DONALD AND THERESA McCOY v. LOUISVILLE METRO BOARD OF ZONING AND ADJUSTMENT
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RENDERED: July 7, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000881-MR
DONALD AND THERESA McCOY
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 04-CI-006857
v.
LOUISVILLE METRO BOARD OF ZONING
AND ADJUSTMENT
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE1 AND JOHNSON, JUDGES.
COMBS, CHIEF JUDGE:
Donald and Teresa McCoy have appealed from
an Opinion and Order of the Jefferson Circuit Court entered on
April 11, 2005, which granted summary judgment to the Louisville
Metro Board of Zoning Adjustment (the Zoning Board or the
Board).
After our review, we conclude that the court erred in
summarily affirming the action of the Zoning Board.
Therefore,
we reverse.
1
Judge R. W. Dyche concurred in this opinion prior to his retirement
effective June 17, 2006.
The McCoys own property at the southeast corner of
Orbit Court and Agena Drive in Louisville, Jefferson County,
Kentucky.
They wanted to build a six-foot privacy fence around
the property for privacy and for security around their swimming
pool.
Because the Land Development Code (the Code) of the
Zoning Board prohibits a fence more than four feet high, the
McCoys filed an application on May 24, 2004, for two variances
from the requirements of the Code:
one variance for the portion
of the fence in the front yard on Agena Drive and one for the
portion of the fence on the side yard on Orbit Court.
In accordance with the bylaws of the Zoning Board, a
staff report was prepared based upon an on-site inspection of
the property, information provided by the McCoys, and staff
research and findings.
the variances.
The staff report recommended approval of
On July 15, 2004, a letter was sent to the
Zoning Board from Debi Cecil, Code Enforcement Coordinator,
reporting that some of the McCoys’ neighbors had complained
about the construction of the fence.
The letter stated as
follows:
Our office responded to a request . . .
to inspect property known as 3500 Orbit
Court for zoning and property maintenance
issues.
. . . .
Upon inspection of the site [the inspector]
noticed that fence posts were being erected
in excess of the maximum height in the
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required front and side yards. Also noticed
that this is a corner lot which prohibits
building in the side yard. Inspector sent a
courtesy letter to property notifying of the
restriction on the proposed fence.
Inspector also cited for property owner
creating a public nuisance (violation of the
Property Maintenance Code). The property
owner is placing 4” x 4” posts across the
sidewalk and drainage easement. This is
obstructing the pedestrian traffic and
creating a drainage obstruction. It must be
removed. The property owner was also cited
for parking in the required front yard and
not on a hard durable surface on July 15,
2004. The vehicle is parked in a manner to
obstruct walkers and children from crossing
the property owners' yard. Thus it forces
children into the street to walk around the
property in question.
Reinspection compliance is scheduled for
July 20, [2004]. As of July 15, 2004, the
property owner has made no attempt to remove
obstructions from the sidewalk and drainage
easement.
On July 19, 2004, the Zoning Board held a public
hearing on the McCoys’ request for variances.
The McCoys
testified that they needed a higher fence to insure their
privacy and to prevent debris from a neighbor’s tree from
falling into their swimming pool.
Three of their neighbors
appeared and voiced their opposition to the proposed variances.
One neighbor stated that the variances were not needed and
expressed his belief that the extended fence would block his
view of the road, be an eyesore, box-in his house, and create a
dark corner.
A second neighbor testified that the enhanced
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fence could be a security problem and that it would obstruct her
view out the front side of her house.
The third neighbor
complained that the taller fence would be an eyesore and a
safety concern since it would be built too close to the existing
sidewalk on Agena Drive.
this testimony.
The McCoys were permitted to rebut
They re-stated their desire and need for
additional security.
Two Board members expressed their concern that a
higher fence might cause sightline problems for adjacent
neighbors when they left their driveways.
Another member was
skeptical as to how a higher fence would help keep children and
debris out of the pool.
A third member stated that he saw no
problems with the proposed variances.
