Most county highway departments in Tennessee are subject to a set of
general state statutes known as the County Uniform Highway Law (CUHL).
T.C.A. § 54-7-101 et seq. The County Uniform Highway Law does not apply
in Shelby, Davidson, Knox and Hamilton counties. T.C.A. § 54-7-102 Those
counties operate their highway or public works departments pursuant to
either a metropolitan government charter (Davidson), county charter
(Shelby, Knox) or private act (Hamilton). Some counties have also
attempted to “opt out” of portions of the CUHL by narrow population
classes applicable to individual counties, even though the attorney
general has stated that such exclusions are constitutionally suspect.
Although the CUHL deals with many important aspects of the county
highway department, it does not deal with all aspects, such as how the
head of the department is selected or who purchases for the department.
Therefore, most counties also have private acts that deal with issues
not addressed by the CUHL. Some of these private acts were enacted prior
to the adoption of the CUHL in 1974 and have provisions that conflict
with the CUHL. In those instances the CUHL will override any conflicting
provisions in the private act unless a rational basis exists for
suspending the general law for the particular county. Op. Tenn. Att’y
Gen. 99-058 (March 10, 1999).
Chief Administrative Officer:
Under the Tennessee County Uniform Highway Law, the chief administrative
officer (or CAO) has oversight of the county highway department and may
be called by such titles as county road superintendent, county road
supervisor, director of public works, county engineer, or a similar
name. The CAO has general control over the construction and maintenance
of county roads. T.C.A. §§ 54-7-103, 54-7-109. However, where a county
has an elected road commission, the commission may exercise some control
over these functions if the private act grants it such authority. T.C.A.
§ 54-7-109.
Qualifications:
The CAO may be elected or appointed to a four-year term pursuant to a
general law or private act, although some counties are excluded from the
term of office provision by narrow population class. T.C.A. §§ 54-7-103,
54-7-105. In addition to the general qualifications to hold office, the
CAO must meet the following requirements:
1. Must have a high school education or general equivalency diploma (GED)
recognized by the Tennessee State Board of Education; and
2. Must have at least one of the following:
(a) A diploma from an accredited school of engineering, with at least
two years experience in highway construction or maintenance, or a
license to practice engineering in Tennessee; or
(b) Four years experience in a supervisory capacity in highway
construction or maintenance; or
(c) A combination of education and experience equivalent to either of
the above as evidenced by affidavits filed with the appointing authority
or with the state coordinator of elections when the chief administrator
is an elected official.
T.C.A. § 54-7-104.
Candidates for election must file affidavits and other evidence
supporting the candidate’s qualifications with the Tennessee Highway
Officials Certification Board at least 14 days prior to the qualifying
deadline. A certificate of qualification from the certification board
must be filed with the candidate’s qualifying petition prior to the
qualifying deadline before the candidate's name is placed on the ballot.
Also, candidates for appointment to the office of CAO must file evidence
satisfactory to the board that they meet the qualifications to hold the
office prior to their appointment to the position. T.C.A. § 54-7-104.
Some counties are excluded from certain of the qualification
requirements by narrow population classification, but as was mentioned
above, these narrow population classifications are constitutionally
suspect. Davidson County (metropolitan government and over 100,000
population) is also excluded. The qualifications do not apply to an
incumbent highway administrator in office on April 5,1974, or to any
candidate for the office qualifying for and elected to the office in
1974 if that person remains in office. T.C.A. § 54-7-104. If the CAO is
appointed, a private act governs the method of appointment (but it
should conform to the limitations of Article XI, Section 17 of the
Tennessee Constitution, which requires election by the county
legislative body if the official is not popularly elected). T.C.A. §
54-7-103. Except in those counties excluded from the CUHL, counties
cannot add additional qualifications for the CAO by private act or
resolution of the county legislative body.
