SHELBY COUNTY PROPERTY OWNERS v. ICON PROPERTIES, LLC AND OTHER APPELLEES AS IDENTIFIED IN THE NOTICE OF APPEAL and GOLDEN CREEK FARMS, INC. v. ICON PROPERTIES, LLC AND OTHER APPELLEES AS IDENTIFIED
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RENDERED: FEBRUARY 9, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED: FEBRUARY 16, 2007; 2:00 P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000175-MR
SHELBY COUNTY PROPERTY OWNERS
ASSOCIATION, INC.
v.
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330
ICON PROPERTIES, LLC AND
OTHER APPELLEES AS IDENTIFIED
IN THE NOTICE OF APPEAL
AND:
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330
ICON PROPERTIES, LLC AND
OTHER APPELLEES AS IDENTIFIED
IN THE NOTICE OF APPEAL
AND:
APPELLEES
NO. 2005-CA-000197-MR
GOLDEN CREEK FARMS, INC.
v.
APPELLANT
NO. 2005-CA-000464-MR
APPELLEES
GOLDEN CREEK FARMS, INC.
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330 &
ACTION NO. 04-CI-00331
ICON PROPERTIES, LLC AND
OTHER APPELLEES AS IDENTIFIED
IN THE NOTICE OF APPEAL
AND:
APPELLEES
NO. 2005-CA-000294-MR
ICON PROPERTIES, LLC
AND OTHER CROSS-APPELLANTS AS
IDENTIFIED IN THE NOTICE OF APPEAL
v.
CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330 &
ACTION NO. 04-CI-00337 &
ACTION NO. 04-CI-00338
SHELBY COUNTY PROPERTY
OWNERS ASSOCIATION, LLC
AND:
CROSS-APPELLANTS
CROSS-APPELLEE
2005-CA-000449-MR
ICON PROPERTIES, LLC
AND OTHER CROSS-APPELLANTS
AS IDENTIFIED IN THE NOTICE
OF APPEAL
CROSS-APPELLANTS
-2-
v.
CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330 &
ACTION NO. 04-CI-00331
GOLDEN CREEK FARMS, INC.
AND:
CROSS-APPELLEE
2005-CA-000465-MR
ICON PROPERTIES, LLC
AND OTHER CROSS-APPELLANTS
AS IDENTIFIED IN THE NOTICE OF
APPEAL
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330 &
ACTION NO. 04-CI-00331 &
ACTION NO. 04-CI-00332 &
ACTION NO. 04-CI-00333 &
ACTION NO. 04-CI-00337 &
ACTION NO. 04-CI-00338 &
ACTION NO. 04-CI-00339 &
ACTION NO. 04-CI-00340
GOLDEN CREEK FARMS, INC.
AND:
CROSS-APPELLEE
NO. 2005-CA-000201-MR
AND
NO. 2005-CA-000462-MR
WESTERN SHELBY COUNTY ORGANIZED
FOR PRESERVATION, INC.
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APPELLANT/CROSS-APPELLEE
v.
APPEAL AND CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330
ICON PROPERTIES, LLC AND
OTHER APPELLEES/CROSS-APPELLANTS
AS IDENTIFIED IN THE NOTICE
OF APPEAL
AND
APPELLEES/CROSS-APPELLANTS
NO. 2005-CA-000202-MR
AND
NO. 2005-CA-000463-MR
SADDLEBRED FARMS OF SHELBY
COUNTY, LLC
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00330
ICON PROPERTIES, LLC AND
OTHER APPELLEES/CROSS-APPELLANTS
AS IDENTIFIED IN THE NOTICE
OF APPEAL
APPELLEES/CROSS-APPELLANTS
OPINION
REVERSING AND REMANDING
** ** ** ** **
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BEFORE:
HENRY, HUDDLESTON AND KNOPF, SENIOR JUDGES.1
HENRY, SENIOR JUDGE: ICON Properties, LLC, intending to build a residential
development called Saddle Ridge in Shelby County, Kentucky, filed two applications
before the Triple S Planning Commission (representing Shelby County and the cities of
Simpsonville and Shelbyville) requesting zoning-map amendments for property in Shelby
County located partially within the limits of the City of Simpsonville. Although the
owner of the property was Whistlestop Developers, LLC, the applications were filed by
ICON, the developer. Application 1 sought to re-zone a total of 131.74 acres within the
City of Simpsonville. That proposal requested that 51.01 acres be re-zoned from “A”
(Agricultural) to “R-2” (Low Density-Residential), and that 80.73 acres be re-zoned from
“A” to “R-4” (Multi-Family Residential). Application 2 requested re-zoning of 219.2
acres in Shelby County outside Simpsonville, seeking re-zoning of 59.3 acres from “A”
to “R-2”, and 159.9 acres from “A” to “R-4”.
