Request By:
Thomas R. Nienaber
Counsel, Grant County Planning Commission
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Statutes construed: KRS 100.211
Opinion of the Attorney General
Thomas R. Nienaber, counsel for the Grant County Planning Commission has requested an opinion from this office whether a property owner may propose a zoning text amendment. We advise that a property owner may not.
Mr. Nienaber informs us that an individual property owner requested a text amendment to a zoning ordinance of the City of Crittenden ("Crittenden"). The owner was referred to the Grant County Planning Commission, which advised the owner that a property owner may not propose a text amendment on the grounds that KRS 100.211(2) only allows a planning commission, fiscal court, or legislative body to propose a text amendment. The owner subsequently requested a text amendment from Crittenden, which maintained that a property owner may propose a text amendment pursuant to a joint ordinance of Grant County, the City of Corbin, and Crittenden ("ordinance" ). At issue is whether a property owner may propose a text amendment to a zoning ordinance, and whether a city may pass an ordinance allowing a property owner to do so.
KRS 100.211(2) provides that "a proposal to amend the text of any zoning regulation. .. may originate with the planning commission of the unit or with any fiscal court or legislative body which is a member of the unit." The ordinance provides that "a proposal for an amendment to this ordinance may originate with the planning commission, the legislative body, or with the owner of the property in question." Grant County, Corbin, and Crittenden, Ky., Zoning Ordinance art. 17, P B. The ordinance mirrors language from KRS 100.211(1), which provides that "a proposal for a zoning map amendment may originate with the planning commission of the unit, with any fiscal court or legislative body which is a member of the unit, or with an owner of the property in question." KRS 100.211(1) explicitly allows that a property owner may originate a proposal for a zoning map amendment, but KRS 100.211(2) does not include the property owner in of the list of entities that may propose a zoning text amendment.
The power to enact zoning regulations derives from the police power of the state. The state may delegate such power to its political subdivisions, but that delegation of power is strictly construed. "The city's power to zone is derived solely from express authority conferred on the municipality by the state legislature? The city cannot exercise police power in enacting a zoning ordinance unless the right has been given by the legislature." Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 575 (Ky. 1967). While the legislature did allow property owners to propose zoning map amendments in the delegation of its zoning power, it did not allow property owners to propose zoning text amendments. "The enumeration of particular items excludes other items that are not specifically mentioned." Com. v. Harris, 59 S.W.3d 896, 900 (Ky. 2001). Thus property owners are excluded by statute from those entities that may propose zoning text amendments.
Since property owners are excluded by statute from proposing zoning text amendments, a political subdivision may not give them that power by ordinance. "Any authorized political subdivision that wants to adopt zoning regulations and subdivision regulations must comply with Chapter 100. When the state has preempted a field, the city must follow that scheme or refrain from planning." Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government, 265 S.W.3d 190, 193 (Ky. 2008). The ordinance granting property owners the right to propose a zoning text amendment goes beyond the statutory scheme set down by the legislature, and is therefore invalid.
In sum, while a property owner may propose a zoning map amendment under KRS 100.211(1), an owner may not propose a zoning text amendment under KRS 100.211(2). Any ordinance conferring the power to propose a zoning text amendment on property owners conflicts with the statutory scheme set by the legislature, and is invalid to the extent it purports to do so.