Can a Kentucky county pull out of a joint planning unit with its cities, and then plan on its own?
Plain-English summary
Back in 1970, Rowan County set up a joint planning unit with the City of Morehead, and later the City of Lake View Heights joined. The county started rethinking its membership and asked the Attorney General two things: can it pull out of the joint unit on its own, and if it does, can it then plan independently?
On the first question, the opinion said yes. Kentucky's statutes do not lay out a withdrawal procedure, but they imply one. KRS 100.127(2) says a planning agreement stays in existence "as long as at least two (2) of the original signators are operating under the combination despite the fact that other signators have withdrawn." A prior opinion, OAG 74-701, already concluded that a city or county may unilaterally withdraw at any time, subject to satisfying its contractual or financial obligations. The opinion reasoned that a county withdraws by the same process it would use to repeal any ordinance, after first settling its obligations.
There is a wrinkle specific to Rowan County. Because Rowan County and Morehead were the only two original signators (Lake View Heights joined later and was not an original signator), the county's withdrawal leaves fewer than two original signators, so the whole joint unit dissolves.
On the second question, the answer is a qualified no. A county that withdraws cannot immediately plan on its own. To form an independent planning unit, it must run the interrogation process in KRS 100.117: it asks every city in the county whether they want to form a joint unit, gives them 60 days to respond, and can plan independently only if every city answers in the negative. If even one city says yes, a new joint unit must form with that city. And if a city says yes but then refuses to adopt the agreement by ordinance, the opinion treats that as withdrawing its affirmation, which lets the county proceed independently because the interrogation was "unsuccessful."
What this means for you
County officials
Under this opinion, a county can unilaterally withdraw from a joint planning unit, generally by repealing the authorizing ordinance after satisfying its contractual and financial obligations. But it cannot plan independently until it runs the KRS 100.117 interrogation and every city in the county declines a joint unit.
City officials
The opinion says a city's answer to the county's interrogation matters: if any city wants a joint unit, a new joint unit forms with that city, and other cities that declined cannot then plan independently. A city that says yes but refuses to adopt the agreement by ordinance is treated as withdrawing its affirmation.
Planning commissions and land use planners
For planning bodies, the opinion confirms a joint unit dissolves when fewer than two of its original signators remain, and that forming a new independent unit is gated by the interrogation process rather than available at the county's sole discretion.
Common questions
Q: Can a Kentucky county leave a joint planning unit on its own?
A: Yes, according to this opinion. A county may unilaterally withdraw, generally by repealing the ordinance that created the unit, after satisfying its contractual or financial obligations.
Q: After withdrawing, can the county just start planning on its own?
A: Not immediately. The opinion says the county must first run the interrogation process under KRS 100.117, asking every city in the county whether they want a joint unit, and may plan independently only if every city responds in the negative.
Q: What happens to the old joint unit when the county leaves?
A: It depends on the original signators. Here, because the county and one city were the only two original signators, the opinion concluded the county's withdrawal leaves fewer than two and the joint unit dissolves.
Q: What if a city agrees to a joint unit but then will not sign the agreement?
A: The opinion treats a city's refusal to adopt the agreement by ordinance as withdrawing its earlier affirmation, which lets the county form its own independent planning unit because the interrogation was unsuccessful.
Background and statutory framework
Kentucky's planning statutes (KRS 100.113 to 100.131) let a planning unit consist of a city or county acting independently, a city and county jointly, or regional combinations. KRS 100.117 sets up an interrogation process: before forming an independent unit, a city (or, under KRS 100.117(2), a county) must ask the other political subdivisions whether they want a joint unit, with a 60-day response window, and the county's answer controls. KRS 100.121(1) lets a county and city form a joint unit "[a]t any time." KRS 100.127(1) requires the joint agreement to be adopted by ordinance, and KRS 100.127(2) provides that an agreement continues "as long as at least two (2) of the original signators" remain. The opinion read these provisions, together with OAG 74-701, OAG 77-748, and OAG 79-450, to allow unilateral county withdrawal but to condition any later independent planning on the interrogation process. It cited Ky. Unemployment Ins. Comm'n v. Wilson for the rule that effect must be given to every word, including the legislature's choice of "original signators."
