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

Shelby County Fiscal Court Acted Properly In Rejecting Rezoning Of Agricultural Land For Scrap Metal Facility  Posted: August 10, 2007

SHELBY COUNTY FISCAL COURT ACTED PROPERLY IN REJECTING REZONING OF LAND FOR SCRAP METAL FACILITY

On Tuesday, August 7, the Shelby County Fiscal Court rejected the recommendation of the Triple S Planning Commission in Case No. Z-365-07, the request by OmniSource Corporation to rezone 60 acres of agricultural land to industrial classification in order to support a scrap metal facility. In doing so, the Fiscal Court acted in accordance with law and well within their authority.

A Fiscal Court is empowered by law to make, from the evidence, findings that are different from the findings made by the Planning Commission, however. In the words of the Kentucky Court of Appeals in the Hilltop case, 191 S.W.2d 642 (2006), the Fiscal Court reviewing a recommendation for rezoning a property is “at liberty to make adjudicative findings different from those found by the commission” and has “broad discretion to determine the merits of each proposed zoning map amendment.”

Second, it is the applicant for a zone change that bears the burden of showing that the proposed zoning classification is appropriate.

Third, even if the applicant demonstrates that the zone change request is in agreement with the adopted comprehensive plan or meets the criteria for a change in the zoning map, a Fiscal Court is not obligated to grant the zone change request.

The Court of Appeals’ discussion in the case of Hougham v. Lexington-Fayette Urban County Government, 29 S.W.3d 370, makes clear that technical compliance with the zone change standards doesn’t require a legislative body to approve a zoning change request:

“However, just because the zone change request complies with the comprehensive plan or meets the criteria set forth in K.R.S. 100.213(1)(a) or (b), does not mean the zone request must be granted. The fiscal court still has discretion in reviewing and determining each zone change application. The governing body is given authority to decide each application on its own merits and its impact on the community. There is no specific, magic formula which is applied to the determination of each zone change request. The administrative body must comply with all statutory requirements set forth in K.R.S. Chapter 100 as to notice, hearing, findings of fact, etc. If it has followed all the statutory requirements, it can make its decision to grant or deny the zone change request. Making these decisions is the function of appointed and/or elected officials. Their responsibilities include looking at the “big picture” and making the ‘tough decisions.’”

The Fiscal Court acted properly in rejecting the Planning Commission recommendation and denying the requested zone change for three reasons:

first, because the applicant failed to provide evidence necessary to support the request for a proposed zoning classification of I-1 for the metal scrap facility;

second, because under the Shelby County zoning regulations, such scrap metal facilities are appropriate under the zoning regulations only in an I-2 (Heavy Industrial) zone and with a CUP; and

finally, that even if there is technical compliance by the applicant with the requirements for a zone change request, the potential impact on the community merited denial of the request under the Hougham standard at this time.

As the Minutes of the Planning Commission hearing reflect, Omni Source was proposing to develop a scrap metal yard on approximately 60 acres of agricultural land currently owned by Norfolk Southern. The land is zoned as Agricultural and the request is to change the zoning to I-1 (Light Industrial). According to the applicant, the plant would include a shredder machine, a bailer press, mobile shear, 15 to 20 cranes and front end loaders and 40 trucks in the ferrous area, processing some 500 to 600,000 tons per year of metal scrap, cars and wires, in addition to 60 and 80 million pounds a year of non-ferrous material and another 40,000 to 50,000 tons of stainless and alloys. The metals would come in by truck and go out by rail. 3,000 tons of solid waste a month would go to a landfill, and the applicant had not identified which landfill. A certain amount of hazardous materials, such as mercury from switches, would be expected. The traffic consultant for the applicant indicated that each 9-hour day would bring 800 new truck trips on local roads.

The staff report noted that Light Industrial Zoning is limited to activities that

“do not present any significant on-site release or discharge of pollutants including but not limited to, noise, odor, dust, smoke, contaminants, hazardous substances, wastewater, vibrations, waste, recycled materials into the environment including, without limitation to the air, water or land regardless of approval of Federal, State, or local agencies; and 2) do not have any negative off-site environmental effects[.]”

Though the staff recommended that the application for rezoning to I-1 be approved, the minutes of the Planning Commission meeting did not contain sufficient information to support the conclusion that the I-1 classification is appropriate. Instead of requiring the applicant to provide the studies and documentation to quantify the nature and extent of emissions, discharges, noise, lighting and other potential impacts, the Commission staff recommended that the zone change be approved in the absence of such information because the Board of Zoning Adjustment would supposedly address those issues at a later time.

