DAVID B. ALLEN; DONNA J. ALLEN; JAMES KEOGH; AND ANNE KEOGH v. WOODFORD COUNTY BOARD OF ADJUSTMENTS; (MEMBERS SAM DOZIER, BILL GOODMAN; DAVID PREWITT; FRANK STARK; AND TIM TURNEY; NAMED IN THEIR OFFICIAL CAPACITIES ONLY); PATRICIA WILSON, WOODFORD COUNTY PLANNING DIRECTOR; AND THOMAS R. POST
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RENDERED: JUNE 29, 2007; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: JULY 13, 2007; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000603-MR
DAVID B. ALLEN; DONNA J. ALLEN;
JAMES KEOGH; AND ANNE KEOGH
v.
APPELLANTS
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 05-CI-00177
WOODFORD COUNTY BOARD OF
ADJUSTMENTS; (MEMBERS SAM DOZIER,
BILL GOODMAN; DAVID PREWITT; FRANK
STARK; AND TIM TURNEY; NAMED IN THEIR
OFFICIAL CAPACITIES ONLY); PATRICIA WILSON,
WOODFORD COUNTY PLANNING DIRECTOR; AND
THOMAS R. POST
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND KELLER, JUDGES.
ACREE, JUDGE: David B. Allen, Donna J. Allen, James Keough, and Anne Keough
appeal from a Woodford Circuit Court judgment affirming the Versailles-MidwayWoodford County Planning and Zoning Board of Adjustment's (Board) grant of Thomas
R. Post's application for a conditional use permit. We affirm.
Post's property at 230 Pisgah Pike, Woodford County, Kentucky, is zoned
Agricultural (A-1).1 On February 14, 2005, Post filed an application with the Board
seeking a conditional use permit to allow a “tourist home” on the property. When Post
filed the application, there was an unfinished structure under construction on the
property.
The Board's Zoning Compliance Officer, Patricia Wilson, initially reviews
such applications as part of her duties in assisting the Board with its decision-making.
Specifically, she assists the Board by providing definitions of technical and non-technical
terms as needed. While “tourist home” is a recognized conditional use, the ordinance did
not include a definition of that term. Pursuant to authority granted her by Kentucky
Revised Statute (KRS) 100.261 and Section 402 of the Versailles-Midway-Woodford
County Zoning Ordinance, Wilson supplied that definition by reference to one of the
standard reference works in the Board's library.2 The definition stated that a tourist home
is “[a]n establishment in a private dwelling that supplies temporary accommodations to
overnight guests for a fee. See Bed and Breakfast.”
On May 2, 2005, the Board issued its decision granting the permit. A
conditional use permit, as the name indicates, imposes upon the successful applicant
various conditions. The Board's decision appropriately notes that a “tourist home is
1
This zone is established to preserve the rural character of the agricultural service area by
promoting agriculture and related uses, and by discouraging all forms of urban development
except for a limited amount of conditional uses.
2
Harvey S. Moskowitz & Carl G. Lindbloom, The New Illustrated Book of Development
Definitions.
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limited by the zoning regulations to property located on a state or federal highway”3
thereby distinguishing it from other conditional uses. Furthermore, the grant of the
application imposed upon Post a total of eleven additional specific conditions as to size,
use, parking, lighting, noise, etc. As noted in the decision, the definition of “tourist
home” as supplied by Wilson and adopted by the Board does not confuse, but
differentiates the term from others such as “bed & breakfast.”
On June 1, 2005, the Appellants filed an action in the Woodford Circuit
Court seeking to overturn the granting of the conditional use permit. On February 28,
2006, the Woodford Circuit Court concluded the Board had not acted arbitrarily and
upheld the Board's decision to grant the conditional use permit to Post. This appeal
followed.
It is well-established that a court's review of the action of an administrative
agency is limited to “review, not reinterpretation.” Jones v. Cabinet for Human
Resources, Division for Licensure & Regulations, 710 S.W.2d 862, 866 (Ky.App. 1986)
(citation omitted). A reviewing court may not substitute its judgment for that of an
administrative agency even though it might have reached a different result. Kentucky
State Racing Commission v. Fuller, 481 S.W.2d 298, 308-09 (Ky. 1972). The Supreme
Court of Kentucky articulated this standard of review as follows:
[T]he scope of judicial review of zoning action taken by
public bodies, both administrative and legislative, is limited
to determining whether the action was arbitrary, which
ordinarily involves these considerations: (1) whether the
3
The full title of the permissible conditional use provided in the ordinance is “Tourist Home
Along a State or Federal Highway.”
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action under attack was in excess of the powers granted to the
public bodies [;] (2) whether the parties were deprived of
procedural due process by the public bodies[;][and] (3)
whether there is a lack of evidentiary support in the findings
of the public bodies[.]
Fallon v. Baker, 455 S.W.2d 572, 574 (Ky. 1970), citing American Beauty Homes Corp.
v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450 (Ky.
1964). A board's factual findings are not deemed to be arbitrary if they are supported by
substantial evidence, which is defined as “evidence of substance and relevant
consequence, having the fitness to induce conviction in the minds of reasonable men.”
Kentucky State Racing Commission v. Fuller, 481 S.W.2d at 308 (citation and internal
quotations omitted).
The Appellants first argue the Board acted arbitrarily when it relied upon
the definition of a tourist home supplied by Wilson. Acknowledging that Wilson has the
authority to interpret terms, the Appellants insist that by defining “tourist home,” Wilson
was creating law, rather than interpreting a term, in excess of her authority. In response,
Appellees deny Wilson acted beyond the scope of her authority. Additionally and more
to the point, Appellees argue in response that Appellants did not timely appeal the
adoption of this definition before the Board of Adjustments pursuant to KRS 100.261.
