Request By:
Mr. Robert Coots
Spencer County Attorney
Taylorsville, Kentucky 40071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
House Bill 730 of the regular 1980 session of the General Assembly enacted into law certain amendments to KRS 262.200, which relates to soil conservation districts. You say that the bill places a burden on Spencer County Fiscal Court to supply the Spencer County Soil Conservation District with funds for a reasonable budget by either appropriating money from the county's general fund or by levying a millage tax on all real property in the county calculated to produce revenue not exceeding $25,000 in any one fiscal year. The Soil Conservation District has made a request of fiscal court for funding, and the fiscal court is considering levying the tax.
You have advised the fiscal court that the millage advalorem tax would be subject to the roll-back statute, KRS 68.245.
Your question is whether the fiscal court is mandated to levy the tax, and, if so, whether the tax is subject to the roll-back restrictions of KRS 68.245.
House Bill No. 730 [effective July 15, 1980] amends KRS 262.200(4) to read as follows:
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"(4) The board may request annual operating funds from the fiscal court. To support the request, the board shall present to the fiscal court a report of the previous year's operation, a long range plan for natural resource development and an annual plan of work. Should a fiscal court fail to approve a requested budget, it shall present a specific list of objections and suggested corrections to the board in writing and within a reasonable time. If a budget request is not approved, the board may submit a revised budget request. Funds for an approved budget shall be supplied either from general funds or from the levy of a millage tax on all real property within the boundaries of the county, the total amount not to exceed twenty-five thousand dollars ($25,000) in any one (1) fiscal year. The tax shall be collected in the same manner as other county taxes, and shall be credited to the board."
It is our opinion that under KRS 262.200, as amended in 1980, the district board may request annual operating funds from the fiscal court. Once that request is lodged, the fiscal court is in effect required to finally approve the district budget, since the procedure of the fiscal court's making any objections to the budget prior to approval and the district's submitting a revised budget clearly suggest it. In other words, the fiscal court cannot with finality arbitrarily disapprove the budget. See Sec. 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258.
Once the budget is approved, it is mandatory that the fiscal court fund the budget either from the county's general fund or by levying the millage ad valorem tax, not to exceed $25,000 for a fiscal year. The statute says "Funds for an approved budget shall be supplied. " (Emphasis added). KRS 446.010(29) provides that "shall" usually means "mandatory" .
Your last question is whether or not the tax is subject to the restrictions of KRS 68.245 [roll-back law]. KRS 68.245(1) reads:
"(1) Notwithstanding any statutory provisions to the contrary, no county budget commission shall submit a budget which would require more revenue from local ad valorem taxes than would be produced by application of the preceding year's rate to the preceding year's assessment, exclusive of voted levies and net assessment growth, except as provided in subsection (3) of this section. The property valuation administrator shall submit an official estimate of net assessment growth, as determined in accordance with KRS 132.425, to the county judge/executive by April 1 of each year."
Since the tax is not a voted levy, and since the tax is characterized by the statute [KRS 262.200(4)] as a "county tax", the restrictions of KRS 68.245 apply.
OAG 72-335 is modified accordingly.