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Building Industry Association of Greater Louisville Building, 1000 N. Hurstbourne Parkway, Suite 200, Louisville, Kentucky 40223





  1. Bissell Roberts



  1. Bissell Roberts

Stites & Harbison

400 West Market Street

Suite 1800 Aegon Center

Louisville, Kentucky  40202

(502) 587-3400

(502) 587-6391 Facsimile


SECTION A.                            THE COMPREHENSIVE PLAN – WHAT IS IT?

The Comprehensive Plan is the “blueprint” or “road map” for the zoning process in all Kentucky communities with zoning laws and “planning units”.  Although many Kentucky communities have no zoning laws, for those that do, the Comprehensive Plan is a fundamental prerequisite.  The Comprehensive Plan for each community serves as the critical planning “guide” rather than a “straight-jacket”, to the rezoning process.  Ward v. Knippenberg, Ky., 416 S.W.2d 746, 748 (1967).

By design, the Comprehensive Plan should be the guide to “future development”, even though when adopted it takes into consideration all current land usages.  The Comprehensive Plan should look beyond current uses and towards future development  It should constantly be undergoing scrutiny and review.  Fritz v. Lexington-Fayette Urban County Gov’t, Ky. App., 986 S.W.2d 456 (1998).

The Comprehensive Plan is a zoning plan for orderly growth and protection of land values, which property owners and investors should be able to rely on in making investments in real estate.  In Hardin County, v. Jost, Ky. App., 897 S.W.2d 592, 595 (1995) the court held, “[I]n other words, a person investing in property ought to be able to look at the comprehensive plan and determine with some degree of reasonable certainty the use to which property can be put before it is purchased.”  We will consider below whether this 1995 judicial pronouncement is valid for property owners, buyers, real estate attorneys and other real estate professionals.

This outline will review the purpose of a Comprehensive Plan, the minimum statutory requirements for a valid Comprehensive Plan, required procedures for adoption of a Comprehensive Plan and plan amendments, statutory review of the Comprehensive Plan, compliance with the Comprehensive Plan and the use of the Comprehensive Plan in the rezoning process.

In addition, there will be an analysis regarding the reliability and accuracy  of the Comprehensive Plan in forecasting with “some degree of reasonable certainty” the use to which a particular piece of property can be put.


In 1966 the Kentucky General Assembly enacted Kentucky’s Planning and Zoning Act, which as amended, provides the statutory basis for all Kentucky planning and zoning.  Chapter 100 of Kentucky Revised Statutes contains no definition of the ” Comprehensive Plan”. Kentucky’s statutory scheme requires that the Planning Commission of each “planning unit” adopt a Comprehensive Plan, prior to the adoption of local zoning regulations by local legislative bodies.

KRS 100.183[1] provides that the Comprehensive Plan –

“shall serve as a guide for public and private actions and decisions to assure the development of public and private property in the most appropriate relationships.  The elements of the plan may be expressed in words, graphics or other appropriate forms. They shall be interrelated, and each element shall describe how it relates to each of the other elements.” 


The General Assembly prescribed a statutory procedure for adoption of a Comprehensive Plan and minimum statutory elements for each comprehensive plan, which will be discussed in Section D below.


Prior to the adoption of a Comprehensive Plan, each planning unit must conduct “research, analysis and projections”, which support “all elements” of the Comprehensive Plan.  Those elements are set forth in KRS 100.191 include:

  • Analysis of present and future population trends;
  • Present and future economic forecasts;
  • Research and analysis of the community needs for existing land and building use; transportation and community facilities; identification and mapping of agricultural lands of statewide importance; and analysis of community land use needs on those lands; and
  • Additional information, which the Planning Commission believes, will serve the purposes of the Comprehensive Plan.


Prior to adoption of its 2000 Comprehensive Plan, the Louisville and Jefferson County Planning Commission conducted the “research” required by KRS 100.191.  That research was summarized in Table 1 of the Appendix to Jefferson County’s Cornerstone 2020 Comprehensive Plan (“Cornerstone 2020”) [see Appendix B].

