Allen v. Woodford County Board of Adjustments

228 S.W.3d 573, 2007 WL 1892941
CourtCourt of Appeals of Kentucky
DecidedJuly 13, 2007
Docket2006-CA-000603-MR
StatusPublished
Cited by4 cases

This text of 228 S.W.3d 573 (Allen v. Woodford County Board of Adjustments) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Woodford County Board of Adjustments, 228 S.W.3d 573, 2007 WL 1892941 (Ky. Ct. App. 2007).

Opinion

OPINION

ACREE, JUDGE.

David B. Allen, Donna J. Allen, James Keogh, and Anne Keogh appeal from a Woodford Circuit Court judgment affirming the Versailles-Midway-Woodford County Planning and Zoning Board of Adjustment’s (Board) grant of Thomas R. Post’s application for a conditional use permit. We affirm.

Post’s property at 230 Pisgah Pike, Woodford County, Kentucky, is zoned Agricultural (A-l). 1 On February 14, 2005, Post filed an application with the Board seeking a conditional use permit to allow a “tourist home” on the property. When Post filed the application, there was an unfinished structure under construction on the property.

The Board’s Zoning Compliance Officer, Patricia Wilson, initially reviews such applications as part of her duties in assisting the Board with its decision-making. Specifically, she assists the Board by providing definitions of technical and non-technical terms as needed. While “tourist home” is a recognized conditional use, the ordinance did not include a definition of that term. Pursuant to authority granted her by Kentucky Revised Statute (KRS) 100.261 and Section 402 of the Versailles-Midway-Woodford County Zoning Ordinance, Wilson supplied that definition by reference to one of the standard reference works in the Board’s library. 2 The definition stated that a tourist home is “[a]n establishment in a private dwelling that supplies temporary accommodations to overnight guests for a fee. See Bed and Breakfast.”

On May 2, 2005, the Board issued its decision granting the permit. A conditional use permit, as the name indicates, imposes upon the successful applicant various conditions. The Board’s decision appropriately notes that a “tourist home is limited by the zoning regulations to property located on a state or federal highway” 3 thereby distinguishing it from other conditional uses. Furthermore, the grant of the appli *575 cation imposed upon Post a total of eleven additional specific conditions as to size, use, parking, lighting, noise, etc. As noted in the decision, the definition of “tourist home” as supplied by Wilson and adopted by the Board does not confuse, but differentiates the term from others such as “bed & breakfast.”

On June 1, 2005, the Appellants filed an action in the Woodford Circuit Court seeking to overturn the granting of the conditional use permit. On February 28, 2006, the Woodford Circuit Court concluded the Board had not acted arbitrarily and upheld the Board’s decision to grant the conditional use permit to Post. This appeal followed.

It is well-established that a court’s review of the action of an administrative agency is limited to “review, not reinterpretation.” Jones v. Cabinet for Human Resources, Division for Licensure & Regulations, 710 S.W.2d 862, 866 (Ky.App.1986) (citation omitted). A reviewing court may not substitute its judgment for that of an administrative agency even though it might have reached a different result. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308-09 (Ky.1972). The Supreme Court of Kentucky articulated this standard of review as follows:

[T]he scope of judicial review of zoning action taken by public bodies, both administrative and legislative, is limited to determining whether the action was arbitrary, which ordinarily involves these considerations: (1) whether the action under attack was in excess of the powers granted to the public bodies [;] (2) whether the parties were deprived of procedural due process by the public bodies[;][and] (3) whether there is a lack of evidentiary support in the findings of the public bodies[.]

Fallon v. Baker, 455 S.W.2d 572, 574 (Ky.1970), citing American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450 (Ky.1964). A board’s factual findings are not deemed to be arbitrary if they are supported by substantial evidence, which is defined as “evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Kentucky State Racing Commission v. Fuller, 481 S.W.2d at 308 (citation and internal quotations omitted).

The Appellants first argue the Board acted arbitrarily when it relied upon the definition of a tourist home supplied by Wilson. Acknowledging that Wilson has the authority to interpret terms, the Appellants insist that by defining “tourist home,” Wilson was creating law, rather than interpreting a term, in excess of her authority. In response, Appellees deny Wilson acted beyond the scope of her authority. Additionally and more to the point, Appellees argue in response that Appellants did not timely appeal the adoption of this definition before the Board of Adjustments pursuant to KRS 100.261. This statute provides:

Appeals to the board may be taken by any person, or entity claiming to be injuriously affected or aggrieved by an official action, order, requirement, interpretation, grant, refusal, or decision of any zoning enforcement officer. Such appeal shall be taken within thirty (30) days after the appellant or his agent receives notice of the action of the official by filing with said officer and with the board a notice of appeal specifying the grounds thereof, and giving notice of such appeal to any and all parties of record. Said officer shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken and shall be treated as and be the respondent in such further proceedings. At the public hearing on the appeal held by the board, *576 any interested person may appear and enter his appearance, and ail shall be given an opportunity to be heard.

KRS 100.261.

The appropriate procedure for appeals taken from decisions of enforcement officers, such as Wilson, was discussed by this Court in Burns v. Peavler, 721 S.W.2d 715 (Ky.App.l986)(property owner challenging a decision of a zoning enforcement officer, that a deed restriction allowing for multifamily dwellings obviated the need for a zoning change, could not appeal that decision to the circuit court without timely appealing to the board of adjustment). “Review of administrative decisions must strictly follow the applicable statutory procedures.” Bur ns, 721 S.W.2d at 717. As part of her job, Wilson researches and provides the Board with information to aid them in making zoning recommendations to the Board.

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Related

Keogh v. Woodford County Board of Adjustments
243 S.W.3d 369 (Court of Appeals of Kentucky, 2007)
Keogh v. WOODFORD CTY. BD. OF ADJ.
243 S.W.3d 369 (Court of Appeals of Kentucky, 2007)

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Bluebook (online)
228 S.W.3d 573, 2007 WL 1892941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-woodford-county-board-of-adjustments-kyctapp-2007.