concurring.
I concur with the result reached by the majority opinion in this case.
First, I agree that Taylor is not entitled to the building permit, even though a portion of the ordinance is unconstitutional. Section 18-36 of the Lawrenceburg City Ordinance relating to “local” business districts provides an itemized list of businesses which are permitted within the district. Subsection (a)(4) then provides that the Board of Adjustment may grant “special exceptions” for other retail businesses “if it determines that the proposed use would not be detrimental to the development of the district as a retail shopping area”. The majority opinion of this Court, and the opinion of the trial court, are clearly correct in holding that the provisions of subsection (a)(4) violate Section 2 of the Kentucky Constitution because of the absence of any standard by which the “special exceptions” could be granted. If subsection (a)(4) is stricken from the ordinance, a retail liquor store cannot be a permitted use within a “local” business district. A retail liquor store would be a permitted use only in a “central business district” under Section 18-37 of the ordinance. Consequently, there is no total prohibition of an otherwise lawful business such as was presented in U.S. Mining & Exploration Natural Resources Co. v. City of Beattyville, Ky., 548 S.W.2d 833 (1977). I agree with the majority opinion that the invalidity of subsection (a)(4) does not entitle Taylor to the building permit.
Second, I agree with so much of the majority opinion as holds that a “special exception”, authorized by subsection (a)(4) of Section 18-36, is in fact a “conditional use” authorized under Chapter 100 of the Kentucky Revised Statutes. Under KRS 100.237, a Board of Adjustment has the power to grant conditional use permits only for those uses for which are “specifically” named in the zoning regulations “which may be suitable only in specific locations in the zone”. Section 18-36 of the Lawrence-burg City Ordinances does not specifically name the uses for which a “special exception” or “conditional use” permit can be granted within a local business district. Under subsection (a)(4), a condition use permit could be granted for “all offices and other retail businesses or services” not specifically authorized in a local business district. As defined by KRS 100.111(5), a “conditional use” means “a use which is essential to or would promote the public health, safety or welfare in one or more zones, but which would impair the integrity and character of the zone in which it is located, or in adjoining zones, unless restrictions on location, size, extent and character of performance are imposed in addition to those imposed in the zoning regulation”. I conclude that the provisions of subsection (a)(4) of Section 18-36, relating to the granting of “special exceptions”, do not comply with the standards for granting conditional use permits imposed by KRS 100.237 and KRS 100.111(5).
Because subsection (a)(4) of Section 18-36 fails to meet the statutory requirements for granting conditional use permits, I agree with the majority opinion that the Board of Adjustment had no authority to grant Taylor’s request for the building permit. A retail liquor store was not a permitted use within a local business district, and the ordinance provided the Board with no valid authority to grant the building permit as a “conditional use”. For these reasons, I concur in the majority opinion.