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

Bullitt County Quarry Case Briefed And Awaiting Court Review  Posted: June 4, 2013

Come the Plaintiffs/Appellants (hereinafter “Plaintiffs”), by and through counsel, and file this reply to the Memoranda submitted by the City Council of the City of Hillview (“City”) and the Rogers Group, Inc. and landowners (“Private Appellees”). For the reasons stated below and in the opening Memorandum, Plaintiffs respectfully request that this Court grant judgment for Plaintiffs.

SUMMARY OF REPLY

In their opening brief, Plaintiffs argued that the approval of Ordinance 2012-06 by the City Council of the City of Hillview was arbitrary and contrary to the requirements of applicable law for several independent reasons, each of which was sufficient to justify vacating the Ordinance approving the rezoning.

First, Plaintiffs argued that the City Council failed to make required findings of basic adjudicative facts to support the two “ultimate” findings contained in the Ordinance – i.e. that the existing zoning classifications of the subject property were inappropriate and that the proposed zoning classification is appropriate; and that there had 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(1)(b).

Plaintiffs argued that the enactment of Ordinance 2012-06 was unlawful for another reason, that being that it was based in part on “Zoning Restrictions” developed outside of the record between counsel for the applicants and counsel for the Hillview City Council; an extra-record communication in derogation of the due process rights of the Plaintiffs, which tainted the City Council approval of the Ordinance due to the lack of assurance that the approval was based solely on the evidence in the record that the statutory criteria for a zoning map amendment.

The City and Private Appellees have filed responsive memoranda, and Plaintiffs will address each argument seriatim, after first addressing a threshold issue concerning the manner in which this case is presented for decision.

A MOTION FOR SUMMARY JUDGMENT IS THE APPROPRIATE VEHICLE
FOR PRESENTING THIS STATUTORY APPEAL FOR REVIEW BY THIS COURT

Both the City and Private Appellees have questioned whether a motion for summary judgment is the appropriate vehicle for submitting this matter to the Court for review. All parties agree that this matter arises under KRS 100.347(3), which specifically vests this Court with jurisdiction to hear and determine an appeal from a property rezoning by a legislative body (in this case, the City Council), and no party has alleged that the appeal is untimely or the venue improper.

As to whether the memoranda filed by Plaintiffs should be couched as a motion for summary judgment or as an appellate brief, the matter may at first blush appear to be one of form over substance, since no party disputes that this is a statutory appeal and that this Court’s role is to review the decision of the legislative body against a legal standard of “arbitrariness.” Plaintiffs believe, however, that the vehicle of a summary judgment motion is the appropriate mechanism to use, since the facts developed are a matter of record (or should have been, in the case of the additional “zoning restrictions”) and this Court’s review is concerned with whether, on the basis of the record below, the legislative body’s decision was arbitrary as a matter of law. KRS 23A.010 vests general jurisdiction in Circuit Court, and provides that the Circuit Court “may be authorized by law to review the actions or decisions of administrative agencies, special districts or boards. Such review shall not constitute an appeal but an original action.” Additionally, the Kentucky Rules of Civil Procedure do not provide specific guidance on the manner by which the issues in a statutory appeal are presented (i.e. by “brief” or by “motion”), providing only that “[t]hese Rules govern procedure and practice in all actions of a civil nature in the Court of Justice except for special statutory proceedings, in which the procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules.” Lacking a specific direction either from the General Assembly in KRS 100.347 or the Supreme Court in the Kentucky Rules of Civil Procedure for the manner by which the arguments on review of the legislative body action are to be presented, utilization of the process outlined in the Civil Rules for disposition of matters of law (i.e. the arbitrariness of an action of a legislative body), which is a Motion for Summary Judgment, is appropriate.

Irrespective of whether the opening Memorandum and this Reply Memorandum are treated as adjunct to a Motion for Summary Judgment or as Opening and Reply Briefs, the parties are not in disagreement regarding the standards by which this Court is to review the action of the City Council in approving a rezoning.

