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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Reply Brief Filed In Okolona Mall Case  Posted: February 20, 2005
CIVIL NO. 04-CI-06877
COMMONWEALTH OF KENTUCKY

JEFFERSON CIRCUIT COURT
DIVISION NO. 13

CHARLES AND DANA GUYER et al.

PLAINTIFFS/APPELLANTS

v. REPLY BRIEF OF PLAINTIFFS/APPELLANTS

LOUISVILLE-JEFFERSON COUNTY METRO
GOVERNMENT COUNCIL, et al.


DEFENDANTS/APPELLEES

* * * * *

Come the Plaintiffs/Appellants (Plaintiffs), by counsel and file this reply brief. For the reasons stated below and in their opening brief, Plaintiffs respectfully request that the Court enter an order reversing the July 15, 2004 decision of the Legislative Council of the Louisville/Jefferson County Metro Government (“Metro Council”) adopting Ordinance No. 98, Series 2004, an ordinance that changed the zoning of a 49-acre tract of land located in the northeast quadrant of from I-65 and Outer Loop from R-4 Single Family Residential to C-2 Commercial and R-7 Multi-Family Residential and from Neighborhood Form District to Suburban Marketplace Form District.

STANDARD OF REVIEW

As noted in the opening brief, the statutory criteria which constrain the actions of the Commission and Metro Council in this case are found at KRS 100.213, which demands that before approving a map amendment, the legislative body:

must find that the map amendment is in agreement with the adopted comprehensive plan, or in the absence of such a finding, that one (1)or more of the following apply and such finding shall be recorded in the minutes and records of the planning commission or the legislative body or fiscal court:

(a) That the existing zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate;

(b) That there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated inthe adopted comprehensive plan and which have substantially altered the basic character of such area.

The Plaintiffs and Defendants do not disagree concerning the scope of review by this Court of the actions of the Planning Commission, which were adopted by the Metro Government and upon the strength of which the propriety of that government’s decision hinges. This court is concerned with the questions of “arbitrariness” – did the agency act arbitrarily or outside the scope of its authority, did it apply an incorrect rule of law, or is the decision itself unsupported by substantial evidence on the record taken as a whole. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 300-1 (1972). In the specific context of zoning decisions, the state Supreme Court has given content and meaning to the oft-quoted but seldom analyzed definition of “arbitrariness.” In City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), the court described the minimum due process requirements as including a “trial type of hearing for the purpose of determining the adjudicative facts necessary to decide the issue. [and] the taking and weighing of offered evidence, a finding of fact based upon a consideration of the evidence and conclusions supported by substantial evidence.” Id. (Italics added). The McDonald Court also gave substance to the standard of judicial review of the actions of a legislative body approving a request for a zoning map amendment:

[J]udicial review is confined to a determination of whether the zoning action taken was arbitrary. . . If the zoning commission conducts a trial-type due process hearing and based thereon makes factual findings and a recommendation, the legislative body may follow the commission’s recommendation without a hearing or only an argument-type of hearing. The record made before the commission must adequately reflect the elements necessary for judicial review to determine whether the ultimate action was arbitrary. 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. The legislative body also may hold its own trial-type hearing and may find as a result thereof different adjudicative facts than those found by the commission. In any event, the ultimate decision must be made by the legislative body. If a legislative decision that affirmatively changes a zoning classification is made upon the basis of appropriate findings of either the commission or the legislative body, which are supported by substantial evidence adduced at the hearing, the legislative body’s action will not be declared arbitrary.

City of Louisville v. McDonald, supra, at 177-178 (Italics added).

When an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well-planned and arranged and were intended to be more or less permanent, subject to change only where there are genuine changes in conditions. See: Hodge v. Luckett, Ky., 357 S.W.2d 303, 305 (1962) and cases cited therein. Where a decision is made to grant or deny an application for a zone map amendment, that decision “must be supported by a finding of adjudicative facts.” McKinstry v. Wells, Ky. App. 548 S.W.2d 169, 174 (1977).

