COMMONWEALTH OF KENTUCKY

BOONE CIRCUIT COURT

CASE NO. 99-CI-638

(BEFORE SPECIAL JUDGE DOUGLAS M. STEPHENS, KENTON CIRCUIT COURT)

DAVID MERRELL, et al. PLAINTIFFS-APPELLANTS

v.

BOONE COUNTY FISCAL COURT, et al. DEFENDANTS-APPELLEES

PLAINTIFFS-APPELLANTS’ MOTION FOR SUMMARY JUDGMENT

Respectfully submitted,

CORS & BASSETT

_______________________________

John Jay Fossett (KBA No. 82397)

1881 Dixie Highway

Suite 350

Ft. Wright, Kentucky 41011

(606) 578-5414

David and Sheila Merrell and

NOTICE

Notice is hereby given that the foregoing motion will be heard by the Boone Circuit Court, before Special Judge Douglas M. Stephens, at 9 a.m. on February 4, 2000, at the Kenton Circuit Court, Second Division, or as soon thereafter as the business of the Court will permit.

Plaintiffs-appellants, David and Sheila Merrell, are the owners of a single-family residence and real property located at 2829 Jordan Lane, Burlington, Kentucky 41005. Plaintiff-appellants, David Kisor and Jennifer Warner, husband and wife, own and operate First Farm Inn, a bed and breakfast located at 2510 Stevens Road, Burlington, Kentucky 41005, and they live at the inn. Both properties are located near the subject property.

Plaintiff-appellant, Ethics in Government ("EIG"), is an unincorporated association of Boone County property owners, many of whom live near the subject property, who were and are opposed to the rezoning request and who seek to promote ethical conduct by government officials.

Defendant-appellee, Boone County Fiscal Court ("Fiscal Court"), is the legislative body of Boone County, Kentucky, and defendant-appellee, Robert Hay, is and was a member of the Fiscal Court.

B. Background

Prior to the subject zone change request, AIG attempted to rezone real estate in Boone County, Kentucky, on two prior occasions. In all three rezoning requests, AIG has sought to develop a multi-use development, including, among other things, a museum, distribution center, and offices to promote its organization and its ministry.

In the summer of 1996, AIG attempted to rezone real estate at U.S. 42 and Ky. 338 in Union, Kentucky. However, this rezoning request was denied by the Boone County Fiscal Court on December 10, 1996.

In the summer of 1998, AIG attempted to rezone the subject property from Rural Suburban Estates (RSE) to Industrial One (I-1). On November 10, 1998, the Fiscal Court denied this application for a map amendment, and AIG subsequently appealed this action to the Boone Circuit Court. This action was later transferred to this Court.

On February 1, 1999, AIG filed an application with the Boone County Planning Commission ("planning commission") seeking a zone change on the same property, this time seeking approval of a Public Facilities (PF) rather than an Industrial One (I-1) zone. AIG sought this zone change request to allow it to develop a 95,000-square-foot facility on the subject property that would include a museum, religious assembly, office, mail order operation, picnic areas, trails, ornamental monuments, storage, and a loading dock.

On March 3, 1999, the Boone County Planning Commission held a public hearing on AIG’s rezoning request. See page 33 of Administrative Record filed with this Court (hereinafter "Administrative Record at ___"). On March 17, 1999, the planning commission voted to recommend denial of the zone change request to the Fiscal Court. Id. at 62. On April 7, 1999, the chairman of the planning commission issued a formal resolution recommending denial of the rezoning request. Id. at 2-3. In support of this recommendation, the planning commission adopted by reference its findings of fact set forth in its Commission Report ("the Report"). Id. at 79-81.

In the Report, the planning commission concluded that the requested zoning map amendment and concept development plan submitted by AIG were not in agreement with the 1995 Boone County Comprehensive Plan.

Despite the above-referenced recommendation of the planning commission that the rezoning request be denied, and ignoring the findings of fact set forth by the planning commission, the Boone County Fiscal Court voted, 3-1, on May 6, 1999, to grant the zone change request.

C. Legal Argument

1. The Zone Change Process

In a rezoning case involving unincorporated property, such as the property here, a county Fiscal Court has three alternatives after the local planning and zoning commission conducts a trial-type due process hearing and makes factual findings in support of its recommendation.

