Request By:
Mr. Frank Lucician
Community Planner
FIVCO Area Development District
P.O. Box 636
Catlettsburg, Kentucky 41129
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 19 in which you make reference to OAG 78-722, but in connection therewith you present the additional facts and question:
"After conducting a formal hearing regarding a zoning amendment proposing to rezone property to an I-1 (limited industrial) classification to an I-2 (heavy industrial) classification, the Joint Planning Commission recommended that the petition be approved resulting in a proposed map amendment. The Commission presented a complete file of information regarding the request to the city council. This included a formal transcript, photographs, petitions, and letters.
"What happens to the amendment when the city council votes 3 to 3 to approve the petition for rezoning? (The Mayor has abstained from the vote because of personal interest and possible conflicts.) Does such an action by council negate the commission's recommendations, thus in effect, denying the rezoning petition, or does it let the Commission's decision stand, thus in effect, approving the rezoning petition?"
Initially, we wish to point out that the adoption of zoning amendments lies within the discretion of municipal legislative authority, subject, of course, to judicial review only for abuse. See McQuillin, Mun. Corps., Vol. 8, § 25.67.
The above facts indicate that when the proposed zoning amendment was presented to the city council by the planning commission, pursuant to KRS 100.211, and it was considered by the members of the council, there resulted a three (3) to three (3) tie vote which could have been broken by the mayor pursuant to KRS 86.070(3); however, this section does not require the mayor to break a tie by virtue of the use of the word "may" which is a permissive word under KRS 446.010. This leaves, in effect, a tie vote concerning the adoption and approval of the proposed zoning change, which simply means that said proposed zoning amendment failed to be approved and said change cannot go into effect.
KRS 86.070 requires a majority vote of those members present that constitute a quorum in order to pass or approve any matter presented to the council, and such would be necessary to approve the proposed zoning change. Of course, as you know, KRS 100.211 requires a majority vote of the entire legislative body to override the recommended zoning change presented by the planning commission.
As a consequence, the action of the city council in its failure to approve the proposed change by a majority vote negates the commission's recommendation thereby denying the rezoning petition request.