Request By:
Ms. Betty Schafstall
249 Riverview Drive
Hebron, Kentucky 41048
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions, the first of which asks whether a person employed as a county building inspector may be appointed to serve as a member of a county planning and zoning commission.
If, in fact, you are talking about a county planning and zoning commission, an agency of the county is involved; and a member of that commission would be a county officer. If, however, a joint city-county planning and zoning commission is involved, membership on that type of commission has been held not to constitute a municipal or county office because of the loss of identity by the members when they act together as an integrated body in administering the planning and zoning program. See OAG 76-562, copy enclosed.
The only specific statutory reference we can find to a county building inspector is KRS 67.410 authorizing a county containing a city of the first or second class to appoint a building inspector to administer county building regulations. It would seem that in most counties a building inspector would be a county employe rather than a county officer but regardless of which label is attached, nothing in Section 165 of the Kentucky Constitution or KRS 61.080 prevents a person from service at the same time in the two positions you have mentioned. Whether a common law conflict of interest arises, that is, whether one office is subordinated to the other or the performance of one interferes with the performance of the duties of the other or the functions of the two are inconsistent, is ultimately a question for the courts to determine. Common law incompatibility is discussed in OAG 77-712, copy enclosed, at pages 2 - 3.
Your second question asks whether there are any statutes that require a member of a planning and zoning commission to attend a given number of meetings and hearings during the year.
KRS 100.133 deals with a planning commission from the standpoint of members, appointment and qualifications. KRS 100.163 pertains to meetings and provides for at least six regular meetings annually plus necessary special meetings held at the call of the chairman with at least seven days' notice of such special meetings. KRS 100.167 provides in part that the planning commission shall adopt bylaws for the transaction of business and shall keep minutes and records of all proceedings, including if any member is absent. KRS 100.171 deals with the holding of meetings (quorum, disqualification from voting). There are no statutory provisions, however, setting forth how often members of the commission must attend regular and special meetings.
At this point we direct your attention to OAG 75-453, copy enclosed, concluding that a city councilman who is a chronic absentee from regular and special meetings may be required to attend by mandamus. A mandamus action is also discussed in OAG 75-352, copy enclosed. Such a remedy may be utilized in most situations where a public official fails or refuses to perform duties imposed upon him.
Your third question is as follows:
"If a zone change is tabled what are the requirements for notification of interested parties as to the date this issue would come up for a vote."
The question is not entirely clear to us and you have not given us much information to work with but we will attempt to discuss the matter of notice requirements prior to a hearing. If a hearing has been held pursuant to the proper notice, there are no other notice requirements.
The notice requirements under KRS 100.212 (notice required prior to hearing on proposed zoning amendment) apply only to individual proposed zoning changes of a particular piece of property and not massive revisions. See OAG 78-74, copy enclosed, involving a situation in Boone County, Kentucky. In addition, we are enclosing copies of OAG's 74-513 and 72-446, also dealing with the notice requirements, and, particularly, the point that KRS 100.212 deals with proposed zoning changes of particular pieces of property. You should examine the requirements of KRS 100.212, as amended in 1976, requiring in part that notic of the hearing shall be posted conspicuously on the property involved for fourteen consecutive days immediately prior to the hearing. Furthermore, notice of the hearing shall be given at least fourteen days in advance of the hearing by registered mail or by certified mail, return receipt request, to the owners of all property adjoining the property the classification of which is proposed to be changed.
In addition, as stated in OAG 78-74, where a major change in zoning regulations and map amendments is involved, the notice requirements found under either KRS 100.207 or 100.211 would be sufficient which means that notice prior to the heard must be given pursuant to KRS Chapter 424. Under KRS 100.211 the planning commission, after the conclusion of the hearing or hearings, makes its recommendations to the legislative bod. We are also enclosing a copy of OAG 77-766, citing some of the statutory provisions mentioned above as well as KRS 100.321, providing in part 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 days from the date of its receipt, advise the legislative body if it approves or disapproves of the change.
Your last question asks whether an attorney for the Kentucky Department of Transportation may represent a group seeking a zoning change.
We are unaware of any regulation or statute prohibiting a state-employed attorney from handling legal matters during his off-duty hours from the state so long as those legal matters are not in conflict or inconsistent with his state duties.