Kansas Attorney General Opinion 1992-010

ROBERT T. STEPHAN
ATTORNEY GENERAL
January 21, 1992
ATTORNEY GENERAL OPINION NO. 92- 10
David C. VanParys
County Counselor
Courthouse
4th & Walnut
Leavenworth, Kansas 66048
Re: Counties and County Officers -- General Provisions
-- Home Rule Powers; Limitations; Ability to Opt
Out of State Administrative Regulation Regulating
Open Burning
Synopsis: Leavenworth county cannot opt out of the
regulation prohibiting open burning within 1,000
feet of an occupied dwelling or public roadway
through their home rule powers. Cited herein:
K.S.A. 1991 Supp. 19-101a; K.S.A. 65-3005;
65-3006, 65-3007, 65-3010; K.A.R. 28-19-47.
*
Dear Mr. VanParys:
As Leavenworth county counselor you request our opinion as
to whether Leavenworth county can, through the county's home
rule powers, opt out of the requirements set out in K.A.R.
28-19-47, and reduce the minimum distance requirement that
prohibits open burning within 1,000 feet of an occupied
dwelling.
The home rule powers of counties are set out in K.S.A. 1990
Supp. 19-101a. This ability to exercise home rule power is
limited by K.S.A. 1990 Supp. 19-101a(1) which states:

"[c]ounties shall be subject to all acts of the legislature
which apply uniformly to all counties."
"The rules and regulations of a public
administrative body, or officer usually
comprise those actions of such body or
officer in which the legislative element
predominates. They are the duly made
general rules relative to the subject on
which the administrative agency acts,
subordinate to the terms of the statute
under which they are promulgated, and in
aid of the enforcement of its provisions.
Indeed, an administrative regulation
promulgated under a statute is not a
'statute' but is at most an offspring of
the statute. . . . The promulgation of
rules by an agency constitutes an
administrative action, or administration
act." 73 C.J.S. Public Administrative Law
& Procedure § 87 (1983).
The court in Blevins v. Hiebert, 247 Kan. 1 (1990)
held that "home rule legislation is prohibited in a field of
law in which there is a state statute uniformly applicable to
all cities or counties. Home rule is applicable [ ] in the
area of regulation and prohibition, where local government
exercises its police power for the health, safety and general
welfare of the public."
The Blevins court went on to state that "an enabling act
is uniformly applicable to all cities or counties if it
authorizes all cities or counties to perform certain acts.
Such statutes are state law and preempt the field of their
application without the use of preemptive language unless
there are express exceptions in the statutes or unless the
statutes pertain to police power regulations." See
Blevins, 247 Kan. at 11.
The authorizing statutes for K.A.R. 28-19-47 are K.S.A.
65-3005, 65-3006, 65-3007, and 65-3010. These statutes speak
to the secretary's ability to enact regulations to control air
contamination. Therefore, an emission control regulation,
such as the one about which you request, is uniformly
applicable to all cities and counties and is of such a
state-wide impact that Leavenworth county is not allowed to
opt out of this regulation through their home rule authority.
Furthermore, these authorizing statutes apply uniformly to all

counties and therefor, a county could not opt out of these
statutes. Because these statutes give the agency the
authority to develop these rules and regulations, it is our
opinion that a county cannot opt out of a regulation if it
cannot opt out of the authorizing statute.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary Jane Stattelman
Assistant Attorney General
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