Request By:
F. Chris Gorman, Esq.
Steinfeld, Eddleman, Gorman & Shearer
Suite 1210, Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question involving the Louisville and Jefferson County Riverport Authority. As general counsel for that organization, you have been asked to request an opinion as to whether or not the riverport authority, as a governmental agency, is exempt from paying the permit fee to the Jefferson County Works Department for the construction of the Foreign Trade Zone Building on property of the riverport authority. You refer to an opinion written several years ago to the attorney for the Jefferson County School Board concluding that the school board, as an arm of the state, did not have to pay such a permit charge.
The prior opinion to which you referred is OAG 72-608, copy enclosed, and it dealt with KRS 67.410, particularly subsections (2) and (3) thereof. Presumably those subsections are the ones with which you are concerned and they provide as follows:
"(2) No person shall build, erect, construct, reconstruct, remodel, relocate, alter or repair any building within the county without first obtaining a building permit from the building inspector.
(3) The fiscal court shall establish a system of reasonable fees to be charged every applicant for such permit."
The Louisville and Jefferson County Riverport Authority was undoubtedly created pursuant to the authority set forth in KRS 65.510 to 65.650. Under KRS 65.520 any governmental unit by act of its legislative body, or any two or more governmental units acting jointly by acts of their legislative bodies, and with the approval of the Kentucky Port and River Development Commission, may establish a riverport authority. Among the powers of a riverport authority set forth in KRS 65.530, which include in part the authority to erect, equip, operate and maintain buildings and equipment necessary for riverport facilities, is the provision in subsection (6) thereof that:
"The authority may apply for, receive authorization for, establish and operate a foreign trade zone, as permitted by 19 U.S.C. section 81, provided approval is obtained from the Kentucky port and river development commission."
A riverport authority organized and existing pursuant to KRS 65.510 to 65.650 is a body politic and corporate with the usual corporate attributes. In its corporate name it may exercise certain powers granted to governmental agencies and powers granted to nonstock, nonprofit corporations under KRS 273.171. It is a public or governmental agency or corporation with specifically assigned duties and powers relating to clearly defined public purposes. It may do all things reasonable or necessary to carry out the powers and duties prescribed in KRS 65.510 to 65.650. See OAG 77-16, copy enclosed.
In
Kentucky Inst., Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 404 (1906), the Court said:
". . . 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 Court, in Covington Bridge Commission v. City of Covington, 257 Ky. 813, 79 S.W.2d 216, 221 (1934), said in part:
"It is a rule of construction that general authority conferred on one agency of the government will not be construed as imposing power on it to interfere or control the operations of another agency. Such authority must be expressly given by the Constitution or a statute. . . ."
The Court further concluded in Covington Bridge Commission, supra, that after the city took the necessary steps to create the bridge commission, it thereafter was an independent agency of the city, vested with all functions set forth in the statute, and so long as it acts honestly and in good faith in the performance of its duties, the city cannot dispute, impede, or interrupt its actions thereunder.
In
City of Mt. Sterling v. Montgomery County, 152 Ky. 637, 153 S.W. 952, 955 (1913), the Court stated:
"In these opinions the power of the state to create separate, distinct governmental agencies free from the control and supervision of other governmental agencies, each acting independently of the other unless otherwise provided is recognized. And arising out of this distinction, and the separate rights incident to it, we may deduce the principle that one governmental agency of the state cannot impose any burden upon another governmental agency of the state state in the absence of express authority from the state to do so. It is not so much a question of the exemption of one governmental agency from the control of another, as it is a lack of power upon the part of one to interfere with the concerns of the other without express authority so to do."
Finally, in City of Georgetown v. Morrison, Ky., 362 S.W.2d 289, 293 (1962), the Court said:
". . . 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 charge upon the state's property, nor, by way of illustration, upon a county courthouse."
Thus, in conclusion, it is our opinion that Jefferson County does not have the authority, pursuant to KRS 67.410, to require a building permit and a fee of the Louisville and Jefferson County Riverport Authority in connection with a building the riverport authority proposes to construct under its statutory authority to establish and operate a foreign trade zone. KRS 67.410 is not specific enough to authorize the permit and fee against a public corporate governmental agency exercising specific powers for clearly defined public purposes.