Many Kentuckians will be barred from challenging land-use decisions in court unless lawmakers act
Republished from Kentucky Lantern
In a press release announcing the signing of 20 bills passed by the General Assembly, the governor is quoted as stating “we’ve been laser focused on addressing the everyday needs of our Kentucky families and communities, and the 20 bills I signed do just that.”
Unless you agree that Kentucky families and communities wake up in the morning hoping that their right to statutory judicial review of planning and zoning decisions will be disrupted by the Kentucky legislature, then the passage and signing of House Bill 321 into law were grave misjudgments.
The bill as altered by a Senate committee is indeed “laser focused,” but in a Star Wars way rather than on protecting the rights of Kentucky families and communities.
In Gov. Andy Beshear’s defense — and that of most of the legislators who voted on HB 321 — the last-minute insertion of the offending language was done without any meaningful public notice or opportunity to debate or study the impact in committee. Before the Senate action, the measure had been an uncontroversial and positive House bill providing additional training for local planning officials, was available.
The conversion of a good bill into a direct assault on the judicial appeal rights of the public in planning and zoning matters occurred during the first of two hectic “concurrence” days before the veto period, after one chamber had already considered and approved the bill.
In the two days remaining in the 2025 regular session, the General Assembly could fix this problem by enacting changes that undo the damage caused by HB 321 and restore the statutory right to judicial review. Here’s why they should.
Kentucky Revised Statutes Chapter 100 involves many government decisions that can dramatically affect the quality of life in local communities with planning and zoning. It covers final actions of planning commissions, boards of adjustment, counties, and cities with zoning authority, and landmark commissions. It covers a broad range of decisions including the grant or denial of a rezoning, a variance, a conditional use permit, a cell tower, a subdivision, or revision to a comprehensive plan or zoning regulations, or adding or removing a binding element. Before HB 321, any person claiming to be injured or aggrieved by that final action could bring a suit in circuit court within 30 days of that final action seeking court review of whether the action complied with the law.
HB 321 will limit that statutory appeal right to “owners of real property within the zone where the property that is the subject of the final action is located.”
Under HB 321 neighborhood associations, renters, homeowners living near properties whose zoning has been changed to commercial or industrial, groups concerned with demolition of historic properties or impacts on public parks, and others injured or aggrieved, would be barred from the statutory right to judicial review of action by local governments and their agencies on land use matters. The right to appeal government decisions on planning and zoning would be limited to persons who are injured and who own land in the same “zone” as the property that is subject to the government action.
The new limit is as arbitrary as it is offensive to the rights of homeowners, renters, neighborhood associations, and civic groups dedicated to historic preservation and parks, among others, treating their economic and other interests as if they are unworthy of protection.
HB 321 is a direct affront to Kentuckians in all communities that have adopted planning and zoning. It seeks to deprive them of access to the courts where a local government decision affects their quality of life and the homes they own or rent, unless they own property in the same “zone” as the property subject to the final action that has caused them harm.
HB 321 treats renters, neighborhood associations, and civic groups like second-class citizens, shutting the door to statutory judicial review unless they “own real property within the zone” that is the subject of the action that has caused injury. Current law requires someone seeking judicial review to be injured or aggrieved, and the new restriction would exclude everyone injured other than property owners in the same “zone” from seeking review.
HB 321 shuts the door on statutory appeals for many property owners as well. A zoning amendment case usually involves a change in the zoning classification of a property. A homeowner in a residential zone could not, under HB 321, challenge a zoning change converting residential property to a commercial or industrial zoning even if the change was next door to the homeowner’s property.
Many of the most controversial decisions under KRS Chapter 100 occur in the transition area from one zone to another — a landowner in a residential zone that abuts a commercial zone, or a farm owner in an agricultural zone that abuts land rezoned as industrial; yet none of these challenges could be brought under the statute as amended.
HB 321 also arbitrarily links the right to judicial review to the zoning status of property owned by the person injured by the government action. Many final decisions under KRS Chapter 100 don’t depend on the zoning status of property at all but nevertheless can dramatically affect the quality of life of individuals, neighborhoods and communities. Decisions such as adoption or revisions of comprehensive plans and zoning regulations; approvals of cell towers; imposition and removal of binding elements; granting or denying of conditional use permits or variances; all of these are not focused on the “zone” and yet could be denied judicial review because of the bill’s new limit to judicial appeal for landowners in the same “zone” as the property that is the subject of the final action.
If unrepaired, the message behind HB 321 will be clear — your legislature doesn’t care how much a government action under planning and zoning laws may harm you or your family, your quality of life or your community, unless you own property in the same zone as the subject of that government action. No statutory right to ask a court to review the lawfulness of government action would exist when a zoning change occurs next door or down the street, if the rezoned property is no longer in the same zone. Renters, civic groups, neighborhood associations, your statutory right of appeal no longer exists.
Finally, HB321 will likely prove to be an ineffective, yet disruptive, effort to chill these appeal rights of many people in communities concerned with government planning and zoning actions. Ineffective, because there is an inherent constitutional right to seek judicial review of government action, arising under Kentucky Constitution Sections 2 and 14, that cannot be abridged by the General Assembly.
If HB 321 stands as law and all of those harmed by decisions under planning and zoning laws can no longer access the courts using KRS 100.347 to appeal, the inherent constitutional right of appeal will be available to assure that arbitrary government acts are held to account.
The more likely impact of HB 321 will be to significantly disrupt local planning and zoning, causing harm not only to those sought to be barred by this law from appealing, but also to those seeking to develop properties.
For if there is no statutory right of appeal, then the 30-day time limit in law to file such appeals will no longer be applicable, and judicial review could occur later in time. HB 321 will not result in fewer land-use appeals; instead, there will likely be the same or even more appeals, some occurring later in time with more disruption to developers, local governments and the public.
The General Assembly reconvenes Thursday for two days. There is time to fix this blunder, and to restore the right of all persons injured or aggrieved by a government decision under KRS Chapter 100 to timely seek judicial review of the legality of that government action.
Kentucky Lantern is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: [email protected]. Follow Kentucky Lantern on Facebook and Twitter. Kentucky Lantern stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0.
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