First, the Fiscal Court may follow the commission’s recommendation without a hearing or only an argument-type hearing. Second, the Fiscal Court may review the record made before the commission and determine from that record adjudicative facts which differ from those found by the commission. Third, the Fiscal Court may hold its own trial-type hearing, and based upon the evidence presented at that hearing, make its own findings of adjudicative facts to support its final decision regarding a rezoning request. City of Louisville v. McDonald, 470 S.W.2d 173, 179 (Ky. 1971); McKinstry v. Wells, 548 S.W.2d 169, 173 (Ky. App. 1977).

In this case, it is apparent that the Boone County Fiscal Court followed the second alternative, i.e., reviewing the administrative record created at the public hearing before the planning commission and making its own findings of adjudicative facts to support its decision. However, as discussed more fully herein, the Fiscal Court’s decision to approve the map amendment request, and its purported findings of fact, are not supported by evidence found in the record.

2. The Burden of Proof

The touchstone for all rezoning requests in Kentucky is Ky. Rev. Stat. § 100.213, which, in essence, establishes the burden of proof that a party seeking a zone change must meet in order to get a map amendment approved. This statute provides that a zone change request cannot be granted unless one of the three following circumstances are present:

1. If the proposed map amendment is in agreement with the community’s comprehensive plan, Ky. Rev. Stat. § 100.213(1);

2. If there have been major changes of an economic, physical, or social nature in the area involved that were not anticipated by the comprehensive plan and that have substantially altered the basic character of the area, Ky. Rev. Stat. § 100.213(1)(a);

3. If the existing zoning of the property is inappropriate and the proposed zoning is appropriate, Ky. Rev. Stat. § 100.213(1)(b).

The Fiscal Court did not state -- nor could it state -- that the second and third elements of Ky. Rev. Stat. § 100.213(1)(a) applied in this case. No major changes of an economic, physical, or social nature have occurred in the area since the Comprehensive Plan was adopted in 1995 and the property, as currently zoned, is the appropriate zoning while the proposed zoning classification is inappropriate. In its Report, the planning commission recognized that these two elements of Ky. Rev. Stat. § 100.213 were not met. Administrative Record at 80.

The Fiscal Court’s sole basis for granting the zone change is that the proposed map amendment satisfies Ky. Rev. Stat. § 100.213(1), i.e., the rezoning request is consistent with the county Comprehensive Plan. Administrative Record at 269. As recognized by the planning commission and as is set forth more fully below, the rezoning request was not consistent with the Comprehensive Plan, and the Fiscal Court’s decision to approve the zone change request on this basis was arbitrary and violated the plaintiffs-appellants’ right to due process.

B. The Proposed Development is Not in Agreement with the Comprehensive Plan

"The comprehensive plan is extremely important, and it must not be treated lightly or ignored in considering applications for zone changes. It is a plan for the orderly growth of an area, and property owners must be able to rely on it when making investments in real estate and for the protection of land values." Bryan v. Salmon Corp. , 554 S.W.2d 912 (Ky. App. 1977).

As recognized by Judge Schroder in 21st Century Dev. Co. V. Watts, 958 S.W.2d 25 (Ky. App. 1997):

a comprehensive plan, by nature, speaks to future development, even though it takes into consideration the current land uses.... The comprehensive plan, however, looks beyond current uses, to the future, and is constantly undergoing review. KRS 100.197. Zoning changes are allowed if they are in accordance with the comprehensive plan, KRS 100.213, or if the plan is out of out of touch with reality, KRS 100.213(1)(a) & (b), and there is a compelling need for the proposed change.

Id. at 27 (emphasis added).

Moreover, as stated by the Court in McKinstry, "the classification of the property under the land use plan is the prime consideration in determining whether the map amendment is in agreement with the comprehensive plan." McKinistry, 548 S.W.2d at 172, citing to Hines v. Pinchback-Halloran Volkswagen, 513 S.W.2d 492 (Ky. 1974).

This case begs the question: How important is it for a county Fiscal Court to follow the dictates and direction of a county-wide Comprehensive Plan. As discussed by the planning commission in its Report and as discussed herein, the proposed map amendment is not in accordance with the Comprehensive Plan, and furthermore, there is no compelling need for the proposed zone change.

A. AIG’s Zone Change Request Does Not Meet the Goals and Objectives of the Comprehensive Plan for this Area of the County.

As recognized by the planning commission in the Report, the goals and objectives for development of the area where the subject property is located states that "future growth shall be accompanied by adequate infrastructure and services. Existing infrastructure and services shall be maintained and improved as needed." Administrative Record at 79. The planning commission properly concluded that the zone change request is not in agreement with this objective because the proposal involves a 95,000-square-foot multi-use building that will rely exclusively on private, on-site domestic water and wastewater systems. Id.