The Commission held a public hearing on the proposed map amendments
on February 17, 2004. The hearing was transcribed, and statements were made both in
support of and in opposition to the amendments. Additional material was accepted for
filing in the record, both for and against, for ten days after the hearing. On the February
17 hearing date and during the ten-day period, the developer filed a total of ten “binding
elements” or “special conditions” whereby William L. Hysinger Sr., on behalf of ICON,
proposed adding specific features to the map amendment proposal. The features included
1
Senior Judges Michael L. Henry, Joseph R. Huddleston and William L. Knopf sitting as Special Judges
by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS
21.580.
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committing $300,000 to improve traffic conditions on U.S. Highway 60, limiting
certificates of occupancy, changing proposed apartment units to condominium units,
reducing the number of residential units for the development, adding landscaping, and
increasing the distance of the setback of buildings from U.S. Highway 60. The
Commission voted to approve both proposed zone-map amendments at its next scheduled
meeting on March 16, 2004, without additional discussion or testimony, and
recommended approval of the proposed amendments. The Simpsonville City
Commission and the Shelby County Fiscal Court, after conducting their own public
hearings, adopted the recommendations of the Commission. Shelby County Property
Owners Association, Inc. (SCPOA), Golden Creek Farms, Inc., Saddlebred Farms of
Shelby County, LLC and Western Shelby County Organized for Preservation, Inc.
(WSCOP) filed appeals pursuant to Kentucky Revised Statutes (KRS) 100.347. ICON,
Whistlestop Developers, LLC, Shelby County Fiscal Court and the Simpsonville City
Commission filed cross-appeals. The Shelby Circuit Court affirmed the decisions of
Simpsonville and Shelby County, and this appeal followed.
ARGUMENTS
The Appellants filed three joint briefs on behalf of SCPOA, Golden Creek,
Saddlebred and WSCOP. They argue that 1) the entire map-amendment request process
was void because ICON, the developer, filed the applications rather than Whistlestop, the
property owner; 2) the action of the Planning Commission violated due process in a
variety of ways; 3) the requirements of KRS 100.213 for a zone change were not met for
several reasons, including a lack of substantial evidence that the proposed changes agree
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with Shelby County’s Comprehensive Plan; 4) the Commission acted in excess of its
statutory powers; and 5) the Circuit Court committed reversible error by permitting
counsel for the developer, ICON, to write the opinion and judgment from which these
appeals are taken. The foregoing is a summary or overview of the principal arguments,
some of which are divided into multiple sub-parts. The Appellees filed cross-appeals
contending that the Appellants lack standing.
STANDARD OF REVIEW
In Kentucky, when reviewing actions of administrative agencies for error,
courts are generally limited to looking for “(1) action in excess of granted powers, (2)
lack of procedural due process, and (3) lack of substantial evidentiary support.”
American Beauty Homes Corp. v. Louisville and Jefferson County Planning
Commission, 379 S.W.2d 450, 456 (Ky. 1964). But, “[i]n the final analysis all of these
issues may be reduced to the ultimate question of whether the action taken by the
administrative agency was arbitrary.” Id. at 457. “By arbitrary we mean clearly
erroneous and by clearly erroneous we mean unsupported by substantial evidence.”
