Request By:
Honorable Lambert Hehl
Campbell County Judge/Executive
24 W. Fourth Street
Newport, Kentucky 41072
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 21 in which you relate that the Northern Kentucky Area Planning Commission was created pursuant to Ch. 147 KRS to serve Northern Kentucky, including Campbell and Kenton Counties as well as some twelve (12) independent city planning commissions. You further relate that it has come to your attention that the Area Planning Commission has initiated contractual agreements with several cities to act in their behalf by serving as a central zoning administrator and building inspector charged with the administration and enforcement of local zoning regulations. The question is raised as to whether or not the Northern Kentucky Area Planning Commission possesses the authority to enter into such a contractual relationship.
Our response to your question would be in the negative. The 1974 legislature amended the area planning act in several aspects by Ch. 359. Section 3 of the Act, which is designated as KRS 147.675, provides as follows:
"The provisions of KRS 147.610 through 147.990 shall be construed to confer on the area planning commission an advisory capacity only. " (Emphasis added.)
At the same time KRS 147.680 was amended, which deals with the commission's prior approval before construction of any public street, public road, public place, etc., by deleting the word "approval" and provided simply for the commission to review and make recommendations to the local units.
Prior to the passage of Ch. 359 there was a test suit filed to determine the extent and authority of the Northern Kentucky Area Planning Commission styled Northern Kentucky Area Planning Commission v. Campbell County, Ky., 509 S.W.2d 277 (1974). The Court was aware of the above mentioned amended legislation even though it was not effective at the time of the Court's decision. Nevertheless the Court very definitely concluded that the area commission's authority was confined to an advisory status and it had no authority in the area of land use regulation or the area of public construction, by specifically citing KRS 147.675 and the change made in KRS 147.680. This is in spite of the implication otherwise found under KRS 100.123 (enacted in 1966) which seems to permit the shifting of authority of local units to the area unit. This would, of course, be repealed by implication by the '74 legislation.
The contractual agreement to which you refer, particularly detailed under Appendix A, vests in the Area Commission the same enforcement authority given to zoning administrators and building officers under the city's zoning ordinance and building code, and we must therefore conclude that such an agreement appears to clearly transcend the limited power of the area commission which the Court as well as the statute clearly states it to be confined to an advisory capacity.