Request By:
Mr. Dale M. Morris
Larue County Attorney
Courthouse
Hodgenville, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your inquiry relates to the applicability of KRS 179.470(3) to Larue County and the implementation of the statute.
KRS 179.470(3) reads:
"(3) Notwithstanding the provisions of KRS 178.010(2), in counties containing a population between eighty thousand (80,000) and one hundred and fifteen thousand (115,000) and a city of the second class or in counties containing a city of the fourth, fifth or sixth class and not a city of the first, second or third class, any street or road in an unincorporated area or a city of the sixth class of the county, which is at least two hundred (200) feet in length and dedicated to public use, may be maintained by the fiscal court of the county in the same manner as provided in subsection (1) of this section. In addition, street lights, garbage collection, water and sewer services may be provided by the fiscal court. The county shall be reimbursed for the cost of such maintenance and services by the abutting property owner whose proportionate share of the cost of maintenance and services shall be added to the owner's county tax bill and collected in the same manner as county taxes. Further, upon the petition of fifty percent (50%) or more of the abutting property owners of the street or road the fiscal court may by proper resolution provide for the improvements in the same manner as the improvements set forth in KRS 94.291 to 94.325."
The underlying facts given are as follows:
"Larue county contains one city of the 4th class, Hodgenville, and the rest of the county is basically unincorporated. Hutcherson Heights is a subdivision located in an unincorporated area in Larue County just outside of the city limits of Hodgenville. All but two streets in the same subdivision have previously been placed on the county road maintenance system and dedicated to public use. One resident of the remaining street in the subdivision has come to the fiscal court requesting maintenance and the court wishes your opinion on the following inquiries before taking action on said request."
Question No. 1:
"Does KRS 179.470(3) apply?"
KRS 179.470(3) applies, since the county contains a 4th class city. However, the fiscal court is not mandated to use that statute. The subdivision streets you mention may be taken into the county road system pursuant to KRS 178.010(1)(a) and 178.115 (also see KRS 178.080), pursuant to the sound judgment of fiscal court. Under the latter and conventional method, KRS 179.470 would not apply. See Sarver v. County of Allen, Ky., 582 S.W.2d 40 (1979) 41, 42.
Question No. 2:
"If the required number of residents request maintenance under the provisions of KRS Chapter 178 are only those persons who sign the petition responsible for the maintenance costs or is it to be prorated among all residents on said road?"
If you refer to a petition to the fiscal court to establish a road pursuant to KRS 178.080, no assessments are authorized. If the fiscal court uses the conventional method under KRS Chapter 178 to establish a county road, no assessments are authorized. Such road maintenance costs must be borne by the county's road fund. If you intended to refer to KRS 179.470, assessments are authorized, assuming that the statute is complied with (including the provision that 50% of the abutting lots must have houses which are occupied); and if 50% of the abutting property owners agree in writing to accept the county maintenance, the fiscal court may maintain the road through special assessments imposed on all of the abutting property owners. See OAG 80-583, copy enclosed.
Question No. 3:
"As a practical matter, how does the county arrive at a cost figure and see that it is placed on the appropriate tax bills?"
The assessments are computed on the basis set out in KRS 179.470(4) and 91A.200 et seq. KRS 91A.210 suggests that one of four methods may be selected: (1) assessed value basis (2) front foot basis, (3) square foot basis, and (4) benefits received basis. See KRS 91A.210 through 91A.280 for specific treatment of special assessments. The special assessment cost to each abutting owner is not shown on tax bills. See KRS 91A.260 and 91A.280. While KRS 179.470(3) mentions that such assessments be added to tax bills, the provision does not make sense. The special assessment is merely a special charge fixed on property to finance an improvement. It is not a tax. Moreover, the special assessment very often could not be integrated with the tax billing procedure. Language in a statute must receive a practical construction. Neutzel v. Will, 210 Ky. 453, 276 S.W. 137 (1925) 138.
Question No. 4:
"Must a separate ledger be maintained for each said street or road taken under the system and who has the responsibility for maintaining same ledger and computing the costs?"
If a subdivision street is taken over by the county for maintenance pursuant to KRS 179.470, the fiscal court is responsible for seeing to it that the executive branch of county government maintain files showing the details of the special assessment placed against all abutting property owners. This would include any necessary plats or drawings of each affected lot. A separate file system for each street taken over would be logical.
Question No. 5:
"Does each resident pay a proportionate share based on the total number of residents on the street, the total number of lots on the street in which case more than one lot may be owned by the same party, or should it be apportioned to the number of feet owned by each party relative to the length of the street; and what is a working definition of 'abutting property owner' relative to improvements and in what manner are those costs divided?"
We have dealt with this problem in responding to question 3, above. In adopting the procedures of KRS 179.470, special assessments may be imposed under the specific terms of KRS 91A.200 to 91A.290. The properties subject to assessment for road maintenance are those abutting or contiguous to the road (or both sides of the road). An abutting property owner is an owner whose property "abuts, is contiguous, or joins at a border or boundary. . ." Black's Law Dictionary, page 26.
In addition, under KRS 179.470(3), street lights, garbage collection, water and sewer services may be provided by fiscal court. The assessments for such improvements may be imposed on benefited properties, i.e., properties receiving special benefit from the particular improvement, even though some of the benefited properties do not abut the street containing the improvement. See KRS 91A.200(8), and City of Newport v. Klatch, 189 Ky. 300, 224 S.W. 844 (1920) 845, holding that the governmental unit making an assessment of abutting and benefited properties must spell out in its resolution with particularity the specific properties to be included under the categories "abutting properties" and "benefited properties", which do not abut. That case dealt with a sewer system. Thus in case of a sewage improvement, benefited properties would include all properties which are afforded a means of drainage. See KRS 107.140 and OAG 68-104, copy enclosed.