1964)


 


26. Com., Dept. of Highways v. C. S. Brent Seed Co., 376 S.W.2d 310 (Ky., 1964)


 


27. Com., Dept. of Highways v. Swift, 375 S.W.2d 691 (Ky., 1964)


 


28. Riley v. Com., Dept. of Highways, 375 S.W.2d 245 (Ky., 1963)


 


29. Com., Dept. of Highways v. Burchett, 367 S.W.2d 262 (Ky., 1963)


 


30. Com., Dept. of Highways v. Berryman, 363 S.W.2d 525 (Ky., 1962)


 


31. Com., Dept. of Highways v. Fultz, 360 S.W.2d 216 (Ky., 1962)


 


32. Com., Dept. of Highways v. Cardinal Hill Nursery, Inc., 343 S.W.2d 842 (Ky., 1961)


 


33. Com. v. Mayo, 324 S.W.2d 802 (Ky., 1959)


 


34. Collins v. Com., 324 S.W.2d 406 (Ky., 1959)


 


35. Com. Dept. of Highways v. Snyder, 309 S.W.2d 351 (Ky., 1958)


 


36. White v. Com., 287 S.W.2d 625 (Ky., 1955)


 


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KRS 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.


Effective: January 2, 1978


History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 166, effective January


2, 1978. — Amended 1976 Ky. Acts ch. 140, sec. 75. — Amended 1974 Ky. Acts


ch. 74, Art. IV, sec. 20(1). — Created 1952 Ky. Acts ch. 49, sec. 2, effective June 19, 1952.


 


ANNOTATION FOR THIS STATUTE:


 


1. Com., Dept. of Transp., Bureau of Highways v. Catlett, 568 S.W.2d 759 (Ky. App., 1978) The appellants appeal from an order in each of these cases dismissing two condemnation proceedings for lack of jurisdiction. The lower court ruled that KRS 177.082 mandates that these actions and all like them should be filed in the county court and that the Franklin Circuit Court had no jurisdiction over the proceedings.


        The history of condemnation proceedings in Kentucky discloses that in 1952 the Acts provided that all such proceedings should be commenced in the county court of the county in which the land was located. In 1970,


Page 760


an alternate method was provided, granting to the county court and circuit court concurrent jurisdiction over such proceedings. In 1976, pursuant to a research project, the legislature attempted to put all condemnation proceedings in the circuit court, seeking to simplify the procedure. However, the legislature failed to repeal KRS 177.082 in spite of enacting new statutes and in spite of enacting the Eminent Domain Act of Kentucky (KRS 416.540-416.670). At the special session in 1976, this oversight was cured but in the hiatus, and at the time these actions were brought, both KRS 177.081 and KRS 177.082 were in effect.


        KRS 177.081 read, in essential part, as follows:


(1) The commonwealth of Kentucky, bureau of highways, . . . may . . . condemn the lands . . . designated as necessary.


(2) The proceedings for condemnation shall be as provided in the Eminent Domain Act of Kentucky.


        KRS 416.570 provided as follows:


Filing of Petition. . . . a condemnor seeking to condemn property or the use and occupation thereof, shall file a verified petition in the Circuit court of the county in which all or the greater portion of the property sought to be condemned is located . . . (Emphasis added).


        KRS 177.082 read as follows:


County attorney to represent bureau of highways in condemnation proceedings Petition. The commonwealth of Kentucky, bureau of highways, when seeking to condemn lands . . . shall direct the county attorney or any attorney authorized to represent the commonwealth to file a petition in the office of the County court clerk in the county in which all or the greater portion of the land . . . is located. (Emphasis added).


        Thus we have two specific statutes, one directing that the verified petition be filed in the circuit court and the other directing that the petition be filed in the office of the county court clerk. This is not a question of a general statute against a specific statute but is, instead, two specific statutes.


        Although the intent of the legislature is manifestly clear, we do not have to speculate on legislative intent in such a situation. The law is clearly set out in the case of Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962 (1939), when the court said, “All statutes are presumed to be enacted for the furtherance of a purpose of the legislature and should be construed so as to accomplish such purpose rather than to render them nugatory.” At worst, these conflicting statutes granted concurrent jurisdiction and did not grant sole jurisdiction to the county court.


        Accordingly, these cases are reversed and remanded to the lower court for further proceedings consistent herewith.


