VANCE N. TRUE and MIDDY M. TRUE v. DANVILLE-BOYLE COUNTY BOARD OF ADJUSTMENTS
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RENDERED:
October 19, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-002046-MR
VANCE N. TRUE and MIDDY M. TRUE
APPELLANTS
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
CIVIL ACTION NO. 99-CI-00500
v.
DANVILLE-BOYLE COUNTY BOARD OF ADJUSTMENTS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Vance N. True and Middy M. True appeal from a
judgment1 which affirmed a decision of the Danville-Boyle County
Board of Adjustments that denied the Trues’ request for a variance
in set back lines on a lot in the Old Bridge Subdivision on which
the Trues had begun constructing a swimming pool complex.
The Trues are the owners of two lots in the Old Bridge
Subdivision.
About nine years ago, the Trues built a home on one
of the lots.
Eventually, the Trues decided to build a swimming
pool complex on the other lot, and in late May or early June 1999,
1
The judgment was designated variously as an “order” and
a “judgment” by the circuit court.
construction began on that project.
inspector
visited
the
site
and
Subsequently, a plumbing
approved
the
plumbing
work,
including the connection of the poolhouse plumbing system to an
existing septic tank.
When the complex was approximately 90 percent complete,
about the first of September 1999, the builder of the pool complex
contacted the electrical inspector for final inspection of the
project.
At this juncture, the electrical inspector advised the
Trues that a building permit had not been obtained.
When the Trues
sought a building permit they were informed that one could not be
issued until a variance had been obtained because the swimming pool
complex
had
been
built
beyond
the
required
setback
lines.2
Construction was halted and the Trues initiated proceedings before
the Board of Adjustments seeking a variance to allow them to
complete the project.
On October 21, 1999, the board held a public hearing to
consider the True’s application for a variance.
was heard, the board denied the application.
After testimony
The decision of the
board was appealed to Boyle Circuit Court which affirmed the
board’s decision on August 2, 2000.
On appeal, the Trues contend that: (1) the board’s
decision was arbitrary, and (2) the evidence presented before the
2
The setbacks required by ordinance were 35 feet across the
front of the property and 8 feet for the side lot lines.
Restrictions applicable to the subdivision in which the pool
complex was located required a 50-foot setback from the street on
which the property fronted. The swimming pool complex extended to
within 10 feet of the front line and extended to within 7 feet for
the first 30 feet of a side lot line.
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board satisfied the requirements of Kentucky Revised Statute (KRS)
100.243.3
* * * * *
Unfortunately, the board has not filed an appellate
brief.
The Trues’ brief was filed on November 27, 2000.
On
December 27, 2000, the board moved for additional time to file its
brief or, alternatively, to allow it to use the brief it had filed
in the circuit court as its appellate brief.
this
Court
granted
the
board’s
motion
rendering moot the alternative motion.
On January 22, 2001,
for
additional
time,
However, even after we
granted its motion for additional time, the board still did not
file a brief.
If the appellee’s brief has not been filed within the
time allowed, the court may: (i) accept the appellant’s
statement of the facts and issues as correct; (ii)
reverse the judgment if appellant’s brief reasonably
appears to sustain such action; or (iii) regard the
appellee’s failure as a confession of error and reverse
the judgment without considering the merits of the case.4
In this case, we are not inclined to penalize the board
by regarding its failure to file a brief as a confession of error.
Under the circumstances, we choose to accept the statement of facts
and issues submitted by the Trues as correct and to decide this
case on its merits.
3
Text, infra.
4
Ky. R. Civ. P. (CR) 76.12(8)(c).
-3-
* * * * *
The
Board
of
Adjustment
is
an
administrative
board
performing specified legislative functions relative to
zoning.
Power
is
delegated
to
the
board
by
the
legislature. The board, consistent with that delegation,
must conduct a trial-type hearing and make adjudicative
findings of fact to support its legislative decision and
to afford a basis for judicial review.
