Opinion No. 80-120 (1980) Ag ( 1980 )

The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following questions: 1. Can the Board of County Commissioners on their own motion set up road improvement districts pursuant to 19 Ohio St. 1232 [19-1232] (1979)? 2. Can landowners petition for setting up of road improvement districts when the County Commissioners do not establish such improvement districts? 3. When the landowners petition, does the Board of County Commissioners have a mandatory duty to sell the road improvement bonds? The Road Improvement Act is found at 19 Ohio St. 1230 [19-1230] et seq. (1979). The Board of County Commissioners in the State of Oklahoma is given broad powers to construct, establish and improve roads located within the limits of counties. 19 Ohio St. 1230 [19-1230] (1979), provides, in part, that: "Any board of county commissioners in the State of Oklahoma is hereby empowered, within the unincorporated limits of the county, to establish and change the grade of any road, street, avenue, lane, alley or other public place and to permanently improve the same by grading, curbing, guttering, draining and otherwise improving the same . . . whenever the public necessity may require such improvements." The Board of County Commissioners pursuant to 19 Ohio St. 1232 [19-1232] (1979) is empowered to construct and maintain roads within their county limits. The County Commissioners are compelled to initiate road improvements by resolution. 19 Ohio St. 1232 [19-1232] (1979) states, in part, as follows: "When the Board of County Commissioners shall deem it necessary to grade, pave, construct, macadamize, chat or gravel, curb, gutter, drain, or otherwise improve any road, street, alley, avenue, lane or any part thereof which shall have been heretofore established, within the unincorporated area of such county, it shall, by resolution, require the county engineer, or if there is no county engineer, contract for the services of a licensed engineer as provided by Oklahoma Statutes, to prepare preliminary plans . . . resolution may provided for one or more types of construction . . ." (Emphasis Added) Furthermore, once the resolution has been passed pursuant to 19 Ohio St. 1232 [19-1232], the Board of County Commissioners is empowered to make "rules and regulations as may be necessary to require the owners of all property subject to assessment to pay the cost of such improvement, to cause to be put in." 19 Ohio St. 1237 [19-1237] (1979). Therefore, the answer to question one is in the affirmative. The Board of County Commissioners can on their own motion set up road improvement districts and initiate rules and regulations to govern the improvements to be made in the road improvement districts. When the Board of County Commissioners does not establish road improvement districts pursuant to 19 Ohio St. 1232 [19-1232] (1979), the landowners pursuant to 19 Ohio St. 1236 [19-1236] (1979) can petition and compel the County Commissioners to make the necessary improvements. 19 Ohio St. 1232 [19-1232] (1979) states in part as follows: "If the owners of more than fifty percent (50%) of the area of the land liable to assessment for any improvement shall petition the county commissioners of such county for the improvement of any road, street, alley, lane or avenue, or part thereof, not less than 600 feet in length . . . the Board of County Commissioners of such county shall cause such improvements to be made in accordance with the prayer of said petition as nearly as may be practicable." Thus, the second question is answered in the affirmative. The landowners can petition for the setting up of road improvement districts when the Board of County Commissioners do not establish such districts. Pursuant to 19 Ohio St. 1257 [19-1257] (1979), the Board of County Commissioners have the power to initiate Road Improvement Bond issues. 19 Ohio St. 1257 [19-1257] (1979), states in part as follows: "The board of county commissioners of any county, after the expiration of thirty (30) days from the publication of the assessing resolution, within which period the whole of any assessment may be paid without interest, shall provide by resolution for the issuance of negotiable coupon bonds in the aggregate amount of such assessment then remaining unpaid bearing date of thirty (30) days after the publication of the resolution levying the assessment, and of such denominations as the board of county commissioners of any county and the contractor shall determine which bonds shall in no event become a liability of the county issuing the same . . . ." As previously stated, 19 Ohio St. 1236 [19-1236] allows landowners to initiate a petition in order to compel county commissioners to make necessary improvements. Since the county commissioners, pursuant to 19 Ohio St. 1236 [19-1236], are mandated to make the specific road improvements pursuant to the petition presented by the landowners, then the county commissioners must, pursuant to 19 Ohio St. 1257 [19-1257], provide by resolution for issuance of negotiable coupon bonds. It is, therefore, the official opinion of the Attorney General that: 1. The Board of County Commissioners on their own motion by resolution can set up road improvement districts pursuant to 19 Ohio St. 1232 [19-1232] (1979). 2. The landowners can petition for the setting up of road improvement districts when the county commissioners do not establish such road improvement districts. 3. If the landowners petition and compel the Board of County Commissioners to make certain road improvements, then the county commissioners must initiate a bond issue pursuant to 19 Ohio St. 1257 [19-1257] (1979). (STEPHEN F. SHANBOUR) (ksg)