Request By:
Honorable Robert A. Miller
Attorney at Law
Brandenburg, Kentucky 40108
Opinion
Opinion By: Steven L. Beshear
This is in response to your letter of April 20 in which you refer to the fact that the city of Brandenburg, a city of the fifth class, is presently organized under the mayor-council form of government pursuant to KRS Chapter 83A. Your question is as follows:
"May the mayor of the city cast a vote to break a tie in the voting of the city council regarding a recommendation of the planning commission to disapprove a zoning map amendment application from 'R-1 SINGLE FAMILY RESIDENTIAL' to 'R-3 MULTI-FAMILY RESIDENTIAL' if all rules regarding publications, hearings and formal fact-findings have been properly followed."
With respect to the above question you relate that the planning commission made a formal findings of fact and recommended to the council that a zoning map amendment be disapproved pursuant to KRS 100.211. Following this, at a regularly scheduled city council meeting where all six (6) members of the council were present, a roll call vote was held with three (3) members voting to affirm and three (3) members voting to override the recommendation. The mayor then proceeded to break the tie by casting the deciding vote to override the commisison's recommendation and thus approve the requested zoning change. KRS 100.211, relating to zoning amendments, contains the following provision:
". . . 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 or the entire legislative body or fiscal court to override the recommendation of the planning commission. (Emphasis added).
KRS 83A.130(5) contains the following:
". . . The mayor may participate in council meetings, but shall not have a vote, except that he may cast the deciding vote in the case of a tie. " (Emphasis added).
In OAG 78-826, copy attached, looking at KRS 86.070, now repealed, as to a city council's handling of a matter under KRS 100.211, we concluded that the mayor could have broken a three (3) to three (3) tie vote to affirm the commission's recommendation. KRS 83A.130, as enacted in 1980, has substantially replaced the provisions contained in KRS 86.070. Thus, we believe the mayor was entitled to break the tie vote in the situation you have presented under the authority of KRS 83A.130(5). We do not believe the fact the question being voted on was to override a commission's recommendation rather than to affirm a commission's recommendation, as was the situation discussed in OAG 78-826, supra, bears any significance. The mayor simply has the right to break a tie vote of the city council.