Opinion
No. 2002-CA-001081-MR.
October 10, 2003.
Appeal from Boone Circuit Court, Honorable Joseph F. Bamberger, Judge, Action No. 00-CI-01144.
William T. Robinson III, Covington, Kentucky, Paul B. Whitty, Louisville, Kentucky, Brief for Appellant.
Paul B. Whitty, Louisville, Kentucky, Oral Argument for Appellees.
Jeffrey C. Mando, Mary Ann Stewart, Covington, Kentucky, James R. Schrand, Burlington, Kentucky, Brief for Appellees.
Jeffrey C. Mando, Covington, Kentucky, Oral Argument for Appellants.
Before: BARBER, COMBS, and KNOPF, Judges.
OPINION
Hilltop Basic Resources, Inc., and others (referred to collectively as "Hilltop") appeal from a decision of the Boone Circuit Court affirming a decision of the Boone County Fiscal Court to override the recommendation of the Boone County Planning Commission to approve Hilltop's application for a zoning map amendment. For the reasons set forth below, we vacate and remand.
In December 1999, Hilltop submitted to the Boone County Planning Commission an application for a zoning map amendment. At issue was a 534-acre area currently zoned for agricultural use which is located north of I-275 along the southern bank of the Ohio River in Boone County. Hilltop proposed that this tract be rezoned in order to accommodate its limestone mining operation. The proposal met with considerable public opposition. Following a public hearing in January 2000, the zone change committee of the planning commission held five meetings to review the details of Hilltop's application in relation to Boone County's zoning regulations and comprehensive plan. The committee concluded that the proposed use of the property was in compliance with the requirements of the zoning regulations and that it was consistent with the comprehensive plan.
In May 2000, the committee voted to recommend to the planning commission that Hilltop's application be conditionally approved. Some weeks later, that vote was supplemented by a "Committee Report" that documented the basis for the committee's findings and recommendations.
Despite the findings and recommendations of its committee, the planning commission voted down a motion to approve Hilltop's application for the zoning map amendment. The planning commission directed its staff to prepare written findings of fact supporting the commission's pending denial of the application.
At the planning commission's next meeting in June 2000, the staff presented the proposed findings for denial. Unexpectedly, however, and by a narrow margin, the planning commission decided to reject the proposed staff findings, voting instead to recommend approval of Hilltop's application subject to several conditions. The commission adopted a resolution recommending approval of the proposed zoning change in accordance with the previously prepared report of the zone change committee.
Hilltop's application proceeded on to the Boone County Fiscal Court for consideration. The fiscal court was presented with the extensive record compiled by the planning commission — including testimony from the initial public hearing and evidence developed over the course of the five meetings of the planning commission's zone change committee. The fiscal court received the planning commission's final recommendation for approval. It also reviewed a copy of the proposed findings of fact for denial of the application that the staff had prepared and that the planning commission later rejected. During a meeting conducted in July 2000, the fiscal court questioned the staff about the merits of the application.
Since an extensive administrative record had been compiled by the planning commission, the fiscal court decided to dispense with a trial-type hearing to consider Hilltop's application. On August 29, 2000, it opted instead to proceed with an argument-style hearing consistent with requirements outlined by the Kentucky Supreme Court in City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).
When a legislative body such as a fiscal court determines legislative facts, it may do so without a hearing unless a hearing is required by legislation which is applicable to the body concerned. City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971). With respect to adjudicative facts, the legislative body [here, the fiscal court] has three alternatives if the planning and zoning commission conducted a trial-type due process hearing and made factual findings in support of its recommendation. First, the legislative body may 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 trial-type hearing and, based upon the evidence presented at that hearing, find adjudicative facts different from those found by the commission. Id.
A member of the planning commission addressed the fiscal court and explained the recommendation for approval; Hilltop's attorney made a presentation in support of its application for the zone map amendment. County residents opposed to the mining operation were then allowed to address the fiscal court, limiting their comments to matters contained in the administrative record. Following the hearing, the fiscal court voted pursuant to Kentucky Revised Statutes (KRS) 100.211 to override the recommendation of the planning commission. As a basis for the denial for the proposed zoning map amendment, the fiscal court adopted the findings of fact originally presented to the planning commission by its professional staff.
