THOMAS (JANE P.), ET AL. VS. CYNTHIANA-HARRISON COUNTY- BERRY JOINT PLANNING COMMISSION , ET AL.
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RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001194-MR
JANE P. THOMAS; KENT DYER;
MELISSA DYER; JOSEPH L. HUFF;
PATRICIA A. HUFF; H. T. POWER;
HARLAN T. POWER, JR.; TINKER
JONES
v.
APPELLANTS
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 06-CI-00014
CYNTHIANA-HARRISON COUNTYBERRY JOINT PLANNING COMMISSION;
LYNDEN PLATT (CHAIRMAN, PLANNING
COMMISSION0; KEN ABNER (PLANNING
COMMISSION MEMBER0; THOMAS BOLAND
(PLANNING COMMISSION MEMBER); RICHARD
SING (PLANNING COMMISSION MEMBER);
DAVE KENNEDY (PLANNING COMMISSION
MEMBER); JEFF CLAYPOOL (PLANNING
COMMISSION MEMBER; PATTY EDWARDS
(PLANNING COMMISSION MEMBER);
HARRISON COUNTY BOARD OF ADJUSTMENTS;
KAREN BEAR (CHAIRPERSON, BOARD OF
ADJUSTMENTS); DAN CLIFFORD (BOARD OF
ADJUSTMENTS MEMBER); STEVE EADS
(BOARD OF ADJUSTMENTS MEMBER);
DON JOHNSON (BOARD OF ADJUSTMENTS
MEMBER); DAVID LAWLER (BOARD OF
ADJUSTMENTS MEMBER); HARRISON COUNTY
FISCAL COURT; DEAN PEAK (HARRISON
COUNTY FISCAL COURT AND COUNTY
JUDGE-EXECUTIVE); TAWASHA, INC.;
CHRISTINE TAWASHA; NADER (NED)
TAWASHA
APPELLEES
OPINION
AFFIRMING IN PART, VACATING
IN PART, AND REMANDING
** ** ** ** **
BEFORE: VANMETER AND THOMPSON, JUDGES; HENRY,1 SENIOR
JUDGE.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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HENRY, SENIOR JUDGE: Jane P. Thomas, Kent Dyer, Melissa Dyer, Joseph L.
Huff, Patricia A. Huff, H. T. Power, Harlan T. Power, Jr., and Tinker Jones appeal
from a series of orders of the Harrison Circuit Court which dismissed their various
challenges to the rezoning and development of property located in Leesburg,
Kentucky, and the approval of a site plan to permit the construction of a
convenience store and gas station at the location. For the reasons stated below, we
affirm in part, vacate in part, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Appellees Nader Tawasha, Christine Tawasha, and Tawasha, Inc.
(collectively Tawasha) own a 1.48 acre tract of property located at the corner of
U.S. Highway 62 and Leesburg-Newtown Pike in Harrison County, Kentucky.
In 2005 Tawasha began efforts to construct and operate a convenience store and
gas station on the property. In order to do this it was necessary to obtain a
rezoning of the property through the Harrison County Fiscal Court; a conditional
use permit from the Harrison County Board of Adjustments (Board) to operate the
gas station aspect of the project; and site development approval from the
Cynthiana-Harrison County-Berry Joint Planning Commission (Planning
Commission).
On June 17, 2005, Tawasha filed an application for a map amendment
for the site seeking to rezone the property from Rural Development Community
(RDC) to Rural Residential Business (RRB). On July 18, 2005, the Planning
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Commission considered the application at which time, among other actions, it
voted to recommend a waiver be granted to Tawasha from the 1.5 acre lot size
requirement for RRB zoning. On August 15, 2005, the Planning Commission
voted to recommend approval of the zone change to the Harrison Fiscal Court.
On September 13, 2005, the Harrison Fiscal Court voted to approve
the zone change; however, it is uncontested that the Fiscal Court failed to take final
action on the map amendment by having a second reading thereon. Accordingly,
the zone change as recommended by the Planning Commission became final by
operation of law on November 13, 2005, - 90 days following the Planning
Commission’s vote to recommend the change. See Kentucky Revised Statutes
(KRS) 100.211(1) and KRS 100.211(7).
The operation of a gas station is a conditional use for RRB zoning and
requires the obtaining of a conditional use permit from the Board of Adjustments.
