Request By:
Honorable Jack M. Smith, Jr.
Attorney at Law
219 South Fourth Street
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 20 in which you, as attorney for the Danville-Boyle County Planning and Zoning Commission, request an opinion concerning the following:
"1. Section 430 of the Boyle County Zoning Ordinance defines commercial districts and the permitted uses within commercial districts. A copy of said section is enclosed herein for your reference. You will note that Section 431 (D) allows apartment buildings as permitted uses in C-1 districts and that 431 (C) allows planned development projects as permitted uses in C-1 districts. An owner of property presently zoned commercial has requested a building permit for a building or buildings which meets parking, etc., specifications and the Commission desires to know if they can require him to proceed as a planned development project. A copy of the Ordinance pertaining to planned development projects, Section 232, is also enclosed herein for your reference.
"As the Commission's attorney, I have advised the Commission that both planning development projects and apartment buildings are separate permitted uses and that the option was left with the property owner as to how he wishes to proceed by the terms of the Ordinance. The Commission desires your opinion on this question.
"2. In 1972, the Danville-Boyle County Zoning Commission considered a request from a property owner to re-zone a tract from agriculture to commercial. The minutes reflect that the Commission had no objections but that the property owner was to work out water problems (presumeably) with the State Department of Highways. The minutes reflect no further action. However, the individual referred to above operated a commercial business on the premises for a number of years thereafter.
"In 1975, the Commission presented to the Boyle County Fiscal Court a new zoning atlas on its own initiative which atlas zoned the property above stated commercial.
"As attorney for the Commission, I have advised them that the property is presently zoned commercial because of the passage of the new zoning atlas in 1975. The Commission would like your opinion on this question.
"If your answer to question #1 above is that a planned development project cannot be required and your answer to question #2 is that the property is currently zoned commercial then I pose this third question:
"3. When a building permit is requested for a permitted use in the commercial district above, which meets proper parking and set back requirements, is it not required that the Enforcement Officer issue the permit?"
In response to your initial question, we agree that planned development projects and apartment buildings are separate permitted uses under the ordinance you have enclosed; however, we believe that the owner of the property in question must obtain a building permit in order to proceed with his proposed project. This, in spite of the fact that his proposal may be in harmony with the zoning regulation. Referring to Chapter 100 KRS governing planning and zoning, you will note pursuant to KRS 100.271 that an administrative official must be designated by the city and county to administer zoning regulations and he may be designated to issue building permits and certificates of occupancy in accordance with the terms of the zoning regulations. Also, KRS 100.267 authorizes the issuance of a restraining order if no building permit has been issued and a builder begins to build without such a permit. Next referring to McQuillin, Mun. Corps., Vol. 8, § 25.150, we find the following:
"The purpose of requiring permits under a zoning law is to facilitate its enforcement by providing zoning authorities with knowledge of a contemplated use and enabling them to determine whether or not it complies with the law, and by providing a mechanism whereby authorities officially approve or dispprove uses under the zoning regulations, and whereby their official acts become a matter of record subject to judicial review for abuse of discretion or power. . . . Accordingly, the fact that a particular use in a certain district is in compliance with the zoning laws does not free that use from the requirement of a license or permit under a licensing ordinance. . . ."
See also § 25.147.
It would therefore appear that the law requires the establishment of an administrator or officer whose duty is to issue building permits. Thus, we believe that the owner of the property in question should obtain a permit in order to proceed with his project permitted under the zoning ordinance, whether it be in the category of a planned development project or an apartment building.
In response to your second question, it would appear that the Commission failed to officially act upon the request for a zoning change in 1972 when the zoning ordinance had apparently zoned the area included in the tract, agricultural. The individual nevertheless proceeded to operate a commercial business on the premises. Your reference to the effect that in 1975 the Commission presented to the fiscal court a new zoning atlas, which zoned the property in question commercial, raises the initial question as to whether or not it was adopted by the fiscal court pursuant to the requirements of KRS 100.207 or KRS 100.211. If it was properly adopted by the governing body [which in this case is the fiscal court], then the property in question is now obviously zoned commercial in keeping with the use to which the property owner has made use of his business.
Your third question has been answered in our response to your initial question.