County Commissioner Lance Lucas had recused himself from the proceedings on the basis of a conflict of interest.
On appeal, the Boone Circuit Court concluded that the fiscal court's decision to override the recommendation of the planning commission was neither arbitrary nor erroneous as a matter of law and rejected Hilltop's contention that it had been deprived of due process as a result of the fiscal court proceedings. The trial court affirmed the decision of the fiscal court; this appeal followed.
Hilltop argues that the circuit court erred in failing to determine that the fiscal court had acted arbitrarily in denying the proposed zoning map amendment. It argues that the fiscal court failed to make adequate findings of fact, that its findings were not supported by substantial evidence, and that it otherwise deprived Hilltop of due process. Hilltop seeks an order declaring approval of its application in accordance with the recommendation of the planning commission.
Under KRS 100.347 and American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning, Ky., 379 S.W.2d 450 (1964), judicial review in zoning cases is limited to the sole question of whether the administrative decision was arbitrary. Fritz v. Lexington-Fayette Urban County Gov., Ky.App., 986 S.W.2d 456 (1998). In addition to its general lawmaking functions, a local legislative body often acts with respect to a particular individual or entity involved with specific and unique facts. In all of its deliberations, it must comply with the requirements of due process. City of Louisville, supra. In our judicial review, we must focus on whether the action was arbitrary; i.e., whether the basic elements of due process were afforded the parties. Id. Due process encompasses effective notice, an opportunity to be heard, and an impartial tribunal.
In light of the serious allegation by Hilltop that the Boone County Fiscal Court failed to provide an unbiased, impartial tribunal, we have analyzed this argument first. In so doing, we have concluded that this issue alone is dispositive of the appeal, rendering moot and superfluous a consideration of Hilltop's other arguments.
Hilltop claims that it was denied a fair hearing before the fiscal court since two of its members had pre-judged the issue of whether the zone map amendment application should be approved. It points to allegedly prejudicial statements, both written and oral, made by County Commissioners Cathy Flaig and Robert Hay prior to the argument-style hearing conducted by the fiscal court in mid-August 2000.
Zoning decisions are particularly vulnerable to charges of bias and conflicts of interest because they inevitably involve the intermingling of the adjudicative, legislative, and political roles of a local legislative body on sensitive or inflammatory issues of public interest. Marris v. City of Cedarburg, 498 N.W.2d 842 (Wis. 1993). Local legislative bodies are composed of "elected officials who represent the community and will be subjected from time to time to contact from constituents concerning issues, upon which they must ultimately decide." Hougham v. Lexington-Fayette Urban County Gov., Ky.App., 29 S.W.3d 370 (1999). Despite such pressures, an unbiased decision-maker is the critical component of fundamental fairness, the " sine qua non" of due process. The very perception that a decision-maker may have prematurely judged the issues taints the proceedings and erodes public confidence. Id.
In point of fact, "the presence of a truly unbiased decision maker can make up for other significant procedural inadequacies." John R. Allison, Ideology, Prejudgment, and Process Values, 28 New Eng.L.Rev. 657 (1994).
Common sense and reality dictate that a member of a fiscal court is likely to have an opinion or at least an impression with respect to local land use planning issues. Consequently, a commissioner's general opinions on land use and development would not disqualify him from hearing a zoning matter. See Marris, supra. In contrast, however, blatant revelations of personal bias indicating prejudgment of an issue in a pending case are wholly repugnant to the guarantee of fundamental fairness.
And thus we undertake an analysis of the disputed statements of Commissioners Flaig and Hay — mindful of the conflicting elements of political pressures versus duty of impartiality inherent in the exercise of their duties.