Accordingly, on September 26, 2005, Tawasha filed an application for a
conditional use permit with the Board of Adjustments. The Board met on October
11 and November 8, 2005, to consider the application. At the conclusion of the
November 8 meeting the Board of Adjustments voted to issue a conditional use
permit for the gas station aspect of the project. In connection with the approval the
Board imposed 15 conditions upon the project and listed 5 recommendations for
the Planning Commission to consider at the site development plan review.
On November 18, 2005, Tawasha filed an application with the
Planning Commission for approval of its site development plan. Following a
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public hearing, on December 19, 2005, the Planning Commission voted to approve
Tawasha’s proposed site development plan. The plan as adopted included the 15
conditions as imposed by the Board of Adjustments, and all of the Board’s
recommendations except one.
On January 18, 2006, the appellants filed a “Complaint and Appeal”
in Harrison Circuit Court. The filing consisted of a planning and zoning appeal
pursuant to KRS 100.347 and a petition for declaratory judgment pursuant to KRS
418.040. As subsequently amended, Counts I through IV alleged various errors
and shortcomings in the approval process; Count V sought a restraining order
preventing Tawasha from commencing construction on the project; and Count VI
sought a declaration of rights that the project as approved was, for various reasons,
in violation of KRS Chapter 100.
On November 21, 2006, the trial court entered an order dismissing
Counts II – VI of the amended complaint and those portions of Count I insofar as
they related to actions taken by the Commission or Board of Adjustments prior to
December 19, 2005, upon the grounds that the 30-day limitations period to bring a
planning and zoning appeal had run as to those causes of action. The foregoing
left for decision only issues relating to the Commission’s approval of the site
development plan pursuant to its December 19, 2005, vote.
On April 2, 2007, the trial court affirmed the Planning Commission’s
approval of the site development plan. By order entered May 14, 2007, the trial
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court denied the appellants’ motion to alter, amend, or vacate. This appeal
followed.
VIOLATION OF DEVELOPMENT STANDARDS
In their first argument the appellants allege that the Planning
Commission erred in approving Tawasha’s development plan (1) in that the lot did
not meet the Zoning Ordinance’s requirements for lot size, building line width, and
road frontage; (2) in that the development plan provides for a “restaurant,” which
is not allowed by RRB zoning; (3) “by allowing a new building to be constructed
on a non-conforming lot;” and (4) in that “on the record, the property was not
[properly] [re]zoned RRB but remained zoned Rural Residential District (R-R).”
STANDARD OF REVIEW
The standard of review, when addressing an appeal from an
administrative decision, “is limited to determining whether the decision was
erroneous as a matter of law.” McNutt Construction v. Scott, 40 S.W.3d 854, 860
(Ky. 2001). Kentucky Courts have long held that “judicial review of
administrative action is concerned with the question of arbitrariness . . . . Unless
action taken by an administrative agency is supported by substantial evidence it is
arbitrary.” American Beauty Homes Corp. v. Louisville and Jefferson County
Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964) (emphasis in
original). Substantial evidence is defined as “that which, when taken alone or in
light of all the evidence, has sufficient probative value to induce conviction in the
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mind of a reasonable person.” Bowling v. Natural Resources and Environmental
Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994). In weighing the
evidence, “the trier of facts is afforded great latitude in its evaluation of the
evidence heard and the credibility of witnesses appearing before it.” Bowling, 891
S.W.2d at 409-10. A reviewing court may not substitute its own judgment on a
factual issue “unless the agency's decision is arbitrary and capricious.” McManus
v. Kentucky Retirement Systems, 124 S.W.3d 454, 458-59 (Ky. App. 2003). Once
a reviewing court has determined that the agency's decision is supported by
substantial evidence, the court must then determine if the agency applied the
correct rule of law to those factual findings in making its determination. If so, the
final order of the agency must be upheld. Bowling, 891 S.W.2d at 410. On the
other hand, matters of statutory construction are subject to de novo review.
Because statutory interpretation is a matter of law reserved for the courts, we are
not bound by the Circuit Court's interpretation. Halls Hardwood Floor Co. v.
Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).
