Request By:
Hon. David H. Ashley
City Attorney
City of Georgetown
City Hall
Georgetown, Kentucky 40324
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 2 in which you relate the following facts and question:
"The City of Georgetown made certain street improvements as a part of its 1984 Street Improvement Program utilizing municipal aid funds. The improvements were made in accordance with the provisions of KRS 91A.200, et seq, with the abutting, benefitted property owners sharing the cost of the improvement through special assessments provided by the Statute.
"The original comprehensive report, as required by 91A.240, and the notice of public hearing provided that streets x, y, and z would be included in the program. The property owners on these streets were notified by certified mail. Subsequent to the public hearing, at the request of the City Engineer, street y was dropped from the program and substituted therefore was street a. Streets x, a and z were then approved by the Council for improvement by Ordinance, and work was done and completed on these streets. It now appears that the City failed to properly notify the owners of property on street a, both by way of a new public hearing and by certified mail.
"Owners of the property who were not properly notified now object to the imposition of a special assessment on their tax bills as required by the Ordinance.
"Our question is, what, if any, remedies does the City have in this situation, and specifically, can the City readvertise, renotify, etc. the owners of the property on the street in question, or must the City simply absorb the owner's portion of the improvements."
KRS 91A.240 relating to public improvements requires as I am sure you are aware that the city prepare a comprehensive report setting out the scope and extent of the improvement, etc. KRS 91A.250 requires a public hearing and notice of the hearing be published pursuant to KRS Chapter 424 and a mailed notice to each affected property owner by certified mail which includes the nature and description of area or areas to be improved. This apparently was done as your facts indicate. However, following the public hearing one of the streets named in the improvement program was dropped and another street was substituted which street had not been included in the comprehensive report and no notes of the hearing were given to the property owners along this street. Consequently they had no opportunity to be heard at the hearing to voice their opposition to the improvement and assessments that would follow.
The general rule relating to the procedures for making public improvements is that a slight departure or immaterial irregularity or failure to observe mere directory provisions of the statute would not be fatal. However, the omission to follow mandatory requirements may render void the action taken and the requirement of notice to property owners is generally regarded as mandatory. See McQuillin, Mun. Corp., Vol. 13, Secs. 37.08 and 37.14. The question of notice as it relates to assessments is discussed in detail in McQuillin, Mun. Corp., Vol. 14, Sec. 38.98 from which we quote the following:
"Before special assessments can be charged upon the property of private persons, the owners must be given notice thereof, with an opportunity to be heard and to contest, if desired, the validity and fairness of the assessment, otherwise there is a denial of due process of law in contravention of both the state and federal constitutions. . . ."
In addition under Sec. 38.106 we quote the following text:
"'It has always been the general rule in this country, in every system of assessment and taxation, to give the person to be assessed an opportunity to be heard at some state of the proceeding. That 'due process of law' requires this has been uniformly recognized.'"
And more particularly in Sec. 38.177 it is stated:
"Defects in the assessment proceedings going to the jurisdiction of the municipal authorities to make the improvements, and substantial defects materially affecting the rights of the property owner will render void the assessment. Thus, an assessment for local improvements levied without the notice to the owners of property to be affected thereby, required by law, renders the assessment void."
Under the circumstances it would appear that the city cannot against their will legally assess the property owners affected by the improvement made on the street which was substituted in the improvement program but which such property owners were not notified and given the opportunity to be heard at the initial hearing. This is assuming the improvement has already been made as your letter indicates. Thus we believe the city would have to bear the costs incurred.