Following the testimony
and presentation of evidence, three members voted in favor of
granting the variances, and two abstained from voting.
The
formal Board approval of the variances reported as follows:
WHEREAS, the Board finds, from the file of
this case, the staff report, and the
evidence and testimony submitted at the
public hearing that the proposed fence will
exceed the maximum height in the required
yards; and
WHEREAS, the Board finds the size and shape
of the lot are special circumstances which
does [sic] not generally apply to land in
the general vicinity or in the same zone;
and
WHEREAS, the Board finds the chief result of
a denial of these variances would be that
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the applicants would not be able to build
the proposed wooden privacy fence as
planned; and
WHEREAS, the Board finds that the applicants
are not responsible for the size and shape
of the lot or the location of the neighbor’s
tree; such special circumstances are not the
result of actions of the applicants taken
subsequent to the adoption of the zoning
regulation from which relief is sought; and
WHEREAS, the Board finds the site is
slightly irregular in shape; that there
appear to be similar fences throughout the
neighborhood; that the fences will be at
least 19 feet from the existing pavement;
that the additional privacy and security
will be provided with the higher fence; that
this does not appear to create any type of
sight distance concerns; therefore, the
granting of these variances 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;
NOW, THEREFORE, BE IT RESOLVED, that the
variances are hereby APPROVED.
(Resolution of July 19, 2004) (Emphasis
added.)
One week later, on July 26, 2004, the McCoys received
notice from the Zoning Board that it planned to reconsider its
decision granting the variances at a hearing to be held on
August 2, 2004; it also announced that no additional evidence or
testimony would be permitted.
Following a motion by one of the
Board members at the second meeting, four members voted to
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reconsider and to deny the request for variances.
breakdown was as follows:
The voting
two members of the Board changed
their previous votes from granting now to denying the variances;
the two members who had abstained previously now voted to deny
the variances.
A fifth member did not see a problem with the
variances and affirmed his original vote to grant the variances
as well as to deny the motion for reconsideration.
In their
complaint and appeal to the circuit court, the McCoys argued
that something “irregular occurred outside the public meeting”
between July 14, 2004, and July 26, 2004, “that was not a part
of the public record.”
The Zoning Board made the following findings:
WHEREAS, the Board finds that a 6-foot tall
wood fence would have a negative visual
impact; and
WHEREAS, the Board finds that the wood
fence, if allowed to be erected, will cause
an adverse impact on the character of the
general vicinity, will create a nuisance to
the adjoining property owners in that it is
a visual obtrusion and not in keeping with
the character of the neighborhood, and
further, the variance would allow an
unreasonable circumvention of the
requirements of the zoning regulations
because the applicant has not demonstrated
that a 6-foot tall fence is needed on the
property; and
WHEREAS, the Board determined that it erred
in approving a variance to allow the fence
to exceed four feet in height on July 19,
2004;
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NOW, THEREFORE, BE IT RESOLVED, that the
Board does hereby DENY the proposed fence to
exceed the maximum height in the required
yards. (Emphases added.)
In summary, the findings at the August 2, 2004, hearing amounted
to a complete about-face from the findings contained in the
resolution passed at the hearing of July 19.
Pursuant to KRS2 100.347(1), the McCoys filed a
complaint and appeal on August 13, 2004, in the Jefferson
Circuit Court, claiming that the Zoning Board violated the
provisions of KRS Chapter 100 in reconsidering its approval of
the variances.
KRS 100.347(1) provides as follows:
Any person or entity claiming to be
injured or aggrieved by any final action of
the [Zoning Board] shall appeal from the
action to the [c]ircuit [c]ourt of the
county in which the property, which is the
subject of the action of the [Zoning Board],
lies. Such appeal shall be taken within
thirty (30) days after the final action of
the [Zoning Board]. All final actions which
have not been appealed within thirty (30)
days shall not be subject to judicial
review. The [Zoning Board] shall be a party
in any such appeal filed in the [c]ircuit
[c]ourt.
