CITIZENS FOR THE PRESERVATION OF JESSAMINE COUNTY, LLC VS. COOPER DEVELOPMENT, LLC , ET AL.
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RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
ORDERED NOT PUBLISHED BY SUPREME COURT:
AUGUST 19, 2009
(FILE NOS. 2009-SC-000063-D & 2009-SC-000064-D)
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001460-MR
CITIZENS FOR PRESERVATION
OF JESSAMINE COUNTY, LLC
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 06-CI-00525
COOPER DEVELOPMENT, LLC; JESSAMINE
COUNTY/CITY OF WILMORE JOINT PLANNING
COMMISSION; PETER BEATY, CHAIRMAN;
CHARLES KESTEL, JR., JOSEPH L. POAGE, CHARLES
FULLER, JANE BALL, JAMES McKINNEY, DWIGHT
WINTER, ANNETTE SPARKS, ISAIAH SUIRBROOK,
DON COLLIVER, IN THEIR CAPACITIES AS MEMBERS
OF THE JESSAMINE COUNTY/CITY OF WILMORE
JOINT PLANNING COMMISSION
OPINION
AFFIRMING IN PART, AND
REVERSING AND REMANDING IN PART
** ** ** ** **
APPELLEES
BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: The issues before us relate to a landowner’s right to
proceed with a cluster development as a permitted use within an agriculturally
zoned area. For the reasons stated hereafter, we affirm in part, and reverse and
remand in part, the decision of the Jessamine Circuit Court.
Appellee landowner Cooper Development, LLC (Cooper) filed an
application with appellee Jessamine County/City of Wilmore Joint Planning
Commission (Planning Commission) seeking to proceed with a proposed cluster
development of 45 residential lots on a 155.46-acre tract in Jessamine County as a
permitted use within an agricultural zone. Appellant Citizens for Preservation of
Jessamine County, LLC (Citizens) opposed the development, and a hearing was
conducted before the Planning Commission.
Cooper produced extensive evidence to support its application.
Citizens asserted, however, that the property’s development would harm both the
operation of an adjacent horse farm, and the ongoing efforts to preserve the
agricultural nature of the surrounding community. Private citizens and owners of
neighboring properties spoke both in favor of and against the proposed
development. The Planning Commission then made the following findings and
conclusions before denying Cooper’s application:
FINDINGS OF FACT
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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1. A Special Meeting to consider the Application of
Cooper Development, LLC for approval of a
preliminary plat for a proposed cluster development of
155.46 acres of land owned by it, presently zoned A-1
and located approximately one-mile north of the
junction of U.S. highway 68 and Kentucky highway
29, to be called “Barkley Woods, Unit 7”, was held on
Tuesday, May 30, 2006.
2. The application proposed sub-dividing the land into
45, one acre lots for single-family residences, with the
remaining land, less proposed roads, to be reserved
for agricultural or open space usage. Fourteen of the
proposed lots would be considered “additional lots in
exchange for demolition or removal” of existing,
habitable dwellings, pursuant to section 1.8 of the
Zoning Ordinance.
3. The land is bordered on the west by existing U.S.
highway 68; on the east by Jessamine Creek and
Foxtale Farm; on the south by existing Barkley
Woods Subdivision (R-1); and on the north by
existing A-1 zoned properties, which are either being
used for agricultural (i.e. equine) or residential
purposes as permitted uses in the A-1 zone.
4. The land is located in a scenic area of Jessamine
County that contains, both historically and presently,
a large concentration of horse farm operations,
including several of world reknown, such as for
example, Almahurst Stud and Ramsey Farm.
5. The land is covered in at least three different types of
soil at varying depths, with karst substrata and
sinkholes of various sizes, including one very large
one on the north west side bordering U.S. 68 which is
encompassed within the proposed septic drip field
treatment area.
6. The 100-year flood plain for Jessamine Creek, which
flows the length of the land’s eastern boundary,
encroaches on the proposed development in general,
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and in particular, on at least one of the proposed lots
as shown on the submitted preliminary plat.
