Request By:
Gay M. Elste, Esq.
P.O. Box 22219
Lexington, Kentucky 40522
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question about the applicability of a local zoning ordinance to proposed activity by the City of Versailles.
You state that the City of Versailles proposes to engage in landspreading, an operation which disposes of digested sludge from the city's waste water treatment plant. The landspreading activity will take place on a farm leased to the city for that specific purpose.
You refer to regulations of the Natural Resources and Environmental Protection Cabinet relative to solid waste facilities and specifically 401 KAR 47:050 (Landfarming) , Section 1(4) which states as follows as to requirements:
"Written certification from the county judge/executive or chairman of the local planning and zoning board that the site meets all local planning and zoning requirements."
The property where the sludge is to be spread is zoned A-1, Agriculture. The local zoning ordinance makes no specific reference to landspreading or landfarming. The ordinance does permit "garbage or refuse disposal by city or county" and "any other use that is determined by the board of adjustment to be of the same general character as the above" in the A-1, Agriculture zone.
You next cite KRS 100.361(2) which provides:
"Nothing in this chapter shall impair the sovereignty of the Commonwealth of Kentucky over its political subdivisions. Any proposal affecting land use by any department, commission, board, authority, agency, or instrumentality of state government shall not require approval of the local planning unit. However, adequate information concerning such proposals shall be furnished to the planning commission by the department, commission, board, authority, agency, or instrumentality of state government. "
While the above-quoted statutory provision has not, to our knowledge, been construed by a court in a reported decision, it has been the subject of numerous opinions of this Office over the years. You cite OAG 69-659, OAG 73-315, OAG 73-652, OAG 75-108 and OAG 81-111. Note particularly OAG 73-315, copy enclosed, at page two, where we said that cities and counties are instrumentalities of the state and are exempt under the provisions of KRS 100.361(2).
Your letter cites OAG 72-440 where this Office dealt with the exemption provisions of KRS 100.361(2) relative to property leased to the state or its various political subdivisions. That opinion concluded, at page three, as follows:
"However, we believe, as indicated above, that privately owned property leased by the state would not appear to be exempt from local planning and zoning regulations within the meaning of KRS 100.361(2) quoted above. This question is, of course, subject to litigation."
You last refer to the local zoning ordinance from the standpoint of waiver of immunity by the city in that the ordinance requires that a conditional use permit be obtained. You concede that the ordinance does not contain a waiver statement but merely a provision to the effect that where the ordinance imposes a greater restriction than is imposed by other provisions of law or by rules, regulations, resolutions or ordinances, the provisions of the zoning ordinance shall govern.
Your specific question to this Office is which statute or ordinance should take precedence in this matter.
In OAG 72-440 it was noted that KRS 100.361(2) uses the words "land use" by any instrumentality of state government but those words are not defined in the zoning act. KRS Chapter 100 does not specifically deal with land owned by an instrumentality of the state and land leased to an instrumentality of the state. The statement in McQuillin, Mun. Corp. (3rd. Ed.), Vol. 8, § 25.15 is to the effect that properties and the uses thereof may be immune or exempt from the operation of municipal zoning regulations where owned or controlled by instrumentalities of state government.
While it has been almost twelve years since OAG 72-440 was issued there are still no reported cases in this state dealing with whether KRS 100.361(2) is limited to property owned by an instrumentality of the state or whether it includes property leased to an instrumentality of the state. However, the courts in at least four other states have rendered decisions dealing with lands leased to a governmental entity.
In City of Pittsburgh v. Commonwealth, Pa. Cmwlth., 341 A.2d 228 (1975), it was argued that state owned property but not state leased property was exempt from local zoning regulations. The court said that the state was not required to comply with municipal zoning requirements relative to its use of certain property even though the state did not own the property and would only occupy the property during the terms of the lease. Local zoning regulations cannot control the use of property leased by a private person to the state for a governmental purpose.
The court, in Mayor and City Council of Baltimore v. State, 281 Md. 217, 378 A.2d 1326 (1977), dealt with property located in the city and leased to the state and said in part:
". . . Thus, since the General Assembly has neither named the State nor manifested an intention that the State be bound in the provisions of the Zoning Enabling Act, Baltimore City has no authority to subject the State's use of the Continental Can property to its zoning ordinance. "
In Regents of University of Calif. v. City of Santa Monica, 77 Cal. App. 3d 130, 143 Cal. Rptr. 276 (1978), the court said that for purposes of determining whether the city had authority to apply and enforce its building and zoning ordinances and to impose building permit and inspection fees against the University of California, it was immaterial whether the property in question was owned or leased by the University.
Finally, in County Commissioners of Bristol v. Conservation Commission, Mass., 405 N.E.2d 637 (1980) the court said the statute providing that no zoning ordinance shall regulate the use of land or structures for religious or educational purposes did not allow municipal zoning regulation of land or structures owned or leased by the state or by its subdivisions and devoted to an essential government function.
Waste facilities and waste disposal activities involve essential governmental functions. In an annotation in 59 ALR 3d 1244 titled "Applicability of Zoning Regulations to Waste Disposal Facilities of State or Local Governmental Entities," the following appears at page 1248:
"While the American Law Institute's proposed Model Land Development Code calls for a contrary result, state and local governmental entities proposing to operate waste disposal facilities have been accorded exemption from local zoning restrictions in all but a few of the decisions, with the courts invoking a variety of different rationales to justify this determination."
As to the city waiving its exemption from the provisions of the local zoning ordinance, our interpretation of KRS 100.361(2) is that the city is in no position to waive anything in this particular area. The state statute says in part that any proposal affecting land use by any instrumentality of state government shall not require approval of the local planning unit. No local provision can conflict with a state statute. See Franklin County v. Webster, Ky., 400 S.W.2d 693 (1966). The city has no discretion or flexibility on this particular point.
In conclusion, it is our opinion that private property leased to the city for a legitimate governmental purpose is covered by the exemption set forth in KRS 100.361(2) and the city does not have to seek the approval of the local planning unit in connection with the operation of its landspreading activity on land it has leased from a private person. The statutory exemption prevails over any conflicting state regulations or local ordinances. The conclusion set forth in OAG 72-440, to the extent that it conflicts with this opinion, is modified accordingly.