SHELBY COUNTY FISCAL COURT v. ALBERT MOFFETT, INC; JOHN J. CROSS
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002149-MR
SHELBY COUNTY FISCAL COURT
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 97-CI-00372
v.
ALBERT MOFFETT, INC;
JOHN J. CROSS
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, DYCHE AND McANULTY, JUDGES.
McANULTY, JUDGE.
The Shelby County Fiscal Court (SCFC) appeals
from the Shelby Circuit Court judgment entered on May 27, 1998,
which ordered the SCFC to grant a zoning change to the appellees,
Albert Moffett, Inc. and John J. Cross.
The Circuit Court found
that the SCFC’s decision to deny the appellee’s request for a
zoning change was arbitrary and that the SCFC had failed to act
within the statutorily prescribed time period.
Appellees are owners of approximately six acres of real
property located in the Hill-N-Dale subdivision in Shelby County,
Kentucky.
In 1997, appellees sought to change the zoning of the
property from a combination of agriculture, interchange, and
commercial to an R-3 zoning classification, single family
residential.
A public hearing was held before the Triple S
Planning & Zoning Commission on May 20, 1997.
After listening to
the appellees and several residents of the Hill-N-Dale
subdivision, the Commission determined that the zoning change was
in conformity with the Shelby County Comprehensive Plan.
The
Commission then voted to grant the zoning change and subsequently
forward its recommendation to the SCFC.
The SCFC attempted to address the zoning change on the
8th and 22nd of July, 1997, however a transcript of the May 20,
1997, hearing was not yet available.
Finally, on September 2,
1997, the SCFC proceeded with an argument-type hearing on the
zoning change.
At the conclusion of the hearing, the SCFC voted
to deny the zoning change.
The appellees appealed the SCFC’s
decision to the Shelby Circuit Court.
On May 27, 1998, the
circuit court reversed the SCFC’s decision and ordered it to
grant the zoning change.
This appeal followed.
On appeal the SCFC argues that the circuit court
applied the incorrect standard of review, that it properly denied
the zoning change, and that it acted within the time frame and in
substantial compliance with Kentucky Revised Statute (KRS)
100.211(7).
The proper standard of review in zoning cases was set
forth in Fritz v. Lexington-Fayette Urban County Government, Ky.
App., 986 S.W.2d 456, 458 (1999):
Under City of Louisville v. McDonald, [Ky., 470 S.W.2d
173 (1971)], when the legislative body denies the
requested change, the property owner must show the
decision was "arbitrary," and whether an action is
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arbitrary depends on whether the proponents of change
can show "[n]o rational connection between that action
and the purpose for which the body's power to act
exists." Id. at 178. The question then becomes
"[w]hether or not the evidence shows a compelling need
for the rezoning sought or clearly demonstrates that
the existing zoning is no longer appropriate." Id. at
179. McDonald, supra, establishes what a property
owner needs to show in order to be entitled to a zone
change. KRS 100.213 goes further than McDonald, supra,
and adds that in order to get the requested zone
change, the proponent must also show that the proposed
zoning classification is appropriate. Appellants
cannot read McDonald in a vacuum.
All zoning is mandated to follow the
comprehensive plan. KRS 100.201 and KRS 100.213(1)(a)
and (b). KRS 100.213 provides that before a zone
change request is granted, (map amendment), the
planning commission or respective legislative body must
find either that the request is in agreement with the
comprehensive plan or that the existing zoning
classification is inappropriate and that the proposed
zoning classification is appropriate; or that there
have been major changes of an economic, physical, or
social nature in the area which were not anticipated in
the current comprehensive plan and which substantially
alter the character of the area.
. . . In Kaelin v. City of Louisville, Ky.,
643 S.W.2d 590 (1982), our Supreme Court labeled zoning
change requests as trial-type hearings for the purpose
of determining the adjudicative facts necessary to
decide whether or not to grant the zone change. As
such, the taking and weighing of evidence is necessary
with "[a] finding of fact based upon an evaluation of
the evidence and conclusions supported by substantial
evidence." Id. at 591. The circuit court's review is
authorized by KRS 100.347 and American Beauty Homes
Corporation v. Louisville and Jefferson County Planning
and Zoning Commission, Ky., 379 S.W.2d 450 (1964). The
question on review is whether the administrative
agency's decision is supported by substantial evidence;
otherwise it's classified as arbitrary. Id. at 456.
In Danville-Boyle County Planning and Zoning Commission
v. Prall, Ky., 840 S.W.2d 205 (1992), our Supreme Court
held that in planning and zoning cases, the property
owner has the burden of proof, and judicial review is
limited to the question of whether the administrative
decision was arbitrary. "By arbitrary we mean clearly
erroneous and by clearly erroneous we mean unsupported
by substantial evidence." Id. at 208.
With this standard of review in mind, we now address the SCFC’s
arguments on appeal.
