Request By:
J. D. Atkinson, Jr., Esq.
Atkinson and Atkinson
Greenup, Kentucky 41144
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Board of Adjustment. Several persons have presented a plan to the Board of Adjustment for the subdivision of a small parcel of residential land in the city of Bellefonte. After meeting with these persons the Board of Adjustment has declined to approve the plan. The plan calls for septic tanks whereas nearly all dwellings in the city are on the sewer line and the Board feels that the developers should tie into a sanitary sewer line. The Board also feels that the proposed street connection with Kentucky Route 15 will create a safety hazard.
The developers of the proposed subdivision have requested the Board of Adjustment to hold a public hearing. Your questions are as follows:
"(a) Is the Board required to hold a public hearing when the Board feels that it has sufficient information at present to reject the proposed subdivision plan; and
(b) If the Board is required to hold a public hearing, can the Board require the applicants to bear the expenses of posting signs as required by the Statute and also to bear the expenses of reporting the proceedings as it also required?"
"The Board of Adjustment has the power to grant two forms of relief from the literal enforcement of the zoning ordinance. It may grant a conditional use permit and subject it to reasonable requirements if the use is authorized in the district by the zoning ordinance. " See Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 Ky. L.J. 556, 609; and KRS 100.237. The Board of Adjustment may also grant a dimensional variance which permits the lot owner to depart from the requirements for the height or width of buildings and yard sizes. See KRS 100.241 as well as KRS 100.243 (findings necessary for granting variances) and 100.247 (variance cannot contradict zoning regulation).
Neither KRS 100.237, dealing with conditional use permits, nor KRS 100.241, pertaining to dimensional variances, specifically require or provide for a hearing. However, a public hearing would be required to afford due process.
Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753 (1969), involved a proceeding before the Board of Adjustment to grant a variance. No hearing was held and no evidence was taken or finding of fact made to support the order of the Board. The Court said the proceedings did not afford procedural due process and the action of the Board was arbitrary and could not be upheld. At page 755 of its opinion, the Court said in part as follows:
"We have held 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. ***'"
See also OAG 71-497, copy enclosed, concluding that a public hearing would be required in connection with the granting of a conditional use permit pursuant to KRS 100.237.
As to the failure of the statutes to spell out due process procedures for hearings, the Court, in connection with KRS Chapter 100, said in
Wells v. Fiscal Court of Jefferson County, Ky., 457 S.W.2d 498, 502 (1970), as follows:
". . . Upon careful examination of the argument it appears that the real contention is that the statute does not provide adequate procedural standards such as to insure due-process procedures. In our opinion it is not necessary for the statute itself to spell out due-process procedures for hearings - the standards of due-process procedure are established by the case law and apply whether or not expressed by statute. . . ."
In answer to your first question, it is our opinion that the Board of Adjustment is required to hold a public hearing in connection with the granting or withholding of a conditional use permit and a dimensional variance and to satisfy the other requirements of procedural due process.
In connection with reporting the proceedings of a Board of Adjustment and the expenses associated therewith, see KRS 100.221(3). The statute provides in part that the Board shall adopt bylaws for the transaction of business and shall keep minutes and records of all proceedings, including regulations, transactions, findings, and determinations, and the number of votes for and against each question, and if any member is absent or abstains from voting. Furthermore, "A transcript of the minutes of a board of adjustment shall be provided if requested by a party, at the expense of the requesting party, and the transcript shall constitute the record."
See also
Gentry v. Ressnier, Ky., 437 S.W.2d 756 (1969), stating that it is not necessary for the transcript of evidence heard by the Board to be incorporated into the minutes by reference to be considered by a court. In addition, in 82 Am. Jur.2d, Zoning and Planning, § 316, dealing with the record of the proceedings that must be kept by a Board of Adjustment, it is stated that the Board need not make a verbatim transcript of the testimony but, it is required to keep a reasonably accurate summary of the oral testimony and the facts upon which it bases its decision.
KRS 100.237 and 100.241 not only do not specifically provide for or require a public hearing, they also make no mention of the hearing notice. Due process contemplates the opportunity to be heard but this right is without meaning unless the notice of the pendency of a hearing is adequate under the circumstances to safeguard the right. See
Cugini v. Chiaradio, Rhode Island, 189 A.2d 798 (1963).
Under those statutes requiring that notice be given by the zoning board, it has been held that the giving of such notice cannot be delegated to the petitioner, 82 Am.Jur. 2d, Zoning and Planning, § 300. In an annotation in 38 ALR 3d 167, 251, the writer states that under a statute or ordinance which expressly or by construction requires that notice of hearing on an application for a variance or special exception be given by the zoning body or board to which such application has been made, the obligation to give such notice rests with the board or body and not with the litigants. Furthermore, in the same annotation, at page 179, the writer maintains that the better planning agencies take care of giving notice to insure proper notice of their hearings as action taken without proper notice may be void.
The statutes concerned with the granting of conditional use permits and dimensional variances do not state who is responsible for giving notice. The better practice, in our opinion, and one which is consistent with other notice provision contained in Chapter 100, is for the Board of Adjustment, rather than the applicant-property owner, to bear the responsibility and cost of giving notice.