Request By:
James M. Crawford, Esquire
Berry, Floyd & Highfield
Attorneys At Law
Carrollton, Kentucky 41008
Opinion
Opinion By: Robert F. Stephens, Attorney General; Reld C. James, Assistant Attorney General
This is in response to your request of June 14th for an Opinion of this Office relative to the condemnation powers of a joint city-county airport board pursuant to KRS 183. 133 and KRS 416.560 . You specifically query,
(1) Whether an airport board must pass a resolution under KRS 183.133(5) noting that certain property is needed for airport purposes before said property may be condemned, and
(2) Whether the city council and fiscal court must institute condemnation proceedings on behalf of the airport board pursuant to KRS 416. 560, and if so, whether such action requires the passage of a resolution by the city council and the fiscal court authorizing same?
An airport board is by statute a body politic and corporate, and possesses all of the usual corporate attributes. KRS 183. 132(2).
Its purpose is to establish, maintain, operate, and expand necessary and desirable airport and air navigation facilities, and it has such statutory powers as are necessary to promote and develop aviation. KRS 183.133(1) . The board has the specific authority to acquire real property through contract, lease, purchase, gift, condemnation, or otherwise, where such property is necessary for establishing or operating an airport. KRS 183.133(4) .
KRS 183.133(5) specifically provides:
The board ? may by resolution reciting that the property is needed for airport or air navigation purposes direct the condemnation of any property, including navigation or other easements. The procedure for condemnation shall conform to the procedures set out in the Eminent Domain Act of Kentucky.
Based upon this provision, it is our opinion that the airport board must pass a resolution specifying an appropriate need for such property before condemnation proceedings can be initiated.
An airport board's authority to seek the condemnation of property for airport purposes is clear from the language of the statutes noted above. Court decisions, such as that of
Wadsworth Electric Manufacturing Company, Inc. v. Kenton County Airport Board, 509 S.W.2d 270 (1974) , would appear to vest the initiation of such proceedings in the board itself.
However, as you have indicated, a 1976 addition to Kentucky's Eminent Domain Act, KRS 416.560(1) , has presented an apparent ambiquity between these statutes. This provision states,
Notwithstanding any other provision of the law, a department, instrumentality or agency of city, county or urban-county government having a right of eminent domain under other statutes shall exercise such right only by requesting the governing body of the city, county or urban county to institute condemnation proceedings on its behalf. If the governing body of the city, county, or urbancounty agrees, it shall institute such proceedings under KRS 416.570 , and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation.
The question therefore becomes one of whether an airport board is a department, instrumentality, or agency of a city, county or urban-county government. It is our opinion that while such governmental bodies are vested with the authority to establish such boards, an airport board is not a department, instrumentality or agency of such a government within the meaning of KRS 416.560(1) . Based upon the definition of an airport board and its purpose and functions under KRS Chapter 183, its nature as a near-autonomous body becomes apparent. While it is not a government within itself, it is also our belief that it is not a department or instrumentality of another government within the legislative intent of KRS Chapter 416. See
City of Louisville Municipal Housing Commission v. Public Housing Administration, 261 S.W.2d 286 (1953).
Based upon the foregoing it is our conclusion that an airport board need not proceed with a condemnation proceeding through the governing bodies of the city and county as suggested by KRS 416. 560(1). Such a proceeding may be initiated by the board itself.
Should we be of further assistance in this matter please do not hesitate to contact us.