In making these
findings, the board is not held to strict judicial
standards. However, the findings must contain sufficient
information to afford a meaningful review as to the
arbitrariness of the board's decision.5
The Kentucky Constitution condemns arbitrary power.6 “An
administrative decision granting relief to one having the burden of
proof
must
evidence.”7
be
supported
by
findings
based
upon
substantial
Substantial evidence is that which when taken alone or
in light of all the evidence has sufficient probative value to
induce conviction in the minds of reasonable men.8
“Without such
support, the decision is arbitrary and cannot weather judicial
review.”9
However, “the failure to grant administrative relief to
5
Bourbon County Bd. of Adjustment v. Currans, Ky. App., 873
S.W.2d 836, 838 (1994)(citations omitted).
6
Ky. Const. § 2; and see id.
7
Bourbon County Bd. of Adj., supra, n. 3, at 838.
8
See Kentucky State Racing Comm’n v. Fuller, Ky., 481 S.W.2d
298, 308 (1972).
9
Bourbon County Bd. of Adj., supra, n. 3, at 838.
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one carrying the burden [in this case, the Trues] is arbitrary if
the record compels a contrary decision in light of substantial
evidence therein.”10
Typically, when an applicant fails to obtain the relief
sought
from
the
administrative
board,
record
“attention
in
should
search
of
be
directed
compelling
to
the
evidence
demonstrating that the denial of the relief sought was arbitrary.
The argument should be that the record compels relief.”11
However, mindful that the failure to grant administrative
relief to one carrying the burden of proof in the face of evidence
that compels a contrary decision is one example of arbitrary power,
the board can exercise its power arbitrarily in other ways.
If the
board does not afford due process to an applicant for a variance,
then any action taken by the board is arbitrary.12
“The board shall have the power to hear and decide on
applications for variances.
The board may impose any reasonable
conditions or restrictions on any variance it decides to grant.”13
The board is guided in its determination of whether to grant a
variance by Kentucky Revised Statutes (KRS) 100.243 which provides
that:
(1)
Before any variance is granted, the board must find
that the granting of the variance will not adversely
10
Id. (citation omitted).
11
Id.
12
See Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753,
755 (1969)(holding that since procedural due process was not
afforded, the action taken by the board was arbitrary).
13
Ky. Rev. Stat. (KRS) 100.241.
-5-
affect the public health, safety or welfare, will not
alter the essential character of the general vicinity,
will not cause a hazard or a nuisance to the public, and
will not allow an unreasonable circumvention of the
requirements of the zoning regulations. In making these
findings, the board shall consider whether:
(a)
The
requested
variance
arises
from
special
circumstances which do not generally apply to land in the
general vicinity, or in the same zone;
(b) The strict application of the provisions of the
regulation would deprive the applicant of the reasonable
use of the land or would create an unnecessary hardship
on the applicant; and
(c) The circumstances are the result of actions of the
applicant taken subsequent to the adoption of the zoning
regulation from which relief is sought.
(2)
The board shall deny any request for a variance
arising from circumstances that are the result of willful
violations of the zoning regulation by the applicant
subsequent to the adoption of the zoning regulation from
which relief is sought.
Following the receipt of evidence by the board, its
attorney, Kevin Nesbitt, stated the oral motion upon which the
board voted as follows:
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[A] variance may be granted when compliance with Section
423.11 through .14,14 compliance with those sections has
been
demonstrated,
including
special
conditions
and
circumstances that literal interpretation would de[p]rive
the applicant of rights commonly enjoyed by [o]the[r]
property
conditions
[in
do
the
same
district]
not
result
from
and
the
the
actions
special
of
the
applicant taken after adoption of the zoning ordinance,
and it will not confer on the applicant any special
privileges, and in this case the circumstances do arise
from
the
subsequent
result
to
of
the
actions
of
the
applicant
taken
adoption
of
the
current
zoning
regulations, and therefore the application should be
denied.
