ZEIS (CAROLE) VS. WOODFORD COUNTY FISCAL COURT, ET AL.
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RENDERED: DECEMBER 3, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001029-MR
CAROLE ZEIS
v.
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 06-CI-00286
WOODFORD COUNTY FISCAL COURT;
JOSEPH GORMLEY, JUDGE
EXECUTIVE; CARL ROLLINS;
CHARLES WEBBER; JAMES
ALCOKE; LOUIS MCDANNOLD;
TOM TURNER; BOBBY GAFFNER;
JAMES STAPLES; JACKIE BROWN
AND ROBERT J. RADTKE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; WHITE,1 SENIOR JUDGE.
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Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
WHITE, SENIOR JUDGE: Carol Zeis appeals from a Woodford Circuit Court
opinion and order of January 21, 2009, and a subsequent order of May 1, 2009,
which denied her motion to alter, amend or vacate. At issue is the circuit court’s
review of a zoning change approved by the Woodford Fiscal Court. Zeis argues
that the circuit court was without jurisdiction to enter the orders, and, in the
alternative, that its affirmation of the zoning change was clearly erroneous.
This case has a lengthy and complicated procedural history involving
the circuit court’s review of actions taken by the Woodford Fiscal Court (“Fiscal
Court”) and the Versailles-Midway-Woodford County Planning and Zoning
Commission (“Planning Commission”). On April 10, 2006, George D. Reeves, Jr.
and Bonnie Reeves,2 doing business as Spring Ridge LLC, filed a zone-change
application with the Planning Commission. The application requested the rezoning
of a thirty-three acre tract located near Nonesuch, Kentucky, from A-1
(Agricultural) to A-4 (Small Community). The application proposed to subdivide
the tract into thirteen single-family residential lots.
After a public hearing regarding the proposed zone-change request,
the Planning Commission recommended to the Fiscal Court, by a vote of six to
three, that the application be denied. As the basis for its decision, the Planning
Commission found that (1) granting the zoning change would constitute “spot
zoning” and “leap frog zoning” because the property was surrounded on all sides
by property zoned for agricultural use and was not contiguous to previously built2
The property was later sold to Robert J. Radtke and he was substituted as a party for Spring
Ridge and George and Bonnie Reeves by order of the circuit court on October 9, 2008.
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up areas; (2) the development would be contrary to the 2005 Comprehensive Plan
Guidelines, which seek to make the center of a small community more useful and
meaningful, call for the concentration of growth in appropriate portions of small
communities and require that new development complement existing settlement;
(3) the applicant had failed to provide a traffic impact study; and (4) the Health
Department had failed to provide the certification required by ordinance that each
lot could safely support a sewage disposal system. The Commission also found
that the applicant had failed to demonstrate compliance with the applicable “open
space” requirements and that the applicant failed to provide a basis for waiver from
this requirement and failed to make that request in writing.
The Woodford Fiscal Court voted to override the Planning
Commission’s recommendation and to approve the requested zone change, based
upon findings it had gleaned from the record. It also granted a waiver of the “open
space” requirement. The “open-space” requirement is found in the Subdivision
Regulations and provides that
[a]t a minimum, open-space (exclusive of
retention/detention basin) shall constitute no less than
four (4%) percent of the gross area of any subdivision or
development site. This open-space shall have at least
sixty (60%) percent of its perimeter abutting a public
street edge.
The Fiscal Court ordinance stated that “The open space requirement is waived and
deemed satisfied contingent upon the natural buffering remaining undisturbed.”
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Zeis, whose farm is located adjacent to the proposed development,
filed an appeal in the Woodford Circuit Court seeking to reverse the action of the
Fiscal Court and to reinstate the recommendation made by the Planning
Commission. The parties filed cross-motions for summary judgment. The circuit
court heard oral arguments and entered an opinion and order on March 21, 2008. It
ruled that the power to grant a waiver of the open-space requirement was limited
by ordinance to the Planning Commission, and that the Fiscal Court had acted
arbitrarily beyond its statutory powers in granting a waiver of the requirement. It
remanded the case back to the Fiscal Court, stating that upon remand, the Fiscal
Court had the option of adopting the decision of the Commission, or if the Fiscal
Court determined that the Commission should reconsider its initial denial of the
waiver, it could be remanded back to the Commission for reconsideration.
