Greg Stumbo v. Lexington-Fayette Urban County Government

• Court: Court of Appeals of Kentucky
• Decided: December 15, 2022
• Docket: 2022 CA 000412
• Status: Unknown

Opinion

RENDERED: DECEMBER 16, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0412-MR

GREG STUMBO AND MARY KAREN STUMBO APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 20-CI-03708

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; LFUCG PLANNING COMMISSION; AND LFUCG BOARD OF PLANNING AND ZONING APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND MAZE, JUDGES.

MAZE, JUDGE: Greg and Mary Karen Stumbo (the Stumbos) appeal from an

order of the Fayette Circuit Court which affirmed the decision of Lexington-

Fayette Urban County Government Board of Planning and Zoning (the Planning Commission) to deny a certificate of appropriateness (COA) for their property.

The Stumbos allege that the Planning Commission’s action was arbitrary, in excess

of its statutory authority, in violation of their due process rights, and not supported

by substantial evidence. We conclude that these allegations are not supported by

the record. Hence, we affirm.

I. Facts and Procedural History

The relevant facts of this action are not in dispute. In December 2018,

the Stumbos purchased a residential property located at 221 Barberry Lane in

Fayette County. The property is located within an H-1 overlay zone, which was

designated as a historic district in 1997. In pertinent part, the Lexington-Fayette

Urban County Zoning Ordinance (Zoning Ordinance) requires a property owner to

obtain a COA prior to any new construction, exterior change, or demolition of any

structure within the historic district. Zoning Ordinance Section 13-7.

After purchasing the property, the Stumbos began renovations on the

1942 brick masonry house. They testified that the brick was in poor condition,

with many cracks and water-invasion issues. During the renovation process, they

began painting the brick exterior white. The Historic Preservation Office (HPO)

received a complaint from a neighbor that the brick was being painted. Upon

receipt of the complaint, the HPO staff made a visit to the property. Based on the

Zoning Ordinance, the staff issued a stop-work order.

-2- Thereafter, the Stumbos filed an application for a COA to paint the

masonry brick exterior. The hearing took place on August 19, 2020, before the

Board of Architectural Review (BOAR). The Stumbos raised issues of sufficiency

of notice of the hearing, their lack of knowledge that the property was in a historic

district, and the painting was consistent with the historic district. Following the

hearing, the BOAR denied the Stumbos’ application, concluding that the proposed

changes “are not compatible to the design, character and scale of the historic

district in which the property is located[,]” and “do not meet the intent of the

‘Local Historic District and Landmark Design Guidelines’ adopted by the Historic

Commission.” The BOAR also directed the Stumbos to remove the paint from the

brick exterior.

The Stumbos then filed an appeal to the Planning Commission. The

Stumbos again raised issues of the sufficiency of notice of the BOAR hearing, their

lack of knowledge that the property was in a historic district, the consistency of

painting the residence with the design guidelines, and their objections to the

BOAR’s order directing removal of the paint from the brick. At the hearing on

November 12, 2020, the Planning Commission considered the record presented to

the BOAR, the case review provided by the Division of Historic Preservation, and

the applicable portions of the Zoning Ordinance and adopted Design Guidelines.

The Planning Commission also considered evidence regarding the available means

-3- of removing the paint, and the notice which the Stumbos received that the property

is located within a historic district. Following the hearing, the Planning

Commission voted to affirm the BOAR’s denial of the COA.

The Stumbos next filed an appeal of the Planning Commission’s

action to the Fayette Circuit Court, as provided by KRS1 100.347. After

considering the arguments of counsel and the record presented, the circuit court

concluded that the actions of the BOAR and Planning Commission: (1) were not

in excess of their statutory powers; (2) afforded sufficient due process to the

Stumbos; and (3) were supported by substantial evidence of record. The Stumbos

now appeal to this Court. Additional facts will be set forth below as necessary.

II. Standard of Review

KRS 100.347 provides for appeals from a final action of the Planning

Commission to the circuit court. However, the scope of review for all appeals

from administrative agencies was set forth by the former Court of Appeals in

American Beauty Homes Corp. v. Louisville and Jefferson County Planning and

Zoning Commission, 379 S.W.2d 450 (Ky. 1964).

Basically, judicial review of administrative action is concerned with the question of arbitrariness. . . .

....

1 Kentucky Revised Statutes.

-4- The above three grounds of judicial review, (1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support, effectually delineate its necessary and permissible scope. . . . In the final analysis all of these issues may be reduced to the ultimate question of whether the action taken by the administrative agency was arbitrary.

Id. at 456-57 (footnotes and citations omitted). More recently, the Kentucky

Supreme Court explained the parameters of whether a decision was arbitrary:

Judicial review of an agency decision is limited to the determination of whether the decision was arbitrary, i.e., whether the action was taken in excess of granted powers, whether affected parties were afforded procedural due process, and whether decisions were supported by substantial evidence. Issues of law involving an administrative agency decision will be reviewed on a de novo basis.