SUMMARY OF REPLY

This appeal poses three questions for review: first, did the Commission provide sufficient and adequate findings of basic adjudicative fact to support the conclusions and decision made, since if it did not then an essential element for “necessary for judicial review to determine whether the ultimate action was arbitrary” is lacking and the case must be remanded in order to have the Commission supply such findings. City of Louisville v. McDonald, supra, at 177-178. Second, did the Commission fail to make required findings of compliance with applicable comprehensive plan guidelines, and thus act arbitrarily in finding that the proposed development and zoning change “was in agreement with the comprehensive plan” since, if it failed to make such findings then the conclusion that the first prong of KRS 100.213 was met is arbitrary as a matter of law. Third, did the Commission act arbitrarily in concluding that the existing zoning classification given to the property was inappropriate and that the proposed zoning classification is appropriate; and that there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.

In their opening brief, Plaintiffs argued that the approval of the requested zoning change was arbitrary, capricious, and otherwise inconsistent with law because:

(a) The recommendations of the Planning Commission to rezone and alter the form district for the subject property violated Plaintiffs’ procedural due process protections since they were made without specific, adequate and sufficient findings of adjudicative fact necessary to enable this reviewing Court to determine whether and how the Planning Commission weighed offered evidence and on what facts the decision rested;

(b) that the Commission failed to make the requisite findings of compliance of the proposed rezoning with requirements in Guidelines 1, 3, 6, 7 and 10 of the approved comprehensive plan, in direct violation of statute; and

(c) that the conclusion that the existing zoning is inappropriate and that the proposed zoning was appropriate and that the zoning map amendment was justified because of major unanticipated changes in the area, were both clearly erroneous in that they lacked evidentiary basis or were contrary to the evidence, and were in violation of due process because they lacked a basis in specific findings of adjudicative facts from the record. The arbitrary action of the Commission therefore constituted prohibited “spot zoning” inconsistent with adopted planning guidelines and was arbitrary and capricious.

In response, Defendants argue that the Planning Commission’s findings of fact are adequate to satisfy the requirements of law and that substantial evidence in the record does exist to support the decision.

Plaintiffs reply to each point seriatim.

ARGUMENT

I. THE PLANNING COMMISSION “FINDINGS” WERE INADEQUATE TO SATISFY PROCEDURAL DUE PROCESS AND TO ENABLE JUDICIAL REVIEW OF WHETHER THE FINDINGS REST ON CONSIDERATION OF THE ENTIRE RECORD AND A WEIGHING OF THE EVIDENCE

As previously argued, judicial review of legislative action in rezoning a property is concerned with “freedom from arbitrary action:” The constitutional protection concerned is freedom from arbitrary action, but what is “arbitrary” depends to a pronounced degree upon the character of the facts which are developed prior to the taking of action by the legislative body. City of Louisville v. McDonald, supra, at 178.

In this case, since the Metro Council did not conduct a separate hearing on a proposed rezoning, but instead simply reviewed the record as it was developed before the planning commission, the record before the planning commission “must adequately reflect the elements necessary for judicial review to determine whether the ultimate action was arbitrary.” City of Louisville v. McDonald, supra, at 179. As argued in the opening brief, “[t]he required procedural elements are spelled out in [Morris v. City of Catlettsburg] . . . and include a hearing, the taking and weighing of offered evidence, a finding of fact based upon a consideration of the evidence and conclusions supported by substantial evidence. McDonald, supra at 177.

Plaintiffs could not frame the failures of the Commission in this case any more succinctly than the Defendants have in their response brief at p. 17:

The Planning Commission and Metro Council, even when faced with credible evidence that conflicts with other credible evidence, are charged with taking and weighing the evidence and then simply making the tough decision, supported by findings of fact which explain how they reached the decision they did.

Brief of Defendants, p. 17, (italics added).

Therein lies the nub of the problem – the Commission, by adopting lock, stock and barrel the proffered “findings” submitted by one of the parties and engaging in no independent production of “findings of fact which explain how they reached the decision they did,” have failed to provide that element “necessary for judicial review to determine whether the ultimate action was arbitrary” – specific findings of adjudicative fact supporting the conclusions reached.

