BEA STRINGER ; STEPHEN ROYSE ; AND TROY NEIGHBORHOOD ASSOCIATION V. REALTY UNLIMITED, INC . ; AND VERSAILLES-MIDWAY-WOODFORD COUNTY PLANNING AND ZONING COMMISSION
Annotate this Case
Download PDF
AS MODIFIED : FEBRUARY 20, 2003
RENDERED: SEPTEMBER 26, 2002
TO BE PUBLISHED
BEA STRINGER; STEPHEN ROYSE;
AND TROY NEIGHBORHOOD ASSOCIATION
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1396
WOODFORD CIRCUIT COURT NO . 96-CI-145
REALTY UNLIMITED, INC. ; AND
VERSAILLES-MIDWAY-WOODFORD COUNTY
PLANNING AND ZONING COMMISSION
APPELANTS
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING
Appellee Realty Unlimited, Inc., desires to subdivide a 3.5 acre tract of land in
Woodford County, Kentucky, into six single-family residential lots, each to contain
slightly over one-half acre . Realty Unlimited submitted a preliminary plat and an
application for approval of the subdivision to the Versa illes-Midway-Woodford County
Planning and Zoning Commission . Section 503.4 of the Woodford County Zoning
Ordinance provides, inter alia, as follows:
Wherever water or sewer mains are accessible . . . buildings and mobile
homes shall be connected to such mains. In every other case, individual
water supply and sewage disposal must meet the requirements set by the
County Health Officer.
In addition to the County Health Officer's requirements, the following shall
apply :
F.
No Subdivisions Involving Three Lots or More will be on Septic
Tanks : In keeping with the intent of this section, more than three
lots draining into the same general area utilizing septic tank
disposal may not be permitted . The Planning Commission shall
determine what constitutes "the general area" based upon the
soils, the topography, slope and drainage . (Emphasis added .)'
Since sewer mains are not accessible to the proposed subdivision, each lot
would use a septic system for sewage disposal . Having determined that septic
discharge from all six lots would drain into the same general area, the Commission
concluded that section 503.417 permits only three residential units in the proposed
subdivision and disapproved the application . Realty Unlimited filed suit against the
Commission in the Woodford Circuit Court asserting that (1) regulation of sewage
disposal is solely within the province of state government and (2) section 503 .417
violates Section 2 of the Constitution of Kentucky by authorizing the Commission to
exercise discretionary authority whereas approval of a subdivision plat is a ministerial
act . Snyder v. Owensboro , Ky., 528 S .W.2d 663, 664 (1975). Appellants Stringer,
Royse and Troy Neighborhood Association intervened as parties defendant. CR 24 .01 .
The Woodford Circuit Court rejected both of Appellee's arguments and affirmed
'We note that section 503.417 was amended in November of 2000 . It currently
provides :
Any applicant for a subdivision utilizing on-site sewage disposal systems
shall obtain certification from the Woodford County Health Department
that a site evaluation for each lot has been completed in accordance with
Kentucky Onsite Sewage Disposal Systems regulations and that the lot
can support a sewage disposal system that can be installed and used
safely and efficiently for wastewater treatment . (Amended November
2000)
the Commission's disapproval of the preliminary plat. The Court of Appeals held with
respect to the preemption issue that KRS 67.083(3)(r) and (6)(b) authorize county
governments to enact ordinances that impose sewage disposal restrictions more
stringent than those imposed by state regulation . However, with respect to the
constitutional issue, the Court of Appeals held that use of the word "may" in section
503AF gave the Commission discretionary power with respect to approval or
disapproval of subdivision plats, thus rendering the provision unconstitutional under
Section 2 of our Constitution, citing Colyer v. City of Somerset, 306 Ky. 797, 208
S.W.2d 976, 978 (1947) ("[A]n ordinance which lays down no requirements to be
followed and no general and uniform rule is invalid because it leaves the granting of
such a thing as a building permit to the sometimes arbitrary discretion of municipal
authorities ."). We granted discretionary review and now reverse .
We have no quarrel with the Court of Appeals' conclusion that "'may' . . .
ordinarily imports permission or liberty to act ." Ocean Accident & Guar. Corp. v .
Milward Bank, 236 Ky. 457, 33 S .W.2d 312, 313 (1930) .
