Request By:
Mr. John L. Arnett
Elizabethtown City Attorney
128 West Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 15 in which you present the following facts and question:
"Our question concerning the regulation for septic tanks concerns only the City of Elizabethtown jurisdiction. The County Board of Health has restricted septic tanks to a lot containing at least 10,000 square feet.
"Our question is 'Can the City of Elizabethtown in its zoning jurisdiction or within the city limits, change this?'"
Our response to your question would be in the negative. The State Department of Housing, Building and Construction is authorized to promulgate regulations setting standards for local subsurface sewage systems throughout the Commonwealth. KRS 318.310 provides as follows:
"The secretary of the department shall, upon written request from a local board of health, authorize the local board of health to serve as its agent to issue plumbing installation permits for on-site sewage disposal systems within that area of local board jurisdiction. As agent, the authorized local board of health shall act for the department in issuing permits and granting variances for on-site sewage disposal systems. Actions by the local board of health shall comply with the requirements set down in KRS 318.134 and 318.160 and with the regulations established by the department relating to on-site sewage disposal systems. The local board of health shall include in the written request a procedure for administering this section."
See also OAG 78-668 and KRS 318.130 (4) giving the local board of health power to act for the department with respect to approving on-site disposal systems under KRS 318.310. Reference is also made to KRS 318.140.
The Department of Housing has set standards for on-site disposal systems pursuant to the state building code, particularly in 815 KAR 20:141, copy attached. Local boards of health act as agents of the Department in enforcing such regulations and granting building permits. Also to be noted is the fact that local regulations may be more stringent than those of the state. See § 8 of the attached regulation.
City ordinances, such as those involving zoning, cannot run counter to or conflict with state law and regulations promulgated pursuant thereto. See City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942); Louisville & Nashville Railroad Co. v. Commonwealth, Ky., 488 S.W.2d 292 (1972); and Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970). See also McQuillin, Mun. Corps., Vol. 5, § 15.22.
Therefore, based on the above, the city cannot pursuant to its zoning authority and jurisdiction change or nullify the frontage restriction set by the local board of health for lots on which the construction of subsurface septic tanks are to be permitted.