The opinion concluded that “[s]ince this matter must go back to the
Woodford Fiscal Court and because at that proceeding the [Fiscal] Court has the
option of reversing themselves and adopting the original action of the Commission
or remanding the issue of a waiver of the open space requirements of the ordinance
to the Commission, it is unnecessary for the Court to reach the other issues raised
in this appeal.” The circuit court designated its order as final and appealable. No
appeal was filed.
On March 26, 2008, the Woodford County Judge/Executive sent a
letter to the Planning Commission, informing its members that the Fiscal Court had
voted unanimously to remand the issue of possible waiver of the open space
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requirement to the Commission, “assuming the applicant properly and timely
submits a written request for that waiver.” The letter further directed that
[a]fter that sole consideration, and the Planning
Commission’s decision in that regard, the case should be
referred back to the fiscal court to vote to either affirm
the Planning Commission’s previous denial of the zone
change request, or to override it and grant the zone
change request.
The Planning Commission, however, refused to address the waiver issue. In a
letter responding to the Judge/Executive dated March 26, 2008, the Planning
Director stated that:
It is the Planning Commission’s policy not to act on
requests relating to or concerning the approval of
development plans associated with zone changes,
including requests for attendant waivers, unless and until
the prerequisite zoning has been approved and is in place.
Therefore, there will be no action on the possible waiver
of open space by the Planning Commission at this time.
The Woodford County Attorney sent copies of both letters to the Reeves’s
attorney, stating that the Fiscal Court took the position that the letter from the
Judge/Executive to the Planning Commission complied with the circuit court’s
directive. The County Attorney further stated that, in light of the position taken by
the Planning Commission, “it would seem that your clients could seek further relief
from the Woodford Circuit Court. The fiscal court will not be initiating any such
action, but may choose to join with your clients, if they so move.”
On June 5, 2008, the Reeveses and Spring Ridge, LLC, filed a
pleading in the Woodford Circuit Court, styled “motion to submit for final
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decision.” It stated that the Planning Commission had correctly pointed out that
the role of the Fiscal Court is limited to making determinations regarding zone
designation. The motion further stated that the circuit court should make a final
decision on the zone change issue. Then, assuming that it affirmed the Fiscal
Court’s decision to change the zone designation, the Planning Commission would
consider the primary development plat, and address whether the open space
requirements of the subdivision regulations should be applied to the proposed
development.
Zeis moved to dismiss, arguing that the March 21, 2008, order
granting summary judgment was final and appealable, that the Reeveses had not
filed either an appeal or a motion pursuant to Kentucky Rules of Civil Procedure
(CR) 59.05, and that therefore the circuit court lacked jurisdiction over the matter.
The circuit court denied her motion, explaining that it had never ruled whether the
decision of the Fiscal Court granting the zoning change was supported by
sufficient evidence and that consequently the final and appealable language in the
order was erroneous and did not alter its interlocutory nature.
On January 21, 2009, the circuit court entered an opinion ruling that
the Fiscal Court had complied with the requirements of KRS 100.213 (which sets
forth the requirements for amending a zoning map) and that the zone-change was
not arbitrarily granted. In its opinion, the court attempted to clarify its earlier
ruling by stressing that the waiver of the open space requirement was not an
integral part of the decision of the Fiscal Court. The court explained that although
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it had believed that the Fiscal Court’s action in waiving the open space requirement
was arbitrary under the criteria of American Beauty Homes Corp. v. Louisville and
Jefferson County Planning Commission, 379 S.W.2d 450 (Ky. 1964), that did not
mean that the Fiscal Court acted outside the scope of its powers in granting the
zone change request. The court noted that the Planning Commission had indicated
that it only considers waivers of open space requirements after a zone change has
been approved and that therefore a zoning change is not predicated on whether
there has been a waiver of the open space requirements prior to the request.
