SULLIVAN UNIVERSITY SYSTEM, INC. VS. LOUISVILLE METRO BOARD OF ZONING ADJUSTMENTAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SULLIVAN UNIVERSITY SYSTEM, INC.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 05-CI-002612
LOUISVILLE METRO BOARD OF
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BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY, SENIOR
COMBS, CHIEF JUDGE: The Sullivan University System, Inc., appeals from an
opinion and order of the Jefferson Circuit Court that affirmed the issuance of a
violation notice by the Louisville Metro Board of Zoning Adjustment (BOZA or
the Board). After our review of the law and of the parties’ arguments, we conclude
that there was sufficient evidence to support the decision of the Board. Therefore,
we affirm the order of the circuit court.
The Sullivan University System, Inc., operates Sullivan University, a
private, for-profit, post-secondary institution. It is a career-oriented university
serving thousands of students on several campuses around the Commonwealth. Its
Louisville campus is based near the intersection of the Watterson Expressway and
Bardstown Road. The student library of the Louisville campus is located away
from the main campus at 2222 Wendell Avenue. The property involved in this
dispute is 3119 Lowell Avenue, a short distance from the library site. The Lowell
Avenue property was built as a single-family residence in 1955 and is zoned R-5,
single-family residential. Sullivan University acquired the house in 2003.
On December 1, 2004, in response to a neighbor’s complaint, Dennis
Martin, an officer with the Louisville Metro Inspections, Permits, and Licenses
Code Enforcement, visited the property at 3119 Lowell Avenue. Following his
inspection, Martin issued a notice to Sullivan that it was in violation of zoning
regulations by operating a business on property zoned primarily for residential use.
Sullivan filed a timely appeal to BOZA and contended that the property was being
used by the University as a library annex, which was a permitted use in the R-5
residential district. According to Sullivan, the library annex housed archives,
offices, and a break area for support staff.
On January 24, 2005, BOZA conducted a public hearing pertaining to
Sullivan’s appeal. A report was prepared by the Board’s staff and was made
available to interested parties in advance of the public hearing. That report
indicated that a relevant issue before BOZA was whether the purported “library
annex” amounted to a “library,” which is a use permitted in the residential district
if it is operated by a non-profit entity. Following the public hearing, BOZA
requested its staff to devote additional research and consideration as to whether
Sullivan’s “library annex” qualified as a proper “library.” The hearing was
continued until February 21, 2005.
BOZA reconvened the public hearing in February. After reviewing
additional evidence and the supplemental report of its staff, the Board was
persuaded that the Lowell Avenue property was not being used as a library.
Consequently, the Board concluded that the notice of zoning violation had been
properly issued and denied Sullivan’s administrative appeal.
On March 22, 2005, Sullivan filed a lawsuit in the Jefferson Circuit
Court and alleged that the decision of BOZA to deny its appeal had been arbitrary
and capricious. Sullivan contended that the minutes of the public hearing failed to
reflect that the decision of the Board had been based “solely on the grounds that
the Library Annex operated on the Subject Property was operated by a for profit
entity.” Complaint at 6. (Emphasis added). Sullivan contested the basis of the
agency’s decision as improperly seeking to regulate on the basis of the ownership
of property rather than its actual use.
In its answer denying Sullivan’s allegations, BOZA contended: (1)
that it had acted within the scope of its authority; (2) that its decision had been
based upon substantial evidence; and (3) that Sullivan had received due process of
The parties submitted extensive briefs in support of their positions.
Sullivan contended that the administrative record compelled a contrary result and
that, therefore, the failure of the Board to grant its appeal was wholly arbitrary and
capricious. Sullivan argued that there was no substantial evidence to support the
Board’s finding that its use of the property as a “library annex” did not equate to its
use as a “library.” Additionally, it argued that its status as a for-profit business
entity should have had no bearing on the Board’s deliberations.
BOZA contended that its decision to uphold the notice of violation
was properly supported by evidence presented at the public hearings. The Board
emphasized that the actual use of the subject property by the University bore little
or no resemblance to any sort of “library.” As to the issue of whether the Board
had considered Sullivan’s University’s for-profit status, BOZA claimed that it
spoke only through its records, noting that its minutes accurately reflected its
finding that the Lowell Avenue property was not being used as a library. It
claimed that the plain use of the property was the determinative factor and that the
for-profit status of the University had not been material to its reasoning.
The matter was submitted, and an opinion and order of the Jefferson
Circuit Court were entered on August 6, 2007. The court concluded that the
decision of the Board rested upon substantial evidence. This appeal followed.
Sullivan now argues that BOZA wholly and improperly based its
decision on Sullivan’s for-profit status rather than scrutinizing its actual use under
the land development code. Sullivan contends that any consideration of its forprofit status was erroneous as a matter of law.
We are persuaded that the Board’s decision to deny Sullivan’s appeal
was based on evidence indicating that the property was not being used as a library.
Because this determination was based on substantial evidence, the circuit court did
not err by affirming the decision of the Board.
Judicial review of a zoning action is restricted to a determination of
whether the contested action was arbitrary. Warren County Citizens for Managed
Growth, Inc. v. Bd. of Comm’rs of City of Bowling Green, 207 S.W.3d 7 (Ky.App.
2006). In its role as fact-finder, the Board is granted great latitude in its evaluation
of the evidence and the credibility of witnesses. See American Beauty Homes
Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n., 379 S.W.2d
450 (Ky. 1964). Reviewing courts are not authorized to conduct a de novo review
of the administrative decision and must affirm a decision supported by substantial
evidence. Substantial evidence is evidence that can induce conviction in the minds
of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367
Each decision rendered by BOZA must guarantee procedural due
process to the parties. The minimum requirements of due process include a
hearing; the taking and weighing of evidence; findings of fact based on the
evidence offered; an order supported by substantial evidence; and an opportunity
for judicial review of the decision. Morris v. City of Catlettsburg, 437 S.W.2d 753
(Ky. 1969). In order for findings of fact to satisfy due process standards, they must
“contain sufficient adjudicative facts to permit a court to conduct a meaningful
review of the proceedings for the purpose of determining the question of whether
the action of the [Board] has or has not been arbitrary.” Caller v. Ison, 508 S.W.2d
776, 777 (Ky. 1974).
We are persuaded that the Board’s findings of fact in this case were
sufficient to allow for a meaningful review of the adequacy of the proceedings.
The essential adjudicative fact before the Board was whether Sullivan’s use of the
subject property was a permitted use – that of a library – regardless of its for-profit
status as a user. The evidence before the Board indicated that the Lowell Avenue
structure housed no literary or other media materials for student or faculty
reference or loan. It provided no work space for students or faculty. No staff
members were assigned to the building to assist students or faculty with research or
to provide any library services whatsoever. Moreover, a Sullivan employee
assigned to the property described the house as merely a “computer tech office.”
This evidence was more than adequate to support the Board’s decision.
We conclude that BOZA’s decision was supported by substantial
evidence and that it was not arbitrary or capricious. Therefore, the trial court did
not err by affirming the notice of violation. We affirm the opinion and order of the
Jefferson Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Grover C. Potts, Jr.
Jonathan L. Baker