 


 


2. Stillpass v. Kenton County Airport Bd., Inc., 403 S.W.2d 46 (Ky., 1966)  In accordance with KRS 177.082 the action was brought in the Boone County Court. As permitted by KRS 177.085, an answer was filed challenging the right to condemn. Without conducting a hearing on that issue, though a hearing is required by KRS 177.086(4), the county court appointed commissioners, received their report, and entered a judgment finding that the petitioner has the right to condemn and awarding the amount of compensation fixed by the commissioners’ report.


        Conceiving that the judgment of the county court was void or, if only voidable, the court was acting so erroneously and in violation of their constitutional rights that extraordinary relief was authorized, the landowners filed in this court a petition for temporary and permanent writs to prohibit the county judge from authorizing the petitioner to take possession. Our opinion Stillpass v. Niblack, Ky., 378 S.W.2d 794 (1964), pointed out that this is the wrong court in which to bring a prohibition suit against a county judge and that in any event a direct appeal to the circuit court in the condemnation proceeding was an adequate avenue of relief. It was noted also in that opinion that the landowners in the meantime had unsuccessfully sought a writ of prohibition from the Boone Circuit Court, but that the record before us did not disclose whether they had appealed either the county court judgment in the condemnation case or the circuit court judgment in the prohibition case.


Page 48


 


 


3. Com., Dept. of Highways v. Gisborne, 391 S.W.2d 714 (Ky., 1965)  Therefore, since we conclude this was a condemnation proceeding in essence, or the acts of the Department constituted what is sometimes called a condemnation in reverse, the proper forum for court action was in the county where the land lay, namely, in Hardin County. See KRS 177.082.


        The next contention is that the Department should have received a deed to the property affected by this litigation. As the sole issue involved was the amount of compensation, if any, to be paid for the use of or injury to the strip of land, the trial court did not err when it refused to order that the strip be conveyed to the Department. Admittedly there was no taking of the land itself; hence, there was no necessity for a deed. Keck v. Hafley, Ky., 237 S.W.2d 527.


 


 


4. Com., Dept. of Highways v. Harkness, 383 S.W.2d 359 (Ky., 1964) The appellant, Commonwealth of Kentucky, Department of Highways, brought condemnation proceedings in the Bell County Court seeking to condemn certain property owned by the appellee Mary Elizabeth Harkness, who had been adjudged to be an incompetent person. Her guardian ad litem filed his report stating he was unable to make any defense. The Commonwealth did not put on any proof showing the right to condemn. (The official order of the Department of Highways designating the property needed is conclusive of the public use of the property. KRS 177.082. The


Page 360


order was not filed.) Judgment was taken awarding the appellee $2,000 as compensation for the property taken.


        The Commonwealth appealed to the Bell Circuit Court. On motion of appellee’s committee (who was appointed after judgment was rendered in the county court), the appeal was dismissed and the cause remanded to the Bell County Court. Although that was not the proper method by which to dispose of the appeal, we have considered the circuit court’s action as tantamount to an order of reversal.


        The judgment of the county court was defective because the necessary affirmative allegations were not proved by the Commonwealth. CR 8.04 provides in part:


‘* * * Averments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading, except that the following allegations must be proved:


‘(1) Those against a person under any disability. * * *’


        The incompetency of the appellee was known at the time the condemnation suit was filed, but the proceedings taken thereafter did not conform to the directions of CR 8.04.


        The county court judgment here was voidable. Since it was reversed by the circuit court its cure had to be effected in the county court. To that end the Commonwealth produced the official order designating the property needed and caused a second judgment to be entered in county court. Appeal from that judgment was dismissed by the Bell Circuit Court, which is the subject of this action before us.


        We have already shown that the Commonwealth proceeded properly in returning to county court and correcting the error made in the first judgment. After the averments in the Commonwealth’s complaint were proved the county court correctly entered a second judgment. It had jurisdiction of the parties and of the subject matter.


        The only question remaining concerns the failure of the Commonwealth to name the appellee’s committee in the statement of parties to the appeal to circuit court. KRS 177.087 provides that a statement of parties to an appeal shall be filed, and we held White v. Commonwealth, Ky., 287 S.W.2d 625, that failure to name the necessary parties is cause for dismissing the appeal. Although CR 4.04(3) provides that service shall be made upon a person of unsound mind by serving his resident guardian or committee, if there is one known to the plaintiff, nevertheless the real party in interest is the incompetent person himself. The effect of that rule is not so extensive as to make the committee a necessary party to this action. Failure to name the committee in the statement of the parties to the appeal, therefore, was not fatal.


 


 


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?  .083   Repealed, 1976.


?  .084   Repealed, 1976.


?  .085   Repealed, 1976.


?  .086   Repealed, 1976.


?  .087   Repealed, 1976.


