JAMES L. ROSE; VIRGINIA J. ROSE; MARTHANNE ROSE BOARDMAN; GINGER ROSE MARTIN; JANE ROSE COOK; and MILDRED LOUISE MILLER v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; LEXINGTON- FAYETTE URBAN COUNTY PLANNING COMMISSION; and 50 ADDITIONAL APPELLEES NAMED IN NOTICE OF APPEAL
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RENDERED:
December 11, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001482-MR
JAMES L. ROSE; VIRGINIA J.
ROSE; MARTHANNE ROSE BOARDMAN;
GINGER ROSE MARTIN; JANE ROSE
COOK; and MILDRED LOUISE MILLER
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
CIVIL ACTION NO. 97-CI-000018
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT; LEXINGTONFAYETTE URBAN COUNTY PLANNING
COMMISSION; and 50 ADDITIONAL
APPELLEES NAMED IN NOTICE OF
APPEAL
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge.
This is an appeal from a Fayette Circuit Court
summary judgment that upheld the refusal of the Lexington-Fayette
Urban County Council to rezone two small tracts of land located at
the intersection of Winchester Road (U.S. Highway 60) and Interstate Highway 75.
One of the tracts is owned by various members of
the family of Dr. Jim Rose and the other is owned by Mildred Louise
Miller.
Rose/Miller assert that the Council and the Lexington-
Fayette Urban County Planning Commission violated their substantive
and procedural due process rights.
In
accordance
1996,
with
the
Ky.
Council
Rev.
Stat.
and
Commission,
(KRS)
proceeding
100.211,
considered
in
a
comprehensive rezoning application relating to a proposed Expansion
Area1 for inclusion in the Urban Service Area.2
The Council, in
1995, had engaged a professional planning and legal consultant
services firm for devising an Expansion Area Master Plan (EAMP) to
govern orderly development in the Expansion Area.
The EAMP was
adopted on July 18, 1996, as an element of the Comprehensive Plan
(Plan), which was being updated at that time, pursuant to KRS
100.197, which requires such Plan to be reviewed by the planning
commission at least once every five years.
A review and updating
of the Plan had been initiated by the Home Builders Association of
Lexington (HBAL) in a suit against the Commission, since updating
the Plan had taken longer than statutorily allowed due to a
divisive debate in the community on growth and development.
HBAL
and the Commission entered into an agreed judgment pursuant to
which the Commission agreed to complete the review and update of
1
The Expansion Area encompasses approximately 5,700 acres of
land containing parcels owned by approximately 324 separate owners.
2
Land within this boundary is available for development after
zone changes are completed and development plans have been
approved; land outside this boundary is in the Rural Service Area
and is characterized primarily by agricultural zoning permitting
residential uses on lots greater than ten acres and almost no other
non-agricultural uses.
2
the Plan by July 31, 1996.
All other elements of the Plan were
adopted on July 29, 1996. However, HBAL and the Commission entered
into a modified agreed judgment delaying the effective date of the
EAMP until November 30, 1996, to allow time for the adoption of new
zoning ordinance and subdivision regulation amendments by the
Council.
The judgment also provided that the Commission would
initiate a comprehensive rezoning of the Expansion Area, based upon
the recommendations set forth in the EAMP, as soon as the implementing ordinances were adopted, or by October 7, 1996, whichever
first occurred.
The Commission also agreed to hold its public
hearing on such rezoning by November 11, 1996.
At the Commission's public hearing held on November 11,
1996, it was explained that the Commission would:
only consider
the proposed zone changes for the Expansion Area initiated by
itself; only downgrade an area recommended for intense use to a
less intense use, not upgrade such an area to a more intense use;
and, would recommend approval or disapproval to the Council.
It
was also stated that if the land were zoned through this process,
property owners would still have the right to file for another zone
change
category
on
their
property.
The
Commission
Chairman
explained that because of the large number of people signed up to
speak, he would impose a five-minute time limit on each presentation.
The
Commission
had
proposed
a
zone
change
for
the
Rose/Miller properties from R-1A (allowing one dwelling unit per
acre) to EAR-1 (allowing three dwelling units per acre), based upon
the EAMP recommendations.
The EAMP also indicated a proposed
3
boulevard
cutting
through
some
of
the
Rose/Miller
property.
Rose/Miller's attorney argued for the worthlessness of the subject
property zoned as EAR-1 and attempted to argue for a zone change
from R-1A to ED (Economic Development), rather than EAR-1, the
classification
Chairman
proposed
requested
by
that
the
Commission.
Rose/Miller's
The
attorney
Commission's
reserve
presentation to another hearing, to which he acceded.
his
At the end
of the hearing, the Commission recommended approval of all the
properties
in
the
Expansion
recommended in the EAMP.
Area
for
the
zoning
categories
This recommendation was forwarded to the
Council, which scheduled a public hearing on the comprehensive
rezoning for December 19, 1996.
However, contrary to the Commis-
sion's recommendation, the Council did not approve the comprehensive zone change based upon the Commission's record of its meeting.
