Request By:
Mr. Charles L. Witt
Chairman, Winchester-Clark County
Planning and Zoning Commission
25 Lynnway Drive
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 7 in which you raise a number of questions relating to the proper conduct of hearings involving applications for zoning changes. Your basic question is whether or not a judicical hearing is required.
Our response to the above question would be in the affirmative. As you know KRS 100.211, dealing with hearings involving amendments to zoning changes, requires the planning commission to hold a public hearing after due notice as required by Chapter 424. The courts have consistently held that such hearing must be a trial-type hearing. In the case of
City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the court declared that the planning commission must hold a trial-type hearing in connection with a proposed amendment to a zoning regulation pursuant to KRS 100.211. In declaring that constitutional due process requires a trial-type of hearing for the purpose of determining the adjucated facts necessary to decide the issue and for the review of same, the Court referred to an earlier case styled
Morris v. City of Catlettsburg, 437 S.W.2d 753 from which we quote what the Court declared that procedural due process by an administrative body includes:
'"* * * a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence, and, where the party's constitutional rights are involved, a judicial review of the administrative action. * * *"
Kentucky Alcholic Beverage Control Board v. Jacobs, Ky. 269 S.W.2d 189.'
In conducting a trial-type hearing, it is of course necessary that witnesses must testify under oath administered by a notary or some other officer authorized by law to administer same. A transcript of the testimony must be made and the commission must make a finding of fact [in writing] based upon the evidence and must of course issue an order based on same, to permit a judicial review of the commission's action. See also the cases of
Montfort v. Archer, Ky., 477 S.W.2d 144;
Edlin v. Fiscal Court of Jefferson County, Ky., 497 S.W.2d 229 (1973);
Caller v. Ison, Ky., 508 S.W.2d 777 (1974); and
Resources Development Corporation v. Campbell County Fiscal Court, Ky., 543 S.W.2d 225 (1976).
We trust the above sufficiently answers your questions.