Request By:
Mr. James E. Parsons
County Coordinator
County of Boone
P.O. Box 536
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 3 in which you raise the question as to whether or not the Board of Adjustments, pursuant to KRS 100.237, has the exclusive authority to approve special or conditional use permits. It appears that the Boone County Planning Commission and not the Board of Adjustments is presently approving such permits, pursuant to an ordinance so providing, with the option that the Commission may delegate such authority to the Board of Adjustments.
The review of an application for a conditional use permit is within the exclusive jurisdiction of the Board of Adjustments under the terms of KRS 100,237 as indicated by the Court of Appeals in the case of Davis v. Richardson, Ky., 507 S.W.2d 446 (1974). In this case the court declared, and we quote:
"KRS 100.237 provides that the board of adjustments has the power to 'hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone only if certain conditions are met.' (Italics supplied).
"From representations made in the transcript of evidence of the proceedings before the board of adjustments, it appears that a social club can be located in any zone provided for in the Louisville plan by employment of the conditional use permit route. If that be so, as we assume it must, then the board of adjustments rather than the zoning commission or the legislative body makes the only effective determination concerning whether the particular land use at the particular location is consistent with and promotes the public health, safety or welfare in the overall zoning scheme. Hence, in the instance of a 'conditional use' there is a single administrative adjudicatory proceeding subject to judicial review by express statutory provision. See KRS 100.347." (Emphasis added).
Under the circumstances, it would appear that the Boone County zoning ordinance delegating the authority to the Planning Commission to hear and determine applications for conditional use permits is contrary to the provisions of Ch. 100 KRS, and particularly KRS 100.237 which gives such authority to the Board of Adjustments created in part for such purpose.