Hilltop contends that certain ex parte communications between and among Flaig, Hay, and various county residents indicate that the commissioners were "steadfast opponents to mining activities generally." Brief at 4. Hilltop specifically objects to an electronic-mail message drafted by Commissioner Hay on July 30, 2000, and a series of messages sent to Peggy Taylor, an opponent of Hilltop's application, on August 29, 2000. Hilltop contends that in these messages and publicly at the hearing on August 29, Hay openly expressed his hostility to the permitting of subsurface mining anywhere in the county.
As an additional example of Hay's bias, Hilltop cites his comments following the fiscal court's vote on the ordinance concerning a zone in which mining would be permitted. In his vote to deny the application, Hay relied on matters outside the administrative record (according to Hilltop) and even bolstered his bias by suggesting to a constituent that the preliminary draft version of findings of fact (for denial of the application as prepared by the planning commission staff) could be "recycled if necessary."
Hilltop charges that Flaig's statements also conveyed her prejudice. According to Hilltop, Flaig told a Boone County property owner that regardless of how Hilltop's proposed mining activity might benefit the county, "she would never vote for a mine in this area of Boone County," adding that "[t]he people in Boone County just don't want it." Brief at 6, 20. Hilltop asserts that this barefaced statement indicates that Flaig was determined to ignore the facts and the law, that she could not consider the evidence with an "open mind," and that she was ready and willing to exercise her power arbitrarily. Hilltop contends that the comments made by these commissioners indicate that they could not participate in a fair hearing nor could they render an unbiased decision on the merits of the application.
Boone County and the fiscal court contend that Hay's statements — when reviewed in context — do not demonstrate any prejudgment of the issue to be decided. They argue that Hay's comments and electronic mail messages reveal "that he had not made up his mind about Hilltop's application, and was strongly weighing the merits of the proposed development." Brief at 23. Included in one of the electronic transmissions is Hay's statement that "I can only decide if the land use is appropriate considering the Comp. Plan."
With respect to Commissioner Flaig's statement that she "would never vote for a mine in this area of Boone County," the county and fiscal court deny that it was indicative of a bias against Hilltop's application. They claim that at the time of this alleged conversation, Commissioner Flaig had already obtained and reviewed the administrative record. Her statement following a survey of this evidence, therefore, amounted to an innocuous "comment on what she had reviewed."
Having carefully reviewed in context the commissioners' full comments, we are not convinced that Hilltop received a fair and impartial hearing before the fiscal court. We believe that an impartial observer might reasonably deduce from these statements the fact or impression that members of the fiscal court had in some measure determined and judged the facts as well as the law of this case well in advance of hearing it. As a result, we conclude that Hilltop was deprived of due process and must be afforded an opportunity for objective factfinding by an unbiased decision-maker.
Our decision is not based on any allegedly "improper ex parte contact" between the officials and their constituents. We reverse based upon the unavoidable perception that the commissioners' comments revealed an improper bias. Taken together, the statements create a clear appearance of impropriety in derogation of the presumption that the proceedings were undertaken in conformity with the fairness and integrity integral to due process.
Vowing in advance of a fair hearing "never to vote for a mine in this area of Boone County" negates any vestige of impartiality. Nor do impartial decision-makers declare that a thoughtful consideration of the issues might be avoided by "recycling" previously prepared and rejected findings of fact. Regardless of a commissioner's philosophical predilections with respect to land use issues, unequivocal comments indicating a fixed intent as to a pending application cannot be justified or explained away. The appearance of impropriety is overwhelming.
While the commissioners would argue that such comments had been directed at reassuring concerned constituents, the clear import of their words indicates an unacceptable risk of bias against the applicant. Therefore, we conclude that Hilltop failed to receive due process before the fiscal court. Accordingly, we conclude that the fiscal court's decision must be vacated.
