Request By:
Mr. Frank Lucician
Community Planner
FIVCO Area Development District
P.O. Box 636
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 17 in which you seek an opinion regarding the procedure for changing zoning regulations under KRS 100.321. KRS 100.321 and the questions raised are as follows:
KRS 100.321 - Planning commission to approve changes in zoning regulations --
"Any legislative body in the planning unit must refer any change to the zoning regulation or official map regulation to the commission for its review before adoption. The commission shall review the proposal, and shall, within sixty (60) days from the date of its receipt, advise the legislative body whether it approves or disapproves of the change, and if it disapproves, state the reasons for disapproval. A majority of the entire membership of the referring legislative body shall be required to override the disapproval by the planning commission. "
Regarding this section, your questions are:
"1) Does an approval of a zoning amendment request by a planning commission mean that said request is approved with no further action necessary.
"2) Does an amendment request that has been approved by the planning commission go on to the city council for its approval?
"3) Does the legislative body have the authority to override an approval given by the planning commission by a majority vote of the entire membership? "
In response to your initial question you will note that KRS 100.321 requires the legislative body t refer the proposed change in a zoning regulation to the commission for its review before adoption. As a consequence, following the approval of the proposed zoning amendment by the planning commission, it must then be adopted, to become effective, by the city legislative body pursuant to an appropriate amendment to the city's zoning regulations. As pointed out in the case of City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the ultimate decision on any proposed zoning change must be made by the city legislative body.
Your second question has apparently been answered above in that following the planning commission's approval of the proposed amendment, it must then be referred to the city legislative body for final adoption or rejection.
In answer to your third question, any proposed zoning change approved by the planning commission may be rejected by a majority vote of the legislative body, however, assuming the commission based its recommendation on facts derived from a trial-type hearing [KRS 100.211], the negative decision by the city legislative body cannot be arbitrary but must be supported by substantial evidence adduced from either the facts derived from the commission's hearing or from facts found as a result of its own subsequent hearing. See City of Louisville v. McDonald, supra. In a later case styled Montfort v. Archer, Ky., 477 S.W.2d 144 (1971), the court declared that:
"Under the principles of McDonald, if the legislative body does not follow the zoning commission's recommendation against a zoning change, and makes a change, the legislative body must make a finding of adjudicative facts, either from (and supported by) the record at the trial-type hearing held by the zoning commission, or from (and supported by) the record at a trial-type hearing held by the legislative body. "
See also Resource Development Corp. v. Campbell Co. Fiscal Court, Ky., 543 S.W.2d 225 (1976).
The fact that KRS 100.321 only mentioned the "overriding" of a "disapproved" zoning change by the commission is of no significance in the legislative body's right to override an "approved" zoning change in light of the cited cases and the specific authority to do so given it in KRS 100.211, which must be read in conjunction with KRS 100.321. See also OAG 67-129 (copy attached).