In this case, despite 16 hours of public testimony and over 3,100 pages of evidentiary record, the Commission’s findings contain few references to any specific evidence to support their often-sweeping conclusions, and instead provide a rambling, conclusory set of observations and statements concerning compliance with statutory criteria. The Commission’s findings giving no indication as to what evidence was relied upon to arrive at the required statutory conclusions, and preclude meaningful judicial review as to whether the totality of the evidence was evaluated, whether the record was considered as a whole and how the significant conflicts in the evidence were resolved in arriving at the conclusions.

The findings adopted by the Commission and endorsed by the Metro Council were supplied by the applicants for the rezoning and were adopted verbatim by the Commission. Because of the lack of linkage between the “whereas” clauses and specific documents, testimony or other evidence in the record supporting the conclusions, the reviewing court is left to speculate as to whether and how the evidence was actually considered and weighed by the Commission.

Both parties agree that the function of the trial court is not to reassess the evidence de novo. Neither, however, is it the function of the appellate court (or the province of the parties on appeal) to attempt to rehabilitate a decision that lacks findings of basic adjudicative facts.

The practice of wholesale delegation of responsibility for development of findings to parties, as is the apparent practice of the Commission, has been roundly criticized by Kentucky and other courts. Kentucky Milk Marketing & Anti-Monopoly Commission v. Borden Co., Ky., 456 S.W.2d 831, 834-35 (1970); Brunson v. Brunson, Ky. App. 569 S.W.2d 173 (1978) (“[T]o the extent that the court delegates its power to make findings of fact and draw conclusions this is not good practice. . . To permit counsel to clutter up the record by filing detailed, lengthy, contradictory findings of fact and conclusions of law . . . can serve no useful purpose[.]”) The wholesale adoption of the proposed findings in this case, without any indication of or reference by the Commission to specific adjudicative facts “found,” renders impossible the appellate court’s function of assuring that the entire record was evaluated and evidence weighed.

“Findings of fact” are, as the court has noted in the context of business license issuance, “essential” to supporting agency decisions where the decision rests upon a factual determination. Pearl v. Marshall, Ky., 491 S.W.2d 837, 839 (1973). The findings of fact cannot simply be findings of “ultimate facts” but must include findings of the basic facts” which support the conclusion. City of Beechwood Village v. Council Of And City Of St. Matthews, Ky. App. 574 S.W.2d 322, 324 (1978).

Plaintiffs agree with Defendants that where there is conflicting evidence, the Commission is required to make “a judgment call” in order to make findings of fact. Fritz v. Lexington-Fayette Urban County Government, Ky. App. 986 S.W.2d 456, 458. But Plaintiffs’ complaint with the actions of the Commission is not with their discretion to determine which evidence to believe, but with the abject failure of the Commission to identify through specific findings of adjudicative fact if and how the Commission members made such judgment calls. It is the absence of identification of basic evidentiary facts that is fatal to the Commission’s decision. The lack of “[a] finding of fact based upon an evaluation of the evidence”, Id., at 458, makes impossible this Court’s function of review in order to determine whether the Commission properly reviewed and weighed the evidence in arriving at its decision.

In its opening brief, Plaintiffs presented numerous examples of the “all-but-complete lack of evidentiary, basic facts to support the conclusory parroting of the statutory criteria” in the 39 separate “Whereas” clauses. Reviewing in detail the various clauses comprising the Commission’s “findings,” Plaintiffs demonstrated that with the exception of a few instances in which specific evidentiary facts were found by the Commission’s recommendations, the “findings” are conclusory in nature and lack the underlying reference to evidentiary facts (particularly for those facts in dispute) to support the conclusions.

In response, Defendants offer three arguments. First, Defendants argue that the statement in the Commission’s findings that “they were based upon ‘testimony and evidence submitted with the application, in the Staff Report and to Committee meetings and the Public Hearings” is sufficient to satisfy the obligation to make specific findings as to basic evidentiary facts.