The McCoys argued that the Board’s denial of the applications
for the two variances was arbitrary and capricious and that it
violated constitutional due process.
The Board claimed that it based its decision on
substantial evidence in the answer that it filed on September 1,
2
Kentucky Revised Statutes.
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2004.
On September 23, 2004, the Zoning Board filed a
memorandum and motion for protective order asking the circuit
court to prevent the McCoys from taking the depositions of all
the Zoning Board members and of one of its staff members.
The
McCoys responded on September 27, 2004, filing a memorandum and
motion opposing the issuance of a protective order.
They stated
that the depositions were necessary:
to determine what went on outside of the
public hearing and record to bring about the
July 26 notice and the change of votes and
findings when the record contains no
additional testimony after the first hearing
and resolution.
On October 28, 2004, the circuit court granted the Board’s
motion and quashed the McCoys’ notice for depositions.
(The
circuit court’s order states that the hearing on the motion was
videotaped; however, the McCoys did not designate that portion
of the record for our review.)
On December 9, 2004, the McCoys filed a motion for
summary judgment with an accompanying memorandum of law.
The
Board filed its own motion for summary judgment and an
accompanying memorandum of law on January 21, 2005.
Both
parties filed replies to the motions for summary judgment of
their respective adversaries.
In an Opinion and Order entered
on April 11, 2005, the circuit court granted the Board’s motion
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and denied the McCoys’ motion, noting its “extreme displeasure”
in so doing.
This appeal followed.
The summary judgment was based on the court’s review
of the action of an administrative agency, which 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
(either appellate or circuit) 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, 308-309 (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 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 (citing American Beauty
Homes Corp. v. Louisville & Jefferson Co. 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
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substantial evidence, which is defined as “‘evidence of
substance and relevant consequence, having the fitness to induce
conviction in the minds of reasonable men.’” [citation omitted.]
Fuller, 481 S.W.2d at 308.
In their appeal, the McCoys first argue that the
Board’s policy allowing for the reconsideration of the granting
of variances exceeds the statutory powers granted to it under
KRS Chapter 100.
KRS 100.243 sets out the findings the Zoning
Board must make before it grants a variance and provides, in
relevant part, 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.
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They argue that KRS Chapter 100 does not provide a mechanism
(such as adopting a bylaw) to enable the Board to reconsider one
of its final decisions.
In response, the Board argues that the
granting or denial of variances is one of its basic functions
and that it is not bound by staff reports prepared before a
hearing takes place.
KRS 100.221(3) requires the Zoning Board to “adopt
bylaws for the transaction of business . . . .”
The Board
accordingly adopted the following bylaws containing a procedure
for reconsideration:
9.01
No appeal, application, or other
matter acted upon by the Board may be
reconsidered, except:
9.01.01
Upon motion by a member of the
Board who voted with the majority.
9.01.02
Said motion must be seconded by
any member of the Board either for
reconsideration, or rehearing.
9.01.03
Such motions for reconsideration
shall be made[, and reconsideration shall
occur,]3 within thirty (30) days of the
Board’s original vote.
In analyzing whether the Board exceeded its authority in
establishing these bylaws, we must first determine whether KRS
100.221(3) provides “general standards” or “the statute in
3
The Zoning Board notes in its brief that Section 9.01.03 was amended to add
the language “and reconsideration shall occur.” Although this wording is
included in the court’s order, the copies of the bylaws in the record before
this Court do not include this language.
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itself prescribes the exact procedure[.]”
Union Light, Heat &
Power Co. v. Public Service Commission, 271 S.W.2d 361, 365 (Ky.
1954).
If the statute provides general standards, the Zoning
Board “may implement the statute by filling in the necessary
details”; but if it is specific, “the administrative agency may
not add to or subtract from such a provision.”
Id.
The McCoys argue that KRS 100.221(3) does not leave
latitude for such a reconsideration of the Board’s final
decision regarding variances because it affects the specifically
detailed appellate procedure of KRS 100.347.
