Request By:
Mark E. Gormley, Esq.
Woodford County Attorney
Third Floor, Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the powers and authority of a fire district.
You state that a persistent problem in Woodford County is the burning of trash, old buildings, etc., by various property owners at such times and in such a manner as to often create a hazard to neighboring property. You maintain that under existing law there is really nothing anyone can do to prevent such burning.
The Woodford County Fire Protection District, organized pursuant to the provisions of KRS Chapter 75, is wondering whether it can, without fiscal court approval, pass an ordinance prohibiting certain kinds of hazardous burning in Woodford County.
KRS 75.040(1) provides in part that upon the creation of a fire protection district the trustees of the district are authorized to establish and operate a fire department in the district and to levy a tax upon the property in the district. KRS 75.120 states in part that the board of trustees shall control the fire department within its district and the property and equipment in that department.
Having reviewed the provisions of KRS Chapter 75, we find no authority in the above-mentioned statutory sections or anywhere else for the board of trustees of a fire protection district to enact an ordinance or regulation prohibiting certain kinds of hazardous burning in the county. The powers district are strictly a matter of statute. See Effinger v. Fern Creek Volunteer Fire Dept., Ky. App., 564 S.W.2d 847 (1978), as well as OAG 83-133 and OAG 73-565, copies of which are enclosed.
While there is no statutory authority for the board of trustees of a fire protection district to do what has been proposed in your letter, there are some existing statutory provisions, apart from the air pollution statutes you have mentioned, which may be of some help in alleviating the problems with which you are concerned.
KRS 149.400 designates "fire hazard seasons" and provides that during these times it shall be unlawful for any person to set fire to or to procure another to set fire to, any flammable material capable of spreading fire, located in or within 150 feet of any woodland or brushland, except during the hours of 4:30 p.m. and 12:00 midnight prevailing local time, or when the ground is covered with snow. See also KRS 149.370, prohibiting acts creating fire hazards within or adjacent to "timberland," KRS 149.375, regulating the setting of a fire on one's own land, and KRS 149.380, prohibiting the setting of a fire by a person on land he does not own, lease or control.
KRS 227.300 requires the Commissioner of the Department of Housing, Buildings and Construction to promulgate reasonable rules and regulations, to be known as the "Standards of Safety," based on good engineering practice and principles as embodied in recognized standards of fire prevention and protection, providing for a reasonable degree of safety for human life against the exigencies of fire and panic, and insuring as far as is practicable against fire loss. KRS 227.320 provides in part that the authorities of cities and counties shall adopt and enforce the standards of safety promulgated by the Commissioner. See OAG 80-136, copy enclosed, dealing with the inspection and enforcement powers of chiefs of fire protection districts relative to buildings which may constitute fire hazards.
The Commissioner of the Department of Housing, Buildings and Construction, pursuant to KRS 227.300, has promulgated "Standards of Safety" which appear in the Kentucky Administrative Regulations as 815 KAR 10:020. We are enclosing a copy of Section 12 of that regulation, dealing with general fire safety regulations, which may be applicable to some of the situations with which you are concerned.
815 KAR 10:020, Section 12(1)(a) states in part that no person shall knowingly permit any fire to spread so as to endanger the life or property of another. Section 12(1)(c) provides that no person shall knowingly maintain a fire hazard and Section 12(1)(d) states that no person shall deliberately, or through negligence or carelessness, set fire to or cause the burning of any bedding, furniture, rug, curtain, drape or other combustible material, in any manner as to endanger the safety of any person or property. Section 12(1)(g) deals with the barricading of vacant buildings and Section 12(3)(a) provides that no person owning or having control of any property shall allow any combustible waste material to accumulate in any area or in any manner so as to create a hazard to life or the property of others. Finally, Section 12(6) provides that no accumulation of waste paper, grass, litter, combustible or flammable waste, or rubbish of any kind shall be permitted to remain in any yard, vacant lot or open space unless in bales or containers awaiting collection, and located at least 10 feet from any overhang, a combustible wall, or window or door opening, of any building.