?  .088   Repealed, 1976.


?  .089   Repealed, 1976.


KRS 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: — Amended 1976 Ky. Acts ch. 140, sec. 76. — Amended 1974 Ky. Acts


ch. 74, Art. IV, sec. 20(1). — Created 1966 Ky. Acts ch. 104, sec. 1.


History for former KRS 177.090: Repealed 1950 Ky. Acts ch. 27, sec. 3. — Recodified


1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 4356t-12.


 


NO ANNOTATION FOR THIS STATUTE:


 


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?  .100   Repealed, 1950.


KRS 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: Created 1962 Ky. Acts ch. 202, sec. 1.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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: Created 1962 Ky. Acts ch. 202, sec. 2.


 


ANNOTATION FOR THIS STATUTE:


 


1. Estate of Claywell v. Grider (Ky. App., 2003)   We are not persuaded that KRS 179.240 applies in this case. That statute appears in a chapter primarily concerned with the maintenance of county roads. The roadway involved in this case is a state highway. KRS 177.106 governs encroachments along state highways and requires anyone causing or maintaining such an encroachment to obtain a permit for it from the Department of Highways. It is this latter statute, we believe, and not KRS 179.240, that applies to the Griders’ mailbox. The Claywells have not alleged that the Griders breached KRS 177.106.


        Even if there was such a statutory breach, moreover, or even if we were to assume that the Griders were negligent for having created an unreasonable risk of foreseeable harm to motorists unfortunate enough to collide with their steel and


Page 4


concrete behemoth,1 negligence, whether per se or otherwise, does not give rise to liability unless it is the proximate cause of a compensable injury.2 A factual dispute over the proximate cause of an injury, then, will preclude a directed verdict even if there is no dispute about the defendant’s negligence.


 


 


2. Peak v. Barlow Homes, Inc., 765 S.W.2d 577 (Ky. App., 1988)  Barlow Homes did not have a permit allowing them to maintain the service entrance pursuant to KRS 177.106.


        Gorham and Peak had travelled that portion of U.S. 62 twice a day to and from work for a long period of time. All three men were familiar with the existence of the service road and the view of oncoming traffic at that point. Both drivers testified their view of the highway and oncoming traffic was clear and unobstructed.


        Alice Peak, in several capacities, brought suit against Clay-Ingels and Barlow Homes for wrongful death and punitive damages. The appellant settled the wrongful death claim against Clay-Ingels. The court granted summary judgment to Barlow Home.


        Mrs. Peak appeals claiming the trial court erred in granting summary judgment to appellee as she has presented issues of fact concerning the violation of KRS 177.106 requiring a trial by jury.


        Failure to comply with the terms of a statute is negligence per se. However, in an action for damages, the violation of the statute must be the proximate cause of the injury to permit recovery. Blue Grass Restaurant Company v. Franklin, Ky., 424 S.W.2d 594 (1968); Greyhound Terminal of Louisville, Inc. v. Thomas, 307 Ky. 44, 209 S.W.2d 478 (1948).


        KRS 177.106, the statute violated by Barlow Homes, deals with the establishment of a condition, an entrance across and to property owned by the Commonwealth.


Page 579


        A prior and remote cause creating a condition for an incident to occur in does not in and of itself create liability. Winders’ Administrator v. Henry Bickel Company, 248 Ky. 4, 57 S.W.2d 1009 (1933); Gaines’ Administratrix v. City of Bowling Green, 235 Ky. 800, 32 S.W.2d 348 (1930).


        We find the creation of the service entrance by Barlow Homes, while in violation of KRS 177.106, a condition too remote to be a proximate cause of Peak’s death. When the original negligence is remote and only furnishes the occasion of the injury, it is not the proximate cause thereof. Commonwealth, Department of Highways v. Graham, Ky., 410 S.W.2d 619 (1967).


 


 


3. Tar Heel Coals, Inc. v. Turner Elkhorn Mining Co., 448 S.W.2d 385 (Ky., 1969)    KRS 177.106 relates to permitted encroachments over public highway rights of way. The agreement contained in the highway deed quoted earlier in this opinion specifically referred to the continued maintenance and use of the conveyor line into the tipple. That agreement is tantamount to a ‘permit’ as envisioned in KRS 177.106. The statutory enablement for permissive encroachments contained in KRS 177.106 distinguishes the case at bar from Terrell v. Tracy, 312 Ky. 631, 229 S.W.2d 433, and the decisions discussed there dealing with the absence of statutory authority of a city to authorize encroachments upon any public way.


