Zoning: BIZZACK V. HUME (COA; 4/7/2006)

ZONING – Res Judicata

DATE:  4/7/2006

In 1997 the Bizzacks proposed to change the zoning on their property from professional office to highway commercial, and the Frankfort-Franklin County Planning Commission (“Commission”) approved the change. The Franklin County Fiscal Court (“Fiscal Court”) adopted the Commission’s findings and approved the amendment. On appeal by the surrounding landowners (“Hume”), the Franklin Circuit Court found that the Commission and the Fiscal Court failed to analyze changes in the area in light of the standards in KRS 100.213, and remanded the case to the Fiscal Court.

The Fiscal Court did not appropriately reconsider the zone change. Instead, it conducted an ex parte meeting with the Bizzacks’ attorney to prepare findings that would satisfy the court. The Fiscal Court held two meetings in 1998 to give first and second readings to the proposed zone map amendment without allowing debate or considering other findings. This second adoption of the amendment was appealed to Franklin Circuit Court, which vacated the decision based on the unfairness of the Fiscal Court procedures. It held that the result of the ex parte contact was a denial of due process to the affected landowners and refused to remand the case back to the Fiscal Court. The Bizzacks appealed to the court of appeals, which dismissed the appeal for failure to name the Fiscal Court as a party.

In 2001, the Bizzacks again applied to the Commission for the same zoning change. The Commission voted 5-4 to approve the request. The Fiscal Court voted not to hold a new hearing, but to place an ordinance on its agenda. It added a finding that the proposed map amendment was in agreement with the comprehensive plan, and adopted the zone change. The circuit court upheld the Fiscal Court on multiple grounds. Hume appealed to the court of appeals, which reversed the zone change because the Fiscal Court did not conduct its own evidentiary hearing or review the transcript of the Commission’s hearing, and the facts in evidence were insufficient to support the decision. The Bizzacks moved the Supreme Court for discretionary review, which was denied June 9, 2004.

On June 24, 2003, the Bizzacks filed the same zone change request with the Commission. The Commission held a hearing on the application, and voted to a 5-5 deadlock. The Commission forwarded the application to the Fiscal Court without a recommendation, and the Fiscal Court granted the rezoning. Hume again appealed to the circuit court, which reversed the rezoning, holding that it was improper to apply for rezoning while the prior rezoning decision was on appeal. The Bizzacks appealed to the court of appeals.

The Bizzacks claimed that the circuit court’s opinion that res judicata barred the filing of the newest rezoning application was error. The court noted that the general law is that res judicata applies in administrative zoning decisions unless it is shown that there has been a substantial change of circumstances since the earlier denial. Because the Fiscal Court did not make any findings regarding the change in circumstances, the court reversed the circuit court and remanded the case to the Fiscal Court to determine whether there were any changes since its previous denial of the Bizzacks’ prior application to overcome res judicata.

Digested by Samuel Hinkle

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