7. Conflicting proof was presented regarding the relative
demand for cluster development lots in Jessamine
County at the present time. There are at least 21,
currently-approved cluster developments. There may
be as many as 54.9% of those lots currently on the
market for sale, being held for resale or currently
being built upon for resale. In any event, it appears
that there is more supply than demand.
8. Conflicting proof was presented whether there was
adequate proposed screening to protect the scenic
viewsheds of adjoiners or whether, overall, the
proposal adequately minimized visibility of cluster
lots from adjacent property or public right-of-ways.
However, Applicants did not submit a landscape and
buffering plan per se, pursuant to Section
3.224(A)(iii)(I)(vii), p.15c, of the Zoning Ordinance.
CONCLUSIONS OF LAW
Based on all the findings made above, it is the
conclusion of the Jessamine County-City of Wilmore
Joint Planning Commission that the application by
Cooper Development, LLC, for approval of a preliminary
plat, should be denied, and it makes the following
conclusions of law in support thereof:
1. Although a cluster development is a permitted use in
an A-1 zone, pursuant to our Zoning Ordinance, it is
equally clear that the Commission is vested with
exercise of its sound discretion whether to permit it or
not based upon application of the general principles of
the Comprehensive Plan and whether the proposal
complies with the letter and spirit of the cluster
development portions of the Ordinance. It is simply
not a rubber stamp, taking ministerial action,
mandated to approve every cluster development
proposed.
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2. It appears that the evidence as a whole shows that the
general principles of the Comprehensive Plan to
adequately protect and preserve natural and scenic
features (including viewsheds), to promote activities
to enhance and take advantage of Jessamine
County’[s] history and culture, to recognize
agribusiness as an important industry and encourage
its diversification and expansion, and to only permit
cluster developments to allow environmentally and
agriculturally productive areas to be protected and to
remain undeveloped, are not being adequately met by
this proposal for these following reasons specifically,
among others: (a) its location in an area of the county
adjacent to and in the vicinity of existing, historic and
significant equine operations, which undoubtably [sic]
potentially impacts the continued viability of the
adjacent horse farms and impacts future usage of
horse farm operations in the vicinity; (b) its impact on
scenic watersheds, both natural and of adjoining
landowners; and (c) its conversion of prime
agricultural land to residential usage in such a way by
design which makes the remaining acreage more
likely to be used as “open space” versus actual,
continued agricultural usage.
3. The applicant bears the burden of demonstrating the
adequacy of the proposed infrastructure for the
development at the time of hearing, including the
proposed disposal of sewage. Applicants failed to so
demonstrate that its septic system is adequate in that it
proposes a drip drain field over top of an existing
sinkhole, with covering soils that may not be of
adequate depth, using a method rarely used or tested
by experience in the Bluegrass karst topography;
thereby creating a not insignificant risk of future
problems of release of effluent and contamination of
groundwater.
4. The applicant failed to submit a landscape and
buffering plan that shows adequate protections to
minimize visibility of the development from adjoiner
landowners and/or right-of-ways.
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5. It appears that there is no compelling need at the
present time for additional cluster development lots in
Jessamine County. Supply of such lots exceeds
demand; therefore, this development is premature.
Since actual agricultural usage preservation is the goal
of the Zoning Ordinance in the A-1 zone whenever
possible, when a proposed development appears to be
premature, Section 3.224(A)(iii)(1)(viii), at p.15d,
requires it to be discouraged.
6. Finally, it is important to note that the [sic] it is not
perhaps any one of the reasons individually that has
caused the Commission to reach its ultimate
conclusion; but the entirety of the evidence as a whole
measured on balance that sways it to conclude that
this proposal should be denied at the present time.
Time and circumstances may change; however at the
present time the negatives outweigh the positives and,
ultimately, it is the applicant that bears the burden of
convincing the Commission that the soundness of its
proposal meets the letter, spirit and intent of the
Comprehensive Plan and the Zoning Ordinance and it
has failed to do so.
Cooper appealed to the Jessamine Circuit Court, which reversed the Planning
Commission’s decision and approved the requested land use.2 This appeal
followed.