I-1 zoning demands that the applicant demonstrate to the Planning Commission that the proposed activity does not present any significant on-site release or discharge of pollutants such as noise, odor, dust, smoke, contaminants, hazardous substances, wastewater, vibrations, waste, or recycled materials into the environment, and does not have a negative off-site environmental effect. It would not be appropriate to approve a proposed scrap metal facility under a I-1 zoning based on the assumption that the Board of Zoning Adjustment will, in the future, restrict the noise, dust, smoke, light pollution, vibrations, and other environmental effects. That much is clear from the definition of Light Industrial, which prohibits activities that present any significant on-site release or discharge regardless of federal, state or local agency approval.

Additionally, the Light Industrial District is intended for “production and assembly plants and industrial operations or services that are conducted in such a manner that noise, odor, dust, glare and vibration produced is essentially contained within the premises.” There is no evidence that noise, dust, glare and vibration will be contained within the premises.

When Commissioner Rudolph questioned whether Light Industrial was appropriate, the Commission staff noted that it was a multi-step process in which the zone change would come first and then the Board of Zoning Adjustment would determine “that they would not emit obnoxious noise, odor, smoke, dust particles, materials, or vibration beyond the confines of its property” and that “at that time they would have to provide studies to the board to prove this and to get a CUP.”

With all due respect, that is incorrect. First, to get a zone change, those studies should have been provided since the I-1 category is available only in the absence of significant on-site release or discharge of pollutants including but not limited to, noise, odor, dust, smoke, contaminants, hazardous substances, wastewater, vibrations, waste, recycled materials [being released] into the environment.

Second, the zoning change approval recommendation was not conditioned on the applicant obtaining a CUP, so the assumption that the Board of Zoning Adjustment would protect off-site properties from obnoxious noise, odor, smoke, dust particles, materials, or vibration beyond the confines of its property” and would require studies to prove this to the Board and to get a CUP, is not one on which this Fiscal Court can legally rely.

In conclusion, as to the issue of I-1 being an inappropriate zoning classification for scrap metal shredding and recycling operations, there was enough evidence in the record of the potential for off-site impacts from noise, lighting, truck traffic, vibrations and air releases to raise the possibility that discharges or releases might be significant. The applicant bore the burden of demonstrating entitlement to the zone change, and failed to produce the studies sufficient to support an affirmative finding that I-1 is appropriate because of an absence of environmental effects and significant releases or discharges.

Beyond the absence of studies to support a finding of lack of significant impacts, as a matter of law I-1 is not the proper zone for a metal scrap yard. A reading of the classification of those uses conditionally permissible in a Heavy Industrial I-2 District makes clear that the I-1 classification, even with a CUP, is improper as a matter of law. Salvage storage yards and scrap iron storage yards are specifically identified as permissible only in a Heavy Industrial District only with a Conditional Use Permit. The identification of such uses specifically in Section 689 Subsection 2a makes the use of the conditional use permit in Section 687 Subsection 2 to attempt to allow this in a light industrial zone inappropriate, since a metal scrap yard can’t even be allowed of right in a Heavy industrial zone without a CUP.

Independent of this issue, even if the Fiscal Court had agreed with the Commission that technical compliance with the zoning regulations has been demonstrated, it had the power and the discretion to deny the application based on the impact on the community, as the Court of Appeals noted in the Hougham decision.

The potential for light pollution affecting surrounding properties, for adverse effects on the use and enjoyment of nearby properties due to significant increase in truck traffic along rural roads, for fires, as occurred at the Indianapolis Indiana OmniSource plant, and for noise and vibrational impacts associated with the operation of cranes and shredding of metals, above those effects already being felt by this agricultural community due to the imposition of the Mixing Center through an exception to planning and zoning requirements, all supported denial of the proposed rezoning for the scrap metal facility.

In conclusion, rejection of the recommendation of the Planning Commission and deny the zoning change request was supportable for each of three independent and sufficient reasons:

(a) the record contained insufficient evidence to support the request the suitability of an I-1 rezoning for the proposed scrap metal shredding and recycling facility.

(b) the I-1 zoning classification requested is unavailable for a scrap metal shredding facility, since such use is permissible only in a Heavy Industrial District With a Conditional use Permit. The identification of such a use specifically in Section 689 Subsection 2a makes the use of the conditional use permit in Section 687 Subsection 2 to allow the activity in a light industrial zone inappropriate, since a metal scrap yard can’t even be allowed of right in a Heavy industrial zone without a CUP and

(c) Under the Fiscal Court’s authority as recognized by the Kentucky Court of Appeals, the potential negative impact to the surrounding properties from light, noise, dust, vibration and other impacts associated with the location and operation of a facility that will include machines shredding automobiles and other metals, and associated cranes, trucks and front end loaders for the receipt, loading, unloading and on-site management of scrap metals, justified denial of the request.


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