The Kentucky Supreme Court found that a new countywide “planning unit”, which included all of Boone County and three Boone County cities, failed to follow the required statutory procedures for adoption of a new Comprehensive Plan and new zoning regulations.  The Supreme Court held that the Comprehensive Plan and all Boone County zoning ordinances were “void”, because of the failure of the planning unit to (1) follow the prescribed statutory procedure for adoption of the Comprehensive Plan, including the failure to complete the research, analysis and projections required by KRS 100.191, before adoption of the Comprehensive Plan and zoning regulations and (2) hold the public hearing on the plan elements required by KRS 100.197.  See, Creative Displays, Inc. v. City of Florence, Ky., 602 S.W.2d 682 (1980).

The Creative Displays opinion cited Hines v. Pinchback-Holloran Volkswagen, Inc., Ky., 513 S.W.2d 492 (1974) for the principle that the courts have “consistently construed the language of Chapter 100 strictly.”  Coincidentally, Hines previously held that an amendment to a Comprehensive Plan could not be adopted without the research requirements of KRS 100.191 above and a public hearing.


After a planning unit has completed the obligatory “research” requirements for a Comprehensive Plan mandated by KRS 100.191, the next procedural step is adoption of a statement of “goals and objectives”.  The specific procedure for adopting the required “statement of goals and objectives” will be outlined in Section E below.  By law each element of the Comprehensive Plan must be interrelated, and each element shall describe how it relates to the other elements.  KRS 100.183.

At a minimum, KRS 100.187 requires the inclusion of four separate elements, which must be part of every Comprehensive Plan.  The KRS 100.187 elements are:

(1)        A statement of goals and objectives, which shall serve as a guide for the physical development and economic and social well-being of the planning unit;

(2)        A “land use element,” which shall show proposals for the most appropriate, economic, desirable and feasible patterns for the general location, character, extent and interrelationship of the manner in which the community should use its public and private land at specified times as far into the future as is reasonable to foresee.  Such land uses may cover public and private, residential, commercial, industrial, agricultural and recreational land uses.

(3)        A “transportation plan element” for highways and streets; railways; airports; waterways and terminals for people, goods or vehicles.

(4)        A “community facilities element,” which may include parks, schools, libraries, churches, hospitals, medical facilities, utilities, fire stations, police stations, jails and other public buildings.


If in the judgment of the Planning Commission “additional elements” are needed, they may be included.  The General Assembly suggested additional elements could include community renewal, housing, flood control, pollution, conservation, natural resources, historic preservation and other programs, as deemed necessary by the Planning Commission.  See KRS 100.187(5).


Since approval of Kentucky’s Land and Zoning Act in 1966, the outcome of a number of appellate opinions has hinged on the required statutory scheme for adoption of the Comprehensive Plan by a planning unit.  The correct procedure for adoption of the Comprehensive Plan is now, for the most part, settled.  The case of City of Lakeside Park v. Quinn, Ky., 672 S.W.2d 666 (1984) settled the issue of which public body was responsible for adoption of particular parts of the Comprehensive Plan.  Although it is the duty of the Planning Commission to consult with all public officials, agencies, utility companies and other organizations concerning preparation of the “statement of goals and objectives”, as well as other plan elements, it is mandatory after approval of the “statement of goals and objectives” that each legislative body and the fiscal court in the planning unit consider, amend or adopt the Planning Commission’s “statement of goals and objectives.”  No public hearing on “the statements of goals and objectives” by the Planning Commission is required, although one is recommended.  This is contrasted with adoption of the other plan elements for which a public hearing is required by KRS 100.197.  The City of Lakeside Park opinion and KRS 100.193 provide that after approval of the “statement of goals and objectives” of the Comprehensive Plan, the required “elements” of the Comprehensive Plan may be adopted by the Planning Commission without additional approval by the legislative bodies composing the planning unit (This is not true in Jefferson County where legislative approvals are required.  See KRS 100.137(2)).  In jurisdictions with zoning laws, one of the key zoning functions and powers of the Planning Commission is adoption of the Comprehensive Plan.