Our directions to the circuit court upon remand must be carefully framed in deference to the dictates of KRS 100.211(7). That statute provides that a fiscal court (or legislative body) must take final action upon a proposed zoning map amendment within ninety (90) days from the date of final action of the planning commission. Failure to do so shall result in automatic enactment into law of the recommendation of the planning commission. Additionally, a duly constituted majority of the fiscal court (or legislative body) must act in concert in order to override a recommendation of a planning commission. In this case, the fiscal court arguably did not have a properly constituted majority due to the bias of at least two of its four members and the recusal of one. The question becomes whether the planning commission's recommendation became effective by operation of law within ninety days. If so, our recourse would be reversal with the result that the planning commission's final recommendation would be deemed binding despite the abortive attempt of the fiscal court to override it.
We find guidance in construing the ninety-day rule of KRS 100.211 by reference to Evangelical Lutheran Good Samaritan Society v. Albert Oil Co., Ky., 969 S.W.2d 691, 694 (1998), where the Supreme Court held as follows:
KRS 100.211(7) was designed to prevent unnecessary delaying tactics when it established the 90-day limit. . . . The General Assembly recognized that delay by local legislative bodies could be a serious matter. The legislature intended that after a specific period of time, zoning recommendations by the planning commission would be enacted by operation of law if local legislative authorities did not act. . . . The statute provides that the consequence of the failure of the local legislative body to override the planning commission recommendation is that the planning commission recommendation becomes effective as a matter of law.
We do not believe that KRS 100.211(7) applies in this case. The fiscal court did not fail to act so as to activate the ninety-day-effective-by-operation-of-law provision. On the contrary, it acted; but it acted improperly. In light of Evangelical Lutheran, which addresses merely the failure to act, we hold that the only appropriate remedy for malfeasance as distinguished from non-feasance is to remand this case to circuit court with directions that it remand this matter to the fiscal court for a proper hearing. This remedy not only comports with statutory and case law, but it also allows the fiscal court an opportunity to correct its error, to give the citizens' concerns a full airing, and to avoid the prospect of the equivalent of a default judgment against it (a result usually abhorrent as a matter of public policy). Hilltop should receive a fair hearing, and the fiscal court shall receive a second chance to conduct its business in a fashion that complies with the requirements of due process.
Therefore, we vacate the judgment of the Boone Circuit Court and remand this case with the direction that the court shall remand this matter to the fiscal court for a proper hearing.
BARBER, Judge, Concurs.
KNOPF, Judge, Dissents and Files Separate Opinion.
This is an extremely difficult case. As a general proposition, I agree with the majority that members of local legislative bodies should refrain from making public statements about pending zoning matters. At the very least, such statements create an appearance of bias and undermine public confidence in the fairness of the process. But by invalidating the fiscal court's vote in this case, I am concerned that the majority does not give members of local legislative bodies sufficient guidance as to their range of permissible conduct. Moreover, the majority opinion fails to recognize that the fiscal court's consideration of a map amendment exhibits both adjudicatory and legislative aspects. Where the decision to grant or deny a map amendment is supported by substantial evidence, the courts should not be called upon to second-guess the motivations of local legislators unless a clear conflict of interest is alleged. Therefore, I respectfully dissent from the majority opinion.
As an initial matter, the nature of the fiscal court's consideration of a zoning map amendment is not always clear. While zoning is an inherently legislative power, it may at times be legislative in nature and at other times adjudicatory in nature, depending upon the nature of the zoning change.
City of Louisville v. McDonald, Ky., 470 S.W.2d 173, 179 (1971).
The locally elected legislative bodies traditionally have been the only entities with the power to enact rezonings that amend the text or map of a zoning ordinance. Rezonings though, while adopted by the legislative body like other legislation, do not exhibit the characteristics of typical legislative enactments that apply to a large number of parties and declare widely applicable policies. Instead, rezoning decisions are usually site specific; they rely on the particular facts of the case and affect a limited number of parties. Thus, through their exclusive power to rezone, local legislative bodies make decisions that are functionally administrative, or quasi — judicial decisions.
Inna Reznik, Note, "The Distinction Between Legislative and Adjudicative Decisions in Dolan v. City of Tigard", 75 N.Y.U.L.Rev 242, 260-61 (April 2000) (footnotes omitted).