As a public facility likely to attract thousands of visitors each year and employing more than 50 employees, "access to a public water supply is critical to assure appropriate water capacity for fire protection purposes and water quality for drinking purposes." Id. AIG was not willing to pursue and commit to extending public water to the subject property. Id.

An individual package sewer plant, such as the one proposed by AIG in this case, does not conform with the Comprehensive Plan. The Public Facilities Element of the Comprehensive Plan clearly discourages the use of individual package sewer plants on individual tracts of land, such as the subject property. Id. at 79-80. This is especially true where the facilities proposed to be developed on the property are large, intensive, public uses attracting thousands of visitors. Id. at 79. Furthermore, as pointed out by the planning commission in its Report, AIG "has not documented that the proposed sanitary sewage treatment plant will be owned and maintained by the Sanitation District No. 1 to assure public health and safety in the area." Id.

Furthermore, in Kaelin, the Supreme Court stated:

In a [zoning] hearing, as we view it, the parties must have the opportunity to subject all evidence to close scrutiny so as to determine its trustworthiness. A trial-type hearing implies the opportunity for full rebuttal, and the opportunity to impeach witnesses.

Kaelin, 643 S.W.2d at 591-92.

In Ridenour v. Jessamine County Fiscal Court, 842 S.W.2d 532 (Ky. App. 1992), the Kentucky Court of Appeals addressed this very issue. In Ridenour, the planning commission conducted a full evidentiary hearing on a zone change request, after which the planning commission voted to recommend approval and entered findings of fact in support of that recommendation. Id. at 534. As in this case, the fiscal court in Ridenour considered the zone change request on the record made before the planning commission without the reception of additional evidence. However, before the fiscal court decided the rezoning request, it considered evidence from a prior zone change request that was never made a part of the record before the planning commission. Id. at 535. The court of appeals held that the fiscal court’s consideration of this evidence was improper:

Because the fiscal court elected to review the recommendation of the planning commission solely on the record of that body, it is very clear to us that the fiscal court must confine itself to matters properly of record. Consideration of mere references to matters not of record resulted in a deprivation of appellants’ right to due process in the review of this zoning request....

Id.

The Future Land Use Map, which is a required element of the Boone County Comprehensive Plan (Ky. Rev. Stat. § 100.187(2)), does not show the subject property as being developed in the future as a "Public Facilities" use. In fact, the Land Use Map designates the area of the site where the buildings are proposed to be built for "Industrial" development in the future.

As recognized by the planning commission, "[t]his classification is a 25 year projection for industrial uses on the subject site. It also suggests that at the appropriate time, industrial uses are appropriate along with commercial and residential uses and zoning at the I-275 Petersburg Idlewild interchange and not Public Facilities uses and zoning." Administrative Record at 80. The Comprehensive Plan describes industrial land use classification as "manufacturing wholesale, warehousing, distribution, assembly, mining and terminal uses." Id. As pointed out by the planning commission, the uses proposed by AIG are not consistent with this classification. Id. In addition, most of the uses proposed by AIG at the subject property are not permitted, conditional, or accessory uses in a Public Facilities zone (id. at 25-27), and therefore, they are improper and illegal uses under this zoning classification.

C. The Findings of Fact Adopted by the Fiscal Court to Support its Decision to Grant the Zone Change Request are Not Supported by Substantial Evidence.

In Ordinance No. 99-10, the Boone County ordinance granting AIG’s map amendment request, the Fiscal Court stated:

[T]he request is consistent with the Boone County Comprehensive Plan. That plans [sic] call for the area in question to be developed as industrial at some time. The proposed use qualifies as an industrial use, but it is also consistent with the permitted uses in the Public Facilities (PF) zoning classification. This PF classification allows the area in question to be developed consistent with the Comprehensive Plan, while not encouraging other development in the area before the infrastructure is built to handle more intense development which will take place in the future.

Administrative Record at 269.

This finding of fact directly contradicts the findings set forth by the planning commission, based upon the very same evidentiary record. Defendants-appellees’ approach to these contradictory findings based on the same record is that "reasonable minds can come to different conclusions," which in and of itself points up the arbitrariness of Fiscal Court’s decision. Either the rezoning request is consistent with the Comprehensive Plan or it is not, but it cannot be both.

