Request By:
John T. Mandt, Esq.
203 West Columbia Street
P.O. Drawer 10
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting a question pertaining to the construction of buildings in the City of Somerset. The building projects involved are an addition to the State Vocational School for the Commonwealth of Kentucky and a library for a community college in the University of Kentucky system.
Discussions have arisen as to the necessity of complying with city ordinances in connection with the construction of these buildings, involving such matters as permits, tap-on fees and location of sewer lines. The contractors have taken the position that since the projects are for the Commonwealth they are not subject to city ordinances.
Your question is whether contractors working on projects for the Commonwealth of Kentucky are subject to the sewer ordinances of the city.
The question you have submitted is somewhat broad. We do not know the statutory authority pursuant to which the city's sewer system is operated nor do we know the contents of the specific ordinances involved. However, we have previously dealt with the general question as to whether a city may impose the requirements of its ordinances against the construction and maintenance of state property located within the city limits.
The state university is a state agency,
Daniel's Adm'r v. Hoofnel, 287 Ky. 834, 155 S.W.2d 409 (1941), and the community college to which you refer is part of the University of Kentucky community college system, KRS 164.575 to 164.600. Property of a state vocational school is state property, KRS Chapter 163.
In
Kentucky Institution for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 404 (1906), the Court said in part:
". . . The principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control. The municipal government is but an agent of the state - not an independent body. It governs in the limited manner and territory that is expressly or by necessary implication granted to it by the state. It is competent for the state to retain to itself some part of the government even within the municipality, which it will exercise directly, or through the medium of other selected and more suitable instrumentalities. How can the cith have ever a superior authority to the state over the latter's own property, or in its control and management? From the nature of things it cannot have."
A more recent case stating that express authority is required to allow one agency of government to control the operations of another is
City of Georgetown v. Morrison, Ky., 362 S.W.2d 289, 293 (1962):
". . . This court, in
Kentucky Institute for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A., N.S. 553, pointed out that a municipal government is but an agent of the state - not an independent body - and that in creating municipal governments, the state does not cede to them any control or management of the state's property located within them, nor over any property which the state has authorized another to control; hence, the city could not impose a change upon the state's property, nor, by way of illustration, upon a county courthouse."
Thus, see OAG 76-72, copy enclosed, where we said that a city has no statutory authority to require the state to pay a building permit fee in connection with the construction of a state building within the city limits. In OAG 77-445, copy enclosed, we said that a city has no authority to apply its electrical permit system to a state university and its buildings in the city. Therefore, in absence of a clear and express statutory provision that the state has surrendered its sovereign powers to municipal corporations, city ordinances cannot be applied to the construction and maintenance of state buildings.
In addition, as discussed in OAG 67-552, copy enclosed at page six, the General Assembly has specifically exempted the Commonwealth of Kentucky from the application of KRS Chapter 100 pertaining to Planning and Zoning, further supporting our position that the state's power over its property is only surrendered pursuant to specific statutory provision. See KRS 100.361(2) stating in part that nothing in that chapter shall impair the sovereignty of the Commonwealth of Kentucky over its political subdivisions.
While cities through ordinances cannot regulate the construction and maintenance of state buildings in the absence of a specific statutory provision authorizing them to do so, cities may fix rates in connection with the use of their sewers. We direct your attention to OAG 66-292, copy enclosed, as well as McQuillin Mun.Corp., Vol. II, 3rd Ed. (revised), § 31.30a, where the following appears:
"The municipality may fix fees, rents, charges and rates for making connections with and for using its sewers and drains, outside the municipal limits, as well as within, and may, by law, have a lien upon the property therefor."
In
Louisville & Jefferson County Metropolitan Sewer Dist. v. Barker, 307 Ky. 655, 212 S.W.2d 122 (1948), the Court dealt with the statutory provisions dealing with metropolitan sewer districts but the principle set forth there applies to city sewer services as well. The Court noted that the sewer district was authorized to establish a schedule of rates and charges. There is no exemption or exclusion of any property of the county and to say that the county's property is excluded would, the Court said, read into the statute something that the General Assembly did not put into it.
As another indication that state government is not exempt from reasonable charges imposed for the use of municipal sewers, note the provisions contained in KRS 94.297, a section of the statutes dealing with "Public Improvements Generally in Cities," KRS 94.291 to 94.325. That statute states in part that benefited property owned by the county or any other governmental agency or unit, except a school district, shall be assessed the same as private property. See OAG 70-377, copy enclosed, dealing with the matter in more detail.
Therefore, in conclusion, it is our opinion that a city cannot through ordinances regulate or control the construction and maintenance of state buildings in the city limits in the absence of specific statutes authorizing it to do so. City building and inspection permits in such a situation are invalid. In addition, the state is exempted from the application of the provisions of KRS Chapter 100 pertaining to planning and zoning. The city, however, may impose reasonable rates and fees in connection with sewer services provided to state buildings. Thus the city may charge for connecting to the city sewer lines as well as for actual sewer services provided.