Request By:
Mr. Steven R. Bourne
Senior Planner
Hopkinsville-Christian County
Planning Commission
P.O. Box 1125 City Hall
Hopkinsville, Kentucky 42240
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 7 concerning the publication requirements relating to zoning regulations adopted pursuant to KRS 100.207. Your basic question involves a conflict between the publication requirements found under KRS 83A.060 and KRS 100.207. More specifically, your questions are as follows:
"1. Does KRS 83A apply to KRS 100 in regard to the publishing requirements of an ordinance, more specifically zoning or subdivision ordinances. If so, in what respect?
2. KRS 100.207 allows a zoning ordinance to be adopted by stating the title and giving a general description and citing a place for review. KRS 83A.060 requires an ordinance to be published by title with the certified summary of the contents prepared by an attorney licensed to practice law in the Commonwealth of Kentucky. Which method of adoption is correct? Subsequently, a logistical problem arises from KRS 83A.060 providing alternatives for publishing ordinances dealing with real property. KRS 83A.060 requires a real property description to be published by metes and bounds or illustrated by map or sketch drawing. Does this mean that the City's official zoning map must be published in full as required in KRS 83A.060(9) and KRS 424?
3. KRS 83A.060 states, 'No ordinance shall be amended by reference to its title only, and ordinances to amend shall be set out in full the amended ordinance or section. . .' Rezoning or zoning amendments to the ordinance again pose publishing and illustration problems. If 83A is the true authority, every zoning amendment will have to be published with either a metes and bounds description of the site, or a map illustrating the area rezoned. Is this an accurate interpretation of the statute? What statute prevails? "
Upon reviewing the two statutes involved, we have concluded that the publication requirements under KRS 83A.060(9) would prevail over those requirements found under KRS 100.207 for the following reasons. Zoning regulations adopted by the legislative body of the city under KRS 100.207 must be enacted by ordinance since such represents the official action of the legislative body and are of a general and permanent nature. See KRS 83A.010(10). All ordinances enacted by the legislative body including ordinances relating to zoning pursuant to a 1982 amendment must be published pursuant to KRS 83A.060(9) which reads as follows:
"(9) Except in cities of the first class and as provided in subsection (7) of this section, no ordinance shall be effective until published pursuant to KRS Chapter 424. Ordinances, except bond ordinances imposing fines, forfeitures, imprisonment, taxes or fees shall be published in full. The publication requirements for all other ordinances including all bond and zoning ordinances shall be satisfied by publication in full or in summary as designated by the legislative body. The requirements for summary publication shall be satisfied by publication of the title and a certified summary of the contents prepared by an attorney licensed to practice law in the Commonwealth of Kentucky. Ordinances that include descriptions of real property may include a sketch, drawing, or map, including common landmarks, such as streets or roads in lieu of metes and bounds descriptions."
KRS 100.207 enacted in 1966 concerning the adoption of zoning regulations by the legislative body provides in effect that notwithstanding publication requirements required for other regulations, zoning regulations may be published by sending title and general description of the regulations and referring to the place within the unit where a copy of the complete regulation may be examined without charge.
The requirements of both KRS 83A.060(9) and KRS 100.207 are somewhat similar in that both permit the publication to be in the form of a summary or a general description. However, in any event the requirements of KRS 83A.060(9) would control, particularly in view of the 1982 amendment specifically requiring zoning ordinances to be published in the manner therein prescribed. In statutory construction where a conflict exists between two statutes, the later statute prevails. See
Head v. Commonwealth, 165 Ky. 603, 177 S.W. 731 (1915),
Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939), and
Heady v. Commonwealth, Ky., 579 S.W.2d 613 (1980).
In the latter part of your second question, you refer to the requirement that ordinances that include descriptions of real property may include a sketch drawing or map, etc., in lieu of metes and bounds descriptions. However, we do not believe this provision of the statute would apply to the publication of zoning regulations, but only where an ordinance specifically describes a piece of real estate. It would thus appear that a reference in the summary of the ordinance to the zoning map on file in the clerk's office would be sufficient.
In response to your third question, the reference under KRS 83A.060 to the effect that no ordinance shall be amended by reference to its title only and ordinances to amend shall set out in full the amended ordinance or sections indicating any words being added or deleted by a solid line underneath or a broken line through them, would not be applicable to those ordinances published by the summary method. In other words, only those ordinances published in full would require amendments to be made in the same manner.
Our response to your questions represent our interpretation of the referred to statutes. However, as you know such interpretation is in the final analysis, a matter for the courts to determine.