Zeis filed a motion to alter, amend or vacate. The trial court entered
an order denying the motion, and again addressed the import of its first order in the
case. It reiterated its view that the waiver of the open space requirement was not
within the scope of powers of the Fiscal Court, but concluded that this did not
invalidate its approval of the zone change:
the Court believes that while the section of the ordinance
waiving the open space requirements is invalid, the
remaining sections of the ordinance are not so dependent
on the waiver of the open space requirements that the
entire ordinance is rendered invalid.
This appeal by Zeis followed.
Zeis argues that the March 21, 2008, opinion and order of the circuit
court was a final and appealable order, and that consequently the court was without
jurisdiction to enter its subsequent orders. CR 54.01 defines a final or appealable
judgment as “a final order adjudicating all the rights of all the parties in an action
or proceeding, or a judgment made final under Rule 54.02.” In an action involving
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multiple claims or multiple parties, CR 54.02 permits a court to make an otherwise
interlocutory order final and appealable if the order includes the following
recitations: (1) there is no just reason for delay, and (2) the decision is final.
Peters v. Board of Educ. of Hardin Co., 378 S.W.2d 638 (Ky. 1964). A court’s
failure to include both recitations in the order renders it interlocutory and
nonappealable. Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722, 726 (Ky. 2008).
The standard for determining the finality of an order when reviewing
a remand to an administrative agency to carry out the terms of a judgment
following reversal of the agency’s determination is
whether the further action is merely ministerial or
whether the agency still has the power and the duty to
exercise quasi-judicial responsibility with respect to the
issues. If all that is left for the agency to do is ministerial,
then the order is final even though it contains a direction
for remitter to the agency. If, on the other hand, the
agency still has the power and the duty to exercise
residual discretion, to take proof, or to make an
independent record, its function remains quasi-judicial
and the order is not final.
Revenue Cabinet, Commonwealth of Ky. v. Moors Resort, Inc., 662 S.W.2d 219,
219 -220 (Ky. 1983) (internal citations omitted).
In the Moors case, the circuit court reversed in part a decision of the
Board of Tax Appeals and directed it to recompute the amount of some delinquent
taxes. The Kentucky Supreme Court ruled that this order was final because it left
the Board “no power or duty to exercise residual discretion, to take proof or to
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make an independent record[,] and that its only remaining duty “was to comply
with the circuit court decree.” Id.
Unlike the Board in Moors, the Fiscal Court in this case was left with
the considerable discretionary authority either to reverse entirely its prior
determination, or to remand the case to the Planning Commission for further
consideration of the waiver issue. Furthermore, the order did not contain the
recitation that there was no just cause for delay as required for finality in cases
with multiple claims under CR 54.02. Zeis presented more than one claim for
relief, and the circuit court’s order did not resolve these other claims, which were
left pending. Under these circumstances, we agree with the circuit court that it
retained jurisdiction to enter its subsequent orders in the case.
In a related argument, Zeis asserts that the Planning Commission’s
recommendation that the zoning change request be denied became final because
the Fiscal Court failed to act within ninety days after the Commission’s final
action. KRS 100.211(7) provides that “[t]he 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.” This argument is based entirely upon Zeis’s contention that the circuit
court order of March 21, 2008, was a final judgment which negated all action taken
by the Fiscal Court in overruling the Commission’s recommendation. As it
stressed in its later orders, however, the circuit court did not find that the Fiscal
Court acted arbitrarily in passing the entire ordinance, only that portion relating to
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the waiver of the open space requirement, and it remanded only as to that portion.
As the circuit court observed, “[w]hile the section of the ordinance waiving the
open-space requirements is invalid, the remaining sections of the ordinance are not
so dependent on the waiver of open-space requirements that the entire ordinance is
rendered invalid.”
Zeis also argues that the circuit court erred in considering whether the
zone change decision was supported by substantial evidence, since its initial
determination of arbitrariness was dispositive. The three grounds that underpin the
“necessary and permissible scope” of judicial review of an administrative decision
are: “(1) action in excess of granted powers, (2) lack of procedural due process,
and (3) lack of substantial evidentiary support[. ]” American Beauty Homes, 379
S.W.2d at 456. She contends that the circuit court’s finding of just one of these
factors, that the Fiscal Court had acted in excess of its granted powers in waiving
the open space requirement, rendered the entire ordinance invalid. But this
conclusion by the circuit court related solely to the open-space waiver issue. The
circuit court did not therefore err in proceeding to consider whether substantial
evidence supported the zone change.