The standard for judicial review of the actions of a legislative body in approving a zoning change (zoning map amendment) as outlined in the case of City of Louisville v. McDonald, Ky., 470 S.W.2d 173, 177-8 (1971) is concerned with freedom from arbitrary action, and “[i]f 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.” The record before the planning commission and the legislative body “must adequately reflect the elements necessary for judicial review to determine whether the ultimate action was arbitrary[,]” for “constitutional due process requires a trial type of hearing for the purpose of determining the adjudicative facts necessary to decide the issue. The 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.” City of Louisville, at 177.

“Findings of fact” are, as was 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” that support the conclusion. And it is the lack of specific and adequate findings of adjudicative fact that dooms the City Council’s action in this case, in addition to the consideration of conditions developed outside of the record in approving the requested rezoning.

In reviewing the legal sufficiency of the City Council’s findings of adjudicative fact, this Court reviews that question de novo, for when judicial review involves the legal sufficiency of undisputed findings of “basic fact” rather than whether the evidence supports a factual determination of an administrative body, court is not bound to accept the legal conclusions of the administrative body. Roland v. Kentucky Retirement Systems, Ky. App. 52 S.W.3d 579 (2001). A question of law is presented where the relevant facts are undisputed and the issue on appeal becomes the legal effect of those facts. Revenue Cabinet v. Comcast Television, Ky. App. 147 S.W.3d 743 (2004). This Court is charged with reviewing de novo whether the legislative and evidentiary findings underpinning the rezoning are adequate as a matter of law to satisfy the statutory requirements of KRS 100.213(1)(b).

A GENERAL REFERENCE TO “THE RECORD” IS INSUFFICIENT TO STAND AS A FINDING OF ADJUDICATIVE FACT TO SUPPORT REZONING

A zoning map amendment grounded in KRS 100.213(1)(a) or (b), or both, as is the case here, must be supported by findings of “basic facts,” Pearl v. Marshall, Ky. 491 S.W.2d 837,839 (1973) to support the “ultimate facts[.] “[T]he finding of an ultimate fact . . . unaccompanied by a finding of any basic facts which support the ultimate finding often renders appellate review impossible.” City of Beechwood Village v. Council of And City of St. Matthews, Ky. App. 574 S.W.2d 322, 324 (1978). As the Court noted in Caller v. Ison, 508 S.W.2d 776 (1974), “a mere parroting of the words of the statute was not a sufficient finding of fact in a zoning matter to justify a map amendment zoning change.” City of Beechwood, supra, at 324.

The specific adjudicative facts necessary to support a defensible legal conclusion that the requirements of KRS 100.213(1)(a) or (b) had been met, must of necessity be facts developed by a trial-type adjudicatory proceeding and contained in the record of that proceeding. City of Beechwood Village v. Council of and City of St. Matthews, Ky. App. 574 S.W.2d at 324. This Court’s inquiry is limited to a review of whether the City Council provided sufficient specific findings of adjudicative fact in the adopted Ordinance to support the “ultimate fact” of compliance with KRS 100.213, and it is not this Court’s responsibility to either presume the existence of nor to scour the record in order to provide such facts in the absence of the legislative body having done so. “A finding which consists of nothing other than a repetition of the legal requirements as set out by a statute fails to meet the requirements of due process, in that such finding does not contain sufficient adjudicative facts to permit a court to conduct a meaningful review of the proceeding for the purpose of determining the question of whether the action of the Commission has or has not been arbitrary.” Caller v. Ison, Ky., 508 S.W.2d 776 (1974).

Despite the invitation of Private Appellees to do so, the role of the reviewing Court is not to supply the basic facts or to presume them, nor can the project proponents rehabilitate the legislative body’s lack of findings post hoc. City of Beechwood Village v. Council of and City of St. Matthews, Ky., 574 S.W.2d 322, 325 (1978). The “finding of the ultimate fact [is not] sufficient if support for the finding could be found in the record.” Id. Contrary to the suggestion of Private Appellees, a statement in Ordinance 2012-06 that rezoning was appropriate “based on all of the above and the record” does not satisfy the requirement for specific findings of adjudicative fact unless the “all of the above” to which the Ordinance referred included such specific findings. For a generalized reference to “the record” clearly is not a sufficient finding of adjudicative fact, and deprives this Court of the ability to meaningfully review the basis for the City’s conclusion that the statutory criteria of KRS 100.213(1)(a) and (b) were met.