The problem with defendants-appellees’ argument is that the findings of fact relied upon by the Fiscal Court in granting the zone change request are not supported by the record made before the planning commission. Specifically, as discussed more fully above, the applicant’s request is not consistent with the Boone County Comprehensive Plan. The Comprehensive Plan calls for the subject property to be developed for industrial uses in the future when appropriate infrastructure and services are in place. Private, on-site domestic water and an on-site package sewage treatment plant is not infrastructure. Furthermore, using the subject property for "Public Facilities" purposes was not anticipated by the Comprehensive Plan. Indeed, such a use is inconsistent with the future industrial uses contemplated for this area.

Allowing a museum and other public facility uses in an area that has been carefully planned to be developed as industrial uses in the future defeats the sound land-use plan devised and implemented by the Boone County Planning Commission when it created and updated the county Comprehensive Plan. The bottom line is that this area should remain zoned RSE until appropriate infrastructure is in place, and when such infrastructure in place, it should be rezoned for industrial, not public facility, uses, according to the dictates of the Comprehensive Plan.

The Fiscal Court’s statement that the "PF classification allows the area in question to be developed consistent with the Comprehensive Plan, while not encouraging other development in the area before the infrastructure is built to handle more intense development which will take place in the future" is simply not true. The AIG development will simply encourage this area to continue to be developed in a fashion that is inconsistent with the Comprehensive Plan, i.e., relatively small-scale non-industrial development that does not use or encourage the development of infrastructure in this portion of the county. Indeed, if this zone change is upheld, this action will simply encourage future developers in this area to further deviate from the Comprehensive Plan and use Ky. Rev. Stat. § 100.213(1)(a) as a basis for this deviation.

The decision of the Boone County Fiscal Court to grant the zone change has more to do with politics and personal agendas, as will be demonstrated at the hearing on February 4, than it does with sound land-use and planning principles. Fiscal courts and their individual members -- as well as their political and personal philosophies -- will come and go, but the Comprehensive Plan is designed to be an more enduring creature, a blueprint for the future development of Boone County over the next 25 years. The Comprehensive Plan clearly provides how and when the subject property should be developed, and the Fiscal Court simply ignored this plan and the recommendation of its planning commission when it voted to approve the zone change request.

The decision of the Boone County Fiscal Court to grant the rezoning request should be overturned. Not only does the substantial evidence in the Administrative Record not support the Fiscal Court’s decision to grant the zone change, but there is no compelling need for the zone change, especially when one considers how the Comprehensive Plan contemplates further development in this area of the county. See McDonald, 470 S.W.2d 173. "The definition of ‘compelling need’ for a zone map change reflects the requirements of KRS 100.213, that the amendment be in agreement with the comprehensive plan or that there have been major economic, physical, or social changes not anticipated, which substantially alter the basic character of the area." Fritz v. Lexington-Fayette Urban County Gov’t, 986 S.W.2d 456, 460 (Ky. App. 1998).

D. Conclusion

Therefore, for the foregoing reasons, this Court should find that the decision of the Boone County Fiscal Court to grant the zone change request was not based upon substantial evidence in the record, and furthermore, that the Fiscal Court failed to afford procedural due process to plaintiffs-appellants. Minton v. Fiscal Court of Jefferson County, 850 S.W.2d 52, 55 (Ky. App. 1992), citing American Beauty Homes Corp. v. Louisville and Jefferson Co. Planning and Zoning Com’n, 379 S.W.2d 450, 456 (Ky. 1964). Accordingly, plaintiffs-appellants’ motion for summary judgment should be granted.

Respectfully submitted,

______________________________________

John Jay Fossett (KBA No. 82397)

CORS & BASSETT

Attorney for Plaintiffs-Appellants

1881 Dixie Highway, Suite 350

Ft. Wright, Kentucky 41011

(606) 331-6440

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Plaintiffs-Appellants’ Motion for Summary Judgment was served on the following counsel of record on this day, January 21, 2000, by regular U.S. Mail:

Timothy B. Theissen, Esq.

Strauss & Troy, LPA

Suite 1400

50 East RiverCenter Boulevard

Covington, KY 41011

Larry J. Crigler, Esq.

6024 Rogers Lane

P.O. Box 169

Burlington, KY 41005

Thomas R. Nienaber, Esq.

Busald, Funk & Zevely, PSC

226 Main Street

P.O. Box 6910

Florence, KY 41022-6910

Robert W. Carran, Esq.

Taliaferro & Mehling

1005 Madison Avenue

P.O. Box 468

Covington, KY 41012-0468

Thomas L. Rouse, Esq.