Nevertheless, a majority of jurisdictions regard rezoning decisions as a legislative function. Kentucky, however, has generally viewed rezoning decisions as quasijudicial or adjudicatory in nature. While ordinances setting forth general policies regarding land use without regard to a specific piece of property are usually seen as an exercise of legislative authority, a map amendment involves findings of fact and application of law to a specific piece of property. This process is essentially adjudicatory in nature. Accordingly, the local legislative body must act in accordance with the basic requirements of due process as are applicable generally.
Mark Cordes, "Policing Bias and Conflicts of Interest in Zoning Decisionmaking", 65 N.D.L.Rev 161, 190 (1989); See also Eastlake v. Forest City Enterprises, 426 U.S. 668, 49 L.Ed.2d 132, 96 S.Ct. 2358 (1976), in which the United States Supreme Court noted that, under Ohio law, a zoning map amendment was legislative in nature. Id. at 673-74, 49 L.Ed.2d at 138.
City of Louisville v. McDonald, supra at 177-78. See also Fasano v. Board of County Commissioners of Washington County, 507 P.2d 23, 26-27 (Or., 1973).
City of Louisville v. McDonald, supra at 178.
"[D]ue process . . . is not a technical conception with a fixed content unrelated to time, place and circumstances" but "is flexible and calls for such procedural protections as the particular situation demands." In the context of rezoning, due process requirements are largely the same whether the proceeding is viewed as legislative or adjudicatory. In either case, the decision to grant or deny the zoning change must be supported by substantial evidence and must be in conformity with generally applicable zoning laws and regulations. Likewise, the existence of conflicts of interests undermines the legitimacy of the zoning process, whether it is viewed as legislative or adjudicatory.
Mathews v. Eldridge, 424 U.S. 319, 334, 47 L.Ed.2d 18, 33, 96 S.Ct. 893 (1976) ( internal quotations and citations omitted).
City of Louisville v. McDonald, supra at 179.
Cordes, supra at 201-04. See also LaGrange City Council v. Hall Bros. Co. of Oldham County, Inc., Ky.App., 3 S.W.3d 765 (1999) (a statutorily or constitutionally disqualified decision-maker violates the applicant's due process rights).
The legislative/adjudicative distinction becomes significant primarily when policing bias. In those jurisdictions which view rezoning as legislative, the issue of bias, prejudice or preconceived determination of the issues merely reflects the political aspect of the proceeding. But where the rezoning process is viewed as an adjudicative function, due process requires an unbiased and impartial decision-maker.
See e.g. Madison River R.V. Ltd. v. Town of Ennis, 994 P.2d 1098, (Mont. 2000) "[The applicant] cites the principle that one who makes decisions in a judicial or quasi-judicial capacity must be free from bias, prejudice or preconceived determination of the issues. It cites no authority, however, that this principle applies to elected members of a city council. In fact, this principle is the antithesis of our political process, in which candidates run for election based on espoused political platforms and on promises of what they will do — if elected — concerning various issues of public interest." Id. at 1100; and Hampton v. Richland County, 357 S.E.2d 463, 467 (S.C.App., 1987); "An ordinance rezoning a particular piece of property, like an ordinance adopting a comprehensive zoning plan, is legislation, pure and simple. As such, it is entitled to the presumption of legislative validity. . . . To regard the act of adopting an ordinance rezoning a single tract as anything other than a legislative act would be to sanction an impermissible encroachment upon the presumption of legislative validity". Id. at 467 (citations omitted). See also Jeffrey M. Taylor, Note, "Untangling the Law of Site-Specific Rezoning in Florida: A Critical Evaluation of the Functional Approach", 45 Fla. L. Rev. 873, 877, n. 13 (1993) (listing cases from jurisdictions holding rezoning ordinances to be legislative).
Cordes, supra at 162-63.
