Saturday, October 11, 2003

Boone County zoning decision overturned

Hilltop claimed 2 on Fiscal Court were biased

By Bruce Schreiner
The Associated Press

LOUISVILLE - A divided Kentucky Court of Appeals on Friday overturned the Boone County Fiscal Court's decision in a limestone-mine zoning dispute because of alleged bias by two county commissioners.

The majority decision prompted a long dissent by Judge William L. Knopf, who said the case underscored an "impasse" on whether zoning decisions are legislative or adjudicatory, similar to issues in a court of law.

The Fiscal Court denied a rezoning request by Hilltop Basic Resources Inc., which wanted to mine limestone on land zoned for agricultural use. The proposed zoning change was met with considerable public opposition.

In its appeal, Hilltop claimed that the Fiscal Court's action - upheld by the Boone County Circuit Court - was arbitrary and thus denied the company its due process rights.

Specifically, Hilltop claimed that two county commissioners - Cathy Flaig and Robert Hay - prejudged the issue, evidenced by opinions the two expressed to residents before the Fiscal Court voted.

Judge David Barber of Prestonsburg said those comments left an "unavoidable perception" that the commissioners had an "improper bias."

"We believe that an impartial observer might reasonably deduce from these statements the fact or impression that members of the Fiscal Court had in some measure determined and judged the facts as well as the law of this case well in advance of hearing it," Barber wrote.

Judge Sara Walter Combs of Stanton joined in the decision.

The court returned the case to the Circuit Court with instructions to have the Fiscal Court conduct a "proper hearing" on the rezoning proposal.

In his dissent, Knopf said the majority opinion failed to properly instruct local government officials on what constitutes permissible conduct in zoning cases.

Knopf noted that Kentucky generally views rezoning decisions as a quasi-judicial or adjudicatory function.

That doesn't mean courts should ignore the political nature of such decisions, he said.

"Indeed, to attempt to remove all problems of bias is neither prudent nor realistic," Knopf wrote.

"An elected official who advocates particular views on community development and land use in his or her policy-making role need not abandon them when considering" a rezoning issue.

Knopf said that bias based on a decision-maker's self-interest clearly violates due process in zoning cases.

But bias based on personal opinions "is much harder to define, much less quantify," he wrote.

He said members of local legislative bodies have no standards for determining what public comments constitute bias.

"I do not believe that courts should be placed in the position of second-guessing the motivations of local legislators, particularly where the local legislator has no way of knowing if he or she has crossed the line," Knopf said.

Knopf acknowledged that the Boone County commissioners' statements demonstrated "if not irrevocably closed minds, then at least a strong disinclination" toward Hilltop's proposal.

But when the evidence is conflicting, the zoning decision is "largely a matter of discretion," which the General Assembly left with local legislative bodies, he said.

Knopf concluded that Kentucky law has "reached an impasse" over whether a local legislative body's consideration of a zoning change is a legislative or adjudicatory function, or a hybrid of the two.

That impasse has ramifications for a zoning applicant's right to an unbiased decision from a local legislative body that has an "inherently political nature."

"Kentucky has never consistently answered these questions, and the result is the quandary in which this court finds itself," he said.

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