Request By:
Mr. Dennis A. Gordon
Director
Hardin County Planning and Development Commission
Courthouse/Public Square
Elizabethtown, Kentucky 42701
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As the Director of the Hardin County Planning and Development Commission, you raise the question as to whether the Hardin Fiscal Court has the authority to impose by ordinance fines or penalties for violations of county zoning ordinances.
Pursuant to KRS 100.331, fiscal courts are granted all the legislative powers granted to all cities for purposes of adopting regulations and legislation proposed under KRS Chapter 100. The ultimate power of zoning is vested in city and county legislative bodies. See KRS 100.201, 100.203, and 100.207. The zoning function must be exercised, if at all, by the legislative bodies of the city and county independently within their respective territorial jurisdictions. The right of the state to delegate the power of zoning to various cities and counties emanates from the elusive power of the state called "police power." That power was defined by the
United States Court of Appeals in Sinclair Refining Co. v. City of Chicago, 7 Cir., 178 F.2d 214, 216, as being that power, within constitutional limitations, to promote and protect the public health, safety, morals, comfort and general welfare of the people. See
Mathis v. Hannan, Ky., 306 S.W.2d 278 (1957) 279.
KRS 100.991 is the state penalties section:
"(1) Any person or entity who violates any of the provisions of KRS 100.201 to 100.347 or any of the regulations adopted pursuant hereunder for which no other penalty is provided, shall upon conviction be fined not less than ten (10) but not more than five hundred dollars ($500) for each conviction. Each day of violation shall constitute a separate offense.
"(2) Any person, owner or agent who violates this chapter shall, upon conviction, be fined not less than one hundred (100) nor more than five hundred dollars ($500) for each lot or parcel which was the subject of sale or transfer, or a contract for sale or transfer."
It has been written that "A zoning ordinance does not make any particular activity illegal per se, but merely makes it illegal for an individual to use his land in the manner proscribed." 101A C.J.S., Zoning & Land Planning, § 355, p. 1037. Thus the general rule throughout the nation is that any offenses or punishments arising in connection with zoning ordinances must either be covered by state statutes or by city or county ordinances directed specifically to that subject. In
State v. Laurel Mills Sewerage Corp., 46 N.J. Super. 331, 134 A.2d 720 (1957), the Superior Court of New Jersey recognized that to the extent authorized by the legislature, a municipality may enact ordinances and provide against their violation by penalties. The court said that municipalities are agencies of government for the local administration of the legislative intention and policy. The amount or limitation of a penalty imposed by an ordinance must comply with the statutory authority. Where the legislature has directed the manner in which ordinances are to be enforced or the penalty to be imposed for their violation, it thereby negates the right of the municipality to provide for any other penalty. Thus the New Jersey Court struck down the penalty provided in the local ordinance, since it was greater than was permitted by statute.
The Court of Criminal Appeals of Oklahoma, in Elias v. City of Tulsa, Okl. Cr., 364 P.2d 678 (1961) 680, held that the legislature, in enacting a zoning penalty statute, providing a misdemeanor for local zoning violations, did not give the city authority to enforce zoning regulations enacted by criminal process. The court explained its ruling as follows:
"Unquestionably a municipality in Oklahoma can exercise only such authority as might be vested in it under our Federal and State Constitutions and the Laws enacted by our Legislature. In enacting the County Planning and Zoning Act the legislature saw fit to include a section relating to criminal prosecutions stating that 'a violation of this Act or of any order or regulation adopted under authority of this Act shall be deemed a misdemeanor and shall be punishable by fine or by imprisonment or both, as now provided by law for misdemeanors. ' 19 O.S. (1959) § 863.28. The City of Tulsa maintains that this section carries with it by necessary implication the authority to enforce the zoning regulations enacted by it by criminal process.
"With this argument we cannot agree. As a general rule when it is necessary to carry into effect the delegated authority of the Legislature this Court will carefully examine the legislative enactment and will liberally construe it in order to give force and effect to the obvious legislative intent. When, however, it clearly appears that the legislature has adequately created both civil and criminal remedies to enforce the planning rules, regulations and orders, this Court will carefully examine the legislative enactment and if there is no express delegation of authority to enact remedial ordinances we will not infer such authority. Every citizen's liberty is expressly guarded by our Constitution and we will not permit that right to be swept away by implication."
Where a city by local enactment exceeds the state law, the state law will prevail. See
People v. Bonnerwith, 69 Misc.2d 516, 330 N.Y.S.2d 248 (1972).
A basic consideration here is whether the Kentucky state penalties statute preempts the field, so as to preclude the right of county governments to legislate criminal penalties for violations of county ordinances. See
Town of Fenton v. Tedino, 356 N.Y.S.2d 397 (1974).
Since KRS 100.331 vests in fiscal courts all legislative powers granted to cities for purposes of adopting regulations and ordinances proposed under KRS Chapter 100, the case of
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), is critical. The court held that the delegation of governmental powers to counties must be done with the precision of a rifle shot and not with the casualness of a shotgun blast. The court wrote that thoughtful, purposeful and deliberate delegation of a known power is required of the
General Assembly. The Supreme Court, in Stansbury v. Maupin, Ky., 599 S.W.2d 170 (1980), merely held that a home rule city statute did not confer upon Louisville the subpoena power, citing Fiscal Court v. City of Louisville, above. Thus that city home rule statute is in limbo. In
City of Bowling Green v. T & E Elec. Contr., Ky., 602 S.W.2d 434 (1980), the Supreme Court of Kentucky adopted the old Dillon's Rule, to the effect that a city possesses only those powers expressly granted by the Constitution and statutes plus such powers as are necessarily implied or incident to the expressly granted powers and which are indispensable to enable it to carry out its declared objects, purposes and expressed powers.