In adopting “Cornerstone 2020,” the 2000 Comprehensive Plan for Jefferson County, the Planning Commission, Jefferson Fiscal Court and all Jefferson County cities of the first four classes were involved in adopting the new Comprehensive Plan in accordance with KRS 100.137(2).  After completion of the mandatory research and analytical work, Jefferson County’s Planning Commission in 1996 drafted and submitted to the Jefferson Fiscal Court and all cities with zoning authority a “statement of goals and objectives.”  Fourteen separate legislative bodies studied and adopted those goals and objectives in 1997. Thereafter, the Planning Commission, after consultation with local governments, developers, neighborhood representatives and interested parties, prepared additional “draft plan elements,” which were the subject of a public hearing in the fall of 1999.  Eventually, the Planning Commission approved a revised version of the plan elements, which was thereafter submitted to the Jefferson Fiscal Court and 13 cities of the first through fourth class, which all voted to approve the Cornerstone 2020 Comprehensive Plan. This procedure was required by KRS 100.137(2), which governs adoption of the Comprehensive Plan in Kentucky counties containing a city of the First Class.  The Cornerstone 2020 Plan became effective on June 16, 2000.

SECTION F.                             VOTING REQUIREMENTS.

KRS 100.171(1) requires that a “simple majority of the total membership” of the Planning Commission approve the adoption or amendment of a Comprehensive Plan.  This is different than most votes by the Planning Commission, which require a simple majority vote by all members present provided there is a quorum present.


Kentucky’s 1966 Planning and Zoning Act, requires each Planning Commission to conduct periodic reviews of its existing Comprehensive Plan at least once every five (5) years.  KRS 100.197(2).  These periodic reviews shall be in light of “social, economic, technical, and physical advancements or changes” in the community.  The Planning Commission shall either amend or readopt plan elements only after a public hearing before the Planning Commission.  KRS 100.197(1).  As part of this process, the Planning Commission should consider whether the original research is still valid.  If the Commission “finds” that the original research is still valid, no additional research is necessary.

As part of the review process, one of the first considerations for the Commission is whether in the amendment to the “goals and objectives statement” is proposed, and if it is, the revised “goals and objectives statement” shall be submitted to the Fiscal Court and legislative bodies in the planning unit for approval or amendment.

The Lexington-Fayette Urban County Council (“the Council”) denied a request to rezone 18 acres of land located on the east side of Nicholasville Road in Lexington from apartment zones to a highway service business zone to allow the development of a shopping center.  The property was bordered of the east by single-family and multi-family residences.  On the west side of Nicholasville Road were a regional mall and several automobile dealerships.  The proposed shopping center did not conform to Fayette County’s 1988 Comprehensive Plan.  The developer appealed to the Kentucky Court of Appeals the Fayette Circuit Court’s affirmance of the Council’s denial of its zone change request in Gramex Corp. v. Lexington-Fayette Urban County Gov’t., Ky. App., 973 S.W.2d 75 (1998).  One of the developer’s arguments on appeal was that the 1988 Comprehensive Plan had not been updated every five years as required by KRS 100.197 and therefore the Council’s reliance upon the 1988 Comprehensive Plan was “arbitrary”.  Evidence proved that the research data on which the 1988 Comprehensive Plan was premised had been collected in 1978 for Fayette County’s 1980 Comprehensive Plan.  As authorized by KRS 100.197(1), the Planning Commission in adopting the 1988 comprehensive Plan apparently had concluded that the 1978 research was “still valid.”  Although the Court of Appeals noted a few areas of the 1978 research may have been “somewhat off-base”, it held that such a deficiency  would not invalidate the entire research report.  More importantly, the opinion held that the failure of the Planning Commission to update or readopt the 1988 Comprehensive Plan would not support a reversal of the Council’s denial of the rezoning request.  At p.78, the court held,

“Furthermore, the statute itself provides an exclusive remedy for a land owner aggrieved by the Planning Commission’s alleged failure to conduct the mandatory five-year review.  See KRS 100.197(2).  Since Gramex did not file suit in accordance with that statutory provision, it may not now seek to have the 1988 Comprehensive Plan declared deficient.”


KRS 100.197(2) permits any property owner in a planning unit to file suit in Circuit Court to require the Planning Commission to review and update the local Comprehensive Plan.  If the Circuit Court finds there has been a failure to review the Comprehensive Plan, as required by KRS 100.197, the Circuit Court may set a schedule and deadline of not less than nine (9) months for the completion of that review.  Only if the Circuit Court subsequently finds that the Planning Commission failed to perform the review according to the Court’s schedule or deadline, may the Circuit Court invalidate the existing Comprehensive Plan.  KRS 100.197(2).