Louisville Metro Health Dep’t v. Highview Manor Ass’n, LLC, 319 S.W.3d 380,

383 (Ky. 2010) (quoting Sebastian-Voor Properties, LLC v. Lexington-Fayette

Urban County Gov’t, 265 S.W.3d 190, 195 (Ky. 2008)).

III. Action in Excess of Granted Powers

The Stumbos raise several arguments as part of their due-process

claims which actually assert that the Planning Commission acted in excess of its

statutory authority. The Stumbos first argue that Lexington-Fayette Urban County

Government lacks the authority to establish overlay historical districts or to enforce

-5- regulations pertaining to such districts. However, the Stumbos never raised this

issue before either the Planning Commission or the circuit court.

It is well-established that an issue not raised or adjudicated by the trial

court will not be considered when raised for the first time on appeal. See Ten

Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009). The only

exception to this rule is the question of “whether the trial court had general

subject-matter jurisdiction.” Commonwealth v. Steadman, 411 S.W.3d 717, 724

(Ky. 2013) (emphasis added). Because the Stumbos only challenge the Planning

Commission’s authority over this particular area, we must conclude that the issue

is deemed waived. Therefore, we will not address the issue further.

The Stumbos next contend that the BOAR’s order directing them to

remove the paint from the residence amounts to an unconstitutional taking of their

property. To the extent that the Stumbos challenge the legislature’s delegation of

authority to enforce zoning regulations, we must note that KRS 418.075(1)

requires notice be given to the Attorney General’s office in any proceeding that

involves the validity of a statute. Since the Stumbos did not provide such notice,

the constitutionality of the enactment is not before this Court.

On the other hand, the Stumbos’ argument may be construed as a

challenge to the reasonableness of the exercise of authority under the Zoning

Ordinance. In such cases, “[t]he presumption is in favor of the ordinance and the

-6- burden is on the property owner attacking it to show its unreasonableness. Should

reasonable minds differ as to whether the restriction has a substantial relation to the

public health, morals, safety, or general welfare, the ordinance must stand as a

valid exercise of the police power.” McCollum v. City of Berea, 53 S.W.3d 106,

111 (Ky. App. 2000) (citation omitted).

The Stumbos generally concede that preservation of historic structures

is a valid exercise of zoning authority under the state’s police powers. However,

they contend that enforcement of the regulations in this instance was unreasonable.

In particular, the Stumbos assert that painting was the necessary remedy for water

leakage into the house. They further maintain that removal of the paint would

damage the underlying brick and diminish the value of the residence. As a result,

the Stumbos argue that the denial of a COA and the remediation order effectively

amounts to a taking of their property without just compensation.

However, the Stumbos fail to show that enforcement of the historic

district regulations would be unreasonable in this case. As noted above, Guideline

I.3G states that brick “should not be covered with silicone-based water sealants or

liquid siding” and Guideline I.3H states that brick “that has never been painted

should not be painted.” The Stumbos do not point to any evidence, other than their

own testimony, that painting was necessary to preserve the integrity of the

structure.

-7- Furthermore, the Stumbos elected to paint the brick without first

checking whether it was permitted under the Zoning Regulations and Design

Guidelines. In so doing, they took the risk that the modification of the exterior

would not be permitted. Although there was evidence that removal of the paint

would be costly and difficult, there was no evidence, other than their own

testimony, that removal would substantially damage the brick. Consequently, the

Stumbos failed to establish that enforcement of the Zoning Ordinance and Design

Guidelines was unreasonable.

IV. Procedural Due Process

The Stumbos next claim that the actions by the BOAR and the

Planning Commission violated their rights to procedural due process.

Fundamentally, the hallmarks of procedural due process are notice and an

opportunity to be heard. See Hilltop Basic Resources, Inc. v. County of Boone, 180

S.W.3d 464, 469 (Ky. 2005). “‘[D]ue process,’ . . . is not a technical conception

with a fixed content unrelated to time, place and circumstances” but “is flexible

and calls for such procedural protections as the particular situation demands.”

Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18

(1976) (internal quotation marks and citations omitted). Due process merely

requires that all affected parties be given “the opportunity to be heard at a

-8- meaningful time and in a meaningful manner.” Id. at 333, 96 S. Ct. at 902 (internal

quotation marks and citations omitted).

The Stumbo’s first due-process argument is that they were provided

insufficient notice of the BOAR hearing. Section 13-7(b) of the Zoning Ordinance

sets out procedures for issuance of a COA for exterior changes. In pertinent part,

Section 13-7(b)(1)b. requires the BOAR to provide notice by first class letter “at

least fourteen (14) days in advance of the public hearing.” The record in this case

reflects that the BOAR’s letter notifying the Stumbos of the public hearing on

August 19, 2020, was dated July 30, but was postmarked August 5. The Stumbos

contend that this fails to meet the notice requirements of the Zoning Ordinance or

procedural due process.

