Request By:
Honorable Gene Cline
State Representative
96th Legislative District
P.O. Box 266
Olive Hill, Kentucky 41164
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on a question concerning the organizing of a fire protection district under KRS Chapter 75.
In the Spring of 1984, a group of citizens in Lewis County began efforts to organize a fire district pursuant to KRS 75.010, prior to the effective date of the 1984 amendment to KRS 75.010 (effective date was July 13, 1984). Under KRS 75.010, prior to the amendment, a fire protection district could be established by the signing of a petition by at least fifty-one percent (51%) of the voters living within the boundary of the proposed district and filed in the county clerk's office in the county in which the greater part of the territory is located. Notice of filing had to be given, pursuant to KRS Chapter 424, etc. On a day given in the notice, the county judge executive was required, under certain conditions, to enter an order establishing a fire protection district, but after a hearing where any objection was raised. A person aggrieved by the county judge executive's order could appeal to the circuit court.
As of July 6, 1984, the petition had been filed with the county clerk under the statute, prior to the amendment. As of August 30, 1984, notices were given and a hearing by the county judge executive was set for September 10, 1984. Such a fire protection district, when organized, has the authority to levy an ad valorem tax upon property in the district to fund its operations.
Under KRS 75.010, as amended in 1984 (Ch. 100, § 7), effective July 13, 1984, a fire protection district may be created pursuant to KRS 65.182, which contains the procedure for establishing a taxing district. The latter statute also became effective July 13, 1984. Under the latter statute, a petition, filed with the fiscal court, must be signed by a number of registered voters equal to or greater than twenty-five percent (25%) of an average of the voters living in the proposed taxing district and voting in the last four (4) general elections. The petition must be accompanied by a plan of service. See KRS 65.182. The fiscal court holds a hearing on the petition with notice. Following the hearing, the fiscal court shall approve or disapprove the creation of a taxing district. If it approves, the fiscal court must adopt an ordinance creating the taxing district.
Your specific question:
"In light of the provisions of KRS 446.080 on the retroactivity of legislation, should the provisions of 1984 Acts Chapter 100 or KRS Chapter 75 as it read prior to July 13, 1984 govern the creation of this fire protection district?"
KRS 446.080(3) provides that no statute shall be construed to be retroactive, unless expressly so declared. In
Commonwealth v. Southern Pac. Co., 164 Ky. 818, 176 S.W. 375 (1915), a statute provided that every corporation, which may be incorporated, having a capital stock must pay into the state treasury a certain tax on the capital stock. The court held that, since nothing in the act provided for its retroactive application, the act was purely prospective. Thus the tax legislation was held to not apply to a corporation having capital stock and which corporation was in existence at the time the act became effective. The significant fact related to such a corporation fully in existence and incorporated and having capital stock.
Since the act amending KRS 75.010 became effective on July 13, 1984, it is our opinion that the new legislation is not retroactive as applied to a fire district created prior to July 13, 1984. KRS 65.190 reads:
"The amendment or repeal by 1984 Acts Chapter 100 of a section authorizing the creation of a taxing district shall not be construed as limiting or changing the power or organization of taxing districts created prior to July 14, 1984."
In the recent case of
Policemen's & Firemen's Retire. v. Rothrock, Ky., 625 S.W.2d 577 (1982), the Supreme Court of Kentucky reiterated the doctrine that except where a statute expressly provides for retroactivity, such retroactivity does not exist. Here, however, in KRS 65.190, the legislature expressly made KRS 75.010, as amended in 1984, and KRS 65.182 retroactive, but only as applied to taxing districts not actually and legally created prior to July 13, 1984.
In view of the fact that the fire district you mentioned was not actually "fully created" prior to July 13, 1984 (see KRS 75.010 prior to the 1984 amendment), it is our opinion that the citizens concerned will now have to initiate the petition procedure anew under KRS 75.010, as amended in 1984, and KRS 65.182. Unfortunately, the citizens of the proposed district territory were merely in the process of trying to establish a fire district when the 1984 legislation became effective. In this connection the policy expressed in KRS 65.190 is dispositive of your question.
The practical effect of KRS 65.190 is that the 1984 amendment of KRS 75.010 is retroactive as applied to an effort to establish a fire district under KRS 75.010 but which effort, prior to July 13, 1984, had not resulted in the complete creation of a fire district (a taxing district) .