Request By:
Mr. James E. Parsons
County Coordinator
P.O. Box 77
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 79-332 we concluded that under KRS 67.083(3)(j) and (q), a fiscal court could qualify as a "public housing agency" in assisting in payments from the Housing and Urban Development Department subsidizing the rental payments involving existing dwellings owned by private individuals. That conclusion envisioned the assistance payments from H.U.D. going to the public housing agency designated to receive the money and to distribute the money to each affected dwelling unit owner. See 42 U.S.C. § 1437f and 24 C.F.R. § 882.116.
Your question is whether or not the authority for a county to assist in such a rental subsidy program (handling funds) is limited to the unincorporated areas of the county? The answer is "no", as will be hereinafter explained.
It is our opinion that KRS 67.083(3)(j) and (q) in no way limits the application of the subject authority of the fiscal court to the unincorporated areas of Boone County, subject to the proviso that there is no statute preempting the subject function in favor of a city or cities within Boone County, and the proviso that there is no duplicating function being presently exercised by a city or cities within Boone County under their authority pursuant to KRS 80.010(1) and 80.020. We are not aware of any statute expressly granting cities the exclusive jurisdiction over this type of subject matter. Cf. KRS 94.360 granting certain cities the exclusive control over city streets (repealed by Acts 1980, Ch. 233, § 3, but see the present KRS 82.400 and 82.405). See
George v. City of Raceland, 279 Ky. 316, 130 S.W.2d 825 (1939) and
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), dealing with the judicial bolding that all power exercised by county or city must be expressly delegated to it by statute. We are not apprised of any city in Boone County, which is exercising such authority. In fact, you informed us that no city in Boone County is performing this identical function at this time.
There are two basic rules, in addition to the above mentioned rule of strict construction of municipal power (any doubt concerning the existence of a particular power of a municipality is resolved against the municipality. See George v. City of Raceland, above). The first is the rule that a municipality's power ends at the municipal boundaries, unless extended by explicit legislation. The other rule is the "selfevident proposition that two lawfully and fully organized public or municipal corporations cannot have jurisdiction and control at one time of the same population and territory and exercise like or similar powers in the same boundaries." See 51 Ky. L.J. 22, 27; McQuillin, § 283; and
Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232 (1949) 237. Thus we believe our conclusion is consonant with the three rules outlined above.
CONCLUSION
Boone County, through its fiscal court, has the authority to operate its Section 8 program (in implementation of H.U.D. Section 8 Existing Housing Assistance Rental Payments Program) within the unincorporated and the incorporated areas of Boone County without first obtaining the consent of cities in Boone County.