ZONING, ANNEXATION, AND CHALLENGES: City of Pikeville v. Pike County, Kentucky (COA 3/20/2009)

City of Pikeville v. Pike County, Kentucky
2008-CA-001056

 03/20/2009
2009 WL 723065
Opinion by Senior Judge Buckingham; Judges Dixon and Nickell concurred.

The Court affirmed an order of the circuit court granting a motion to dismiss appellants’ petition for declaration of rights and statutory action challenging a vote against the annexation of property belonging to appellees.

The Court held that the appellant City was precluded from contesting the election pursuant to KRS 120.250, because the statute gave only electors who were qualified to and did vote in the election the right to contest it.

The Court further held that appellants did not have an equitable right to challenge the vote, as their claim that appellees submitted an untruthful affidavit in order to vote on the annexation question fell within the parameters of the statute and therefore, could only be brought in an action pursuant to the statute. Any action for declaratory relief apart from the statute could only be brought in a suit alleging the election was void, not merely voidable.

Zoning commission’s authority in reviewing proposed cluster development within context of county’s comprehensive zoning plan; spirit of the plan vs. applicable standards: CITIZENS FOR THE PRESERVATION OF JESSAMINE CNTY V. COOPER DEVELOPMENT (COA 10/17/08

CITIZENS FOR THE PRESERVATION OF JESSAMINE COUNTY, LLC V.
COOPER DEVELOPMENT, LLC
ZONING:  Zoning commission's authority in reviewing proposed cluster
development within context of county's comprehensive zoning plan; spirit of the
plan vs. applicable standards
2007-CA-001460
PUBLISHED: AFFIRMING IN PART, REVERSING AND REMANDING IN PART
PANEL: VANMETER PRESIDING; WINE, LAMBERT CONCUR
JESSAMINE COUNTY
DATE RENDERED: 10/17/2008 

Cooper Development, LLC ("Cooper") sought approval from the Jessamine County/City of Wilmore Joint Planning Commission ("Commission") for a cluster development of 45 residential lots on a 156 acre tract within an agriculture zone. The Citizens for Preservation of Jessamine County, LLC ("Citizens") opposed the cluster development. After a hearing, the Commission denied the proposed cluster development. The Commission acknowledged that a cluster development is permitted in agricultural zones if it complies with the cluster development standards. However, the Commission found that the proposed cluster development (1) failed to demonstrate adequate septic systems; (2) failed to demonstrate adequate landscaping and buffering; (3) failed to demonstrate consumer demand for this type of residential development; and (4) generally conflicted with the spirit and intent of the comprehensive plan. 

Cooper appealed to the Jessamine Circuit Court which reversed the Commission's decision. Cooper and the Commission entered into a settlement agreement whereby Cooper agreed to certain enhancements to the development in return for the Commission's approval of the same. The settlement agreement was contingent upon the resolution of this action. 

Citizens appealed from the decision of the Jessamine Circuit Court. The Court of Appeals found that the comprehensive plan allowed cluster developments if they comply with specific standards. Thus, the Court held that the Commission's role was strictly ministerial and limited to determining if the proposal complied with the applicable standards. The Court ruled that the Commission exceeded its authority when the Commission concluded that it had the discretion to deny the proposed development based upon the spirit of the comprehensive plan or on its perception of the lack of need for the development. However, the Court held that the circuit court erred in substituting its judgment for that of the Commission on questions of whether the proposed development had adequate buffering and sewage disposal. It found the Commission's determinations on those points to be supported by substantial evidence.

Digested by Sam Hinkle

ZONING: Mulitple and successive rezoning petitions: HUME V. FRANKLIN COUNTY FISCAL COURT (SC 9/18/2008)

HUME V. FRANKLIN COUNTY FISCAL COURT
2006-SC-000499-DG
BIZZACK V. HUME
2007-SC-000091-DG
ZONING: Mulitple and successive rezoning petitions
PUBLISHED Reversing
Opinion by Schroder; Abramson conurs in result only; Minton not sitting
Franklin
Date: 9/18/2008

In 1963, the Lexington-Fayette County Planning Commission, now the Lexington Fayette Urban County Planning Commission ("P&Z"), approved Sebastian’s preliminary development plan for 122 one-acre lots.  The development was located in zone "A-1," an area zoned for agriculture that also allowed single-family homes with a minimum of one-acre lots. The subdivision regulations at that time required final plat approval within 18 months of the preliminary plan approval.  In 1963, Sebastian obtained final plat approval for 40 of the homes, but then the 18 months expired.  In 1966, P&Z re-approved the preliminary plan and Sebastian obtained final plat approval for another 19 lots.

