HILLTOP BASIC RESOURCES, INC. ET AL V. COUNTY OF BOONE, KENTUCKY; ET AL
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2003-SC-1052-DG and 2004-SC-0008HILLTOP BASIC RESOURCES, INC. ;
ADDISON G. STEVENS ; MYRNA STEVENS ;
RODNEY WOODS; SANDRA WOODS ;
DONALD GENE HODGES ; NIKI CAROL HODGES ;
ROSALIE KIPPLER; WILLIAM E. KIPPLER ;
WANDA KIPPLER; CARL TABER; AND
CYNTHIA TABER
APPELLANTS/CROSS-AP PELLEES
V
APPEAL FROM THE COURT OF APPEALS
NO. 2002-CA-001081
BOONE CIRCUIT NO. 00-CI-01144
COUNTY OF BOONE, KENTUCKY ;
BOONE COUNTY FISCAL COURT
APPELLEES/CROSS-APPELLANTS
OPINION OF THE COURT BY JUSTICE GRAVES
Reversinq and Remanding
Both Appellants, Hilltop Basic Resources, Inc., et. al . [hereinafter "Hilltop"], and
Appellees, County of Boone, Kentucky, et. al . [hereinafter "Boone County'], appeal a
Court of Appeals order vacating and remanding a judgment of the Boone Circuit Court .
This Court granted discretionary review, and we now reverse the Court of Appeals and
remand the matter for further consideration .
Hilltop sought to mine underground limestone in a rural area of Boone County
not zoned for subsurface mining . Consequently, on December 19, 1999, Hilltop applied
to the Boone County Planning Commission for a zoning map amendment . After
extensive review, the Boone County Planning Commission recommended, by a vote of
seven (7) to five (5), that an amendment be granted . Once the Planning Commission
made its recommendation, the matter reverted by statute to the Boone County Fiscal
Court for approval . KRS 100 .211 . The administrative record submitted to the Boone
County Fiscal Court contained findings both for and against the amendment . The
Boone County Fiscal Court voted three (3) to zero (0) to override the Planning
Commission's recommendation, and thus, deny Hilltop's application for zoning
amendment .
Hilltop appealed the Fiscal Court's decision to the Boone Circuit Court, alleging
(1) that the Fiscal Court acted arbitrarily and capriciously in disregard of the record ; and
(2) that it was denied due process before the Fiscal Court due to the bias of two of its
members . Hilltop alleged that the members were biased because they made both
public and private comments indicating they were "steadfast opponents to mining
activities generally." The Boone Circuit Court affirmed the Fiscal Court's decision,
finding that it was neither arbitrary nor erroneous as a matter of law.
The Court of Appeals reversed the Circuit Court's ruling, holding that
prejudgment and bias by the two Fiscal Court members operated to deprive Hilltop of
procedural due process . Specifically, the evidence suggested that the members
communicated, in both public and private messages to their constituents prior to a
hearing on the matter, their opposition to subsurface mining in general . One of the
members was alleged to have said that she "would never vote for a mine in this area of
Boone County" because "[t]he people in Boone County just don't want it." Judge Knopf
dissented from the majority's opinion, arguing that it departed from the recognized
standard of review in zoning cases and failed to appreciate the legislative aspects of the
process . From this decision, we granted discretionary review to both parties. We now
reverse and remand, finding nothing in this record which violates Hilltop's right to
procedural due process of law.
The basic principles controlling this case were first set forth in comprehensive
fashion over forty (40) years ago in American Beauty Homes Corp. v. Louisville &
Jefferson County Planninq & Zoninq Comm'n , 379 S .W .2d 450 (Ky. 1964) by the
esteemed and oft-quoted Commissioner Clay . As in this case, American Beauty Homes
involved an owner of a tract of land who sought to have the zoning classification
changed for that tract of land from residential to commercial/ industrial. Id. at 452. At
the time, KRS 100 .057 directed that all zoning determinations were to be reviewed de
novo by the judiciary . Id . at 453. Commissioner Clay determined that this statute was
unconstitutional in violation of the separation of powers doctrine, holding that zoning
determinations were a uniquely legislative function which could not be imposed on,
assigned to, or conferred upon the judiciary or agents thereof. Id . at 454.
Our predecessor Court went on to explain that since zoning determinations are
purely the responsibility and function of the legislative branch of government, such
determinations are not subject to review by the judiciary except for the limited purpose
of considering whether such determinations are arbitrary. Id . at 456 . Arbitrariness
review is limited to the consideration of three basic questions : (1) whether an action was
taken in excess of granted powers, (2) whether affected parties were afforded
procedural due process, and (3) whether determinations are supported by substantial
evidentiary support. Id .
