Request By:
Honorable Eldon Franz
Mayor, City of Russell
Russell, Kentucky 41169
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 26 in which you relate that the city of Russell [a city of the fourth class] is an active member of the Greenup County Joint Planning Commission. You relate that since 1971 the economic situation in certain areas has caused previously undeveloped land to become attractive for builders of commercial and multi-family structures. The land in question was zoned "agricultural" because it was not considered prime commercial or residential land at the time of zoning. The city is now in the process of updating its comprehensive planning and zoning ordinance to provide that such commercial and multi-family development shall occur according to proper planning standards and in this regard has sought the help of the FIVCO Area Development District, the Kentucky Department of Transportation and the KYOVA Interstate Planning Commission. The needed information will take time and the question is raised as to whether or not the city of Russell can pass a temporary ordinance placing a moratorium on growth in the areain question. The time limit would be approximately twelve to sixteen months.
Pursuant to KRS 100.334 interim zoning regulations can be enacted and in this respect, we refer to subsection (2) which reads as follows:
"(2) If the planning commission is conducting or, in good faith is preparing to conduct, studies which are required for a comprehensive plan, the commission and the legislative bodies may prepare and adopt interim regulations before the otherwise required plan elements are completed.
The contents of, and procedure for adoption and amendment of, the interim regulations shall be the same as for the regular regulations. "
It is well established that, even in the absence of specific statutory authority permitting the adoption of interim zoning regulations, temporary zoning ordinances may be enacted establishing, in effect, a reasonable moratorium on building construction in certain areas to prohibit unwise exploitation of the land. See McQuillin, Mun. Corps., Vol. 8, § 25.64, and Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219 (1928).
We also refer you to a Massachusetts case styled Collura v. Town of Arlington, 329 N.E. 2d 733 (1975), where the court upheld an amendment to the city's zoning ordinance imposing a two-year moratorium on the construction of apartment buildings in certain areas of the town. The court declared that the authority to adopt interium zoning provisions can be implied from the general language of the zoning statutes as long as they were reasonable, even in the absence of any specific statutory authority for interim zoning. The court pointed out, of course, that the town must comply strictly with the requirements with regard to amending zoning ordinances. In discussing the question, the court declared and we quote:
". . . Interim zoning can be considered a salutary device in the process of plotting a comprehensive zoning plan to be employed to prevent disrupton of the ultimate plan itself. As this court has stated, '[I]t is proper for a town to review its zoning regulations, to take into account its probable future development, and to plan for the welfare of its inhabitants, present and future.' Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 202 N.E.2d 777, 784 (1964). Wilbur v. Newton, 302 Mass. 38, 42, 18 N.E.2d 365 (1938). Lamarre v. Commissioner of Pub. Works of Fall River, 324 Mass. 542, 546, 87 N.E.2d 211 (1949). Cohen v. Lynn, 333 Mass. 699, 704, 132 N.E.2d 664 (1956). The orderly process of interim zoning allows the issues to have the benefit of full public debate, at the same time protecting the affected area from unwise exploitation prior to agreement and formulation of new zoning restrictions which may be more restrictive. . . ."
Under the circumstances, we believe that the city would have the authority to enact an amendment to its zoning ordinance declaring a moratorium on development in the area zoned "agricultural" for the period of time mentioned, which appears to be reasonable.