Zoning: BOARD OF COMMISSIONS OF CITY OF DANVILLE V. DAVIS (COA 10/12/2007)

BOARD OF COMMISSIONS OF CITY OF DANVILLE V. DAVIS
ZONING AND CONDEMNATION: ZONING CHANGE WITH CONDITIONS

2006-CA-001924
PUBLISHED: AFFIRMING
PANEL: GUIDUGLI PRESIDING; HOWARD, VANMETER CONCUR
COUNTY: BOYLE
DATE RENDERED: 10/12/2007

The Davises sought a zoning change. The Planning and Zoning Commission (“Commission”), after a public hearing, recommended the zone change with four conditions attached. The Board of Commissioners (“Board”) approved the zone change with the conditions.

The Davises appealed, arguing that the conditions were impermissible conditions subsequent that were in excess of the Board’s authority and that a severance clause in the zone change allowed it to stand without the conditions. The circuit court agreed. The Board appealed.

On appeal, the Board argued that because the Commission had been dismissed from the circuit court action, the court lacked authority to address the authority or actions of the Commission. The court disagreed, stating that the party that had final approval over enactment of the zone change, the Board, was a party, and that the Commission, whose recommendations were being reviewed, had not been a necessary party.

The Board also argued that the statute requiring a development plan gives it all-inclusive power to impose the plan and to place additional conditions upon a zone change. The court disagreed, holding that the only condition permitted by the statute is the submission of the development plan. It rejected the argument that the Board had the authority to impose additional conditions, a power that is granted only to urban county governments. The court stated that if the Commission found any part of the Davises’ development plan to be unsatisfactory, it should have delayed approval of the zone changes, rather than approving with conditions.

The court also rejected the Board’s argument that the severability clause in the zone change should be rejected, holding that the ordinance would have been enacted without the conditions attached.

Digested by Sam Hinkle

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