By Patricia A. Scheyer
NKyTribune reporter
Boone County Fiscal Court Commissioners listened to the second reading of an ordinance last week which requested a zoning map amendment for 32 acres to be changed from rural suburban to Industrial three surface mining at 3989 Belleview Road in Boone County.
The project received unanimous approval by the Boone County Planning Commission, with 4 conditions, the fourth of which mandated that a hydrological report be done to determine water suitability.
Although the hydrological report has been done by Northern Kentucky Aggregates, the company that wants to expand and rezone the 32 acres, County Attorney Jordan Turner objected to any reference to the report by the commissioners, since it is not part of the record of the project the company is seeking approval on, it is just a condition.
“I was curious as to how we got a recommendation for approval from the planning commission when that report was a condition of approval,” Commissioner Chet Hand said at the first reading.
Michael Schwartz, Zoning Administrator, said the requirement to get a hydrological report is part of the record, but the actual report is not part of the record. He explained that after the map amendment is approved, the company comes back to the county for approval of the site plan, and they will check that the conditions have been met and are being incorporated in the plan. At that time the report will become part of the record.
“You are only reviewing what they (the planning commission) saw,” Turner said. “They are just accepting what an applicant puts forth.”
Commissioner Hand then made a motion to have another public hearing, one that would yield the commissioners’ own information. He wanted to explain his reasoning about this public hearing process.
“I thought I made it pretty clear last meeting when we were discussing it that a couple things bothered me,” he explained. “One thing that bothered me is that the hydrological report was required by the Planning Commission, but they did not receive the report back before they submitted their recommendation and vote to us. I think that is not the right way to handle this, especially in a scenario where the applicant is not under an extremely short timeline.”
Hand said they could have waited another two weeks and then had the report for a total package to submit to the court.
“Because the way I look at it, we as the fiscal court are not a rubber stamp for the planning commission,” he continued. “We don’t just take their recommendation and then put our seal of approval on it. We have the ultimate responsibility to make these right decisions for the county regarding land use, planning, zoning, development et cetera. We have, to some degree, delegated those responsibilities by joining, or forming the commission, however that happened years ago, but we can’t simply sign off on everything that comes before us from them without doing our own due diligence, because otherwise we haven’t just delegated, we have abdicated our responsibilities to them.”
He said he didn’t think there was anything in the report that would stop the project, and he said he had no problem with the project, he believes it should continue. But he wants the report on the record.
Judge Executive Gary Moore felt differently about the matter.
“The fiscal court is a legislative body, and under KRS 100 our responsibilities and our work are with the planning and zoning commission,” Judge Moore said. “We are dealing with the land use decision here, not to become regulators, not to become the administrator of the project itself, that’s the zoning administrator’s role.”
He said it would be like suggesting in the future that any zoning item that has a traffic study requirement in it would require that the court micromanage it.
He said he has never before had someone request a second public hearing, but that didn’t mean they had not done their due diligence. He said if they were going to always have extra public hearings, they were going to be in session a lot longer, and it would possibly open them up to more litigation.
“To me that is not the role of the fiscal court,” Moore said. “That’s beyond our scope as a legislative body. We are the policy arm of the county.”
“Theoretically, I would still argue again that these responsibilities still lie with the fiscal court; we’ve just delegated the bulk of the work to the planning commission, but the ultimate responsibility and the decision still lies with the fiscal court, that’s my point on that,” Hand said. “As far as the record goes, again I would like the hydrological report to go on the record.”
He said the public hearing doesn’t have to be a long event, that all it needs to include is the hydrological report, as well as the good intentions stated by the company for the community, which both need to be on the record.
James Barth, a resident who lives close to the mine and has been to every meeting, was allowed to comment, and he could barely control his anger.
“The planning commission voted, this is the second reading, to send it to fiscal court, and then brought up the hydro report,” he said. “That’s incorrect, they should have that. This gentleman is correct (he indicated commissioner Hand). You’re a governing body. You’re the only ‘body’ that protects me — the taxpayer. This is a travesty. The planning commission goofed. My point is, the only protection I have as a taxpayer in Boone County is you all. The planning commission doesn’t care.”
Judge Moore stopped his comments.
Commissioner Hand spoke up saying when he read the recommendations of the planning commission, the only subject that was brought up at the public hearing from the residents was water and water quality.
“If that’s their issue that the residents are most concerned about, and we have, theoretically, a study that been conducted that has information related to whether their concerns are valid or not, and we are tasked with making a decision that impacts them, should we not have that report on the record?” Hand wanted to know.
“And again, I’m not sure a new public hearing gets you that report,” said Judge Moore.
Shortly after, a vote was held on a new public hearing was held, and the vote was one for the hearing and three against it. Commissioner Hand expressed his disappointment with the process and felt the entire issue was rushed when it didn’t have to be.
Then a vote was held for the second reading of the ordinance on the rezoning, and it passed 4 to 0.
Judge Moore suggested they put Commissioner Hand’s policy suggestions on a caucus meeting, so as not to hold up the commission meetings.
The planning commission messed up. We need to fix this.