Nevertheless, treating rezonings as adjudicatory, and thus subject to review for bias and conflicts of interest, does not mean that courts should ignore the political nature of such decisions. Indeed, to attempt to remove all problems of bias is neither prudent nor realistic. An elected official who advocates particular views on community development and land use in his or her policy-making role need not abandon them when considering a particular map amendment.
Although due process entitles a zoning applicant to an unbiased decision-maker, any regulation of what constitutes unfair bias must be subject to pragmatic concerns based upon the nature of the proceeding. In jurisdictions which view rezoning decisions as adjudicatory, courts have typically held that prejudgment statements by a decision-maker are not fatal to the validity of the zoning determination as long as the statement does not preclude the finding that the decision-maker maintained an open mind and continued to listen to all the evidence presented before making the final decision. Quite reasonably, the majority adopts this standard.
Id. at 197-98.
See McPherson Landfill, Inc. v. Board of County Commissioners of Shawnee County, 49 P.3d 522, 531-32 (Kan., 2002); and Prin v. Council of Municipality of Monroeville, 645 A.2d 450 (Pa.Commw.Ct., 1994). In Marris v. City of Cedarburg, 498 N.W.2d 842 (Wis., 1993), cited by the majority, the Wisconsin Supreme Court also adopted this standard. In subsequent cases, however, the Wisconsin courts have suggested that this standard applies to administrative decision-makers, and not to the actions of a local legislative body considering a site-specific rezoning application. Step Now Citizen's Group v. Town of Utica Planning Zoning Committee, 663 N.W.2d 833 (Wis.App., 2003). See also Cordes, 65 N.D.L.Rev. at 208; 83 Am. Jur.2d Zoning and Planning § 702, p. 594 (2003); and Annotation, "Disqualification For Bias or Interest of Administrative Officer Sitting in Zoning Proceeding", 10 ALR 3d 694, § 6, pp 703-06 (1966 2002 Supp.).
Unfortunately, characterizing site-specific rezonings as adjudicatory subjects these decisions to a due process standard which is better suited to the courts than to a local legislative body. The very difficulty in defining when a decision-maker has impermissibly pre-judged a pending zoning matter highlights the problem of subjecting such issues to a due process analysis. While bias based upon a decision-maker's self-interest clearly violates an applicant's due process rights, bias based upon the decision-maker's personal opinions or pre-disposition is much harder to define, much less quantify. Even when a local legislator has made public statements about a pending zoning matter, it will seldom be clear that the decision-maker has irrevocably pre-judged a map amendment. Furthermore, invalidating rezoning decisions based upon such public statements merely places a premium on the decision-maker's silence, not upon his or her objectivity.
Taylor, supra at 916.
Cordes, supra at 207.
The lack of clear standards presents additional problems for judicial review of such matters. Administrative and judicial officers have clear guidelines concerning public comment on matters pending before them. Although members of local legislative bodies have guidelines concerning what constitutes a conflict of interest, they have no standards for determining what public comments would give rise to an inference of personal bias. I do not believe that courts should be placed in the position of second-guessing the motivations of local legislators, particularly where the local legislator has no way of knowing if he or she has crossed the line.
Moreover, Kentucky has never rigidly adhered to the view that a local legislative body's consideration of a map amendment involves an exclusively adjudicatory function. In considering a map amendment, a local legislative body must make findings of fact and apply generally applicable regulations to the specific proposal. As has been noted, these functions are essentially adjudicatory in nature. However, a local legislative body is not required to grant a rezoning application merely because a request is in accordance with a comprehensive plan or its recommended land use element. Where the evidence is conflicting, the decision to grant or deny the map amendment is largely a matter of policy. Furthermore, as elected officials, members of local legislative bodies must consider community sentiment toward a particular development.
Indeed, even in City of Louisville v. McDonald, the former Court of Appeals recognized that "rezoning a parcel of property is intrinsically not a judicial function". 470 S.W.2d at 178.
Hacker v. Baesler, Ky., 812 S.W.2d 706, 709-10 (1991).