An agency statement that the basis for its decision can be found somewhere in the record is not sufficient to satisfy procedural due process, nor does it provide the reviewing court with a basis to measure whether the agency considered and weighed the evidence in arriving at a decision, and whether it used the appropriate legal criteria to so weigh. Due process demands particularized findings of adjudicative fact, not a sweeping reference to the record. Pangallo v. Ky. Law Enforcement Council, Ky.App. 106 S.W.3d 474, 479 (2003), citing Cape Publications v. Braden, Ky., 39 S.W.3d 823, 827 (2001).

Second, the Defendants argue that the Commission could not make specific reference to the record since it “does not even get paginated until well after the decision[.]” Clearly, the lack of a sequential page number does not prevent the agency from using other indicia to identify the sources of the basic evidentiary facts found – the evidence can be identified by person, by date, by internal page number and document title, etc. The suggestion that the lack of a sequential pagination excuses the obligation to identify the basic evidentiary facts is in vain.

Third, Defendants argue that “every single finding of fact” need not be explained, and on this, Plaintiffs agree – but the “basic evidentiary facts” upon which the conclusions rest are required to be identified, and the volume of the Commission’s findings are not a surrogate for an explanation of what basic evidentiary facts support the conclusions.

It is not the function of this Court to comb the record in an attempt to supply the necessary findings of evidentiary facts needed to support these conclusory “ultimate” findings. And while the Defendants spend much of their brief seeking to supply references to the record to demonstrate that in their opinion the Commission’s findings do have evidentiary support, it is not permissible for the applicant to attempt to supply those underlying findings post hoc. Had the Commission had provided the actual basis in the record for their findings, the Court would not be faced with having to guess whether in fact the Commission considered and relied on those references that the Defendants believe support the Commission’s findings.

The Commission’s recommendation, as was the case of the Board order in Pearl v. Marshall, Ky. App. 491 S.W.2d 837 (1975), “does not give any clue that it even considered the real issues. We are unwilling therefore to supply the necessary findings by implication” Id. at 840.

As the Court in Pearl noted, while some states have held that a finding of the ultimate fact by an administrative body will carry with it by implication a finding of the basic facts, this is not the rule in Kentucky. Id. at 840. The lack of basic findings of fact deprives this Court of the ability to determine whether the Planning Commission considered and weighed all of the evidence, and how it resolved conflicting evidence in order to arrive at its conclusions.

"If an agency does not clearly disclose the grounds upon which its decision is based, a court will be usurped of its power to review over questions of law. (Cites omitted). An opinion of an administrative body should set forth the basic findings of fact." Pearl, supra, at 840 (quoting L&N Railroad Company v. Commonwealth, Ky., 314 S.W.2d 940 (1958). The Commission’s findings of ultimate “facts” here are not sufficient, even if support could be found somewhere in the record to support them. The decisionmaker is obligated to make findings regarding those basic evidentiary facts on which the ultimate facts rest in order that the reviewing Court can determine both that the decisionmaker considered the entire record and that the basic facts support the ultimate facts so stated. The Court’s role is not to supply the basic facts or to presume them, nor can the project proponents rehabilitate the Commission’s recommendations post hoc. City of Beechwood Village v. Council of and City of St. Matthews, Ky., 574 S.W.2d 322, 325 (1978).

The lack of such findings requires that the decision be vacated and the matter remanded to the Commission in order to revisit the record and to provide evidentiary findings to support whatever might be the Commission’s “ultimate” findings and recommendations. For where, as here, the validity of an order of an administrative body depends on a determination of fact, the absence of findings of basic evidentiary facts is fatal to such an order. Energy Regulatory Commission v. Kentucky Power Co., Ky.App. 605 S.W.2d 46 (1980).

II. THE PLANNING COMMISSION AND METRO COUNCIL ACTED ARBITRARILY IN CONCLUDING THAT THE MAP AMENDMENT WAS IN AGREEMENT WITH THE ADOPTED COMPREHENSIVE PLAN

In their opening Brief, Plaintiffs argued that even if this Court were to find that the findings of the Commission sufficiently identified basic evidentiary facts on which their conclusions rested so as to allow for judicial review, the decision was yet arbitrary since the Commission failed to make statutorily required findings of compliance with several applicable provisions of the Comprehensive Plan. In response, Defendants suggest that Plaintiffs are attempting to reargue the merits of the case before this Court and to recast the appropriate review standards. Neither is correct.

