Request By:
Foster L. Haunz, Esq.
Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in response to your letter raising several questions concerning the proper method of enforcing the zoning provisions in Jefferson County where only the county and cities of the first through the fourth class have zoning authority. Your first question asks whether a peace officer may issue a citation on a zoning violation he observes such as an advertising sign located in a front yard where prohibited or the use of a building contrary to zoning regulations such as a trade school in a residential zone.
KRS 100.201 authorizes zoning under the proper circumstances and KRS 100.203 sets forth the required contents of zoning regulations. Included among the required items is a text listing the types of zones which may be used and the regulations which may be imposed in each zone, which must be uniform throughout the zone. See KRS 100.203 (1). Furthermore, in OAG 79-76, copy enclosed, we referred to KRS 100.203(1)(b) and said that a city has without question the right to regulate the location of signs under its statutory zoning authority as well as its general police power.
In connection with the issuance of a citation we direct your attention to KRS 431.015(2) which states as follows:
"A peace officer may issue a citation instead of making an arrest for a violation committed in his presence but may not make a physical arrest unless there are reasonable grounds to believe that the defendant, if a citation is issued, will not appear at the designated time or unless the offense charged is a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 committed in his presence."
Thus, a peace officer may issue a citation instead of making an arrest for a violation he observes in connection with the enforcement of a zoning ordinance. Note also the provisions of KRS 431.015(1) in connection with a peace officer issuing a citation instead of making an arrest for a misdemeanor committed in his presence.
Your second question asks whether a peace officer of a fifth class city may issue such a citation where the city itself does not have zoning authority but fiscal court has properly adopted zoning regulations.
KRS 95.740 and 95.786 deal with the powers of police officers and the territorial authority of police officers of fifth class cities. KRS 95.740(1) provides in part that police officers in cities of the fifth class may arrest as prescribed by law for offenses against ordinances or municipal regulations of the city and shall have the same power of arrest for offenses against the state as a sheriff. KRS 95.786 states that police officers in cities of the fifth class may make arrests anywhere in the county in which the city is located, but shall not be required to police any territory outside of the city limits.
An examination of the above-mentioned statutes indicates that police officers of a fifth class city have the same power of arrest for offenses against the state as a sheriff. Thus, their power to arrest for such offenses is county wide. Police officers of fifth class cities may also arrest for offenses against municipal ordinances and regulations. There is, however, no authority for city police officers of a fifth class city to arrest for offenses against county ordinances. Since there is no authority for police officers of a fifth class city to arrest for offenses against county ordinances, they cannot issue a citation for such offenses in lieu of making an arrest.
Your third question asks whether a private citizen may swear out a summons warrant on a zoning violation.
KRS 431.015 deals with the issuance of citations by peace officers instead of making arrests for misdemeanors and violations committed in their presence. KRS 431.005 provides in part that a peace officer may make an arrest in obedience to a warrant or without a warrant when a felony is committed in his presence, when he has reasonable grounds to believe that the person being arrested has committed a felony or when a misdemeanor has been committed in his presence. In OAG 80-143, copy enclosed, we said that as far as KRS 431.005 is concerned there are still only two types of public offenses (felonies and misdemeanors) and that even though the Penal Code designates certain offenses as "violations," the law of arrest applies to the socalled violations the same as it does to misdemeanors.
We next direct your attention to two rules of the Kentucky Rules of Criminal Procedure (RCr) pertaining to arrest. RCr 2.02, dealing with the complaint, states in part that it is a written statement of the essential facts constituting the offense charged. It shall be made upon oath and signed by the complaining party before a judge or a person legally empowered to administer oaths who has been authorized to administer such oaths to a complaining party by written order of a judge for the county having venue of the offense charged. RCr 2.04 deals with the issuance of the warrant of arrest or a summons instead of a warrant if there are reasonable grounds to believe that the defendant will appear in response or if the defendant is a corporation.
Thus, a peace officer may not make an arrest if the misdemeanor or violation is not committed in his presence and he may not issue a citation instead of making an arrest if the misdemeanor or violation is not committed in his presence. If the misdemeanor or violation is not committed in the presence of the peace officer, a person would have to follow the procedures set forth in RCr 2.02 and 2.04 to obtain a warrant of arrest or summons for a violation or misdemeanor committed in connection with a zoning ordinance. A private person could follow such procedures to get a warrant of arrest or summons issued. See OAG 76-313, copy enclosed.
Your fourth question concerns the enforcement provisions of the zoning regulations. You ask whether the vesting of the authority to enforce the regulations in the "zoning enforcement officer" requires that any and all enforcement be by such a zoning enforcement officer or his assistant.
The zoning enforcement officer is not a peace officer and therefore does not have the peace officer's power of arrest and authority to issue a citation for a misdemeanor or violation committed in his presence. The zoning enforcement officer has been given enforcement duties by the county zoning ordinance and sections (B) and (C) refer to the zoning enforcement officer or his deputies. Section (A), setting forth the duties relative to enforcement, refers to the zoning enforcement officer, with the assistance of the officials of other departments of the city and county having jurisdiction. Enforcement of the zoning provisions would primarily rest with the zoning enforcement officer but would apparently also include the zoning enforcement officer's deputies and other officials having jurisdiction, whoever they may be.