RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MATT PRICHARD AND
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 08-CI-00242
CARTER FISCAL COURT
** ** ** ** **
BEFORE: DIXON, STUMBO AND VANMETER, JUDGES.
DIXON, JUDGE: Luke Prichard and his son, Matt Prichard, appeal from a
judgment of the Carter Circuit Court affirming a decision of the Carter Fiscal
Court. Finding no error, we affirm.
Appellants own land on either side of a county road, Campbell Road,
in Carter County, Kentucky. Appellants petitioned the Carter Fiscal Court to
discontinue 1.3 miles of Campbell Road as a county road. The fiscal court held a
hearing on December 27, 2007, and heard testimony from witnesses opposed to
Appellants’ petition. Appellants testified in favor of their petition and presented
the fiscal court with eight signatures of neighbors who also favored discontinuing
the Campbell Road as a county road. Luke testified the road was infrequently
traveled, people dumped trash along the road, and there were incidents of criminal
activity such as theft and drug transactions. Brian Prichard testified in opposition
to closing the road. He presented the court with a petition signed by 92 citizens in
favor of keeping the road open. Brian testified that Campbell Road was useful as a
short-cut and also as an alternate route when the “main” road was impassable due
to inclement weather. At least four other citizens testified against closing the road.
At the conclusion of the hearing, two magistrates, Millard Cordell and James
Wilburn, volunteered to view the road with the county road engineer pursuant to
KRS 178.070. Thereafter, at a fiscal court meeting on April 8, 2008, the court
voted to keep Campbell Road open and part of the county road system. Appellants
filed a petition in Carter Circuit Court to set aside the decision of the fiscal court as
arbitrary and contrary to law. In April 2010, the circuit court rendered an opinion
upholding the fiscal court’s decision. This appeal followed.
Pursuant to KRS 178.100, a party aggrieved by a fiscal court’s
decision not to discontinue a road may contest that decision by seeking judicial
review in circuit court. See also Trimble Fiscal Court v. Snyder, 866 S.W.2d 124,
126 (Ky. App. 1993). Judicial review is concerned with determining whether basic
due process was afforded and ensuring the fiscal court did not act arbitrarily. Id.
Here, Appellants failed to satisfy the burden of persuasion before the fiscal court;
accordingly, the court’s decision to keep the road open should be upheld unless the
evidence compelled a finding in favor of closing the road. Id.
Appellants first argue the fiscal court acted arbitrarily because the
evidence compelled closing the road. The relevant inquiry for a fiscal court in
determining whether to discontinue a county road is public convenience and need.
Id. at 127. A review of the fiscal court hearing indicates that citizens opposed
closing the road, opining that it was a beneficial short cut and also provided a
secondary route for nearby residents if the primary road became impassible. In
contrast, Luke and Matt testified regarding their own personal inconvenience as to
litter and theft of personal property.
Although Appellants contend their evidence was entitled to more
weight, we believe the fiscal court was in the best position to weigh the evidence
and assess the credibility of the witnesses. See Bowling v. Natural Res. & Envtl.
Prot. Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1994). The evidence indicated
that public convenience was best served by keeping the road open; consequently,
the evidence did not compel a finding in Appellants’ favor. After careful review,
we conclude the action of the fiscal court was not arbitrary.
Next, Appellants contend the fiscal court failed to comply with KRS
178.070, and denied them procedural due process. The statute states:
The fiscal court may direct any county road to be
discontinued. Notice must be published, according to the
provisions of KRS 178.050, and in addition, notices must
be placed at three (3) prominent and visible public places
within one (1) mile of the road. After posting the notices,
the fiscal court shall appoint two (2) viewers who have
no vested interest in the discontinuance of the road and
who, together with the county road engineer, shall view
the road and report in writing at the hearing what
inconvenience would result from the discontinuance.
Upon presentation of the report and other evidences, if
any, at a public meeting of the fiscal court, the court may
discontinue the road.
Appellants assert the fiscal court failed to present a viewers’ report signed
by Magistrates Cordell and Wilburn who volunteered to view the road. Appellants
also contend Magistrate Cordell was not “disinterested” because of an ongoing
disagreement with the Appellants.
Despite Appellants’ contention, a review of the record shows a notarized
“Campbell Road Committee Report” recommending that the county keep the road
open and maintain the road by graveling it. The report was signed by Leroy Jessie
and John Kitchen.
While Appellants’ argument implies they question the veracity of the report,
we presume the fiscal court properly appointed Jessie and Kitchen, as disinterested
citizens, to view the property. See Peers v. Cox, 356 S.W.2d 768, 770 (Ky. 1962)
(It may be proper to presume the required steps were taken unless uncontroverted
proof establishes procedural steps were omitted.); see also Hennessy v. Bischoff,
240 S.W.2d 71, 73 (Ky. 1951) (“There is a presumption that public officers have
performed their duties as required by law[.]”). We conclude the committee report,
on its fact, satisfied the statutory requirements.
In the case at bar, Appellants were afforded the opportunity to testify and
present evidence in support of their petition to close Campbell Road. The fiscal
court also heard evidence from citizens opposed to closing the road. In deciding
whether to discontinue a county road, “[t]he public convenience must be consulted.
And the common will, represented by the county court, must prevail over
individual advantages and wishes.” Walker v. Lyon County Fiscal Court, 425
S.W.2d 730, 731 (Ky. 1968). We conclude Appellants were afforded adequate
procedural due process, and the fiscal court acted within its authority by voting to
keep Campbell Road open.
For the reasons stated herein, the decision of the Carter Circuit Court is
BRIEF FOR APPELLANTS:
NO BRIEF FOR APPELLEE
John Preston Thompson