DANNY McKINNEY; NANCY McKINNEY; PATRICK HALLORAN; AND PHYLLIS HALLORAN v. JESSAMINE COUNTY; JESSAMINE COUNTY-CITY OF WILMORE JOINT PLANNING COMMISSION; PETER BEATY, MEMBER OF JOINT PLANNING COMMISSION; KEN HOUP, MEMBER OF JOINT PLANNING COMMISSION; CHARLES V. KESTEL, JR., MEMBER OF JOINT PLANNING COMMISSION; JOHN BLACKFORD, MEMBER OF JOINT PLANNING COMMISSION; WAYNE McCRAY, MEMBER OF JOINT PLANNING COMMISSION; C. V. ELLIOTT, MEMBER OF JOINT PLANNING COMMISSION; JOSEPH L. POAGE, MEMBER OF JOINT PLANNING COMMISSION; ED McKINLEY, MEMBER OF JOINT PLANNING COMMISSION; JOHN FITCH, JR., MEMBER OF JOINT PLANNING COMMISSION; AND RICHARD HARDEN, MEMBER OF JOINT PLANNING COMMISSION
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RENDERED: JULY 25, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001566-MR
AND
NO. 2001-CA-001654-MR
DANNY McKINNEY;
NANCY McKINNEY;
PATRICK HALLORAN; AND
PHYLLIS HALLORAN
v.
APPELLANTS/CROSS-APPELLEES
APPEAL AND CROSS-APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 97-CI-00631
JESSAMINE COUNTY;
JESSAMINE COUNTY-CITY
OF WILMORE JOINT PLANNING
COMMISSION;
PETER BEATY, MEMBER OF
JOINT PLANNING COMMISSION;
KEN HOUP, MEMBER OF
JOINT PLANNING COMMISSION;
CHARLES V. KESTEL, JR.,
MEMBER OF JOINT PLANNING
COMMISSION;
JOHN BLACKFORD, MEMBER OF
JOINT PLANNING COMMISSION;
WAYNE McCRAY, MEMBER OF
JOINT PLANNING COMMISSION;
C. V. ELLIOTT, MEMBER OF
JOINT PLANNING COMMISSION;
JOSEPH L. POAGE, MEMBER OF
JOINT PLANNING COMMISSION;
ED McKINLEY, MEMBER OF
JOINT PLANNING COMMISSION;
JOHN FITCH, JR., MEMBER OF
JOINT PLANNING COMMISSION; AND
RICHARD HARDEN, MEMBER OF
JOINT PLANNING COMMISSION
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE. Danny McKinney and Nancy McKinney (“the
McKinneys”) appeal from a decision of the Jessamine Circuit
Court affirming a decision of the Jessamine County-City of
Wilmore Joint Planning Commission’s (“the Commission”) denial of
the McKinneys’ application for a subdivision regulation
variance.
For the reasons set forth below, we affirm in part,
reverse in part, and remand.
On December 27, 1996, the McKinneys purchased a parcel
of real property situated adjacent to U.S. 27 in Jessamine
County, Kentucky from Charles Moore (“Moore”).
In March, 1997,
they applied to the Commission for a building permit in order to
build a commercial structure on the parcel.
After some
negotiation with the administrative officer, language was added
to the application stating that there would be no direct access
from the parcel to U.S. 27.
Rather, access would come via a
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connecting road called Groggins Ferry Road or from “Sleepy Head
House”.1
The McKinneys’ business, American Backyard Buildings,
was completed and began operation in 1997.
When the McKinneys
were unable to get permission to use the Sleepy Head House
entrance to U.S. 27, they began accessing U.S. 27 directly in
violation of the terms of the building permit.
On August 14,
1997, they were served with a cease and desist order based on
the violation of the Commission’s subdivision regulations.
The McKinneys did not appeal the cease and desist
order to the Board of Adjustment as provided by statute.
Rather, on September 29, 1997, they filed with the Commission an
application for a variance from the regulation.
On November 11,
1997, the Commission denied the application.
Thereafter, the McKinneys filed an appeal of the
Commission’s decision to the Jessamine Circuit Court.
The
Commission counterclaimed, seeking an injunction enforcing the
cease and desist order.
Upon taking proof, the circuit court
rendered a decision on June 21, 2001, affirming the Commission’s
denial of the McKinneys’ application for a variance and denying
the Commission’s counterclaim seeking an injunction.