Rouse & Grisham

333 Madison Avenue

Covington, Kentucky 41011

Todd V. McMurtry, Esq.

The McMurtry Law Firm

411 Garrard Street, Suite 150

Covington, Kentucky 41011

________________________________

COMMONWEALTH OF KENTUCKY

BOONE CIRCUIT COURT

CASE NO. 99-CI-638

DAVID MERRELL, et al. PLAINTIFFS

v.

BOONE COUNTY FISCAL COURT, et al. DEFENDANTS

PLAINTIFFS-APPELLANTS’ MEMORANDUM OF LAW

REGARDING THE STANDARD TO BE USED TO DETERMINE

BIAS OR PREJUDICE OF AN ARBITER IN A REZONING MATTER

Come now the plaintiffs, David and Sheila Merrell and Jennifer Warner and Dana Kisor, by counsel, and pursuant to this Court’s request provide their memorandum of law on the issue of the standard by which to measure the bias and prejudice of a fiscal court member in a rezoning matter.

I. Rezoning of real property is an adjudicatory or quasi-judicial act under Kentucky law.

The threshold issue in this analysis is the nature of the local legislative act in rezoning real property. If such a rezoning is deemed a legislative function, the courts give great deference to the legislative body and there is a presumption in favor of the body’s action. Further, "the courts will not inquire into the motives that impel legislative action." City of Louisville v. Bryan S. McCoy, Inc., 286 S.W.2d 546, 549 (Ky. 1955); citing Morrow v. City of Louisville, 249 S.W.2d 721. Procedural due process in not implicated by this view, which is followed in the majority of states. Mandelker, Land Use Law, 4th Ed. (1997), § 2.46, p. 61; § 6.70, p. 282.

On the other hand, if the rezoning is deemed adjudicatory, or quasi-judicial, in nature, the courts will closely scrutinize the legislative body’s decision. Procedural due process is implicated in this minority view, id, which is the approach adopted by the Kentucky Supreme Court. "[A] local legislative body, in deciding a rezoning case, acts in an adjudicatory capacity, not in a general law-making role." Hacker v. Baesler, 812 S.W.2d 706, 709 (Ky. 1991) citing City of Louisville v. McDonald, 470 S.W.2d 173 (Ky. 1971). Thus, constitutionally protected procedural due process is afforded in Kentucky zoning matters to ensure that an impartial and objective adjudication of disputes occurs when public and private interests collide. McDonald at 174.

II. Members of a fiscal court, acting in its adjudicatory capacity in a rezoning matter, must decide the issue before them without prejudice or bias, or even the appearance of impropriety.

Once it has been determined that individual zoning decisions by legislative bodies are quasi-judicial, the question then becomes "how much process of law is due?" Hacker v. Baesler, 812 S.W.2d 706, 709 (Ky. 1991). The concept of procedural due process is flexible in the administrative decision-making process. Danville-Boyle Co. Planning Comm. v. Prall, 840 S.W.2d 205 (Ky. 1992) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). Some state courts do not impose a full range of trial-type procedures, while other state courts "virtually judicialize adjudicatory decision-making by the local land use authorities." Mandelker, § 6.72, p. 283. According to Mandelker, Kentucky fails into the latter group of states. Id., citing Kaelin v. City of Louisville, (643 S.W.2d 590 (Ky. 1982)). In Kaelin, the right to cross-examination of witnesses at zoning hearings was found an important component of procedural due process and a guarantee against arbitrary actions prohibited by Section 2 of the Kentucky Constitution. Moreover,

[W]hen the local legislative body is used as a vehicle not to make generally applicable law, rules or policy, but to decide whether a particular individual as a result of a factual situation peculiar to his situation is or is not entitled to some form of relief, then the so-called legislative body must act in accordance with the basic requirements of due process as are applicable generally. Judicial review in this particular situation to determine whether or not the action is "arbitrary" concerns itself with whether the basic elements of due process have been afforded including whether the action was based upon substantial evidence. To declare otherwise would sanction organized favoritism and perpetuate this anomaly: Constitutionally guaranteed freedom from arbitrary action applies only to recommendations and not to accomplished fact in rezoning cases.

City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky. 1971) (emphasis added).

The very basic elements of procedural due process 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, and, where the party’s constitutional rights are involved, a judicial review of the administrative action.