As noted in the Plaintiffs’ opening memorandum, KRS 100.213 requires that in approving a map amendment, the 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, that one (1) or more of the following apply:

(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 in the adopted comprehensive plan and which have substantially altered the basic character of such area.

In this case, the City of Hillview justified the enactment of Ordinance 2012-06, which changed the zoning of the subject property from Agricultural and Stream Valley Reserve to Earth Products, on two findings:

Based on all of the above and the record, the City Council finds:

1. That the existing zoning classification given to the property is inappropriate and The proposed zoning classification is inappropriate.

2. The comprehensive plan did not take into consideration the existing uses of the area where this real estate is located adjoining two (2) existing operating quarries and their expansions which are major changes of an economic and physical nature.

Ordinance 2012-06.

The City’s approval of the zoning change must contain sufficient findings of adjudicative fact to satisfy the requirements of KRS 100.213(1)(a) or (b), since the Ordinance did not find or conclude that the requested map amendment was “in agreement with the adopted comprehensive plan.”

Plaintiffs’ opening memorandum demonstrated that Ordinance 2012-06 lack those specific findings of adjudicative fact to support either a KRS 100.213(1)(a) or (1)(b) finding. With respect to the KRS 100.213(1)(a) criterion, there was no adjudicative fact identified by the City Council supporting the conclusion that “existing zoning classification” of agricultural and stream valley reserve, was inappropriate. Plaintiffs argued that the Ordinance provided no specific adjudicative facts to support the conclusory finding of the City Council that “the existing zoning classification given to the property is inappropriate and the proposed zoning classification is appropriate” because there was no factual finding in the Ordinance that the property is unsuitable for agricultural use, nor that the Floyds Fork has been relocated so that the Stream Valley Reserve designation along its banks is no longer appropriate. The record reflects instead that the property sought to be rezoned was being used for agricultural purposes, and the Floyds Fork remains in the location that it was when the Comprehensive Plan was initially adopted in 1997 and readopted in 2005 and 2010.

The City, in response, does not identify any adjudicative facts supporting the conclusion that the existing zoning classification was inappropriate.

In fact, as the City notes on p. 7 of its Memoranda (and as noted in Ordinance 2012-06), mineral extraction is a land use allowed conditionally under the county’s zoning regulations in both (A) Agricultural and (SR) Stream Valley Reserve zones, provided that a conditional use permit is obtained. Ordinance 2012-06. The availability of mineral extraction as a conditionally permitted use in the A and SR zones undercuts the argument of the Private Appellees that what is “appropriate” and what is “inappropriate” should be considered in light of the “Earth Products Zone” regulations. Given that mineral extraction could occur under the existing A and SR zones, and that the property was being used for agriculture and was still adjacent to Floyds Fork, any argument that the current zoning classification was inappropriate would be difficult at best.

In the case of Fritz v. Lexington-Fayette Urban County Government, Ky. App. 986 S.W.2d 456, 459 (1998), the Court paraphrased the standards for changes in zoning in this manner:

Zoning changes are allowed if they are in accordance with the comprehensive plan, KRS 100.213, or if the plan is out of touch with reality, KRS 100.213(1)(a) & (b); Wells v. Fiscal Court of Jefferson County, Ky., 457 S.W.2d 498 (1970), and there is a compelling need for the proposed change. McDonald, supra; and KRS 100.213.

Given the continued use of the subject property for the purposes allowed by the A and SR zoning designations, the current zoning can hardly be deemed “out of touch with reality,” and given the conditional right noted by the City to pursue mineral extraction in the A and SR zones, there is no “compelling need for the proposed change.”