Citations and references
Statutes:
- KRS 100.121; KRS 100.121(1) (joint planning units)
- KRS 100.117; KRS 100.117(1), (2) (interrogation process)
- KRS 100.113 (composition); KRS 100.123 (regional units)
- KRS 100.127(1) (ordinance adoption); KRS 100.127(2) (continuation; original signators)
Cases:
- Ky. Unemployment Ins. Comm'n v. Wilson, 528 S.W.3d 336 (Ky. 2017)
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2023-09.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 18, 2023
OAG 23-09
Subject: A county's withdrawal from a joint planning unit established under KRS 100.121.
Requested by: F. Keith Brown, Counsel for the Rowan County Fiscal Court
Written by: Marc Manley, Assistant Attorney General, Office of Civil and Environmental Law
Syllabus: A county may unilaterally withdraw from a joint planning unit established under KRS 100.121. However, a county may not thereafter establish an independent planning unit unless it first complies with the interrogation process established under KRS 100.117, each city in the county responds to that process, and each response is in the negative.
Opinion of the Attorney General
On or about November 5, 1970, Rowan County established a joint planning unit with the City of Morehead. Sometime thereafter, the joint planning unit added the City of Lake View Heights. Rowan County now says it may reconsider its future membership in the joint planning unit. Accordingly, the Rowan County Fiscal Court (Fiscal Court) asks whether it may unilaterally withdraw from the joint planning unit and, if so, how to accomplish the withdrawal. Rowan County also asks whether, after such withdrawal, it may form an independent planning unit under KRS 100.117 to facilitate the development of its unincorporated area.
The General Assembly established a framework for "joint planning units" to facilitate cooperative development of rural and urban areas. See KRS 100.113–100.131. Counties and cities are not compelled to establish joint planning units and may instead create an "independent planning unit" by complying with the procedures in KRS 100.117. But there is a preference against the formation of an independent planning unit under Kentucky law.
A planning unit "may consist of a city or county, acting independently," "cities and their county, jointly," "or groups of counties and their cities, regionally[.]" KRS 100.113. However, neither a county nor a city may establish an independent planning unit without first giving the other an opportunity to reject the establishment of a joint planning unit. See KRS 100.117. In contrast, a county and city may enter a joint planning agreement under KRS 100.121(1) "[a]t any time." Likewise, "[a]t any time, the legislative bodies of the cities and counties comprising two (2) or more adjacent planning units . . . may enter into an agreement to form a regional planning unit." KRS 100.123.
Thus, prior to forming an independent planning unit, a city must "interrogate" the county in which it is located, as well as every other city in the county, about whether to form a joint planning unit. KRS 100.117(1). "The political subdivisions which have been interrogated shall have sixty (60) days in which to answer in writing and the city may assume that the answer is negative if no response is received within the sixty (60) days." Id. Although the city must interrogate every other city in the county, it is the county's answer that controls the outcome. Specifically, "[i]f the county answers in the negative, then the city may engage in an independent planning operation." Id. However, "[i]f the county responds affirmatively, then a joint planning unit shall be established, and no city located in such county may form an independent planning unit." Id. A county may also initiate the process if it follows the same procedure as cities and "interrogate[s] every incorporated city within its boundaries." KRS 100.117(2). If a joint planning unit is created, the agreement "shall be in writing, and shall describe the boundaries of the area involved, and shall contain all details which are necessary for the establishment and administration of the planning unit in regard to planning commission organization, preparation of plans, and aids to plan implementation." KRS 100.127(1).
The General Assembly has not established a procedure for a county or city to withdraw from a joint planning unit. However, the General Assembly has implied that either may do so. For example, "[a]greements for planning units shall be in existence as long as at least two (2) of the original signators are operating under the combination despite the fact that other signators have withdrawn from the unit." KRS 100.127(2) (emphasis added). The Office has previously found "that either a city or the county may unilaterally withdraw from the agreement at any time, subject to the satisfaction of any contractual or financial obligations on the part of the withdrawing member." OAG 74-701 (citing KRS 100.127(2)). While the Office has not explained the steps necessary for "unilateral" withdrawal, it stands to reason that a county could generally do so by the same process required to repeal any other ordinance. [A joint planning unit is required to "be adopted as an ordinance by the legislative bodies which are parties to the agreement." KRS 100.127(1). At the time the Fiscal Court entered the joint agreement in 1970, KRS 100.127(1) stated "[a]pproval of the agreement shall be by regulation and the agreement shall be executed by the parties." 1966 Ky. Acts ch. 17 § 6. This does not change the Office's conclusion with respect to the procedure the Fiscal Court should follow, as the Office sees little distinction between the term "regulation" as used in 1966 and the term "ordinance" as it is used today.] Before engaging in such a process, the Fiscal Court must first satisfy all of its current contractual or financial obligations under the current agreement. OAG 74-701.
