McKinstry v. Wells

• Decision Date: 04 March 1977
• Parties: Mr. and Mrs. John O. McKINSTRY et al., Appellants, v. Mrs. Marvin WELLS et al., Appellees.
• Court: Kentucky Court of Appeals

Page 169

548 S.W.2d 169

Mr. and Mrs. John O. McKINSTRY et al., Appellants, v. Mrs. Marvin WELLS et al., Appellees.

Court of Appeals of Kentucky.

March 4, 1977.

Victor Hellard, Jr., Rouse, Rouse & Hellard, Mark E. Gormley, Versailles, for appellees.

Harry B. Miller, Lexington, for appellants.

Before MARTIN, C. J., and PARK and VANCE, JJ.

PARK, Judge.

This is an appeal from a judgment of the Woodford Circuit Court directing the Woodford Fiscal Court to grant a zone map amendment in accordance with the recommendations of the Versailles-Midway-Woodford County Planning and Zoning Commission. The property in controversy is a tract of 100 acres situated approximately one mile north of Versailles on the Big Sink Pike. The appellants are the owners of property in the general vicinity who oppose the zone map amendment. The appellees are the owner of the property, Mrs. Marvin Wells, and developers holding options to purchase the tract. The fiscal court and its members are also appellees, not having appealed from the judgment of the Woodford Circuit Court.

The property is currently zoned for agricultural use (A-1). By the proposed map amendment, 11 acres could be zoned for single family estate sites (R-1-A) permitting the development of 11 one acre lots. By rezoning 58.8 acres to permit single family medium size lots (R-1-B), 187 lots could be developed having an average of 13,700 square feet. The proposed map amendment would rezone 7 acres to permit multifamily residential use (R-4). A neighborhood business use (B-1) would be authorized for 4 acres, and 3.8 acres would be designated as park use (CO-1). The remaining 15.4 acres would be included in dedicated streets.

The efforts to rezone the property have followed a long, complex and frustrating route before reaching this court. The appellees first sought a zone map amendment for the property in 1974. Following approval of the zone map amendment by the Versailles-Midway-Woodford County Planning and Zoning Commission and by the Woodford County Fiscal Court, suit was instituted in the Woodford Circuit Court by many of the same persons who are appellants on this appeal. On February 11, 1975, the Woodford Circuit Court entered a judgment invalidating the zone map amendment which rezoned the property from agricultural use to residential and business uses. The circuit court held that all parties had been denied due process because of the failure of both the Versailles-Midway-Woodford County Planning and Zoning Commission and the Woodford County Fiscal Court to make any findings of fact as required by KRS 100.213. The 1975 judgment of the Woodford Circuit Court was without prejudice to the right of the appellees to file a further application for rezoning of the property.

On February 19, 1975, the appellees filed a second application for a zone map amendment. The planning and zoning commission conducted trial-type hearings on March 13, March 24 and April 10, 1975. A record was made of these hearings. On May 8, 1975, the planning and zoning commission adopted nine pages of findings of fact and recommended to the fiscal court that the application for zone map amendment be approved. The entire record of the proceedings before the planning and zoning commission was forwarded to the fiscal court together with the recommendations of the commission.

The fiscal court elected not to have a trial-type public hearing. The fiscal court gave notice that it would decide the matter on the basis of the hearings before the planning and zoning commission. On July 26, 1975, a resolution to approve the recommendations of the planning and zoning commission and to adopt its findings of fact was defeated by a 5-3 vote of the members of the fiscal court. The fiscal court made no independent findings of fact and took no further action on the application for zone map amendment.

