Request By:
Robert M. Kirtley.E Sq.
Daviess County Attorney
Daviess County Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the interpretation of KRS Chapter 100 relating to planning and zoning. The cities of Owensboro and Whitesville and Daviess County have established a joint planning and zoning commission known as the Owensboro Metropolitan Planning Commission.
The county is considering the possibility of placing the office of housing inspector under the direct control of the Director of the Owensboro Metropolitan Planning Commission. If the proposed transfer were made, the county would continue to classify the inspector as a county employe and he would be paid with county funds. Your specific question is whether the fiscal court may by order or ordinance transfer the County Housing Inspector to the Owensboro Metropolitan Planning Commission to be under the direct supervision of the Director of the Owensboro Metropolitan Planning Commission.
There is one provision in KRS Chapter 100 pertaining to a building inspector in connection with zoning matters. KRS 100.271 permits the city or county to designate an administrative official, usually the building inspector, to administer the ordinance. The official is directed to issue a building permit only if the proposed construction is in conformity with "literal" terms of the zoning regulation. See "Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100," by A. Dan Tarlock, 56 K.L.J. 556, 627.
In OAG 77-449, copy enclosed, at page two, we said that pursuant to KRS 100.271 an administrative official must be designated by the city and county to administer zoning regulations and he may be designated to issue building permits and certificates of occupancy in accordance with the terms of the zoning regulations. In OAG 77-522, copy enclosed, we said that the planning commission's functions do not include the issuance of permits for zoning compliance as that is a function of the city and county pursuant to the appointment of the official required by KRS 100.271.
While KRS 100.271 authorizes the utilization of a building inspector to issue building permits in accordance with the terms of the zoning regulations, a distinction is recognized between building codes and zoning ordinances. Building codes are not a part of a zoning program and, while they are related, we are in fact dealing with two separate programs.
Your letter refers to a joint planning commission (KRS 100.121 authorizes joint planning units). KRS 100.111 (14) defines a "planning unit" as any city or county, or any combination of cities, counties or parts of counties engaged in planning operations. "Planning operations" is defined in KRS 100.111 (13) as the formulating of plans for the physical development and social and economic well-being of a planning unit, and the formulating of proposals for means of implementing the plans.
Planning is a generic term and not a word of art unless its dimensions are marked out by a statute or ordinance. It frequently refers to the production of a comprehensive or master plan for the future development of a community. Zoning is said to be a tool of planning and comprehensive zoning consists of the division of a territory into districts and the imposition of restrictions upon the use of land in such districts. See Anderson, American Law of Zoning 2d, Vol. 1, §§ 1.03 and 1.13. In
Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735, 736 (1941), the court said in part as follows:
". . . 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. . . ."
In Yokley, Zoning Law and Practice, 4th Ed., Vol. 5, § 31-1, the following appears:
"The distinction between building codes and zoning ordinances has been well recognized. It has been judicially stated that a building code has particular reference to the construction, maintenance and repair of buildings within a municipality, and that while zoning may restrict the methods of construction and repair of buildings, a zoning ordinance must be enacted in accordance with a comprehensive plan pertaining to land use within a municipality. "
Zoning ordinances prescribe the permitted and prohibited uses of land within a particular district. Building and housing codes and ordinances have a more restrictive application to the use of lawfully existing buildings within zoned areas and reach a field of regulation with respect to the construction and maintenance of buildings lawfully situated in a zoned area. Yokley, Zoning Law and Practice, 4th Ed., Vol. 5, § 31-1.
In Yokley, Zoning Law and Practice, 4th Ed., Vol. 4, § 25-12 the author states:
"While building code provisions are not a part of a zoning program, they are closely related thereto in that both are related to occupancy regulations in dwellings and other types of structures. The courts are frequently called upon to distinguish the relationship between these two facets of police power regulation. . . ."
In
American Sign Corporation v. Fowler, Ky., 276 S.W.2d 651, 654 (1955), the court said in part:
"Although the noun 'use' does not lend itself to the making of nice distinctions, we think that in one of its meanings it furnishes a basis for distinguishing between a zoning statute and a mere building code statute. Zoning has as one of its main purposes the regulation of the use of property.
Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735. This means regulation of the purpose or object of the use, rather than the mere conditions or circumstances of the use. It is customary for zoning statutes to contain express provisions for the regulation of the use of property, and the absence of any such provision from KRS 67.380 is very persuasive that this statute was not intended to be a zoning statute."
In absence of any specific authority in KRS Chapter 100 to do so and in recognition of the distinction between building codes and zoning ordinances, the fiscal court does not have the authority to transfer the county housing inspector to the Metropolitan Planning Commission and place him under the supervision of the Director of the Metropolitan Planning Commission. Building Codes are not part of zoning programs and while the two are related there is no statutory authority for bringing the building code program under the authority of the planning and zoning commission. The county could authorize the county building inspector to issue building permits in accordance with the terms of the zoning regulations.