Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office concerning the maintenance of subdivision roads in counties pursuant to KRS 179.470.
Specifically, your question reads:
"If the fiscal court of the county agrees to bring a subdivision road up to county standards and the provisions of the applicable statute, which in this case is KRS 179. 470(3), have been complied with, how would the original cost of doing so be apportioned among the landowners, in order to comply with the statutory provision that the landowners pay their proportionate share? "
KRS 179.470(3) reads:
"Notwithstanding the provisions of KRS 178.010(2), in counties containing a population between eighty thousand (80,000) and one hundred 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."
Under subsection (4), no street or road shall be accepted by fiscal court under the provisions of subsection (3) for county maintenance unless twenty-five percent (25%) of the abutting property owners petition fiscal court for county maintenance. Then the fiscal court must within thirty (30) days thereafter hold a public hearing on the petition. If fifty percent (50%) of the abutting property owners agree in writing to accept county maintenance, the fiscal court of the county may maintain the road or street in the same manner as provided in subsection (3) as applicable and subject to the same conditions.
If the fiscal court decides, after the petition is filed and fifty percent (50%) of the abutting owners agree in writing to accept county maintenance, to accept the subdivision road as a part of the county road system pursuant to KRS 178.010(1)(b) and 178.115, making the special assessments for subdivision road improvements is mandatory. The reading of the entire statute, KRS 179.470, indicates that the provision, relating to 50% of the lots abutting the street being required to have occupied houses, applies under subsections (1), (2) and (3). The "50% of the lots abutting" is simply the mechanism for making special assessments possible. See OAG 80-583, copy attached.
The "manner of maintenance" of such subdivision road, as mentioned in subsection (3) of KRS 179.470, refers to the "manner of maintenance" as provided in subsection (1). In the latter subsection the "manner of maintenance" is equivalent to that set forth in KRS 178.115. The latter statute sets forth the precise procedure leading to the establishing of a county road, including a resolution of necessity, etc. Thus where the fiscal court accepts the subdivision road for maintenance, such road will be maintained in the same manner as are county roads and according to the same standards.
Under the explicit language of KRS 179.470(3), "the county shall be reimbursed for the cost of such maintenance and services [street lights, garbage collection, water and sewer 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."
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.
We regret the somewhat circuitous route leading to your question as to the actual fixing of the assessments placed against the properties of abutting owners. However, the assessment of the properties cannot be placed in perspective without enumerating the various statutory conditions, as outlined above, which lead finally to the assessments.
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 of assessment may be selected by the local government: (1) "Assessed value basis." This means the apportionment of cost of an improvement according to the ratio the assessed value of individual parcels of property bears to the total assessed value of all such properties. (2) "Front foot basis." This means the apportionment of costs of an improvement according to the ratio the front footage on the improvement of individual parcels of property bears to such front footage of all such properties. (3) "Square foot basis." This means the apportionment of cost of an improvement according to the ratio the square footage of individual parcels of property bears to the square footage of all such property. (4) "Benefits received basis." This means the apportionment of cost of an improvement according to equitable determination by the local governing body of the special benefit received by the property from the improvement, including assessed value basis, front foot basis, and square foot basis, or any combination thereof, and may include consideration of assessed value of land only, graduation for different classes of property based on nature and extent of special benefits received, and other factors affecting benefits received.
Regardless of the assessment basis used, as defined in KRS 91A.210, above, the cost of improvement shall be apportioned equitably on a fair basis. KRS 91A.220(2). However, the cost of any improvement shall be apportioned on a "benefits received basis" with respect to any property owned by the state, a local unit of government or any educational, religious, or charitable organization. KRS 91A.230. See KRS 91A.240 through 91A.290, relating to the fair basis of assessment proposed, the public hearing, ordinance dealing with special assessment, court contest of special assessment, payment of assessment (lien), and inclusion of additional property.
The application of the front-foot basis was held, in
Vogt v. City of Oakdale, 166 Ky. 810, 179 S.W. 1037 (1915), to be constitutional in terms of §§ 157 and 171 of the Kentucky Constitution and the Fourteenth Amendment to the United States Constitution.
The old
Court of Appeals, in Baker v. City of Princeton, 226 Ky. 409, 11 S.W.2d 94 (1928) p.p. 95-96, held that assessments of the same rate applied to improved and unimproved properties was immaterial, since §§ 171 and 172, Kentucky Constitution, requiring uniformity of taxation, have no application to assessments for public improvements which confer local benefits. In other words, an assessment is not a tax.
See
City of Morehead v. Kennard, 249 Ky. 476, 61 S.W.2d 14 (1933), upholding an assessment for street improvements as applied to abutting owners and for watershed or drainage sewers as applied to areas actually drained or benefited by the sewer system.
The governmental unit making an assessment of abutting and benefited properties must spell out with particularity in its resolution, order or ordinance, the specific properties to be included under "abutting properties" and "benefited properties."
City of Newport v. Klatch, 189 Ky. 300, 224 S.W. 844 (1920). It can be seen that the "benefits received basis" of KRS 91A.210 may be applied to the services of street lights, garbage collection, water and sewer.
CONCLUSION
The method of assessment to be applied for the county's maintenance of subdivision roads under KRS 179.470, including any services of street lights, garbage collection, water and sewer systems, is to be determined through the sound judgment of the fiscal court, which assessment shall be geared to the legislative criterion that the cost of the improvement shall be apportioned equitably on a fair bais. In so using that standard, resort may be had to the use of one or more of the methods outlined in KRS 91A.210, depending upon the nature of the improvement and the general circumstances of property ownership related thereto.