Approximately six months after the Court of Appeals’ decision in the Gramex case, it considered another appeal by a developer who was proposing to rezone property located on the east side of Nicholasville Road near Fayette Mall for a planned shopping center.  This proposal was not in agreement with Fayette County’s Comprehensive Plan, which provided for residential property only on the east side of Nicholasville Road at this location.  The Court of Appeals in Fritz v. Lexington-Fayette Urban County Gov’t at p. 460 affirmed the decision of the Fayette Circuit Court’s holding that even though the Comprehensive Plan may not have been timely updated, that failure to update did not make “the refusal to rezone arbitrary.”  Citing KRS 100.197(2), the opinion held that the exclusive remedy for the Planning Commission’s failure to update its plan every five years was to seek an order of the local Circuit Court to require a review and/or update of the plan in accordance with KRS 100.197(2).


All amendments to the planning unit’s Comprehensive Plan require the Planning Commission and the legislative bodies, that are part of the planning unit, to follow the same procedures, as appropriate, as were used in the development of the original plan.  Those statutory schemes are outlined above.  The leading case on this subject is Hines v. Pinchback-Holloran Volkswagen, Inc., Ky., 513 S.W.2d 492 (1974).  The Hines opinion held that amendments to a Comprehensive Plan could not be adopted without complete compliance with the statutory research requirements of KRS 100.191, and a public hearing as required by KRS 100.197.  At p.493, the Hines court held,

“[T]he procedure for amendment of the comprehensive plan is the same as for the adoption of the original plan.  KRS 100.197.”


In Hines the applicant sought to rezone 31 acres in Fayette County for an auto mall..  The evidence showed that the subject property was designated residential by the Comprehensive Plan.[2]

In recommending the rezoning of the property, the Planning Commission stated its recommendation was “made subject to the neighborhood plan being amended showing this area suitable for business uses.”  Counsel for the Fiscal Court acknowledged in Court pleadings that this recommendation by the Planning Commission was an attempt to amend the Comprehensive Plan and thereafter, the Fiscal Court found that the zone change proposal was in agreement with the amended Comprehensive Plan.  Kentucky’s highest court, in remanding the case to the Fayette Circuit Court for further proceedings invalidated any procedure used by a Planning Commission to amend its Comprehensive Plan for limited purposes through a “neighborhood development plan” enacted on the same day as the hearing for a proposed zone change.  See KRS 100.197.


When an owner or developer acquires property, which is correctly zoned for a proposed development, the Comprehensive Plan will not come into play and is not critical to the development plan.  However, when rezoning or a map amendment is a necessary condition precedent to develop property, the owner or developer must consider the Comprehensive Plan’s provisions in deciding whether a rezoning request is both appropriate and feasible.  In the  Hardin County v. Jost at p.595, the Kentucky Court of Appeals held:

“[A] person investing in the property ought to be able to look at the comprehensive plan and determine with some degree of reasonable certainty the use to which property can be put before it is purchased.”


If the zoning “blueprint” or “road map” forecast by the Comprehensive Plan is a strong “match” with the proposed use, the rezoning process is generally less difficult.  KRS 100.213 authorizes map amendments to the zoning maps where there is a “finding” that the map amendment is in agreement with the adopted Comprehensive Plan.  In the absence of such a finding of agreement with the Comprehensive Plan the Fiscal Court, legislative body or Planning Commission must find, according to KRS 100.213(1), one or both of the following apply:

(a)                That the existing zoning classification given the property is inappropriate and that the proposed zoning classification is appropriate;

(b)               That there have been major changes of an economic, physical or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.


Over the last 30 years, Jefferson County has had three different types of Comprehensive Plans.  In 1970, Jefferson County adopted a Comprehensive Plan in a map form with written guidelines.  The mapped Comprehensive Plan color-coded all areas of Jefferson County for development as a single family residential, multi-family residential, commercial, industrial, shopping center and other uses.  Review of that map plan allowed a quick analysis of whether a proposed use requiring a zone change conformed to the Comprehensive Plan.  Critics of the 1970 plan believed it was inflexible.  Proponents of the plan touted its certainty.

