Request By:
Mr. Jonathan A. Mason
Denicola & Mason Co., L.P.A.
901 Fifth & Race Tower
120 West Fifth Street
Cincinnati, Ohio 45202
Opinion
Opinion By: David L. Armstrong, Attorney General; By Susan G. Leavenworth, Assistant Attorney General
In your letter to the Attorney General, you ask essentially two questions:
(1) May a city of the fifth class, which has entered into an interlocal agreement concerning fire protection pursuant to KRS 65.210 et seq., pass on to its citizens a yearly charge of $24 per residential and apartment unit that it is charged by the fire authority?
(2) If so, may the city include this charge on the city tax bills?
KRS 65.210 et seq. is entitled the Interlocal Cooperation Act. It permits the type of joint agreement you describe. KRS 65.250(1)(d) states that the agreement must provide for the manner of financing. Based on the information contained in your letter and a subsequent telephone conversation, we understand that the interlocal fire authority charges each participating city $24 per year for each residential and apartment unit in the city. Thus, a one hundred unit apartment building would be charged $2400 while a single family home would be charged $24. We do not express an opinion on the constitutionality of this difference.
The statute is silent as to whether this charge may be passed on to the citizens. Consequently, we must look to general law for a determination.
This charge is not a tax. It is a special assessment. Taxes for fire protection districts are set out in KRS Chapter 75. Cities have no inherent power to levy special assessments.
Antieau on Municipal Corporation Law. v. 2, § 14.01;
Anderson v. City of North Miami, Fla., 99 So.2d 861 (1957). There must be specific statutory authority for the assessment. Yokley on Municipal Corporations, v. 3, § 550;
Gabriel v. Borough of Paramus, 45 N.J. 381, 212 A.2d 550 (1965); McQuillin on Municipal Corporations, v. 14, § 38.07. In Kentucky the rule is that "[a] municipal corporation possesses only such powers as the state through its legislature has expressly or impliedly conferred upon it and any doubt concerning the existence of a particular power of a municipality is resolved against the municipality. "
George v. City of Raceland, 279 Ky. 316, 130 S.W.2d 825, 826 (1939). Absent any specific statutory authority allowing this special assessment, the city may not pass it on to the citizens.
Concerning the city tax bills, it is our opinion that, even were the charge authorized, the best practice would be to bill it separately and not on the city tax bill. Nothing in the statute (KRS 91A.070) either allows or prohibits such a practice. However, the city tax bill is for the city ad valorem property tax. This is a tax of a particular rate per $100 of assessed valuation. This is clear from the bill. On the bill you have enclosed, the charge for fire protection of $24 per unit yearly is not clearly set out and appears to have some relation to the assessment. Furthermore, collection of delinquent property taxes is set out by statute. There is no specific provision for collection of these charges when a citizen does not pay. Therefore, it is our opinion that these charges, if permitted, should not appear on the city ad valorem property tax bill.