Kesselring v. Wakefield Realty Co.
Kesselring v. Wakefield Realty Co.
Opinion of the Court
Reversing.
The appeal is from a judgment declaring void Section 13 of the subdivision control regulations and restrictions for unincorporated areas in Jefferson County adopted by the Louisville, Jefferson County Planning and Zoning Commission.
Section 13 reads: “A fee of 1% percent of estimated cost of the physical improvements to the subdivision shall be posted by the subdivider prior to the beginning of constructions to cover the cost of inspections, investigations and checking period. This fee shall be posted with the proper parties as directed by the Louisville, Jefferson County Planning and Zoning Commission.”
Being of the opinion that Section 13 of the regulations imposes a tax, the chancellor declared it to be in contravention of Section 28 of the Constitution which provides: “No person or collection of persons, being of one of those departments (legislative, executive, and judicial), shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted. ’ ’
This section of the Constitution has been construed in many cases arising under various circumstances and conditions. One of the latest is Henry v. Parrish, 307 Ky. 559, 211 S. W. 2d 418. In concise and succinct language, the opinion in that case almost completely covers the law in respect to the question involved. Therein, attention is called to the fact that Section 28 of our Constitution forbids the delegation of legislative power to
The opinion then concluded that the Board of Health, in adopting a schedule of fees for the inspection of food handling establishments in Louisville and Jefferson County, created a liability on the owners of such establishments which was not sanctioned by legislative authority. . In other words, the General Assembly, by legislative enactment, had not provided for a fee to be fixed by the Board of Health in the exercise of an administrative discretion.
We are not met with that difficulty in this case. The Act creating and defining the duties of County Planning and Zoning Commissions, Chapter 100 of KRS, provides for the issuance of zoning permits and certificates of occupancy and authorizes the commission to “fix a reasonable schedule of fees for the issuance of such permits and certificates.” KRS 100.074.
Appellee takes the position that the provision in respect to the schedule of fees relates only to permits or certificates of occupancy specially referred to in the next following section, KRS 100.075, and that no permit is required to create a subdivision. We cannot give the statute so narrow a construction. The section containing the provision as to the schedule of fees also contains authority for the appointment and compensation of officials of the Board. Undoubtedly their duties also relate to the planning of subdivisions. KRS 100.087 et seq. relate to the control and regulation of subdivisions as a part of the comprehensive plan of planning and zoning. No subdivision plan or plat can become effective until and unless it shall be approved by the Commission.
Thus, by legislative enactment, the General Assembly has determined that a reasonable fee shall be charged to cover such expenditures, and no doubt conceiving the commission to be in better position to determine the schedule of such fees, the Legislature has left that determination to the discretion of the administrative agency. We do not perceive this to be a delegation of legislative power; on the contrary, we consider it to be the authorization to an administrative body to exercise its discretion within reasonable bounds that it may better administer the law pronounced by the Legisla
The judgment is reversed with directions that another be entered in conformity with this opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.