Request By:
Larry D. Noe, Esq.
P.O. Box 15
321 East Broadway
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Taylor County Fairgrounds Project. The Taylor County Fiscal Court has voted to construct a new county fairgrounds. State and federal financing is involved. A part of the project, a community building, is to be constructed on real estate vested in the name of the county. The remainder of the fairgrounds project is to be constructed on real estate to be purchased from W. C. Warren and his wife. The land involved in the proposed purchase consists of two tracts, one comprising about 29 acres, and the other consisting of a 25-foot strip to be used to construct a roadway between the tract where the community building is to be constructed and the 29-acre tract where other buildings and the barns are to be built.
Construction has already started on the community building located on the three-acre tract, the title to which is vested in the county. Some of the adjoining land owners have raised questions regarding the location of the building and whether or not its construction violates the subdivision regulations of the city of Campbellsville. The project adjoins the city limits and the city intends to attempt to annex all of the property involved in the fairgrounds project once the project is completed.
The chairman of the Taylor County Fair Board has filed the plans and specifications of the fairgrounds project with the Planning and Zoning Commission and he has also requested a hearing.
You have submitted a list of eight questions to this office, the first two of which are as follows:
"Would the County have sovereign immunity to the subdivision regulations of the City of Campbellsville, under Chapter 100 of the Kentucky Revised Statutes. In the event the County does not have sovereign immunity, what is the proper procedure to comply with the law?
Would the construction of the Community Building constitute a subdivision as defined by Chapter 100 of the Kentucky Revised Statutes?"
KRS 100.361(2) provides as follows:
"Nothing in this chapter shall impair the sovereignty of the Commonwealth of Kentucky over its political subdivisions. Any proposal affecting land use by any department, commission, board, authority, agency, or instrumentality of state government shall not require approval of the local planning unit. However, adequate information concerning such purposes shall be furnished to the planning commission by the department, commission, board, authority, agency, or instrumentality of state government. "
While this particular provision has not, to our knowledge, been construed by a court in a reported decision, it has been the subject of several opinions of this office over the years. For example, in OAG 73-315, copy enclosed, we said that pursuant to KRS 100.361(2) the state, its agencies and its instrumentalities are exempt from local zoning legislation. In OAG 76-414, copy enclosed, we stated that the general rule is, when exercising a governmental function, a subdivision of government is not subject to its own zoning or land use regulations. In OAG 73-652, copy enclosed, we said:
"Although under the facts given it clearly appears that the city's purchase does not involve a subdivision of land under KRS 100.277 and 100.111(22), the central point here is simply that under KRS 100.361(2) any proposal affecting land use by an instrumentality of state government [here, a city] does not require approval of the local planning unit. Thus KRS Ch. 100 in general does not apply to cities' use of land for municipal and public purposes, since a city is an 'instrumentality of state government' as mentioned in KRS 100.361(2). . . ."
In McQuillin Mun. Corp. (3rd Ed.), Vol. 8, § 25.15, the following appears:
"Municipal zoning regulations or restrictions usually do not apply to the state or any of its subdivisions or agencies, unless the legislature has clearly manifested a contrary intent. Thus, properties and the uses thereof may be immune or exempt from the operation of municipal zoning regulations where owned or controlled by counties, school districts or boards, park districts or like bodies, or by other agencies or subdivisions of the state. . . ."
See also Rathkopf, The Law of Planning and Zoning, 4th Ed., Vol. 3, Chapter 53.
The county is an "instrumentality of state government" and under KRS 100.361(2) any proposal affecting land use by a county does not require approval by the local planning unit. KRS Chapter 100 does not apply to a county's use of land for governmental and public purposes.
Your third question asks, "Would a roadway described in the option constitute a street under Chapter 100 of the Kentucky Revised Statutes?"
In OAG 79-105, copy enclosed, at page three, we said in part as follows:
". . . However, if the roads in question have become county roads, that is, public roads which have been accepted by the fiscal court of the county as a part of the county road system (and which includes necessary drains and ditches), they are exempt from planning and zoning pursuant to KRS 100.361(2). See OAG 78-567, copy enclosed, at page two. County roads are controlled by the fiscal court pursuant to KRS Chapter 178 and 178.040 deals with the width of a county road and the right-of-way occupied by a county road. "
Your fourth question asks, "Would a deed of general warranty from W. C. Warren and his wife June Warren to the Taylor County Fiscal Court be void under Chapter 100 of the Kentucky Revised Statutes?"
We do not know of any provision in KRS Chapter 100 which would prohibit the transaction you have set forth. Again see KRS 100.361(2) and OAG 73-652, copy enclosed, pages 1-2.
Your fifth question asks, "Was the Taylor County Fiscal Court or the Taylor County Fair Board required to file the plats or plans and specifications of the project in the Taylor County Courthouse?"
Where KRS 100.361(2) is applicable the only requirement is that the governmental unit or instrumentality involved must furnish to the planning commission "adequate information concerning such proposals."
Your sixth question asks, "Would W. C. Warren or his wife June Warren have been required to file any plans or specifications in the Taylor County Courthouse?"
In our opinion, the answer to that question is "no." The Warrens are merely selling land to the county government which, as an instrumentality of state government, is, generally, not bound by subdivision regulations when the land is to be used for governmental and public purposes.
Your seventh question asks, "Was a hearing required before the Campbellsville Planning and Zoning Commission before construction began or at any other point in time?"
In our opinion a hearing is not required. KRS 100.361(2) specifically provides that the governmental entity is not required to obtain the approval of the local planning unit in regard to a proposal by the governmental unit affecting land use. The governmental unit must, however, provide the planning commission with adequate information concerning its land use proposals.
Your last question is as follows:
"When there has been no actual taking of real estate from the adjoining land owners, other than W. C. Warren who has agreed to sell, could the county become liable for damages in the event that the complaining land owners' property decreased in value?"
The regulations applicable to this office, specifically 40 KAR 1:020, prohibit us from rendering opinions in response to hypothetical or abstract questions. Your question does not set forth what might cause the property to decrease in value. If the county and the fair board operated the project in a negligent manner, perhaps county officers and employes could be held liable. However, the county itself still retains sovereign immunity and is not liable for the tortious or negligent conduct of its officers and employes who are, within the scope of their governmental employment, performing a governmental function of the county. See