 


4. Com., Dept. of Highways v. Trimble, 451 S.W.2d 641 (Ky., 1969)  The appellees, Greer-Ellison Coal Company and the trustees of the James Hatcher Estate, brought this action against the state highway department and certain of its officials for injunctive relief and damages. The relationship between the appellees is that the company has a coal lease from the Hatcher estate on some 6,000 acres of land just east of U.S. Highway 23 and the Big Sandy River in Floyd County. Their complaint is that the highway department has declined to issue a permit to the company for the construction of an overhead conveyor spanning Highway 23 between the Hatcher land on the east and the site of a railroad siding procured by the company on the west side of the highway and the river. Cf. KRS 177.106.


        The trial court entered findings of fact, conclusions of law and an interlocutory judgment declaring the company entitled to the permit. The judgment was made appealable as authorized by CR 54.02, and the highway department appeals. Our conclusions are that the appellees are not entitled to the permit as a matter of right, that the highway department’s action was not arbitrary, and that the conclusions of law and judgment are erroneous.


 


 


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Transportation and Tourism Interagency Committee


KRS 177.107 Transportation and Tourism Interagency Committee — Purpose.


The Transportation and Tourism Interagency Committee is established to foster close


collaboration between the Commerce 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.


Effective: June 20, 2005


History: Amended 2005 Ky. Acts ch. 95, sec. 40, effective June 20, 2005. — Created


1998 Ky. Acts ch. 334, sec. 1, effective July 15, 1998.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 177.108 Membership — 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:


(a) Six (6) members appointed by the secretary of the Commerce Cabinet;


(b) Six (6) members appointed by the secretary of the Transportation Cabinet; and


(c) 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


Commerce 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


Commerce and Transportation Cabinets.


(4) The committee shall meet upon the call of the chair and upon the request of the


secretary of the Commerce 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.


Effective: June 20, 2005


History: Amended 2005 Ky. Acts ch. 95, sec. 41, effective June 20, 2005. — Created


1998 Ky. Acts ch. 334, sec. 2, effective July 15, 1998.


 


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KRS 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 tourismrelated 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


Commerce 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 Commerce Cabinet; and


(9) Report committee recommendations to the secretary of the Transportation Cabinet,


the secretary of the Commerce Cabinet, the secretary of the Education, Arts, and


Humanities Cabinet, and the secretary of the Executive Cabinet.


Effective: June 20, 2005


History: Amended 2005 Ky. Acts ch. 95, sec. 42, effective June 20, 2005. — Created


1998 Ky. Acts ch. 334, sec. 3, effective July 15, 1998.


 


NO ANNOTATION FOR THIS STATUTE:


 


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Railroad Crossings


KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-9.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: July 15, 1994


History: Amended 1994 Ky. Acts ch. 195, sec. 2, effective July 15, 1994. ? Amended


1992 Ky. Acts ch. 229, sec. 6, effective July 14, 1992. — Recodified 1942 Ky. Acts


ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. secs. 4356z-1, 4356z-10.


 


ANNOTATION FOR THIS STATUTE:


 


1. Jefferson County v. Louisville & N.R. Co., 245 S.W.2d 611 (Ky., 1951)   It should be noted at the outset that the three roads in question are county roads, not a part of the primary road system of the state, and not within the corporate limits of the City of Louisville. The Highway Department has statutory authority under certain circumstances to eliminate hazardous grade crossings over roads which are part of the state primary road system. The Legislature has also conferred on cities of the first class limited authority to accomplish the same purpose as relates to hazardous crossings within the city. But these statutes are not applicable here. It is stated in the County’s brief that ‘Appellants do not claim that Jefferson County, through its Fiscal Court, or at all, has the power, such as is possessed by the State under KRS 177.120, and by a city of the first class under KRS 93.280, to prevent a railroad company from crossing a county road at grade.’


 


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KRS 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.


Effective: July 15, 1996


History: Amended 1996 Ky. Acts ch. 318, sec. 61, effective July 15, 1996. — Amended


1992 Ky. Acts ch. 229, sec. 7, effective July 14, 1992. — Amended 1980 Ky. Acts


ch. 114, sec. 29, effective July 15, 1980. — Amended 1974 Ky. Acts ch. 74, Art. IV,


sec. 20(1); and ch. 315, sec. 21. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective


October 1, 1942, from Ky. Stat. sec. 4356z-2.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-3.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: July 15, 1996


History: Amended 1996 Ky. Acts ch. 318, sec. 62, effective July 15, 1996. — Amended