This statute provides:
Appeals to the board may be taken by any person, or entity
claiming to be injuriously affected or aggrieved by an official
action, order, requirement, interpretation, grant, refusal, or
decision of any zoning enforcement officer. Such appeal
shall be taken within thirty (30) days after the appellant or his
agent receives notice of the action of the official by filing
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with said officer and with the board a notice of appeal
specifying the grounds thereof, and giving notice of such
appeal to any and all parties of record. Said officer shall
forthwith transmit to the board all papers constituting the
record upon which the action appealed from was taken and
shall be treated as and be the respondent in such further
proceedings. At the public hearing on the appeal held by the
board, any interested person may appear and enter his
appearance, and all shall be given an opportunity to be heard.
KRS 100.261.
The appropriate procedure for appeals taken from decisions of enforcement
officers, such as Wilson, was discussed by this Court in Burns v. Peavler, 721 S.W.2d
715 (Ky.App. 1986) (property owner challenging a decision of a zoning enforcement
officer, that a deed restriction allowing for multifamily dwellings obviated the need for a
zoning change, could not appeal that decision to the circuit court without timely
appealing to the board of adjustment). “Review of administrative decisions must strictly
follow the applicable statutory procedures.” Burns, 721 S.W.2d at 717. As part of her
job, Wilson researches and provides the Board with information to aid them in making
zoning recommendations to the Board. Id. We further noted in Taylor v. Duke, 896
S.W.2d 618 (Ky.App. 1995), that because “an appeal from an administrative decision is a
matter of legislative grace and not a right, the failure to follow the statutory guidelines for
an appeal is fatal.” Id. at 621. The state statutory scheme mandates that the Board of
Adjustment first be allowed to review the action of the enforcement officer. KRS
100.257 and KRS 100.261. “Only after the [Board has] rendered [a] decision would the
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act be deemed sufficiently final to qualify for judicial review.” Burns, 721 S.W.2d at
717.
The Appellants admittedly became aware of Wilson's recommended
interpretation of the term tourist home at the April 4, 2005 hearing. The Appellants did
not appeal Wilson's actions to the Board. Instead, it was only after the Board approved
Post's conditional use permit, which approval incorporated the now-challenged definition,
that Appellants appealed that decision to the Woodford Circuit Court. Appellants claim
they did not appeal Wilson's interpretation to the Board because they were only required
to do so if her actions were taken within the authority granted to her to interpret
ordinances. Because they believe Wilson exceeded her authority, they argue KRS
100.261 does not apply. We disagree.
This issue was addressed by the circuit court in an August 30, 2005,
Opinion and Order. The court held that because Appellants did not appeal Wilson's
interpretation to the Board within the 30-day period prescribed by KRS 100.261, the
definition she provided for a tourist home, would stand.
The intent of KRS 100.261 is to prevent situations such as the one that has
arisen here. The Appellants' attempt to have the circuit court, and now this Court, review
Wilson's interpretation was untimely. Ms. Wilson's interpretation stands.
Next, the Appellants argue that the Board's decision to grant the conditional
use permit was an unconstitutional exercise of arbitrary power. More specifically, the
Appellants argue that the Board acted with no guidelines because there are no ordinances
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in the Woodford County zoning laws which define a tourist home. Thus, they argue, the
Board acted in an arbitrary manner. Once again, we disagree.
Planning and Zoning administrative bodies are bound by the general rule
applicable to all administrative bodies that their authority is derived solely from the
enabling statute and cannot act beyond that power conferred by the legislature. American
Beauty Homes, 379 S.W.2d at 456. The powers and duties of the Board of Adjustment
are set forth in KRS Chapter 100, et seq., which provides uniform legislation for the use
of planning and zoning controls on land development. KRS 100.237 gives the Board of
Adjustment the power to grant conditional use permits. The statute states in pertinent
part:
The board shall have the power to hear and decide
applications for conditional use permits to allow the proper
integration into the community of uses which are specifically
named in the zoning regulations which may be suitable only
in specific locations in the zone only if certain conditions are
met:
(1) The board may approve, modify, or deny any
application for a conditional use permit. If it approves
such permit it may attach necessary conditions such as
time limitations, requirements that one (1) or more
things be done before the request can be initiated, or
conditions of a continuing nature. Any such
conditions shall be recorded in the board's minutes and
on the conditional use permit, along with a reference to
the specific section in the zoning regulation listing the
conditional use under consideration. The board shall
have power to revoke conditional use permits, or
variances for noncompliance with the condition
thereof. Furthermore, the board shall have a right of
action to compel offending structures or uses removed
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at the cost of the violator and may have judgment in
personam for such cost.
KRS 100.237 (emphasis added).
The Appellants simply have not met their burden of persuading this court
that the Board acted outside its regulatory authority. The Woodford County Zoning
Regulations, Article VII, Section 701.4 specifically names “Tourist Home along State or
Federal Highway” as a conditional use in the A-1 zone. From the statute above, it is clear
that the Board properly conducted itself in granting Post's conditional use permit for a
tourist home. Having made no further arguments as to how the Board might have
exercised arbitrary power, we must agree with the Opinion and Order of the Woodford
Circuit Court.
For the foregoing reasons, the judgment of the Woodford Circuit Court is
affirmed.
ALL CONCUR.
ORAL ARGUMENTS AND BRIEFS
FOR APPELLANTS:
David B. Allen
Versailles, Kentucky
ORAL ARGUMENTS AND BRIEF FOR
APPELLEE, WOODFORD COUNTY
BOARD OF ADJUSTMENTS:
Timothy C. Butler
Bardstown, Kentucky
ORAL ARGUMENT AND BRIEF FOR
APPELLEE THOMAS R. POST:
Shelby C. Kinkead, Jr.
Lexington, Kentucky
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