Request By:
Honorable William Neal Cassity
Jessamine County Judge/Executive
Court House
Nicholasville, Kentucky 40356
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; David H. Ashley, Assistant Attorney General
You have requested an opinion of this office as to the proper interpretation of a Jessamine County Zoning Ordinance provision that was adopted pursuant to KRS 100.213(2).
KRS 100.213(2) provides as follows:
(2) The planning commission, legislative body of fiscal court may adopt provisions which prohibit for a period of two (2) years, the reconsideration of a denied map amendment or the consideration of a map amendment identical to a denied map amendment.
Pursuant to this provision, Jessamine County has adopted as a portion of its Zoning Ordinance the following:
In the event the applicant for a zoning map amendment receives a decision on the merits of the request from the Planning Commission relative to a particular parcel of land, another zoning map amendment requesting the same change relative to the same parcel of property shall not be considered by the Planning Commission for a period of one (1) year from the date of the Planning Commission's decision on the merits.
We assume that this particular provision of the Jessamine County Ordinance was adopted under the prior law as it appeared in KRS 100.213(2), which allowed for a one year delay before which the same request for a map amendment could be made. In 1990, the statute was amended to allow for a two year period.
Your question concerns an applicant who was denied a request to change the zoning of 6.132 acres of land from A-1 to I-1. Within a month, the applicant filed a new zone change request, which asked that the zoning for 2.5 acres of the original 6.132 acre tract be changed from A-1 to I-1. You ask whether the second request violates the statutory provision and the Zoning Ordinance provision that are quoted above.
We do not find that either KRS 100.213(2) or the Jessamine County Zoning Ordinance provision has been the subject of judicial interpretation. Likewise, we do not find that these particular provisions have been the subject of any formal opinions issued by this office. This comes to us as a case, therefore, of first impression.
Our interpretation of these provisions is guided by the judicial directive that the language of statutes and ordinances pertaining to planning and zoning must be strictly construed. Creative Displays, Inc. v. City of Florence, Ky., 602 S.W.2d 682 (1980); Smith v. Howard, Ky., 407 S.W.2d 139 (1966); Hamner v. Best, Ky.App., 656 S.W.2d 253 (1983). We are further guided by KRS 446.080(4), which provides that all words and phrases in statutes shall be construed according to the common and approved usage of language.
KRS 100.213(2) allows for the Jessamine County Zoning Ordinance to prohibit consideration for a period of time of a map amendment that is "identical" to a denied map amendment. The Jessamine County Zoning Ordinance prohibits consideration of "another zoning map amendment requesting the same change relative to the same parcel of property. " To be consistent with KRS 100.213(2), this ordinance language must be interpreted as meaning the same thing as the word "identical," which is defined in the American Heritage Dictionary , 2nd.Ed., 1985, Houghton Mifflin Company, in the following manner:
1. Being the same; 2. Being exactly equal and alike; 3. Having such a near similarity or resemblance as to be essentially equal or interchangeable.
Applying this definition to the question that you presented, it does not appear that the second zone change request is "identical" to the first zone change request. The two zone change requests are neither exactly equal and alike nor so similar as to be essentially equal or interchangeable. Indeed, the second zone change request is for a substantially smaller tract of land than the first zone change request; the fact that the smaller tract of land is part of the larger tract of land is not enough to make the two tracts of land, and therefore the two zone change requests, "identical". In support of this position, see generally, Rathkopf, The Law of Zoning and Planning , Chapter 69, Finality of Zoning Decisions.