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Jesse Brewer: As Boone County grows, zoning becomes key; here are checks, balances in place

Over the last several years Boone County Kentucky has been blessed with growth and economic development. Our geographical location in the united states gives us a distinct advantage over several other places in the United States. For starters, our airport is ranked #7 in the amount of cargo it ships per year. You can reach over 68% of the country’s population within a day’s drive and we are no more than a 5-hour flight to the furthest coast. If you compound that with our favorable tax rates (compared to other parts of the county) you get a recipe for rapid growth and development, and just like all things that change you will have some that are in favor and support it, you will have some that oppose it and you will have some that see both the pros and the cons and like to see the growth but want it done in a controlled way.

Now no matter where you fall on the spectrum as far as your feelings toward economic growth one thing is for certain and that is there are laws and rules on governing changes in zoning, and these are rules that are set at a state level that we must all abide by.

I will attempt to explain some of those rules, the boards and commissions involved and the checks and balances that are in place.

Whenever a property owner wants to get a zoning change for their property, say that it is currently zoned as farmland and they want to subdivide it out and put a residential neighborhood in, they need to apply for what is called a map amendment, or a zone map amendment change. In Boone County, the legislative body that considers a zone map amendment change is the Boone County Planning Commission often referred to simply as “Planning commission” or “Planning and Zoning.”

Jesse Brewer

The planning commission in Boone County is made up of 15 members and they hear all the zoning map amendment requests in the county. Six of the members are appointed by the Judge Executive and then confirmed by county fiscal court, much like how the U.S. Senate confirms a president’s pick for a federal judge. Then six of the members are selected by the city of Florence Mayor, and confirmed by city council. Two are selected in this same fashion by the city of Walton and one from the city of Union.

Each person on this board serves for a term of four years before they need to either be replaced or reappointed to this position. This board functions as a “quasi-judicial” body as they are not elected by the public at large, but rather appointed, and they make votes that impact property owners and land uses.

Now that you know how planning and zoning board is set up, we can discuss a little bit on how they operate. Kentucky Revised Statue 100.211 is the law that governs just how this quasi-judicial governing body works. In order to have a meeting and take any action, they must have a quorum, which in this case is a majority body of at least 8 of the 15 members present. As each zone map amendment request comes in there is a set of laws for notifying of the public that must take place. You may have noticed signs posted on a property that read “zoning hearing change” or received a letter for a piece of property near you because of an upcoming hearing.

They are not sending these to you because they want to be nice and let you know of something happening; however, it is required by law to give everyone an opportunity to show up at the hearing and testify in front of the commission either for or against the proposed zone change.

The planning commission will consider all evidence submitted to them. This is through a multitude of ways. It can be future site development plans, expert witness testimony, testimony from citizens of the public, environmental reports, what is the like kind of the area and so on. In all the evidence that is submitted to planning commission the key thing to remember is that they must decide if the zone change is supported by the law and the facts only, and then makes its decision on the request. In other words, they simply cannot say they do not like it because they’ve had a bad experience with a home builder or a store that wants to build there.

Their ruling is a vote and what that majority votes is then sent to the County Fiscal Court or city council (depending on if it’s in the city or the unincorporated part of the county) for them to take the next steps in the process. The key thing to remember is that the planning and zoning commissions vote is a recommendation to the legislative body; however, as we will discuss here in the upcoming paragraphs, that recommendation does hold quite a bit of legal weight.

Next in the process is the legislative body decision, or the fiscal court or city council. Keep in mind that the fiscal court and city council must act on the recommendation from the planning and zoning commission within 90 days of them making it. They are not allowed to ignore it and not bring it before their meetings for action. They must also hold two hearings for this. The first one is a public-information-only hearing. This is when the planning and zoning representative will come to the fiscal court or council meeting and present the case of the zoning map amendment request. The public is invited to attend but they are not allowed to speak for or against it. The legislators (commissioners and council persons) can ask questions for clarification sake of the representative.; however, no vote or action will be taken at this meeting. There must be at least 30 days from this meeting to the next meeting until the second meeting takes place at which the public is then invited and notified to attend; however, this time they can address the legislative body on the change, and then there will be a vote.

During the presentation of the evidence to fiscal court the planning and zoning representative will give all evidentiary information submitted to them for the initial request, along with their vote either recommending or denying it. It is important to know that the Kentucky State laws explicitly prohibit county commissions and city council persons from considering any other evidence other than what is submitted to them. So, for example, if someone shows up speaking out against a developer because of a personal problem they have experienced, no matter what it is, the legislative body is not allowed to consider that evidence unless it was in fact submitted to them through the planning and zoning commission hearings.

The critical and often misunderstood part of the process is the vote and the recommendation by planning and zoning.

Remember when I told you earlier that the recommendation by planning and zoning carried significant legal weight?

That is because for the legislative body to overturn their recommendation it takes a super majority of the whole body, not just a majority of the quorum. What that means is that in Boone County we have three commissioners and one judge-executive, a total of four voting members. If Fiscal Court wanted to overturn a zoning map amendment recommendation it would require three votes to do so. If the court is split at a 2–2 tie, which sometimes does happen, then the planning and zoning map amendment request gets set aside for 90 calendar days, then planning and zonings recommendation will take effect. Often people will assume that it’s Fiscal Court that has the final say in these matters but to not realize that there is a check-and-balance system in place and that in order to overturn planning and zonings recommendations that there must be a consensus of the majority of it’s voting members.

In order for this process to be changed it will require a change of the laws at a state level, which is where your representatives, state senators and governor work and implement those changes and procedures.

Jesse Brewer is a Boone County Commissioner, District 3.

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