Oath of Office and Bond:
Before taking office the CAO must take and subscribe to the oath of
office. An example of a oath of office for a CAO may be found in the
appendix. Oaths of office for county officials such as the CAO may be
administered by the county mayor, the county clerk, or a judge of any
court of record in the county. Also, the judge of the general sessions
court may administer oaths of office to all elected and appointed
officials. The oath of office may be administered at any time after the
certification of the election returns, in the case of elected officials,
or after appointment, in the case of appointed officials. However, even
if the official files an oath before the scheduled start of a term of
office, the official may not take office until the term officially
begins. T.C.A. §8-18-109. The oath must be written and subscribed by the
person taking it. Accompanying the oath must be a certificate executed
by the officer administering the oath, specifying the day and the year
it was taken. T.C.A. § 8-18-107. The oath and the certificate are filed
in the office of the county clerk, who endorses on them the day and year
of filing and signs the endorsement. T.C.A. §§ 8-18-109, 8-18-110.
The CAO must also enter into a bond of $100,000 or a greater amount if
the county legislative body so requires. T.C.A. § 54-7-108. This bond,
payable to the state, is to indemnify the county against the loss of any
funds occurring as a result of unlawful or dishonest acts. T.C.A. §
54-4-103. The official bond of a CAO must be approved by the county
legislative body, recorded in the office of the register of deeds and
transmitted to the county clerk for safekeeping. T.C.A. §§ 8-19-102,
8-9-103, 8-10-106.
Salaries and Employees:
The chief administrative officer must receive at least the minimum
salary stated under T.C.A. § 8-24-102. If two or more CAOs are elected
or appointed with equal duties, the compensation is divided equally
between them. T.C.A.§ 54-7-106. The legislative body may at any time
increase or decrease the salary of the CAO as long as it is maintained
at or above the minimum salary level. T.C.A. § 54-7-106. The salary of
the CAO must be at least 10 percent greater than that of the general
officers of the county. T.C.A. § 8-24-102(j).
The CUHL places authority over county highway department personnel with
the CAO. The CAO may employ a qualified secretary and other office
personnel necessary to handle correspondence, maintain accurate records
of receipts and expenditures, equipment, supplies, materials,
maintenance performed, and other items necessary to operate the highway
department. The CAO determines the total number of employees (within the
limits of the available budget), personnel policy (but see Chapter 19)
and work hours, job classifications, and policies and wages within the
classifications. The compensation established should be consistent with
pay in similar services in the county and surrounding area. T.C.A. §
54-7-109. In addition, the wages must comply with the federal Fair Labor
Standards Act regarding minimum wage and overtime compensation as well
as other federal and state statutes dealing with personnel.
Duties:
The CAO is the head of the county highway department and has general
control over the location, relocation, construction, reconstruction,
repair, and maintenance of the county road system, including bridges and
ferries, except roads and bridges under the supervision of the state
Department of Transportation. T.C.A. § 54-7-109. However, in counties
which have private acts providing for popularly elected road
commissioners with general control over location, construction and
maintenance of county roads, the control remains as provided under the
private act. T.C.A. § 54-7-109; see also Op. Tenn. Att’y Gen. 88-01
(Jan. 4, 1988).
The CAO may employ legal counsel or solicit legal counsel retained by
the county to prosecute or defend litigation caused by or necessary to
operating the highway department. However, in counties with road
commissions, the general control and authority to hire legal counsel
remains as provided by private act. T.C.A. § 54-7-110.
The CAO must prepare and submit an annual work program to be financed
under the state-aid highway system program to the county legislative
body and the state Department of Transportation. Priorities for the
proposed work program are established by considering the degree of
deficiencies in the structural condition, capacity and safety of
existing roadways; traffic volume; and desirable level of services
necessary for schools, religious institutions, industry, recreational
facilities and other major uses. T.C.A. § 54-7-111.
Other specific duties of the CAO are discussed in more detail later in
this chapter.
County Highway Commissions (Road Boards):
(THIS SECTION IS NOT APPLICABLE TO DEKALB COUNTY)
County highway commissions, often called road boards, are not required
by general law. However, the CUHL recognizes that these boards have been
created in many counties by private act. The general law at T.C.A. §
54-7-109 provides that in counties that have popularly elected road
commissioners, if the private act grants to the road board powers
concerning the general control of the highway department, such as
setting general priorities over road work, that the private act will be
effective to that extent and somewhat limit the authority of the CAO.
