Hacker v. Baesler

812 S.W.2d 706, 1991 WL 74141
Kentucky Supreme Court·Decided August 29, 1991·No. 89-SC-979-DG·Published·Cited by 6 cases

Opinions

COMBS, Justice.

Appellants Hacker, Thompson, and Sad-ler, as owners in partnership of a parcel of land located in Lexington-Fayette County, submitted a proposal for a zoning amendment, seeking to effect a change in the property’s zoning classification.

The application was made and processed in accordance with the procedures established by KRS 100.21K1).1 The Urban County Planning Commission recommended that the request for rezoning be denied. The Urban County Council, by a majority of its entire membership, voted to override the commission’s recommendation, and passed an ordinance adopting the proposed amendment.

This ordinance became the subject of a mayoral veto. Taking the position that the measure was not subject to veto, the appellants brought an action in Fayette Circuit [708] Court. That court, and subsequently the Court of Appeals, held that the mayor’s veto power extends to the rezoning ordinance.

We reverse.

Local authority to regulate land use derives from the police power of the General Assembly, delegated to cities and counties by way of KRS Chapter 100. KRS 100.211 details the exclusive procedure by which a zoning map amendment may be accomplished. Once the planning commission has made its recommendation on a proposed amendment, the legislative body may override the commission by a full majority vote. It is apparent that the General Assembly intended that an ordinance adopting a zoning amendment, enacted pursuant to the statute, is final and effective, subject only to judicial review pursuant to KRS 100.347(3).2 The statutory procedure does not contemplate that the ordinance is subject to veto.

Appellees contend that the General Assembly has authorized the mayoral veto by way of KRS 67A.060, which grants ordinance powers to urban-county governments, and which provides, in part:

(4) All ordinances and resolutions shall be effective upon passage, unless3 timely vetoed by the chief executive officer of the urban-county government pursuant to the provisions of the comprehensive plan of the urban-county government. [Emphasis added; footnote added.]

The Lexington-Fayette Urban County Charter4 appears to confer upon the mayor the power to veto virtually any ordinance. With enumerated exceptions not relevant here, no ordinance becomes effective upon passage. In the present context such an interpretation of the charter places it in direct conflict with a general statute, KRS 100.211, whereby the General Assembly has provided a comprehensive scheme of legislation on the subject of zoning map amendment. Alteration of this scheme by urban-county governments is not contemplated by the grant of powers to such governments via KRS 67A.060(1),5 which forbids the enactment of ordinances in conflict with general statutes or the constitution. Whether or not the charter is technically an “ordinance,” there is evidenced no legislative intent to authorize a local government to supersede a statute by any means. Moreover, KRS 67A.020 provides that the comprehensive plan of an urban-county government (which plan is presum[709] ably embodied in the charter) must comport with the Constitution of Kentucky. This requirement would of course apply even in the absence of the statute. Insofar as the charter purports to modify the criteria of KRS 100.211(1), it represents an attempted usurpation of the legislative power of the General Assembly, offending section 29 of the Kentucky constitution.6 Subsection (4) of KRS 67A.060, supra, does not validate a veto exercised pursuant to an unconstitutional provision of the Urban County Charter.

The veto power is also inconsistent with constitutional guarantees of due process and equal protection, given the unique attributes of a zoning map amendment proceeding. Much argument has been offered as to whether the amendment process ought to be labeled legislative, judicial, quasi-judicial, etc. But the ultimate question is, considering the nature, subject, and purpose of the proceeding and the constitutional rights of the participants, how much process of law is due?

In American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, Ky., 379 S.W.2d 450 (1964), it was held that the decision on a proposal to rezone a property is a nonjudicial function, and, separation of powers being mandated by the constitution, a function which the legislature may not impose upon the courts by mandating a trial de novo upon appeal. This Court termed the decision “administrative,” and concluded that the standard of review is: (1) whether the Commission 7 acted within its statutory powers; (2) whether procedural due process was afforded; and (3) whether the decision was supported by substantial evidence. 379 S.W.2d, at 456. In adopting this standard of review, American Beauty Homes holds, by necessary implication, that the amendment procedure, while nonjudicial, is also non-legislative. The Court noted that an administrative body has been realistically characterized as a fourth branch of government. Id., at 458 n. 20.

In City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), it was held that a local legislative body, in deciding a rezoning case, acts in an adjudicatory capacity, and not in a general law-making role:

Free access — add to your briefcase to read the full text and ask questions with AI

Hacker v. Baesler, 812 S.W.2d 706, 1991 WL 74141 (Ky. 1991).

812 S.W.2d 706 (Hacker v. Baesler) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Albuquerque Commons Partnership v. City Council of Albuquerque
2008 NMSC 025 (New Mexico Supreme Court, 2008)
Chandler v. Bullitt County Joint Planning Commission
125 S.W.3d 851 (Court of Appeals of Kentucky, 2002)
Louisville & Jefferson County Planning Commission v. Schmidt
83 S.W.3d 449 (Kentucky Supreme Court, 2001)
LaGrange City Council v. Hall Bros. Co. of Oldham County
3 S.W.3d 765 (Court of Appeals of Kentucky, 1999)
Hardin County v. Jost
897 S.W.2d 592 (Court of Appeals of Kentucky, 1995)
Hacker v. Baesler
812 S.W.2d 706 (Kentucky Supreme Court, 1991)