They contend that
KRS 100.347(1) requires that an appeal of a Zoning Board’s
decision on a variance be taken within the same thirty days as
the bylaws grant for reconsideration.
In its order, the circuit court carefully addressed
this argument and reasoned as follows:
An appellant shall have [30] days from the
date of the approval or disapproval of a
matter pending before [the Zoning Board]; if
[the Zoning Board] should notify an
appellant it intends to reconsider and makes
a last minute finding not to reconsider,
that appellant does not, as the McCoys
contend, have mere hours to appeal the
decision. As the [c]ourt sees it, the
appellant would have [30] days from the time
the reconsideration was decided one way or
another. Further, should an appellant be
aggrieved with a decision and decide to
appeal it, and by some strange chance [the
Zoning Board] moved to reconsider the
decision after an appeal had been made, the
simple solution would be to hold the appeal
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in abeyance until the reconsideration
decision had been made. This is common
sense and in keeping with the tenet that
appellants are to exhaust all administrative
remedies before seeking judicial relief.
(Emphases added.)
The court correctly held that a zoning bylaw or
regulation permitting reconsideration of Board action is not
prohibited by KRS Chapter 100.
While KRS 100.221(3) does not
expressly state that the Zoning Board may enact bylaws allowing
it to reconsider certain matters, we conclude that the power to
enact bylaws “for the transaction of business” is sufficiently
broad to empower the Zoning Board to adopt a policy for
reconsideration of its decisions.
We find no error on this
issue.
The McCoys next argue that the Zoning Board deprived
them of due process when it refused to allow additional evidence
or testimony at the reconsideration hearing on August 2, 2004,
resulting in a decision that was not supported by substantial
evidence.
The McCoys cite Morris, supra, which sets forth the
required procedural process for matters before a zoning board as
follows:
We have held that procedural due
process by an administrative body includes:
“. . . a hearing, the taking and weighing of
evidence if such is offered, a finding of
fact based upon a consideration of the
evidence, the making of an order supported
by substantial evidence, and, where the
party’s constitutional rights are involved,
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a judicial review of the administrative
action. . . .”
Morris, 437 S.W.2d at 755. (citations omitted.)
The McCoys argue that since a reconsideration was
granted, the Board was required to receive additional evidence.
At the time of the original hearing and the initial discussion,
the record did contain testimony concerning the potential
problems and the objections involving the fence.
Thus, evidence
existed that would have supported a different ruling at the
first meeting as the Zoning Board has discretion to choose which
testimony to believe in case of conflicting or contradictory
evidence.
Fuller, 481 S.W.2d at 307.
As an appellate court, we may not substitute our
judgment for that of an administrative agency where substantial
evidence exists to support its official action.
In this case,
however, there is no clue as to what judgment was exercised by
the Board since there is neither explanation nor evidence -much less any of a substantial nature -- upon which it based its
sudden and dramatic change of decision.
Within the period of
one week (July 19 - July 26, 2004), the Board decided to
reconsider its action; and then at its August 2, 2004, hearing,
it did a complete about-face with no additional evidence having
been taken and absolutely no reasoning explaining its reversal
of its original decision to grant the variances.
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In the space of two weeks, the recitations of the
Board flip-flopped from describing the fences as follows:
... that there appear to be similar fences
throughout the neighborhood ... that this
does not appear to create any type of sight
distance concerns ....
NOW, THEREFORE, BE IT RESOLVED, that the
variances are hereby HEREBY APPROVED. July
19, 2004
Note the contrast:
... the wood fence ... will create a
nuisance to the adjoining property owners in
that it is a visual obtrusion and not in
keeping with the character of the
neighborhood ....
NOW, THEREFORE, BE IT RESOLVED, that the
Board does hereby DENY the proposed fence
.... August 2, 2004
While we do not agree that the Board lacked statutory
authority to reconsider a matter before it, we are compelled to
concur with appellants that due process was seriously impaired - if not denied -- when the Board radically changed its decision
while barring presentation of any additional evidence.