SIZE, WIDTH, FRONTAGE
Section 645.4 of the Zoning Ordinance lists the development
standards for RRB zoning. Among those standards are (1) a minimum lot size of
one and one-half acres; (2) a minimum width at the building line of 200 feet; and
(3) a minimum road frontage of 200 feet. As reflected on the development plan
presented by Tawasha to the Planning Commission for approval, the lot size of the
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subject property is 1.48 acres; the width of the property at the building line is
145.45 feet; and the road frontage of the property is 145.45 feet.
At the July 18, 2005, Planning Commission meeting the Commission
addressed the acreage issue. The minutes reflect that the original lot size was
1.744 acres, but that as a result of the realignment of U.S. 62 and the attendant
utility easements the lot size was reduced to 1.48 acres. It was further noted that
“[t]he reduction of the lot size was not an action of the applicant but was purchased
that way making it a legal nonconforming lot.” Based upon the foregoing, a
motion was made “to find that the requirement of commercial minimum lot of 1.5
acres under Section 645.4 of the Zoning Ordinance was met, in that it was a legal
nonconforming lot.” The motion passed 6-0. As a result, this finding was
incorporated into the Commission’s recommendation of approval forwarded to the
Harrison Fiscal Court. As previously noted, the Fiscal Court failed to take final
action on the recommendation within 90 days thereof, and the zone change as
recommended by the Commission (with the acreage variance) became final by
operation of law on November 13, 2005. KRS 100.211(1) and KRS 100.211(7).
The finality of the zone change was not timely appealed pursuant to KRS 100.347
and, it follows, the appellants’ challenge to the acreage variance is not timely.
We can locate no similar waiver or variance in the record, however,
addressing the Zoning Ordinance standards for building line width and road
frontage, nor are we directed to such by the appellees.
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KRS 100.243 sets forth the findings necessary for the granting of a
variance and evidences a bias against granting such relief. The statute provides as
follows:
(1) Before any variance is granted, the board must find
that the granting of the variance will not adversely 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.
The burden of proof in convincing the decision maker is on the one
seeking the variance. Gentry v. Ressnier, 437 S.W.2d 756 (Ky. 1969). “By setting
forth findings that must precede the granting of a variance, the statute protects the
overall zoning scheme from the ill effects of light and transient changes.”
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Bourbon County Board of Adjustment v. Currans, 873 S.W.2d 836, 837 (Ky. App.
1994).
The site plan as approved by the Planning Commission is clearly in
violation of Zoning Ordinance Section 645.4 of the Zoning Ordinance in that the
site development plan does not comply with the building line width and road
frontage development standards for the section. The section requires a minimum
width of 200 feet at the building line and a minimum road frontage of 200 feet.
The site development plan as presented by Tawasha and approved by the
Commission reflects a width of 145.45 feet at the building line and road frontage
of 145.45 feet. We are thus constrained to vacate the Planning Commission’s
approval of the development plan as in violation of these provisions of the Zoning
Ordinance. Upon remand Tawasha may seek a variance from the width at building
line and road frontage requirements.
RESTAURANT
Tawasha’s site development plan provides for a deli area with 6
booths seating a total of 24 persons. The record discloses that Tawasha employees
will, at minimum, prepare sandwiches for consumption on-site. The appellants
contend that the proposed deli amounts to a restaurant, and that restaurants are not
permitted use in RRB zoning under the Zoning Ordinance.
We agree with the appellants that the on-site preparation and
consumption of food (however characterized) is not a permitted principal or
conditional use specifically listed in Section 645 for RRB zoning. However,
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conditional uses permitted in RRB zoning are the same as for R-R zoning as listed
in Section 644, and R-R zoning permits a conditional use for “[n]eighborhood type
business[es] meeting local daily needs.” Thus while the proposed deli is not a
permitted use for RRB zoning, we construe a deli to be a permitted conditional use
under the foregoing provision.
Tawasha’s September 23, 2005, application for a conditional use
permit requested a permit only for a “service station convenient store.” It did not,
however, request a permit to operate the deli. As such, we conclude that the
Planning Commission erroneously approved the Tawasha site plan insofar as the
plan provided for a deli in the absence of a conditional use permit. Upon remand,
Tawasha may seek a conditional use permit before the Board of Adjustments for
the operation of its proposed deli.
NEW BUILDING
The appellants contend that “the Planning Commission approved a
development plan that would expand the non-conforming use on a non-conforming
lot, by allowing a new building to be constructed on a non-conforming lot, in
violation of Zoning Ordinance Article V.”
