Request By:
Mr. Murray E. Combs
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Under KRS 179.410, the County Road Aid Program, arising from gasoline tax revenues (see KRS 177.320), the Department of Finance is required to allocated the money appropriated to the counties in accordance with the provisions of KRS 177.360, as the precise method of allocation.
KRS 177.360(1)(a), (b), (c) and (d) reads:
"(a) One-fifth (1/5) shall be apportioned equally among the one hundred twenty (120) counties.
"(b) One-fifth (1/5) shall be apportioned among the one hundred twenty (120) counties on the basis of the ratio which the rural population of each county bears to the total rural population of the state. 'Rural population' as used here means the population in a county outside cities, towns and urban areas having a population of twenty-five hundred (2500) or more as shown by the most recent decennial census of the United States bureau of the census, and county population shall be determined by the most recent decennial census of the United States bureau of the census.
"(c) One-fifth (1/5) shall be apportioned among the one hundred twenty (120) counties on the basis of the ratio that the public road mileage outside of cities, towns and urban areas having a population of twenty-five hundred (2500) or more bears to the total mileage of such roads for the entire state.
"(d) Two-fifths (2/5) shall be apportioned among the one hundred twenty (120) counties on the basis of the ratio which the squaremile rural area of the county bears to the total square-mile rural area of the state. 'Rural area' as used here means that area of the county outside of cities, towns and urban areas having a population of twenty-five hundred (2500) or more and shown by the most recent decennial census of the United States bureau of the census. "
It may be noted that KRS 177.360(1)(a) provides that one-fifth of the fund shall be apportioned equally among the 120 counties. However, KRS 177.360(1)(b), (c) and (d), relate to the fractions of one-fifth, one-fifth, and two-fifths, respectively of the fund, but which literally are based upon a ratio which the rural population of the county bears to the total state rural population, a ratio that the public road mileage outside of cities, etc., of 2500 or more bears to the total mileage of such roads in the state, and the ratio which the square-mile rural area of the county bears to the total square-mile area rural area of the state.
A problem has arisen concerning the County Road Aid allotment for 1981-82 for Fayette County. Specifically, the question is: How is KRS 177.360, as the method of allocation of the road fund, to be applied to Lexington-Fayette Urban County Government?
The difficulty is that a literal reading of the statute suggests, as relates to four-fifths of the fund, ratios involving a segregation of the rural from the urban population in all counties. However, for practical purposes, you say, Lexington can now be identified coterminously with Fayette County. One one-fifth, of the formula, relates to mere arithmetical one-fifth to be apportioned equally to the 120 counties. You also say that the 1980 decennial census does not distinguish between the total population for Fayette County and the total population for the City of Lexington. See KRS 67A.010, et seq., concerning the statutory law on urban-county government. See
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), upholding the constitutionality of the urban county government statutory law. KRS 67A.060 makes it clear, however, that urban county governments may exercise the constitutional and statutory rights, powers, privileges, etc., of counties and cities of the highest class within the county. This clearly evidences the legislative intent that the new governmental creature was not to lose its various rights as a city and as a county as a result of the new birth.
KRS 67A.050 is basically dispositive of this question, subject to the limitation described hereinafter. It reads:
The comprehensive plan for merging city and county governments into an urban-county government under this chapter may provide for the corporate dissolution of incorporated municipalities within the county whereupon:
"(1) For purposes of all state and federal licensing and regulatory laws, statutory entitlement, gifts, grants-in-aid, governmental loan, or other governmental assistance under state or federal laws, rules or regulations;
"(a) The urban-county shall be deemed a county and shall also be deemed to contain incorporated municipalities of the number and classes which existed in the county on the day prior to the date the urban-county government became effective; and the entire geographic area and population of the urban-county shall be considered in calculating and determining the distribution basis for state or federal statutory entitlements, gifts, grants-in-aid, loans, or other forms of governmental assistance;
"(b) The urban-county government is empowered to designate to the appropriate state or federal agency those geographic areas, portions of roads, segments of population, or combinations thereof which shall be deemed to constitute rural or urban areas, roads or population, notwithstanding whether such areas, roads or population are within incorporated municipalities.
"(2) The chief executive officer of the urban-county government shall determine and make the designations herein following a public hearing thereon. The urban-county government shall fix the time and place of the hearing which shall be advertised pursuant to KRS Chapter 424."
See Section 1.01 of the Charter of the Lexington-Fayette Urban County Government, reciting that Fayette County has merged with the City of Lexington, to form a new "merged" government.
The Urban Studies Center in Louisville, which has been designated as the official state demographic center, has informed you that they are able to determine a rural population in Fayette County. Through demographic research, they have identified what they define as an "urban boundary" in Fayette County. Although this boundary envelopes most of the total Fayette County area, there are still a number of residents living outside of this boundary and could therefore be defined, according to the Urban Studies Center, as rural population. You say that by utilizing that data, the Department of Finance, for this program, could treat Fayette County like any other county in determing their road money allocation.
It is our opinion that the urban county government can take appropriate action under KRS 67A.050(1)(b), whereby it can designate rural urban areas and roads in rural and urban areas of Lexington-Fayette Urban County government, as described therein. However, such designation cannot be made arbitrarily. See § 2,
Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). Mr. Douglas Nunn, Director of the Urban Studies Center, Louisville, informed us that there is built into the 1980 Federal Census a census concept framed around Standard Metropolitan Statistical areas. In such metropolitan areas an "urbanized boundary" is developed, in terms of population figures, based upon a population density factor. Thus people within the urbanized boundary are counted in the urban group, all outside of the urbanized boundary are counted as being in the rural group. The urban county government can consult with Mr. Nunn on this or can contact the United States Department of Commerce, Washington, D.C., to get the breakdown to use in terms of action taken under KRS 67.050(1)(b).
Under the procedure outlined above, the Finance Department can finally make an equitable allocation of such road money to the urban county government.