CHEROKEE PARK NEIBORHOOD ASSOCIATION, INC. VS. 1713 NICHOLASVILLE RD., LLC, ET ALAnnotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CHEROKEE PARK NEIGHBORHOOD
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 04-CI-02133
1713 NICHOLASVILLE ROAD, LLC;
DR. JOHN W. GILBERT; LEXINGTONFAYETTE URBAN COUNTY GOVERNMENT
BOARD OF ADJUSTMENT; MEMBERS OF
THE LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT IN THEIR OFFICIAL
CAPACITIES: JOANNE BELL,
PETER E. BROWN, PAULA DEBOOR,
SARAH GREGG, JAMES GRIGGS, HERBERT
A. MILLER, AND DAVID P. WINTERS;
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT, DIVISION OF BUILDING
INSPECTION; AND CURT FARLEY, DIRECTOR
OF THE LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT, DIVISION OF
BUILDING INSPECTION IN HIS OFFICIAL
OPINION AND ORDER
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
GRAVES, SENIOR JUDGE: Cherokee Park Neighborhood Association, Inc.
appeals from an order of the Fayette Circuit Court which found that the board of
adjustment acted outside its jurisdiction in denying the use of an access point to
commercial property. We affirm.
Since 1965, various businesses occupied commercial property located
at the northwest corner of Nicholasville Road and Cherokee Park Road in
Lexington, Kentucky. After purchasing the property, appellee, Dr. John W.
Gilbert, razed the existing building in order to construct a new medical facility.
The property contained two circular driveways that provided vehicular access
points on both Nicholasville Road and Cherokee Park Road. The Cherokee Park
Road access point is at issue in this case. There was varying evidence regarding
the historical use of the Cherokee Park access. However, there was no evidence in
the record of any legal action that had been taken to eliminate the access point.
Dr. Gilbert was granted a building permit in September 2003. In
October 2003, the Neighborhood Association filed an appeal to the board of
adjustment arguing that retention of the existing Cherokee Park access was
hazardous. The board of adjustment overturned the issuance of the building permit
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
because it found that the Cherokee access was adjacent to a public park and that
there was an inadequate study of the traffic impact upon the public park. Dr.
Gilbert then applied for another building permit. The division of traffic
engineering conducted an analysis of the traffic impact in the area that concluded
that the access did not create a hazard. The division of building inspection issued
another permit. The Neighborhood Association filed another appeal to the board
of adjustment which reversed the portion of the building permit regarding the
Cherokee Park access. Dr. Gilbert then filed a complaint in the Fayette Circuit
Court. The trial court found that the board of adjustment acted outside of its
jurisdiction and ordered the reinstatement of the building permit in full force and
effect. This appeal followed.
KRS 100.261 provides:
Appeals to the board may be taken by any person, or
entity claiming to be injuriously affected or aggrieved by
an official action, order, requirement, interpretation,
grant, refusal, or decision of any zoning enforcement
officer. Such appeal shall be taken within thirty (30) days
after the appellant or his agent receives notice of the
action of the official by filing with said officer and with
the board a notice of appeal specifying the grounds
thereof, and giving notice of such appeal to any and all
parties of record. Said officer shall forthwith transmit to
the board all papers constituting the record upon which
the action appealed from was taken and shall be treated
as and be the respondent in such further proceedings. At
the public hearing on the appeal held by the board, any
interested person may appear and enter his appearance,
and all shall be given an opportunity to be heard.
Persons aggrieved by determinations of the board in turn may take appeals to the
circuit court pursuant to KRS 100.347. Administrative decisions granting relief to
the party bearing the burden of proof must be supported by substantial evidence.
Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky.App.
1994). Otherwise, the decision is arbitrary and cannot withstand judicial review.
In the present case, the Neighborhood Association bore the burden of
proof before the board of adjustment and was granted relief. We find that the
board of adjustment acted arbitrarily in denying the portion of the building permit
relating to the Cherokee Park access. The property in question was zoned
commercial in 1965. The Cherokee Park access has existed continuously since that
time. It is undisputed in the record that no legal action was ever taken to eliminate
this access. Also, Dr. Gilbert applied for a building permit rather than a
conditional use permit or a variance. There was no essential change in character.
The division of traffic engineering conducted a study which found that the access
did not create a hazardous condition. The division of building inspection complied
with the ordinances and, therefore, issued the permit. This was all that was
necessary to ensure the permit’s validity. Retention of a preexisting access point is
simply not an enforcement of the zoning regulations. Rather, the Neighborhood
Association’s attack on the building permit was an attempt to relitigate the original
zoning classification of the property without evidence of a variance or nonconforming use.
Accordingly, the order of the Fayette Circuit Court is affirmed. This
Court ORDERS that the appellees’ motion to dismiss the appeal be, and it is
ENTERED: August 22, 2008
/s/ John W. Graves
SENIOR JUDGE, COURT OF
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Anne A. Chesnut
Michael L. Ades