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House Bill 246 Would Disrupt Solid Waste Planning In Louisville Metro Posted: March 16, 2017
House Bill 246 would amend KRS Chapter 109 in order to grant cities within Metro Louisville special privileges regarding solid waste management that would disrupt comprehensive local planning for solid waste management. The bill is grounded on a fundamental misassumption that the current solid waste district is a taxing district.
Is the Louisville Metro Solid Waste District A Taxing District?
No. Ordinance 16-1990 (December 11, 1990) by which the Jefferson County Fiscal Court created a Solid Waste Management District pursuant to KRS Chapter 109.041(13) states plainly that it is “An Ordinance Relating To The Creation Of A Nontaxing Waste Management District Pursuant to KRS 109.041(13)[.]”
KRS 109.041(13) reads that:
"Notwithstanding any other provision of law, a fiscal court may, by ordinance, create a solid waste district to exercise the powers of the county pursuant to this chapter, except that a district created for this purpose shall not levy or collect ad valorem property taxes."
A District organized pursuant to KRS 109.041(13) cannot, then, utilize the authority provided in KRS 109.056 to levy an annual ad valorem tax.
The underlying premise of House Bill 246 of taxation of without representation by the cities is thus incorrect, since the Metro Louisville Solid Waste Management District is a non-taxing 109 District.
Is The County Attorney’s Office Mistaken In Asserting That The Solid Waste Management District Is A Taxing District?
Yes. The letter assumed that the current Waste Management District was created pursuant to KRS 65.182 and KRS 109.115(1), which provides that a waste management district may be created “in accordance with the procedures of KRS 65.182.” KRS 65.182 establishes the “procedures for creating taxing districts.”
The current Solid Waste Management was instead created pursuant to KRS 109.041(13) which is an alternative mechanism for establishing a non-taxing Solid Waste Management District, and it is apparent from the caption and text of Ordinance 16-1990 that the Fiscal Court opted to use KRS 109.041(13) rather than the procedures in KRS 109.115(1) and KRS 65.182 necessary for creation of a taxing district.
What Would Be The Likely Result Of Passing House Bill 246?
The bill would “balkanize” the solid waste planning process, by allowing a city to opt out of the Louisville Metro solid waste management plan, while not explicitly require that the city then develop its own solid waste plan.
The General Assembly clearly provided both through KRS 67.083(3) and KRS 109.011 and KRS 109.041, that the primary responsibility for solid waste management would rest with the counties and solid waste management districts, and that the county could delegate “responsibility for adequate collection, management, treatment, disposal, or materials recovery to a city” only where there was mutual agreement and the county determined that “it is in the best public interest to do so[.]” That delegation of authority it itself subject to approval by the state.
Creation of a separate set of rules governing the composition of the Solid Waste District Board for Metro Louisville, and allowing cities to opt out without county or state approval, and without a clear obligation in Section 4 of the bill for a city opting out to develop and implement a solid waste plan for that city that is coordinated with the county planning process, will create chaos and defeat the purpose of county or district-wide solid waste planning. Additionally, those cities that remain within the solid waste planning area would be allowed to pick and choose which of the District regulations or requirements that city will follow. This provision defeats the very purpose of solid waste planning, and would create a patchwork of regulations and requirements that would be burdensome to the waste industry and the public.
Is House Bill 246 Constitutional?
The bill would likely be considered by the courts as “special legislation” in violated of Sections 59 and 60 of the Kentucky Constitution, because it grants privileges to cities in Louisville Metro that are not available to similarly-situated cities in other counties.
Metro Louisville is not unique in being a governmental unit that has cities within its boundaries, and the necessity of coordinating solid waste management across political boundaries is no different in this community than it is in Pike County, Fayette County, or any other county government. The bill raises significant constitutional issues regarding compliance with Section 59 and 60 of the Kentucky Constitution, which prohibits “special” or “local” legislation. Under the authority of Louisville / Jefferson County Metro Government v. O’Shea’s-Baxter LLC, Ky., 438 S.W.3d 379 (2014) and the numerous cases cited in that opinion, the creation of a special set of rules for cities in counties containing a consolidated local government, which grant powers to cities that are unavailable to cities in other forms of local government, is special legislation creating a distinction that is not related to the organization and structure of the city or county government and which is not reasonably related to the purpose of the act, which is “solid waste management.” While today it might be Metro Louisville, tomorrow it could be a city in another county who seeks special treatment in a statutory framework designed to give counties primary responsibility and to encourage coordination with cities in a comprehensive solid waste planning process.