Request By:
Frederick G. Neikirk, Esq.
Pulaski County Attorney
104 W. Columbia Street
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning a proposed county ordinance relating to subdivision regulations which is allegedly based upon the powers set forth in KRS 67.083 and KRS Chapter 100.
Pulaski County has no formal planning and zoning or comprehensive plan pursuant to KRS Chapter 100. The county wants to control subdivision roads to insure that home buyers in new developments will have adequate roads that the county can accept and maintain. The county is attempting to initiate a county-wide fire protection district and, to insure adequate water sources for new subdivision development, it desires to require the installation of certain size water lines and fire hydrants. The county proposes to prohibit the recording of a new plat by a developer if the requirements of the ordinance have not been met.
You ask whether the county can enact the proposed ordinance relating to subdivision regulations in the absence of the adoption of any formal planning and zoning by the county.
KRS 67.083(3)(k) provides that the fiscal court of any county may enact ordinances and issue regulations in the performance of the following public functions: "Planning, zoning and subdivision control according to the provisions of KRS Chapter 100." Thus, if the county is to engage in planning, zoning and subdivision control, its authority to do so is pursuant to KRS Chapte 100. The proposed ordinance relating to subdivisions claims to be based in part upon KRS Chapter 100 but you admit that the county has not yet adopted the provisions of that chapter.
KRS 100.113 provides in part that before any planning operations may begin, a planning unit must be formed and designated. KRS 100.133 states that before a planning unit may engage in planning operations, a planning commission shall be appointed for the unit in conformance with an adopted regulation or agreement. Under KRS 100.183 the planning commission of each unit shall prepare a comprehensive plan, which shall serve as a guide for public and private actions and decisions to assure the development of public and private property in the most appropriate relationships. The required contents of the comprehensive plan are set forth in KRS 100.187. Zoning is authorized by KRS 100.201.
Under KRS 100.273 any planning commission which has completed the objectives, land use plan, transportation plan, and community facilities elements of a comprehensive plan may adopt regulations for the subdivision of land within its boundaries. KRS 100.281 provides that all subdivision regulations shall be based on the comprehensive plan and shall contain various elements, including:
"(3) Requirements for the design of streets, blocks, lots, utilities, recreation areas, other facilities, hazardous areas, and areas subject to flooding. Such requirements may deal with all forms of land use including residential, commercial, industrial, and other uses.
(4) Specifications for the physical improvements of streets, utilities, and other facilities, and the extent to which they shall be installed or dedicated as conditions precedent to approval of any plat, including the provision of subdivision performance bonds to insure proper completion of physical improvements."
Since the county has not followed the procedures set forth in KRS Chapter 100 pertaining to planning, zoning and subdivision regulations, it does not have the authority to enact subdivision regulations at this time. However, if the roads in question have become county roads, that is, public roads which have been accepted by the fiscal court of the county as a part of the county road system (and which include necessary drains and ditches), they are exempt from planning and zoning pursuant to KRS 100.361(2). See OAG 78-567, copy enclosed, at page two. County roads are controlled by the fiscal court pursuant to KRS Chapter 178 and KRS 178.040 deals with the width of a county road and the right-of-way occupied by a county road.
In connection with water service to the subdivisions and the installation of water lines and hydrants, we direct your attention to KRS 100.324. That statute provides in part that public utilities operating under the jurisdiction of the public service commission or the department of motor transportation (now the bureau of vehicle regulation) or federal power commission and common carriers by rail shall not be required to receive the approval of the planning unit for the location or relocation of their service facilities. In OAG 78-253, copy enclosed, we said the term "service facility" would appear to include water lines installed in the subdivisions particularly insofar as their location is concerned. However, fire hydrants are a part of the equipment, design and specifications of the water system and would be subject to subdivision regulation and control of the planning commission (OAG 78-790, copy enclosed) as would the size of the pipe and dimension of the water lines.
In conclusion, it is our opinion that where the provisions of KRS Chapter 100 have not been followed in connection with planning and zoning and there is no planning unit, no planning commission and no comprehensive plan, subdivision regulations cannot be adopted by county government. If there was a properly organized and properly functioning planning commission, it could have adopted subdivision regulations concerning the matters set forth in KRS 100.281 (including the design of streets and the equipment, design and specifications of the water system) . The county home rule bill (KRS 67.083) specifically authorizes counties to engage in planning, zoning and subdivision control according to the provisions of KRS Chapter 100.