In 1967, P&Z changed "A-1" to "A-R" and increased the minimum residential lot size to ten acres.  Nonetheless, P&Z approved the addition of 11 one acre lots in Spindletop Estates in 1977, 3 lots in 1989, and 3 lots in 1996.  In 2002, Sebastian sought approval of the remaining 59 acres in the development.  P&Z denied the request because the original preliminary plan had expired and the current application did not meet the minimum lot size requirement of forty acres.

Sebastian appealed to Fayette Circuit Court, arguing that P&Z should be estopped from denying the subdivision plan.  Sebastian claimed that the history of approving other lots in violation of the regulations vested Sebastian with certain property rights.  The Circuit Court and the Court of Appeals upheld P&Z’s denial.

The Supreme Court affirmed, holding that P&Z was not estopped from applying the current regulations.  The Court held that equitable estoppel can be applied against governmental entities, but only in extraordinary situations.  Here, Sebastian had not relied upon the government’s actions to its detriment.  Rather, Sebastian’s own delay in development allowed for the new regulations to be implemented.  Further, the Court affirmed that an improper application of the law does not prevent a more diligent administrative officer from applying the law properly in the future.  In fact, the Court noted that the action would have been arbitrary had P&Z ignored the regulations and approved the subdivision request.

Digested by Samuel Hinkle

 

ZONING: Estoppel not applied: SEBASTIAN-VOOR PROPERTIES, LLC V. LEXINGTON-FAYETTE URBAN COUNTY GOV’T (SC 9/18/2008)

SEBASTIAN-VOOR PROPERTIES, LLC V. LEXINGTON-FAYETTE URBAN
COUNTY GOV’T
ZONING:  Estoppel not applied
2006-SC-000732-DG.pdf
PUBLISHED: Affirming
Memorandum Opinion; Schroder concurs by sep. opinion with Cunningham joining;
Noble not sitting
Fayette
Date Rendered: 10/14/2008

In 1963, the Lexington-Fayette County Planning Commission, now the Lexington Fayette Urban County Planning Commission ("P&Z"), approved Sebastian’s preliminary development plan for 122 one-acre lots.  The development was located in zone "A-1," an area zoned for agriculture that also allowed single-family homes with a minimum of one-acre lots. The subdivision regulations at that time required final plat approval within 18 months of the preliminary plan approval.  In 1963, Sebastian obtained final plat approval for 40 of the homes, but then the 18 months expired.  In 1966, P&Z re-approved the preliminary plan and Sebastian obtained final plat approval for another 19 lots.

In 1967, P&Z changed "A-1" to "A-R" and increased the minimum residential lot size to ten acres.  Nonetheless, P&Z approved the addition of 11 one acre lots in Spindletop Estates in 1977, 3 lots in 1989, and 3 lots in 1996.  In 2002, Sebastian sought approval of the remaining 59 acres in the development.  P&Z denied the request because the original preliminary plan had expired and the current application did not meet the minimum lot size requirement of forty acres.

Sebastian appealed to Fayette Circuit Court, arguing that P&Z should be estopped from denying the subdivision plan.  Sebastian claimed that the history of approving other lots in violation of the regulations vested Sebastian with certain property rights.  The Circuit Court and the Court of Appeals upheld P&Z’s denial.

The Supreme Court affirmed, holding that P&Z was not estopped from applying the current regulations.  The Court held that equitable estoppel can be applied against governmental entities, but only in extraordinary situations.  Here, Sebastian had not relied upon the government’s actions to its detriment.  Rather, Sebastian’s own delay in development allowed for the new regulations to be implemented.  Further, the Court affirmed that an improper application of the law does not prevent a more diligent administrative officer from applying the law properly in the future.  In fact, the Court noted that the action would have been arbitrary had P&Z ignored the regulations and approved the subdivision request.

