Posted by: Patricia Salkin | January 16, 2012

Kentucky Supreme Court Finds No Taking Where Property Owner Ordered to Remove Private Gate Across Road County Discontinued Maintenance On

Following the County’s decision to discontinue maintenance on a road, a property owner erected a gate across the road and provided a key to property owners along the road.  The Court of Appeals enjoined the property owner from blocking the discontinued county road with a gate, and the property owner appealed, alleging among other things, an unlawful taking of his property based on an alleged financial burden he believes he will have to shoulder to maintain the road so that he can access his property.  He also alleged that the burden to maintain the road will devalue his property as future purchasers will shy away from that responsibility.  While the Court was sympathetic to an argument that it may cost the property owner more if the road is open to the public rather than just a private road due to wear-and-tear, the Court found no authority to support a conclusion that the county’s refusal to maintain a road in good repair is an unconstitutional infringement on a landowner’s right of access. Further, the Court found no authority for the proposition that a landowner may protect his own right of access by impeding the right of others.  While finding no unconstitutional taking, the Court did note that the likely costs of maintenance that the property owners may need to expend to keep the road passable, is a matter to be addressed through the local government.

Bailey v Preserve Rural Roads of Madison County, Inc. , 2011 WL 6542996 (KY 12/22/2011)

The opinion can be accessed at: http://opinions.kycourts.net/sc/2009-SC-000417-DG.pdf


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