Request By:
Mr. Carl Brown
Jefferson County Commissioner
Jefferson County Court
Jefferson County Court House
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 22 in which you request an opinion concerning the legal role of the fiscal court with reference to zoning decisions. More specifically, you raise the following question:
". . . May Fiscal Court members properly under the law entertain citizen input or must Fiscal Court members rely solely on the record prepared by the Planning Commission? "
Your zoning question is not clear, but we assume that you have reference to a fiscal court's review of proposed zoning changes recommended by the planning commission pursuant to a trial-type hearing as required under KRS 100.211 to 100.214 and whether or not the court can hold its own trial-type hearing if it feels that the evidence submitted at the previous hearing before the commission is not sufficient.
Our response to the above question would be in the affirmative as initially held in the case of
City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971). The court in this case stated that:
". . . The legislative body may review the record made before the commission and determine from that evidence adjudicative facts which differ from those found by the commission. Again, in this event, the record made before the commission must reveal the proper elements to be considered on judicial review. The legislative body also may hold its own trial-type hearing and may find as a result thereof different adjudicative facts than those found by the commission. In any event, the ultimate decision must be made by the legislative body. . . ." (Emphasis added.)
Again in the case of
Montfort v. Archer, Ky., 477 S.W.2d 144 (1971), the court stated with reference to the fiscal court's view of the zoning commission's recommendation that:
"Under the principles of McDonald, if the legislative body does not follow the zoning commission's recommendation against a zoning change, and makes a change, the legislative body must make a finding of adjudicative facts, either from (and supported by) the record at the trial-type hearing held by the zoning commission, or from (and supported by) the record at a trial-type hearing held by the legislative body. "
See also the case of
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974); and
Resource Devel. v. Campbell County Fiscal Court, Ky., 543 S.W.2d 225 (1976).
Under the circumstances, it is clear that the fiscal court may hear and consider additional testimony in a trial-type hearing of its own with respect to a proposed zoning change.