Request By:
Mr. Charles R. Simpson III
Attorney at Law
Suite 601 Legal Arts Building
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion, on behalf of County Judge/Executive Mitch McConnell, on questions relating to planning and zoning actions and the legislative format in connection therewith.
Your main question is: Must planning and zoning actions taken under KRS Chapter 100 be in the form of ordinances or resolutions?
A county ordinance is defined in KRS 67.075(1):
"For the purposes of this chapter, the following words shall have the following meanings:
"(1) 'County ordinance' means (a) an official written act of a fiscal court, the effect of which is general and lasting in nature, which is enforceable within the jurisdiction of the county; or (b) a lawful appropriation of money."
KRS 67.083(3)(k) provides in part that each fiscal court shall have the power to enact ordinances in performance of the following public functions: . . . (k) " Planning, zoning and subdivision control according to the provisions of KRS Chapter 100. " (Emphasis added).
To begin, our court held in effect in
Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 613, that the enactment of zoning ordinances by fiscal court is legislative in character. And the legislature may provide the precise manner or format by which the local legislative body may exercise delegation of zoning authority.
Lawton v. City of Austin, Tex., 404 S.W.2d 648 (1966) 651.
It was written in 8 McQuillin, Municipal Corporations, § 25.52, p. 125, that "usually, indeed, the power of zoning must be exercised, if at all, by the enactment of an ordinance, or, in other words, by a distinct legislative act. " (Emphasis added). See, on that point,
City of Miami v. Rosen, Fla., 10 So. 2d 307 (1942) 309;
Douglas v. Village of Melrose Park, 389 Ill. 98, 58 N.E. 2d 864 (1945); and
Hancock v. Rouse, Tex., 437 S.W.2d 1 (1969). See also 56 K.L.J. 556 on "Kentucky Planning & Zoning" , by Tarlock, in which the writer assumes zoning regulations must take the form of ordinances, although KRS Chapter 100 does not use the term "ordinance" , except for KRS 100.111(17), which defines "regulation" . See
Daviess County v. Snyder, Ky., 556 S.W.2d 688 (1977).
A watershed principle in this total context is that planning is one thing, and zoning is distinctly another. The distinction is carefully appraised in
Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735 (1941) 736:
"Broadly speaking, 'planning' connotes the systematic development of an area with particular reference to the location, character and extent of streets, squares, parks and to kindred mapping and charting. 'Zoning' relates to the regulation of the use of property - to structural and architectural designs of buildings; also the character of use to which the property or the buildings within classified or designated districts may be put."
The Court of Appeals of Ohio in W. B. Gibson Co. v. Warren Metropolitan H. Authority, 65 Ohio App. 84, 29 N.E.2d 236 (1940), goes into the distinction between "ordinances" and "resolutions". The court noted that an ordinance ordinarily provides a rule of conduct and is a law binding upon the community. They are declarations of a rule of conduct for the enforcement of a right or the creation of a duty. However, a resolution is something less formal than an ordinance, and generally speaking is a mere expression of the mind of the local legislative body concerning some matter coming within its official cognizance.
"Ordinance" is defined by Black's Law Dictionary, p. 1248, as a "rule established by authority; a permanent rule of action; a law or statute. In a more limited sense, the term is used to designate the enactments of the legislative body of a municipal corporation." On the other hand, a "resolution" is defined by Black's Law Dictionary, p. 1474, as "a formal expression of the opinion or will of an official body or public assembly, adopted by vote; as a legislative resolution." See also 5 McQuillin Municipal Corporations. § 15.02, stating that an ordinance is distinctively a legislative act, prescribing a permanent rule of conduct, while a resolution deals with matters of a special or temporary character. See also
City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945) 1008. In
Bradshaw v. Yeager, Ky., 265 S.W.2d 486 (1954) 488, the court wrote that "a resolution ordinarily is thought of as ministerial and temporary in character, whereas an ordinance prescribes a permanent rule of conduct and is the usual mode by which municipal legislative acts are adopted." (Emphasis added).