The first portion of the motion simply reiterates the
text of the local zoning ordinance affecting applications for
variances, but the last phrase, “in this case the circumstances do
arise from the result of actions of the applicant taken subsequent
to the adoption of the current zoning regulations, and therefore
the application should be denied[,]” is the material portion of the
motion upon which the board voted to deny the Trues’ application
for a variance.
The circuit court was faced with the argument that the
board had based its decision on an erroneous interpretation of
14
“Section 423.11 through 14” refers to a local ordinance
concerning variances and the conditions and procedures governing
applications.
-7-
section
423.13
of
the
local
ordinance.
Beyond
the
other
requirements of the ordinance, it must be demonstrated to be true,
under
section
423.13,
“[t]hat
the
special
conditions
and
circumstances do not result from actions of the applicant taken
after adoption of this Zoning Ordinance, or previous applicable
Zoning Ordinances[.]”
According to the record, the Trues had not
obtained a building permit before they applied for a variance.
The
board
clearly
perceived
that
this
fact
constituted
a
circumstance that resulted due to actions of the applicants taken
subsequent to the adoption of the current zoning regulations.
In
response to this argument, the Trues argued, and the circuit court
agreed, that failure to get a permit should not be conclusive in
refusing to grant a variance.
The failure to obtain a building permit is not the type
of “special circumstance” enunciated in KRS 100.243.15
“The board
shall deny any request for a variance arising from circumstances
that are the result of willful violations of the zoning regulation
by the applicant[.]”16
The Trues admit, the obvious:
that there
is evidence that they were negligent in their failure to obtain a
building permit.
However, no evidence in the record suggests the
violation complained of, that is, the failure to obtain a building
permit prior to construction, was willful.
15
Therefore, there is no
For an example of a “special circumstance” which did not
generally apply to land in the vicinity, see Menefee v. Board of
Adj. of City of Taylor Mill, Ky., 494 S.W.2d 519 (1973), where the
Court determined that evidence of a large sinkhole established an
extraordinary situation or condition.
16
Id. (emphasis supplied).
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basis
for
the
denial
of
the
variance
in
the
case
under
consideration for that reason.
The Trues argued below that the failure to grant the
requested variance would result in an unnecessary hardship and
practical difficulty.
The circuit court correctly observed that
the record reflected that the board considered the facts underlying
this argument and other relevant facts.
We agree with the circuit
court that this is but one factor17 to be considered under KRS
100.243.
Again, we note that in order to prevail on appeal, the
Trues must point to compelling evidence that demonstrates that the
denial of the relief they sought was arbitrary.
In other words,
they must demonstrate that the record, i.e., the evidence heard by
the board, compels relief.18
The evidence heard by the board does not demonstrate that
a variance is necessary because there are special circumstances
that apply to the lot at issue that do not generally apply to other
lots in the vicinity.
While the Trues will undoubtedly suffer a
hardship if the variance is not now granted, the hardship results
not from restrictions upon development of the lot, but from the
fact that they began and substantially completed construction of
the pool complex before obtaining a variance or a building permit.
In short, the evidence does not compel a finding that the
variance
should
have
been
granted.
The
board
did
17
KRS 100.243(1)(b).
18
Bourbon County Bd. of Adj., supra, n. 3, at 838.
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not
act
arbitrarily, and the circuit court properly upheld its decision not
to grant a variance.
The judgment is affirmed.
EMBERTON, Judge, CONCURS.
DYCHE, Judge, DISSENTS.
DYCHE, Judge, DISSENTING.
I must respectfully dissent.
The result herein is so very harsh; the appellants acted with such
good faith; apparently no neighboring property owners object to
appellants’ actions; the Board of Adjustment failed, after being
granted an extension, to file a brief.
opinion.
I cannot agree with this
I would reverse.
BRIEF FOR APPELLANTS:
NO BRIEF FOR APPELLEE
William L. Stevens
TAYLOR & STEVENS
Danville, Kentucky
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