This action was instituted on August 20, 1975, by the appellees who are the owner and proposed developers of the 100 acre tract. Relying on the decision in City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the circuit court held that the fiscal court acted arbitrarily when it rejected the recommendations of the planning and zoning commission without making any findings of fact. The circuit court then directed the fiscal court to amend the zone map in accordance with the recommendations of the planning and zoning commission. Two issues are raised by the appeal. First, was the circuit court correct in holding that the fiscal court was arbitrary and denied procedural due process when it rejected the findings and recommendations of the planning and zoning commission without making independent findings of fact of its own? Second, assuming that the circuit court was correct in holding the action of the fiscal court to be arbitrary, was the circuit court correct in directing the fiscal court to grant the application for zone map amendment as recommended by the planning and zoning commission? Both issues must be decided by reference to the comprehensive plan adopted for Woodford County.

Before any map amendment can be granted, KRS 100.213 requires the planning commission or appropriate legislative body to make one of the following findings: (1) that the map amendment is in agreement with the community's comprehensive plan; (2) that the original zoning classification given to the property was inappropriate or improper; or (3) that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community's comprehensive plan and which have substantially altered the basic character of the area. Under KRS 100.187(2), a comprehensive plan must contain a land use plan element. This statute further provides:

"A land use plan element * * * shall show proposals for the most appropriate, economic, desirable and feasible patterns for the general location, character, extent, and interrelationship of the manner in which the community should use its public and private land at specified times as far into the future as is reasonable to foresee. Such land uses may cover, without being limited to, public and private, residential, commercial, industrial, agricultural and recreational land uses."

In determining whether a proposed map amendment is in agreement with the community's comprehensive plan, the land use plan element is not the only portion of the comprehensive plan which need be consulted. Nevertheless, the classification of the property under the land use plan is the prime consideration in determining whether the map amendment is in agreement with the comprehensive plan. Hines v. Pinchback-Halloran Volkswagen, Ky., 513 S.W.2d 492 (1974).

The comprehensive plan adopted by the Versailles-Midway-Woodford County Planning and Zoning Commission contained a land use plan element. The portion of the land use plan relating to residential use provides:

"Growth Areas Residential growth during the planning period will occur in the general direction that growth has taken during the past ten to fifteen years. Residential growth is anticipated to the southwest of Versailles between U.S. 62 and McCowans Ferry Road; to the west and east of Nicholasville Road near the southern boundary of Versailles and to the north and south of U.S. 60 just to the east of the bypass.

"Little residential growth is anticipated to the north, northwest, and west of Versailles. The industrial complex along the U.S. 60 bypass will tend to block residential growth to the north and northeast; the topography to the north and west makes the extension of sanitary sewers into these areas costly, in comparison to other potential residential areas, and steep and low areas will hinder the development in this direction."

The 100 acre tract in question is located north of the U.S. 60 bypass. On the map included in the comprehensive plan to illustrate the land use plan, a very small portion of the 100 acre tract is designated for future industrial use, the remainder of the tract being reserved for continued agricultural use.

In the application for zone map amendment, the owner and proposed developers asserted that the proposed rezoning was consistent with the "general objectives" of the comprehensive plan. Nevertheless, the application on its face conceded that only a portion of the 100 acre tract was within "the projected area of development in the land use and transportation plan map." In its findings, the planning and zoning commission made two general findings which it undertook to support by specific findings of fact. First, the planning and zoning commission found "that there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the community's comprehensive plan and which have substantially altered the basic character of such area." Under KRS 100.213, there would be no need for the planning and zoning commission to have made this general finding unless the proposed map amendment was not in agreement with the comprehensive plan. In its second general area of findings, the planning and zoning commission found that the application for zone change was in agreement with the comprehensive plan in nine specific areas.

The facts of this case are very similar to those in the leading case in this area of zoning law, City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971). The owner and proposed developer of a tract of land situated in the City of Louisville sought a zone map amendment. The planning and zoning commission held a public hearing at which evidence was heard. A transcript was made of the proceedings at the hearing. The planning and zoning commission made factual findings in support of its conclusion that there had been major changes of an economic nature within the area involved which were not anticipated in the comprehensive plan and which had substantially altered the basic character of the area. The planning and zoning...