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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

HB 8 AMENDMENTS TO EXCLUDE CITIES UNWORKABLE  Posted: March 7, 2005
FLOOR AMENDMENTS TO EXCLUDE SPECIFIC COUNTIES UNLIKELY TO SURVIVE CONSTITUTIONAL CHALLENGE
Counties and cities should have power to veto addition or deletion of roads to system where public safety or system capacity could be at risk

In an understandable effort to prevent the haulage of coal and other natural resources at extended weights in their communities, Senators from Lexington and Louisville have proposed floor amendments to House Bill 8 to exempt their counties from the system.

Unfortunately, as long as the process for adding roads to the “extended weight haul road system” remains an automatic process based on the tonnage of material hauled the previous year, efforts to create exemptions based on population or government form will likely be rejected by a reviewing court as not being rationally related to the underlying statute, and as being prohibited special or local legislation.

Section 59 of the Kentucky Constitution prohibits “local or special acts” in a case where a general law can be made applicable. Section 60 of the Kentucky Constitution provides that the General Assembly shall not indirectly enact any special or local act by exempting from the operations of a general act any city, town, district or county.

The Court’s analysis in Miles v. Shauntee, 664 S.W.2d 512 (1984) in which the Court struck down the Uniform Residential Landlord and Tenant Act because it had been made applicable only to Louisville and Lexington, is instructive on the approach contained in the amendments to HB 8. In that case, the legislature had taken a uniform landlord-tenant act and limited it to only the two cities in order to overcome opposition to the bill. Here, the reverse is true – a law of general applicability, which automatically includes roads into the extended weight system based on a factor completely unrelated to traffic, population density or any criteria other than the tonnage of coal hauled on the road segment in the previous year, is being modified to exempt two specific geographic areas.

As long as the haul road statute automatically classifies road segments into the system based solely on tonnage hauled in the previous year, the geographic exclusion of the two cities would likely be held to be arbitrary exemptions discriminating against the other communities through which the traffic passes, or, stated alternatively, favoring the cities over others who must endure the trucks hauling at higher coal & truck weights.

Here is the pertinent part of the Court’s discussion in Miles:

"URLTA was enacted by the Legislature with the specific purposes and policies of encouraging landlords and tenants to maintain and improve the quality of housing and to make uniform the law with respect to the subject of URLTA among those states which enact it. KRS 383.505(2)(a) and (b). Section 383.530 "Territorial Application" provides that the URLTA shall apply to, regulate, and determine rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state. In limitation of general scope and purpose of the URLTA, and in conflict with the provisions set forth in KRS 383.505 (2)(a) and (b) and KRS 383.530, the Legislature limited the applicability of the URLTA to counties containing cities of the first class and urban-county governments. KRS 383.715.

At the time URLTA was enacted and presently URLTA is limited by its terms to only two of the 120 counties in Kentucky, namely Jefferson and Fayette Counties.

Section 59 of the Constitution of Kentucky, provides that the General Assembly shall not pass local or special acts in any case where a general law can be made applicable. Section 60 of the Constitution of Kentucky provides that the General Assembly shall not indirectly enact any special or local act by exempting from the operations of a general act any city, town, district or county.

"Special" or "local" legislation as defined in Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496 (1971) at 498 is as follows:

"A local act is one confined to territorial limits, other than that of the whole state or is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others." (Emphasis provided.)

The definition of "local" or "special" legislation provided by the Kentucky courts is similar to that definition used by the United States Supreme Court. In Gray v. Taylor, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913), Justice Holmes, for a unanimous court, defined "local law" as: ". . . a law that in fact, if not in form, is directed only to a specific spot . . . ." Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities rested alone upon numbers and density of population would be violative of Section 59 and Section 60 of the Constitution of Kentucky. James v. Barry, 138 Ky. 656, 128 S.W. 1070 (1910). Stated another way, an Act based upon a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities or unless the classification has a reasonable relation to the purpose of the Act. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631 (1943); Hall v. Miller, Ky App., 584 S.W.2d 51 (1979); United Dry Forces, et al. v. Lewis, et al., Ky., 619 S.W.2d 489 (1981).

It is clear that the stated purpose and policy of the URLTA does not pertain to the organization or government of the Counties of Jefferson or Fayette. The issue then becomes whether the application of the URLTA to only counties containing cities of the first class and urban county governments has a reasonable relation to the purpose of the Act.

As quoted in Chandler v. City of Louisville, 277 Ky. 79, 125 S.W.2d 1026 (1939):

"It is a mistaken idea that because classification on the basis of population is sustainable in respect of legislation on certain subjects, it may be appropriate for all purposes of classification in legislative enactments. Such a basis for classification must have a reasonable relation to the purposes and objects of the legislation and must be based upon a rational difference in the necessities or conditions found in the groups subjected to different laws. If no such relation and difference exists, the classification is invalid."