The record on appeal contains pages 44 – 48 of the Zoning Ordinance
which includes, as relevant to this appeal, Section 644 applicable to R-R zoning,
and Section 645 applicable to RRB zoning. Record on appeal, pages 369-373.
We are unable to locate Article V in the record on appeal, nor do the appellants cite
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us to its location in the record.2 Because this argument is based in large part on the
provisions of Article V, and that provision of the Zoning Ordinance is not
contained in the appellate record, we are unable to review this argument upon the
merits. In the event of further proceedings upon remand, however, the appellants
may raise this argument in the appropriate forum.
RURAL RESIDENTIAL
The appellants contend that “on the record, the property was not
zoned RRB but remained zoned ‘Rural Residential District (R-R),’ as it was zoned
when Tawasha acquired the property, where there is no record that Tawasha has
ever sought to change the zone from Rural Residential to any other zoning
designation.”
As we construe this argument, the appellants allege that the subject
property was zoned R-R at the time Tawasha filed its application for a map
amendment, but Tawasha indicated on its rezoning application that it sought to
change the zoning from RDC to RRB instead of R-R to RRB. Because of this
alleged technical deficiency, the appellants argue that the property remains zoned
R-R, a zoning classification which would not permit the operation of a business as
proposed by Tawasha.
2
The appellants include in Appendix 7 of their brief various sections of the Zoning Ordinance,
including Article V, which are not included in the record on appeal. However, it is
impermissible to include extraneous materials as attachments to an appellate brief not contained
in the trial court record. Accordingly, we have disregarded those portions of the Zoning
Ordinance contained in Appendix 7, including the Article V provisions. CR 76.12(4)(c)(vii)
(“Except for matters of which the appellate court may take judicial notice, materials and
documents not included in the record shall not be introduced or used as exhibits in support of
briefs.” See also Rankin v. Blue Grass Boys Ranch, Inc., 469 S.W.2d 767, 769 (Ky. 1971) (The
presentation of extraneous material in briefs is improper).
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The minutes of the various proceedings below reflect that all
concerned were operating under the assumption that the rezoning was from RDC
to RRB. The appellants provide us with no citation to any source to support its
claim that the subject property was actually zoned RR rather than RDC at the time
of the map amendment application. In the absence of any evidentiary foundation
in support of this argument, we are constrained to conclude there is no reversible
error.
In any event, as previously noted, following the Planning
Commission’s August 15, 2005, vote to approve the proposed zone change, the
Harrison County Fiscal Court failed to take final action thereon, resulting in the
change becoming effective by operation of law on November 13, 2005 – 90 days
following the August 15 vote. Because the appellants failed to timely appeal from
the effective date of the zone change, this issue is not properly before us.
DECLARATION OF RIGHTS
As previously noted, in addition to filing a planning and zoning appeal
pursuant to KRS 100.347, the appellants also filed a declaratory judgment action
pursuant to KRS 418.040. The declaratory judgment portion of their Complaint
and Appeal raised various claims alleging that the rezoning, issuance of a
conditional use permit by the Board, and approval of the site plan by the Planning
Commission were improper because:
1. the minimum lot size of 1.5 acres for RRB zoning was not met;
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2. because of the aforementioned alleged technical error in the
Tawasha’s rezoning application which sought to rezone from RDC to
RRB rather than from R-R to RRB;
3. because the Fiscal Court failed to undertake a first and second
reading passing an ordinance adopting the map amendment (the
normal way of adopting a zone change);
4. because of the aforementioned failure of the lot to meet the width
at building line and road frontage requirements;
5. because at the Board of Adjustments November 8, 2005, hearing
the Planning Commission Chairman gave advice to the Board which
indicated that the Commission, rather than the Board, was the proper
tribunal to consider certain environmental impact matters;
6. that Tawasha had failed to obtain a conditional use permit to
operate a restaurant or serve food and, further, such was not
authorized in an RRB zoning district as either a principal or
conditional use; and
7. that a restraining order should be entered to prevent further
construction on the subject property until and unless the Tawasha
obtains a building permit.
