Request By:
Taft A. McKinstry, Esq.
Fowler, Measle & Bell
Suite Four A
Citizens Bank Square
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions in the area of planning and zoning which involve actions of the Woodford County-Versailles-Midway Planning and Zoning Commission.
One of the Commission's members is a member of a group of prospective developers of a tract of land known as the Wells Farm. In 1972 a request was made to the planning and zoning commission to rezone the Wells Farm tract from an agricultural classification to a residential and business classification. The matter generated numerous law suits and apparently is still unresolved.
In 1975 the planning and zoning commission began the required review of the comprehensive plan elements pursuant to KRS 100.197. One of the proposals included the concept of an urban services area, an area set out in the comprehensive plan which would include most of the county's future residential, commercial and industrial growth and outside of which would remain agricultural land. In the Spring of 1976 the proposed urban services area included the Wells Farm tract subject to court determination that the previously requested zone change should be permitted.
On March 10, 1977, the planning commission voted on the comprehensive land use map, with the Wells Farm tract included in the urban service area, and on the comprehensive plan in its entirety. Seven of the nine commission members were present and five of them, including the commission member with the interest in the Wells Farm tract, voted to adopt both the land use map with the Wells Farm tract included in the urban service area, and the comprehensive plan in its entirety. It was then announced that the plan had been adopted and that no further action was necessary. You state, however, that, at no time, had the goals and objectives been submitted to the city legislative bodies and the fiscal court for adoption pursuant to KRS 100.193.
Several of your questions involve adoption of the amended comprehensive plan by the commission. You ask whether the goals and objectives contained in the revised comprehensive plan should have been approved first by the city legislative bodies and the fiscal court, and, if so, what effect this omission has on the planning and zoning commission's vote to adopt the amended comprehensive plan on March 10, 1977. You also ask whether the procedure for adopting the amended comprehensive plan has been completed.
KRS 100.197 provides in part as follows:
". . . The comprehensive plan elements, and their research basis, shall be reviewed from time to time in light of social, economic, technical and physical advancements or changes. The procedure for amendment shall be the same as for the original adoption. The elements shall be reviewed and amended, if necessary, at least once every five years, but no comprehensive plan shall be declared invalid on the grounds that the review was not performed." (Emphasis supplied.)
KRS 100.193 states in part:
"The planning commission of each planning unit shall prepare and adopt the statement of objectives and principles to act as a guide for the preparation of the remaining elements and the aids to implementing the plans. The statement shall be presented for consideration, amendment and adoption by the legislative bodies and fiscal courts in the planning unit. . . ."
In OAG 76-86, copy enclosed, we said KRS 100.193 provides that the commission of each planning unit shall prepare and adopt the statement of objectives and principles to act as a guide for the preparation of the remaining elements of the comprehensive plan. Such statement must be approved by the various members of the planning unit. "It would thus appear that the statement of objectives as required by KRS 100.193 must be adopted by the various members of the unit before the adoption of the comprehensive plan pursuant to KRS 100.197." See also OAG 75-708, copy enclosed, and Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 Ky. L.J. 556, 582 (1967-68).
Therefore, the statement of objectives and principles, prepared and adopted by the planning commission of the planning unit, must be adopted by the city legislative bodies and the fiscal court in the planning unit before the comprehensive plan is adopted pursuant to KRS 100.197. In the absence of such action by the legislative bodies and the fiscal court the procedures for adopting or amending a comprehensive plan are incomplete and a comprehensive plan cannot be adopted or amended.
Your next set of questions, concerning a conflict of interest situation and its implications on the planning commission's actions of March 10, 1977, would be moot if the commission was not in a position to legally adopt or amend a comprehensive plan because of the failure to comply with KRS 100.193 and the prior adoption of the statement of objectives and principles by the legislative bodies and the fiscal court.
We would, however, direct your attention to KRS 100.171 which provides in part as follows:
". . . Any member of a planning commission who has any direct or indirect financial interest in the outcome of any question before the body shall disclose the nature of the interest and shall disqualify himself from voting on the question, and he shall not be counted for the purpose of a quorum. . . ."
See also Yokley, Zoning Law and Practice, 3rd Ed., Vol. 2, § 11 - 5, and Rathkopf, The Law of Zoning and Planning, 3rd Ed. Vol. 1, Chap. 22, § 3, to the effect that no member of a zoning or planning board would be permitted to act upon any matter in which he had, either directly or indirectly, any personal or financial interest. Under Kentucky law one improper or invalid vote, however, would not contaminate the whole proceeding so as to make the actions void, provided there were a sufficient number of votes without counting the one cast by the person with the conflict of interest. On this particular point we refer to OAG 74-172, pages 9-10.