Request By:
Mr. William B. Cloyd
Zoning Enforcement Officer
Planning and Zoning Commission
Woodford County Courthouse
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 27 in which you relate that in January the Versailles, Midway, Woodford County Planning and Zoning Commission held a public hearing on a request to rezone the Woodford Veterinary Clinic from R-1B to B-4, and the Commission voted to recommend the denial of the proposed change. In the latter part of March, the Fiscal Court failed to reach a decision on the matter but at a subsequent meeting in April the Court passed a motion to rezone the property from R-1B to A-1 which is agricultural and which was never mentioned at a public hearing before the Planning Commission. Under the circumstances you raise the following questions:
"1. Can the Fiscal Court reject the Commission's recommendation without findings of fact?
2. Can the Fiscal Court change the zoning district to another zone, other than the one before it, without proper procedures of a public hearing or notice to adjoining property owners as required by K.R.S. 100.211, etc."
3. What action, if any, can be initiated by the Zoning Enforcement Officer to require the Fiscal Court to abide by the K.R.S.?
4. Woodford Veterinary Clinic is in an R-1B zone and was there before zoning as a special use and is therefore now considered a 'permitted use.' Can the Fiscal Court, by their actions to rezone this property to A-1, place the clinic in a zone where it would be a 'conditional use' without going before the Board of Adjustments?"
We believe your basic question concerning the Fiscal Court's power to alter the Planning Commission's recommendation concerning a proposed zoning change has been answered in OAG 80-244 to the effect that the Fiscal Court has the right to approve, alter or reject a zoning change recommendation made by the Planning Commission, but it must make a findings of facts either supported by the record at the initial hearing conducted by the Commission or supported by the record compiled at a trial-type hearing held by the Court itself. This opinion refers to the case of
Montfort v. Archer, Ky., 477 S.W.2d 144 (1971) which in turn refers to the case of
City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971) and stated the following:
"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.
In the instant case, the fiscal court made no finding of facts, wherefore its action must be declared arbitrary. This does not end the matter, however, for the fiscal court may proceed, on remand, in accordance with the principles set forth in McDonald. . ."
In view of the above, the Fiscal Court may indeed alter a proposed zoning change but only following either a trial-type hearing supportive of the change, or based on evidence submitted by the Commission as a result of its hearing that is supportive of said change.
Question two has been answered above.
Our response to question three would be that the property owner is the person to raise the question concerning the validity of the Court's action by appeal from the Court's decision. The Zoning Enforcement Officer would have no responsibility in this regard.
Our response to your fourth question would be in the affirmative for reasons expressed in response to question one. The Fiscal Court has the final decision concerning a zoning change under the terms of KRS 100.211.