Danville-Boyle County Planning and Zoning Commission v. Prall, 840 S.W.2d 205, 208
(Ky. 1992).
VALIDITY OF APPLICATIONS
SCPOA argues that the application process was void from the beginning
because the applications for the zoning map amendments were filed by ICON, the
developer, rather than by Whistlestop Developers, LLC, the record owner of the property
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in question. The basis for this argument is SCPOA’s reading of KRS 100.211(1).
SCPOA relies upon the first sentence of the statute which reads:
(1) A proposal for a zoning map amendment
may originate with the planning
commission of the unit, with any fiscal
court or legislative body which is a
member of the unit, or with an owner of
the property in question.
SCPOA reads the foregoing sentence to require that no application for
zoning map amendments may be filed except by the listed entities. ICON responds that
Triple S has enacted regulations pursuant to KRS 100.2111 (at Shelby County Zoning
Regulations Section 1410) which are controlling rather than the provisions of KRS
100.211. ICON further asserts that ICON and Whistlestop Developers are so closely
related that Whistlestop, the owner, knew what happened at every stage of the process as
soon as ICON knew it. ICON argues that, even if there is a requirement that the property
owner must file the application, it is merely a procedural requirement, and the Appellants
have shown no prejudice from its violation.
The language of the pertinent portions of KRS 100.211 and KRS 100.2111
is identical except that KRS 100.2111 specifies that legislative bodies or fiscal courts
may, by regulation, enact their own provisions pertaining to the process by which zoning
map amendments are requested. Of course, any such regulations must incorporate the
basic due process provisions of the statutes. See KRS 100.2111. Shelby County’s
Regulation Section 1410, titled “Application for Amendment”, provides that in addition
to the entities listed in the quoted statutes, a proposal for an amendment may originate
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with “a person having written authorization from the owner of the subject property”.
Although much of the discussion in the briefs refers to “filing an application” for a
zoning map amendment, we note that the statutes in question, and Regulation Section
1410, refer instead to the origination of a proposal for such an amendment. The
permissive form “may” is used rather than the mandatory “shall”. Shelby County Zoning
Regulations, Article II, p. 4, “Terms and Definitions”. The Appellants make no argument
that ICON requested the map amendment without the property owner, Whistlestop’s
knowledge, consent and participation. In fact it is clear from the record that the opposite
is true. That being the case the Appellants can show no prejudice resulting from the
application form having been filed by ICON rather than by Whistlestop. See KRS
100.182; see also Minton v. Fiscal Court of Jefferson County, 850 S.W.2d 52 (Ky.App.
1992). We must always be mindful of the overriding principle that “judicial review of
administrative action is concerned with the question of arbitrariness.” American Beauty
Homes, 379 S.W.2d at 456 (emphasis in original). We do not find that the basic fairness
of the legislative process was violated here by ICON’s filing of the paperwork with the
full knowledge, consent and participation of the property owner. This is particularly true
in light of Shelby County’s Regulation Section 1410, which contemplates that a map
amendment proposal may originate with a non-owner who has the permission of the
owner.
DUE PROCESS
At the February 17 public hearing and in the ten days following, real-estate
developer William Hysinger Sr. wrote a letter and submitted a list of what he
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characterized as “binding elements” to the Planning Commission. The due-process
objections of the Appellants primarily revolve around the Commission’s acceptance of,
or reliance upon, these revisions to the applications submitted by ICON. The Appellants
contend that the Commission is required to act upon the application as it appeared in the
record prior to the hearing, or at least to hold an additional hearing on the amended
application. They also contend that Hysinger’s letter and “binding elements” (which are
referred to in ICON’s brief interchangeably as “special conditions”) constitute an
impermissible “ex parte” contact with the Commission.
