Request By:
Mr. William J. Greenwell
Administrator
Joint City-County Planning
Commission of Nelson County
Nelson County Courthouse Annex
Bardstown, Kentucky 40004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 21 in which you raise the following question:
"The Joint City-County Planning Commission of Nelson County is interested in obtaining a legal opinion as to whether or not a planning commission can adopt and enforce local zoning regulations which would permit the strip mining of oil shale on agricultural property only as a conditional use. "
The right to control the mining of minerals by appropriate zoning regulations has been upheld in the case of
Blancett v. Montgomery, Ky., 398 S.W.2d 877 (1966). The court referred to the general zoning authority granted to cities under KRS 100.520 which has been superseded by the present zoning act under Ch. 100 KRS. Under the present statute, particularly KRS 100.203 (1) (a), you will note that cities and counties are authorized to exercise the power to zone through zoning regulations which shall contain a text listing the types of zones that may be used and the regulations which may be imposed in each zone. The text shall provide for the granting of, among other things, conditional use permits and may regulate the activity on the land, including the removal of natural resources.
Conditional use permits may be granted by the board of adjustment pursuant to appropriate applications by the landowner in accordance with KRS 100.237. Of course, no conditional use permit can be granted unless the conditional use is designated in the zoning regulations adopted pursuant to KRS 100.203 and complies in essence with the meaning of the term as defined in KRS 100.111 (5). See
Davis v. Richardson, Ky., 507 S.W.2d 446 (1974); and
Carlton v. Taylor, Ky.App. 569 S.W.2d 679 (1978).
We note, however, that the zoning regulations you have submitted, particularly Article 6.13 listing the conditional uses permitted in Agricultural District (A-1), fail to include strip mining.
Under the circumstances, it is apparent that the city and county can adopt appropriate zoning regulations which include the conditional use of certain lands for the removal of natural resources, such as oil shale from land zoned agricultural and the board of adjustment can, in turn, issue a conditional use permit for the removal of such minerals, provided the purpose for which the application for conditional use permit is made meets the conditions imposed under KRS 100.237.