Judicial review of an administrative agency’s decision is limited to
determining whether (1) the agency exceeded its granted powers, (2) the parties
were afforded procedural due process, and (3) the agency’s decision was supported
2
The record shows that in September 2006, Cooper and the Planning Commission entered into a
settlement agreement, “subject to any resolution of this cause of action by the Court that
contradicts said approval[,]” whereby Cooper agreed to enhance the landscape screening of the
property, and to dismiss its circuit court claims against the Planning Commission, in exchange
for the Planning Commission’s reconsideration and approval of Cooper’s application for a
cluster development. Thus, the Planning Commission is not a party to this proceeding. On
November 6, 2006, the trial court entered an order declaring that it would adjudicate whether the
Planning Commission’s decision “was arbitrary and capricious and/or not supported by the
evidence . . . without regard to the proposed Settlement Agreement[.]”
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by substantial evidence. American Beauty Homes Corp. v. Louisville & Jefferson
County Planning & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). A court’s
review of an administrative decision is not de novo, but instead turns on a
determination of whether the decision was arbitrary or capricious, based on the
record made before the administrative agency. Id. at 456-57. See also City of
Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky. 1973); Oldham Farms Dev.,
LLC v. Oldham County Planning & Zoning Comm’n, 233 S.W.3d 195, 196
(Ky.App. 2007). An administrative decision is arbitrary, and therefore clearly
erroneous, if it is not supported by substantial evidence. Fritz v. Lexington-Fayette
Urban County Gov’t, 986 S.W.2d 456, 458 (Ky.App. 1998). Substantial evidence
is defined as “evidence of substance and relevant consequence having the fitness to
induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich
Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971). A reviewing court may not consider
new or additional evidence, or substitute its judgment as to the weight of the
evidence or credibility of the witnesses, in place of the administrative findings of
fact. Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky.App. 1994). An
administrative agency’s factual findings may not be disturbed if they are supported
by substantial evidence. Danville-Boyle County Planning Comm’n v. Centre
Estates, 190 S.W.3d 354, 359 (Ky.App. 2006).
Section 6.6 of the Jessamine County Comprehensive Plan
acknowledges that although “agriculture is the encouraged land use” and additional
cluster subdivisions are discouraged, “[c]luster or 5-acre lot subdivisions are land
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uses allowed by right in the General Agriculture Zone (A-1).” The definitions
section of the Jessamine County Cluster Development Standards (Standards)
defines a cluster development in pertinent part as follows:
The use of Agricultural and/or Conservation lands
whereby twenty percent (20%) of such land, not to
include road acreage, may be developed into singlefamily dwelling lots of one (1) acre or more. The lots
should be grouped closely together along the access road,
which cannot be an existing public road. Eighty percent
(80%) of the Agricultural and/or Conservation lands
involved remains agricultural and is prohibited from
future development. The residual farmland, (i.e., that
which is not utilized for single-family dwelling units),
may be owned jointly or in common by the owners of the
building lots, or an association of the owners of the
subdivision, or a person or entity who does not
necessarily own a dwelling unit within the subdivision.
Additional, one acre lots may be granted for the
development in exchange for demolition or removal of
legally existing, habitable dwellings on the Parent Tract
in excess of those currently permitted by this Ordinance.
The Standards also define maximum residential density and provide individual lot
standards relating to location, landscaping, sewage disposal and other issues.
Because “[a]gricultural preservation [is] the intent of these regulations the
premature subdivision or development of land shall be discouraged[,]” and cluster
development deed restrictions must limit “the use of the [80%] reserved acreage to
agricultural use or open space use.” Standards Sections 3.224(b)(viii) and (xii).
We agree with the trial court that contrary to Citizens’ claim, in
Jessamine County a cluster development is not a hybrid combination of
agricultural and residential zoning which warrants unique treatment. Further, a
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request for a cluster development permit is not analogous to a request for rezoning.
Instead, as stated by the trial court, a Jessamine County cluster development is a
specifically authorized, “permitted use within an agricultural zone. In other words,
it is a subdivision of land, not a zone change.” See Cetrulo v. City of Park Hills,
524 S.W.2d 628, 629 (Ky. 1975). The Planning Commission’s power to approve
or disapprove the requested cluster development is limited by the applicable rules
and regulations, and amounts to a ministerial act. Wolf Pen Preservation Ass’n,
Inc. v. Louisville & Jefferson County Planning Comm’n, 942 S.W.2d 310 (Ky.App.