But where other words are used in connection with "shall," "must," "may"
or "might," which clearly indicate mandatory or directory construction, as
the case may be, we have never ignored the force of the descriptive or
qualifying language.
Clark v Riehl , 313 Ky. 142, 230 S.W.2d 626, 627 (1950) . In fact, KRS 446 .010, which
provides in subsection (20) that "[m]ay is permissive," contains the preceding disclaimer
"unless the context requires otherwise ." Section 503AF does not say simply "may," but
"may not." Courts that have construed legislative use of the phrase "may not" have
consistently held that the phrase is mandatory and not permissive or discretionary .
Haviland v. Warner Bros. Pictures Inc., 153 P .2d 983, 986 (Cal . Ct. App. 1944) (the
De
words "may not" are mandatory) ; Ryan v. Montgomery, 240 N .W.2d 236, 238 (Mich .
1976) ("may not be recounted" means "shall not be recounted") ; In re Denial of
Application for Issuance of One Original (New) On-Premises Consumption Beer/Wine
License , 883 P.2d 833, 836 (Mont. 1994) (the phrase "may not consider" precludes
consideration) ; Hodges v. Thompson , 932 S .W.2d 717, 720 (Tex. App . 1996) ("'may
not' means 'shall not' and is therefore mandatory ."). And in holding that "'may not' is
clearly not permissive in nature," a panel of the Court of Appeals of Washington
cogently noted that "[h]ad the Legislature intended such, it could have simply omitted
the word 'not."' State v. Gettman , 782 P .2d 216, 218 (Wash . Ct. App. 1989) . We
agree . The phrase "may not be permitted" in section 503AF of the Woodford County
Zoning Ordinance affords the Commission no discretion to permit more than three lots
with septic tanks draining into the same general area . Thus, use of the word "may" in
that context does not implicate Section 2 of our Constitution.
Nor do we agree that the phrase, "draining into the same general area," in
section 503AF invites arbitrariness by failing to provide sufficiently specific standards
on which to base a decision . Snyder, supra, at 664. In fact, the last sentence of
section 503AF specifies that the Commission "shall determine what constitutes 'the
general area' based upon the soils, the topography, slope and drainage ." We deem
those standards sufficient to withstand Section 2 analysis .
Appellee continues to argue here that fiscal courts have no authority to enact
ordinances regulating sewage disposal . The Court of Appeals disagreed and no cross
motion for discretionary review was filed . Further review of this issue is, therefore,
precluded . CR 76.21 ; Commonwealth Department of Highways v. Taub, Ky., 766
S .W .2d 49, 51-52 (1988).
Accordingly, the decision of the Court of Appeals is reversed and the order and
judgment of the Woodford Circuit Court is reinstated.
All concur.
COUNSEL FOR APPELLANTS:
W. Henry Graddy
W . H . Graddy & Associates
103 Railroad Street
P .O . Box 4307
Midway, KY 40347
COUNSEL FOR APPELLEE REALTY UNLIMITED, INC. :
Richard V. Murphy
Lexington Financial Center
Suite 3010
250 W. Main Street
Lexington, KY 40507-5641
COUNSEL FOR APPELLEE VERSAILLES-MIDWAY-WOODFORD COUNTY
PLANNING AND ZONING COMMISSION :
Timothy C . Butler
Suite 110
120 West Stephen Foster Avenue
Bardstown, KY 40004
,Sttpsems (gaurf of ~mfurkg
2000-SC-1055-DG
BEA STRINGER; STEPHEN ROYSE;
AND TROY NEIGHBORHOOD ASSOCIATION
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1396
WOODFORD CIRCUIT COURT NO . 96-CI-145
V.
REALTY UNLIMITED, INC. ; AND
VERSAILLES-MIDWAY-WOODFORD COUNTY
PLANNING AND ZONING COMMISSION
APPELANTS
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The Court having considered the Petition for Rehearing filed by the Appellee,
Realty Unlimited, Inc., hereby denies said Petition and, on its own motion, corrects a
typographical error appearing on page 1 of Justice Cooper's Opinion . Further, on the
Court's own motion, we modify the Opinion by addition of a footnote on page 2 of the
Opinion . This modification does not affect the holding of the Opinion but does affect
pagination and, thus, we withdraw pages 1, 2, 3, 4, and 5 and substitute pages 1
through 6.
All concur.
ENTERED :
February 20, 2003.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.