Since American Beauty Homes, our Courts have continued to review zoning
determinations affecting individual property owners pursuant to the arbitrariness
framework set forth above . See, e.g ., Danville-Boyle County Planning and Zoning,
Comm'n v. Prall , 840 S .W.2d 205, 208 (Ky. 1992) ; City of Louisville v. McDonald , 470
S .W.2d 173, 178 (Ky. 1971) ; Hougham v. Lexington-Fayette Urban County Gov. , 29
S .W .2d 370, 373 (Ky. App. 1999) ; Fritz v. Lexington-Fayette Urban Cty Gov. , 986
S .W .2d 456, 458 (Ky. App. 1998) . In this case, the Court of Appeals found that the
Fiscal Court's decision was arbitrary because it was made in violation of Hilltop's right to
procedural due process . Specifically, the Court of Appeals held that procedural due
process included a right to have zoning determinations made by an impartial tribunal
and that the Fiscal Court did not operate as an impartial tribunal in this case since two
of its members had expressed general viewpoints about the case and discussed such
viewpoints with several of their constituents prior to a hearing on the matter. For the
reasons set forth below, we disagree .
The Court of Appeal's opinion strays in this instance by making the unsupported
and erroneous assertion that procedural due process by an administrative or legislative
body includes a broad and general right to an impartial tribunal. The Fiscal Court is not
a judicial or adjudicatory body and hence, it cannot and should not be classified or
thought of as a tribunal . See Black's Law Dictionary 1512 (7th ed . 1999) (defining
tribunal as "a court or other adjudicatory body" and "the seat, bench, or place where a
judge sits"). Although we have frequently referred to the process of making zoning
determinations as being "quasi judicial" or "quasi adjudicatory,"' it does not follow that
Indeed, Commissioner Clay warned that characterizing the work of bodies making
zoning determinations as "quasi judicial" or "quasi adjudicatory" was ill-advised since
the use of such phrasing was apt to serve little purpose but to confuse . American
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the legislative bodies making such determinations are performing judicial functions (and
thus, are subject to the same rules of conduct or procedure as judicial officers) . See,
e .g_, McDonald , supra, at 178-79 ("it is, nevertheless, true that rezoning a parcel of
property is intrinsically not a judicial function").
More importantly, the right to an impartial tribunal is distinctly judicial in concept
and function and is derived from the fundamental right of every criminal defendant to
receive a fair trial . See Rose v. Clark, 478 U .S. 570, 577, 106 S .Ct. 3101, 3106, 92
L.Ed.2d 460 (1986). In allegiance to this concept of always endeavoring to ensure
completely fair and unbiased determinations of guilt or innocence, judicial officers are
held to very stringent guidelines and rules of conduct in order to ensure the highest
possible degree of impartiality in both fact and appearance . See, etc .., Commonwealth
v. Brandenburg, 114 S .W .3d 830, 834 (Ky. 2003) (quoting In re Murchison, 349 U .S .
133, 136, 75 S.Ct. 623, 625, 99 L .Ed . 942, 946 (1955)) ; see also Debra Lyn Basset,
Judicial Disqualification in the Federal Appellate Courts, 87 Iowa L . Rev. 1213 (2002).
I.n the administrative or legislative context, however, the concept of impartiality is,
by necessity and by function, more relaxed and informal. See National-Southwire
Aluminum Co. v. Big Rivers Electric Corp. , 785 S .W .2d 503, 515 (Ky. App. 1990); Kelly
v. Board of Education of Monticello Independent School Dist. , 566 S .W.2d 165, 167-68
(Ky. App . 1977) ; see also Kentucky Cent. Life Ins . Co. v. Stephens, 897 S .W.2d 583,
590 (Ky. 1995) ("Procedural due process is not a static concept, but calls for such
procedural protections as the particular situation may demand .") . For example,
although such an arrangement would create an unacceptable appearance of bias in the
Beauty Homes, supra , at 458 n. 20 ("Though such an agency may adjudicate, it does
not exercise judicial power and the term, instead of correlating the agency with the
judiciary, may mean exactly the opposite .").
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judicial arena, this Court has held that the merging of the investigative and adjudicative
roles in an administrative setting does not likewise create an unacceptable appearance
of bias . Nicholson v. Judicial Retirement & Removal Comm'n, 562 S .W.2d 306 (Ky.
1978) ; see also Hougham, supra, at 374 (ex pane contacts by members of legislative
bodies making individual zoning determinations are generally not prohibited, nor do they
deny affected parties due process of law) .
