Zoning Law Is Schizophrenic

 By Alex F. Talbott

 Alex F. Talbott is a member of the Louisville, Kentucky, firm of Bardenwerper Talbott & Roberts, PLCC.

 Thirty-five years ago the Kentucky Supreme Court declared in McDonald 1 that the rezoning process “surely is not legislation.” It also declared that the constitutional requirements of due process require the rezoning proceedings to be conducted in a “trial type” manner. A few years later in Kaelin 2 the Court declared that due process also requires cross examination of speakers to be essential to the validity of the rezoning process.

Recently, however, the court seems to have done an about face in its Hilltop decision, 3 declaring that “policy-based controversies such as these are best ferreted out in the legislative arena.” Further, it was specifically held that unlike the judicial arena, ex parte contacts are appropriate and there is no “right to an impartial tribunal.” Just as interesting is the fact that the Court in Hilltop was careful to consistently describe the rezoning process as “administrative or legislative.” While these two functions belong to two separate braches of government, the court seems unable or unwilling to say to which branch the rezoning process belongs.

Unfortunately, the Court in Hilltop failed to mention the McDonald “trial type” requirement or the Kaelin “cross examination” requirement, both of which requirements have no traditional role in the legislative arena. Whether those requirements continue to apply to the rezoning process as previously required by due process of law is questionable.

Lawyers outside of Kentucky are likely to dismiss this confusion by saying, “That’s just Kentucky.” But it is my opinion that this confusion is inherent in the zoning process nationwide, which generally conforms to the Standard State Zoning Enabling Act and the implementing ordinance found in Anderson American Law of Zoning §§ 32.01 and 32.02. Under the nationwide framework, any property owner is entitled to seek a change in zoning, he must be given a hearing, and he is entitled to a decision supported by findings reflecting some adherence to a preordained comprehensive plan. While the function is clearly adjudicative in nature as described by the Standard Enabling Act, it is also disguised as a legislative amendment to be made by the legislative body.

Lawyers study for years to learn the deductive process of applying the law to the facts to reach an objective decision, a process called “litigation” or “adjudication.” When operating in the judicial branch, lawyers will be disbarred if they try to use the media to influence the decision-making process with politics. The deductive process requires the decision makers to present every appearance of being apolitical.

On the other hand, lawyers generally are taught nothing in law school about the procedures to follow to make a law or about any restrictions on the lawmaking process. Contrary to litigation, lawmaking is almost purely political, involves induction, not deduction, and is more guttural than logically syllogistic. The only governing standard to apply is that the decision of which policy to adopt as law must be supported by any conceivable rational basis the government’s lawyer or the government judge can come up with, i.e., essentially no standard at all.

None of the lawyer’s training is relevant to the lawmaking process. Worse, that legal training inhibits the lawyer’s effectiveness in the lawmaking process rather than enhancing it because the training accustoms the lawyer to restrictions governing litigation. Unlike litigation, the ability to manipulate the media to achieve a political advantage would be a huge asset to the lawmaking process. Large political contributions are commonplace just to create the opportunity for ex parte contacts with the decision maker, which are forbidden in litigation, and to hopefully bias the decision maker in the contributor’s favor, which is also forbidden in litigation.

So the distinction between lawmaking and law application is incredibly important to the activities of the participants. That is why it is interesting to note that the Kentucky Supreme Court still does not know how to categorize the rezoning process, despite dealing with the process for nearly a century. Its recent Hilltop decision schizophrenically declared rezoning to be a legislative function relying heavily on McDonald and Kaelin decisions, which declared rezoning to be adjudicative requiring trial-type procedures.

And yet the unanimous Hilltop decision does not constitute strong evidence that the judges need to be in an asylum. Zoning has become ensconced in the legal makeup of nearly every community of more than a thousand population. The court’s apparent schizophrenia is merely a result of trying to fit this highly popular regulatory program into a constitutional framework. The effort looks like schizophrenia because the regulatory program will not fit. It will not fit because it is unconstitutional. It is unconstitutional because it grants adjudicative decisions that are required to be made initially by the executive branch to the legislative body, which is governed purely by politics rather than a preordained policy, and, therefore, precludes any reasonable judicial oversight. Judges recognize their duty to adhere to the preordained policy, while legislators recognize that their legislative power cannot be circumscribed by preordained legislation.

Zoning constitutes an enormous area of governance of all Americans, under which they are governed, not by a rule of law, but by the ungoverned rule of men. One hundred years of zoning has made a myth of property rights in America. But there are valuable property privileges to be acquired for those who know how. Lawyers involved in this process need to learn to be lobbyists and to forget the canons of ethics that are designed for litigation. But be careful. For example, publicly condemn the views presented by this article. Schizophrenia is ubiquitous. 4

Endnotes

1. City of Louisville v. McDonald, 470 S.W.2d 173 ( Ky. 1971).

2. Kaelin v. City of Louisville, 643 S.W.2d 590 ( Ky. 1982).

3. Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464 ( Ky. 2005).

4. This article was written by my other self. The real me disagrees strongly with the views stated in it.