The trial court relied upon Minton v. Fiscal Court of Jefferson County, 850
S.W.2d 52 (Ky.App. 1992) in holding that the Commission’s acceptance of the letter and
the binding elements did not constitute a due-process violation. The court also found that
the Commission kept the record open for ten days after the public hearing for filing of
additional material by all parties, and that information was submitted to the Commission
by both sides during that time. Although the question does not appear to have been
specifically raised in Minton as a due-process issue, it is clear that this Court was not
troubled by the fact that the proposal was amended after the public hearing. Minton at
52. We find no due-process violation, nor are we persuaded that there was an improper
“ex parte” contact, given the trial court’s finding that the record was open and that
additional material was submitted by both sides after the hearing. We do not find that the
material rendered the Commission’s action “so tainted as to make it unfair either to the
innocent party or to the public interest,” hence, we find no error in this regard. Hougham
v. Lexington Fayette Urban County Government, 29 S.W.3d 370, 374 (Ky.App. 1999).
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CIRCUIT COURT’S ADOPTION OF DRAFT OPINION SUBMITTED BY COUNSEL
We turn next to the Appellants’ contention that the circuit court’s adoption
in toto of a draft opinion submitted by counsel for ICON constitutes reversible error.
Kentucky’s courts have long held that such is “not good practice”. Kentucky Milk
Marketing and Anti-Monopoly Commission v. Borden Co., 456 S.W.2d 831, 834 (Ky.
1969). It appears from the record that the trial court solicited draft opinions from both
sides, and only ICON submitted a draft. We find no objection in the record on behalf of
any of the Appellants to the judge’s request for draft opinions, nor do we find a postjudgment motion citing this practice as a reason to vacate or set aside the judgment. “An
appellate court ‘is without authority to review issues not raised in or decided by the trial
court.’” Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006), quoting Combs v. Knott
County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940). Further, while the
practice of accepting draft opinions from counsel is disfavored, we have been directed to
no Kentucky authority2 holding that the practice constitutes reversible error.
FAILURE TO MEET STATUTORY REQUIREMENTS AND
ACTION IN EXCESS OF AUTHORITY
The gist of these arguments by the Appellants is that there is no evidence in
the record that the proposed map amendments comply with the requirements of Shelby
County’s Comprehensive Plan, and that “binding elements” such as those tendered by
2
The Appellants cited an unpublished opinion supporting this argument in violation of Kentucky Rules of
Civil Procedure (CR) 76.28(4)(c). The Rule has been amended effective January 1, 2007, to permit the
citation of unpublished opinions not as binding precedent, but for “consideration by the court.” When the
briefs were filed as well as at this writing the Rule prohibited the citation of unpublished opinions.
Accordingly, the unpublished opinion cited in this case was given no consideration.
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Mr. Hysinger are not permitted except where authorized by the Binding Element
Enforcement Act, codified in Kentucky at KRS 100.401-419.
Turning first to the question of whether statutory requirements were met,
we note that KRS 100.213 sets out specific factual findings which must be made before a
planning commission, legislative body or fiscal court may approve a zoning map
amendment. The relevant portion of the statute says:
(1) Before any map amendment is granted, the planning
commission or the legislative body or fiscal court must find
that the map amendment is in agreement with the adopted
comprehensive plan, or, in the absence of such a finding, that
one (1) or more of the following apply and such finding shall
be recorded in the minutes and records of the planning
commission or the legislative body or fiscal court:
(a) That the existing zoning classification given to 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.
The Commission issued two separate Findings of Fact, one for each of the
proposed map amendments. In each case the Commission found that the proposed
amendments agree with the Comprehensive Plan under the provisions of KRS
100.213(1), and that the existing zoning classification is inappropriate and the proposed
classification is appropriate under KRS 100.213(1)(a). However, the Commission’s
Recommendation to the legislative bodies stated that approval of the map amendments
was recommended “because it agrees with the Shelby County Comprehensive Plan”. The
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Recommendation noted that the proposed zoning is appropriate to the Saddle Ridge site
but did not mention whether the current zoning is inappropriate. The Simpsonville City
Commission, the Shelby County Fiscal Court and the Shelby Circuit Court all based their
decisions solely upon the Commission’s finding that the amendments complied with the
Comprehensive Plan, failing even to mention the KRS 100.213(1)(a) finding.