In answer to your first question, it is our opinion that zoning regulations, as mentioned in KRS 100.201 and 100.203, must take the form of ordinances; and thus KRS 67.075 through 67.078, relating to formal requisites of ordinances, must be observed. "Zoning regulations" are general in basic nature, are lasting in nature, and constitute a rule of law as to citizens within the jurisdictional limits of fiscal court. This includes zoning and rezoning regulations, and amendments to zoning regulations. While KRS 100.111(17) defines "regulation" as any enactment by the legislative body of a city or county, whether it is an ordinance, resolution, or an order and shall include regulations for the subdivision of land adopted by the planning commission, it is our opinion that the import of KRS 67.076, as to the specific use of ordinances, enacted after the last amendment of KRS 100.111(17), must govern, considering the general history of ordinances in the field of zoning regulations. The general statutory definition of regulation in chapter 100, like the Japanese kimono, hangs over all but covers nothing. KRS 67.076, on the other hand, establishes a specific principle as to the use of an ordinance as a legislative device. The general must give way to the specific.
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
The comprehensive plan is not a law [see KRS 100.183 and 100.187]. A comprehensive plan merely constitutes a general plan "to control and direct the use of land and buildings in a municipality. . . ." 8 McQuillin, Municipal Corporations, § 25.79. The essential role of the comprehensive plan is "prevent a capricious exercise of the legislative power resulting in haphazard or piecemeal zoning. " Rathkopf, The Law of Zoning and Planning, Vol. 1, Chapter 9, § 1.
In simple English, a comprehensive plan is merely a plan for land use and control. The adoption of a comprehensive plan will not necessarily mean that all elements of the plan will become a part of zoning ordinances. Planning is merely the forerunner of zoning, i.e., legislative action. However, a comprehensive plan may be adopted only by the planning commission. The fiscal court is not authorized to adopt the comprehensive plan under KRS 100.197. There is no provision for referring the completed comprehensive plan, as such, to the fiscal court.
It is our opinion that the statement of objectives and principles, as a part of the comprehensive plan [see KRS 100.187 and 100.193], can be adopted by fiscal court by a resolution. See
Daviess Cty. v. Snyder, Ky., 556 S.W.2d 688 (1977) 690.
Subdivision regulations adopted by the planning commission do not require approval by fiscal court. Cf. KRS 100.334, relating to rules and regulations of the commission. However, that statute does not embrace subdivision regulations. See Snyder v. Owensboro, Ky., 528 S.W.d 663 (1975), as to adoption of subdivision regulations by the planning commission. Such subdivision regulations must be based on the comprehensive plan, which latter is a planning device. KRS 100.281.
Next, you ask whether actions taken under KRS Chapter 100 by resolution, when actually an ordinance was required under the new law, would be void or voidable. KRS 67.075, et seq. , was enacted in 1978, effective June 17, 1978. The same applies to 67.083(3)(k).
Clearly under KRS 67.075, et seq. , and 67.083(3) (k), a zoning ordinance must be enacted in the precise manner required by those statutes. "The general rule is that the enactment of a zoning ordinance must strictly pursue the procedure provided by the statute enabling the city to zone." 8 McQuillin, Municipal Corporations, § 25.57, p.p. 133-134. Here KRS Chapter 100 must be read together with KRS 67.075, et seq. , and 67.083(3)(k). Statutes on the same subject, in pari materia, should be integrated so as to give effect to the legislative intention.
Indiana Truck Corporation v. Hurry Up Broadway Co., 222 Ky. 561, 1 S.W.2d 989 (1928) 991.
