Zoning Due Process: GODMAN V. CITY OF FORT WRIGHT (COA 8/31/2007)

GODMAN V. CITY OF FORT WRIGHT
ZONING:  Due Process and revoking temporary permit
2006-CA-000696
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: WINE PRESIDING; COMBS, NICKELL CONCUR
PANEL: KENTON
COUNTY: J
DATE RENDERED: 8/31/2007

In 1984, the owner of a half-acre tract in Fort Wright, Kentucky (“City”) asked to rezone the property to commercial and permit a temporary access. The request was approved, subject to future revocation based upon certain criteria. Thereafter, the property was transferred to an entity that constructed and operated a car wash, using the temporary access. The Godmans acquired title to the property in 1999. Shortly thereafter, the City notified the Godmans that it intended to revoke the temporary access. In 2002, the Zoning Administrator for the City sent a letter by certified mail to the Godmans informing them that he was revoking the temporary access. The letter was returned unclaimed. One month later, the Zoning Administrator sent an identical letter by regular mail. Counsel for the Godmans acknowledged receipt of the second letter and asked, in writing, for clarification. The City did not respond.

One year and six days later, the City brought a civil action against the Godmans seeking to close the access. The Circuit Court granted summary judgment to the City, finding that the Godmans did not file a timely appeal from the City’s final decision revoking the access point. Both a local ordinance and KRS 100.261 require a party to appeal to the Board of Adjustment within thirty days after receiving notice of a final decision of the Zoning Administrator.

On appeal, the court held that the letter sent to the Godmans failed to comply with minimum requirements of due process, because: (1) the letter did not provide any reasoning for the decision, thereby preventing any meaningful review and (2) the letter failed to inform the Godmans of their obligation to file a timely appeal. The court also noted that the City failed to respond to the Godmans’ written request for clarification. The court concluded that the City had failed to show a final and appealable decision by the Zoning Administrator and reversed and remanded the matter to the circuit court with instructions to dismiss the City’s action.

By Samuel Hinkle

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