Request By:
Honorable Phillip Bruce Leslie
City Attorney
City of Greenup
1005 Walnut Street
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 5 in which you relate that the city of Greenup recently passed an ordinance establishing the Greenup Riverport Authority pursuant to KRS 65.310 et seq. You further relate that the establishment of this Authority raises certain questions thereinafter related:
"(1) Can the Greenup Riverport Authority, which was created by an act of the City of Greenup Council, exercise the right of eminent domain on lands which lie outside the city limits of the City of Greenup and particularly, on lands which actually lie within Greenup County? We are aware that the Greenup Riverport Authority would have statutory right of eminent domain for lands lying within the corporate limits of the City of Greenup.
"(2) Does the Greenup Riverport Authority have the right to locate its main port facility on land located outside the city limits of the City of Greenup? This would not involve the exercise of eminent domain necessarily, but we envision the port authority being located on lands lying in Greenup County which would be sold or leased by private concerns to the Greenup Riverport Authority.
"(3) Once the Greenup Riverport Authority is established and the members appointed by the Mayor per the statute, does the City Council have any control whatsoever over the actions of the Greenup Riverport Authority? Can Council or the Mayor remove members of the Greenup Riverport Authority without cause or even with just cause prior to the expiration of their terms?"
The answer to your initial question would be in the affirmative and we particularly refer you to KRS 65.530 (5), which reads as follows:
"With the consent of the legislative body of the governmental unit in which the property to be condemned is located, the authority may be resolution, reciting that the property cannot be acquired by purchase or agreement and is needed for riverport, water navigation, or industrial purposes in accordance with the powers set forth in subsection (4) of this section, direct the condemnation of any property. The procedure for condemnation shall conform to the procedure set out in the Eminent Domain Act of Kentucky."
The above statute clearly authorizes the Authority to condemn property located outside of the city and in the county. The Authority must however obtain the consent of the Greenup County Fiscal Court since the property to be condemned is located in the county and outside the city. The Riverport Authority established by governmental unit or units is a body politic corporate with no defined geographical boundaries. See KRS 65.620 to 65.530 and OAG 66-65 (copy attached).
Our response to your second question would also be in the affirmative since as we said above, the Riverport Authority is a separate body politic from that of the city or county with no defined geographic boundaries.
In response to your third question, once the Riverport Authority is established and thereby becomes a political entity, it has complete control over its own operation under the terms of KRS 65.510 to 65.650. Of course, when the city establishes the Authority, the mayor appoints the members thereof and has the power to replace any member for inefficiency, neglect of duty, malfeasance, or conflict of interest under the terms of KRS 65.540 (1) (a) and (3). However, the power to remove a member of the Authority can only be accomplished following a hearing from which the member so removed may appeal to the circuit court as provided in subsection (3). Thus, the mayor cannot remove members of the Authority except for cause and in the manner prescribed in KRS 65.540 (3).