Request By:
Ms. Jackie Swigart, Chairperson
Environmental Quality Commission
State National Bank
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of November 9, 1979 in which you ask whether "present statutes, including the county home rule statute, permit a county government to prepare and pass an ordinance regulating noise" .
Authority for a county to regulate noise pollution is found in KRS chapter 224. Noise control is covered in KRS § 224.710-224.805, 224.996. Section 224.785 provides that counties may enact noise control programs. "All local governments, as defined in KRS 224.715, may develop, adopt, and maintain a comprehensive program of noise regulation. Such program may include a study of the noise problems resulting from uses and activities within its jurisdiction and the development and adoption of a noise control plan." "Local governments" include counties, KRS § 224.715(3).
The contents of noise control plans are stated in KRS § 224.790.
Any noise control plan adopted pursuant to KRS 224.785 may include, but not be limited to, the following:
(1) Noise levels which will not be exceeded in specified zones or other designated areas,
(2) The designation of a noise control officer,
(3) Plans, and procedures necessary for the implementation of plans, for transportation systems within the jurisdiction,
(4) Plans concerning land use within the jurisdiction,
(5) Requirements of site design necessary for the approval of any construction within the jurisdiction,
(6) The implementation procedures of the noise control plan and the relation of the noise control plan to other plans within the jurisdiction, and
(7) Strategies for assuring compliance with state and federal noise regulations.
Finally, KRS § 224.795 states that counties "may adopt and enforce ordinances necessary to implement the noise control plan and any other program adopted pursuant to KRS 224.785." It continues, "Such ordinances shall not be stricter than the standards promulgated by the state and federal governments".
Thus, in answer to your question, there is statutory authority in KRS chapter 224 providing for counties to regulate noise, by adopting noise control plans and enforcing the necessary ordinances. Because these statutes are specific grants of power by the General Assembly to the counties, they satisfy constitutional requirements. "[A]ll power exercised by the fiscal court must be expressly delegated to it by statute." Fiscal Court of Jefferson County v. City of Louisville, 559 S.W.2d 478 (Ky. 1977) at 481.
The county home rule statute is found at KRS § 67.083 (1978). It includes a specific list of powers of the county fiscal courts, KRS § 67.083(3). There do not appear to be any provisions in this section which give the fiscal court authority to regulate noise pollution. Nor are there any such provisions in KRS § 67.080, "powers of fiscal court".
However, KRS chapter 67 is not exclusive, i.e., if powers delegated to counties are found elsewhere in the Kentucky statutes, they are valid and effective. KRS § 67.083(8) states, "The powers granted to counties by this section shall be in addition to all other powers granted to counties by other provisions of law." Therefore the authority to regulate noise pollution found in KRS chapter 224 is sufficient, even though it is not found in the county home rule statute.
If you have further questions, feel free to contact this office.