In 1979 Jefferson Fiscal Court and all Jefferson County cities with zoning powers approved a new Comprehensive Plan, which criticized the previous “map approach” as “restrictive in that it envisions only one potential use for every piece of land in the County.”  The key portions of Jefferson County’s 1979 Comprehensive Plan were the “principles section”, which contained policies, goals, objectives and standards, which applied generally into residential, commercial, industrial, agricultural, community facilities, transportation, and historic preservation developments.

Disputed zoning cases to which the 1979 Comprehensive Plan applied typically related to a proposal’s compliance with relevant guidelines.  There were 129 specific and separate guidelines which related to the following topics: Environment, Utilities, Transportation, Residential, Industrial, Commercial, Open-space, Community Facilities, and Government.  Ordinarily, the Planning Commission staff would review each zone change application against the Comprehensive Plan’s guidelines and make preliminary findings in a written staff report that the application apparently conformed with or apparently did not conform with relevant guidelines.  Occasionally, the staff review and report would indicate that during the public hearing the Applicant should present “additional information” regarding a particular guideline.  Although absolute adherence to each relevant guideline was never feasible, the Planning Commission’s recommendation to legislative bodies often turned on the application’s agreement or disagreement with specific guidelines of the Comprehensive Plan.


The case law of Kentucky and KRS 100.213 require that before any rezoning request can be granted, there must be a “factual finding” by the Planning Commission or the legislative body or Fiscal Court (1) that the proposed development conforms with the planning unit’s adopted Comprehensive Plan, (2) that the existing zoning classification is inappropriate and the proposed zoning classification is appropriate, or (3) that there have been major changes in the area, which were not anticipated by the current Comprehensive Plan which have substantially altered the basic character of the area.  See, Fritz v. Lexington-Fayette Urban Co. Gov’t., at p. 458.

In Bryan v. Salmon Corp., Ky. App., 554 S.W.2d 912 (1977), the Court found that evidence sufficient to meet one of the three criteria for rezoning under KRS 100.213 must be decided on a case by case basis, that rezoning was a “legislative matter rather than a judicial one”, and there must be a “compelling need” for the rezoning if it was based on changes in the “economic, physical or social nature of the area.”

Two recent Court of Appeals opinions 21st Century Development Co., LLC v. Watts, Ky. App., 958 S.W.2d 25, 27 (1997) and  Fritz v. Lexington-Fayette Urban Co. Gov’t. et al., at 459, each contained the following statement:

“Zoning changes are allowed if they are in accordance with the comprehensive plan, KRS 100.213, or if the plan is out of touch with reality, KRS 100.213(1)(a) & (b)… and there is a compelling need for the proposed change.”


Many real estate professionals believe that a rezoning should be permitted, if the zone change proposal conforms to the adopted Comprehensive Plan.  Language in the 21st Century Development Co. LLC case and the 1999 opinion of Hougham v. Lexington-Fayette Urban Co. Gov’t., Ky. App., 29 S.W.3d 370 (1999) may change the way zoning cases are practiced and presented.

21st Century Development Co. held that the Franklin County Planning Commission erred when it excluded relevant information from consideration “when it narrowed its decision to depend solely on whether or not the requested zoning map amendment was in accordance with the recommended land use element of the comprehensive plan.”  The Court of Appeals at p. 27 went on to hold,

“We agree with the circuit court that a planning commission does not have to rezone solely because a request is in accordance with a comprehensive plan or its recommended land use element.”


Language in the 21st Century Development Co, LLC. opinion is conflicting.  After first stating that a zone change  should be approved if it is in accord with the Comprehensive Plan, the opinion continued at p.28:

“After the planning commission addresses the staff concerns and those of the general public at the hearing, it will be in a position to make findings which would allow the current rezoning, or delay the rezoning until other developments take place — which is really a plan for future development.”


Perhaps the 21st Century Development Co, LLC. case was a barometer of where the Court of Appeals  was headed when it decided Hougham.  In Hougham, the applicant for a zone change sought to rezone 40 acres of agricultural urban land to light industrial.  The Fayette County Planning Commission, after two public hearings, found that the proposed light industrial use was in agreement with the land use element of the Comprehensive Plan.  The Planning Commission recommended rezoning and several conditional zoning restrictions to address impact on surrounding properties.