As a basis
for the decision, it opined that the McKinneys failed to meet
their burden of proving that the Commission’s decision was
1
The parties do not reference what Sleepy Head House is, though we may assume
that it is an adjoining business.
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arbitrary and that the Commission erred as a matter of law.
On
the Commission’s counterclaim, the court concluded that the
McKinneys did not fail to exhaust their administrative remedies
because they applied for a variance.
This appeal followed.2
The McKinneys now argue that the circuit court erred
in affirming the Commission’s decision denying their application
for a variance.
They maintain that the circuit court improperly
concluded that an encroachment permit issued by the Commonwealth
did not avail them of access to U.S. 27; that it incorrectly
concluded that the Commission did not waive its right to enforce
its subdivision regulations; that it erroneously approved the
Commission’s decision not to permit the McKinneys’ use of the
access; that the court should have applied the “honest error”
doctrine to resolve the dispute; and, that KRS Chapter 100 does
not authorize the Commission to regulate the McKinneys’ access
to U.S. 27.
They seek an order vacating the decision of the
Jessamine Circuit Court.
We have closely studied the record, the law, and the
written arguments, and find no basis for tampering with the
circuit court’s decision as it relates to the McKinneys’
arguments.
While the McKinneys make several claims of error,
the corpus of their argument is that the trial court erred in
2
During the pendency of this appeal, the McKinneys sold the parcel to Patrick
and Phyllis Halloran. Pursuant to an order of this Court, the Hallorans
joined the appeal as appellants/cross-appellees.
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affirming the Commission’s decision not to grant the McKinneys’
request for a variance.
As the Commission and the circuit court
have properly noted, the standard of review is not whether any
substantial evidence exists to support the Commission’s
decision.
Bourbon County Board of Adjustment v. Currans, Ky.
App., 873 S.W.2d 836 (1994).
Rather, since the McKinneys did
not receive the relief sought before the Commission, the
question is whether substantial evidence exists in the record to
compel a decision that the McKinneys were entitled to the relief
sought. Id.
In support of their argument on this issue, the
McKinneys characterize the question as whether the Commission
properly exercised its police power in a fair and reasonable
manner for promotion of the common good.
Pursuant to Currans,
though, the burden rests with them to point to any substantial
evidence in the record which compels a conclusion that the
variance was necessary.
They have failed to meet this burden.
While they offer arguments as to why the Commission might have
ruled in their favor, they have offered little as to why that
result was compelled.
compels relief.”
“The argument should be that the record
Currans, 873 S.W.2d at 838.
As there is
little evidence to support the conclusion that the Commission
was compelled to create the variance sought by the McKinneys,
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the circuit court did not err in affirming the Commission on
this issue.
The McKinneys also argue that KRS 177.020 vests
control of U.S. 27 solely with the Commonwealth.
As such, they
maintain that the encroachment permit issued by the Commonwealth
to the prior landowner, Charles Moore, supercedes or otherwise
supplants that Commission’s exercise of jurisdiction over the
matter.
The circuit court adopted the Commission’s argument on
this issue, to wit, that the clear and unambiguous terms of the
permit provided 1) that the permit was personal to Moore and
“shall not inure to his successors and assigns”, and 2) that the
“permit does not alleviate any requirements of any other
government agency.”
The terms and conditions of the permit
refute the McKinneys’ argument on this issue, and the circuit
court properly so found.
The McKinneys’ next argument is that the circuit court
should have concluded that the Commission waived its right to
enforce its subdivision regulations when it approved Moore’s
plat and later issued a building permit to the McKinneys.
They
maintain that by issuing the building permit in the absence of
essential infrastructure (i.e., Moore Drive), and by tacitly
acquiescing to the subject lot being accessed by means of the
encroachment permit for approximately three years, the
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Commission waived its right to enforce the subdivision
regulations it now seeks to enforce.
The circuit court concluded that nothing done by the
Commission or its administrative officer can be construed as a
waiver of the subdivision regulations.
tampering with this conclusion.
We find no basis for
The building permit, which Mr.
McKinney signed and accepted, states that the McKinneys shall
not access U.S. 27 directly.
While this provision was not
enforced until Moore Road was made accessible some three years
later, we cannot construe this as a waiver of the right to
enforce the building permit.
