LEGRAND (WILLIAM), ET AL. VS. EWBANK (ROBERT), ET AL.
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RENDERED: AUGUST 29, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001770-MR
WILLIAM LEGRAND; ELSIE EWBANK;
VIRGINIA EWBANK; AND KATHY COOK
v.
APPELLANTS
APPEAL FROM GALLATIN CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 04-CI-00197
ROBERT EWBANK; WINSLOW BAKER,
IN HIS OFFICIAL CAPACITY AS GALLATIN
COUNTY ZONING ENFORCEMENT OFFICER
AND ZONING ADMINISTRATOR; AND
NUGENT SAND COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
THOMPSON, JUDGE: This is an appeal from an order of the Gallatin Circuit
Court that affirmed a ruling by the Gallatin Board of Adjustments (Board) that
Nugent Sand Company had nonconforming-use rights to conduct sand and gravel
mining operations on all lands it owned that were under permit at the time Gallatin
County adopted comprehensive planning and zoning provisions. Under the
provisions, the property owned by Nugent was zoned R1-A, designated for single
family residential and/or agricultural activities. The Board determined that
Nugent’s operations were a preexisting nonconforming use and extended to the
total acreage owned at the time the applicable zoning ordinance was passed. The
Gallatin Circuit Court affirmed and this appeal followed.
In April 2001, the Environmental and Public Protection Cabinet
issued Nugent a non-coal mining permit for a surface open pit sand and gravel
mining operation. Although the original permit encompassed 79.21 acres, it was
amended to include an additional 148.06 acres causing approximately 227 acres to
be encompassed within the permit. The applicable ordinance became effective
January 30, 2002. However, Nugent continued to operate its sand and gravel
operations based on a “pre-existing [sic] nonconforming use” exception.
Kathy Cook2 and Rosalie Cooper, who resided in the area, filed a
challenge to the permit on the basis that Nugent failed to comply with statutory and
regulatory criteria. As a result of the administrative action, on May 3, 2003, the
Secretary of the Cabinet entered an order suspending Nugent’s permit until such
2
Kathy Cook is an appellant in the present appeal.
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time as all applicable statutory and regulatory criteria were satisfied. The permit
and amendment were reissued in October 2003.
Cook and Cooper appealed alleging that the Secretary should have
revoked the permit and had no authority to suspend the permit. The Franklin
Circuit Court affirmed and an appeal was filed in this Court. In Cook v.
Environmental and Public Protection Cabinet, 208 S.W.3d 266 (Ky.App. 2006),
this Court affirmed, holding that the Secretary had the authority to suspend the
permit and did not have to revoke the permit.
While the challenge to the permit was progressing through the
administrative and judicial process, Nugent continued its operations on the
premises. Apparently forecasting possible failure in the appellate courts and
dissatisfied with the continued operation of the mining operation, Cook and the
remaining appellants requested an opinion and formal determination on whether
the use of the property entitled it to status as a preexisting nonconforming use and
if so, whether the use was limited to the property actively mined prior to the
enactment of the applicable ordinance. Enforcement Officer Winslow Baker
responded to the request and determined that Nugent was permissibly operating its
business as a nonconforming use and that its operation properly encompassed the
total acreage owned as of January 30, 2002. The Board issued a ruling affirming
the Enforcement Officer’s opinion. On appeal, the Gallatin Circuit Court found
that there were no material issues of fact in dispute and affirmed. This appeal
followed.
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All agree that there is no material issue of fact in dispute and the issue
presented is easily framed: Did the Board err when it included property not
actively mined at the time the zoning ordinance was enacted as a nonconforminguse exception to the ordinance’s scope?
Zoning ordinances necessarily implicate constitutionally protected
interests. This is particularly true when an ordinance forbids the use of property
previously permitted and conducted on the property. Therefore, a use in existence
prior to the adoption of a zoning regulation under which it is prohibited will be
exempted and deemed a preexisting nonconforming use. Greater Harrodsburg/
Mercer County Planning & Zoning Com’n v. Romero, 250 S.W.3d 355 (Ky.App.
2008). The doctrine was explained in Darlington v. Board of Council of City of
Frankfort, 282 Ky. 778, 140 S.W.2d 392, 396 (1940):
Obviously, it is not the amount of money expended
which determines the vesting of the right, since one
property owner might be required to expend more in the
preliminary steps of altering his property for the conduct
of a particular business than his neighbor would be
compelled to expend in completing the alteration of his
property for a different type of business. On the other
hand, the mere ownership of property which could be
utilized for the conduct of a lawful business does not
constitute a right to so utilize it (Cayce v. City of
Hopkinsville, 217 Ky. 135, 289 S.W. 223) which cannot
be terminated by the enactment of a valid zoning
ordinance, as such a concept involves an irreconcilable
contradiction of terms. It would seem, therefore, that the
right to utilize one's property for the conduct of a lawful
business not inimicable to the health, safety, or morals of
the community, becomes entitled to constitutional
protection against otherwise valid legislative restrictions
as to locality, or, in other words, becomes “vested”
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within the full meaning of that term, when, prior to the
enactment of such restrictions, the owner has in good
faith substantially entered upon the performance of the
series of acts necessary to the accomplishment of the end
intended.
The constitutional protection afforded property owners and its limitations
have been codified in KRS 100.253 which provides:
(1) The lawful use of a building or premises, existing at
the time of the adoption of any zoning regulations
affecting it, may be continued, although such use does
not conform to the provisions of such regulations, except
as otherwise provided herein.