Absent specific basic factual findings by the City Council as to why it concluded the existing zoning to be inappropriate, Ordinance 2012-06 lacks the necessary predicate adjudicative factual findings to support rezoning under KRS 100.213(1)(a).

THE FACTUAL FINDINGS OF ORDINANCE 2012-06 REGARDING KRS 100.213(1)(b)
FALL SHORT OF THOSE NECESSARY TO SUPPORT A REZONING DECISION

As noted above, the adoption of Ordinance 2012-06 was in part predicated on a finding under KRS 100.213(1)(b), which allows for rezoning where “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 this instance, the City Council made a finding that:

2. The comprehensive plan did not take into consideration the existing use of the area where this real estate is located adjoining two (2) existing operating quarries and their expansions which are major changes of an economic and physical nature.

Assuming, for the sake of argument, that there were findings of basic evidentiary facts in the Ordinance to support this conclusory “finding,” the conclusory finding is on its face legally insufficient to meet the statutory criteria. As the Court noted in City of Beechwood Village v. Council Of And City of St. Matthews, Ky. App. 574 S.W.2d 322, 324 (1978), the “basic facts” needed to support a KRS 100.213(1)(b) “ultimate fact” finding are these: “what major changes have occurred, how was it determined that they were not anticipated [in the Comprehensive Plan] [and] in what manner [have they] substantially altered the basic character of the area[?]” Id. at 324.

This standard for approval of a zoning map amendment under KRS 100.213(1)(b) demands findings on four sets of basic evidentiary facts – What is the “area involved” that the legislative body is considering? Have there been “major changes of an economic, physical or social nature within the area involved?” Were these major changes “not anticipated in the adopted comprehensive plan?” And finally, have these unanticipated major changes “substantially altered the basic character of such area?” Id., see also Fritz v. Lexington-Fayette Urban County Government, Ky. App. 986 S.W.2d 456 (1998).

Ordinance 2012-06 provides no basic findings of fact that identifies what the City Council considered to be the “area involved” under review. It appears that the City Council considered only the two existing quarries and their expansion areas in concluding that “major changes of an economic and physical nature” had occurred. This is insufficient to satisfy the requirements of the statute. In construing what the General Assembly meant by requiring consideration of the “area involved,” the court in Wells v. Fiscal Court of Jefferson County, 457 S.W.2d 498 (Ky. App. 1970) noted that:

[The statute speaks in terms of the “area,” thus seeming to contemplate a change in the character of a neighborhood or section of a community that warrants a change in the zoning treatment of that neighborhood or section.

Id. at 500.

The Ordinance lacks any basic or ultimate finding of fact that the “major changes of an economic and physical nature,” those being existence of two operating quarries, have “substantially altered the basic character of the area.” City of Beechwood Village, supra, at p. 324. This lack of finding of basic or ultimate fact requires that the City Council action be remanded and voided for want of compliance with the statutory criteria.

With respect to the justification for a rezoning based on evidence that “[t]here 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[,]” no basic or ultimate finding was made that there have been major unanticipated changes in the area since the 2010 adoption of the Comprehensive Plan. The area in question has been in agricultural and residential use with little change in land use since the adoption of the Comprehensive Plan in 1997 or readoption of the Comprehensive Plan in 2005 and in 2010.
Ordinance 96-01, a copy of which was included in the record by letter dated May 24, 2012, reflects that the property abutting the Annie Reeves Bates Trust Property on the north, western, and southwest boundary, which is the location of the existing quarry referenced by the Ordinance 2012-06, had been rezoned by the City of Hillview on March 4, 1996, a year before adoption of the 1997 Comprehensive Plan. That the mining of property that had been rezoned to Earth Products Zone would occur could hardly be considered an “unanticipated” change from a Comprehensive Plan adopted a year after that rezoning occurred.

In the absence of sufficiently particularized findings of fact to support the conclusion that the KRS 100.213(1)(b) criteria were satisfied, Ordinance 2012-06 should be declared void for want of compliance with the statute and Kentucky Constitution Section 2.