Morris v. City of Catlettsburg, 437 S.W.2d 753, 755 (Ky. 1969), quoting Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189 (Ky. 1954). In addition, the constitutional protection against arbitrary state action includes the due process guarantee of "fundamentally fair and unbiased procedures" in both judicial and administrative adjudications. Smith v. O’Dea, 939 S.W.2d 353, 357 (Ky.App. 1997). Within this concept of a fair trial is the well-established principle that "a biased decisionmaker [is] constitutionally unacceptable [and] ‘our system of law has always endeavored to prevent even the probability of unfairness.’" Hart Co. Bd. of Educ. v. Broady, 577 S.W.2d 423, 426 (Ky.App. 1979), citing Withrow v. Larkin, 421 U.S. 35 (1975), quoting In re Murchison, 349 U.S. 133 (1954).

The zoning commentators are in accord. "Procedural due process guarantees the parties an impartial decision-maker . . . free of bias and conflict of interest . . . untainted by ex parte contacts." Mandelker, § 6.73, p. 285. "Concern for the impartial exercise of quasi-judicial authority, in appearance as well as fact, requires that [zoning] decisionmakers disqualify themselves where bias or conflict of interest can be shown." 2 Ziegler, Rathkopf’s The Law of Zoning and Planning, § 22.04[1], p. 22-36 (1990). Administrative tribunals must be unbiased to satisfy the principles of due process and must avoid even the appearance of partiality. Id. at 22.04[1], p. 22-37. As stated by the Supreme Court of Pennsylvania:

[A] predilection to favor one side over the other is not required in order to vitiate a judicial proceeding as being violative of due process. Merely, `a possible temptation to the average man as judge ... not to hold the balance nice, clear, and true’ is sufficient."

In re Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835, 841 (1961).

There exists very little case law in Kentucky on the issue that this Court has asked the parties brief. As such, we must look to analogous or similar situations addressed by Kentucky law. In addition, many other state courts have addressed the very issue raised in this brief, which is discussed more fully below.

1. "Appearance of fairness" doctrine

Since Kentucky courts have held that zone change hearings are adjudicatory in nature, members of the fiscal court or legislative body deciding a rezoning request should be held to the same standards as those imposed on the judiciary. "In adjudicatory and quasi-judicial proceedings, a zoning decisionmaker, whether elected or appointed, functions in a role analogous to that of judge who is required to fairly hear and weigh the evidence received and to objectively apply established standards for decision to the facts of the case." Ziegler, supra, at § 22.04[5], p. 22-52.

Ky. Rev. Stat. § 26A.015(2) provides that a justice, judge, or master commissioner shall disqualify himself in any proceeding "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of dispute evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding." As was recognized by the Kentucky Supreme Court in Commonwealth of Kentucky v. Carter, 701 S.W.2d 409 (Ky. 1985), in a case involving this statute, "our courts must avoid even the appearance or taint of partiality in any proceeding." Id. at 411; see also Rule 4.300, Canon 3 of Rules of the Supreme Court of Kentucky. A similar standard should apply to the judges who decide zoning matters in Kentucky, members of the Boone County Fiscal Court in this case.

Court decisions in a number of states have developed "appearance of fairness" doctrines that attempt to restrict and prohibit conflicts of interest and bias that may undermine public confidence in the integrity of the zoning decisionmaking process. Ziegler, supra, at § 22.04[4], p. 22-47; see, e.g., Daly v. Town Plan & Zoning Comm’n, 150 Conn. 495, 191 A.2d 250 (1963)(the evil against which the policy is directed "lies not in influence improperly exercised but rather in the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power"); Aldom v. Borough of Roseland, 42 N.J. Super 495, 127 A.2d 190 (1956)("the appearance of impropriety," not just actual bias, is sufficient ground for disqualification); Tombs v. King County, 49 Wash. App. 178, 741 P.2d 1047, 1051-52 (1987)(the "appearance of fairness" doctrine that is aimed at preventing the appearance of unfairness as well as the actual existence thereof). As was stated by the Washington Supreme Court in Chrobuck v. Snohomish County, 78 Wash. 2d 858, 868, 480 P.2d 489 (1971):

Circumstances or occurrences arising in the course of [zoning] processes which, by their appearance, tend to undermine and dissipate confidence in the exercise of the zoning power, however innocent they might otherwise be, must be scrutinized with care and with the view that the evil sought to be remedied lies not only in the elimination of actual bias, prejudice, improper influence or favoritism, but also in curbing of conditions which, by their very existence, tend to create suspicion, generate misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or prejudgment over the proceedings to which they relate.

