Request By:
Honorable A. V. Conway, II
Ohio County Attorney
P.O. Box 66
Main Street
Beaver Dam, Kentucky 42320
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 7 in which you relate that in 1969 Ohio County and the cities of Beaver Dam and Hartford entered into a joint planning and zoning agreement and established a joint commission. The agreement embraces the cities of Beaver Dam and Hartford together with an area immediately adjacent to these cities of approximately two miles. Following the enactment of the enabling ordinance, the Fiscal Court of Ohio County delegated all of its authority over the two-mile area with respect to planning and zoning to the respective cities. Thus, in effect, the cities were granted extraterritorial authority with respect to all zoning matters outside the corporate city limits.
In February, 1979 the Ohio County Fiscal Court passed a motion redefining the area to be covered by zoning under the citys' authority to an area not to exceed one-tenth of a mile surrounding the cities. No notice was given by the court to consider amending the existing ordinance to the cities of Hartford and Beaver Dam. Under the circumstances, you raise the following questions:
"(A) Your opinion as to whether the county can delegate the decision with regard to zoning matters to a municipality, in particular where the area in question lies in the county and outside of the boundaries of the corporate city limits.
"(B) Your opinion as to whether the action of the Ohio County Fiscal Court in redefining the area to be covered by the zoning area is legal, where no notice was given that the Fiscal Court was going to consider the redefining of the zoning area."
Our response to your initial question would be in the affirmative pursuant to KRS 100.131 and the case of City of Elizabethtown v. Hardin County Fiscal Court, Ky. App. 551 S.W.2d 253 (1977). You will note from this case that Hardin County, under the terms of KRS 100.131, granted to the city of Elizabethtown planning and zoning commission extraterritorial jurisdiction extending two miles from the city limits. This jurisdiction was accepted for the purpose of planning and zoning generally and thereafter the city exercised such authority over the area in question. However, on March 8, 1976, the fiscal court adopted a resolution in an attempt to withdraw the extraterritorial jurisdiction granted to the city's planning and zoning commission. The court concluded that the Hardin Fiscal Court could withdraw the extraterritorial jurisdiction granted to the city of Elizabethtown pursuant to its resolution, provided, of course, no contractual rights are affected. The court, in so concluding and referring to KRS 100.131, said the following:
"It is clear from the statute that the City of Elizabethtown has a statutory discretion in assuming reasonable subdivision regulations up to five (5) miles from all points of the city boundary. However, any other regulatory power can only be exercised with the continuing consent of the governing body of the county wherein that city lies.
"In the present case the authority for planning and zoning exercised by the City of Elizabethtown is dependent upon the consent of the Fiscal Court of Hardin County. This Court has held that a Fiscal Court acting in a legislative capacity may at any time revoke a prior order where no contract rights are affected. Crittenden County Court v. Shanks, 88 Ky. 475, 11 S.W.2d 468 (1889); Crick, County Judge v. Rash, 190 Ky. 820, 229 S.W. 63 (1921). Therefore, we hold that the Hardin Fiscal Court could withdraw extraterritorial planning and zoning jurisdiction from the City of Elizabethtown pursuant to its resolution of March 8, 1976."
In response to your second question we do not believe that notice is required on the part of the fiscal court to the respective parties concerning the action it took in redefining the area of permitted planning and zoning jurisdiction outside of the corporate boundaries of the cities since the court has the legal right at any time to withdraw its extraterritorial planning and zoning jurisdiction as pointed out in the above cited case.