GEORGE M. MURPHY v. KENTON COUNTY BOARD OF ADJUSTMENT, GEORGE NEACK, KENTON COUNTY FISCAL COURT, KENTON COUNTY MUNICIPAL PLANNING AND ZONING COMMISSION, AND ROGER SHROUT
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RENDERED: JUNE 8, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001105-MR
GEORGE M. MURPHY
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS STEPHENS, JUDGE
ACTION NO. 98-CI-01626
v.
KENTON COUNTY BOARD OF ADJUSTMENT,
GEORGE NEACK, KENTON COUNTY FISCAL
COURT, KENTON COUNTY MUNICIPAL
PLANNING AND ZONING COMMISSION,
AND ROGER SHROUT
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND McANULTY, JUDGES.
BARBER, JUDGE:
Appellant, George Murphy (“Murphy”), seeks review
of an order of the Kenton Circuit Court granting summary judgment
in favor of Appellees, Kenton County Board of Adjustment (“the
Board of Adjustment”), Kenton County Fiscal Court, Kenton County
Municipal Planning and Zoning Commission, George Neack, and Roger
Shrout, on the ground that the Board of Adjustment did not act
arbitrarily in granting a conditional use permit to Roger Shrout.
We reverse.
On or about March 23, 1998, Appellee, Roger Shrout
(“Shrout”), filed an application with the Board of Adjustment
requesting a hearing in regard to a conditional use permit to
build a golf course in an area zoned A-1 for agricultural use.
Murphy is an adjacent landowner.
KRS 100.237 provides that the Board of Adjustment
“shall have the power to hear and decide applications for
conditional use permits . . . .”
KRS 100.111(6) defines a
conditional use as:
[O]ne which is essential to or would promote
the public health, safety, or welfare in one
(1) or more zones, but which would impair the
integrity and character of the zone in which
it is located, or in adjoining zones, unless
restrictions on location, size, extent, and
character of performance are imposed in
addition to those imposed in the zoning
regulation.
KRS 100.111(7) defines a conditional use permit as:
[L]egal authorization to undertake a
conditional use, issued by the administrative
official pursuant to authorization by the
board of adjustment, consisting of two (2)
parts:
(a) A statement of the factual determination
by the board of adjustment which justifies
the issuance of the permit; and
(b) A statement of the specific conditions
which must be met in order for the use to be
permitted;
The record reflects that the Kenton County Zoning
Ordinance permits golf courses, “subject to the approval by the
Board of Adjustments [sic], as set forth in Sections 9.14 and
18.7 of the zoning ordinance.”
Section 9.14 of the Kenton County
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Zoning Ordinance provides that the Board of Adjustment may
authorize a conditional use to be located within any zone in
which such conditional use is permitted, if the evidence
presented by the applicant is such as to establish, beyond any
reasonable doubt:
1. That the proposed use at the particular
location is necessary or desirable to provide
a service or facility which will contribute
to the general well being of the neighborhood
or the community; and
2. That such use will not be detrimental to
the health, safety, or general welfare of
persons residing or working in the vicinity,
or injurious to property or improvements in
the vicinity. (emphasis added).
On April 20, 1998, a public hearing was held on
Shrout’s application.
The minutes reflect that the proposed
site is accessed from Key West Road, a substandard county road.
The site access for Key West levels out at a railroad crossing
which is signalized, but does not have an automatic crossing gate
barrier.
The existing site conditions do not comply with the
access control regulations for Kenton County.
The
recommendations of the Northern Kentucky Area Planning Commission
Staff were that the conditional use be denied, because:
1. [T]he proposed use at the particular site
is not necessary or desirable to provide a
service or facility which will contribute to
the general well-being of the neighborhood or
the community; and
2. [S]uch use, as submitted, will be
detrimental to the health, safety, or general
welfare of persons residing or working in the
vicinity. (emphasis added)
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Following discussion, a motion was made and carried to
table the issue “until further meeting when the information is
solidified, until we have some plans and specs we can look at
. . . .”
The meeting was then adjourned.
Another public hearing was held on July 20, 1998.