1997). Thus, the issue before the Planning Commission was not whether a cluster
development should be allowed on the agriculturally-zoned tract, but instead
whether the proposed development plan satisfied the Jessamine County standards
applicable to cluster developments. Once those standards were met, the landowner
had the right to proceed with a cluster development. The trial court therefore
correctly found that the Planning Commission erred when it concluded that it was
vested with the discretion to permit or deny the proposed development plan based
on the Comprehensive Plan’s general principles and spirit, or based on its
perception of the need for the cluster development in the community.
Further, the trial court did not err by rejecting the Planning
Commission’s conclusion that Cooper’s application should be denied because its
design converted “prime agricultural land to residential usage” in a way which
made “the remaining acreage more likely to be used as ‘open space’ versus actual,
continued agricultural usage.” Standards Sections 3.224(b)(xii)(a) and (b)
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specifically provide that all cluster subdivision plats and deeds must restrict 80%
of the reserved acreage “to agricultural use or open space use.” Moreover, the
cluster development definition specifies that “lots should be grouped closely
together along the access road, which cannot be an existing public road.” Any
alleged intent to require landowners to either group all lots in a single confined
portion of the property, or to reserve the remaining acreage as a single
undeveloped block for agricultural use, was not unambiguously expressed in the
standards. Thus, any issues relating to the practicality of using the remaining space
for agricultural pursuits were irrelevant. As no evidence contradicted Cooper’s
assertion that 80% of the tract would be reserved for agricultural use or open space,
the restriction set out in Standards Section 3.224(b)(xii)(a) and (b) was satisfied.
The trial court therefore correctly concluded that the Planning Commission acted
arbitrarily and exceeded its authority by rejecting Cooper’s application on this
ground.
Because the Planning Commission exceeded its authority by
reviewing the merits of whether the proposed cluster development should be
permitted, the trial court correctly found that the Planning Commission also erred
when reaching several other conclusions, as set out above. More specifically, in
Conclusions (2), (5) and (6) the Planning Commission acted arbitrarily and
exceeded its authority by reviewing the plan in light of whether it was consistent
with the goal of controlling development, whether a compelling need existed for
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the development, and whether the development was consistent with the spirit and
intent of the Comprehensive Plan.
However, we agree with Citizens that the trial court clearly erred in
several other respects, including by making several de novo findings of fact. Those
findings included that the demolition of certain “older residential units” on the
development property would, “without question, . . . improve the overall character
of the area[,]” that the immediate area’s “overall character . . . is now
residential[,]” that stub streets in an adjacent cluster development “obviously”
indicated the Planning Commission’s anticipation of this property’s future
development, and that the nearby Barkley Estates is a “long standing agricultural
subdivision.” Such findings should be set aside on remand.
Further, the trial court erred by finding that the Planning Commission
acted arbitrarily regarding the issue of sewage disposal. The Planning Commission
concluded that Cooper failed to meet its burden under Standards Section
3.224(b)(ix) to prove the adequacy of the proposed septic waste system, which the
Planning Commission described as involving
a drip drain field over top of an existing sinkhole, with
covering soils that may not be of adequate depth, using a
method rarely used or tested by experience in the
Bluegrass karst topography; thereby creating a not
insignificant risk of future problems of release of effluent
and contamination of groundwater.
The record shows that Cooper’s witness was a geotech civil engineer who
evaluated the subsurface conditions and designed a cluster septic system for the
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proposed development. He examined geologic survey maps, considered soil depth,
evaluated subsurface conditions in the proposed development area, and tested soil
and water quality at various locations. The engineer testified that the use of cluster
septic systems had been approved by the state and local governments, that such
systems were more expensive but more environmentally sound than individual
septic tanks, and that they were good alternatives in locations with limited space or
karst topography. Finally, he noted that an advantage of the proposed cluster
system was that it would be maintained by a regulated and certified public utility
company, rather than by individual property owners.