The McKinneys accepted the
restriction before building commenced, and were well aware at
that time that Moore Drive was not yet accessible.
The
restriction to U.S. 27 access was enforced only to the extent so
stated on the face of the building permit, and we find no error
on this issue.
The McKinneys’ fourth argument is that the court
should have applied the doctrine of “honest error” to the
resolution of this case.
Citing, City of Berea v. Wren, Ky.
App., 818 S.W.2d 274 (1991), they contend that when an
administrative official errs in good faith and a property owner
relies on such action, the governmental entity is estopped from
enforcing its regulations to the detriment of the property
owner.
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As we have not concluded that the Commission or an
administrative official erred in the matter at bar, Wren and the
doctrine of honest error are not applicable herein.
Lastly, the McKinneys claim that KRS Chapter 100 does
not authorize the Commission to regulate their access to U.S.
27.
The circuit court did not address this issue, leaving us
with nothing to review.
See generally, Payne v. Hall, Ky., 423
S.W.2d 530 (1968), holding that a matter not ruled on by the
trial judge must be presented by a motion for a new trial before
there can be appellate review of the matter.
Nevertheless, we
will note that the case relied upon by the McKinneys, Rieke v.
City of Louisville, Ky. App., 827 S.W.2d 694 (1991), supports
the Commission’s position that direct access to U.S. 27 may be
denied.
In addressing public thoroughfares, it states that “an
abutting owner cannot complain so long as he has reasonable
access to the street system.”
Rieke, 827 S.W.2d at 697.
The
McKinneys, and their successors in interest, have reasonable
access to the street system via Moore Drive, and accordingly we
find no basis for tampering with the decision on appeal on this
issue.
On the Commission’s counterclaim, its sole claim of
error is that it is entitled to a permanent injunction
prohibiting the McKinneys and their successors from directly
accessing U.S. 27.
As a basis for its argument, the Commission
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maintains that the McKinneys have failed to exhaust their
administrative remedies thus entitling the Commission to a
permanent injunction on the matter.
The circuit court opined
that the McKinneys did not fail to exhaust said remedies because
they “continued their efforts before the administrative body,
i.e., the Board of Adjustment by applying for a variance
following the decision of the administrative officer.”
We must conclude that the circuit court erred on this
issue.
With respect to the administrative remedies available to
the McKinneys after the issuance of the cease and desist order,
KRS 100.261 states that, “[s]uch an appeal shall be taken within
thirty (30) days . . . by filing with the board a notice of
appeal . . . .” (Emphasis added).
It is uncontroverted that the
McKinneys did not appeal to the board within 30 days from the
issuance of the cease and desist order.
In fact, they never
appealed to the board.
The circuit court opined that the McKinneys’
application to the Commission for a variance is the functional
equivalent of an appeal to the board.
Even if this were true,
the application for the variance was not made within 30 days
from the issuance of the cease and desist order.
More
important, the application for a variance simply is not an
appeal to the board as required by KRS 100.261.
Any landowner
or affected person may seek from the Commission a variance
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without first being subject to a cease and desist order.
The
administrative appeals process, however, is wholly different and
is governed by statute.
KRS 100.337 provides that the “[c]ommission shall have
a cause of action for all appropriate relief including
injunctions against any . . . aggrieved person who violates
. . . regulations adopted hereunder.”
Since the circuit
court’s basis for denying the injunction was its conclusion that
the McKinneys availed themselves of the administrative process,
and as we find that conclusion to be erroneous, we reverse the
circuit court’s decision on this issue and remand the matter for
a determination of whether the Commission is entitled to an
injunction pursuant to KRS 100.337.
While an injunction may be
redundant in light of the fact that the issue of access to U.S.
27 has been ruled upon by the trial court and now the appellate
court, the Commission should be availed of its right to seek an
injunction pursuant to KRS 100.337 should it so desire.
For the foregoing reasons, we reverse the Jessamine
Circuit Court’s decision as to its conclusion that the McKinneys
exhausted their administrative remedies, and remand the matter
for consideration of the Commission’s claim that it is entitled
to an injunction.
The decision is in all other respects
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
David Russell Marshall
Nicholasville, KY
Bruce Smith
Christopher L. Stansbury
Nicholasville, KY
Stephen G. Amato
Melinda G. Wilson
Lexington, KY
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