Request By:
Ronald W. McCormick
Chairman
Campbell County Conservation District
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Elizabeth Hatchett, Assistant Attorney General
Opinion of the Attorney General
Mr. Ronald W. McCormick, Chairman of the Campbell County Conservation District, has requested an opinion of this office regarding KRS 262.850, the Agricultural District and Conservation Act. Specifically, Mr. McCormick would like to know whether a landowner who forms or joins an agricultural district must remain in such for five years, or can withdraw from the district prior to the five year review without penalty. We advise that there is no authority granted by the statute to levy a penalty for withdrawing from participation in a voluntary agricultural district prior to the five year review.
The purpose of KRS 262.850 , the Agricultural District and Conservation Act, is to "provide a means by which agricultural land may be protected and enhanced as a viable segment of the state's economy and as an important resource." KRS 262.850(2).
KRS 262.850(14) outlines the term of years for agricultural districts:
An agricultural district shall be established for five (5) years with a review to be made by the local soil and water conservation district board of supervisors at the end of the five-year period and every five (5) years there-after. Each owner of land shall agree to remain in the district for a five (5) year period, which is renewable at the end of the five (5) years. However, the board shall make a review any time upon written request of a local government which demonstrates that the review is necessary in order to consider development needs of the local government. The board shall consider whether the continued existence of the district is justified, any adjustments which may be necessary due to urban or county development, and other factors the board finds relevant.
KRS 262.850 addresses the withdrawal of farmland from an agricultural district several times, and section 14, cited above, is the only reference to land owners agreeing to a five year term.
KRS 262.850(15) provides the withdrawal of a member which reduces the acreage of land within the district to less than 250 acres shall not cause the decertification of the district. KRS 262.850(17)(a) and (b) provide that the local soil and water conservation board will notify the property valuation administrator when a farm is withdrawn from an agricultural district. KRS 262.850(11) provides that land in the District will be exempt from assessments for the extension of water service and concludes with the statement, "[a]ny member, or any successor heir of the member, of an agricultural district may withdraw from the district upon notifying the local conservation board of supervisors in writing."
As with any decision involving statutory construction, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (1994). In order to give meaning to the legislative intent we must consider the statute as a whole, and no single word or sentence is determinative. Strong v. Chandler, 70 S.W.3d 405 (Ky., 2002)(citing Long v. Mayo, 271 Ky. 192, 111 S.W.2d 633 (1937)). The conclusion that the program is voluntary and no penalty will be assessed for early withdrawal is consistent with this principal of statutory construction because KRS 262.850 is silent as to penalty, and although the statute states each owner of land "shall agree" to remain in an agricultural district for five years, it does not grant the Commonwealth or the local conservation board of supervisors the power to penalize a landowner who withdraws prior to the five year term.
The Kentucky Court of Appeals has declined to grant a local conservation board power not specifically enumerated in KRS 262.850. In Kipling v. City of White Plains, 80 S.W.3d 776 (Ct. App. Ky. 2001), the Kiplings were notified that their farm would be condemned by eminent domain in order for the city to construct a sewer and water line across the land. Thereafter the Kiplings successfully petitioned to become an agricultural district and to hold a public hearing on the taking via KRS 262.850(16). After the hearing, the board recommended the water lines be relocated in order to protect the land within the agricultural district. The Court did not consider the board's recommendation to be binding upon it, granted the easement across the Kiplings' farm, and declined to grant the local conservation board of supervisors more power than that which was enumerated in the statute, noting that "[f]or such a power to exist it should be specifically granted." Id. at 781. The Court held:
The only thing KRS 262.850(16) provides is that once the owner of property located in an agricultural district receives a summons of condemnation proceedings, he may ask the local conservation district board of supervisors 'to hold a public hearing on the proposed taking of land.' There is nothing in the statute which authorizes the local board of supervisors to do anything other than hold a public hearing, let alone issue some sort of binding resolution as to whether the condemnation of the property is proper.
Id. at 785. Similarly, the statute is silent as to penalty and does not authorize the local board of supervisors to do anything in the case of early withdrawal.
Further, the distinction between the voluntary language found in KRS 262.850 and the more restrictive language of other conservation program statutes supports the interpretation that there is no penalty for early withdrawal. For example, the Purchase of Agricultural Conservation Easement program (herein-after the PACE program) is a conservation program wherein the state purchases an easement upon land which "represents the right of the Commonwealth to prevent the development or improvement of the land for purposes other than agricultural production." KRS 262.900. The statute contemplates an exchange of consideration for the easement, restricts the landowner to agricultural use, and provides the PACE board with legal recourse if violation of the easement occurs. KRS 262.904-918. In contrast, KRS 262.850 does not contemplate consideration exchanged between the Commonwealth and a landowner, does not grant the Commonwealth an interest in participating land, and sets forth no restrictions on a land owner's activities.
The statement that land owners shall "agree" to remain in the district for five years is negated by the voluntary language throughout the statute, several references to withdrawal without the mention of a five year commitment or penalty, and the voluntary nature of the statute when compared to other conservation statutes.
As a further note, nowhere is a landowner asked to agree to a five year commitment. Currently, the Petition required to be submitted to the local conservation district board of directors, issued by the Department of Natural Resources, requires only the names, signatures, addresses and acreage of those wishing to be in the agricultural district, as well as a map and the names and addresses of adjacent landowners. Nowhere, however, does the Petition require the land owner to agree to a five year term.
In summary, a land owner may withdraw from an agricultural district at any time without penalty. Although the legislature included language to indicate a landowner shall agree to a five year term, it did not grant anyone the authority to levy a penalty and made no provisions for making an agreement with the landowner. The legislative intent, therefore, is that the program be voluntary, leaving a land owner the option to withdraw prior to a five year term.