Also, private acts may grant road boards a role in budgeting and
purchasing for the road department. Some road boards are popularly
elected and some are appointed by the county legislative body. It is
only those that are popularly elected that may exercise general
supervision over the highway department. Op. Tenn. Atty. Gen. 88-11
(January 4, 1988). However, private acts cannot allow even popularly
elected road boards to encroach upon the personnel policy powers and
day-to-day administrative authority of the CAO over the personnel of the
highway department and other powers given to the CAO in the CUHL.
Inventory of Machinery and Equipment:
The CAO supervises, controls and is responsible for all the machinery,
equipment, tools, supplies and materials owned or used by the county in
the construction, repair and maintenance of county roads and bridges.
Within 60 days after taking office, the CAO must make a complete
inventory and file copies with the county governing body and the county
mayor. The inventory must be revised annually, effective July 1 of each
year and submitted by September 1. T.C.A. § 54-7-112.
All machinery, equipment and tools must be plainly marked as the
property of the road department, and each item must be numbered and
entered on the inventory filed by the CAO. The county mayor must examine
the inventory for compliance with the law, and if the inventory does not
comply, funds shall be withheld from the chief administrative officer
until compliance is made. T.C.A. § 54-7-112. The inventory filed by the
CAO shall be maintained and made available to the comptroller of the
treasury for audit purposes. T.C.A. § 54-7-112.
Purchasing Provisions and Chart of Accounts:
All funds received by the county for road or highway purposes must be
promptly deposited with the trustee and should be expended only upon
disbursement warrant drawn upon the trustee according to law.
Expenditures of funds to operate the road department must be made within
the limits of the approved budget and the appropriations made for the
department. T.C.A. § 54-7-113.
The following purchasing procedures apply to all CUHL counties that have
not established any other private act or general law purchasing
procedure prior to July 1, 1980:
1. All purchases of $5,000 or more must be publicly advertised and
competitively bid;
2. Purchases of like items that individually cost less than $5,000 but
are customarily purchased in lots of two or more must be advertised and
bid if the total purchase price of these items is expected to exceed
$5,000 during any fiscal year;
3. Repair of heavy road building machinery or other heavy machinery for
which limited repair facilities are available need not be bid;
4.Purchases of any supplies, materials, or equipment for immediate
delivery may be made without bidding in actual emergencies arising from
unforeseen causes but such emergencies shall not include conditions
arising from neglect or indifference in anticipating normal needs;
5.Leases or lease-purchase arrangements requiring payment of $5,000 or
more, or continuing for 90 days or more, must be advertised and
competitively bid; and
6.All purchases costing less than $5,000 may be
made in the open market without newspaper notice, but, wherever
possible, should be based upon at least three competitive bids.
T.C.A. § 54-7-113
The CUHL does not repeal existing statutes, including private acts, that
establish purchasing provisions for a county road department. However,
no county road department shall be required to publicly advertise and
competitively bid purchases of$5,000 or less even if they are now
required to do so by public or private act. T.C.A. §54-7-113.
Each CAO must maintain a chart of accounts in conformity with the
uniform chart of accounts developed by the comptroller of the treasury.
T.C.A. § 54-7-113. Additional information on the proper accounting
procedures is available through the county audit division of the
comptroller's office.
There is a presumption that the CAO is authorized to sign agreements
with the Tennessee Department of Transportation on behalf of the county.
Once the agreement is executed, it is fully binding on the county. This
presumption is overcome only if the county legislative body provides
notice to the state Department of Transportation that the CAO does not
have the authority to execute these agreements. Receipt of this notice
must be acknowledged by the department in order to overcome the
presumption. T.C.A. § 5-7-116.
Prohibited Acts and Penalties:
The CAO must not authorize or knowingly permit trucks or road equipment,
rock, crushed stone or any other road material to be used for any
private use or for the use of any individual for private purposes. A
violation of this provision is a Class C misdemeanor, and each separate
use of the same for other than authorized purposes constitutes a
separate offense and is subject to a separate punishment. Any employee
who uses any road equipment or materials for personal use or sells or
gives away any such materials or equipment must be immediately
discharged. No truck or other road equipment shall be used to work
private roads or for private purposes of the owners. T.C.A. § 54-7-202.