If the findings of the Commission are not based upon substantial evidence
they are arbitrary, and they fail to meet the requirements of KRS 100.213. See City of
Louisville v. McDonald, 470 S.W.2d 173, 179 (Ky. 1971). “Substantial evidence means
evidence of substance and relevant consequence having the fitness to induce conviction
in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d
367 (Ky. 1971).
ICON filed a copy of Shelby County’s most recent Comprehensive Plan
Map, and a map detail showing the area proposed for the Saddle Ridge development,
along with its map amendment proposals. The maps illustrate that of the area proposed
for Saddle Ridge, 59% was characterized in the Plan as “Low-Density Residential”, 28%
showed “No Use”, meaning that the Plan did not establish a suggested use for the area,
and 13% was characterized “Conservation”. ICON’s proposal would re-zone 240 of the
350 acres contained within Saddle Ridge from “A” to “R-4”.
The crucial question in this case as presented by the parties is whether the
density of residential units per acre permitted by “R-4” zoning complies with the
Comprehensive Plan. The position of the Appellants is that “R-4” zoning is inconsistent
with the Plan’s guideline designation of “Low-Density Residential” for the area. ICON
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submits that such zoning is permitted by the concept of “overall density” provided for in
the Plan. To resolve the question we must refer to the Plan and to the Shelby County
Zoning Regulations.
ICON’s development plan as submitted at the February 17 hearing provided
for 1,293 units on 350.9 acres, which, as calculated by ICON, equals 3.68 units per gross
acre. As revised by Mr. Hysinger’s “binding elements”, the plan called for 1,221 units in
the same area, which equals 3.48 units per gross acre.
The Comprehensive Plan, at page 100-101, defines “Residential
Categories”. “Low Density Residential” is described as follows:
Developments with a density of up to five units per gross
acre. Developments in these districts may utilize clustering
and planned unit development techniques for single family
dwellings. Some single family dwellings may be approved to
be attached or to utilize zero-lot-line concepts if such
concepts are a part of an approved planned unit development
wherein the overall density is consistent with the low density
residential standards.
In the Zoning Regulations at Article VI, Section 665, page 54, “Low
Density Residential”, designated “R-2”, lists principal permitted uses as single-family
dwellings, two-family dwellings, all other uses permitted in Residential Estates (RE) and
the Very Low Density Residential (R-1) district, and agricultural uses as permitted in the
R-1 district. The principal permitted uses in the “R-4”, Multi-Family Residential District,
are detached single-family dwellings, detached two-family dwellings, and “multi-family
dwellings including town houses, condominiums, rooming and boarding houses and
tourist homes”. The Comprehensive Plan at pages 100-101 describes Very Low Density
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Residential areas as not exceeding a density of 3.5 units per gross acre, and High Density
Residential (R-4) areas as having a density between 12 and 16 units per gross acre.
The parties agree that the Comprehensive Plan contemplates that the area
proposed for Saddle Ridge is to be Low Density Residential. The Appellants argue that
the highest density of residential units permitted by the Zoning Regulations in such as
area requires that it be zoned R-2, which allows no more than 5 units per gross acre.
ICON insists that the concept of “overall density” in a development permits R-4 zoning,
so long as the total number of units in the development divided by the acreage does not
exceed that which would be permitted by Low Density Residential zoning. In its “overall
density” argument ICON refers us to the Low Density Residential description quoted
above from the Comprehensive Plan. We could find no other reference to “overall
density” in the Plan or the Regulations. We note that the description states that
developments in Low Density Residential districts “may utilize clustering and planned
unit development techniques”, and that zero-lot-line concepts may be used in such
districts “if such concepts are a part of an approved planned unit development wherein
the overall density is consistent with the low density residential standards.” A Planned
Unit Development is described at page 12 of the Comprehensive Plan to “[p]rovide for
comprehensive development through Planned Unit Developments (PUDs) having
building site flexibility and/or a mixture of housing types.” In turn, the Zoning
Regulations at Article XII, “Planned Unit Developments”, pages 131-134, Section 1200
states:
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A Planned Unit Development (PUD) project which may
depart from the literal conformance with the regulations for
individual lot development may be permitted in those zones
where it is designated as a special use under the zone
regulations. All Planned Unit Development projects shall be
subject to the following regulations.