The "appearance of fairness" doctrine should be applied by this court, as has been done by other state courts, to prevent not only actual bias and prejudice, but also any appearance of impropriety, which itself undermines public confidence in the integrity of the zoning decisionmaking process.

2. Standards to determine actual bias or prejudice

For those states that have not adopted the "appearance of fairness" doctrine, many have adopted general standards used to determine whether a conflict of interest or bias actually existed in zoning proceedings. These standards were succinctly set forth by Professor Ziegler in his leading treatise as follows:

Generally, conflict of interest or bias affecting the appearance of impartiality in zoning proceedings may be shown by: (1) a personal or financial interest that may be directly or indirectly affected by the zoning decision; (2) partiality or prejudice stemming from associational ties, familial relationships, friendships, employment or previous business dealings or conduct during the proceeding; or (3) prejudgment of the issues, which is usually revealed by pre-hearing statements.

Ziegler, supra, at § 22.04[1], p. 22-37.

1. Personal interest that may be directly or indirectly affected by the zoning decision

While the personal interest that disqualifies a member is often a financial interest, it may also be nonpecuniary in nature. For instance, in Zell v. Roseland, 42 N.J. Super. 75, 125 A.2d 890 (1956), the court held that personal interest sufficient to disqualify a zoning board member existed where the member also was a communicant of a church that would benefit from the zoning decision in issue.

2. Partiality or prejudice stemming from associational ties, familial relationships, friendships, employment or previous business dealings or conduct during the proceeding

A conflict of interest may also be found when the decision-maker has a personal relationship or contact with the applicant for a zone change. Mandelker, § 6.76, p. 287. Conflict of interest and bias may be shown with partiality stemming from associational ties and friendships. Ziegler, supra, at § 22.04[1]. The "zoning decisionmaker. . . functions as a judge who is required to fairly hear and weight the evidence received and to objectively apply established standards" to the decision. Ziegler, supra, at § 22.04[5]. In McDonald, ex parte communications in zoning cases was impliedly condemned by the Kentucky Supreme Court. In Louisville Gas and Electric Company v. Commonwealth, 862 S.W.2d 897 (Ky. 1993), the Court of Appeals explicitly condemned ex parte contact in the context of administrative hearings -- the Public Service Commission, in this case.

A number of cases in other states have held that the test is whether a decisionmaker’s personal interest stemming from the relationship might reasonably conflict with his official duty to decide the matter before him impartially and thus weaken public confidence in the proper exercise of the zoning power. Ziegler, supra, at § 22.04[6][a], p. 22-58. See, e.g., Josephson v. Planning Bd., 151 Conn. 489, 199 A.2d 690 (1964); Barrett v. Union Township Comm., 230 N.J. Super. 195, 553 A.2d 62 (1989); Swift v. Island County, 87 Wash.2d 348, 552 P.2d 175 (1976).

Furthermore, a number of courts have found disqualifying prejudice or partiality based on family relationships or the interests of family members of a zoning decisionmaker or employment relationships. Ziegler, supra, at § 22.04[6][b], p. 22-58; see, e.g., Kremer v. Plainfield, 101 N.J. Super. 346, 244 A.2d 335 (1968).

Finally, associational ties with an applicant for or an opponent of a zoning request may be sufficient to require disqualification of a zoning arbiter. Ziegler, supra, at § 22.04[6][d], p. 22-64. For instance, in Valuable Env’t v. City of Bothell, 89 Wash.2d 862, 576 P.2d 401 (1978), the Washington Supreme Court held that a planning commissioner’s ties to a local chamber of commerce, which supported the rezoning, constituted "entangling influences impairing ability to be impartial." See also Zell v. Roseland.

3. Prejudgment of the issues

Bias may be found when a decision-maker speaks publicly on a matter subsequently before him. Mandelker, § 6.75, p. 286, citing Lage v. Zoning Bd. of Appeals, 172 A.2d 911 (Conn. 1961); Acierno v. Folsom, 337 A.2d 309 (Del. 1975); Barbara Realty Co. v. Zoning Bd. of Review, 128 A.2d 342 (R.I. 1957); Chrobuck v. Snohomish County, 480 P.2d 489 (Wash. 1971); Marris v. City of Cedarburg, 498 N.W.2d 842 (Wis. 1993). See also Marmah, Inc. v. Town of Greenwich, 405 A.2d 63 (Conn. 1978).