Zeis’s next argument relates to the voting procedure of the Fiscal
Court regarding the ordinance. On July 11, 2006, the Fiscal Court voted 6 to 2 to
override the Planning Commission’s recommendation, and gave first reading to an
ordinance amending the zoning map. At the next meeting, on August 8, 2006, the
motion to give the ordinance a second reading failed initially because the vote was
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only 4 to 3. Another member of the Fiscal Court then arrived. Another vote was
taken with a result of 5 to 3 to override the Planning Commission. Zeis argues that
the second vote was arbitrary because the Fiscal Court failed to follow proper
parliamentary procedure. As the circuit court noted, KRS 100.211(1) provides that
“[i]t shall take a majority of the entire legislative body or fiscal court to override
the recommendation of the planning commission[,] and KRS 67.078(1) provides
that “a majority of a fiscal court shall constitute a quorum and a majority of a
quorum shall be sufficient to take action, except that a majority of the fiscal court
shall be required to pass an ordinance.” The Fiscal Court’s action was fully in
accordance with these statutes, and Zeis has not provided any specific citations or
references to show that the Fiscal Court violated any established voting procedures
or guidelines in allowing a second vote.
Finally, Zeis addresses four specific areas where she contends the
circuit court erred under both the American Beauty standard of review for
arbitrariness and KRS 100.213, which requires a map amendment to be in
agreement with the comprehensive plan. In reviewing these four sub-arguments,
we apply the following standard:
Basically, the judicial review of an administrative
decision provides that those issues are confined to
questions of law which are encompassed in the question:
“Was the administrative decision arbitrary?” By arbitrary
we mean clearly erroneous and by clearly erroneous we
mean unsupported by substantial evidence. By
unreasonable it is meant that under the evidence or as the
record is presented that there is no room for difference of
opinion among reasonable minds.
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Hilltop Basic Resources, Inc. v. County of Boone, 191 S.W.3d 642, 646 (Ky.App.
2006).
Firstly, Zeis argues that the zoning change application’s provision for
a new internal street is merely an effort to circumvent the Small Community
Zoning Ordinance Amendment. The pertinent section of the Zoning Ordinance
requires each lot to have frontage on a county or state road, and encroachment
permits to ensure that entrances can be installed and used safely and efficiently for
vehicular ingress and egress. The Reeveses’ application provided for a single
private drive with access from all of the lots to the public road. But each of the lots
also has frontage on the public road, as well as an encroachment permit, fully in
accordance with the Zoning Ordinance. As the circuit court observed, the Zoning
Ordinance does not prohibit the construction of an internal street within a
subdivision.
Secondly, Zeis argues that the Fiscal Court failed to refute the
Planning Commission’s finding that the application was contrary to the Small
Community Land Use District Guidelines of the Comprehensive Plan, specifically,
those guidelines which exhort planners to “Revitalize the Center;” “Grow out from
the center, but very carefully;” and “Preserve the historic and rural character [of
the area].” She contends that the Fiscal Court’s failure specifically to address these
points violated the requirement of KRS 100.213(1) that “[b]efore any map
amendment is granted, the planning commission or the legislative body or fiscal
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court must find that the map amendment is in agreement with the adopted
comprehensive plan[.]” The Fiscal Court is not, however, required to refute the
specific recommendations of the planning commission.
The fiscal court was entitled to review the evidentiary
record made before the planning commission and was at
liberty to make adjudicative findings different from those
found by the commission. Moreover, we are not
persuaded . . . that the fiscal court was required to make
additional findings indicating exactly why its decision
differed from those of the planning commission. There is
simply no such requirement.
Hilltop Basic Resources, Inc., S.W.3d 642 at 647.