If the Fiscal Court satisfies those obligations and withdraws, then the current joint planning unit will automatically dissolve. That is because "[a]greements for planning units shall be in existence as long as at least two (2) of the original signators are operating under the combination despite the fact that other signators have withdrawn from the unit." KRS 100.127(2) (emphasis added). Here, Rowan County and the City of Morehead were allegedly the only two "original signators" to the agreement. While it is true the City of Lakeview Heights joined the agreement later, it was not an "original signator." KRS 100.127(2) distinguishes between "original signators" in the first sentence, while in the next sentence providing a relaxed procedure for the "enlargement of a unit" with new members, which is accomplished "by filing a copy of the agreement in the office of the county clerk of all member counties along with a statement as to when [the new member] was admitted to the unit." Id.
Although a member to a joint planning unit may unilaterally withdraw from the agreement by repealing its original ordinance incorporating the agreement, it may not thereafter form an independent planning unit without first complying with the "required procedure" under KRS 100.117. In other words, a county may unilaterally withdraw from a joint planning unit, but it may not unilaterally form an independent planning unit. It must first give the cities in its territory the option to refuse membership in a new joint planning unit with the county. KRS 100.117(2); see also OAG 77-748 ("once the county withdraws, it cannot plan independently unless it goes through the interrogation procedure initially provided for the establishment of an independent planning unit pursuant to KRS 100.117"); OAG 74-701 (same). [These facts, therefore, distinguish the present situation from those in OAG 77-748 and OAG 79-450, where the original joint planning agreement from which the county withdrew involved multiple cities that were "original signators." The Office is not at liberty to ignore words in a statute, and the General Assembly intentionally included the phrase "original signators," not just "signators," even though the next sentence of KRS 100.127(2) recognizes a different procedure for adding new members to the agreement. Cf. Ky. Unemployment Ins. Comm'n v. Wilson, 528 S.W.3d 336, 340 (Ky. 2017) ("A fundamental rule of statutory construction commands that effect must be given, if possible, to every word, clause, and sentence of a statute" (quotation omitted)). Thus, while a joint planning unit originally comprised of a county and multiple cities can survive a county's withdrawal, a joint planning unit originally comprised of only one city and the county cannot survive the withdrawal of the county despite the addition of new cities to the agreement prior to the county's withdrawal.]
The Fiscal Court asks about its options following a new interrogation process. Under the plain language of KRS 100.117, if every city in Rowan County answers the Fiscal Court's interrogatory in the negative, then the Fiscal Court may thereafter form an independent planning unit. But if at least one city answers affirmatively, then a new joint planning unit must be established with that city. See KRS 100.117(1). And once the new joint planning unit is formed with the county and at least one city, any city that answered the county's interrogatory in the negative is precluded from forming its own independent planning unit. KRS 100.121(1).
Finally, the Fiscal Court asks if it is compelled to form a joint planning unit if it receives an affirmative response from a city but the city and county thereafter cannot agree to the terms of the new joint planning unit agreement. Because the agreement must be adopted by ordinance in each political subdivision, KRS 100.127(2), a city's failure to adopt such an ordinance would, in effect, constitute the withdrawal of its previous affirmation. After all, if a city or county can unilaterally withdraw from an existing agreement, it certainly could unilaterally withdraw its affirmation to negotiate the formation of a new joint planning unit. Thereafter, the county could form its own independent planning unit because the interrogation process under KRS 100.117 will have been "unsuccessful."
Daniel Cameron
Attorney General
Marc Manley
Assistant Attorney General