Request By:
Honorable Milton Wilson
Judge, Jessamine County Court
Court House
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 9 in which you raise the following question:
"The fiscal court of Jessamine County voted to take a zone change request out of the hands of the planning commission and to act on the zone change itself. Your office is requested to notify immediately the correct procedure and authority for the fiscal court to hear the zone change request and take official action thereon."
Amendments to zoning regulations are made pursuant to KRS 100.211 which provides, in effect, that a proposal for an amendment to any zoning regulation may originate with the planning commission, the fiscal court, the legislative body or the owner of the property in question. However, regardless of the originator of the proposed amendment, it must be referred to the planning commission before adoption by the legislative bodies. The planning commission must hold a public hearing and make its recommendations to the various legislative bodies involved, and it takes a majority of the entire legislative body to override the recommendation of the planning commission. We also refer to KRS 100.321, which provides that any legislative body of the planning unit must refer any proposed change in a zoning regulation to the commission for its review before adoption and the commission shall, within sixty (60) days from the date of its receipt, advise the legislative body if it approves or disapproves of the change. Here again, a majority of the entire membership of the legislative body is required to override the disapproval of the planning commission.
Pursuant to the above, the statutory procedure for making zoning changes is clearly set forth and the fiscal court has no authority to take a proposed zoning change out of the hands of the planning commission before it has made its recommendation, with the possible exception of where the commission fails to act within the sixty (60) day provision found in KRS 100.321. We have indicated in OAG 72-749, concerning the failure of the board of adjustment to act within the 60-day period provided for under KRS 100.263, that such failure would be deemed as a decision on behalf of the board in favor of the person seeking the zoning relief, though there is some authority to the effect that failure to act on the part of the board within the statutory time does not ipso facto divest it of jurisdiction or render its decision voidable. The law cited with respect to the board of adjustment would also apply we believe to the 60-day provision involving the planning commission and we are enclosing a copy of OAG 72-749 for your information.
Under the circumstances, we find no authority for the fiscal court to remove a zoning change request from the planning commission before it has an opportunity to make its recommendation unless possibly the 60-day limitation provision is involved.