1980 Ky. Acts ch. 114, sec. 30, effective July 15, 1980. — Amended 1974 Ky. Acts


ch. 74, Art. IV, sec. 20(1); and ch. 315, sec. 22. — Recodified 1942 Ky. Acts ch. 208,


sec. 1, effective October 1, 1942, from Ky. Stat. sec. 4356z-4.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-5.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. secs. 4356z-6, 4356z-11.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-8.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: July 15, 1996


History: Amended 1996 Ky. Acts ch. 318, sec. 63, effective July 15, 1996. — Amended


1976 Ky. Acts ch. 62, sec. 93. — Amended 1974 Ky. Acts ch. 74, Art. IV, sec. 20(1).


— Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-7.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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: Amended 1976 Ky. Acts ch. 62, sec. 94. — Amended 1974 Ky. Acts ch. 74,


Art. IV, sec. 20(1). — Amended 1960 Ky. Acts ch. 104, sec. 11, effective June 16,


1960. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from


Ky. Stat. sec. 4356z-7.


 


NO ANNOTATION FOR THIS STATUTE:


 


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KRS 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.


Effective: October 1, 1942


History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.


Stat. sec. 4356z-12.


 


NO ANNOTATION FOR THIS STATUTE:


 


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Limited Access Facilities


KRS 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: Created 1946 Ky. Acts ch. 225, sec. 2.


 


ANNOTATION FOR THIS STATUTE:


 


1. Lunsford v. Ward, 411 S.W.2d 39 (Ky., 1967) The only question to be determined on this appeal is: Whether U.S. Highway 60 By-Pass is a ‘limited access’ highway within the statutory definition set out in KRS 177.220?


        For a proper determination of this question, it is necessary to review briefly the facts.


        On June 26, 1958, the Department of Highways, by official order, declared the Versailles By-Pass to be a ‘limited access’ facility. This by-pass begins approximately two thousand feet east of the junction of U.S. 60 and U.S. 62 and extends around the northeast side of Versailles, joining that portion of U.S. 60 connecting Frankfort and Versailles to that portion of U.S. 60 connecting Versailles and Lexington. The total length of the by-pass is approximately one and one-half miles.


The appellee admits that when the by-pass was constructed, nine abutting property owners were allowed access to it. However it is insisted that since completion of the construction, one of these has been eliminated and that after construction, and up to the present date, seven owners of property adjacent to the by-pass have been denied access and that certain interchanges have been eliminated. It contends that by the construction of the by-pass, through traffic is allowed to circumvent the City of Versailles at a high rate of speed and connect with high-speed highways on the two sides of the city. It is the contention of appellee that U.S. 60 By-Pass is a ‘limited access’ highway as defined by the provisions of KRS 177.220.


        KRS 177.220 defines ‘limited access facility’ as follows:


‘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.’


        KRS 177.250 gives the Department of Highways discretion to purchase property and property rights for limited access facilities in the same manner as is provided a regular road, turnpike or interstate condemnation.


        The Department of Highways has wide discretion in planning and designating highways. It may establish, regulate, vacate, alter, improve and maintain limited access facilities for public use when it deems that traffic conditions, present or future, will justify such special facilities. KRS 177.230.


        It may acquire private or public property and property rights for limited access facilities in the same manner as it acquires such property or property rights in connection with highways and streets within its respective jurisdiction. KRS 177.250.


        It also is authorized to prohibit billboard advertising upon or within 660 feet of the right of way of any limited access highway. KRS 177.840–KRS 177.850.


        There is a public interest in the construction and maintenance of public highways. The Department of Highways is authorized by the Legislature to take such steps as are necessary in the construction of highways so as to facilitate the movement of traffic, improve the efficiency of highway operations, and to increase the enjoyment of public


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travel and preserve the system’s value as a public asset. Moore v. Ward, Ky., 377 S.W.2d 881.


 


2. Sloan v. Com., Dept. of Highways, 405 S.W.2d 294 (Ky., 1966) The Department invoked the statutes (KRS 177.220 through 177.310) covering limited access highways in condemning the subject parcel. 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, Commonwealth, Department of Highways v. Creason, Ky., 402 S.W.2d 426, decided April 29, 1966, but loss of some access to the property is not compensable as long as the owners retain reasonable means of access as they did in the present case. Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466 (1965). In fact, it was proper for the trial court to exclude testimony as to loss of access where the owners had adequate access to the land for the uses to which it was devoted at the time of the taking as was the case here. Jennings v. Commonwealth, Department of Highways, Ky., 388 S.W.2d 133 (1965). Because of their inability to obtain rezoning of the property, its usage for a gasoline filling station was precluded before the condemnation, so evidence as to its unfitness for that purpose after the construction of the retaining wall was not proper because the


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limitation on the access was noncompensable so long as the property had adequate access for its current uses, which it did in this case. The purpose of the Department in raising the grade and constructing the retaining wall was proper whether it was for channeling traffic at a bad intersection or whether it was for limiting access to the subject property, or both, for each was within the police power to make the highway safe for public use.