Digesed by Samuel Hinkle

Preexisting nonconforming use exception applied in zoning case: LEGRAND v. EUBANK (COA 8/29/2008)

LEGRAND
v. EUBANK
ZONING:   Pre-existing nonconforming use exception upheld
      
2007-CA-001770
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, HENRY CONCUR
GALLATIN CIRCUIT COURT:
DATE RENDERED: 8/29/2008
      
THOMPSON, Judge.
Nugent Sand Company (“Nugent”) owned property on which it operated a sand and gravel mining operation.  Nugent had a permit to mine the entire property.  On January 30, 2002, the county adopted an ordinance that zoned the land owned by Nugent for residential or agricultural use.  The Board of Adjustments (“Board”) determined that Nugent had nonconforming use rights to conduct its operations on all lands that it owned that were under permit at the time of adoption of the ordinance.

The appellants asked the County Enforcement Officer for a formal opinion on whether the property that was not being actively mined as of January 30, 2002 was entitled to status as a preexisting nonconforming use.  The Enforcement Officer decided that the entire property was covered by the preexisting nonconforming use exception, and the Board affirmed, as did the circuit court.  Appellants appealed.

On appeal, the court looked at whether a nonconforming use could include the property that was not being actively mined at the time of the adoption of the ordinance.  The court, looking at the nature of mining, held that it was proper to include such property within the nonconforming use.  It stated that the very nature of mining is to start in one area and then move to another once the resources are exhausted, making mining cases unique in terms of what is a nonconforming use.  The court affirmed the circuit court, holding that while ownership of property with the intent to mine would likely not establish a nonconforming use, a nonconforming use exists for the entire property in a situation where the owner has “demonstrably demonstrated” that use of the entire property was dedicated to mining prior to adoption of the zoning ordinance prohibiting that activity.

Digested by Sam  Hinkle

PS:  This is an update of an earlier posting.

Local planning commission had jurisdiction over siting of cell towers: KENTUCKY PUBLIC SERVICE COMM. v. SHADOAN (COA 6/20/2008)

KENTUCKY PUBLIC SERVICE COMM. v. SHADOAN
ZONING and PLANNING:  Local planning commission jurisdiction over siting of cell towers

2007-CA-000697
TO BE PUBLISHED: AFFIRMING IN PART & REVERSING IN PART
PANEL: MOORE PRESIDING; ACREE, STUMBO CONCUR
FRANKLIN COUNTY
DATE RENDERED: 6/20/2008

Bluegrass Wireless (“Bluegrass”) filed an application with the Kentucky Public Service Commission (“PSC”) to build a cellular tower. The Shadoans, neighboring landowners, were allowed to intervene. After learning that a local planning commission had been established, Bluegrass requested dismissal of its application action because it believed the planning commission had jurisdiction under KRS 100.987(1). The PSC dismissed. The Shadoans filed a complaint with the circuit court, attaching only the order from which they were appealing. Bluegrass and the PSC moved to dismiss the petition for failure to designate the record. The circuit court denied the motion and granted the Shadoans summary judgment, ruling that the PSC was required under KRS 278.650 to hold a hearing regarding the proposed cellular tower because the planning commission had not adopted regulations dealing specifically with cell towers. Bluegrass and PSC appealed.

Bluegrass and PSC argued that the Shadoans’ failure to designate the record deprived the circuit court of jurisdiction. The court disagreed. It stated that although strict compliance is the law in Kentucky when the right to appeal is a “matter of legislative grace,” the order attached to the complaint was sufficient to meet the requirements for designation of the record.

However, the Court reversed the circuit court’s summary judgment motion on other grounds. It found that KRS 100.987 conferred jurisdiction over siting cell phone towers to local planning commissions and that an application may only be filed with the PSC if the proposed tower is outside of the geographical jurisdiction of the planning commission. The Court held that the only discretion of the planning commission was whether to adopt regulations specifically regarding the siting of cell towers; it did not have the discretion to deny jurisdiction.

