§ 12-25. Protect County and public roads from excessive wear and tear.

(a)

This section shall apply to any commercial or industrial development or operation in the unincorporated areas of the County that will cause excessive wear and tear on any County or public road as defined herein or create a danger to public safety as a result of the traffic on the affected road.

(b)

Excessive wear and tear is hereby defined as usage that will require improvements or increased maintenance to the road in question because of the type of traffic generated.

(c)

Commercial or industrial development or operation, hereinafter referred to as "development", shall mean any improvement or other development of land for the carrying on of business, trade or commerce; such as dirt pits, gravel pits, mines, quarries, or other businesses that impact the affected road in the same or similar manner; but in no event shall include agricultural or farming operations; nor shall this be construed to apply to residential subdivisions.

(d)

No such development shall commence operation until it has provided notice to the County Judge of its intent to do so, and a hearing, if any, is held pursuant to this section. The County Judge shall forthwith notify affected users of the road in question upon receipt of notice by the development. Furthermore, said development may not proceed until it complies with any order issued by the County Judge.

(e)

Before notifying the users of the road in question, the County Judge may ask the development to furnish information he feels is relevant to any determination herein. If after a review of such, the County Judge determines that said development will not violate the purposes of this section then no notice to the affected users will be required. The County Judge may also enter into agreements with the development that will satisfy the purposes of this section, in which event no notice to the users will be required. In the event of either of the above then no petition will be entertained.

(f)

If it appears that any such development will result in excessive wear and tear on the County or public road that said development is located on or directly accessed by, or presents a threat to the public safety along said road, then a petition alleging such may be filed with the County Judge in his executive and/or judicial capacity; except as stated above. Said petition shall be filed no later than thirty (30) days from the issuance of notice to affected users by the County Judge.

(g)

Upon filing a petition as defined herein, the County Road Superintendent or his designee, accompanied by a representative of the development, shall take digital photographs of the road in question, including the approach to the road and use beyond the end of the road if applicable; as an aid in determining excessive wear and tear and its causes.

(h)

The petition must be signed by no less than sixty (60) percent of persons who use said road for ingress or egress to property they own, or twenty (20) people who use said road for ingress and egress to property they own; whichever is less; and accompanied by an affidavit that said petitioners will dedicate any easement or right-of-way deemed necessary by the County Judge. Said petition shall be served upon the development in accordance with law. The petitioners shall hereafter be referred to as "users".

(i)

If, after a hearing, the County Judge finds that said development will result in excessive wear and tear on the affected road or will create a threat to public safety as a result of traffic on the affected road, then the County Judge may issue an Order requiring:

(1)

The County to make improvements to said road;

(2)

The County and the users of the road to make said improvements; including dedication of easements and right-of-ways deemed necessary by the County Judge;

(3)

The owners of the development to make improvements to said road;

(4)

Weight limits on vehicles allowed to use the road and/or limitations on the number of types of vehicles that may use said road within any given time frame;

(5)

The development to post a bond to insure against excessive wear or tear or a danger to the public safety on said road and compliance with any ruling of the County Judge.

(j)

The County Judge may also order any combination of the above; enjoin the development from using the road; deny the petition in whole or in part; or grant such other relief as may be proper. If any owner of the development is required to make any improvements, these improvements must be directly attributable to said development and in compliance with rulings of the United States Supreme Court.

(k)

The County Judge in making his decision shall consider common and statutory law, which provides that no person has an absolute right to use a road in an unreasonable manner and cause damage by way of unlawful, careless, illegal, negligent or unreasonable use. Nothing herein shall be deemed to prohibit the County Judge from taking action in his own right.

(l)

In making his decision the County Judge shall also consider:

(1)

The classification and current condition of the road;

(2)

The type and nature of the traffic currently borne by the road;

(3)

The safety of the citizens and other users of the road;

(4)

Current county road specifications;

(5)

The weight and size of the vehicles that will utilize said road as a result of the development;

(6)

The intensity of the traffic that will be generated as a result of the development;

(7)

State and federal constitutional law; and

(8)

Any other relevant evidence.

(m)

Any decision made by the County Judge shall be appealable to the Circuit Court for an immediate de novo review within thirty (30) days in accordance with law.

(n)

The County Judge is authorized to institute appropriate civil action to prevent a violation of this section.

(o)

This section shall not apply to developments existing on the date of the passage of this section; but will be applicable to developments that expand their operations after the effective date herein if such expansion will cause excessive wear and tear on any county or public road or create a danger to the public's safety as a result of traffic on the affected road; unless prior to the passage of the ordinance there have been substantial steps taken toward the implementation of the expansion or substantial investment has been made or substantial obligations incurred on the part of the development in regard to such expansion.

(Ord. No. 2004-19, Arts. 1—15, 3-11-04)

Editor's note

Ord. No. 2004-19, Arts. 1—15, adopted Mar. 11, 2004 did not specifically amend the Code, hence inclusion as § 12-25 was at the discretion of the editor.