Drakes Creek Holding Co. v. Franklin-Simpson County Board of Zoning Adjustment

518 S.W.3d 174, 2017 WL 1193189, 2017 Ky. App. LEXIS 62
CourtCourt of Appeals of Kentucky
DecidedMarch 31, 2017
DocketNO. 2015-CA-000789-MR, NO. 2015-CA-001234-MR, NO. 2015-CA-001235-MR, NO. 2015-CA-001236-MR
StatusPublished
Cited by4 cases

This text of 518 S.W.3d 174 (Drakes Creek Holding Co. v. Franklin-Simpson County Board of Zoning Adjustment) 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
Drakes Creek Holding Co. v. Franklin-Simpson County Board of Zoning Adjustment, 518 S.W.3d 174, 2017 WL 1193189, 2017 Ky. App. LEXIS 62 (Ky. Ct. App. 2017).

Opinion

OPINION

LAMBERT, D„ JUDGE:

This consolidated opinion resolves several disputes arising from the grant and subsequent revocation of a conditional use permit (CUP) by the Franklin-Simpson County Board of Zoning Adjustment (the Board). After review, we find no reversible error and affirm the Simpson Circuit Court.

I. BACKGROUND

In February 2012, Charles and Penny Deweese applied for a CUP to begin operating a rock quarry on two adjoining properties in Simpson County, Kentucky. The properties belonged to the Deweeses and comprised 87 agriculturally zoned acres. At the time, the properties were only accessible via Ditmore Ford Road, a narrow county road. The Deweeses included detailed maps in their application. The maps described the quarry’s location within the properties’ boundaries,

The Board considered the Deweeses’ application during a public hearing on February 28, 2012. The hearing itself lasted more than six-hours, and nearly 400 people attended. Among those in the crowd were a group of neighboring landowners (the Carvers) who opposed the CUP. In particular, the Carvers were concerned about prospective traffic on Ditmore Ford Road. When given the opportunity to speak at the hearing, the Carvers presented evi[178]*178dence that Ditmore Ford Road would require certain improvements to accommodate large commercial trucks traveling to and from the quarry. The Carvers, through counsel, also cross-examined a Deweese representative. In their case in chief, the Carvers offered evidence that an unimproved Ditmore Ford Road was too narrow for large commercial trucks to negotiate and unsafe for motorists at one particularly steep location because of an inadequate stopping-sight distance. The Carvers also explained that a bridge located to the east of the quarry could not support large commercial trucks during high water times.

Despite the Carvers’ efforts, the Board voted to grant the CUP. From its written findings, the Board specifically determined that the quarry would benefit the community by creating jobs and increasing competition for limestone rock and agriculture lime. Notably, however, the Board imposed the following three conditions on the quarry’s operations:

1. Trucks exiting the quarry on Dit-more Ford Road will be required to turn west on Ditmore Ford Road towards Highway 1008;
2. The quarry will be permitted to operate between the hours of 7:00 a.m. and 5:00 p.m. on weekdays, and from 7:00 a.m. until noon on Saturdays;
3. Prior to the commencement of the harvesting of limestone at the quarry, the applicant is required to construct a berm at least fifteen (15) feet high along the southern and western borders of the harvest area.

Despite a motion from Commissioner Ray Malchow regarding possible improvements to Ditmore Ford Road, there were no other conditions included in the Board’s written findings. The Carvers later appealed the Board’s decision to the Simpson Circuit Court, where they argued that the CUP was arbitrarily granted.

While a decision on the Carvers’ appeal was pending, a series of events led to additional disputes. First, both the City of Franklin and the Simpson County Fiscal Court adopted ordinances prohibiting commercial trucks from hauling material on Ditmore Ford Road. The Simpson County Judge/Executive, Jim Henderson, allegedly supported the county ordinance. Second, in the wake of the ordinances’ adoption, Drakes Creek Holding LLC (Drakes Creek), the legal entity operating the quarry, stopped transporting limestone on Ditmore Ford Road. Trucks entering and exiting the quarry instead began utilizing a private haul road (Haul Road B) that crossed two other Deweese properties and linked the quarry to State Highway 585. Importantly, there was no access to Haul Road B from State Highway 585 when the Deweeses applied for the CUP. It was only after the Carvers appealed the Board’s decision to grant the CUP that the Kentucky Department of Transportation allowed the Deweeses to build a connection joining the two roads.

Upon learning that trucks were no longer using Ditmore Ford Road, the Board scheduled a hearing regarding the CUP. At the hearing, the Board relied on a report filed by Joe Perry, the local planning and zoning administrator. In that report, Perry concluded that the Deweeses were not operating the quarry in compliance with the CUP. Perry evidently reached this conclusion after finding that the ordinances had made it impossible for the Deweeses to comply with the CUP, and that trucks had begun using Haul Road B. Perry’s report further explained that the Deweeses’ original CUP application did not mention the two additional properties over which Haul Road B runs. After reviewing this evidence, the Board, [179]*179which consisted of a new member recently appointed by Jim Henderson, revoked the CUP.

In 2014, the Deweeses appealed the CUP revocation. In essence, they disagreed that the use of Haul Road B violated the CUP’s terms. That same year, the legal entity Drakes Creek brought a separate action against the Board, Judge/Executive Jim Henderson, and the Franklin-Simpson County Planning' and Zoning Commission (the Planning Commission) for their respective roles in adopting the county ordinance and revoking the CUP. According to that complaint, the ordinances amounted to an inverse condemnation of the Deweeses’ property and the CUP revocation tortiously interfered with certain contracts to which Drakes Creek was a party.

At that point, three primary issues were before the circuit court. The court considered the issues in turn and first decided that the original CUP was properly issued in 2012. The circuit court then decided that the CUP was improperly revoked in 2014. Finally, the circuit court dismissed the lawsuits against Jim Henderson and the Planning Commission pursuant to CR1 12.02(f). This appeal followed.

II. STANDARD OF REVIEW

Kentucky courts review planning and zoning decisions for arbitrariness. Keogh v. Woodford County Bd. of Adjustments, 243 S.W.3d 369, 372 (Ky. App. 2007). Under that standard, the administrative agency must have acted within its statutory authority, afforded the parties procedural due process, and supported its decision with substantial evidence. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964). Dismissals under CR 12.02(f) are reviewed de novo to evaluate whether the facts alleged in complaint, if proved, would entitle the plaintiff to relief. James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002).

III. DISCUSSION

On appeal, the parties challenge the circuit court’s decisions on several grounds. We begin our analysis by explaining that the Board’s initial decision to grant the CUP was proper. Our focus then shifts to the Board’s later decision to revoke the CUP, which we agree was improper.

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518 S.W.3d 174, 2017 WL 1193189, 2017 Ky. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drakes-creek-holding-co-v-franklin-simpson-county-board-of-zoning-kyctapp-2017.