Digested by Sam Hinkle

“Unity rule” for valuation of multiple parcels not followed in Ky condemnation cases: BIANCHI V. CITY OF HARLAN (SC 5/22/2008)

BIANCHI V. CITY OF HARLAN
EMINENT DOMAIN:  "Unity rule" for valuation of multiple parcels not followed in Ky
2006-SC-000895-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY:  ABRAMSON; SCOTT DISSENTING
DATE RENDERED: 5/22/2008

The City of Harlan (“Harlan”) filed petitions to condemn four parcels owned by the Bianchis. The condemned tracts were generally used for parking for its tenants in the neighboring properties. The Bianchis also owned several neighboring properties, most of which were used for retail stores.

The commissioners found a value for the four combined properties, to which both parties filed exceptions. The Bianchis also moved to file a counterclaim seeking compensation for the loss of value their other properties would sustain by the taking of the four properties. A jury awarded the Bianchis $120,000 for taking the four parcels and $43,640 for the lost value of their neighboring properties.

On appeal, the Court of Appeals affirmed the $120,000 award, but reversed the award for lost value because it did not believe the neighboring property could be deemed united for condemnation purposes. The Supreme Court accepted discretionary review.

The Bianchis argued that they were not compensated adequately for the four lots that were taken and that these properties should have been valued as a portion of the Bianchis’ entire holdings. The Court disagreed, stating that the measure of value when a portion of a tract is condemned is the market value of the entire tract immediately before condemnation less the market value of the remainder after condemnation. The Court also stated that the procedure used by the trial court – taking the value of the part taken and adding the value of the harm to the remainder – has been expressly rejected in Kentucky. Moreover, the Court found that the “unity rule,” which sometimes allows two or more parcels to be unified for valuation purposes if it can be shown that they are contiguous and are united in use and ownership, did not apply. The Bianchis had not alleged a necessary or permanent injury to their remaining property or a substantial interference with the continued use of it; injury to business or lost profits is not a proper element of compensation for condemnation. The Supreme Court affirmed the Court of Appeals’ reversal of the judgment on the Bianchis’ counterclaim.

Sam Hinkle

Conditional use permit (restaurant or tea room or catering service) and subsequent adoption of ordinance pending moratorium: THE GREATER HARRODSBURG/MERCER COUNTY PLANNING AND ZONING COMM. v. ROMERO (COA 3/28/2008)

THE GREATER HARRODSBURG/MERCER COUNTY PLANNING AND ZONING COMM. v. ROMERO
ZONING:  Conditional use permit (restaurant or tea room or catering service) and subsequent adoption of ordinance pending moratorium
2006-CA-002623
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; BUCKINGHAM, HENRY CONCUR
MERCER COUNTY
DATE RENDERED: 3/28/2008

The Romeros purchased property and prepared to open a bed and breakfast, tearoom and catering service. The property’s zoning permitted bed and breakfasts with a maximum of four rooms as an accessory use. After neighbors complained that the Romeros were operating a restaurant, the Greater Harrodsburg/Mercer County Planning & Zoning Commission (“Commission”) agreed to place a moratorium on tearoom conditional use permits until it adopted a definition for “tearoom.”

Ms. Romero went before the Commission and proposed that her tearoom be operated in two seatings, Monday through Saturday. The Commission then adopted a definition of “tearoom” as a facility open for no more than four hours per day with a capacity to serve a maximum of twenty people per seating. The Mercer County Fiscal Court enacted an ordinance requiring that the operator of a bed and breakfast planning to have a tearoom or cater special events apply to the Board of Adjustments (“Board”) for a conditional use permit.

The Romeros applied to the Board for a permit for additional uses of the property, including catering private parties, Sunday brunches, Sunday special events and a gift shop. The Board found that because the Romeros had engaged in prohibited uses after adoption of the ordinance, the entire operation of the property fell within the ambit of the ordinance. It then imposed several severe restrictions on the Romeros’ use of the property, including restrictions on parking, hours, days open, and number of special events. The Romeros filed a declaratory judgment action requesting a determination that the imposed restrictions on the tearoom and catering of special events were illegally imposed because those uses existed prior to the adoption of the ordinance. The circuit court granted summary judgment to the Romeros finding that their use of the property was a non-conforming use and the ordinance did not apply.

