Request By:
Honorable Walter D. Huddleston
United States Senate
Washington, D.C. 20510
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In a letter to you from Mr. William G. Kenton, Speaker of the House of Representatives for the Commonwealth of Kentucky, Speaker Kenton expressed his concern about the effect the Kentucky Supreme Court's recent Home Rule decision might have on the flood insurance policies of Kentuckians. That specific point has never been litigated.
You request an interpretation of the Home Rule decision in terms of the development of a flood management system for construction in a flood plain, which is one of the requirements that must be fulfilled by a county before its residents can be eligible to purchase flood insurance.
Since the Supreme Court of Kentucky, in Fiscal Court of Jefferson County v. City of Louisville, et al [76-604] has not made final its ruling in that Home Rule decision, we cannot discuss the merits of that decision at this time. However, in connection with our responsibility under KRS 15.020, we can analyze the situation in terms of the impact of an adverse holding of the court as to the constitutionality of KRS 67.083, and as to the impact on the planning and zoning function as exercised by fiscal courts.
The National Flood Insurance program, as you know, was enacted by Congress as a federal assistance program designed, among other things, to minimize damage caused by flood losses, and to provide a method of sharing the risk of flood losses through a program of flood insurance which can complement and encourage preventative and protective measures. In other words, it was felt that the program would encourage state and local governments to adopt and enforce appropriate land use provisions to restrict and constrict the future development of land which is exposed to flood hazard [lands lying in flood plain territory]. Under this law, insurance is made available for residential and small business properties. See 42 U.S.C.A. § 4001.
The bill originally had a two stage requirement: (1) that for any area in which insurance is offered prior to June 30, 1970, an assurance must be given that by that date permanent land use and control measures will be adopted which conform to the criteria of the bill, and (2) that after that date no insurance contract may be written or existing contract renewed unless such measures, along with effective enforcement provisions, have been adopted in the area by the state or political subdivision having zoning or building code jurisdiction over a particular flood plain area.
Pursuant to 42 U.S.C.A. § 4012, the Secretary of Housing and Urban Development shall make flood insurance available in only those states and political subdivisions thereof which he has determined have: (1) evidenced a positive interest in securing flood insurance coverage under the flood insurance program, and (2) given satisfactory assurance that by December 31, 1971, adequate land use and control measures will have been adopted for the state or area (or subdivision) which are consistent with the comprehensive criteria for land management and use developed under § 4102 of this title, and that the application and enforcement of such measures will commence as soon as technical information on floodways and on controlling flood elevations is available. However, 42 U.S.C.A. § 4022 in effect seems to negative the December 31, 1971, deadline by providing that after that date no new flood insurance coverage shall be provided unless an appropriate public body shall have adopted adequate land use and control measures which the Secretary finds are consistent with the comprehensive criteria for land management and use under § 4102 of this title. Also see 42 U.S.C.A. § 4102.
The comprehensive criteria for land management and use are contained in 42 U.S.C.A. § 4102(c), which in part provides that such local measures will, to the maximum extent feasible, (1) constrict the development of land which is exposed to flood damage where appropriate, (2) guide the development of proposed construction away from locations which are threatened by flood hazards, (3) assist in reducing damage caused by floods, and (4) otherwise improve the long-range land management and use of flood-prone areas.
We understand some of the counties in Eastern Kentucky, in attempting to qualify under the flood insurance program, relied on KRS Chapter 100 [planning and zoning] and on KRs 67.083, the Home Rule statute. See 24 C.F.R. § 1909.22 as to actions that must be taken by a county to become eligible and remain eligible for the program.
The planning and zoning statutes, KRS Chapter 100, are a source of authority for a fiscal court to establish the requisite flood plain land management and use program under the federal statutes and regulations. The Home Rule statute is a source of authority for a fiscal court to establish flood control works or flood protection systems under this federal program. Such locally established flood management programs by county ordinance or resolution would involve a legislative function. Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 613. Now the specific question is: What impact does the Home Rule decision of the Supreme Court of Kentucky have on such flood plain management enactments of fiscal courts?
The Supreme Court of Kentucky in the Jefferson Circuit case held in effect that a fiscal court has no legislative powers. It said that the attempt of the General Assembly to delegate legislative authority in KRS 67.083 was a violation of § 29 of the Kentucky Constitution. The court relied on the strict constructionist case of Bloemer v. Turner, Ky., 137 S.W.2d 387 (1939). The court simply ruled that the General Assembly cannot delegate its power to make a law to the fiscal courts. However, it did rule that the General Assembly could pass a law giving to fiscal courts the authority to exercise its executive and administrative discretion in determining a fact or thing upon which the law makes or intends to make its own action depend.
While the decision of the Kentucky Supreme Court is not yet final [petitions for rehearing will be filed], under the holding as it presently stands it is our opinion that the Home Rule statute cannot be relied on by fiscal courts under the flood insurance program. Further, it is our opinion that at present the holding casts a cloud over the use of the planning and zoning function in the implementation of the flood insurance program. The court's opinion strikes down the fiscal court's legislative powers, which powers are involved in the use of planning and zoning and flood control actions. It follows that flood insurance policies issued in reliance upon the fiscal court's right to use planning and zoning statutes and the Home Rule statute could be in jeopardy. Perhaps the Supreme Court of Kentucky may clarify its ruling.