Request By:
Mr. Garland VanZant, Director
Environmental Services
West Bluegrass District Health Dept.
P.O. Box 477
200 West Main Street
Burgin, Kentucky 40310
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 6 in which you request an opinion concerning the following:
"1) Does the health department have the authority, under the enclosed regulation, to set lot sizes within the corporate city limits of Burgin? The City of Burgin has not adopted the rules and regulations as set forth by the Greater Mercer County Planning and Zoning Commission, nor do they have an ordinance relating to lot sizes (OAG 64-338).
2) If Burgin passed a city ordinance setting forth a lot size less than that prescribed by the health department, would the authority for setting lot sizes then pass to the city or would it remain with the health department and which lot size would be enforced?
Within the city limits of Burgin, a developer wishes to develop a tract of land into 20 or so one-half acre lots. This tract of ground has not received approval under any previous health department regulation (OAG 74-595). In view of OAG, enclosed, the Board of Health is not sure of their authority to control lot sizes in Burgin since the Zoning Board has authority in the rest of the county."
Generally speaking, the regulation of lot sizes is basically a zoning matter that is specifically controlled under Chapter 100 KRS, and particularly KRS 100.203 which requires a city that has adopted planning and zoning to enact appropriate regulations relating to lot sizes among other things. Unless, however, the city has adopted planning and zoning in accordance with the specific requirements of Chapter 100, it cannot enact regulations governing lot sizes required under KRS 100.203 previously mentioned. In this respect we are enclosing a copy of OAG 78-421.
On the other hand, local health departments have no specific authority to regulate lot sizes unless it involves the question of protecting the public health, particularly where it involves on-site sewerage disposal systems in which event we believe such authority exists as pointed out in OAG 64-338. The 1982 Legislature transferred the authority to regulate onsite sewerage disposal systems from the Department of Housing, Buildings & Construction back to the Department for Human Resources. See KRS 211.350 (House Bill 639). However, the real authority for lot size regulations connected with on-site sewerage disposal systems is found under KRS 212.240 and 212.245 detailing the general powers and duties of the local boards to protect the public health in their particular area of jurisdiction.
Generally, when a city has adopted planning and zoning, and particularly regulations dealing with the size of lots, it works in conjunction with local boards of health in this matter. We also might add that when the county alone has adopted planning and zoning and the city has refused to participate in forming a joint city-county planning commission, the county has no jurisdiction within the city. In other words, unless the city elects to operate under Chapter 100, there can be no planning and zoning within the city, and in such event the local health department could on its own regulate the size of lots where on-site sewerage disposal systems are involved under its public health powers referred to above. Such regulations must, of course, be reasonable.