The court of appeals affirmed, holding that the subsequent adoption of the ordinance did not apply to the Romeros’ property because there was no transformation of the inherent nature of the pre-existing primary use.

Digest by Sam Hinkle

Equitable estoppel did not apply in zoning case under facts and zoning action was arbitrary: Sebastian-Voor Properties, LLC, et al. v. Lexington-Fayette Urban County Government, et al. (SC 2/21/2008)

Sebastian-Voor Properties, LLC, et al. v. Lexington-Fayette Urban County Government, et al.
ZONING:  Land Use Planning
PUBLISHED: AFFIRMING
OPINION BY SCHRODER; NOBLE NOT SITTING; ABRAMSON CONCURRING IN RESULT ONLY
DATE RENDERED:  2/21/2008
2006-SC-000732-DG.pdf
NOT PUBLISHED: 930
DATE RENDERED: 2/21/2008

In 1963 the Lexington-Fayette County Planning Commission (“Commission”) approved a preliminary development plan for 122 one-acre lots in an agriculturally zoned area. Only 40 of the lots received final plat approval within the statutorily allowed time. Another 19 lots received approval in 1966 after the preliminary plan was re-approved. In 1967, the zoning regulations were changed to increase the minimum residential lot size from 1 acre to 10 acres. However, over the next 29 years, the Commission, contrary to existing regulations, approved final plats for 17 additional one-acre lots.

In 2002, the property owner applied for preliminary approval for one-acre lots on the remaining 59 acres. The Commission denied approval because the lots did not meet the minimum lot size and did not qualify for septic service. The owner appealed and moved for summary judgment on the grounds of equitable estoppel, arguing that prior approvals created vested property rights. The circuit court denied the motion. The owner again appealed. The court of appeals held that while equitable estoppel may be invoked against a governmental entity under exceptional circumstances, the facts of the case did not rise to that level. The Kentucky Supreme Court granted discretionary review.

The Supreme Court affirmed, stating that the proposed development did not comply with the current zoning regulations so that the Commission’s decision to deny the plan was not arbitrary. It stated that the owner, to develop as proposed, must seek a zone map amendment. The court also affirmed the decision that equitable estoppel did not apply because a public official’s previous erroneous interpretation of the law does not prevent a later proper interpretation.

Digest by Sam Hinkle

Annexation and restrictive covenants: JEWELL V. CITY OF BARDSTOWN, KY (COA 1/25/08)

JEWELL V. CITY OF BARDSTOWN, KY
ANNEXATION:  RESTRICTIVE COVENANT AND ESTOPPEL 
2007-CA-000422
PUBLISHED: AFFIRMING
PANEL:  LAMBERT PRESIDING; VANMETER, KNOPF CONCUR
COUNTY: NELSON
DATE RENDERED: 1/25/2008

The City of Bardstown (the “City”) began annexation proceedings on some unincorporated property. Many residents in the area of this property opposed annexation and filed a petition in opposition to annexation, requesting a public referendum. The Mayor of Bardstown disqualified those persons who signed the petition and whose property was subject to a Consent to Annexation Agreement. This agreement was entered into by the developers of the property in exchange for the City’s agreement to provide water and sewer services to the neighborhood, and ran with the land. Because of the disqualification, there were not enough signatories for a referendum. The annexation was completed. The residents filed suit challenging the mayor’s actions, but the circuit court affirmed the annexation.

On appeal, the court acknowledged that there are no Kentucky cases discussing whether a restrictive covenant consenting to annexation that runs with the land can estop land owners from signing a petition in opposition to annexation. However, the court looked at cases from other jurisdictions, all of which held that the landowners were estopped from revoking their consent to annexation by purchasing land subject to annexation-consent covenants, and believed that they were consistent with Kentucky’s annexation statutes. The court reasoned that the landowners gave consent to annexation in return for the valuable consideration from the City of the provision of city water and sewer services, and should be estopped from receiving the benefits of the bargain without the obligations. It therefore affirmed the circuit court’s ruling.

Samuel Hinkle