Instead, the Council adopted findings of fact in support of its
decision to deny the zone change.
Prior
to
the
Council's
December
19,
1996,
meeting,
Rose/Miller attempted to file an application with the Commission to
rezone their properties to ED.
Rose/Miller's application was
refused due to the Commission's policy of not accepting zone change
applications for property on which a zone change is pending or in
litigation
to
prevent
the
possibility
of
inconsistent
zoning
designations on the same property.3
3
See Opinions of the Attorney General (OAG) 72-24 in which the
Attorney General of Kentucky advised that a planning commission
could not hold a hearing on a zone change application until
(continued...)
4
Rose/Miller then filed suit in Fayette Circuit Court
seeking to overturn the Council's and Commission's decisions to not
rezone their properties to ED.
Rose/Miller alleged that uses
proposed by the Commission and R-1A uses for the subject properties
make them substantially valueless, amounting to a taking of the
properties, in violation of the Fifth and Fourteenth Amendments to
the United States Constitution and Sections 1, 2 and 26 of the
Kentucky
Constitution.
Rose/Miller
also
argued
procedural due process rights were violated when:
that
their
(1) the Commis-
sion, at its November 11, 1996, meeting, refused to allow them
offer proof of the need to rezone the subject properties to ED,
rather
than
EAR-1;
(2)
the
Commission
refused
Rose/Miller's
submission of an application to rezone the subject properties prior
to the Council's December 19, 1996, meeting; and, (3) the Council
elected to not rezone the subject properties to ED.
Rose/Miller
requested that the circuit court declare the properties rezoned to
ED,4 and award them attorney fees and costs from the Commission and
Council pursuant to 42 United States Code (USC) § 1988, since their
actions were undertaken under color of state law and violated 42
USC § 1983.
(...continued)
litigation on a previous zone change application for the same
property is final.
4
Rose/Miller also requested, in the alternative, that the
circuit court declare the properties not subject to the zoning
ordinances of the Lexington-Fayette Urban County Government.
5
The circuit court ruled, in response to Rose/Miller's
motion for summary judgment, that: (1) the Commission's refusal to
accept Rose/Miller's rezoning application while another application
was pending in regard to the same properties was not unreasonable;
(2) the Commission did not violate Rose/Miller's procedural due
process
rights
by
its
decision
to
restrict
comments
by
each
property owner at its hearing on the comprehensive rezoning of the
Expansion Area, since such action was not focused on Rose/Miller's
properties; (3) the Commission's actions in rezoning the Expansion
Area, as an element of the update of the Comprehensive Plan was a
legislative, rather than quasi-judicial, act. Thus, the Commission
was not "acting in an adjudicatory fashion to determine whether a
particular individual by reason of particular facts peculiar to his
property
is
entitled
to
some
form
of
required to conduct a trial-type hearing.
relief"
and,
therefore
City of Louisville v.
McDonald, Ky., 470 S.W.2d 173, 178 (1971); (4) the Council did not
violate Rose/Miller's procedural due process rights since it based
its actions upon the Commission's record; and, (5) Rose/Miller's
substantive due process rights were not violated since the subject
properties remain zoned R-1A.
Rose/Miller's complaint is not that the Council was
wrong in refusing to grant the Commission's zone change request,
but that the Council was wrong to not consider their request for a
zone change from R-1A to ED.
As the circuit court explained,
neither the Commission nor the Council was required to consider
such a rezoning request. The Council's business at hand during the
6
Commission's
self-initiated
zone
change
application
was
to
determine the propriety only of the Commission's recommendation.
We agree with the circuit court's conclusion that once
litigation concerning this matter is final, Rose/Miller may file a
zone change application with the Commission; and, should they be
dissatisfied with the proceedings relating to their request, they
may, having exhausted their administrative remedies, appeal to the
circuit court for relief.5
Only then will it be necessary for a
reviewing court to determine whether or not the Commission and
Council have afforded Rose/Miller constitutional due process.
At
this point, such an inquiry is unnecessary since Rose/Miller are
complaining of actions that neither the Commission nor the Council
was required to perform, that is, consider their zone change
request.
The summary judgment dismissing Rose/Miller's complaint
is affirmed.
ALL CONCUR.
BRIEF AND ORAL
APPELLANTS:
ARGUMENT
FOR
BRIEF AND ORAL
APPELLEES:
Robert S. Miller
MILLER, GRIFFIN & MARKS
Lexington, Kentucky
ARGUMENT
FOR
Chris Westover
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT, DEPARTMENT OF LAW
Lexington, Kentucky
BRIEF FOR APPELLANTS:
5
A salient feature of Rose/Miller's brief is its denunciation
of the treatment Rose/Miller allegedly received from the Commission
and Council, and their contention that relief should be afforded
them now since both governmental bodies can be expected to treat
them as shabbily in the future.
7
Thomas W. Miller
Carroll M. Redford, III
MILLER, GRIFFIN & MARKS
Lexington, Kentucky
8
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