 


3. Guthrie v. Curlin, 263 S.W.2d 240 (Ky., 1953) The first question deals with KRS 177.440, which provides, in part:


‘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. * * *’


        KRS 177.230, which is one of the sections of the limited-access statute referred to in KRS 177.440, provides that the authority to establish limited-access highways in cities ‘shall be subject to such municipal consent as may be provided by law.’ The question is whether the consent of a city is necessary to the construction of a portion of a turnpike within the city boundaries.


        It is our opinion that the reference, in KRS 177.440, to the limited-access statute, was intended to adopt only such portions 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. This is so because the toll road Act contains its own provisions for location and establishment.


        The second question relates to KRS 177.540, which provides, in part:


‘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 * * * and, if 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 question is whether outstanding bonds must in every case be refunded when it is desired to issue additional bonds for extensions, improvements or enlargements. While a strict literal interpretation of the statute might require an affirmative answer to this question, such an answer would not only be an absurd and unreasonable one, but would be inconsistent with practically every other revenue bond statute of this state. We are of the opinion that 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.


        We perceive no error in the judgment, and it is affirmed.


 


 


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KRS 177.230 Establishment of limited access facilities — Regulation of use.


The highway authorities of the state, counties, cities, towns, and villages, 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 and villages such authority shall be subject to such


municipal consent as may be provided by law. Said highway authorities of the state,


counties, cities, villages, 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: Created 1946 Ky. Acts ch. 225, sec. 3.


 


ANNOTATION FOR THIS STATUTE:


 


1. Lunsford v. Ward, 411 S.W.2d 39 (Ky., 1967)   The Department of Highways has wide discretion in planning and designating highways. It may establish, regulate, vacate, alter, improve and maintain limited access facilities for public use when it deems that traffic conditions, present or future, will justify such special facilities. KRS 177.230.


        It may acquire private or public property and property rights for limited access facilities in the same manner as it acquires such property or property rights in connection with highways and streets within its respective jurisdiction. KRS 177.250.


        It also is authorized to prohibit billboard advertising upon or within 660 feet of the right of way of any limited access highway. KRS 177.840–KRS 177.850.


        There is a public interest in the construction and maintenance of public highways. The Department of Highways is authorized by the Legislature to take such steps as are necessary in the construction of highways so as to facilitate the movement of traffic, improve the efficiency of highway operations, and to increase the enjoyment of public


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travel and preserve the system’s value as a public asset. Moore v. Ward, Ky., 377 S.W.2d 881.


 


2. Sturgill v. Com., Dept. of Highways, 384 S.W.2d 89 (Ky., 1964) It is appellants’ contention that the Commonwealth proposes to take their property for the private use of another in violation of their constitutional rights. The constitutional provisions allegedly violated are not definitely pinpointed, but sections 2 and 242 of the Kentucky Constitution are referred to. Section 13 would appear to play some part. In any event, it is conceded by the Commonwealth that appellants’ property could not be taken for a private purpose and that the right to comdemn this particular tract exists only if it is taken for a ‘public use’. (This is required by KRS 177.230.)


        Appellants’ arguments are based upon general principles and not upon specific favorable decisions. The proposition


Page 91


is stated that a private person cannot be authorized to condemn his neighbor’s property for some exclusively private purpose or use. This may be acknowledged as sound. 2 Nichols on Eminent Domain, 3rd Ed., ? 7.1(1), page 620; Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S.W. 762, 16 L.R.A.,N.S., 479; Hudgens v. Register, Ky., 285 S.W.2d 504. Based on this premise, it is contended the Commonwealth may not do for a private person and for a private purpose what he may not do himself. This also we may concede. The flaw in this argument is that it does not reach the very point in controversy, which is whether this taking, though subserving a private interest, is for a public use.


        The proposed access road is part of a comprehensive and complex highway construction plan clearly designed for public accommodation. KRS 177.250 authorizes condemnation for access roads as incident to such a plan. Problems of necessity, proper design, but utilization of adjoining properties, convenience to the public, saving of expense, and promotion of traffic safety are matters which must be left to the discretion of the highway authorities. See KRS 177.240; and Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225. KRS 177.081 provides in substance that specific details of the plan cannot be called in question, from the standpoint of necessity or public use, except upon a showing of fraud, bad faith or abuse of discretion. No such showing was made in this proceeding.