KRS 82.082 is the general home rule statute for cities. It provides generally that a city may exercise any power within its boundaries that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. Subsection (2) provides as follows:
"(2) A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of KRS Chapters 95 and 96."
The case of
Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970), holds that where the state has occupied the field of prohibitory legislation on a particular subject, a municipality lacks authority to legislate with respect thereto. The court wrote this at page 267:
"It would appear the General Assembly has preempted the field of Sunday closing by the enactment of KRS 436.160. The subject matter was fully and completely covered by this general law which expressed a statewide public policy and by its terms indicated a paramount state concern not requiring or contemplating local action. "
In
Com. v. Do, Inc., Ky., 674 S.W.2d 519 (1984), the Supreme Court of Kentucky was faced with the issue as to whether the entry of the state into the field of lead-poisoning prevention pursuant to KRS 211.900 et seq., preempts local regulations and enforcement. The court, in holding the preemption doctrine did not apply, cited statutes giving a county board of health authority to promulgate rules and regulations concerning public health. The court wrote this about a test for preemption at page 521:
"In Boyle, supra, this Court established a test for preemption similar to that set out in In re Hubbard, 62 Cal.2d in In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809 (1964).
"(1) The subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality. 41 Cal.Rptr. at 399, 396 P.2d at 815."
Courts have pointed out that municipal regulation is not precluded simply because the legislature has taken some action in reference to the same subject.
Firemen's Ins. Co. of Washington, D.C. v. Washington, (U.S.C.A. D. Columbia Cir., 1973) 483 F.2d 1323, 1328-1329.
CONCLUSIONS
It is our opinion, under the guidelines of Boyle v. Campbell, that the rather broad penalty provisions of KRS 100.991, as relates to zoning and regulations or ordinances adopted pursuant to KRS Chapter 100, were designed to preempt the field of zoning law criminal penalties. The statute uses the term "for which no other penalty is provided." That obviously refers to some other statute. We are not aware of any other applicable statutes on the subject covered in KRS 100.991(1). Since the statute provides for fines only, they involve "violations", which is defined by KRS 500.080(17) as an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed. Under KRS 431.060, criminal offenses are either felonies, misdemeanors, or violations. All fines imposed by KRS 100.991 shall inure to and vest in the Commonwealth. KRS 431.100. We are not aware of any statute expressly giving a fiscal court the authority to legislate criminal penalties for violations of county ordinances. Since cities and counties are creatures of the legislature, the rule is that they may govern their own affairs so long as they do not go beyond legislative and constitutional authority.
Murphy v. City of Lake Louisvilla, Ky., 303 S.W.2d 307 (1957) 309. Any fiscal court may enact ordinances, "except as otherwise provided by statute or the Kentucky Constitution", relating to planning, zoning and subdivision control according to the provisions of KRS Chapter 100. KRS 67.083(3)(k). KRS 67.083(7) provides that county ordinances which prescribe penalties for their violation shall be enforced throughout the entire area of a county "unless otherwise provided by statute." (Emphasis added). Subsection (7) is not viewed as a carte blanche grant of power to impose fines by ordinance for violations of ordinances. It cannot, at the most, override the doctrine of preemption. In addition, the preemptive statute, KRS 100.991, is a specific statute relating to zoning. A specific statute controls a more general statute.
Heady v. Com., Ky., 597 S.W.2d 613 (1980) 614. Subsection (7) applies where a county government is otherwise authorized to prescribe penalties for violations of county ordinances and the exercise of the power is not in conflict with a statute or a city has not adopted an ordinance pertaining to the same subject, etc. However, the exception of KRS 67.083(3) (fiscal court has powers, except where otherwise provided by statute or the Kentucky Constitution) sustains the preemptive nature of KRS 100.991. See
City of Radcliff v. Hardin County, Ky.App., 607 S.W.2d 132 (1980) 135. The appellate courts down through the years have adhered to a rather strict course in holding that a county, and a city as well, as a subordinate political subdivision of the state and as a part of the sovereignty itself, exists and operates under the general laws of the Commonwealth, and derives all of its powers of functioning through express legislative enactments. Explicit powers necessarily include implicit powers reasonably incidental and indispensable to their proper exercise and to accomplish the purpose of the creation and existence of the body to whom granted and the object to be attained or achieved.
Edwards v. Logan County, 244 Ky. 296, 50 S.W.2d 83 (1932) 85. Some forty-five years later, the
Supreme Court of Kentucky, in Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), interpreted the Home Rule statute for counties, KRS 67.083. That statute, at the time, provided in effect that the General Assembly had expressly granted and delegated to the fiscal court all the authority that is within the power of the General Assembly to grant to the fiscal courts of the counties. The court rejected the "overly broad delegation of powers of the General Assembly" to fiscal courts, by saying that such legislative grants of powers to the counties must be effected with the precision of a rifle shot. The heavy hand of the court centered around a lack of specificity of enumerated delegated powers. KRS 67.083 has been since amended to delegate more specifically certain enumerated powers. See
City of Bowling Green v. T & E Elec. Contr., Ky., 602 S.W.2d 434 (1980), in which the Supreme Court of Kentucky reasserted the ancient Dillon's rule.
The appellate courts have not yet fully dealt with the implications of the city home rule statute, KRS 82.082. As it stands, we can see no substantial difference between counties and cities in applying Dillon's Rule.
It is our opinion that KRS 100.991, as measured against the rule of preemption as expressed in Boyle, and other cases, is preemptive in nature and intent. Thus the Hardin Fiscal Court does not have the authority to impose by ordinances fines for violations of county ordinances.