Citizens’ evidence included the testimony of a landscape architect and
a letter from an engineering consulting firm. The landscape architect expressed
concerns about the location of the proposed underground drip field near sinkholes
on the property. He opined that agriculture would be severely limited in the drip
field area, and that the nine-acre drip field area should be included as part of the
developed acreage. Further, the letter from the engineering consulting firm
described the system as “experimental” and urged that it be “used with caution and
designed according to specific standards.” The letter did not address the suitability
of the specific proposed location, except to note that a “more suitable location
should be selected for the drip field to avoid sinkholes.”
Regardless of whether a panel of this court might have weighed the
relative strength and credibility of each party’s evidence differently if sitting as the
trier of fact, we cannot conclude that the Planning Commission’s rejection of the
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sewage disposal plan was not supported by substantial evidence. It follows that the
trial court erred by substituting its own findings for those of the Planning
Commission.
The trial court also erred by concluding that the Planning Commission
arbitrarily found that Cooper failed to satisfy its burden of submitting the requisite
“landscape and buffering plan per se” to show “adequate protections to minimize
visibility of the development from adjoiner landowners and/or rights-of-way.”
Standards Section 3.224(b)(vii) specifies in part:
In order to minimize visibility of cluster lots from
adjacent property or public rights-of-way, all cluster lots
shall take advantage of existing trees, shrubs and
greenery which provides natural screening from roads
and adjacent property where feasible. Applicants shall
submit a landscape and buffering plan in addition to
existing screening. The plan as approved by the Planning
Commission shall be shown on the final plat of record of
the cluster.
Here, Cooper’s Exhibit H showed a proposed plat incorporating the installation of
a multitude of trees, and the only deficiency listed in the Planning Commission’s
May 2005 Staff Report was Cooper’s failure to propose certain landscape
screening. Cooper responded by stipulating that it would plant “additional
screening material.” In addition, its plans for additional landscaping were
discussed during the hearing. Nevertheless, a specific “landscape and buffering
plan,” incorporating all of the additional screening and landscaping materials,
apparently was not included in the record prior to the Planning Commission’s
decision. Even if Cooper’s submissions could have been found adequate, the
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evidence was sufficient to support the Planning Commission’s finding that at the
time of the hearing, the submitted plan was inadequate to satisfy the applicable
standards. The trial court therefore erred by substituting its own opinion for that of
the Planning Commission.
Further, the trial court erroneously substituted its opinion for that of
the Planning Commission regarding the location of one or more residential lots
within a flood plain. Although the Planning Commission did not specifically
address this issue in its conclusions, Cooper did not dispute the Planning
Commission’s factual finding that the 100-year flood plain encroached upon “at
least one of the proposed lots” shown on the preliminary plat. Moreover, the
parties did not dispute that the applicable subdivision regulation prohibits the
residential use of land which is subject to flooding. Nevertheless, the trial court
found that
it appears uncontroverted that the provision has been
interpreted to prevent residential lots which lie entirely in
the flood plain. As long as each lot is large enough to
properly accommodate a dwelling and any necessary
septic field, the Planning Commission has approved
those lots. That longstanding policy no doubt explains
why the flood plain issue was not mentioned in the
Commission’s Conclusions as a reason for denying the
application.
Since the record of the proceedings includes no evidence, discussion or findings by
the Planning Commission regarding such policy interpretation, the trial court’s
substitution of its opinion for that of the Planning Commission was erroneous.
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Finally, Citizens asserts that the trial court erroneously precluded it
from “conducting discovery and litigating related claims raised in [its] answer and
crossclaim.” The record shows that on November 6, 2006, the trial court
consolidated Citizens’ separate crossclaim and counterclaim with the instant
proceeding. On January 22, 2007, the trial court ordered the crossclaim to be held
in abeyance pending the resolution of this appeal. Any issues relating to the
crossclaim are not properly before us and will not be addressed in this appeal.
This matter is affirmed in part, and reversed and remanded in part for
further proceedings consistent with the views stated herein.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
David Russell Marshall
Nicholasville, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE COOPER
DEVELOPMENT, LLC:
Robert L. Gullette, Jr.
Nicholasville, Kentucky
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