THE INCORPORATION OF EXTRA-RECORD LAND USE RESTRICTIONS INTO ORDINANCE 2012-06 REQUIRES THAT THE ORDINANCE BE VOIDED IN ITS ENTIRETY FOR WANT OF STATUTORY AND CONSTITUTIONAL COMPLIANCE

The City defends the development and adoption of land use restrictions developed on the basis of extra-record communication with counsel for the applicant for rezoning as being appropriate under KRS 100.3681. According to the City, “the imposition of these land use restrictions is a legislative function by statute and is not the basis or involved in the rezoning of this real estate. Ordinance No. 2012-026 does not in any way include these restrictions as the basis of the rezoning.” City Memorandum at 11. Private Appellees, on the other hand, recognize that these land use restrictions were “conditions on their approval[]” but argue that the manner of their development should not be the focus of this Court.

Under Kentucky law, participants in a zoning case before a Planning Commission are entitled to procedural due process, which has been defined in this context to include “a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence[.]” Morris v. City of Catlettsburg, 437 S.W. 2d 753, 755; City of Louisville v. McDonald, 470 S.W. 2d 173. An administrative proceeding that affects a party’s rights but does not afford a meaningful opportunity to be heard is “arbitrary” under Kentucky law.

At the public hearing on the zoning request, Applicant Rogers Group, Inc. offered, on the record, only two “land use restrictions” in support of the zoning map amendment – one, which would limit the use of Castlerock Drive for transport of mined materials, and the second, a commitment to refrain from open pit mining within three hundred (300) feet of the property boundary along the Blankenship Estates properties. At the conclusion of that public hearing, counsel for the City of Hillview announced that the record was closed.

The “zoning restrictions” were presented at the City Council meeting were not made a part of the record during the hearing, were not subject to public review or comment, and were not subject to any examination or comment as to their form or adequacy by participants to the public hearing. The right of plaintiffs to a decision by the City Council that is grounded in identified adjudicative facts presented at a trial-type hearing and which provides ultimate factual findings of statutory compliance grounded in such facts, is violated when the City Council decision rests in any part “zoning restrictions” developed outside of the record. The action deprives Plaintiffs of the right to a decision based on the record with opportunity to be heard and to cross-examine the witnesses regarding the restrictions.

In response, the Private Appellees argue that Plaintiffs were on notice that additional restrictions might be part of the final decision of the Hillview City Council. Private Appellees Memorandum at 11. The implication that Plaintiffs would have contemplated that the City and applicant would engage in communications towards development of additional restrictions outside of the record, resulting in new conditions being developed, is simply wrong, since Plaintiffs would have expected and do expect that the decision on rezoning would be based on the record that counsel for the City announced was closed at the conclusion of the public hearing.

It is axiomatic that a decision by a legislative body to approve a rezoning that rests in any part on matters not in evidence in the record, is invalid as a violation of procedural due process. For “procedural due process requires at least that the local legislative body in rezoning matters act on the basis of a record and on the basis of substantial evidence.” City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky. App. 1971). (Italics added). The City Council is acting in “an adjudicatory fashion to determine whether a particular individual by reason of particular facts peculiar to his property is entitled to some form of relief.” Id. To allow “zoning restrictions” to be introduced into the case after the close of the public hearing, without notice to or opportunity to be heard by affected adjoining landowners, introduces a taint into the subsequent decision of the City Council to approve the requested rezoning, and requires voiding of that action inasmuch as this Court cannot determine whether the City Council approval of Ordinance 2012-06 rested on the record (and only the record) or was influenced by additional “zoning restrictions.”

