Request By:
Hon. Robert W. Carran
City Attorney
City of Elsmere
318 Garvey Avenue
Elsmere, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Your recent request for an opinion of this office poses the question, whether a railroad may be assessed by a municipality for an improvement done pursuant to the provisions of KRS 94.291 et seq.
KRS 94.291 to 94.325 provide for the making and financing of public improvements in cities of all classes with two exceptions not pertinent here. I direct your attention specifically to KRS 94.324(1) which provides,
Unless otherwise provided by law or otherwise provided by the franchise or contract pursuant to which a railroad company or street railway company occupies a public way with its tracks, the cost of improving that portion of the public way occupied by the tracks of the railroad or street railway company shall be assessed against the company, and an improvement tax shall be levied upon all the property, assets and franchises of the company in the city for the payment thereof. The tax shall be levied and assessed, shall be payable, collectible and bear interest, and shall constitute a lien, in the same manner and under the same provisions as provided in KRS 94.291 to 94.325 for improvement taxes generally. The company shall have the same privilege of paying the tax on the installment plan, and under the same terms and conditions, as provided in KRS 94.291 to 94.325 for property owners. (Emphasis added).
Note that this statute limits the assessment against the railroad company to improvements made by the municipality to "that portion of the public way occupied by the tracks. " The purpose of the assessment provisions contained in KRS 94.291 to 94.325 are to allocate the costs of improvements among those landowners benefited to the extent they are so benefited. The legislature, in enacting KRS 94.324, obviously concluded that any public works improvements which would benefit the railroad company would be confined to this limited area.
It should also be noted under KRS 94.324(2), that the railroad company may be allowed the option of contracting the improvements itself, thereby avoiding the assessment of an improvement tax by the municipality. This subsection of the statute provides,
A railroad company or street railway company may construct its own part of the proposed public way improvement, and if it do so no tax shall be assessed against it, but the company shall, before the letting of the contract for the improvement, elect, by written request presented to the city legislative body, to construct its part of the improvment, and execute a bond to the city with surety to be approved by the city legislative body, conditioned that it will do the work of improving such part of the public way with the materials according to the plans and specifications, within the time, and subject to the provisions prescribed by the ordinance therefor. (Emphasis added).
Therefore, while it is evident that a municipality may not assess a railroad company for construction of proposed improvements on its own part, it may assure itself of the quality and timeliness of the improvements by requiring that the railroad company follow the municipality's plans and specifications.
In summary, a railroad may be assessed by a municipality for an improvement done pursuant to KRS 94.324, unless otherwise provided by law, or by the franchise or contract pursuant to which the railroad occupies the public way.