Planning & Zoning in Kentucky – Bring Your “A” Game to the Administrative Hearing
A key piece of our American legal system is due process, and the right to have your “day in court.” For planning and zoning appeals, that day in court will likely come before you arrive at the circuit court. This is due to the deference provided to administrative bodies in their planning and land use decisions.
In Kentucky, circuit court review of the zoning decisions of legislative bodies is specifically authorized by the Kentucky Revised Statutes. Judicial review of administrative action by such bodies is ultimately concerned with the question of arbitrariness. An administrative ruling is arbitrary, and therefore clearly erroneous, if it is not supported by substantial evidence. With respect to the factual determinations of the administrative body, the facts will be generally upheld even though there exists evidence to the contrary in the record.
The Supreme Court of Kentucky has clarified that a court cannot substitute its judgment on contested issues of fact. See Kentucky Retirement Systems v. Ashcraft, 559 S.W.3d 812, 820 (Ky. 2018). Instead, the court must consider if the appealing party’s proof was so compelling that no reasonable person could have failed to be persuaded, and that the zoning decision was therefore arbitrary, capricious, or an abuse of discretion. While this is not an undefeatable bar, it highlights the importance of the evidence before the legislative body making the zoning decision.
For this reason, a party seeking zoning relief, or opposing it, benefits from presenting its best case before the legislative body. This includes hiring experts where necessary, identifying all arguments, and securing counsel to help in advocating your position. The time and energy you invest at the beginning of the administrative process is time well invested. If legal counsel is hired after the administrative hearing has occurred, it is possible that positions and arguments will be waived by the time the matter makes it to the circuit court of the county in which the property is located.
By the way, this principle absolutely applies in Ohio, too. If you are a property owner with an interest in a zoning or land use decision, it behooves you to present your experts, evidence, and arguments at the administrative level. It may also benefit you to utilize an attorney, as attorneys are often provided rights in administrative hearings not afforded to non-attorneys (for example, the right to cross examine witnesses).
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