This Court should adopt the "appearance of fairness" doctrine as the standard by which to measure the behavior of an arbiter in a zoning matter. In the alternative, the Court should use the three standards set forth by Professor Ziegler in determining whether the conduct of Boone County fiscal court member Robert Hay disqualified him from voting on the subject rezoning request.

III. Because a fiscal court may request zoning map amendments does not give it the right to pre-judge the merits of the amendment.

State law (KRS §§100.211(1) and 100.2111(1)) allows fiscal courts and other legislative bodies to originate zoning map amendments of private property. It has been suggested by this Court that these statutory provisions contemplate and perhaps even permit legislative bodies to pre-judge map amendments, at least those that they initiate.

However, this suggestion fails when the full zoning map amendment procedure is considered. These statutory sections require all map amendments to be first referred to the planning commission for a public hearing and a recommendation before adoption. KRS Chapter 100 ("Planning and Zoning") places much emphasis on planning. The referral to the planning commission for a recommendation is consistent with the concept that zoning can only proceed from sound planning. (See Fritts v. Ashland, 348 S.W.2d 712 (Ky. 1961). The commissions are not intended to rubber stamp requests made by legislative bodies. Indeed, these commissions are required by law to notify the property owner(s) and adjoining owners, publish proper notice, and hold a trial-type public hearing. The Commissions are further required to review the requested amendment relative to statutory guidelines and to make a recommendation. If the General Assembly had intended to allow local legislative bodies to change zoning on a whim, it would have given these bodies direct authority.

Furthermore, under KRS § 100.2111(4), the recommendation of the planning commission becomes final 21 days after it votes on the request, unless an aggrieved person or the legislative body or fiscal court files written notice with the planning commission requesting that the legislative body or fiscal court decide the request. If the legislative body or fiscal court ultimately decides the request, any decisions made by such bodies must be based upon the evidentiary record made before the planning commission and satisfy the requirements set forth in KRS § 100.213. If the fiscal court or legislative body decides the request on any other basis, or on the basis of bias or prejudice, their decision is arbitrary and unconstitutional and should be reversed on appeal.

IV. Conclusion

Kentucky follows the view that zoning decisions that affect individual properties are adjudicatory or quasi-judicial in nature. Those persons who are affected by a rezoning decision, such as the plaintiffs-appellants in this case, are entitled to procedural due process during the rezoning process and this constitutional protection is violated when a fiscal court member exhibits bias or prejudice or his conduct creates the appearance of impropriety. This Court should adopt the "appearance of fairness" doctrine developed by other courts as the standard by which to measure whether the conduct of an arbiter in a zoning matter violates due process protections. In the alternative, in determining whether Boone County fiscal court member Robert Hay violated plaintiffs-appellants’ due process rights in this case, this Court should look at (1) whether he had a personal or financial interest that may have been directly or indirectly affected by the zoning decision; (2) whether he had partiality or prejudice stemming from associational ties, familial relationships, friendships, employment or previous business dealings with Answer in Genesis of Kentucky, Inc., or its members; or (3) whether he prejudged the zoning issues that came before the fiscal court. If any one of these circumstances exist in this case, Mr. Hay’s vote in this zoning matter should be disqualified and the decision of the fiscal court granting the zone change should be overturned.

Respectfully submitted,

____________________________________

John Jay Fossett (KBA No. 82397)

CORS & BASSETT

Attorney for Plaintiffs-Appellants

1881 Dixie Highway, Suite 350

Fort Wright, Kentucky 41011

(606) 331-6440

(606) 331-5337 (fax)

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Memorandum was delivered by ordinary U.S. mail on the following persons on this _____ day, December, 1999.

Timothy B. Theissen, Esq.

Strauss & Troy, LPA

Suite 1400

50 East RiverCenter Boulevard

Covington, KY 41011

Larry J. Crigler, Esq.

6024 Rogers Lane

P.O. Box 169

Burlington, KY 41005

Thomas R. Nienaber, Esq.

Busald, Funk & Zevely, PSC

226 Main Street

P.O. Box 6910

Florence, KY 41022-6910

Robert W. Carran, Esq.

Taliaferro & Mehling

1005 Madison Avenue

P.O. Box 468

Covington, KY 41012-0468

Thomas L. Rouse, Esq.

Rouse & Grisham

333 Madison Avenue

Covington, Kentucky 41011

Todd V. McMurtry, Esq.

The McMurtry Law Firm

411 Garrard Street, Suite 150

Covington, Kentucky 41011