21st Century Development Co., LLC v. Watts, Ky.App., 958 S.W.2d 25, 27 (1997).
Fritz v. Lexington-Fayette Urban County Government, Ky.App., 986 S.W.2d 456, 458 (1998).
Cordes, supra at 208. See also Hougham v. Lexington-Fayette Urban County Government, Ky.App., 29 S.W.3d 370, 374 (1999) (Mere contact with opponents of a particular map amendment does not, by itself, constitute improper ex parte contact).
Consequently, the local legislative body's actual decision to grant or deny a map amendment tends to be more legislative than adjudicatory in nature. Thus, as a practical matter, members of local legislative bodies cannot be held to a standard of judicial disinterestedness, even in a quas-adjudicatory proceeding. The standard adopted by the majority, although not so exacting, nonetheless requires the courts to interject themselves into an essentially legislative prerogative.
Furthermore, overly stringent regulation of bias potentially restricts the pool of qualified decision-makers and destabilizes the zoning process. Local legislative bodies must follow the planning system set out in Chapter 100 of the Kentucky Revised Statutes if they are to exercise any authority to zone. KRS 100.211(7) provides that a local legislative body must act on the planning commission's recommendation within 90 days. If it fails to act, or is unable to act within that time, then the local legislative body forfeits the right to act. In this case, one member of the fiscal court had already recused himself because of a conflict of interest. If Commissioners Hay and Flaig are also deemed disqualified due to bias, then the fiscal court would have been unable to act due to lack of a quorum. Thus, the planning commission's recommendation took effect as a matter of law. In cases which involve a clear conflict of interest, this result may be appropriate. However, I do not believe that we should impose additional obstacles to the rezoning process unless they are strictly necessary.
Cordes, supra at 197.
Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Co., Inc., Ky., 969 S.W.2d 691, 693 (1998).
Id. at 693-94.
For this reason, I also disagree with the majority as to the appropriate remedy. I do not believe that the fiscal court has jurisdiction to consider this matter upon remand.
I recognize that this conclusion leaves the zoning applicant in a difficult position. In this case, Hilltop has made notable efforts to address the concerns of the neighbors and to bring its proposal into conformity with the comprehensive plan. The statements by Commissioners Hay and Flaig demonstrate, if not irrevocably closed minds, then at least a strong disinclination toward Hilltop's proposal. Nevertheless, where the evidence is conflicting, the decision to grant or deny a map amendment is largely a matter of discretion. The General Assembly has vested that discretion with the local legislative body — in this case, the fiscal court.
Moreover, the traditional standard of review adequately protects the due process rights of a zoning applicant. The granting or denying of a map amendment must be based upon substantial evidence and must conform to the comprehensive plan and the applicable zoning ordinances. Likewise, the local legislative body must observe the general requirements of procedural due process. But when the legislative decision is simply a refusal to rezone, the problem becomes whether the evidence shows a compelling need for the rezoning sought or clearly demonstrates that the existing zoning classification is no longer appropriate. In this case, the evidence, while conflicting, did not clearly demonstrate that the existing zoning classification is no longer appropriate. For purposes of judicial review, we should defer to the fiscal court's determination of that issue.
Wells v. Fiscal Court of Jefferson County, Ky., 457 S.W.2d 498, 501 (1970); American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450, 456-57 (1964).
City of Louisville v. McDonald, supra at 178.
Id. at 179.
In conclusion, Kentucky law has reached an impasse over this particular issue: Is a local legislative body's consideration of a map amendment fundamentally legislative or adjudicatory in nature? Or is it some sort of hybrid of the two? And what ramifications does this classification have on a zoning applicant's due process rights? How does the inherently political nature of a local legislative body affect an applicant's right to an unbiased decision-maker? Kentucky has never consistently answered these questions, and the result is the quandary in which this Court finds itself today. In the absence of specific standards, I am very hesitant to invalidate the fiscal court's action in this case based upon a post hoc determination of pre-judgment bias. Accordingly, I would affirm the decision of the Boone Circuit Court.