Opinion
NO. 2019-CA-000295-MR
02-28-2020
CITY COMMISSION OF BOWLING GREEN, KENTUCKY APPELLANT v. MFG CUMBERLAND TRACE, LLC; MFG BOWLING GREEN LAND, LLC; AND FRIENDS OF OLD SCOTTSVILLE ROAD, LLC APPELLEES
BRIEFS FOR APPELLANT: H. Eugene Harmon Bowling Green, Kentucky Matthew P. Cook Bowling Green, Kentucky BRIEF FOR APPELLEES: Christopher T. Davenport Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 18-CI-00525 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. CLAYTON, CHIEF JUDGE: The City Commission of Bowling Green, Kentucky (the "City Commission") appeals from the Warren Circuit Court's order remanding the City Commission's denial of a request to rezone certain property back to the City Commission to make adequate findings of fact regarding such denial.
Upon review of the record and applicable case law, we affirm.
BACKGROUND
On November 22, 2017, MFG Cumberland Trace, LLC ("MFG") filed an application with the City-County Planning Commission of Warren County (the "Planning Commission") to rezone certain property located near the intersection of Old Scottsville Road and Cumberland Trace Road in Bowling Green, Kentucky, from single-family residential to multi-family residential. The proposed use under the application was to allow for the expansion of an existing apartment development.
The Planning Commission prepared a report on the proposal that detailed the area as it currently existed and the changes that would occur if the application was approved. Further, the Planning Commission held a trial-type hearing and received testimony from Planning Commission staff, as well as from residents of Old Scottsville Road. The chief complaint from the opposition was that the multi-family units would be visible from Old Scottsville Road, as well as concerns about increased traffic and changes to the residential character of the area.
Upon the closing of evidence, the Planning Commission voted to recommend the zoning amendment to the City Commission, as the City Commission was the legislative body of the City of Bowling Green responsible for establishing and overseeing the Planning Commission. Specifically, the Planning Commission found that, under Kentucky Revised Statutes (KRS) 100.213(1)(b), a zoning change in this situation was permissible because: "there ha[d] been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area." The Planning Commission also provided the City Commission with the record made before the Planning Commission.
The City Commission met on January 16, 2018. At that meeting, the Planning Commission's executive director spoke and answered questions from the City Commission. Moreover, counsel for the applicant made a presentation and argument, as did counsel for the rezoning opponents. After the hearing, the City Commission, by a 3-2 vote, voted to deny the zoning amendment. Thereafter, in an ordinance dated February 20, 2018 denying the zoning amendment, the City Commission provided "Facts and Conclusions" which stated, in applicable part:
WHEREAS, after reviewing all of the available information related to the rezoning, including the summary of evidence presented to the Planning Commission and the [City Commission], the testimony before the Planning Commission and arguments made before the [City Commission], the packet provided by the Planning Commission, the Summary Minutes and binding elements, the [City Commission] hereby rejects the recommendation of the Planning Commission and
denies the application to rezone the subject real estate based on the following facts and conclusions:The foregoing ordinance received final approval on March 6, 2018.
...
b. The [City Commission] disagrees with the Planning Commission that there have been major changes of an economic, physical or social nature within the Old Scottsville Road area which were not anticipated in the adopted Comprehensive Plan and which have substantially altered the basic character of the Old Scottsville Road area; and,
c. The [City Commission] finds that while there have been changes involving commercial and residential developments along Cumberland Trace Road, those commercial and residential changes were limited to the Cumberland Trace Road area and were anticipated in the Comprehensive Plan; and,
d. The [City Commission] further finds that there have not been any major changes of an economic, physical or social nature which were anticipated in the adopted Comprehensive Plan and which have substantially altered the basic character of the Old Scottsville Road area and that area remains as a low density residential area.
WHEREAS, based on these findings, it is in the best interests of the City to reject the recommendation of the Planning Commission and to deny the proposed rezoning of tracts of land containing 4.3658 acres located on Old Scottsville Road, from R-E (Residential Estate) and F (Floodplain) to RM-4 (Multi-Family Residential) and F (Floodplain).
MFG appealed the City Commission's decision to the Warren Circuit Court, arguing that the decision violated MFG's due process rights, as it failed to make adequate findings of fact, and that the City Commission's action was not supported by substantial evidence. The court determined that the City Commission had failed to make required adjudicative facts and remanded the decision back to the City Commission with instructions to do one of the following: "(1) follow the Planning Commission's recommendation; (2) make adequate findings of fact and reference evidence used to support its conclusions from the Planning Commission's record; or (3) hold its own trial-type hearing and make adequate findings of fact." This appeal followed.
ANALYSIS
a. Standard of Review
Judicial review of administrative actions, including zoning decisions, involves a determination of whether the agency action was arbitrary. Board of Com'rs of City of Danville v. Davis, 238 S.W.3d 132, 135 (Ky. App. 2007); see also Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky. 1982). In determining whether an action is arbitrary a reviewing court "is limited to the consideration of three basic questions: (1) whether an action was taken in excess of granted powers, (2) whether affected parties were afforded procedural due process, and (3) whether determinations are supported by substantial evidentiary support." Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464, 467 (Ky. 2005) (citation omitted).
b. Discussion
On appeal, the City Commission argues that the circuit court erroneously held that it did not make satisfactory adjudicative findings in support of its decision not to follow the Planning Commission's recommendation, thereby running afoul of the procedural due process requirements involved in rezoning decisions.
