Request By:
Mr. Ben A. Elston
Henry County Judge/Executive
New Castle, Kentucky 40050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that while the Henry County Fiscal Court is presently in the process of forming a planning and zoning commission jointly with the incorporated cities in Henry County, a number of persons would like an alternative to planning and zoning. You ask whether the fiscal court could pass an ordinance controlling chemical plants, hazardous waste incinerators and/or disposal plants and sludge landfills for hazardous and/or non-hazardous materials. "In other words, could the Henry County Fiscal Court, without a planning and zoning commission, pass an ordinance to prohibit these types of plants, factories, landfills, etc. from being built without a permit from the Fiscal Court even though they meet all state requirements."
KRS 67.083 (3) (k) provides in part that the fiscal court of any county may enact ordinances in performance of the following public functions: Planning, zoning and subdivision control according to the provisions of KRS Chapter 100. Thus, if the county is to engage in planning, zoning and subdivision control, its authority to do so is pursuant to KRS Chapter 100. Furthermore, in
Creative Displays, Inc. v. City of Florence, Ky., 602 S.W.2d 682 (1980), the court said that KRS Chapter 100 has consistently been strictly construed and "substantial compliance" with the statutory requirements is not sufficient.
In connection with KRS Chapter 100, note that KRS 100.113 provides in part that before any planning operations begin, a planning unit must be formed and deesignated. KRS 100.121 deals with joint planning units. KRS 100.133 states that before a planning unit may engage in planning operations, a planning commission shall be appointed for the unit in conformance with an adopted regulation or agreement. Under KRS 100.183 the planning commission of each unit shall prepare a comprehensive plan, which shall serve as a guide for public and private actions and decisions to assure the development of public and private property in the most appropriate relationships. The required contents of the comprehensive plan are set forth in KRS 100.187. KRS 100.197 requires in part the holding of a public hearing before the comprehensive plan is adopted. Zoning is authorized by KRS 100.201. See also OAG 79-105 and OAG 78-815, copies enclosed, dealing with planning and zoning by counties pursuant to KRS Chapter 100.
As to other existing statutory provisions that could be utilized to deal with some of the problems you have set forth, we direct your attention to those statutory provisions dealing with solid waste disposal, specifically KRS 224.855. That statute in subsection (5) provides in part that the fiscal court of a county, wherein a hazardous waste landfill or other site or facility for the land disposal of hazardous waste is proposed, shall conduct a public hearing after public notice has been given by the applicant and shall vote to approve or disapprove the hazardous waste landfill or other site or facility for the land disposal of hazardous waste within thirty days after the hearing. If no public hearing is requested the fiscal court shall conduct a hearing and vote to approve or disapprove the hazardous waste landfill or other site or facility for the land disposal of hazardous waste within sixty days following publication of the application. Under the statute no permit shall be issued by the Department for Natural Resources and Environmental Protection if the fiscal court disapproves the hazardous waste landfill or other site or facility for the land disposal of hazardous waste in the manner prescribed by KRS 224.855.
The county home rule statute (KRS 67.083) provides in part that the fiscal court of any county may enact ordinances in performance of the following public functions: The abatement of public nuisances; public sanitation; conservation, preservation and enhancement of natural resources including soils, water, air, vegetation and wildlife; exclusive management of solid wastes by ordinance or contract or by both; provision of water and sewage and garbage disposal service. See KRS 67.083 (3) (a) (c), (h), (o) and (r). KRS 67.083 (6) states that if a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with state law or administrative regulation. We do not have enough factual information to determine if the county may utilize any of the provisions mentioned in this paragraph to handle the general problems with which you are concerned. The fiscal court and the county attorney, however, may wish to explore the possible utilization of those provisions to address the problems mentioned in your letter.
In conclusion, if the county intends to engage in planning and zoning and utilize the provisions of KRS Chapter 100, it will have to strictly comply with the requirements of that Chapter. In connection with a hazardous waste landfill or other site or facility for the land disposal of hazardous waste, the county can utilize the provisions of KRS 224.855 to prevent the state from licensing such a facility or operation. It is also possible that the county may, under a proper factual situation, be able to enact ordinances pursuant to KRS 67.083 (3) (a), (c), (h), (o) and (r) to address some of the general problems set forth in your letter.