Request By:
Mr. John A. Arnold, Jr.
Mayor, City of Sturgis
206 West 6th Street
Sturgis, Kentucky 42459
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether Sturgis, a city of the fourth class, may enact an ordinance preventing the underground mining of coal under the city limits.
Apparently the city is considering the annexation of 1300 acres on which is located an abandoned United States Army airport. There is no mining in this area now but there was in the past and there may be mining in the area in the future. The city has title to the property and desires to protect the airport runways, one of which is already showing evidence of subsidence.
In the case of
U.S. Mining and Exploration, Etc. v. City of Beattyville, Ky., 548 S.W.2d 833 (1977), the Supreme Court of Kentucky dealt with a situation similar to what you have set forth. In that case, which was not a zoning case, the issue was whether a city may within its corporate limits prohibit the construction and operation of a coal tipple. The city attempted to outlaw coal tipples under its general police powers and presumably your city is asking whether it can prohibit underground mining in the city under its general police powers.
The Court, in the Beattyville case, supra, said that a legislative body may not "under the guise of protecting the public, artibrarily interfere with private business or prohibit lawful occupations or impose unreasonable or unnecessary restrictions upon them. . . ." A legislative body under its police power can prohibit certain businesses and the test to be applied is whether the prohibition of a particular business is necessary to prevent infliction of a public injury. Thus, the police power is not without limitations.
At page 835 of its opinion in Beattyville, supra, the Court said:
"From these principles we deduce that a municipality may not prohibit the construction and operation of a coal tipple unless such a drastic measure is necessary for the protection of the health, safety, or general welfare of the people. Put another way, the operation of a coal tipple must be a nuisance per se before the prohibition can be justified. See McQuillen, Municipal Corporations, sec. 24.325 (volume 7 at 213). If coal tipples become nuisances only when they are mismanaged, they are nuisances per accidens and not nuisances per se.
Board of Education of Louisville v. Klein, 303 Ky. 234, 197 S.W.2d 427 (1946). As such, a coal tipple may not be shut down until it is found to be a nuisance in fact and that shutting it down is the only reasonable way of abating the nuisance. "
The Court said it has repeatedly held that a coal tipple is not a nuisance per se. "Indeed with the economy of our state and the energy needs of our country so dependent upon the production and shipment of coal it seems unlikely that coal tipples will evolve into 'nuisances per se' in the foreseeable future."
In
Board of Education of Louisville v. Klein, 303 Ky. 234, 197 S.W.2d 427, 428 (1946), the Court said a nuisance per se is a nuisance at law and not permissible under any conditions. A nuisance per accidens is a nuisance in fact and will not be enjoined until the proven facts have marked it and stigmatized it as an offensive thing.
Underground coal mining, generally, has not been held to be a nuisance per se and in fact the General Assembly in KRS 351.101(2) has declared that, "The continued prosperity of the coal industry is of primary importance to the state." It has not been established so far as we know that underground mining in the areas you are concerned with is or will be even a nuisance per accidens. Thus, in our opinion, the city under its general police powers does not have sufficient authority to adopt an ordinance forbidding the underground mining of coal under the city limits.
However, we again refer to the Beattyville case, supra, where the Court recognized that coal tipples may not be appropriate in many areas of the community. This was declared to be a zoning problem and the same can be said for your potential situation with underground mining inside and under the city limits. In a lengthy annotation in 10 ALR 3d 1226, 1237 (Prohibiting or Regulating Removal or Exploitation of Oil and Gas, Minerals, Soil, or Other Natural Produces Within Municipal Limits), it is stated that zoning ordinances are probably the most common type of municipal prohibition or regulation of mineral exploitation.
In
Blancett v. Montgomery, Ky., 398 S.W.2d 877 (1966), the Court said the primary question to be resolved was:
"Assuming the ordinance adopted by the City of Calhoun on August 6, 1957, forbidding the exploration for oil and gas within the corporate boundary of that city to be invalid, does the general zoning ordinance, duly and regularly passed by it on September 3, 1963, prevent drilling for oil and gas in an area classified as R-2 (residential), wherein no commercial operations are permitted?"
The Court held that the general zoning ordinance of the city, adopted September 3, 1963, is a valid ordinance which controls to the extent it classifies land uses permitted under its terms.
Note that KRS 100.201 provides in part that cities may divide the territory within their areas of jurisdiction into zones to promote public health, safety, morals, and general welfare of the planning unit. Zoning may also be employed to protect airports, highways, and other transportation facilities, public facilities, historical districts, central business districts and natural resources. Furthermore, in OAG 66-95, copy enclosed, we said that cities have the right under their police power to reasonably regulate strip mining through zoning pursuant to KRS Chapter 100.
In conclusion, it is our opinion, that the city under its general police powers does not have the authority to adopt an ordinance which prohibits the underground mining of coal under the city limits. Underground coal mining is not a nuisance per se. However, a city, pursuant to its zoning power set forth in KRS Chapter 100, may utilize those provisions to reasonably regulate underground mining within the city limits.