A decision to approve a request for rezoning under KRS 100.213 must be predicated on sufficiently particularized findings of adjudicative fact to support the conclusions that the statutory criteria have been satisfied. Where, as here, the legislative body relies in any part on a set of agreed-upon “zoning restrictions” developed, presented, and agreed-upon outside of the record rather than on the evidence developed in the record demonstrating compliance or noncompliance with the statutory criteria, the resulting decision is arbitrary, capricious, and otherwise inconsistent with law. The City and Private Appellees suggest that Plaintiffs should be satisfied that the additional conditions were adopted for their protection, and Private Appellees go so far as to suggest that Plaintiffs “should be careful what they ask for” in attacking the manner in which these “restrictions” were adopted. The “zoning restrictions” at issue represent an agreement “for the benefit of the City of Hillview, Kentucky and its legislative body, the City Council of the City of Hillview, Kentucky and no other person or entity.” According to those paragraphs, the instrument “creates no third party beneficiaries” and any restrictions in the document are “only enforceable by the City of Hillview or its successors or assigns by an action in Bullitt County, Kentucky Circuit Court for injunctive relief.”
While appearing to protect the interests of the adjacent and nearby landowners residing in Bullitt County, compliance with those conditions cannot be enforced by Plaintiffs or other citizens. This lack of enforceability casts doubt on the value of these
“restrictions” to those citizens. By contrast, as noted by the City, mineral extraction operations are conditionally permitted uses in the A and SR zones under the Bullitt County zoning regulations, and if a conditional use permit had been sought, such conditions could have been imposed by the Board of Zoning Adjustment; compliance with which would be subject to Board and affected property owner scrutiny.

It is unclear from the record the extent to which the members of the Hillview City Council relied on these extra-record “zoning restrictions” offered in a contract developed by counsel for the applicant and the legislative body. What is clear is that, contrary to Private Appellees’ statement that the “City Council then made an ‘on the record’ decision,” the decision of the City Council relied on restrictions that were not part of the record, not subject to public scrutiny in a trial-type hearing, and were negotiated without participation by Plaintiffs’ counsel. The possibility of any reliance thereon violates the Plaintiffs due process right to a decision based solely on particularized findings of basic fact developed in the record supporting a determination that the statutory criteria had been satisfied. This Court cannot determine whether the City Council conclusion that KRS 100.213(1)(a) and (b) were met rested on evidence in the record, or on unenforceable restrictions on the rezoned property.

KRS 100.3681 does not provide a statutory basis for extra-record development of agreed conditions by an agent of the City Council and a rezoning applicant, and for incorporation of those “restrictions” into the ordinance approving rezoning. Instead, KRS 100.3681 through 100.3684 address “Recording of Land Use Restrictions” and provide the manner in which certificates of land use restrictions are to be recorded after the restrictions are imposed or adopted by a “planning commission, board of adjustment, legislative body, or fiscal court[.]” Nothing in these statutes excuses or authorizes the bilateral development of restrictions outside of the record by agents of the applicant and legislative body. KRS 100.203(2), cited by Private Appellees, specifically contemplates imposition of a condition by a planning commission during a rezoning decision for a “development plan,” the contents of which are bounded by KRS 100.111(8), and which would be of-record and subject to public review and hearing. No similar statutory authorization exists for incorporation of extra-record agreed conditions as a component of a legislative body approval of a change in zoning under KRS 100.213(1)(a) or (b).

Nor does the Hilltop Basic Resources v. County of Boone, Ky., 180 S.W.3d 464 (2005) decision excuse the actions taken in this instance. For in suggesting that the arbitrariness review is concerned primarily with the product of the legislative action and not with the motive or method, the Hilltop Court did not grant carte blanche to the City Council to ignore the prior case law requiring that the decision be based on the record after a trial-type hearing, but instead affirmed that the “right to receive fair and nonarbitrary treatment before the [legislative body] is adequately protected (if not best accomplished) by adhering to the traditional standards which are set forth in American Beauty Homes, supra. These standards ensure, at a minimum, that all actions are taken on the “basis of a record and on the basis of substantial evidence.” McDonald, supra, at 178. By extension, a decision not based on a record but based on an agreement developed outside of the record, is necessarily unfair and arbitrary.

