Hilltop Basic Resources v. County of Boone, No. 2003-SC-1052-DG.

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Graves
• Citation: 180 S.W.3d 464
• Parties: HILLTOP BASIC RESOURCES, INC.; Addison G. Stevens; Myrna Stevens; Rodney Woods; Sandra Woods; Donald Gene Hodges; Niki Carol Hodges; Rosalie Kippler; William E. Kippler; Wanda Kippler; Carl Taber; and Cynthia Taber, Appellants/Cross-Appellees, v. COUNTY OF BOONE, Kentucky; Boone County Fiscal Court, Appellees/Cross-Appellants.
• Docket Number: No. 2004-SC-0003-DG.,No. 2003-SC-1052-DG.
• Decision Date: 22 December 2005

180 S.W.3d 464 HILLTOP BASIC RESOURCES, INC.; Addison G. Stevens; Myrna Stevens; Rodney Woods; Sandra Woods; Donald Gene Hodges; Niki Carol Hodges; Rosalie Kippler; William E. Kippler; Wanda Kippler; Carl Taber; and Cynthia Taber, Appellants/Cross-Appellees,
v.
COUNTY OF BOONE, Kentucky; Boone County Fiscal Court, Appellees/Cross-Appellants. No. 2003-SC-1052-DG. No. 2004-SC-0003-DG. Supreme Court of Kentucky. December 22, 2005.

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Wm. T. Robinson III, Luann Devine, Covington, Paul B. Whitty, Louisville, for Appellants.

Jeffrey C. Mando, Mary Ann Stewart, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, for Appellees.

GRAVES, Justice.

Both Appellants, Hilltop Basic Resources, Inc., et. al. [hereinafter "Hilltop"], and Appellees, County of Boone, Kentucky, et. al. [hereinafter "Boone County"], appeal a Court of Appeals order vacating and remanding a judgment of the Boone Circuit Court. This Court granted discretionary review, and we now reverse the Court of Appeals and remand the matter for further consideration.

Hilltop sought to mine underground limestone in a rural area of Boone County not zoned for subsurface mining. Consequently, on December 19, 1999, Hilltop applied to the Boone County Planning Commission for a zoning map amendment. After extensive review, the Boone County Planning Commission recommended, by a vote of seven (7) to five (5), that an amendment be granted. Once the Planning Commission made its recommendation, the matter reverted by statute to the Boone County Fiscal Court for approval. KRS 100.211. The administrative record submitted

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to the Boone County Fiscal Court contained findings both for and against the amendment. The Boone County Fiscal Court voted three (3) to zero (0) to override the Planning Commission's recommendation, and thus, deny Hilltop's application for zoning amendment.

Hilltop appealed the Fiscal Court's decision to the Boone Circuit Court, alleging (1) that the Fiscal Court acted arbitrarily and capriciously in disregard of the record; and (2) that it was denied due process before the Fiscal Court due to the bias of two of its members. Hilltop alleged that the members were biased because they made both public and private comments indicating they were "steadfast opponents to mining activities generally." The Boone Circuit Court affirmed the Fiscal Court's decision, finding that it was neither arbitrary nor erroneous as a matter of law.

The Court of Appeals reversed the Circuit Court's ruling, holding that prejudgment and bias by the two Fiscal Court members operated to deprive Hilltop of procedural due process. Specifically, the evidence suggested that the members communicated, in both public and private messages to their constituents prior to a hearing on the matter, their opposition to subsurface mining in general. One of the members was alleged to have said that she "would never vote for a mine in this area of Boone County" because "[t]he people in Boone County just don't want it." Judge Knopf dissented from the majority's opinion, arguing that it departed from the recognized standard of review in zoning cases and failed to appreciate the legislative aspects of the process. From this decision, we granted discretionary review to both parties. We now reverse and remand, finding nothing in this record which violates Hilltop's right to procedural due process of law.

The basic principles controlling this case were first set forth in comprehensive fashion over forty (40) years ago in American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964) by the esteemed and oft-quoted Commissioner Clay. As in this case, American Beauty Homes involved an owner of a tract of land who sought to have the zoning classification changed for that tract of land from residential to commercial/industrial. Id. at 452. At the time, KRS 100.057 directed that all zoning determinations were to be reviewed de novo by the judiciary. Id. at 453. Commissioner Clay determined that this statute was unconstitutional in violation of the separation of powers doctrine, holding that zoning determinations were a uniquely legislative function which could not be imposed on, assigned to, or conferred upon the judiciary or agents thereof. Id. at 454.

Our predecessor Court went on to explain that since zoning determinations are purely the responsibility and function of the legislative branch of government, such determinations are not subject to review by the judiciary except for the limited purpose of considering whether such determinations are arbitrary. Id. at 456. Arbitrariness review 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. Id.

Since American Beauty Homes, our Courts have continued to review zoning determinations affecting individual property owners pursuant to the arbitrariness framework set forth above. See, e.g., Danville-Boyle County Planning and Zoning Comm'n v. Prall, 840 S.W.2d 205, 208 (Ky.

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1992); City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky. 1971); Hougham v. Lexington-Fayette Urban County Gov., 29 S.W.3d 370, 373...