Any person whose property is improved by the use of county road
equipment or material is liable for the value of the improvements,
including legal fees, which will be distributed to the county road
department. T.C.A. § 54-7-202. However, an exception to these rules
provides that if requested by the U.S. Postal Service or local board of
education in writing, the county highway department may maintain areas
on private property for the purpose of providing public school buses and
postal vehicles with a route and turnaround if the landowner consents in
writing. T.C.A. § 57-7-202. A county highway department should only
improve or maintain a road that has been declared public by the county
legislative body or the courts. Op. Tenn. Att’y Gen. U95-064 (July 17,
1995). Absent such a determination by one of those two bodies, the CAO
should not work on that road even if the CAO “thinks” the road is
public.
One other exception in the law provides that the county legislative body
may authorize the road department to perform work for other government
entities if the cost is reimbursed to the road department. T.C.A. §
54-7-202. For example, in 1995 the state attorney general opined that
the county highway department may not maintain areas to provide school
buses with a route or turnaround without requiring at least partial
reimbursement. Op. Tenn. Att’y Gen. U95-064 (July 17, 1995). The county
may even contract with the commissioner of transportation to perform
maintenance upon state rights-of-way outside municipalities and
metropolitan governments. The Department of Transportation will
reimburse the county on an actual cost basis. T.C.A. § 54-5-139.
If a CAO commits a theft, either directly or indirectly, of more than
$1000 of county highway or road money, the officer is guilty of a
felony. Upon conviction, the CAO shall be punished by imprisonment in
the penitentiary for any time not less than three years nor more than
twenty years. T.C.A. § 54-7-206. If the theft is $1,000 or less, the CAO
is guilty of a misdemeanor. Upon conviction, the CAO shall be punished
by confinement for not more than one year. T.C.A. § 54-7-206
If a CAO, who is charged with the collection, safekeeping, transfer, or
disbursement of money or property belonging to the county highway
department, uses or diverts any part of the money or property by loan,
investment, or otherwise without authority of law, or converts any part
to his own use in any manner, the CAO is guilty of embezzlement. For
every such act, upon conviction, the CAO shall be punished as in the
case of larceny, and must pay to the court an amount equal to the amount
embezzled. Such amount shall be forwarded by the clerk to the county
highway department. T.C.A. § 54-7-206.
Under a statute enacted in 2005 (Public Chapter 344), counties and
municipalities may individually or jointly own or operate a hot mix
asphalt facility but only if certain conditions are met. A financial
feasibility study using factors specified by the statute must be
completed and reviewed by a three-member feasibility oversight committee
consisting of members named by the comptroller of the treasury, the
Tennessee Road Builders Association, and the Tennessee County Highway
Officials Association. The completed study must be filed with the
comptroller of the treasury and the county mayor and be available for
public inspection. The committee’s function is to review the feasibility
study to determine if all appropriate costs are included and publicly
disclosed. The committee either approves the study or disapproves the
study if it is deemed incomplete and lacks substantial information to
provide an accurate estimate of the costs and benefits of owning and
operating a plant. The committee is to itemize any deficiencies and
return the study to the local government or governments for modification
and resubmission. If after a second submission a majority of the
committee determines the study to be incomplete, it will be forwarded to
the county or municipal governing body with a negative recommendation
within 30 days after the meeting. Any minority report must also be
forwarded. The county legislative body or municipal governing body then
determines whether or not to approve or deny any action required to
acquire an asphalt facility. The resolution or ordinance requires a
two-thirds majority vote before any public funds may be expended on a
hot mix asphalt facility. Asphalt produced from such a public facility
must be used exclusively for paving public streets, roads or highways
under control of the unit of local government that owns the plant.
Asphalt facilities owned by local governments on March 29, 1976, and all
metropolitan governments are exempt from the additional requirements of
2005 Public Chapter 344.All local governments acting under the new
public chapter that own and operate an asphalt facility are required to
solicit bids annually for hot mix asphalt products but may reject any
and all bids. T.C.A. § 12-8-101.
