Request By:
Honorable John L. Arnett
City Attorney
128 West Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 13, in which you initially raise the following question with related facts:
"I would like an opinion on whether or not a Planning Commission is required to notify adjacent property owners of a Public Hearing to rezone certain real estate when there is a Buffer Zone between the proposed change and the property owners in question.
I am enclosing a copy of a Plat to assist you in the facts of the matter. The area cross-hatched was zoned R2 and the property owner requested an R4 rezoning. You will notice R2 in the Buffer Zone between the proposed change and Lots 82-87 of the Indiana Hills Subdivision. You will notice an area between a proposed street and the property of Ovid Maffett to the North. Only the property owners to the East (Valley Creek Association) and Lee Grimes were notified. "
Your question relates to the notice requirement under KRS 100.212 that is required prior to a hearing on a proposed zoning amendment. Subsection (2) of this statute requires such notice to be given to the owners of all property adjoining the property that is proposed to be reclassified. We have interpreted the phrase "adjoining property owner" in several prior opinions, namely, OAG 77-339 and 72-408 (copies attached) to mean those areas touching or contiguous to the property proposed to be changed. We have also said that this would not exclude a notice to property owners whose property is separated by a public street or a railroad right of way. However, where the property proposed to be reclassified is separated by other property, notice would not, in our opinion, have to be given. This would apply to the owners of Lots 82 through 87 and the Ovid Maffett property that is separated from the property proposed to be changed by other property. We thus agree with your conclusion concerning those property owners who were not notified.
Your second question is as follows:
"Also, in light of Ky. 503 S.W.2d 734, is testimony elicited at a Planning and Zoning Public Hearing to be sworn testimony? I think there is an Attorney General's Opinion which is in conflict with this Statute."
This office has taken the position in OAG 79-114 and 79-557 (copies enclosed) that the trial-type hearing required by the McDonald case and others, would require that testimony be taken under oath. The case that you cited, namely, Bellemeade Company v. Priddle, Ky., 305 S.W.2d 734 (1973), does indicate an exception to this requirement, but you will note that it is apparently conditioned on the massive evidence presented. The Court said, and we quote:
"This procedure sufficiently constituted trial-type hearings as referred to in the City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971) under the circumstances presented here."
We do not take this decision as indicating a general rule change to the effect that sworn testimony would not be necessary at this type of hearing. Therefore, the conclusions reached in the referred to opinions on this subject remain the opinion of this office.