Request By:
Honorable James T. Kelley
Attorney at Law
115 West Poplar Street
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 29 in which you, as attorney for the Elizabethtown Board of Adjustments, have been requested by the city planning commission to relate the following facts and question.
". . . The Commission, in many instances, receives requests for a zoning change from some citizen in the community, and after public hearing and consideration of the arguments, both pro and con. the Commission, in lieu of granting or denying the requested zoning change, has elected to recommend to the City council of Elizabethtown that a more restrictive zoning classification may be appropriate. In substance, individuals have been applying for one type of residential zoning which may permit multi-family housing, but the Commission recommends a zoning change on a more restrictive residential zoning, which may permit duplexes or single family housing.
"The Planning Commission would appreciate your advice as to whether or not this policy is legal under Kentucky, or should the Commission limit its actions to recommending approval or disapproval of the particular amendment in question."
In response to your question reference is made to KRS 100.211 (1), which reads as follows:
"(1) A proposal for amendment to any zoning regulation may originate with the planning commission of the unit, with any fiscal court or legislative body which is a member of the unit, or with the owner of the property in question. Regardless of the origin of the proposed amendment, it shall be referred to the planning commission before adoption. The planning commission shall then hold at least one (1) public hearing after notice as required by KRS 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. "
You will note from the above quoted statute that zoning amendments can be proposed by the planning commission, the legislative body or by the owner of the property in question. Of course, if the planning commission itself originates a proposed change, we believe it can, following the required hearing, change its recommendation to the legislative body in a way that is in complete variance with the original proposal. On the other hand, though we find no cases in point, we believe that where a proposed change is made by a proporty owner, the zoning commission, pursuant to a fact finding hearing, must either recommend that the proposed change be adopted or denied in whole or in part. In other words, it may recommend a modification in the proposed zone but not a different zone from that proposed. The reason we believe its review authority is thus restricted is found in several cases indicating that the legislative body, upon reviewing the recommendation of the planning commission, can apparently adopt a modification of the recommendation. In the case of Montfort v. Archer, Ky., 377 S.W.2d 144 (1971), an application to rezone an entire tract of land from M-2 to M-3 (light to heavy industrial) was initially made to the planning and zoning commission. Following a hearing the commission recommended demial of the application.
The fiscal court, however, rezoned the tract in part only to that of M-3 but did so without a hearing. Though the court declared that the fiscal court's action was arbitrary, it was apparently based solely on the principle that the fiscal court had made no finding of fact that would sustain its action. We quote from this case as follows:
"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. " (Emphasis added.)
See also OAG's 72-373 and 74-334.
Under the circumstances, we believe that a zoning commission is restricted in its recommendation of a zoning change proposed by a property owner to its approval, denial or at most a modification which must remain within the confines of the proposal and not involve a more restrictive classification.