Plaintiffs agree with Defendants that the standard for judicial review of agency action concerning findings of fact is whether the decision is supported by substantial evidence on the record taken as a whole. The Court is not to “substitute its own judgment as to the inferences to be drawn from the evidence,” Railroad Commission v. Chesapeake & Ohio Ry., Ky., 490 S.W.2d 763, 766 (1983), but is empowered to assure that in consideration of the record taken as a whole, substantial evidence exists.

Plaintiffs do disagree with the implication that on review, the findings of fact made by the agency must be upheld if there is any evidence to be found in the record, without consideration of the remainder of the record. “Substantial evidence” is a standard that presupposes that the trier of fact has weighed the evidence “on the record taken as a whole” and made a choice among evidentiary facts presented. As previously argued, as a matter of due process the findings must be sufficiently detailed with respect to evidentiary facts to enable the reviewing court to determine that the trier of fact (here the Commission) did consider and weigh the evidence, for even though there is great latitude given in the evaluation of the evidence, the findings must reflect that such an evaluation occurred and reflect what facts formed the basis of the conclusions of law. And where the decision is unsupported by “substantial, reliable and probative evidence found within the record as a whole[,]” it will not be upheld. Hocker v. Fisher, Ky. App., 590 S.W.2d 342, 344 (1979).

The inquiry into whether the agency has acted “arbitrarily” requires evaluation of whether the decision rests on substantial evidence in the record taken as a whole, adherence to procedural due process (including the making of specific findings of basic evidentiary facts) and satisfaction of the applicable requirements of the enabling statute. Unlike the deference accorded the agency in the weighing and selection of evidence, the interpretation and application of a statute by the agency is reviewed de novo by the court. Lindley v. Paducah Bank and Trust, Ky. App. 114 S.W.3d 259 (2003); Rogers v. Fiscal Court of Jefferson County, Ky.App. 48 S.W. 3d 28 (2001) If the ruling of the administrative agency is based on an incorrect view of the law, the reviewing court may substitute its judgment for that of the agency. Kentucky Board of Nursing v. Ward, Ky.App. 890 S.W.2d 641 (1994)

As noted earlier, the standards governing the amendment to a zoning map demand that the planning commission and legislative body make certain findings based on the record as a whole. The commission / legislative body must either find that the map amendment is “in agreement with the adopted comprehensive plan” or in the absence of such a finding must make a finding that either “the existing zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate”; or that “there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.” KRS 100.213 (emphasis added).

In this case, the Commission committed clear error in concluding that the proposal was consistent with the adopted comprehensive plan, since it failed to analyze and make the required finding of compliance with certain applicable provisions of that plan. The findings of the Commission concerning whether the proposed rezoning was consistent with the Comprehensive Plan are contained in Clauses 19 through 38 of the Commissions decision. Rather than deconstructing each of the clauses, Appellants focused in their opening brief on those Guidelines where the Commission was most clearly erroneous.

The first was the failure to make adequate findings of compliance with Comprehensive Plan Policy 1.B.8, despite identification by the Staff Report of Policy 1.B.8 as being among the major comprehensive plan policies “to be addressed.” Despite having been alerted by staff that “[c]reation of a new node of Suburban Marketplace form district requires the Planning Commission to make several findings, after considering all the evidence” (the 1.B.8 findings) the Commission’s finding failed to do so. Specifically, as argued in the Plaintiffs opening brief at 26-28, the Commission failed to make findings addressing the “potential for disruption of established residential neighborhoods” and other factors outlined in Policy 1.B.8 despite the Commission’s Site Committee having identified the proposed use to not be compatible with that neighborhood, and despite the identification by the Staff of this Policy as being a significant and applicable guideline to be addressed.