The regulations which follow set out specific procedures for applying for
PUDs, as well as other specific zoning standards. Section 1240 of the Regulations, titled
“Special Conditions”, requires the Planning Commission to “attach reasonable special
conditions to insure that there shall not be a departure from the intent of these
Regulations”. Presumably these are intended to be the kind of “special conditions”
submitted by Mr. Hysinger. We could find no other reference in the Regulations or in the
Comprehensive Plan to “special conditions”.
In its consolidated brief in Case No. 2005-CA-000197 at page 27, footnote
9, ICON states that “Saddle Ridge is proposed as a planned unit development”. At the
February 17 hearing before the Planning Commission, John Carroll, one of the attorneys
for ICON, testified that the current farm fields at the Saddle Ridge site “create pods for
development. We refer to these pods as villages. That is one of our major concepts.”
Transcript of Planning Commission Hearing (TPCH), p. 9. He later testified, concerning
unit density, that “[s]ome of the villages will require planned unit developments, which is
where you can change your required yard lines around but you cannot exceed the density
that’s set by the zoning in that district. But for compliance with the comprehensive plan,
you look at overall density.” TPCH, p. 24. And, the “Revised Justification Statement for
Zoning Changes”, filed with the Commission on February 5, 2004, states at Paragraph f:
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Proposed residential unit types are villages of single family,
townhouses, patio homes and apartments. Several of the
villages will be planned unit developments (PUDs). This
range of residential units complies with Residential Land Use
Goal 2 of providing for comprehensive development through
PUDs having site flexibility and a mixture of housing types.
We have reviewed the map amendment applications thoroughly and the
foregoing references in the “Revised Justification Statement” to the effect that “several of
the villages will be planned unit developments,” and Mr. Carroll’s statement at the
hearing indicating that “some of the villages will require planned unit developments” are
the only references we can find in the applications to planned unit developments. The
briefs do not refer us to any separate or specific planned unit development project
proposal as set out in Article XII of the Zoning Regulations. We have been unable to
find in the Regulations any indication that planned unit development proposals for the
villages are subsumed within the development plan and the map amendment proposals
that were filed; in fact it seems clear from the “Revised Justification Statement” and Mr.
Carroll’s testimony that ICON intended to file the proposals at some time in the future. If
indeed “Saddle Ridge (was) proposed as a planned unit development” as is stated in
ICON’s brief we are unable to glean it from the record, and WSCOP’s brief at page 21
states that the developer did not seek approval of a planned unit development.
This discussion of PUDs takes on importance because of the question of
how Saddle Ridge can obtain R-4 zoning within an area designated Low Density
Residential in the Comprehensive Plan. It can do so only by the use of the concept of
“overall density.” As stated in the Comprehensive Plan, within a Low Density
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Residential area “[s]ome single family dwellings may be approved to be attached or to
utilize zero-lot-line concepts “if such concepts are a part of an approved planned unit
development wherein the overall density is consistent with the low density residential
standards.” The conclusion seems inescapable that the Comprehensive Plan would only
permit construction of the type of structures allowed by R-4 zoning within a Low Density
Residential area, as part of a previously approved PUD. The Planning Commission
cannot determine whether “overall density” is “consistent with low density residential
standards” apart from “an approved planned unit development.” If part of an area
designated Low Density Residential is zoned R-4 before approval of a PUD is sought, we
can find nothing within the Regulations to curtail or restrict other principal permitted R-4
uses. ICON might apply for approval of PUDs for the villages later, or it might not.
