Request By:
Mr. Sam Santell
Community Planner
FIVCO Area Development District
P.O. Box 636
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting questions concerning the process the legislative body follows after it receives a recommendation from the planning commission on a zoning amendment. In connection with your questions you relate the following fact situation: On July 16, 1979, the planning commission passed a motion to accept a valid petition requesting a zoning amendment. A motion was passed to hold a public hearing on August 9, 1979. After fulfilling the notice requirements of KRS Chapter 100, the commission conducted a public hearing and gathered information from those opposed to and in favor of the zoning amendment. On September 17, 1979, the planning commission passed a motion recommending that the zoning amendment be denied. The commission forwarded its recommendation to the city council along with the minutes of the public hearing and all documentation it had gathered. On October 1, 1979, the city council passed a motion to accept the planning commission's recommendation and it denied the proposed zoning amendment.
Counsel for the city contends that if the ruling of the city council on the amendment is against the petitioner, the city council must hold its own public hearing. You maintain that a public hearing by the Council is not required by the law. Your specific questions are as follows:
"1. After the Planning Commission has held a public hearing and has passed their recommendations on to the City Council, along with all evidence and documentation gathered by them, does the City Council, being the legislative body, have to hold a public hearing of its own in order to make a decision on the petitioner's request?
2. Under what circumstances does the law dictate the legislative body (City Council) to hold a public hearing in considering a zoning amendment?
3. In Montfort vs. Archer under the principles of McDonald, the term 'trialtype' hearing is referred to, if possible could you clarify the term 'trial-type' for us."
KRS 100.211 deals with amendments to the zoning regulations and it provides in part as follows:
". . . The planning commission shall then hold at least one (1) public hearing after notice as required by KRS Chapter 424 and make recommendations to the various legislative bodies or fiscal courts involved, and it shall take a majority of the entire legislative body or fiscal court to override the recommendation of the planning commission. "
In City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the Court said that constitutional due process requires a trial type of hearing by the planning commission for the purpose of determining the adjudicative facts necessary to decide the issue. This includes a hearing, the taking and weighing of offered evidence, a finding of fact based upon a consideration of the evidence and conclusions supported by substantial evidence. At page 179 of its opinion the Court wrote:
"If the zoning commission conducts a trial-type due process hearing and based thereon makes factual findings and a recommendation, the legislative body may follow the commission's recommendation without a hearing or only an argument-type of hearing. The record made before the commission must adequately reflect the elements necessary for judicial review to determine whether the ultimate action was arbitrary. The legislative body may review the record made before the commission and determine from that evidence adjudicative facts which differ from those found by the commission. Again, in this event, the record made before the commission must reveal the proper elements to be considered on judicial review. The legislative body also may hold its own trial-type hearing and may find as a result thereof different adjudicative facts than those found by the commission. . . ."
In Montfort v. Archer, Ky., 477 S.W.2d 144 (1971), the Court said:
"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. "
In McKinstry v. Wells, Ky. App., 548 S.W.2d 169 (1977), the appellants asserted that the holding in McDonald, supra, has been modified by later decisions, including Montfort, supra. Appellants construed the post- McDonald cases to hold that the legislative body is required to make findings of adjudicative facts only if it grants a zoning amendment. The Court said the cases referred to extend, rather than limit, the holding in McDonald, supra. If the legislative body does not follow the recommendations of the planning and zoning commission, the legislative body must make its own findings of adjudicative facts. Any decision to grant or deny an application for a zoning amendment must be supported by a finding of adjudicative facts. Note that the Court defines "adjudicative facts" at page 173 of its opinion.
See also Manley v. City of Maysville, Ky., 528 S.W.2d 726 (1975); Edlin v. Fiscal Court of Jefferson County, Ky., 497 S.W.2d 229 (1973); Hays v. City of Winchester, Ky., 495 S.W.2d 768 (1973).
In the fact situation presented, the legislative body agreed with the planning and zoning commission's recommendation that the zoning change should not be granted. Thus, in answering your first question, if the planning and zoning commission conducted a trial-type of due process hearing and based thereon made factual findings supported by the evidence contained in the record, the legislative body could follow the commission's recommendation without a hearing or only an argument-type of hearing. KRS 100.211 requires that the planning commission hold at least one public hearing where an amendment to zoning regulations is involved.
In answering your second question as to when a hearing must be held by the city legislative body, we refer you to the McDonald and Wells cases, supra, where it was stated that if the planning and zoning commission conducts a trial-type due process hearing and makes factual findings in support of its recommendations, the legislative body has three alternatives. The first is set forth in the paragraph immediately above (follow the commission's recommendation without a hearing or only an argument-type hearing); second, the legislative body may review the record made before the commission and determine from that evidence adjudicative facts which differ from those found by the commission; third, the legislative body may hold its own due process hearing and, based upon the evidence presented at that hearing, find different adjudicative facts than those found by the commission.
In connection with an explanation of a "trial-type" hearing we refer you to City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971) and OAG 79-114, copy enclosed, and the authorities and principles cited therein. At such a hearing witnesses must testify under oath administered by a notary or some other officer authorized by law to administer such oath. A transcript of the testimony must be made and the planning and zoning commission must make a finding of fact in writing based upon the evidence presented and must issue an order based on that evidence to permit a judicial review of its action.