Defendants respond (at pp. 21-23) by identifying evidence in the record that they believe supports a finding of compliance with 1.B.8. But it is, as Defendants have argued throughout, not the function of this court to sift through the evidence in order to supply findings for the Commission. The failure to address the “potential for disruption of established residential neighborhoods” is a thread that runs through the Commission decision, and here, the lack of a specific finding is an error of law demanding a reversal of the action. KRS 100.213 requires findings on the “agreement” of the proposed zone change with the Comprehensive Plan, not with select aspects of the plan while ignoring the most controversial and dramatic consequences, which are to the safety, quality of life and continued habitability of the residential neighborhood abutting the proposed mall.

Likewise, Plaintiffs demonstrated in their opening brief that the Commission failed to make a requisite finding under Plan Element 1 A 2(c), ignoring both the Outer Loop Corridor Study and Pond Creek Task Force reports and in so doing, failing to satisfy the statutory mandate to “agreement” with the Comprehensive Plan, which obligates the Commission to “evaluate the appropriateness of a land development proposal in the context of neighborhood, sub-area, corridor plans and strategies that were legislatively adopted or accepted prior to Cornerstone 2020 in the consideration of zoning map amendments and form district map amendments.” Defendants had no response to this point, and Plaintiffs stand on the arguments in their opening brief demonstrating that the Commission’s findings are deficient as a matter of law because they did not address either the Outer Loop Corridor study or the Pond Creek Task Force Report and recommendations for the use of the property in question.

With respect to Guideline 3, the Commission failed to make findings evaluating the impacts of the proposed development on the adjacent neighborhood, and made a fundamental error of fact in failing to acknowledge and evaluate the effects of a direct connection between the proposed mall and new internal road, with the Evangel Church property and through it the adjacent neighborhood. See: Brief of Plaintiffs at 29-34. Defendant glosses over the potential impact on the neighborhood from cut-through traffic, yet the Hearing Officer’s Report, summarized in the April 8, 2004 Staff Report acknowledged the issue as “the most prevalent concern” from the perspective of the nearby neighbors:

The most prevalent concern pertained to the quality of life in the surrounding neighborhoods, the increase in cut-through traffic, and the impact on the adjacent residential streets. . . .The traffic study did not factor in a redevelopment of the Evangel site to a different and more intense development from a traffic perspective and did not include any other proposed development between the church and the Northern Ditch.

The McCawley /Minors Ln./ Preston Hwy. intersection was not analyzed and Minors Lane will be used by neighbors trying to avoid the Outer Loop.

As noted by the Hearing Officer no analysis of the effect and extent of cut-through traffic problems associated with proposed mall traffic seeking to exit north through the Evangel church property or east through the proposed condominiums or the impact on the McCawley/Minors Lane/Preston Highway intersection was provided despite the Hearing Officer’s conclusion that “Minors Lane will be used by neighbors seeking to avoid the Outer Loop;” and no modifications were made to the project proposal to address the cut-through traffic concerns of the local neighborhood. More importantly, for purposes of this court’s review, no findings were made by the Commission concerning the compatibility of the proposed zone change and development with Policy 3.4 of Guideline 3. Instead, a “Binding Element” was proposed, the only measure adopted that addressed cut-through traffic in any manner, potentially requiring the arbitrary amount of $50,000 for cut-through traffic abatement procedures. The record contains no evidentiary basis for the substitution of this arbitrary number for proper analysis of the most significant incompatibility issue in the case and proper mitigation of impacts.

Additionally, it is undisputed that the potential for redevelopment of the Evangel Church property as a potential commercial property was not considered by the Commission in its deliberations. The potential for adverse effects of the commercial or other redevelopment of that adjoining property should have been evaluated, since a decision rezoning the 49-acre tract immediately to the south of the Church would clearly facilitate rezoning of the church property under KRS 100.213 as a “major change” in the area.

In response to Plaintiffs’ opening brief, Defendant points to the testimony of a George Chapman, a consultant hired by the developers who concluded that the “Evangel property’s highest and best use is as a church, and that commercial redevelopment is unlikely in the near future.” Defendant’s Brief at 25.

