Request By:
Wayne Waddell, Esq.
Corporate Counsel
Lexington Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of August 13, 1992 you asked, in substance, what effect newly enacted statutory language banning political subdivisions from enacting, or continuing in force, any ordinance regarding agriculture and silviculture pesticide sale or use might have on a proposed Urban County lawn chemical ordinance.
In our view, newly enacted statutory language, now codified as KRS 217B.270, bans a locality from enacting, or continuing in force, an ordinance regarding the sale or use of pesticides on agricultural or silvicultural lands, but does not prevent a local ordinance regarding sale or use of pesticides on "lawns. " However, an ordinance on such subject is outside the ordinance power of an urban county government, since a comprehensive legislative scheme concerning lawn pesticide applications is already embodied in a general statute. KRS 67A.070(1), 67A.070(2)(b), and KRS 217B.300. Discussion follows.
The 1992 regular session of the General Assembly passed Senate Bill 310 (Acts, ch. 303), now codified as KRS 217B.270 (copy enclosed). Subsections (1) and (2) of that section provide, respectively:
(1) The Commonwealth of Kentucky hereby determines that the citizens of the state benefit from a system of safe, effective, and scientifically sound pesticide regulation on agricultural and silvicultural land. The Commonwealth further finds that a system of pesticide regulation which is consistent, coordinated, and comports with both federal and state technical expertise is essential to the public health, safety, and welfare, and that local regulation of pesticides does not materially assist in achieving these benefits.
(2) No city, town, county, or other political subdivision of the Commonwealth shall adopt or continue in effect any ordinance, resolution, rule or regulation regarding agriculture and silviculture pesticide sale or use, including without limitation: registration, distribution, applicator training and certification, storage, transportation, disposal, disclosure of confidential information, or product composition.
(Emphasis added.)
The plain words emphasized above indicate that the provisions of KRS 217B.270 address pesticide use in connection with agricultural or silvicultural (forest) lands, which, of course, are different from "lawns. " Accordingly, we believe an ordinance related to the application of pesticides on "lawns, " would not be banned by KRS 217B.270, unless the ordinance would be applied to agricultural or forest lands.
While we find that KRS 217B.270, regarding agricultural and silvicultural pesticides, does not limit a local unit of government in regulating pesticide use in connection with "lawns, " KRS 67A.070(1), and KRS 67A.070(2)(b), coupled with KRS 217B.300, do ban an urban county government's ordinance on such subject.
KRS 67A.070(1) authorizes urban county governments to enact ordinances not in conflict with the general statutes of this state. KRS 67A.070(2)(b) provides that urban county ordinances are deemed to conflict with the general statutes of this state when there is a comprehensive scheme of legislation on the same subject.
The proposed ordinance you have asked about appears to involve the same subject - lawn care chemical applications - addressed by a comprehensive scheme of legislation in KRS 217B.300, a general statute.
Despite the specific finding contained in the proposed ordinance that it is not inconsistent with state law, it nonetheless appears to be. The same subject addressed in the proposed ordinance - lawn care pesticides and their application to lawns - is addressed by a comprehensive legislative scheme regarding that same subject embodied in a general statute. It follows that the proposed ordinance you have asked about is outside the legislative authority of the urban county government. KRS 67A.070(1), KRS 67A.070(2)(b).