Thirdly, Zeis argues that there was uncontradicted testimony in the
record that the zoning change proposal constituted “spot” zoning and “leap frog”
development, because it creates an isolated cul-de-sac which is not connected to
the existing community of Nonesuch. Zeis contends that the arrangement also
violates a comprehensive plan guideline which states that “New development
should connect and relate to the existing settlement.” As support for this
contention, Zeis relies on Fritts v. City of Ashland, 348 S.W.2d 712 (Ky. 1961), in
which a property owner sought to rezone a tract in the middle of a residential area
to industrial use for a garment factory. The appellate court observed that “It is
clear from the record that the zoning change was made because the owners of a
garment factory, which had outgrown its existing location in the city, desired to
build a new factory on the Wilson tract, and threatened to leave the city unless this
tract was made available. There is no pretense that the zoning change was a step in
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any coordinated plan for establishment of industrial districts.” Fritts, 348 S.W.2d
at 713 (Ky. 1961). The court went on to urge a more systematic approach to
rezoning:
We think the theory is that after the enactment of the
original ordinance there should be a continuous or
periodic study of the development of property uses, the
nature of population trends, and the commercial and
industrial growth, both actual and prospective. On the
basis of such study changes may be made intelligently,
systematically, and according to a coordinated plan
designed to promote zoning objectives. An examination
of the multitude of zoning cases that have reached this
court leads us to the conclusion that the common practice
of zoning agencies, after the adoption of an original
ordinance, is simply to wait until some property owner
finds an opportunity to acquire a financial advantage by
devoting his property to a use other than that for which it
is zoned, and then struggle with the question of whether
some excuse can be found for complying with his request
for a rezoning. The result has been that in most of the
rezoning cases reaching the courts there actually has been
spot zoning and the courts have upheld or invalidated the
change according to how flagrant the violation of true
zoning principles has been. It is to be hoped that in the
future zoning authorities will give recognition to the fact
that an essential feature of zoning is planning.
Id. at 714 -715.
The property at issue in the case before us is being rezoned from one
sub-classification, A-1 (Agricultural) to another, A-4 (Small Community) within
the same zone. The A-1 sub-classification exists to preserve the rural character of
the agriculture service area by promoting agriculture and related uses, while the A4 sub-classification allows for limited low density residential expansion in rural
settlements. As the appellees have pointed out, both sub-classifications have
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similar uses. Among the primary uses of A-1 property are single family detached
dwellings, agriculture, public parks, forest and conservation areas. A-4 property is
to be used primarily for single-family, detached dwellings, general horticultural
uses, and non-commercial uses. We agree with the appellees that this rezoning
decision does not exhibit the features condemned by the Fritts court. It is a
relatively gradual modification in accordance with the comprehensive plan, rather
than the random and dramatic rezoning of a tract of property at the behest of
individual landowners
Fourthly, Zeis contends that the Fiscal Court failed to make any of the
required findings under KRS 100.213, which provides, in part, that
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.
We have reviewed the Fiscal Court’s findings, and agree with the circuit court that
they are supported by substantial evidence in the record. The Fiscal Court found,
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among other things, that the proposed development supports the objective of
limited low-density residential expansion within an established rural settlement and
would further strengthen and support the Nonesuch community by providing
additional desirable housing; that the existing road can support the new
development; that the Woodford County Health Department had completed and
approved individual preliminary site evaluations, and that the water district had
verified its ability to provide sufficient water for the development. These findings
directly addressed many of the concerns underlying the Fiscal Court’s decision not
to recommend the zoning change. The Woodford Circuit Court’s decision to
affirm the zoning change was not therefore clearly erroneous.
For the foregoing reasons, the opinion and order of the Woodford
Circuit Court are affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
W. Henry Graddy IV
Randal A. Strobo
Midway, Kentucky
BRIEF FOR APPELLEES
WOODFORD COUNTY FISCAL
COURT AND ITS MEMBERS:
Jeffrey C. Mando
Covington, Kentucky
Alan J. George
Versailles, Kentucky
BRIEF FOR APPELLEE ROBERT J.
RADTKE:
William K. Moore
Versailles, Kentucky
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