Unfortunately for Defendants, Evangel must not have gotten that news, since as reflected in the advertisement from Walter Wagner Jr. Company, the Evangel Christian Life Center property is up for sale with a commercial realtor, and among the features prominently advertised in the ad are that the Church is “adjacent to planned shopping center,” with “easy access to I-65.” (The ad is annexed to the opening brief as Appendix D).

Thus, the redevelopment prospect for this property was not a matter of speculation, and the potential for redevelopment is substantially facilitated and enhanced by the prospect of the “planned shopping center” and the new “easy access to I-65” as well as the new road to the property. The failure of the Commission to consider among the adverse impacts of the location of the proposed rezoning, the direct “domino” effect that this rezoning would have on the adjacent church property, in light of this evidence, shows the decision to have been “spot zoning” at its worst; a decision made in a vacuum and devoid of proper planning consideration.

The failure of the Commission to make findings concerning compliance with Guideline 6.6 and 7 with respect to the impacts of bleed-through traffic into neighborhoods to the east and south of the project has already been discussed. Remarkably, the Commissions’ findings did not even mention, let alone find compatibility, of the project under Guideline Policy 6.6 and 7, the issue of cut-through traffic.

Defendants response to Plaintiffs’ argument concerning the non-compliance of the Commission with Guideline 6 Policy 6.6, is to shift the discussion to the market study. While Plaintiffs believe that the question of the negative impact of a major new shopping mall and the relocation of the existing Wal-Mart from the Jefferson Mall area was another of the Commission’s failures in the decision, Plaintiffs opening brief focused on a completely different topic and different failure of the Commission - perhaps the most transparent failure of the Commission – the failure of the Commission’s findings under Guideline 6 to address the policy recommendation that retail commercial development should be located “at locations where nuisances and activities of the proposed use will not adversely affect adjacent areas.” Concerning Guideline 7 compliance, Defendants argue that the binding element possibly requiring $50,000 to be paid for traffic improvements is a sufficient surrogate for the required findings and analysis, yet the figure is arbitrary and does not satisfy the requirements of the Comprehensive Plan for analysis and findings of compatibility of this “most prevalent concern.”

Finally, with respect to Guideline 10, Plaintiffs argued that the Commission erred in failing to make a finding reflecting a weighing and determination concerning the conflicting evidence as to whether the proposed floodplain mitigation plan was adequate to address the flooding potential of the area and property. Defendants mischaracterize Plaintiffs argument as suggesting that the Commission is obligated to “state specifically what it thought about each and every speaker’s testimony[,]” and that is certainly not an accurate characterization of Plaintiffs’ position. The findings of the agency are required to be specific and sufficient to demonstrate to the reviewing court that the findings are based on a “weighing of offered evidence” and “a consideration of the evidence” City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971). When the testimony in the record include a conflict between the developer’s engineer and a hydrologist with 33 years of experience as head of the Hydrology Section for the U.S. Army Corps of Engineers and 12 years thereafter as a consultant, who has first-hand knowledge of the dynamics and hydrologic response of the watershed in question, bedrock due process does require that the findings explain how this conflict was resolved and what evidence was found probative on the issues. It is, as Plaintiffs noted, no small matter for an area that was inundated and devastated by floods in 1997.

In each of these areas, the Commission committed clear errors of law in failing to make required findings with respect to plan compliance, in failing to reflect consideration of evidentiary conflicts in the record and in making conclusions directly contrary to the evidence in the record. This Court is not being asked to reweigh the evidence or to substitute its findings for those of the Commission. Instead, the Commission is being asked to provide those findings demanded by statute reflecting that the applicable provisions of the Comprehensive Plan were considered in light of the evidence, and to provide findings demanded by constitutional due process principles adequate to explain how the conflicting evidence was weighed to arrive at the conclusion.

