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Garbage lawsuit to be appealed

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By Jonna Spelbring Priester

General Manager

The Concerned Citizens for Henry County Government LLC lawsuit against the county is far from over, according to the group.

The case, which focuses on the county’s mandatory garbage collection ordinance and corresponding franchise fee, began in 2005.

On July 9, CCHCG attorney William Sturm issued a press release stating the group filed an appeal with the Kentucky Court of Appeals to review the March 16 decision by Henry County Circuit Court Judge Karen Conrad, who ruled in favor of the county.

According to group member Hugh McBurney, the group remains focused on the case because they believe the franchise fee established by the county’s mandatory garbage ordinance is an unfair tax. He also said he felt the fee, which is approximately one-third of county residents’ monthly garbage bill, is too high.

For comparison, he said, the Federal Communications Communicion limits franchise fees on cable TV to just five percent.

“Something needs to be regulated to say how much a franchise fee can be,” he said.

McBurney said it was well documented in Local articles at the time, that CCHCG felt the ordinance and fee were unconstitutional in part because the cities did not have to take part in the county’s ordinance.

Henry County Judge-Executive John Logan Brent said residents within incorporated city limits are excluded from the ordinance because the cities already had enacted garbage pick up prior to the county’s own ordinance.

McBurney said the group felt Conrad’s decision “wasn’t right” and they would pursue an appellate decision.

“We felt like from the get go, on a local level we were dealing with local governments,” he said. “We figured ... we’d probably have to go to the (Kentucky) Court of Appeals to get a ... better opinion, not a local opinion.”

McBurney also contends that initially, the county said that mandatory garbage, and the corresponding franchise fee, were enacted to provide revenue.

“The county enacted this for revenue,” he said last week. “Now they’re claiming it’s for solid waste, but they enacted it because of revenue.”

Brent said the county did enact the ordinance and corresponding franchise fee to generate revenue, but he qualified the statement.

In 2004, Brent said, the county was facing a considerable budget shortfall due, at least in part, to increased efforts in solid waste. The increased efforts, he said, came as a result of state mandates regarding the clean up of illegal dumps.

The franchise fee, Brent said, is meant to offset the drain that resulted as part of the dump clean ups, which he said can cost the county anywhere from a few hundred dollars to more than $10,000 per site.

Brent said the franchise fee for mandatory garbage pick up, $3.24, goes entirely toward the county’s solid waste program, which means more than just cleaning up an illegal dump. When enacted, the fee was $5.50, but has reduced since its implementation as waste wheelers ($1) were absorbed by the county, and any other increases to tcollection rates also were absorbed.

Solid waste funding also goes toward any vehicles used in relation to solid waste efforts, gas and working inmates who clean the county’s roadways. He added that some funding also goes toward the annual litter clean up, for which the county spends more money than a grant program provides.

McBurney said that CCHCG plans to pursue their case as far as is necessary.

“We feel it’s something ... if something’s not done about it, all cities, counties, whatever can impose a franchise fee on everything,” he said. “It’s an easy way to get a fast tax without having to (put it to a vote).

In the CCHCG press release, attorney William Sturm wrote that the case has merit strong enough to take the case to the Kentucky Supreme Court.

“We are appealing because the franchise fee, we feel, is not right, is unconstintutional, and we’re preparaed to go a long ways,” McBurney said.

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