All counties and municipalities that did not own or operate an aggregate
facility for the production of crushed limestone, commercial lime,
agricultural lime, sand, gravel, or any other product resulting from the
processing of aggregate on June 7, 2005, is prohibited from acquiring
such a facility unless the county or municipality prepares a financial
feasibility study comparable to the one required for asphalt facilities
and a review procedure substantially similar to the one for asphalt
facilities is used. The acquisition of such an aggregate facility also
requires a two-thirds majority vote of the county legislative body or
municipal governing body as appropriate. A local government that owns
and operates an aggregate facility may transfer materials to another
entity of that local government only if a study has been completed to
determine the actual costs of producing that material and reimbursement
of actual costs is made. Otherwise, it is unlawful for crushed
limestone, commercial lime, agricultural lime, gravel, or any other
product resulting from processing of stone, produced in whole or in part
by any governmentally owned or operated plant, quarry, crusher, or stone
processing plant to be sold, traded, bartered, lent, or given away .
T.C.A. § 12-8-101. A violation of this section results in a Class C
misdemeanor. T.C.A. § 12-8-102. However, counties may sell agricultural
lime to farmers for their own farming activity. T.C.A. § 12-8-103.
Counties may make improvements to existing highways in the state highway
system within the particular county, but only with the approval of the
commissioner of transportation. These improvements may be made by the
highway department or through contract with private companies, if
approved by the commissioner. Maintenance of improvements by the county
that benefit the state highway system becomes the responsibility of the
state when the county work is completed. T.C.A. § 54-5-140.
County highway departments may accept donations of materials, property,
services, funds, or supplies for their benefit if used in good faith
according to the terms of the donation. Also, the highway department may
allow a private person or entity to repair county roads damaged by that
person or entity to meet the roads' condition or standard prior to the
damage. T.C.A. § 54-7-115.
Local governments may participate with a railroad authority in
constructing, reconstructing or repairing railroad crossings. This work
may be performed by private parties under contract or by local
government employees. T.C.A. § 65-11-101.
The CAO, highway commissioner, legislative body member or road
department employee must not be financially interested in or have any
personal interest, either directly or indirectly, in the purchase of any
supplies, machinery, or materials, nor in any firm, corporation,
association or individuals selling or furnishing any such materials or
equipment to the road department. Violation of this provision
constitutes official misconduct and is a Class C misdemeanor and is
grounds for removal from office. T.C.A. § 54-7-203. This conflict of
interest statute is more restrictive than the statute generally
applicable to county officials. See T.C.A. § 12-4-101.
The CAO may remove any fence, gate or other obstruction from the roads,
bridges and ditches of the county and clean out and clear all fences and
ditches along or adjacent to the county roads. Any person who places or
maintains an obstacle or obstruction on the right-of-way of a county
road and refuses to remove it commits a Class C misdemeanor. T.C.A. §
54-7-201. See also Op. Tenn. Atty Gen. 00-072 (April 17, 2000) for a
more detailed discussion of this issue.
Removal From Office and Withholding of State Funds:
If any provision of the CUHL is violated, the commissioner may withhold
state-aid highway system funds until the deficiency is corrected to the
commissioner's satisfaction. T.C.A. § 54-7-204. In addition to any
proceeding under Title 8, Chapter 47, of the Tennessee Code Annotated,
the CAO of a county road department may be removed from office in
accordance with the provisions of T.C.A. § 54-7-205. If the
investigation by the district attorney general and the state attorney
general indicates willful misfeasance, malfeasance or nonfeasance by the
chief administrative officer, the district attorney general shall
proceed, pursuant to Title 8, Chapter 47, to remove the CAO from office,
and the officer will be ineligible to seek the office again. T.C.A. §
54-7-205.
County Roads versus Private Roads:
All roads in a county are not county roads, as some are private roads,
state highways or city streets. Private roads are the most difficult to
distinguish from county roads. Private roads are generally: (1) used by
only one or a few property owners, such as a driveway; or (2) one where
the landowner allows the general public to use, but (a) the road has
never been formally accepted by the legislative body as a county road or
(b) the landowner has never given the public any rights either express or
implied.