Though all of the foregoing, except for item 7, relate to issues directly
arising out of the planning and zoning procedures surrounding Tawasha’s efforts to
gain approval for the convenience store and gas station, the appellants nevertheless
seek to raise the issues by way of a declaratory judgment motion. We further note
that the issues raised substantially overlap with the issues already addressed in the
previous section (items 1, 2, 4, and 6 have already been addressed).
Though the issues raised primarily relate directly to the planning and
zoning procedures before the various administrative tribunals, the appellants
nevertheless contend that they are entitled to raise “a broader challenge to the
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procedures used by the Planning Commission and Fiscal Court” by way of a
declaratory judgment proceeding. In support of this proposition they cite us to
Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998); City of Louisville v. McDonald,
470 S.W.2d 173 (Ky. 1971); McCord v. Pineway Farms, 569 S.W.2d 690 (Ky.
App. 1978); and Greater Cincinnati Marine v. City of Ludlow, 602 S.W.2d 427
(Ky. 1980). While these cases do lend support for that proposition, at best the
entitlement is limited to claims “which are broader in scope than what is implicated
within the context of the ordinary zoning appeal.” Laytart, 962 S.W.2d at 395.
With the exception of item 7, the above listed claims are claims which could be
asserted in “the context of [an] ordinary zoning appeal,” and are not “broader in
scope than what is implicated within the context of such an appeal.” As such,
these issues are not properly brought in a petition for declaratory judgment.
Moreover, items 1, 2, 3, and 5 seek to circumvent the 30-day
limitations period contained in KRS 100.347. KRS 100.347 sets forth the statutory
process for appealing from a decision of a board of adjustment, a planning
commission, and/or the legislative body of the city. The statute provides as
follows:
(1) Any person or entity claiming to be injured or
aggrieved by any final action of the board of adjustment
shall appeal from the action to the Circuit Court of the
county in which the property, which is the subject of the
action of the board of adjustment, lies. Such appeal shall
be taken within thirty (30) days after the final action of
the board. All final actions which have not been
appealed within thirty (30) days shall not be subject to
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judicial review. The board of adjustment shall be a party
in any such appeal filed in the Circuit Court.
(2) Any person or entity claiming to be injured or
aggrieved by any final action of the planning commission
shall appeal from the final action to the Circuit Court of
the county in which the property, which is the subject of
the commission's action, lies. Such appeal shall be taken
within thirty (30) days after such action. Such action
shall not include the commission's recommendations
made to other governmental bodies. All final actions
which have not been appealed within thirty (30) days
shall not be subject to judicial review. Provided,
however, any appeal of a planning commission action
granting or denying a variance or conditional use permit
authorized by KRS 100.203(5) shall be taken pursuant to
this subsection. In such case, the thirty (30) day period
for taking an appeal begins to run at the time the
legislative body grants or denies the map amendment for
the same development. The planning commission shall
be a party in any such appeal filed in the Circuit Court.
(3) Any person or entity claiming to be injured or
aggrieved by any final action of the legislative body of
any city, county, consolidated local government, or
urban-county government, relating to a map amendment
shall appeal from the action to the Circuit Court of the
county in which the property, which is the subject of the
map amendment, lies. Such appeal shall be taken within
thirty (30) days after the final action of the legislative
body. All final actions which have not been appealed
within thirty (30) days shall not be subject to judicial
review. The legislative body shall be a party in any such
appeal filed in the Circuit Court.
....
(5) For purposes of this chapter, final action shall be
deemed to have occurred on the calendar date when the
vote is taken to approve or disapprove the matter pending
before the body. (Emphasis added).
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Thus, KRS 100.347 requires that final actions by a board of
adjustments, a planning commission, or a legislative body be appealed within 30
days and, if the objecting party fails to do so, the final actions “shall not be subject
to judicial review.” It follows that KRS 100.347 is the exclusive means by which
to challenge a final action by these bodies, and that such actions may not be
challenged by way of a declaratory judgment outside of the 30-day requirement in
order to circumvent the limitations period.3 We do not believe that the authorities
cited by the appellants hold otherwise. Thus items 1, 2, 3, and 5 are barred by the
KRS 100.347 limitations period, and the appellants may not circumvent the
requirement merely by recasting the issues as a request for declaratory judgment.