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As evidenced by the transcript of the public hearing
and its recommendation to the SCFC, the Commission had
determined, as part of its findings of fact, that the zoning
change was in agreement with the Comprehensive Plan.
this finding, the SCFC denied the zoning change.
Despite
As this Court
has previously held, the "planning commission does not have to
rezone solely because a request is in accordance with a
21st
comprehensive plan or its recommended land use element."
Century Development Co. v. Watts, Ky. App., 958 S.W.2d 25, 27
(1997).
KRS 100.213 does not mandate a specific result; it only
requires that certain findings be made before a zoning change is
granted.
Therefore, the SCFC may still deny a zoning change even
though it appears to be in agreement with the comprehensive plan.
The residents of the Hill-N-Dale subdivision who
opposed the zoning change did not contest the change from
agricultural, interchange, and commercial to a residential zoning
classification, but rather, they argued that the appellees’
residential development plan, which provided for the building of
22 homes on the six acres, was inconsistent with the nature of
the surrounding subdivision.
Specifically, the residents were
concerned with the R-3 zoning classification because it allowed a
minimum lot size of 7,500 square feet.
They believed that the
subject property was more suitable for an R-1 zoning change,
which requires a minimum of 12,500 square feet per lot.
The lots
provided for in the R-1 zoning classification more closely
resemble the present lots in the Hill-N-Dale subdivision which on
average run about 14,000 square feet.
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The residents also
expressed concern over the increase in traffic caused by the
addition of 22 homes in the area and the fact that the cul-de-sac
design of the development contained only one entrance and exit.
They pointed out that certain transportation improvements
provided for in the comprehensive plan to ease traffic
congestion, i.e. the widening of Kentucky Highway 55, have not
yet taken place.
The SCFC agreed with the residents and
recommended that the appellees resubmit an application to the
Commission for an R-1 zoning change.
Clearly, the SCFC concluded
that the area should be rezoned residential, but that an R-1
zoning classification was more suitable with the surrounding
area.
The appellees failed to demonstrate that the evidence
showed a compelling need for the R-3 zoning change.
City of
Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).
Next we turn to the issue of whether the SCFC acted
within the statutorily prescribed time period set forth in KRS
100.211(7).
The pertinent portions of KRS 100.211 provide:
(1) A proposal for a zoning map amendment may originate
with the planning commission . . . . Unless a majority
of the entire legislative body or fiscal court votes to
override the planning commission's recommendation, such
recommendation shall become final and effective and if
a recommendation of approval was made by the planning
commission, the ordinance of the fiscal court or
legislative body adopting the zoning map amendment
shall be deemed to have passed by operation of law.
(7) The fiscal court or legislative
final action upon a proposed zoning
within ninety (90) days of the date
planning commission takes its final
proposal.
body shall take
map amendment
upon which the
action upon such
In this case, the Commission held a public hearing on May 20,
1997, in which it voted to grant the appellees’ zoning
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application and forward its recommendation to the SCFC.
The SCFC
held an argument-type hearing and decided to deny the appellees
zoning application on September 2, 1997, clearly more than ninety
(90) days after the Commission made its recommendation.
Pursuant
to KRS 100.211, the circuit court determined that the SCFC’s
failure to legally override the Commission’s May 20, 1997,
recommendation within ninety (90) days caused it to become
enacted by operation of law.
Upon further review, we believe the
circuit court erred in its conclusion.
KRS 100.211(7) plainly states that the fiscal court or
legislative body must take its final action "within ninety (90)
days of the date upon which the planning commission takes its
final action upon such proposal."
According to the Zoning
Regulations for Shelby County, Kentucky, "[t]he deliverance of
the recommendation, with the approved Finding of Fact and
approved transcript, to the Fiscal Court or City
Council/Commission shall constitute the Final Action by the
Planning Commission on the map amendment."
1450.
Article XIV, Section
Bobby Stratton, County Judge Executive for Shelby County
and President of the SCFC, stated in an affidavit that the SCFC
received the Commission’s Findings of Fact in or around June 3,
1997.
Minutes from the SCFC’s meetings also establish that the
SCFC attempted to hold a hearing on the Commission’s
recommendation on the 8th and 22nd of July, but a transcript of
the public hearing was not available.
Under the terms of the
zoning regulations, the appellees were responsible for providing
a transcript of the public hearing to the SCFC.
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Id.
The
transcript was not delivered to the SCFC until August 1997.
Therefore, the SCFC’s hearing and decision on September 2, 1997,
was within the ninety (90) day period set forth in KRS
100.211(7).
For the reasons stated above, we reverse the judgment
of the Shelby Circuit Court and remand for entry of an order
reinstating the order of the Shelby County Fiscal Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
C. Gilmore Dutton III
Shelbyville, Kentucky
Gregg Y. Neal
Shelbyville, Kentucky
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