A public highway or road is “such a passageway as any and all members of
the public have an absolute right to use as distinguished from a
permissive privilege of using same.” Standard Life Ins. Co. v. Hughes,
315 S.W. 2d 239, 242 (Tenn. 1958). This case provides that a road may
become public in one of the following ways:
1. Act of a public authority;
2. Express dedication by the owner;
3. Implied dedication – use and acceptance by the public with the
intention of the owner that the use become public; or
4. Adverse use continuing for 20 years, creating a prescriptive right.
Accordingly, unless the public has acquired an absolute right to use the
road under one of these methods, any public use is either by permission
or license and not by right, and the road remains a private road. Id.
County Road List:
The statutes do not make a clear distinction between “public” and
“county” roads. All county roads are public roads, but not all public
roads are county roads. Some public roads are maintained by other
governmental entities such as the state or city governments. Some roads
not maintained by any governmental entity maybe public (the public has a
right to traverse) while others are private. The county legislative body
is required to annually classify the public roads in the county after
receiving the recommendation of the CAO of the county highway
department. This classification should be accomplished, or at least the
process begun, each January. The process begins when the CAO submits a
listing of all county roads to the county legislative body. This listing
must include a summary of all changes from the road listing submitted
the previous year. The summary is to provide the road name, date the
change was approved by the county legislative body and the reason for
the change (including but not limited to, opening, closing, reduction or
extension in length, or correction of error). The CAO must also include
a recommendation for classifying the roads. T.C.A. § 54-10-103. Roads
classified by the county legislative body as public roads to be
maintained by the county are listed with a classification according to
width. T.C.A. § 54-10-104. This county road list is a public record kept
by the county clerk. T.C.A. § 54-10-103. The county highway department
should also have an up-to-date county road list.
A private road often used by members of the public and a public road
that has not been maintained by the county highway department are often
difficult to distinguish. Although a court called upon to decide such an
issue may apply the tests set forth in the Hughes case noted above and
decide a road is a public road, the county highway department should
work only on the public roads named on the county road list to avoid the
possibility of working on private roads (except as permitted in limited
circumstances described below). The CUHL states that the CAO may only
use county vehicles, equipment, supplies or road materials for official
county road purposes. T.C.A. § 54-7-202(d). Therefore, the CAO operates
clearly within the authority of the law when county road work is limited
to public roads classified on the county road list.
As mentioned previously, the CUHL does allow work on private roads under
very narrow circumstances, such as when the United States Postal Service
or the school board or education department requests the provision of a
route and turnaround area. Before the county highway department performs
any work so requested, the CAO must receive the request in writing from
the postal or school officials and must also receive written permission
of the owner of the property proposed to be used as a turn around area.
The highway department (CAO or elected highway commission) and the
appropriate postal authority or school board or department of education
must determine whether all or part of the cost of the work will be
reimbursed to the county highway department prior to commencing work on
the project T.C.A. § 54-7-202(g). This provision for the postal service
and school board is the only exception to the rule that the county
highway department cannot work on private roads.
An up-to-date road list is vital for the protection of the highway
officials. With a current road list on file, highway officials will know
exactly which roads can be maintained and which roads are illegal to
maintain. T.C.A. § 54-10-103. The highway department should not begin
work on a road until it has been officially accepted by the legislative
body and added to the county road list. There may be some confusion in
counties that have a planning commission because road approval by a
planning commission is one step in the acceptance process. However,
approval of a plat by the planning commission does not constitute
acceptance of a platted road as a county road. T.C.A. § 13-3-405.
The county legislative body must update and maintain the county road
list after receiving the CAO's recommendation. The road list is not
difficult to compile and should contain eight factors:
1. Type of road (county or state-aid road);
2. State-aid road description (only for county roads included in the
state-aid road system);
3. Local name of road;
4. Beginning and ending point of road (describe by reference to
geographical features);
5. Miles (length of road to nearest one-tenth mile);
6. Class (classify according to width);
7. Right of way width (in feet); and
8. Roadbed width (in feet).
T.C.A. §§ 54-10-103, 54-10-104.
