Could a Kentucky city pay to survey private homes for FEMA flood map changes?

Plain-English summary

Carrollton's city attorney asked whether the city could pay for surveys of more than twenty privately owned homes so their owners could seek removal from FEMA's floodplain map. The Kentucky Attorney General said in 2012 that the proposed expenditure would chiefly spare a small group of owners from flood insurance costs. That private benefit did not satisfy the public-purpose limit on municipal spending. The AG also said the city could not use its engineer to prepare the owners' FEMA map-amendment documents even if the owners paid for their surveys.

The opinion focused on this proposed set of private residential properties. It did not decide every possible city floodplain project.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

City officials considering survey spending

The AG said a city could spend public money only for a public purpose and linked the spending test to the authority to levy a tax for the same purpose. It found no public purpose in taxing all Carrollton residents to help a few owners avoid flood insurance expense through individual map reclassification.

Homeowners seeking map amendments

The request concerned FEMA Letters of Map Amendment supported by professional-engineer surveys. The AG said the city could neither pay for these private-property surveys nor prepare the owners' submission documents through a city engineer on the facts presented.

Common questions

Could Carrollton pay an engineer to survey individual homes for FEMA reclassification?

The AG said no. It characterized the benefit as private relief from flood insurance expense for selected homeowners rather than a public service or purpose.

Did owner payment for the survey let the city engineer prepare the FEMA paperwork?

No. The opinion separately rejected use of the city engineer to prepare map-amendment documents for the small group of private owners, even where owners paid for the surveys.

What was the public-purpose test the AG used?

The opinion said a city expenditure had to serve a purpose for which the public could be taxed. It applied that rule to the proposed surveys rather than deciding whether any particular home lay within FEMA's mapped floodplain.

Background and statutory framework

The city described properties shown in a floodplain and a possible Letter of Map Amendment process. The AG discussed the Kentucky Constitution's limits on private emoluments and taxation for nonpublic purposes, along with cases connecting public expenditures to the power to tax. It concluded that the proposed survey and city-engineer work would principally benefit private landowners.

Citations and references

• Ky. Const. § 3: restriction on exclusive private public emoluments quoted by the AG.
• Ky. Const. § 179: public-purpose taxation rule quoted in the opinion.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_506b1eaf-c32e-4706-85d7-3548d97fc67b/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_506b1eaf-c32e-4706-85d7-3548d97fc67b

Original opinion text

OAG 12-014
October 05, 2012
Subject:

Whether a city may expend funds for surveys of private properties for federal flood plain reclassification purposes

Requested by:

Nicholas A. Marsh
Carrollton City Attorney

Written by:

Matt James

Syllabus:

A city may not expend funds for surveys of private
properties for federal flood plain reclassification purposes

Opinion of the Attorney General
Nicholas A. Marsh, Carrollton City Attorney, has requested an
opinion of this office whether a city may expend funds to survey private properties in order to amend a Federal Emergency Management Agency (“FEMA”) flood plain map. We advise that it may not, as an expenditure of public funds to have private properties reclassified on federal flood plain maps would be a private benefit that is inconsistent with the public purpose requirement on municipal spending. Mr. Marsh informs us that in Carrollton FEMA has listed over twenty private residential properties in a flood plain area. If a property is within a flood plain, federal law requires purchasing flood insurance as a condition of any federally-supported financing on the property, which effectively makes purchasing flood insurance a condition of a mortgage or any common financing on the property. The owner of a

OAG 12-014
Page 2

property designated as in a flood plain may send a Letter of Map
Amendment (“LOMA”) to FEMA requesting reclassification, but the
LOMA must be supported by a survey from a professional engineer that
the lowest part of the building is above the base flood elevation for the
flood plain area. At issue is whether the City of Carrollton may expend
public funds to survey these private properties so that the owners may
submit LOMAs and get their properties reclassified as not in a flood
plain area.
A city or any other unit of state government may only expend
funds for public purposes. Ky. Const. § 3 provides that “no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services.” “In Kentucky, the General Assembly and the courts have developed a broad definition of activities that may qualify as a public purpose,” Dannheiser v. City of Henderson, 4 S.W.3d 542, 545 (Ky. 1999), which encompasses activities “for the promotion of economic welfare, relief of unemployment and stimulation of industry.” Id. However, there is a limitation: the power to spend for a public purpose extends only as far as the power to tax. “If money is appropriated out of the treasury it must be measured by the same test as that by which it is raised by taxation and put into the treasury. If taxes could not be imposed for a purpose, money already in the treasury could not be appropriated to that purpose.” Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, 332 S.W.2d 274, 276 (Ky. 1960). 1 Thus the issue of whether a city’s expenditure of funds is consistent with the public purpose requirement may be restated as whether a city may levy a tax for the same purpose. We do not think that a city may levy a tax to pay for the surveying of private residential properties for flood classification purposes, and accordingly, we do not think that a city may expend public funds for those purposes. Ky. Const. § 179 provides that “taxes shall be levied and collected for public purposes only.” The result of the expenditure would be that some of the private residential owners of Carrollton 1

See also Barrow v. Bradley, 227 S.W. 1016, 1017 (Ky. 1921) (“the power of a city to

expend or contract to pay public revenues is limited by the power to tax”).

OAG 12-014
Page 3

would not have to pay for flood insurance, and this is a private benefit
rather than a public service or purpose. It would be inappropriate to
levy a tax on all Carrollton residents so that a few of them do not have
to pay for flood insurance, and thus it would be inappropriate to spend
public funds on the same. Mr. Marsh further inquires whether a city
may utilize its own engineer to prepare the LOMA documents for submission to FEMA if the surveys are paid for by the property owners. We similarly advise that the city may not use its own engineer to prepare documents for a small group of private residential landowners. In sum, a city may not expend public funds for surveys of private residential properties in order to have those properties reclassified by FEMA as outside of a flood plain area, nor may it use a city engineer to prepare such documents.

JACK CONWAY
ATTORNEY GENERAL

Matt James
Assistant Attorney General