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

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