WITNESS TESTIMONY NOT GIVEN UNDER OATH LACKS THE SUBSTANTIALITY NEEDED TO SATISFY PROCEDURAL DUE PROCESS

As noted in the opening Memorandum, the testimony provided at the public hearing on July 31, 2012 before the Hillview City Council was provided without first placing the witnesses under oath. While case law in the Commonwealth suggests that the procedural due process interests of affected parties in zoning cases may be protected in the absence of the swearing of witnesses, Plaintiffs preserve this issue in order to preserve it for possible appellate review that the “trial-type” hearing contemplated by the Court on City of Louisville v. McDonald, requires that the expert and lay evidence in support or opposition to a rezoning be presented under oath. As Justice Wintersheimer noted in Fiscal Court of Jefferson County v. Ogden, 556 S.W.2d 899 (Ky. App. 1977), “[t]he question of the right to cross-examination and the necessity of swearing witnesses has always been troublesome.” Id. at 901. Although the Supreme Court in Danville-Boyle County Planning and Zoning Commission v. Prall, 840 S.W.2d 205 (Ky. 1992) noted that “it may be better practice to swear witnesses appearing before the Zoning Commission [but] such procedure is not mandated nor is a failure to swear a witness constitutionally inadequate[,]” this case is unlike the Prall case, which did not involve the rezoning of property but instead involved an amendment to a Planned Unit Development district, after a full trial-type hearing had been held on the previous rezoning. Respectfully, Plaintiffs submit that testimony and evidence not given under oath cannot be deemed to be “substantial evidence” on which a legislative body could rest a decision to approve a rezoning.

Substantial evidence has been defined as "being evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." The “test of substantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men. . . In determining whether the evidence is substantial, the court must 'take into account whatever in the record fairly detracts from its weight.'” Kentucky Board of Nursing v. Ward, Ky.App. 890 S.W.2d 641 (1994). If testimony or evidence is provided by a witness, whether lay or “expert,” who is not first placed under oath, a critical threshold for determining whether any weight or probative value should be accorded that testimony or evidence is lacking, and the right to cross-examination that has been determined to be essential for the zoning trial-type hearing is trivialized.

While KRS 100.345 does provide that the judicial rules of evidence do not apply to public hearings under KRS Chapter 100, neither that statute nor any other in Chapter 100 allows a presiding body, in the conduct of such hearings, to violate the due process protections of any party, nor to abridge the right of any party to cross-examine any other witness in the “trial-type hearing.” KRE 101 limits the scope of the evidentiary rules to proceedings “in the courts of the Commonwealth of Kentucky,” yet the purpose behind the oath requirement has currency in determining whether the lack of an oath in the context of a contested rezoning case violates the procedural due process protections of other parties. KRE 603 requires that “every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation “administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.” (Italics added). This purpose behind the oath requirement, applicable to law and expert witnesses alike in court, is no less significant in the context of the “trial-type hearing” that is constitutionally-mandated for changes in zoning, where decisions based on evidence adduced at the trial-type hearing can materially affect the property and other legitimate interests of landowners and applicants alike.
Plaintiffs respectfully submit that, in a rezoning context, where “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,” Hodge v. Luckett, 357 S.W.2d 303, 305 (Ky. 1962), and where the applicant bears the burden of demonstrating a “compelling need” for a zone map change, testimony presented to overcome that presumption must be under oath, not merely as a matter of “better practice” but as a threshold for protecting the right of objecting parties to a “trial type” due process hearing.

CONCLUSION

WHEREFORE, for the reasons stated herein and in Plaintiffs’ Opening Memorandum, Plaintiffs respectfully request that this Court:

(1) Enter an Order granting Judgment for Plaintiffs and setting aside the August 20, 2012 action of the City Council of the City of Hillview rejecting the findings and recommendations of the Planning Commission to deny the request to rezone the subject properties from Agriculture and Stream Valley Reserve, and approving an ordinance changing those zoning classifications to EP – Earth Products for the subject properties, as being arbitrary, capricious, and otherwise inconsistent with law;

(2) Void the change in zoning for the affected properties and restoring the zoning classifications that existed before the August 20, 2012 action; and

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


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