Frequently, only a portion of a total road may be accepted as a county
road. Accordingly, the beginning and ending points, total miles, and
other road list items should refer only to the part of the road that is
a county road.
Acceptance and Closing of County Roads:
The statutory law regarding acceptance of new county roads and the
closure of existing county roads is very confusing, and the county
attorney should be consulted to determine the proper procedure to follow
in the particular county. However, some general observations may be
helpful. The relatively new CUHL must be reconciled to the greatest
degree possible with the old general law on opening, closing and
changing roads found in Title 54, Chapter 10 of the Tennessee Code
Annotated, as well as other general law such as the general law granting
certain powers to regional planning commissions and the state Department
of Transportation in some instances.
The state attorney general has opined that in counties under the CUHL,
the CAO of the county highway department, or the elected highway
commission or board (if a private act grants general control of the
county road system to the elected board) in the counties with such an
elected board, has general control of the county highway system and this
includes approving the acceptance of a new road, changing the route of
an existing road or closing an existing county road before such a change
may take place. Op. Tenn. Att’y Gen. U89-10 (January 31, 1989). However,
this is not the only step involved. The county legislative body must
pass on additions or deletions to the classifications of county roads in
the county road list after receiving the recommendation of the CAO.
T.C.A. § 54-10-103. However, if a road has obtained a public character
under the standard in the Hughes case, it is doubtful whether the CAO or
elected highway board may prevent the county legislative body from
adding such a road to the county road list or prevent a court from
declaring the road public and part of the county road system. Hackett v.
Smith County, 807 S.W.2d 695 (Tenn. Ct. App. 1990); Rogers v. Sain, 679
S.W.2d 450 (Tenn. Ct. App. 1984).
In Hackett v. Smith County, 807 S.W.2d 695 (Tenn. Ct. App. 1990), the
court held an implied dedication of the roads in a subdivision had
occurred through extended use and acceptance by the public although the
county had not placed the roads on the county road list. In the case of
Shahan v. Franklin County, 2003 WL 23093836 (Tenn. Ct. App.), a developer
and residents of a subdivision sued the county over the maintenance of
roads within the subdivision. The county had declined an offered
dedication. Although the court found evidence of public use of the
roads, it held that the doctrine of implied dedication did not apply
because the roads were in an unapproved subdivision in a county that had
established regulations that included minimum road standards. Reading
Hackett and Shahan together, subdivision roads can be expected to become
the responsibility of the county unless it can be demonstrated that the
developer failed to comply with minimum road standards established in
subdivision regulations.
Once a road is a part of the county road system, a county commission
cannot merely rescind its action in accepting a public road, but must
follow the statutory procedures for road closures. In arriving at this
opinion the state attorney general stated that it is well established
that an action can be undone only by following procedures specified by
statute, or, if there are none, by an act of “equal dignity” with the
method of enactment. Op. Tenn. Att’y Gen. U96-010 (February 8, 1996).
If bonds are issued for construction of county roads or bridges, the
approval of the CAO, the county legislative body and the Tennessee
Department of Transportation must be obtained. T.C.A. §§ 54-9-139,
54-9-202. Also, the regional planning commission has authority to
approve plats of subdivisions that may contain plans for roads or
streets, and the planning commission has power to set standards for such
roads or streets in the subdivision. T.C.A. §§ 13-3-401, 13-3-402,
13-3-406. However, the statutes specifically state that the approval of
a plat by the regional planning commission shall not be deemed to
constitute or effect an acceptance by any county or by the public of the
dedication of any road or other ground shown upon a plat. T.C.A. §
13-3-405; Foley v. Hamilton, 659 S.W.2d 356, 360 (Tenn. 1983).
