Request By:
Honorable David J. Holzderber
Attorney at Law
31 East Tenth Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 21 in which you, as city attorney for the city of Crestview [a sixth class city], request an opinion on behalf of the Board of Trustees concerning the propriety of removing a member of the board for the following reasons:
"In mid -1977, the board of trustees approved and adopted a zoning ordinance in compliance with K.R.S. 100 et. seq. The Northern Kentucky Area Planning Commission assisted the city in this endeavor.
"In November, 1977, (after the new zoning ordinance was in place) and again in January, 1978, a trustee and spouse requested a usage change to the zoning ordinance. The board denied these requests. On February 3, 1978, the trustee and spouse filed suit in Campbell Circuit Court seeking to have the zoning ordinance invalidiated by reason of improper adoption. The trustee who filed the suit was a trustee and voted in favor of adopting the zoning ordinance when it passed in mid -1977."
To begin with, the laws pertaining to cities of the sixth class contain no provision for the removal of elected city officers though the state legislature is authorized to make such a provision under § 160 of the Constitution. Thus, the only method of removing a member of the city council is by impeachment before the General Assembly pursuant to § 68 of the Constitution and KRS 63.020. The Attorney General is, of course, authorized to remove any city officer who becomes a usurper by reason of being disqualified from holding the office; however, the facts in this instance in no way involve disqualification or usurpation of office.
We also do not believe that the related facts in any way indicate sufficient grounds for removing a member of the board since we do not believe that the activities of the board member violated any law. The fact that he is a member of the board and initially voted in favor of adopting the zoning ordinance in no way prevents him, from a legal standpoint, from later acting in a private capacity to contest the validity of the procedure utilized in adopting the zoning ordinance where his private property interests are involved.