III. THE COMMISSION’S APPLICATION OF THE REMAINING TESTS FOR A ZONING MAP AMENDMENT WERE ARBITRARY IN THAT THE DECISIONS LACKED EVIDENTIARY FACTS AND FAILED TO ARTICULATE THE BASIS FOR THE CONCLUSIONS

In their opening brief, Plaintiffs demonstrated that the Commission failed to make requisite findings with respect to the second and third of the alternative findings necessary to support approval of a zoning map amendment. With respect to the second of the three alternative findings, that the “existing zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate,” (emphasis added), Plaintiffs demonstrated that the three clauses (5, 7 and 9) of the Commission’s “findings” were conclusory and clearly erroneous. The Commission found that the current zoning for residential use was inappropriate, ignoring the fact that the existing use of land immediately to the west is a settled, stable residential neighborhood and that the land abutting on the immediate north includes both current residences and former residences purchased and removed by the Church. The Commission’s finding is questionable also in light of the proposal to include residential uses (in the form of condominiums) in the new development.

The statute requires more than a finding that the existing zoning is inappropriate. It also, by its plain terms, requires justification in the form of an ultimate finding supported by basis evidentiary facts found, that the proposed new zoning classification is appropriate. In this case, the Commission “found” that the proposed new zoning change “appear (sic) to be the only development appropriate for the site” in direct and unexplained contradiction of the Staff Report which concluded that “[c]reation of a new node of Suburban Marketplace form district is not the only solution to this concern.”

As argued in the opening brief at pp. 39-40, the Commission failed to explain or make sufficient findings grounded in identified evidence supporting the conclusion. Defendants did not respond specifically to these arguments, and Plaintiffs rest on the arguments previously made concerning these failures.

With respect to the last prong of KRS 100.213, Plaintiffs demonstrated that the third alternative standard by which a zoning map amendment can be justified, to wit that “[t]here 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,” had not been satisfied. The Commission failed to identify “the area” that it considered, leaving the Court with no yardstick against which to measure whether the Commission’s finding is consistent with the evidence. Additionally, there is no evidence in the record and certainly none cited by the Commission that the changes occurring southwest of I-65 were unanticipated when the Comprehensive Plan was adopted or that the changes have “substantially altered the basis character of such area.”

Defendants have not responded to this argument, and, on the strength of their opening brief at 41-43, Plaintiffs respectfully submit that the decision of the Commission as to this prong of the KRS 100.213 tests is arbitrary inasmuch as it lacks evidentiary basis and that prerequisite findings were not made. In City of Beechwood Village, Ky.App. 574 S.W.2d 322 (1978) the Court invalidated a rezoning based on the failure of the legislative body to provide in its findings a “statement of what major changes have occurred, how it was determined that they were not anticipated or in what manner they have substantially altered the basic character of the area.” Id. at 324. The Commission’s action here suffers from the same fatal infirmities.

CONCLUSION

As Plaintiffs noted in their opening brief, “spot zoning,” which is the shorthand for arbitrary rezoning that occurs without proper consideration of planning and without regard for the context of surrounding and nearby land uses, has long been frowned upon by Kentucky courts.“[T]he “real evil of ‘spot zoning’,” the court noted in Wells v. Fiscal Court of Jefferson County, Ky., 457 S.W.2d 498 (1970), “consists in the reclassification of a site for a use not consistent with the character of the neighborhood or area[.]” In this case, the Commission ignored proper planning and plan principles and instead arbitrarily rezoned a parcel without consideration for the effect of this dramatic and intrusive land use change on surrounding properties. This case is quintessential spot zoning, ignoring significant conflicts between the proposed land use and existing residential uses; proposing to sprawl commercial development away from an existing commercial corridor and to drain $46 million dollars of sales revenues from that existing commercial district; and inviting further conversion of adjoining lands to commercial use without proper consideration and mitigation of adverse impacts on adjacent neighborhoods.

WHEREFORE, for the reasons stated herein and in the opening brief, Plaintiffs respectfully request that this Court enter an Order

(1) Setting aside the Ordinance 98, Series 2004 as being arbitrary, capricious and otherwise inconsistent with law;

(2) Voiding the change in zoning for the affected property and restoring the zoning and form district classifications that existed prior to July 15, 2004 for those properties; and

(3) For any and all other relief to which the Plaintiffs may appear entitled.



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