The appellant Miles asserts that the rational basis for limiting the URLTA to counties containing cities of the first class and urban-county governments is (1) the number and density of tenants in such counties, (2) the closeness of the dwellings in these urban areas and the corresponding health problems, (3) the amount of substandard housing and prevention of economic waste, and (4) its current non-application. Although it may be conceded that Jefferson and Fayette Counties have the first and fourth, respectively, largest number of tenants occupying substandard housing of the one hundred and twenty (120) counties in the Commonwealth, the mere acuteness of the problem with respect to these two counties does not serve as a rational basis for eliminating or refusing to deal with similar situations, involving the other 118 counties in the Commonwealth. The problems of public health, economic waste and substandard dwelling dealt with by the act are no less important in the other 118 counties in the Commonwealth. As stated by the Court of Appeals, "There is no indication that the problem of substandard rental housing and crowded rental quarters is any more acute in proportion to the population in Jefferson County and Fayette County than it is in other areas of the state." "Even when absolute numbers (rather than percentages) are used, it is apparent that Jefferson and Fayette counties are not the two counties with the largest number of substandard renter-occupied units. Pike and Hardin Counties occupy the second and third positions on the chart, with Fayette County coming in fourth." It is the opinion of this Court that the Jefferson Circuit Court and Court of Appeals decisions holding that the URLTA is special legislation within the prohibition of the Kentucky Constitution and therefore invalid is correct, and the decisions are affirmed."

The case of Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496 (1971) contains a discussion of special and local legislation that leads me to believe that these geographic exemptions would not stand:

"A local act is one confined to territorial limits other than that of the whole state or one which is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others. City of Louisville v. Klusmeyer, Ky., 324 S.W.2d 831 (1959).

Nevertheless, the General Assembly may indulge in class legislation if the classification is made to depend upon natural, real or substantial distinctions, inhering in the subject matter, such as suggest the necessity for or propriety of independent legislation in regard to the class specified. A classification based upon purely artificial, arbitrary or fictitious conditions is unreasonable and will not be permitted. Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900 (1947).

Section 156 of the Constitution of Kentucky permits classification of cities upon the basis of size alone for the purpose of their organization or government and matters relating thereto. In other cases classification of cities and counties by size and population is permissible only if the size and population of itself has an appreciable relevancy to the subject matter of the legislation. Mannini v. McFarland, 294 Ky. 837, 172 S.W.2d 631 (1943); James v. Barry, 138 Ky. 656, 128 S.W. 1070 (1910); Droege v. McInerney, 120 Ky. 796, 87 S.W. 1085 (1905) and City of Louisville v. Klusmeyer, supra.

The repeated attempts of the General Assembly to enact legislation applicable to only a portion of the state based upon a classification of cities or counties containing cities of a specified class have precipitated a great volume of litigation. In James v. Barry, supra, and Mannini v. McFarland, supra, this court reviewed the various factors relating to proper classification for legislative purposes. We said in James v. Barry and quoted with approval in Mannini the following: For certain purposes classification by population and its density are not only natural and logical, but any other basis would be unscientific and unsatisfactory. * * * But it was always pointed out, or plainly to be seen, that the legislation was also of a class which it was legitimate to classify upon the basis of population. On the other hand, instances have occurred where it was attempted to classify subjects by the sizes of cities where the question of the density of population had no appreciable relevancy to the subject. Such, for example, making a statute of six-month limitations to actions of tort or for salaries against a city of the first class, whereas the general law was one year, or five years. City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592. * * *

"'When the subject-matter is purely one of municipal government, it is clearly competent for the Legislature to classify it alone upon number and density of population, as the Constitution implies if it does not expressly allow. When the subject is one that reasonably depends upon or affects the number and density of population as a correlative fact in the scheme of the particular legislation, then such classification is allowable. There are even perhaps other instances justifying such classification. But where the subject is one of general application throughout the state, and has been so treated in a general scheme of legislation, distinctions favorable or unfavorable to particular localities, and rested alone upon numbers and density of population, are invidious, and therefore offensive to the letter and spirit of the Constitution. * * *.'" (Emphasis added)."

The Courts’ emphatic rejection of distinctions favorable to particular localities where the subject is one that otherwise does not make distinctions in applicability based on population or municipal classification, suggests that the two amendments would be vulnerable to successful constitutional challenge.

Short of eliminating the extended weight coal haul road system, which results in increased deaths and injuries in accidents over roads not in the system and which imposes millions of dollars in additional costs to the Road Fund annually, a permissible alternative would be to eliminate automatic inclusion of roads into the system based on previous year-tonnage hauled and to recognize the potential negative impacts on communities and counties in terms of traffic system capacity, congestion and public safety, by granting counties and cities the authority to exclude new roads from the extended weight system based on safety or capacity concerns, and providing that roads in the system can be deleted for future years on request by local government for the same reasons of safety, capacity or congestion.


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