The
Board of Adjustment had postponed any action to give Shrout time
to get additional information.
A memorandum to the Board of
Adjustment members regarding the July 20, 1998 meeting from Bruce
Wong of the Planning Commission reflects that the existing site
conditions do not comply with the Kenton County access control
regulations, and that “[i]nformation submitted by the applicant
is insufficient and incomplete.”
The Planning Commission Staff
made the same recommendation to deny the conditional use, as it
had at the April 20, 1998 hearing.
At the July 20, 1998 hearing, Wong explained that only
some additional information had been submitted regarding the
proposed road frontage and road access.
don’t have anything else in detail.”
“Other than that, we
Mr. Neack, the Zoning
Administrator, explained Shrout had accomplished getting the
“the railroad [to give] . . . them permission to build the road
on access right-of-way, . . . .”
However, according to Wong,
“basically we would like to see exactly the access and any
improvements in the area . . . .
insufficient.”
What was submitted was
Wong explained that they did not have enough
information about safety of the access and were concerned about
the traffic pattern.
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Appellant, Murphy, an adjacent landowner, disagreed
with Shrout’s “figures” in terms of road access.
Further
discussion at the hearing reflects that:
Mr. Wong stated if the driveway would be
inadequate, well we really cannot make a
silent judgment because we don’t have the
information. If we had the information we
could come up with an evaluation.
Mr. Crout [Board member] stated I am not
understanding you to say that first of all
they have to submit plans to you and if they
are not adequate, then you are going to say
“No, this will not fly.”
Mr. Neack [Zoning Administrator] stated that
the engineering staff at Area Planning &
Zoning does this all the time. They look at
what is state and what is not state and how
roads check with other roads. They do it all
the time. Can Larry Burks people to review
it [sic].
Mr. Hoffman [Board Member] stated to review
it, but how can you say no? How can you say
it is not adequate?
Mr. Neack stated that the Board could say
that it would have to pass review
successfully at various times.
Mr. Hoffman inquired what is the Board going
to judge it against?
Mr. Neack stated whatever they use on any
other driveway. They have a set of standard
[sic] or the amount of traffic that would be
on it, how thick it would have to be and how
wide it should be.
Mr. Hoffman asked is there are standards on
the driveways.
Mr. Neack said there are standards on the
driveways. Actually, it is in the Zoning
Ordinance.
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Mr. Hoffman stated personally, I don’t see
how it is going to fit. This is saying yes
to something you don’t have any sense or
control over.
Mr. Shrout asked them if they could say yes
with a contingent on it.
Mr. Hoffman asked contingent on what?
Mr. Shrout answered that I provide a road
that is adequate. That’s what I am saying.
He has a statute and ordinance that I have
provided.
Mr. Neack stated he thought in order for this
to work, you have to have a plan to look at.
You cannot just sit here and talk about it.
You have to have a plan. You have to look at
the plan and take into consideration; does it
handle the drain and does it provide safe
curves.
Mr. Hoffman stated he doesn’t see anything
that you could judge it against.
Mr. Neack stated it is still going to depend
on traffic volume. I’m not arguing for or
against it. It competes with the County.
I’m saying if you decide you want to look at
it, that plans could be reviewed and you
could tell him whether or not it is going to
work.
Mr. Hoffman stated that he has a hard time
believing that you could put a road through
there.
Mr. Murphy [Appellant] stated that he would
like to see some survey done on the volume of
traffic at that intersection. . . and how it
would affect traffic on that railroad track.
Mr. Shrout stated that is another problem if
he’s waited that long. That’s not my
problem. If he has existing problems today,
then that should be looked at.
Mr. Wong stated that what we could do is a
study with the corps of engineers to do a
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study to make sure what is proposed is safe
and adequate.
Mr. Neack stated the ones I would use and
have used for that would be Burgess and Niple
office in Lexington and Wilbur Smith in
Lexington. They are both excellent.
Mr. Purdon [Board member] stated that she
wanted to clarify with Mr. Wong that he was
saying there are standards for this type of
situation.
