Request By:
Mr. Alan Dizney
Chairman
Board of Zoning Adjustment
206 Fourth Street
Corbin, Kentucky 40701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 14 in which you refer to the fact that the city employed an individual to assist in rewriting and upgrading the present zoning ordinance; however, you indicate that he has failed to follow the publication requirement of KRS 100.212 and has proceeded to simply change the zoning map boundaries without complying with the referred to statute.
This office has taken the position in a number of prior opinions, namely OAG 72-446 and OAG 74-513 [copies attached], that the notice requirements under KRS 100.212 apply only to individually proposed changes of a particular piece of property and not to partial or general revisions of the zoning ordinance involving, for example, changes in zoning map boundaries. The reasons for the conclusion reached in the referred to opinions are based upon the language found in the statute as, for example, where the statute refers to the duty of the person or persons proposing the zoning amendment to furnish the commission with the names and addresses of the owners of all the adjoining property for notification purposes. For a more detailed explanation of our interpretation of KRS 100.212, we refer you to the enclosed opinions.
On the other hand, of course, where there is a major change in zoning regulations and map amendments such as you have indicated, the notice requirements under either KRS 100.207 or KRS 100.211 would be sufficient. This means that the notice must be given pursuant to KRS 424 KRS.
Your second question relating to temporary use of mobile homes on construction sites is too general and vague for us to attempt to answer without a copy of your zoning ordinance and building code.
In answer to your third question concerning "spot" zoning, we refer you to the case of Aylor v. The Sun Oil Company, Ky., 533 S.W.2d 18 (1970), wherein the court declared that an amendment to a zoning ordinance to change a small tract of land in the center of a residentially zoned area to that of commercial to permit the erection of a filling station without any showing that the tract, except for its fortuitous location on a corner, was different than the property next door, was in fact an attempt at spot zoning and thereby arbitrary and illegal.
The decision in this case would indicate, however, that a proposed change in a tract of land located in a residentially zoned area to that of commercial may not in all cases be considered in the category of spot zoning and therefore illegal, provided special circumstances could be shown. See also Byrne v. Beechwood Village, Ky., 253 S.W.2d 395 (1953). You will also find other cases listed in The Sun Oil Company case in which spot zoning has been condemned.