(2) The board of adjustment shall not allow the
enlargement or extension of a nonconforming use beyond
the scope and area of its operation at the time the
regulation which makes its use nonconforming was
adopted, nor shall the board permit a change from one (1)
nonconforming use to another unless the new
nonconforming use is in the same or a more restrictive
classification, provided, however, the board of
adjustment may grant approval, effective to maintain
nonconforming-use status, for enlargements or
extensions, made or to be made, of the facilities of a
nonconforming use, where the use consists of the
presenting of a major public attraction or attractions, such
as a sports event or events, which has been presented at
the same site over such period of years and has such
attributes and public acceptance as to have attained
international prestige and to have achieved the status of a
public tradition, contributing substantially to the
economy of the community and state, of which prestige
and status the site is an essential element, and where the
enlargement or extension was or is designed to maintain
the prestige and status by meeting the increasing
demands of participants and patrons.
“Use” means what is “customarily or habitually done or the subject of a common
practice.” Durning v. Summerfield , 314 Ky. 318, 322, 235 S.W.2d 761,
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763 (1951). The determination of what constitutes an existing use is made on a
case-by-case basis. Perkins v. Joint City-Council Planning Commission, 480
S.W.2d 166, 167 (Ky. 1972).
There is no dispute that Nugent was mining portions of the property at
the time the ordinance was enacted. Appellants argue that only the land actively
mined at that time can be lawfully considered as a preexisting nonconforming use.
In support of their contention, they recite the general rule for property to qualify as
a nonconforming use.
“[T]he use must have been actually demonstrated prior to
the zoning ordinance. Mere contemplation of use of the
property for a specific purpose is not sufficient to place it
in a nonconforming-use status. Nor is the purchase of the
property accompanied by an intent to use it for a specific
purpose sufficient.” (citations omitted)
Id. at 168. As a matter of policy and consistent with the spirit of zoning laws,
nonconforming uses are to be gradually eliminated and are to be held strictly
within their boundaries. An existing use cannot be enlarged nor extended and no
substantially different use is permitted. Attorney General v. Johnson, 355 S.W.2d
305 (Ky. 1962). Recognizing these limitations, we nevertheless affirm and agree
with the Board that the entire acreage encompassed within the permit is a legal
nonconforming use.
Our reasoning is premised on the nature of mining operations, which
generally begin in one area and, after its resources are exhausted, spread to
additional property until all the resources are depleted. Often referred to as a
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diminishing asset, mined natural resources are considered a separate category of
nonconforming use attributable to the uniqueness of the operation. We find the
Illinois Supreme Court’s expression of the applicable reasoning persuasive:
This is not the usual case of a business conducted within
buildings, nor is the land held merely as a site or location
whereon the enterprise can be conducted indefinitely
with existing facilities. In a quarrying business the land
itself is a material or resource. It constitutes a
diminishing asset and is consumed in the very process of
use. Under such facts the ordinary concept of use, as
applied in determining the existence of a nonconforming
use, must yield to the realities of the business in question
and the nature of its operations. We think that in cases of
a diminishing asset the enterprise is “using” all that
land which contains the particular asset and which
constitutes an integral part of the operation,
notwithstanding the fact that a particular portion may
not yet be under actual excavation. It is in the very
nature of such business that reserve areas be maintained
which are left vacant or devoted to incidental uses until
they are needed. Obviously, it cannot operate over an
entire tract at once.
Du Page County v. Elmhurst-Chicago Stone Co., 18 Ill.2d 479, 484-485, 165
N.E.2d 310, 313 (1960) (emphasis added).
As a practical matter, it is not feasible for a mine operator to conduct
mining operations over the entire property. Thus, it is common practice that one
area of property be mined until the exhaustion of its resources before additional
areas within the same tract are mined. This proposition we accept and we agree
that this case warrants an approach distinguishable from those where a structure is
placed upon the land or the land is used other than for the removal of natural
resources. However, we are not abandoning the basic premise that all
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nonconforming-use cases must be examined on a case-by-case basis and further
conclude that a mere unexpressed intent to mine the property is insufficient.
Were we to hold that mere ownership of property with the intent of
mining its resources is sufficient to establish a nonconforming use, mining could
be expanded indefinitely under the auspices of a nonconforming use. We believe,
therefore, that such uses are not without limitation.
Although we do not impose the impractical limitation that the
property be actively mined prior to the enactment of the ordinance, it must have
been demonstrably dedicated to that use. This is a finding of fact to be made by
the zoning authority and absent a lack of substantial evidence, one that this Court
will not disturb. Bowling v. Natural Resources and Environmental Protection
Cabinet, 891 S.W.2d 406, 409 (Ky.App. 1994).
In this case, the entirety of the property was dedicated to the mining of
sand and gravel. The property is one contiguous tract and no additional tracts are
sought to be mined. Prior to the enactment of the ordinances, Nugent obtained a
permit that encompassed approximately 227 acres. Michael Wedding, Vice
President of Operations for Nugent, testified that the company is a sand and gravel
mining operation and sends the mined material to a facility it owns on-site for the
purpose of screening and sizing. It is then placed in stockpiles for sale. Since
obtaining its permit in 2001, Nugent has invested substantial amounts of money
developing the permitted property including building its plant, constructing
facilities, undertaking archaeological surveys, and other activities. During the time
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its permit was suspended, Nugent continued to sell sand and gravel from stockpiles
and never intended to abandon its use of the property as a mining operation.
The Board’s determination was supported by substantial evidence.
Consistent with KRS 100.253, it appropriately defined the scope of the preexisting
nonconforming use to the land owned by Nugent and encompassed within the
mining permit on the date the ordinance was enacted. The order of the Gallatin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
Thomas J. Fitzgerald
Frankfort, Kentucky
BRIEF FOR APPELLEE, NUGENT
SAND COMPANY:
George L. Seay, Jr.
Lesly A.R. Davis
Lexington, Kentucky
Jean W. Bird
Louisville, Kentucky
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