The city-county council held a subsequent hearing at which the developer elected not to introduce any testimony; relying instead solely upon the Planning Commission’s favorable recommendation to rezone.  The rezoning opponents introduced evidence regarding an excessive inventory of light industrial property in Fayette County, traffic problems, drainage problems and the negative impact of the proposal on nearby horse farms.  The city-county council based its denial on its own findings of fact.  In a unique and rare agreement, all of the parties in the litigation which followed, agreed that the zone change proposal was in agreement with the Comprehensive Plan.  The Court of Appeals opinion, which affirmed the opinion of the Fayette Circuit Court and sustained the city-county council’s denial of the rezoning, contained the following language at pp. 372-373:

“However, just because the zone change request complies with the comprehensive plan or meets the criteria set forth in KRS 100.213(1)(a) or (b), does not mean the zone request must be granted.  The fiscal court still has discretion in reviewing and determining each zone change application.  The governing body is given authority to decide each application on its own merits and its impact on the community.  There is no specific, magic formula, which is applied to the determination of each zone change request. The administrative body must comply with all statutory requirements set forth in KRS Chapter 100 as to notice, hearing, findings of fact, etc.  If it has followed all the statutory requirements, it can make its decision to grant or deny the zone change request.  Making these decisions is the function of appointed and/or elected officials.  Their responsibilities include looking at the “big picture” and making “tough decisions.””


The Hougham opinion states the Lexington City-County Council had cited seven specific reasons for denying the zone change.  None of the council’s reasons are included in the Hougham opinion.

It is recommended that practitioners review these cases carefully and develop an appropriate strategy for presentation of rezoning cases.  Parties involved in rezoning should, when appropriate, consider seeking a stipulation that a proposed rezoning conforms to the Comprehensive Plan.  There may be good reasons in Hougham, why the developer chose not to call witnesses to testify before the legislative body.  Ordinarily introduction of evidence and testimony is  suggested during any hearing in the rezoning process.

Until the Kentucky Supreme Court resolves the conflicting opinions by the Kentucky Court of Appeals, those involved in zoning cases will cite the Hougham case for the proposition that the legislative body has the authority on a case by case basis to deny a zone change application, even though it fully conforms with the Comprehensive Plan.  Likewise, proponents of the zone change application will argue that zone change application must be approved  if it conforms to the local  Comprehensive Plan.

One key consideration is that KRS 100.213(1)(a) and (b) apply only “in the absence” of a finding that the “map amendment is in agreement with the adopted Comprehensive Plan.”

SECTION K.                           CORNERSTONE 2020

Effective June 16, 2000, the Louisville and Jefferson County Planning Commission adopted Cornerstone 2020, which applies throughout Jefferson County, Kentucky.  Cornerstone 2020 did not abolish existing zoning regulations in Jefferson County.  However, it does contemplate development of second tier of districts in addition to the existing zoning “use district”. Those new districts, which must be adopted by each legislative body as part of a new Land Development Code, will be known as “Form Districts”.  Attached as Appendix C is a copy of the Preamble of Cornerstone 2020, which gives an overview of the anticipated process.  Cornerstone 2020, approved by the Planning Commission, did approve as Core Graphic 1 a color-coded map of “community forms.”  Core Graphic 1 established 13 separate categories of “community form” areas, which include:

  • Downtown
  • Neighborhood
  • Traditional Neighborhood
  • Village
  • Town Center
  • Regional Center
  • Suburban Marketplace Corridor
  • Traditional Marketplace Corridor
  • Suburban Workplace
  • Traditional Workplace
  • Campus
  • Special District
  • Future Form Area


Core Graphic 1 specifically states it is to be used “only in conjunction with and as interpretive aid to the goals, objectives and plan elements.”

The adoption of Cornerstone 2020 anticipated that each legislative body would create “Form Districts” which would be geographically mapped with distinct boundaries and that each legislative body would adopt a new Land Development Code, which thereafter would apply to the “Form Districts.”  It was further anticipated that Section 8.1 of the current Development Code pertaining to “Plan Certain Review” will be amended to require that a statement be filed with each zone change application justifying how and why the proposed development is compatible with the Community Form in which the development is proposed to be located.




[1] Appendix A contains the complete text of all Kentucky statutes cited below.

[2] The Appeals Court opinion was critical of the failure to include in the record of the Circuit Court and the Appeals Court a copy of the Comprehensive Plan.