The only issue we construe as being “broader” than issues which may
be raised in a usual planning and zoning appeal is the appellants’ motion for a
declaration of rights to prevent Tawasha from commencing construction on the
project. However, in support of its motion for summary judgment upon this claim
Tawasha filed an affidavit stating to the effect that it did not intend to commence
construction until this matter is fully resolved. The appellants failed to produce
evidence in contradiction thereof. As such, we believe the trial court properly
granted summary judgment upon the issue. Steelvest, Inc. v. Scansteel
3
As previously noted, however, under certain circumstances claims “which are broader in scope
than what is implicated within the context of the ordinary zoning appeal” may be brought by way
of a petition for declaratory judgment outside of this 30-day period. Laytart, 962 S.W.2d at 395.
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Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). We note, however, that this
remedy remains available to the appellants in the event of improper construction
activity on the property.
RECONCILIATION OF DECISIONS/SEPARATION OF POWERS
In their final argument the appellants request that we reconcile various
zoning case decisions and address separation of powers issues implicated by the
planning and zoning process. However, the appellants do not cite us to their
preservation of this issue and, indeed, appear to concede that review of these issues
is not preserved.
Nevertheless, because we have on several occasions in this opinion
stated that the appellants did not timely appeal the rezoning which became
effective by operation of law on November 13, 2005, we will briefly discuss one
issue alluded to in this argument heading - when the limitations period begins to
run when a rezoning becomes effective by operation of law under KRS 100.211.
In this case, the Fiscal Court did not take a “final action” in approving
the rezoning in the usual sense in that it did not undertake a first and second vote
adopting an ordinance approving the rezoning. See Leslie v. City of Henderson,
797 S.W.2d 718 (Ky. App. 1990). Instead, it failed to take a final action within 90
days as required by KRS 100.211(7) (The fiscal court or legislative body shall take
final action upon a proposed zoning map amendment within ninety (90) days of the
date upon which the planning commission takes its final action upon such
proposal). As a result, the Planning Commission recommendation became
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effective by operation of law pursuant to KRS 100.211(1). The relevant provision
of KRS 100.211(1) provides as follows:
It shall take a majority of the entire legislative body or
fiscal court to override the recommendation of the
planning commission and it shall take a majority of the
entire legislative body or fiscal court to adopt a zoning
map amendment whenever the planning commission
forwards the application to the fiscal court or legislative
body without a recommendation of approval or
disapproval due to a tie vote. Unless a majority of the
entire legislative body or fiscal court votes to override the
planning commission's recommendation, such
recommendation shall become final and effective and if a
recommendation of approval was made by the planning
commission, the ordinance of the fiscal court or
legislative body adopting the zoning map amendment
shall be deemed to have passed by operation of law.
Read together, KRS 100.211(7) and KRS 100.211(1) provide that if
the legislative body does not override a recommendation of approval within 90
days, the rezoning map amendment shall be deemed to have passed by operation of
law. See Evangelical Lutheran Good Samaritan Society, Inc., v. Albert Oil
Company, Inc., 969 S.W.2d 691 (Ky. 1998). As such, the foregoing is the
functional equivalent of a “final action” as defined in KRS 100.347(5). Thus, we
are persuaded that for purposes of the limitations period contained in KRS
100.347, the “final action” of the legislative body under the foregoing
circumstances must be deemed to occur on the 90th day following the Planning
Commission’s vote, and that the aggrieved party would then have 30 days from
that date to file a notice of appeal.
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Because of the lack of preservation and inapplicability to any other
matters before us, we do not further address other issues raised under this argument
heading.
CONCLUSION
For the foregoing reasons we affirm in part, vacate in part, and
remand the case to Harrison Circuit Court for entry of a judgment consistent with
this opinion.
VANMETER, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS.
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BRIEFS FOR APPELLANTS:
W. Henry Graddy, IV
Midway, Kentucky
BRIEF FOR APPELLEES,
CYNTHIANA-HARRISON
COUNTY-BERRY JOINT
PLANNING COMMISSION AND
HARRISON COUNTY BOARD OF
ADJUSTMENTS:
Sue M. Lake
Cynthiana, Kentucky
BRIEF FOR APPELLEE,
HARRISON COUNTY FISCAL
COURT:
Charles W. Kuster
Cynthiana, Kentucky
BRIEF FOR APPELLEES, NADER
NED TAWASHA, CHRISTINE
TAWASHA, AND TAWASHA, INC.:
Sannie Overly
Shannon M. Johnson
Paris, Kentucky
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