It has been over a year since developer Maronda Homes first presented plans for a 47-acre subdivision along Licking Pike in Alexandria to the Campbell County Planning and Zoning Commission.
Since that meeting on March 8, 2022, nearby residents opposing the development have been battling with the county, developer, and landowners to prevent the proposed plans, even taking matters to court in June 2022.
Approximately two weeks after the Campbell County Fiscal Court approved a zone change that would make way for the planned housing development, residents filed a civil complaint asking for construction to be halted and for compensatory and punitive damages against the commissioners who approved the zoning change.
The approval of the zone change would allow Maronda Homes to purchase the 47 acres of land from the Burns family, who currently own it, and begin building the 98-home subdivision.
The current zoning for the suggested site is R-1A Residential One-A Zone. The proposed zoning is Residential One C (R-1C) with a Residential Cluster Development Overlay. The zone change to a cluster development overlay allows the developer to put more houses on the site than the previous zone allowed.
A significant component of the complaint included a claim that there was a violation of the resident’s due process rights because they claimed the planning commission did not hold a trial-like hearing.
In March of this year, Circuit Court Judge Daniel Zalla ruled in favor of the residents regarding the violation of due process rights and due process cross-examination.
Zalla’s findings state, “The court finds that with these specific facts, the claims of being injured or aggrieved have been satisfied” concerning the violation of due process rights.
Further, in reference to the cross-examination, his findings state, “The court finds that the appellants at both hearings before the commission were not afforded the opportunity of cross-examination in a trial-type hearing. This constitutes a violation of the appellant’s procedural due process rights.”
The attorney representing the residents opposing the development, Steve Megerle, said that because Zalla ruled favorably on the procedural due process issue, the plans must return to the planning commission and start over. However, weeks after Zalla’s ruling, Jeff Mando, the attorney representing the county, filed an appeal.
Mando said the county is concerned about the precedent the ruling will set regarding how public hearings will be conducted.
“We are specifically concerned about his ruling that residents were denied the right to cross-examine witnesses at the public hearing,” Mando said. “We believe that the public hearing provides every opportunity for our residents to speak out and express their concerns and opinions. And we believe that the public hearing process that Campbell County has adopted, which is not dissimilar to the process utilized by other counties, fully complies with all the statutory and constitutional requirements for a full and fair hearing.”
Mando continued and said that the law states certain requirements have to be met, such as a meeting notice, a right to be heard, and the right to cross-examine, but he said it’s not a trial.
In the following days after the appeal was filed, Megerle filed a motion to transfer the case from the Kentucky Court of Appeals to the Kentucky Supreme Court so that it could be heard by seven judges instead of three.
Motions to transfer cases are granted at the supreme court’s discretion for issues of great and immediate importance.
After Zalla’s ruling, Megerle said his clients were pleased that the zone change had been reversed.
“They were not given a proper opportunity to cross-examine and ask questions, which is required in every planning and zoning hearing,” he said. “We look forward to working with the fiscal court and the planning and zoning commission to change their procedures to ensure that due process is adequately provided to future zone changes.”
He continued that the ruling would set the pace for future planning and zoning meetings.
“Judge Zalla found that the way that the planning commission has operated for probably several decades has not been in compliance with state law,” Megerle said. “Going forward (should the case not be overturned by the court of appeals), the planning commission will be required to allow opponents to ask questions of applicants and those seeking a zone change so that a fully developed record of facts and evidence can be before the planning commission so that they can make their recommendation to the fiscal court.”
The documentation that Megerle filed reasons the case should skip the court of appeals and head straight to the Kentucky Supreme Court due to “questions presented surrounding the constitutional doctrine of procedural due process in the field of land use management.” It continues, saying the decision will “clarify longstanding requirements for the conduct of administrative proceedings in light of recent perceived relaxing of trial-type hearing requirements at planning and zoning proceedings.”
If the appeals court hears the case, the process could take 12 to 18 months. Megerle said there is no typical time frame when the Kentucky Supreme Court decides whether they will hear a case or not.
Here is a timeline of the previous reporting on this issue:
March 8, 2022: The Campbell County, Planning and Zoning Commission hears development plans for a subdivision proposed by Maronda Homes. They were going to vote on a zone change and the stage one plan for the development; however, the commission voted for a continuation of the meeting for the following month, as requested by the applicant Maronda Homes.
April 12, 2022: The second meeting was held for the development in front of the planning commission. They approved the zoning change and stage one development to move forward to the Campbell County Fiscal Court.
May 19, 2022: The Campbell County Fiscal Court hears the first reading of an ordinance for the zone change. There was no vote.
June 2, 2022: The Campbell County Fiscal Court approves the zone change.
July 11, 2022: Residents file a complaint asking construction of the proposed development to be halted.