Absent
some newly discovered evidence or at the very least some
reasoning as to the Board’s wholly different treatment of the
evidence already before it, there is no rational explanation for
the total reversal of its decision.
Fallon v. Baker, 455 S.W.2d
572 (Ky. 1970), expresses the rudimentary principle that
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evidentiary support must be present as a prerequisite for
meaningful due process.
The disturbing issue in this case is the unanswered
question, “Why?”
Why did the dramatic reversal occur?
The
appellants were deprived of an opportunity to depose Board
members, further exacerbating their obvious frustration and
confusion as to why a governmental body exercised its powers as
it did.
The appellants imply that improprieties may have
occurred in the week that intervened between July 19 and the
July 26 announcement of the decision to reconsider.
We need not
speculate nor point an accusatory finger as to allegedly
unsavory motives by the Board.
It is quite sufficient to base
this reversal on the troubling departure from due process
rendering this zoning action both arbitrary and capricious under
the most classic definitions of those terms.
Consequently, we reverse the opinion and order of the
Jefferson Circuit Court.
DYCHE, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FILES SEPARATE OPINION.
JOHNSON, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
I concur with the Majority’s opinion to the extent that
it has affirmed the Zoning Board’s authority to enact bylaws to
govern reconsideration of its decisions.
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However, as to the
Majority’s decision that the McCoys were denied due process of
law when the Zoning Board overturned its decision to grant the
McCoys’s request for certain variances, without taking
additional proof, I must respectfully dissent.
The Majority has cited Fallon for the proposition that
without new evidence or some compelling reason as to the Zoning
Board’s complete change of position based on the evidence
already before it, there is no rational explanation for the
total reversal of the Zoning Board’s decision.
I disagree.
The Court in Fallon stated:
[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
consideration: (1) whether the 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 for the findings of the public
bodies[.]4
The Majority’s reversal seems to turn on the following
summation:
While we do not agree that the Board
lacked statutory authority to reconsider a
matter before it, we are compelled to concur
with appellants that due process was
seriously impaired – if not denied – when
the Board radically changed its decision
while barring presentation of any additional
4
Fallon, 455 S.W.2d at 574.
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evidence. Absent some newly discovered
evidence or at the very least some reasoning
as to the Board’s wholly different treatment
of the evidence already before it, there is
no rational explanation for the total
reversal of its decision. Fallon v. Baker,
455 S.W.2d 572 (Ky. 1970), expresses the
rudimentary principle that evidentiary
support must be present as a prerequisite
for meaningful due process.
I reject the Majority’s reasoning because the record in
this case contains substantial evidence to support either an
affirmative decision to grant the variances or a decision to
deny the variances.
There is no reason the record would need to
be supplemented in this case for the Zoning Board to have
rendered a different opinion.
I agree with the Zoning Board
that neither KRS 200.121, nor its own bylaws, which the Majority
has held are appropriate, require any additional testimony or
evidence be taken if a matter before it is reconsidered.
I fail
to see how this case is any different from many where there is
substantial evidence which would support one position and
contrary evidence which will support the other position.
The
Zoning Board has the discretion to choose which testimony, if
conflicting, to believe.5
In such an instance, the only way a
denial of due process would occur would be if there was proof of
some impropriety in the alternate decision.
While the Majority
takes issue with the fact that the circuit court refused to
5
Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 309 (Ky. 1972).
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allow the McCoys to depose the Zoning Board members to determine
an explanation for why it reversed its decision, and while I
would agree that the circuit court may have erred in this
instance, this issue was not argued on appeal and, therefore,
was not properly preserved for our review.
Thus, this issue
should not have any impact in a decision as to whether the
McCoys were denied due process of law, and I would affirm.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Kyle T. Hubbard
Louisville, Kentucky
Jonathan L. Baker
Louisville, Kentucky
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