Once R-4 zoning has already been obtained for the development site, it might no longer
see the need for such additional approval. The fact that the Regulations require the
attachment of “special conditions” only in conjunction with PUDs reinforces this
interpretation.
As a result of the foregoing analysis we are compelled to conclude that the
Commission’s findings that ICON’s map amendment proposals agree with Shelby
County’s Comprehensive Plan are not supported by substantial evidence in the record,
are therefore arbitrary, and thus do not meet the requirements of KRS 100.213(1). That
being so, we must reverse on that ground. American Beauty Homes at 456. However, as
noted previously, the Planning Commission also found that both proposals met the
requirements of KRS 100.213(1)(a) to the effect that “the existing zoning classification
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given to the property is inappropriate and that the proposed zoning classification is
appropriate.” Neither the rulings of the Simpsonville City Commission, the Shelby
County Fiscal Court or the Opinion and Order of the Shelby Circuit Court addressed this
finding. Given the nature of our review we are without authority to direct the legislative
bodies to make specific findings or to substitute our findings for theirs. See DanvilleBoyle County Planning Commission v. Centre Estates, 190 S.W.3d 354, 359 (Ky.App.
2006). We must therefore remand to the Shelby Circuit Court with directions that the
cases be remanded to the Triple S Planning Commission for a review of the existing
record and a new recommendation considering the Planning Commission’s findings of
fact under KRS 100.213(1)(a). The Commission shall then forward its new
recommendation to the Shelby County Fiscal Court and to the Simpsonville City
Commission for appropriate action.
We have reviewed each of the other arguments advanced by the Appellants.
None of them require reversal under the standards set by American Beauty Homes or the
cases discussing it. Because we remand as set out above, we find it unnecessary to
discuss those arguments further.
CROSS-APPEALS REGARDING STANDING
The Appellees contend that each of the Appellants lack standing to appeal.
We disagree. Kentucky’s legislature as well as the courts have liberally conferred
standing to challenge the decisions of zoning boards. KRS 100.347(2); Rogers Group,
Inc. v. Masterson, 135 S.W.3d 630, 636 (Ky.App. 2005); 21st Century Development Co.,
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LLC v. Watts, 958 S.W.2d 25, 28 (Ky.App. 1997). The decision of the Circuit Court
rejecting the Appellees’ challenges to the Appellants’ standing is affirmed.
CONCLUSION
The Opinion and Order of the Shelby Circuit Court affirming the actions of
the Triple S Planning Commission, the Simpsonville City Commission and the Shelby
County Fiscal Court is reversed to the extent that it determined that the findings of the
Commission and the actions of the legislative bodies in this case are in agreement with
Shelby County’s Comprehensive Plan. The case is remanded to the Shelby Circuit Court
with directions to remand to the Triple S Planning Commission, directing it to issue a
new Recommendation based upon its findings pursuant to KRS 100.213(1)(a) that current
zoning for the area of the Saddle Ridge development is inappropriate, and that the
proposed zoning is appropriate. This Court does not find that additional factual hearings
on that issue are required; however, in accordance with the holding of McKinstry v.
Wells, 548 S.W.2d 169, 175 (Ky. 1977), after they receive the new recommendation, the
Shelby County Fiscal Court and the Simpsonville City Commission, in their discretion,
may (1) follow the recommendations of the Planning Commission; (2) review the record
made before the Commission and make their own findings of adjudicative facts from that
record; or (3) hold their own trial-type hearing and make findings of adjudicative facts.
The Circuit Court may impose a reasonable time limit within which the Commission and
the legislative bodies must act.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES AND
CROSS-APPELLANTS:
Laurence J. Zielke
Schuyler J. Olt
Kenneth J. Henry
Louisville, Kentucky
R. Gregg Hovious
John David Dyche
Lawrence L. Jones, II
John G. Carroll
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANTS:
ORAL ARGUMENT FOR
APPELLEES AND CROSSAPPELLANTS:
Schuyler J. Olt
Lea Pauley Goff
Louisville, Kentucky
R. Gregg Hovious
Louisville, Kentucky
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