Request By:
Honorable William B. Stansbury
Mayor, City of Louisville
Office of the Mayor
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 21 in which you refer to the adoption of a Uniform State Building Code by the State Department of Housing, Buildings and Construction, and the fact that said code becomes mandatory in cities of the first class on February 15, 1980 by order of the Department. With respect to the mandatory adoption of the state code by the city of Louisville, you further relate that said city has for many years adopted and enforced standards which, in a substantial number of areas, are more stringent than the standards adopted in the state code pursuant to KRS 198B.050. Under the circumstances, you raise the following question:
"May the City of Louisville on and after February 15, 1980, continue to enforce those codes, standards, rules, and regulations in effect in this jurisdiction prior to that date, which are more stringent than those adopted by and under KRS 198B and 815 KAR 7:020 and 815 KAR 7:010?"
In response to the above question, we initialy refer you to KRS 198B.060 (1), which reads as follows:
"(1) Each local government in the state of Kentucky shall employ a building official or inspector and other code enforcement personnel as necessary, or shall contract for such services in accordance with subsections (7) and (9) of this section to enforce the uniform state building code within the boundaries of its jurisdiction, and shall neither adopt nor enforce any other ordinance regulating buildings which conflicts with the uniform state building code, except that a building code adopted by a local government prior to March 28, 1978 may continue in effect until such time as the uniform state building code becomes mandatory within that local government jurisdiction." (Emphasis added.)
You will note that the above statute prohibits any local government in the state from adopting and enforcing any ordinance regulating buildings which conflicts with the Uniform State Building Code after the code becomes mandatory within the local government's jurisdiction. This statute would, we believe, prohibit the city of Louisville from continuing to enforce the provisions of any local ordinances that were more stringent than those found in the state code.
Even in absence of the positive mandate of KRS 198B.060, the law is clear that no municipal ordinance can forbid what a state law expressly permits and may not run counter to the public policy of the state as declared by the legislature. See City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942). We also refer you to the case of Louisville and Nashville Railroad Co. v. Commonwealth, Ky., 488 S.W.2d 292 (1972), where the court made the following declaration:
"A conflict exists between an ordinance and a statute when the ordinance permits conduct which is prohibited by statute or prohibits conduct which is permitted by the statute. . . ."
See also the case of Boyle v. Compbell, Ky., 450 S.W.2d 265 (1970), involving a Sunday closing ordinance and McQuillin, Mun. Corps., Vol. 5, § 15.22.
Under the circumstances, we are of the opinion that the city of Louisville cannot adopt a building code ordinance, the terms of which are more stringent than those found in the State Uniform Building Code.