It is written in 8A McQuillin, Municipal Corporations, § 25.242a, p. 169, that "A zoning ordinance conflicting with a zoning statute as to procedure in zoning is void, at least to the extent of the conflict." Here KRS 67.083(3)(k), which speaks in terms of ordinances for zoning purposes, is a zoning statute to that extent. Thus a zoning regulation in the form of a resolution would be in conflict with KRS 67.083(3)(k) and 67.075, et seq. "Insofar as the general law for the enactment of local ordinances are not altered by statutes applicable solely to zoning legislation, such general laws remain applicable. Ibid., § 25.245, p. 173.
There is a basic rule that "where the requisites and formalities for passing an ordinance are not observed, a resolution does not have the effect of an ordinance. " See
Owensboro v. Board of Trustees, Ky., 190 S.W.2d 1005 (1945). Further, even where the ordinance form is used, but where certain statutory procedural requirements are not followed, the ordinance is invalid or void.
Glazier v. City of Newport, 132 Ky. 181, 116 S.W. 262 (1909) 263. In
Bradshaw v. Yeager, Ky., 265 S.W.2d 486 (1954), the court held that a mere resolution was not effective legislation in the implementation of street improvement programs under KRS Chapter 94. The court said that the statutes contemplated action by ordinance. Thus the resolution was invalid as an "ordinance" .
It is an elementary principle that an ordinance can be enacted only in the manner required by explicit statutory provisions.
Russell v. Bell, 224 Ky. 298, 6 S.W.2d 236 (1928) 237.
The answer to your second question is that on and after June 17, 1978, any zoning regulation action taken by a fiscal court in the form of a resolution, and where KRS 67.075, et seq. , and 67.083(3)(k), are not followed, such a resolution, as an effective legislative action, is void.
Finally, you ask whether, if such resolutions are void, the fiscal court can remedy the situations by now enacting such regulations in the form of ordinance, as mentioned in the above statutes.
Since such resolutions were a nullity, the fiscal court should consider passing such zoning regulations as ordinances by conforming to the statutes as above mentioned. KRS 67.075, et seq. This means the fiscal court would now consider such zoning regulations and enact them in the form of ordinances. "Generally, a governmental body may effectively ratify what it could theretofore have lawfully authorized." 4 McQuillin, Municipal Corporations, § 13.47. In 5 McQuillin, § 16.93, p. 299, it is written that "Generally speaking, a municipal legislative body may ratify its void acts, or may cure the defective enactment of an ordinance by a subsequent enactment, where the ordinance is within the municipal power to enact. " (Emphasis added). Cf.
Estill County v. Wallace, 219 Ky. 174, 292 S.W. 816 (1927) 817, holding that the county, through fiscal court, may ratify a contract which it had the power, in the first instance, to make.
Under the ratification concept, the fiscal court in its enactment of such abortive measures may make the ordinances retroactive to the dates of the applicable abortive measures or resolutions. In addition, this would obviate the possibility of any impairment of contract in reliance upon such abortive measures. See Article 1, § 10[1], Constitution of the United States; § 19, Kentucky Constitution; and
Smith v. Livingston County, 195 Ky. 382, 242 S.W. 612 (1922) 618, which holds that a fiscal court may amend or change its previous legislative enactments, provided no contractual rights are adversely affected. We are unable to find any constitutional or statutory prohibition against such retroactive county ordinances. The rule is stated in 6 McQuillin, Municipal Corporations, § 20.70, p. 185, that ". . . In the absence of such prohibition, there is no rule against retroactive municipal legislation unless it interferes with contract or vested rights." However, retroactive municipal legislation is always carefully scrutinized by the courts, and in some jurisdictions is viewed unfavorably. Ibid., p. 197. We are inclined to believe, however, that where the enactment text, involving the abortive measures subject matter, is substantially identical with the abortive measures text, the courts would uphold it under the doctrine of ratification and preservation of the status quo during the intervening period involved.
Finally, we assume the resolutions relating to zoning actions involved here did not substantially comply with the detailed procedure outlined in KRS 67.075 et seq.