Mr. Wong stated that there are standards for
a similar situation. We’re used to getting a
set of plans and also request maybe a type of
an engineers [sic] report for the design.
The architect would lay out the plans and
then they would submit a report, stating you
don’t need a stacking lane, or you do. We
base all our opinions on the engineers [sic]
report.
At that juncture, motion was made that the conditional
use permit be granted with the condition that plans be submitted
to Area Planning and Zoning and approved by them.
members voted 2 to 1 to grant the motion.
The Board
There was no further
discussion and the meeting was adjourned.
Murphy appealed to the circuit court which granted
Appellees’ motion for summary judgment.
The circuit court
concluded that “KRS 100.237(1) permits the Board to grant a
conditional use permit with attached requirements that something
be done before the request may be initiated.
Therefore, the
absence of this plan does not support a conclusion that the
Board’s decision was arbitrary.”
Murphy appeals.
KRS 100.237(1) does grant the Board authority to attach
conditions “such as time limitations,” to its approval of a
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permit, by requiring that “one (1) or more things be done before
the request can be initiated, . . . .”
(emphasis added).
However, we do not construe this language to dispense with the
fundamental requirement that the Board make findings of fact
based upon substantial evidence.
We do not believe that the
Legislature intended for permits to be approved by the Board,
upon the condition that the applicant would eventually come up
with some evidence to justify the request.
The Board of Adjustment is an administrative
board performing specified legislative
functions relative to zoning. KRS 100.217 et
seq. [citations omitted]. Power is delegated
to the board by the legislature. The board,
consistent with that delegation, must conduct
a trial-type hearing and make adjudicative
findings of fact to support its legislative
decision and to afford a basis for judicial
review. In making these findings, the board
is not held to strict judicial standards.
[citation omitted]. However, the findings
must contain sufficient information to afford
a meaningful review as to the arbitrariness
of the board's decision.
An administrative decision granting relief to
one having the burden of proof must be
supported by findings based upon substantial
evidence. Without such support, the decision
is arbitrary and cannot weather judicial
review. Arbitrary power is constitutionally
condemned in this Commonwealth. Ky. Const.
§ 2.
Bourbon County Bd. of Adjustment v. Currans, Ky. App., 873 S.W.2d
836, 838
(1994).
Shrout bore the burden of proving that he was entitled
to
the relief sought, before the Board of Adjustments could
approve his application for a conditional use.
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Here, existing
site conditions did not comply with Kenton County access control
regulations, the staff twice recommended that the conditional use
be denied, and the Board was admittedly unable to evaluate
Shrout’s request due to the insufficiency of the information
presented, despite having given him the opportunity to present
additional information following the April 20, 1998 hearing.
Our
review of the minutes from the July 20, 1998 public hearing
reveals that it is essentially a discussion about the lack of
evidence before the Board.
The Board’s decision to grant a
conditional use permit, contingent upon Shrout’s furnishing a
plan in the future, lacks a substantial evidentiary foundation.
By its very definition, a conditional use permit must contain a
“statement of the factual determination by the board of
adjustment” which justifies its issuance.
KRS 100.111(7).
The
Board acted arbitrarily by granting a conditional use permit upon
the “condition” that the applicant obtain evidence to justify its
issuance.
We reverse the judgment of the Kenton Circuit Court,
and remand the case to the Board of Adjustment with direction to
deny the conditional use permit, because the applicant failed to
present sufficient evidence.
In the event additional information
may have been obtained and/or submitted relative to the subject
application during the pendency of this appeal, due process
requires a public hearing, in accordance with KRS Chapter 100 and
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any applicable regulations/ordinances governing the Kenton County
Board of Adjustment, before that information can be considered.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Patrick M. Flannery
Covington, Kentucky
Larry B. Dillon
Counsel for Roger Shrout
Rouse, Skees, Wilson & Dillon
Florence, Kentucky
Garry L. Edmondson
Counsel for Kenton County
Board of Adjustment, Kenton
County Fiscal Court, Northern
Kentucky Municipal Planning
and Zoning Commission and
George Neack
Covington, Kentucky
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