Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Co.

969 S.W.2d 691, 1998 Ky. LEXIS 62, 1998 WL 178675
CourtKentucky Supreme Court
DecidedApril 16, 1998
DocketNos. 96-SC-42-DG, 96-SC-54-DG and 96-SC-797-DG
StatusPublished
Cited by4 cases

This text of 969 S.W.2d 691 (Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Co., 969 S.W.2d 691, 1998 Ky. LEXIS 62, 1998 WL 178675 (Ky. 1998).

Opinion

WINTERSHEIMER, Justice.

These appeals arise from a decision of the Court of Appeals reversing a judgment of the circuit court and determining that a local legislative body that fails to vote to override a recommended rezoning within 90 days retains legal authority over the zoning matter.

The principal issue is whether the failure of a local legislative body to take action on a planning commission recommendation within 90 days renders the recommendation final and deprives the local legislative body of authority to act on the matter.

Stated another way: Is the 90 day period set out in KRS 100.211(7) during which a local legislative body or fiscal court must take final action on a planning and zoning commission recommendation regarding a proposed zoning map amendment mandatory?

The statutes provide in pertinent part: Unless a majority of the entire legislative body or fiscal court votes to override the planning commission’s recommendation, such recommendation shall become final and effective and if a recommendation of approval was made by the planning commission, the ordinance-of the fiscal court or legislative body adopting the zoning map amendment shall be deemed to have passed by operation of law.
KRS 100.211(1)
The fiscal court or legislative body shall take final action upon a proposed zoning map amendment within ninety (90) days of the date upon which the planning commission takes its final action upon such proposal.
KRS 100.211(7)

The circuit court determined in each of these appeals that the 90 day period was mandatory. The Court of Appeals, in a 2 to 1 decision reversed and remanded.

In each of the appeals, the relevant and essentially undisputed facts are well known to the parties. In each ease, contrary to KRS 100.211(7), the local municipal legislative body failed to take action regarding a proposed zoning map amendment within 90 days of the date on which the local planning commission took final action on the proposals.

In Helm v. Committee to Protect the Prospect Area, Inc., 96-SC-54-DG, a zoning change was sought in 1991 and the planning [693]*693commission recommended that it be approved. The Prospect City Council adopted a change by ordinance on November 25, 1991, but the circuit court declared the ordinance to be void because council acted before receiving the planning commission minutes. Two and a half years later, on June 14,1994, a newly elected city council adopted a new ordinance rejecting the planning commission’s 1991 recommendation.

In Helm, the city council initially adopted the recommended zone change in a timely manner in November of 1991. The declaration by the circuit court that the 1991 ordinance was void because the council acted before receiving the planning commission minutes was affirmed by the Court of Appeals in Helm v. Citizens to Protect the Prospect Area, Inc., Ky.App., 864 S.W.2d 312 (1993). In that opinion, the Court of Appeals correctly emphasized that KRS 100.182, the substantial compliance statute, did not apply to local legislative zoning ordinances.

Here, rather than acting to disapprove the recommendation after receiving it on remand, the City of Prospect did nothing. The 90 days permitted by KRS 100.211 expired. Consequently, long after the Court of Appeals decision in Helm, supra, became final in November of 1993, a newly elected city council tried to override the planning commission recommendation by passing the ordinance in question on June 14, 1994, which was 206 days after the city had received the remanded recommendation, and 116 days after the zoning change had taken effect by operation of law pursuant to statute.

In Evangelical Lutheran Good Samaritan Society, Inc. v. City Council of Jeffersontown, et al., 96-SC-42-DG, Albert Oil sought a zoning change. On July 16, 1993, after a public hearing in which opposition was registered by Evangelical, the planning commission recommended that the city council deny the application. On November 2, 1993, city council gave first reading to an ordinance reversing the recommendation of the planning commission and approving the rezoning. On November 9, 1992, 116 days after the planning commission’s recommendation, three of the six council members voted for an ordinance reversing the planning commission recommendation and two members voted against it. One councilperson did not participate in the deliberations or vote because of a conflict of interest.

In reaching its decision in each of these cases, the Court of Appeals relied on this Court’s decision in Ratliff v. Phillips, Ky., 746 S.W.2d 405 (1988), where we interpreted the provisions of KRS 100.263 relat ing to boards of zoning adjustment that the 60 day deadline provided in the statute was directory rather than mandatory and that the board had not lost jurisdiction because of its failure to act. The Court of Appeals erred in its reliance on Ratliff, supra, as applied to the situation presented in these cases. The Ratliff decision turned on the absence of any statutory language establishing the consequences of the failure to act by the Board. In this case, the language directing the recommendation “shall be final and effective” is present in the statute. In addition, the Ratliff case involved an appeal from a city building inspector’s refusal to issue a permit. Local boards of zoning adjustments are empowered to conduct hearings on those appeals and to decide them. KRS 100.263 requires them to act within 60 days. The Ratliff court determined that removal of the Board from the process of adjudication would constitute elimination of the factfinders and the parties would be without any record upon which to prosecute and defend an appeal. Such is not the case here because the record has been developed at the planning commission level in accordance with all due process guarantees. Thus, the fundamental reason for the decision in Ratliff does not apply. Here, the legislative directive is clearly evident in the statute, that is, specific consequences related to inaction by the board are statutorily provided.

Ignoring the 90 day requirement would allow a local legislative body to delay voting on a board recommendation and perhaps ultimately prevent any recommended zoning. 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. See Bellefonte Land, Inc. v. Bellefonte Kentucky,

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Cite This Page — Counsel Stack

Bluebook (online)
969 S.W.2d 691, 1998 Ky. LEXIS 62, 1998 WL 178675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evangelical-lutheran-good-samaritan-society-inc-v-albert-oil-co-ky-1998.