        Essentially appellants’ position seems to be that public use presupposes a predominating public need, and where the private advantage substantially outweighs the public benefit it cannot be said a particular taking is for a public use. Appellants emphasize the fact that this road was basically designed to provide access to and from the premises of Stilz, and principally inures to his private benefit. but this is only part of the picture. Even if we examine the road in isolation, apart from the overall plan, appellants’ argument does not take into account the dual aspect of public user.


        Any public way naturally confers a special benefit on those persons whose property adjoins it. All roads terminate somewhere. Dead and streets or highways inevitably and particularly subserve the private interests of the last property owner on the line. Yet the public has in interest in reaching other members thereof. As a practical matter, the right of condemnation for highway purposes could not be made to depend upon the predominance of the public interest over private benefit. This is too fine a line even for legal draftsmanship. If this consideration were a determining factor, the condemnor would endlessly be forced to ‘battle in every county courthouse’. Commonwealth Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262, 266. 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.


        This question was thoroughly examined and answered Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 104 S.W. 762. There a private person sought and was granted the right to condemn a strip of her neighbor’s land for a tramway to her stone quarry (under a statute similar to KRS 277.040). It was pointed out that the special benefit to a private person attributable to the existence of a roadway is not a controlling factor, nor is it significant that few persons rather than a large number of the public may actually use it. We therein said (page 765 of 104 S.W.):


‘It is not the number of people who use the property taken under the law of eminent domain that constitutes the use of it a public one; nor does the fact that the benefits will be in a large measure local enter into the question. In short, according to the generally recognized rule, the length of the public way, the places between which it runs, or the number of people who use it, is not


Page 92


the essential inquiry. The controlling and decisive question is: Have the public the right to its use upon the same terms as the person at whose instance the way was established? If they have, it is a public use; if they have not, it is a private one.’


 


3. Guthrie v. Curlin, 263 S.W.2d 240 (Ky., 1953)   KRS 177.230, which is one of the sections of the limited-access statute referred to in KRS 177.440, provides that the authority to establish limited-access highways in cities ‘shall be subject to such municipal consent as may be provided by law.’ The question is whether the consent of a city is necessary to the construction of a portion of a turnpike within the city boundaries.


        It is our opinion that the reference, in KRS 177.440, to the limited-access statute, was intended to adopt only such portions 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. This is so because the toll road Act contains its own provisions for location and establishment.


        The second question relates to KRS 177.540, which provides, in part:


‘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 * * * and, if 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 question is whether outstanding bonds must in every case be refunded when it is desired to issue additional bonds for extensions, improvements or enlargements. While a strict literal interpretation of the statute might require an affirmative answer to this question, such an answer would not only be an absurd and unreasonable one, but would be inconsistent with practically every other revenue bond statute of this state. We are of the opinion that 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.


        We perceive no error in the judgment, and it is affirmed.


 


 


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KRS 177.240 Design of facilities — Regulation of access — Construction of public


facilities, including restrooms.


(1) The highway authorities of the state, county, city, town, and village 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.


(2) The Department of Highways shall construct or cause to be constructed on all


interstate highways and toll roads suitable public facilities to replace any structures


closed by the department after April 1, 1980, at a location within fifteen (15) miles


of the previously available facility. Such facilities shall include restrooms which


shall be available to the motoring public on a twenty-four (24) hour basis.


Effective: July 13, 1984


History: Amended 1984 Ky. Acts ch. 213, sec. 1, effective July 13, 1984. — Created


1946 Ky. Acts ch. 225, sec. 4.


 


ANNOTATION FOR THIS STATUTE:


 


1. Sturgill v. Com., Dept. of Highways, 384 S.W.2d 89 (Ky., 1964)  The proposed access road is part of a comprehensive and complex highway construction plan clearly designed for public accommodation. KRS 177.250 authorizes condemnation for access roads as incident to such a plan. Problems of necessity, proper design, but utilization of adjoining properties, convenience to the public, saving of expense, and promotion of traffic safety are matters which must be left to the discretion of the highway authorities. See KRS 177.240; and Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225. KRS 177.081 provides in substance that specific details of the plan cannot be called in question, from the standpoint of necessity or public use, except upon a showing of fraud, bad faith or abuse of discretion. No such showing was made in this proceeding.