The old general law found in Title 54, Chapter 10, Part 2, dealing with
petitions to open, change or close public roads must be considered when
dealing with certain changes to the county highway system. As stated
earlier, this old law must be reconciled to the extent possible with the
newer statutes found in the CUHL. For example, before a road is closed,
adjacent landowners or those controlling the land touched by the
proposed road must be notified. T.C.A. §§ 54-10-202, 54-10-203. Since
these changes may involve damages to property owners, a jury of view is
provided for to determine if damages exist and to what extent. T.C.A. §
54-10-204. The exact workings of a petition process, jury of view, any
necessary hearings and other procedural matters should be worked out
with the consultation of the county attorney so as to reconcile the
conflicting statutes to the greatest extent possible.
In 1995, the General Assembly enacted an alternative local option
procedure for closing public roads that are not maintained by any other
governmental entity. If the county legislative body adopts these
alternative measures by a two-thirds majority vote, the following
procedures apply for that county. An application to close a public road
is made to the CAO. The CAO gives notice of this application to
interested parties (adjacent property owners). The CAO makes a
recommendation to the regional planning commission regarding whether or
not the road should be closed. The planning commission then provides
written notice to affected property owners or newspaper notice of an
impending recommendation 14 days prior to making the commission’s
recommendation to the county legislative body. After receiving the
recommendation of the regional planning commission, with the CAO’s
recommendation attached, the county legislative body may order closure
of the public road by resolution. T.C.A. § 54-10-216. The CAO has the
authority to temporarily close roads or bridges as necessary for new
construction or repair. Op. Tenn. Att’y Gen. 81-618 (Dec. 7, 1981).
Eminent Domain:
Counties, through the county legislative body, may condemn and take
property, buildings, privileges, rights and easements of individuals and
private corporations for any county purpose. T.C.A. § 29-17-101.
Property owners must be compensated for damages involved in
condemnation. The amount of payment may be agreed upon by the parties or
determined by a court of law. T.C.A. § 29-17-701. Nevertheless, the
amount is determined by ascertaining the fair cash market value of the
property or property rights taken and additional incidental damages to
the residue of the property. T.C.A. § 29-17-810.
Weight Limits:
The general statutory law limits the weight of vehicles over the public
roads of the state according to weight per axle or group of axles. T.C.A.
§ 55-7-203. However, the state commissioner of transportation may lower
the gross weight of freight motor vehicles operating over the highways
and secondary roads where through weakness of structure in either the
surface of the road or the bridges, the maximum loads provided by law,
in the opinion of the commissioner, injure or damage such roads and
bridges. “Appropriate county officials” have the same authority for
county roads. T.C.A. § 55-7-205. It is not perfectly clear who the
“appropriate county officials” are. Therefore, to insure that any weight
limits placed on county roads are enforced, the CAO of the highway
department should seek approval from an elected road board if one exists
in the county with general supervisory powers, and also the county
legislative body if the weight limit is to be permanent. Also, the limit
should be based on the study or recommendation of an engineer if the
limit is to be permanent in nature. Further, it is important for
enforcement that an adequate number of signs be employed, and it is
recommended that notice be given in a newspaper of general circulation
in the county of the roads and bridges that will have the new limits.
Regional engineers of the Tennessee Department of Transportation may be
helpful in establishing weight limits.
Speed Limits:
State law establishes the speed limit on all non-interstate highways and
roads in Tennessee at 65 mph, if a lower limit has not been set as
provided in the statutes. T.C.A. § 55-8-152. The county legislative body
has the authority to set lower speed limits on county roads. If this is
done, the county legislative body is directed to provide funds for the
erection of signs and traffic signals as appropriate to warn the public
of these lower limits. T.C.A. § 55-8-153.
Public Fords, Ferries and Bridges:
Counties may supervise fords, ferries and bridges. T.C.A. § 54-11-101 et
seq. Counties may issue bonds for the construction of county highways,
roads and bridges and pledge up to 50 percent of state-aid grant funds
derived from the state gasoline tax for the retirement of such bonds.
However, state funds used in matching federal funds may not be included
in this amount. T.C.A. § 54-9-201. The legislative body may build a
bridge or bridges over and across any stream or river running through
the county. T.C.A. §54-11-207. However, as with roads, such authority
applies only to public bridges. A county highway department does not
have any responsibility to maintain bridges on private property. Op.
Tenn. Att’y Gen. 01-080 (May 17, 2001).