The fundamental requirement of procedural due process is simply that all
affected parties be given "the opportunity to be heard at a meaningful time and in a
meaningful manner." Mathews v. Eldridge , 424 U .S . 319, 333, 96 S .Ct. 893, 902, 47
L .Ed.2d 18 (1976) (internal citation and quotation omitted) . Procedural due process in
the administrative or legislative setting has widely been understood to encompass "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), see also Kaelin v. City of Louisville , 643 S.W.2d 590, 591 (Ky. 1982) ; Wyatt v.
Transportation Cabinet , 796 S.W.2d 872, 873-74 (Ky. App . 1990) . The "right to an
impartial tribunal" is nowhere to be found within this list, and rightfully so, since the right,
as it is commonly conceived within the judicial context, cannot be guaranteed (nor need
it be) in the administrative or legislative setting .
However, decision makers are not free to be biased or prejudicial when
performing nonjudicial functions . To the contrary, any bias or prejudicial conduct which
demonstrates "malice, fraud, or corruption" is expressly prohibited as arbitrary .
National-Southwire Aluminum , supra , at 515 . Furthermore, decisions tainted by
conflicts of interest or blatant favoritism are also prohibited as arbitrary . See McDonald ,
supra , at 177. On the other hand:
Mere familiarity with the facts of a case gained by an agency [or other
nonjudicial body] in the performance of its statutory role does not,
however, disqualify a decisionmaker . . . . Nor is a decisionmaker
disqualified simply because he has taken a position, even in public on a
policy issue related to the dispute, in the absence of a showing that he is
not capable of judging a particular controversy fairly on the basis of its
own circumstances . . . .
Kelly, supra, at 168 (quoting Hortonville Joint School District No . 1 v. Hortonville
Educational Assoc. , 426 U.S . 482, 493, 96 S.Ct . 2308, 2314, 49 L.Ed .2d 1, 9 (1976)) ;
see also Mark W . Cordes, Policing Bias and Conflicts of Interest in Zoning
Decisionmaking , 65 N .D . L . Rev. 161 (1989) (arguing that distinctions should be made
between bias based on opinion and bias based on self-interest) .
At its core, arbitrariness review is concerned primarily "with the product [of
legislative or administrative action], and not with the motive or method which produced
it." National-Southwire Aluminum , supra, at 515; see also Louisville & Jefferson County
Metropolitan Sewer Dist . v. Seaqram & Sons, Inc . , 307 Ky. 413, 211 S .W .2d 122, 125
(1948). A focus on the product of the action (rather than the motive behind the action)
balances the need to ensure fair and nonarbitrary treatment before a legislative or
administrative body with the equally compelling need to avoid undue infringement upon
the legislative or nonjudicial aspects of the process or function of such bodies. Under
the circumstances as they are presented in this case, we agree with Judge Knopf that
Hilltop's right to receive fair and nonarbitrary treatment before the Fiscal Court is
adequately protected (if not best accomplished) by adhering to the traditional standards
which are set forth in American Beauty Homes, supra . These standards ensure, at a
minimum, that all actions are taken on the "basis of a record and on the basis of
substantial evidence ." McDonald , supra, at 178 .
In this case, there are no allegations of malice, fraud, corruption, or other
conflicts of interest on the part of the Fiscal Court members . Moreover, despite the
members' preexisting opinions regarding the community effects of subsurface mining in
general, we find nothing in the record which indicates that these members did not
seriously or honestly consider Hilltop's proposal . Rather, the allegations involve
prejudgment or bias as to the general policy of whether to permit subsurface mining in
Boone County. General policy-based controversies such as these are best ferreted out
in the legislative arena, i .e ., through expression of the will of the voters in the electoral
process. Id.
The circumstances as they are reflected on the record in this case are not
sufficient to deny Hilltop procedural due process of law. The Court of Appeals erred in
failing to consider Hilltop's other arguments concerning whether the Fiscal Court's
determination was supported by substantial evidence on the record and whether the
determination was in conformance with the comprehensive plan and applicable zoning
law. Because of these omissions, the case must be remanded back to the Court of
Appeals for further consideration of these issues .
The decision of the Court of Appeals is reversed ; and the case is remanded for
further proceedings consistent with this opinion.
All concur.
ATTORNEYS FOR APPELLANTS
Wm . T . Robinson III
Luann Devine
50 E . RiverCenter Blvd ., Suite 1800
Covington, KY 41012
Paul B . Whitty
101 South Fifth Street
Louisville, KY 40202
ATTORNEYS FOR APPELLEES
Jeffrey C. Mando
Mary Ann Stewart
Adams, Stepner, Woltermann & Dusing, PLLC
40 West Pike Street
Covington, KY 41012
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