        Essentially appellants’ position seems to be that public use presupposes a predominating public need, and where the private advantage substantially outweighs the public benefit it cannot be said a particular taking is for a public use. Appellants emphasize the fact that this road was basically designed to provide access to and from the premises of Stilz, and principally inures to his private benefit. but this is only part of the picture. Even if we examine the road in isolation, apart from the overall plan, appellants’ argument does not take into account the dual aspect of public user.


        Any public way naturally confers a special benefit on those persons whose property adjoins it. All roads terminate somewhere. Dead and streets or highways inevitably and particularly subserve the private interests of the last property owner on the line. Yet the public has in interest in reaching other members thereof. As a practical matter, the right of condemnation for highway purposes could not be made to depend upon the predominance of the public interest over private benefit. This is too fine a line even for legal draftsmanship. If this consideration were a determining factor, the condemnor would endlessly be forced to ‘battle in every county courthouse’. Commonwealth Dept. of Highways v. Burchett, Ky., 367 S.W.2d 262, 266. 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.


 


 


2. Keck, Com’R of H. v. Manning, Com’R of F., 313 Ky. 433 (KY, 1950)     The petition avers that the publication and distribution of the above mentioned exhibits are necessary for the maintenance and administration of the highway system in that this printed matter largely regulates and controls traffic, since heavy trucks are thereby directed to use such routes as are most suitable from the stand-point of construction and safety and are thus notified they must not use other routes not safe or suitable for heavy loads and upon which only light traffic is permitted. Various sections of the statutes are pleaded, such as KRS 176.050 authorizing the department to publish from time to time bulletins containing useful information concerning the construction and maintenance of roads; KRS 176.060 relating to the regulation of traffic over roads under construction; KRS 177.046 relating to


Page 436


establishing and maintaining signs and markers; KRS 177.240 and 177.290 authorizing limited-access facilities and designating such separate roadways and the maintaining of local service roads and streets; and KRS 189.230 and 189.340 prescribing load and speed limits and designating lanes and road to be used by slow-moving traffic.


 


 


3. Keck v. Manning, 231 S.W.2d 604, 313 Ky. 433 (Ky., 1950)      Crick v. Rash, 190 Ky. 820, 229 S.W. 63, 66, we held that part of the proceeds of a bond issue voted for the ‘building, construction, [and] reconstruction of roads’ could be used in paying reasonable broker’s fees for the sale of the issue.


        Also, Steinfeld v. Jefferson County Fiscal Court, 306 Ky. 621, 208 S.W.2d 939, 940, where it was held that under KRS 67.080(9) authorizing the county to provide for ‘the good condition of the highways of


Page 607


the county’ it might maintain a garbage disposal to prevent garbage and debris from being thrown in road ditches. It was there written: ‘The phrase ‘good condition’ certainly should not be construed so strictly as to prevent an otherwise well constructed and maintained highway, insofar as paving is concerned, to be allowed to become unsightly by permitting all kinds of debris and garbage to litter its drainage ditches and even its pavement.’


        It is familiar law that courts in construing constitutional provisions will look to the history of the times and the state of existing things to ascertain the intention of the framers of the Constitution and the people [313 Ky. 438] adopting it, and a practical interpretation will be given to the end that the plainly manifested purpose of those who created the Constitution, or its amendments, may be carried out. Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745, 70 A.L.R. 1077; Warfield Natural Gas Co. v. Ward, 286 Ky. 73, 149 S.W.2d 705; Meredith, Atty. Gen. v. Kauffman, 293 Ky. 395, 169 S.W.2d 37, 39. As was written in the Kauffman case, ‘The Constitution is concerned with substance and not with form and its framers did not intend to forbid a common-sense application of its provisions.’


 


 


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KRS 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:


(a) The most recent twenty (20) year statewide transportation plan adopted by the


Transportation Cabinet and submitted to the Federal Highway Administration;


(b) The most recent six (6) year highway plan enacted by the General Assembly;


(c) The most recent long-range transportation plan adopted by a metropolitan


planning organization and submitted to the Transportation Cabinet; or


(d) 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.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 131, sec. 1, effective July 15, 1998. — Amended


1966 Ky. Acts ch. 255, sec. 163. — Created 1946 Ky. Acts ch. 255, sec. 5.


 


ANNOTATION FOR THIS STATUTE:


 


1. Com., Dept. of Transp., Bureau of Highways v. Knieriem, 707 S.W.2d 340 (Ky., 1986) Highways argues before this court that both the trial court and the Court of Appeals erred in holding that taking the second strip of the Knieriems’ property was barred by the constitutional prohibition against taking property for a private use. Highways, relying both on the language of KRS 177.250 and on