Grannis v. Schroder

978 S.W.2d 328, 1997 Ky. App. LEXIS 128, 1997 WL 748717
CourtCourt of Appeals of Kentucky
DecidedDecember 5, 1997
DocketNo. 96-CA-2240-MR
StatusPublished
Cited by5 cases

This text of 978 S.W.2d 328 (Grannis v. Schroder) 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
Grannis v. Schroder, 978 S.W.2d 328, 1997 Ky. App. LEXIS 128, 1997 WL 748717 (Ky. Ct. App. 1997).

Opinion

OPINION

SCHRODER, Judge:

This is a planning and zoning case which discusses the agricultural supremacy clause of KRS 100.203(4); what is an agricultural use; and the differences between a nonconforming use and a nonconforming structure.

The appellee, Charlie Schroder, a/k/a Charles J. Schroder (“Schroder”), owns about 80 acres in unincorporated Harrison County, approximately 2.8 miles north of Cynthiana on U.S. 27. His house is located up on a ridge with a barn down near the highway. The appellants, Sid Grannis and Loretta Grannis, live across the street from the barn. On November 13, 1995, Schroder made an application before the local board of adjustments for a conditional use permit for a home occupation. The request was to use the barn for a base of operation which was to store such things as his dump truck, backhoe, trailer, construction trailer, concrete forms, used railroad ties, used telephone poles, and concrete culvert pipes. Schroder, and one employee, use this equipment for the installation and repair’ of water lines, septic lines, digging trenches for water runoff, and similar purposes, both for himself and for hire. The property is zoned agricultural (A-1U) under the Cynthiana-Harrison County-Berry Zoning Ordinance, hereinafter referred to as “ZO,” which allows certain nonagricultural uses as well as certain nonagricultural conditional uses, including “d. Agricultural home occupations_” The development standards under conditional uses require, among other things not in question, at least a 75-foot front yard setback. The barn in question sits closer than 75 feet.

On December 12, 1995, the Harrison County Board of Adjustments (BOA) conducted a public hearing on the request. The appellants were permitted to read a letter into the record stating their’ opposition to the proposal and to make general comments. Appellants were represented by counsel who questioned whether Schroder had a true agricultural use and whether the barn was a nonconforming structure. Others were permitted to comment, and an open discussion followed. The criticisms against granting the conditional use focused on whether the 30-aere tract was a true agricultural use because Schroder was observed only cutting hay and maintaining a residence. Also, Schroder proposed putting a concrete floor in the bays of the barn for storage and a water hydrant outside. Electric and phone lines were already in place and adequate. Critics questioned whether this was expanding or enlarging a nonconforming use.

At the conclusion of the public comments, the BOA voted to grant a conditional use permit for an agricultural home occupation to be conducted in the barn, subject to these conditions: storage of nonagricultural materials like plywood, scaffolding, etc. to be placed inside the barn, with the storage of railroad ties, fence posts, and other agricultural-type materials to be stored on the west side of the barn; a forty-foot vegetative buffer to be placed running parallel to U.S. 27, across from appellants’ house; and the barn entrance off U.S. 27 to be wide enough for emergency vehicles and not to be blocked. The BOA went through the requirements of [330]*330the zoning ordinance and made specific findings on each element.

An appeal to circuit court was unsuccessful and appellants seek relief in this Court on these grounds: that a conditional use in an agricultural zone is to be subordinate to a principal permitted agricultural use, thus the BOA erred in finding Schroder used the majority of the 30-acre tract for agricultural purposes; and that the granting of a conditional use permit for the barn constituted an unlawful enlargement or expansion of a nonconforming structure. We disagree with both contentions and, thus, affirm.

The BOA’s discussion during the public hearing of December 12, 1995 repeatedly refers to Schroder’s right to use his property for agricultural uses like storing his backhoe, dump truck, and railroad ties if he uses them on the farm. The BOA determined that only when he uses the material on someone else’s property or uses the equipment on someone else’s property was the BOA’s jurisdiction invoked. Appellants’ position is that there is a serious question as to whether or not Schroder’s use of the 30 acres is agricultural. All appellants see is Schroder occasionally cutting hay and potentially devoting five or six acres around the barn to his business. Appellants contend that is not an agricultural use.

Chapter 100 of the Kentucky Revised Statutes is commonly referred to as the enabling act for planning and zoning. Under KRS 100.203, cities and counties may enact zoning regulations. However, Section 4 of KRS 100.203 specifically exempts land used for agriculture from zoning regulations — except for setbacks, use of flood plains, and mobile homes. This “agricultural supremacy clause” (KRS 100.203(4)) does not simply make a farm a legal nonconforming use but takes it outside the zoning ordinances’ jurisdiction, although not outside the master or comprehensive plan. That is an important distinction because by exempting agricultural land from application of the zoning ordinance, the provisions of KRS 100.203, which deals with changes in nonconforming uses, do not apply. A community can still plan, even develop, a comprehensive or master plan, and go so far as to adopt a zoning map including all the property in its jurisdiction, whether used for agriculture or not. However, as long as the land is used for agricultural purposes, the adopted zoning regulations (except for the three exceptions above) do not apply or attach to the property. Zoning ordinances frequently include agricultural zones in both the text and the map. The ordinance covering Schroder’s property, ZO, Section 671A Agricultural Zone (A-1U) Unincorporated Areas, is typical and includes agricultural activities, including a single family farm residence, as a permitted principal use. Technically, it is not necessary to list these uses because of the agricultural supremacy clause, but as a practical matter, it makes the zoning ordinance easier to read and all inclusive.

Agricultural zones, like the A-1U zone in question here, typically include some nonag-ricultural uses as principal permitted uses, such as hospitals, day cares, and churches. Some nonagricultural uses are listed as conditional uses in the A-1U zone, like recreational facilities, slaughterhouses, feedlots, and home occupations. Id. These uses, also being nonagricultural in the sense that they are not typical farming operations, are subject to the BOA’s approval which may be given subject to certain conditions as the BOA did in Schroder’s case. See KRS 100.237. Under the local ordinance, a home occupation is allowed in an A-1U zone if the home occupation is an agricultural home occupation. ZO, 671A Agricultural Zone (A-1U) Unincorporated Areas, § 3. Conditional Uses: d. agricultural home occupations. Under the ZO, Article 2, Section 200, an agricultural home occupation is defined as:

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Bluebook (online)
978 S.W.2d 328, 1997 Ky. App. LEXIS 128, 1997 WL 748717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grannis-v-schroder-kyctapp-1997.