Kentucky jurisprudence recognizes that, to conform to the mandates of procedural due process in a rezoning situation, a legislative body has three alternatives if - as in this situation - a planning and zoning commission conducts a trial-type due process hearing and makes factual findings in support of the planning and zoning commission's recommendation to either accept or deny a rezoning request. City of Louisville v. McDonald, 470 S.W.2d 173, 179 (Ky. 1971). First, "the legislative body may follow the commission's recommendation without a hearing or only an argument-type of hearing." Id. Second, "[t]he 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." Id. Third, "[t]he 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." Id.
As specifically concerns the second option described above, in McKinstry v. Wells, a panel of this Court held that a legislative body acts arbitrarily when it fails to follow the planning commission's recommendations but makes no independent findings of adjudicative facts which differ from those found by the planning commission. 548 S.W.2d 169, 173-74 (Ky. App. 1977); see also McDonald, 470 S.W.2d at 179. Further, when describing what constituted an "adjudicative fact," the Court in McKinstry noted that such independent findings should be based on the individualized circumstances involved in a particular situation - that is, facts which "answer the question of who did what, where, when, how, why, [or] with what motive or intent[.]" McKinstry, 548 S.W.2d at 173 (citation omitted). Finally, as stated in McKinstry, it matters not whether the legislative body's decision is one to grant or to deny the application for the rezoning. "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 zone map amendment must be supported by a finding of adjudicative facts." Id. at 174 (emphasis added).
Further, Kentucky courts have held that a legislative body's set of findings:
which consist[] of nothing other than a repetition of the legal requirements as set out by a statute fail[] to meet the requirements of due process, in that such finding[s] do[] not contain sufficient adjudicative facts to permit a court to conduct a meaningful review of the proceeding for the purpose of determining the question of whether the action [taken] has or has not been arbitrary.Caller v. Ison, 508 S.W.2d 776, 776-77 (Ky. 1974). Along those same lines, as stated in City of Beechwood Village v. Council of and City of St. Matthews:
The finding of an ultimate fact, (which is usually little more than a conclusion), unaccompanied by a finding of any basic facts which support the ultimate finding often renders appellate review impossible. The reviewing court has no way to determine whether the ultimate finding was made arbitrarily if it does not have before it the facts upon which the finding was based.574 S.W.2d 322, 324 (Ky. App. 1978) (citation omitted).
As previously discussed, in this case, the Planning Commission proceeded under the basis of KRS 100.213(1)(b), which requires the planning commission or appropriate legislative body, when deciding to rezone a particular property, to make a finding that there had "been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area."
Here, the City Commission's ordinance contained four "Findings of Fact," three of which addressed the proposed zoning amendment. The first relevant finding, finding (b.), merely recited the statutory language contained in KRS 100.213(1)(b), stating that the City Commission disagreed with the Planning Commission "that there have been major changes of an economic, physical or social nature within the Old Scottsville Road area which were not anticipated in the adopted Comprehensive Plan and which have substantially altered the basic character of the Old Scottsville Road area[.]" The second relevant finding, finding (c.), while differentiating between the Old Scottsville Road area and the Cumberland Trace Road areas, again was a mere recitation of the statutory language, stating that, while the City Commission found that "there have been changes involving commercial and residential developments along Cumberland Trace Road, those commercial and residential changes were limited to the Cumberland Trace Road area and were anticipated in the Comprehensive Plan[.]" Similarly, finding (d.) again recited statutory language contained in KRS 100.213(1)(b), although it did add that the Old Scottsville Road "remain[ed] as a low density residential area."
In contravention of Kentucky case law, however, the foregoing findings are "a mere parroting of the language of the statute" - a practice specifically disallowed under Caller, supra, and City of Beechwood Village, supra. The City Commission's findings do not contain a statement of what specific facts led them to disagree with the Planning Commission that major changes had occurred within the Old Scottsville Road area or that such changes were not anticipated under its comprehensive plan. Further, the City Commission's findings do not explain how it came to the ultimate conclusion that any major changes were limited to Cumberland Trace Road and were anticipated under its comprehensive plan, or in what manner such changes had substantially altered the basic character of the area.
The City Commission argues that, because support for the "ultimate facts" contained in its ordinance could be found in the record, then its failure to include more specific adjudicative facts in its ordinance was adequate, citing language from Edlin v. Fiscal Court of Jefferson County which simply states that "finding of facts must be supported by the record." 497 S.W.2d 229, 230 (Ky. 1973). We find the decision in Caller requiring the legislative body to provide specific adjudicative facts to be more persuasive, however, as both Caller and City of Beechwood Village were decided after Edlin. Moreover, the sufficiency of the legislative body's findings of fact was not at issue in the Edlin decision. Therefore, the City Commission was required to articulate specific findings of relevant fact to bolster the "ultimate fact" that the statutory conditions had been met. When determining whether a legislative body's decision is arbitrary, a reviewing court's role is not to search the record for such facts, but rather to be provided the facts "to conduct a meaningful review of the proceeding[.]" Caller, 508 S.W.2d at 777.
CONCLUSION
Based on the foregoing, we agree with the circuit court that the City Commission's findings were insufficient under applicable Kentucky case law to comport with procedural due process. We therefore affirm the Warren Circuit Court's order.
ALL CONCUR. BRIEFS FOR APPELLANT: H. Eugene Harmon
Bowling Green, Kentucky Matthew P. Cook
Bowling Green, Kentucky BRIEF FOR APPELLEES: Christopher T. Davenport
Bowling Green, Kentucky