Summary of a Recent
Judicial Development in
Urban Encroachment

Ordinance Reasonably Related
to a County's Police Powers

John D. Mead
National AgLaw Center Graduate Assistant

The Kentucky Court of Appeals has held that a county ordinance that set forth restrictions with respect to the construction and operation of poultry facilities was properly enacted under the police powers granted to the county under Kentucky law. Upchurch v. Cumberland Co. Fiscal Ct., No. 2000-CA-002607-MR, 2003 WL 253171 (Ky. Ct. App. Jan 31, 2003). The action was brought by poultry farmers who purchased land for the purpose of constructing a new poultry facility prior to the county's enactment of the ordinance at issue. See id. at *1.

James and Betty Upchurch purchased property in Cumberland County for the purpose of building and operating a poultry facility. See id. After they purchased the property, the Cumberland County Fiscal Court enacted Ordinance No. 199899-03, which established restrictions on the construction and operation of poultry facilities in Cumberland County. See id. The ordinance effectively prohibited the Upchurches from constructing a poultry operation on their property. See id. More specifically, the ordinance required that a permit must be obtained prior to constructing and operating a poultry facility involving 500 or more chickens in Cumberland County. See id. at *4. It also required that such an operation, including the litter storage facilities, had to be located in an agricultural zone on a tract of at least fifteen acres and at a distance greater than 2,500 feet from, inter alia, dwellings, public schools, lakes, rivers, and roadways. See id. at *1.

The Upchurches filed an action against the Cumberland County Fiscal Court ("County Court") challenging the validity of the ordinance. See id. The County Court determined that the ordinance was properly enacted pursuant to the police powers granted to Kentucky counties under Ky. Rev. Stat. Ann. § 67.083. See id. They appealed the matter to the Kentucky Court of Appeals "challenging the validity of the ordinance, arguing, in essence that such regulation can be carried out only by a properly enacted Planning and Zoning Ordinance." Id. The court of appeals rejected the Upchurches' argument and ruled in favor of the County Court. See id.

The County Court argued that the ordinance was not an attempt to enact a planning and zoning regulation. Rather, it contended that the ordinance was a permissible exercise of its police powers listed in Ky. Rev. Stat. Ann. § 67.083(3), a Home Rule Statute that vested the County Court with the power to protect the health and welfare of its citizens. See id. It also asserted that the health and welfare of a community is the special concern of the local units of government and that there could be no question that the Kentucky Legislature had the inherent power to invest local governmental units with ample authority to promote the common welfare of their communities. See id.

The appeals court noted that the keeping of poultry was not a nuisance per se, "but [could] become a nuisance because of the circumstances or manner in which the business [was] operated." Id. at *2. (emphasis supplied). It also noted that local governmental units have broad discretion to enact laws that preserve and promote the health, security, and general welfare of its citizens, provided that such ordinances were substantially related to a legitimate objective in the suppression of the conditions that the authorities deemed to be detrimental to the public good. See id.

The County Court argued that the purpose of the ordinance was to regulate poultry facilities that had been recognized to pose certain health and environmental risks when operated improperly and without regard to surrounding property owners. See id. at *3. It also argued that the ordinance did not designate any specific area for the use or non-use of a chicken facility, rather it simply provided that an owner of such a facility must comply with the specified conditions in the ordinance. See id.

The Upchurches argued that the ordinance was invalid because it was not a properly enacted planning and zoning scheme created pursuant to Ky. Rev. Stat. Ann. Chapter 100, and, therefore, the County Court was unable to regulate such an operation. See id. at *2. The Upchurches claimed that counties were authorized by Ky. Rev. Stat. Ann. § 100.203 to create and implement comprehensive plans and zoning ordinances. See id. at *4. Before any zoning ordinances could be enacted, a county must have established a planning unit or commission and follow the statutory scheme set forth in Chapter 100. See id. The Upchurches contended that the County Court did not have such a planning commission, so the ordinance was not properly enacted and was therefore invalid. See id. at *2.

The appeals court rejected this argument and held that planning and zoning had nothing to do with the ordinance implemented by the County Court because the ordinance was valid as having been enacted under the police powers granted by Ky. Rev. Stat. Ann. § 67.083(3). See id. The court noted that the Home Rule Statute granted, in pertinent part, the authority for the County Court to restrict the following activities:

(a) Control of animals, and abatement of public nuisances;
. . .
(c) Public sanitation and vector control;
. . .
(h) Conservation, preservation and enhancement of natural resources including soils, water, air, vegetation, and wildlife; and
. . .
(m) Regulation of commerce for the protection and convenience of the public[.]

Id.

The appeals court distinguished zoning from the present case, stating that zoning was the territorial division of land into use districts based on the character of the land and buildings. See id. at *3. The court noted that the ordinance did not prohibit poultry confinement facilities, but rather restricted such operations in the event that the property owner did not take the proper precautions to comply with the health and welfare standards contained in the ordinance. See id.

The appeals court stated that the Cumberland County ordinance did not prohibit poultry confinement facilities and that the requirements imposed by it were reasonably related to the County Court's specified police powers. See id. at *3-4. Therefore, the court held that the ordinance was valid. See id. at *3.

The dissent noted that the County Court should have been allowed to regulate operations such as the poultry operation at issue in this case. Id. at *6. It also stated, however, that the regulations adopted by the County Court contravened the Kentucky Agricultural Supremacy Clause and the Kentucky Right to Farm Act. See id. The dissent asserted that the Kentucky Legislature should revise Ky. Rev. Stat. Ann. § 413.072(3), essentially the state's Right to Farm Statute, so that counties would be allowed to regulate operations like the one at issue in this case. See id.

Author's Note: As of the date of this publication, the following language precedes the text of the above-summarize decision: THIS OPINION IS NOT FINAL AND SHALL NOT BE CITED AS AUTHORITY IN ANY COURTS OF THE COMMONWEALTH OF KENTUCKY.

The case was decided on January 31, 2003; this summary was posted April, 2003