We disagree. The postmark on the BOAR’s notice letter shows that it

was mailed fourteen days prior to the hearing. The Stumbos cite to no authority

that the notice must be received fourteen days prior to the hearing. Furthermore,

the Stumbos were advised of the hearing date by email on August 6. Moreover,

the Stumbos were clearly aware of the hearing, as they attended it and presented

evidence. Thus, there is no evidence that they were unfairly prejudiced by the

allegedly untimely notice.

Second, the Stumbos argue that they lacked sufficient notice of the

historic overlay district and the Design Guidelines. The Stumbos contend that they

-9- had no way to know the property was in a historic district prior to purchasing it.

They note that the district was not mentioned in any of the sales literature and that

the restrictions were not included in any recorded deed or plat. As a result, the

Stumbos assert that it was unreasonable to apply these restrictions against them.

The Stumbos cite to no authority requiring that Zoning Regulations or

Design Guidelines be included in the deed or in a published plat. Rather, a zoning

ordinance must provide fair notice to the public that certain conduct is prohibited

and minimal guidelines to aid officials in the enforcement of that prohibition.

Hengehold v. City of Florence, 596 S.W.3d 599, 607 (Ky. App. 2020). The

Zoning Ordinance and adopted Design Guidelines clearly provide such notice and

guidelines. The Stumbos do not challenge the sufficiency of the description of the

historic overlay district in the Zoning Ordinance. And finally, the Planning

Commission noted that there is a sign designating the area as part of a historic

overlay district. Consequently, we agree with the circuit court that the Stumbos

had sufficient notice of the existence of the historic district and its restrictions.

In their last due-process argument, the Stumbos contend that the

Planning Commission improperly considered evidence that was not presented at

the hearing before the BOAR. The Stumbos complain only that the Planning

Commission considered the staff report during its deliberations on whether to

-10- uphold the BOAR’s denial of the COA. However, the Zoning Ordinance clearly

permits it to do so.

Section 13-7(f) of the Zoning Ordinance sets forth the scope of the

Planning Commission’s review from the BOAR’s denial of a COA. In the conduct

of that review, Subsection b. provides:

After notice as required above, the Commission shall conduct a public hearing and vote to approve or deny the appeal. At the hearing, the Planning Commission shall allow its staff, Historic Preservation Office staff, the Board members, the appellant, protestors, and other interested citizens to testify and rebut the evidence presented provided that the Chairman shall have the power to limit repetitive testimony and exclude irrelevant testimony and evidence. In its deliberations, the Planning Commission shall give due consideration to the decision of the Board and the finding and conclusions reflected in the Board’s record and shall apply the design guidelines adopted by the Historic Preservation Commission.

(Emphasis added.)

The Planning Commission was well within its discretion to allow

introduction of the staff report and testimony. The Stumbos do not allege that they

were unable to present evidence to rebut that information. Therefore, we find no

due process violation.

V. Sufficiency of the Evidence

Finally, the Stumbos challenge the sufficiency of the evidence

supporting the Planning Commission’s factual findings to deny the COA. On

-11- factual issues, a court “reviewing the agency’s decision is confined to the record of

proceedings held before the administrative body and is bound by the administrative

decision if it is supported by substantial evidence.” Commonwealth,

Transportation Cabinet Dep’t of Vehicle Regulation v. Cornell, 796 S.W.2d 591,

594 (Ky. App. 1990). “‘[S]ubstantial evidence’ means evidence of substance and

relevant consequence having the fitness to induce conviction in the minds of

reasonable men.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409,

414 (Ky. 1998) (citations omitted). “[I]f there is substantial evidence in the record

to support an agency’s findings, the findings will be upheld, even though there may

be conflicting evidence in the record.” Kentucky Comm’n on Human Rights v.

Fraser, 625 S.W.2d 852, 856 (Ky. 1981).

The Stumbos argue that there was no substantial evidence to support

the Planning Commission’s findings that (1) they were on notice the property was

located within a historic district; or (2) the brick exterior had never been painted.

We conclude there was substantial evidence to support both findings.

On the first question, the H-1 historic overlay zone was created in

1997 and was a matter of public record. In addition, there was a sign in the

vicinity designating the area as a historic zone. As discussed above, we conclude

this was sufficient to place the Stumbos on inquiry notice of the existence of the

district and restrictions.

-12- On the second finding, the Planning Commission considered

photographs showing that the brick had not been painted at the time the Stumbos

purchased the residence. Against this evidence, the Stumbos merely asserted that

they found flecks of paint on the brick near the window casements and that other

brick structures in the neighborhood had been painted. Under the circumstances,

we conclude that there was substantial evidence to support the Planning

Commission’s finding on this matter.

VI. Conclusion

Accordingly, we affirm the order of the Fayette Circuit Court

upholding the decision of the Planning Commission.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Anna Stewart Whites Tracy W. Jones Frankfort, Kentucky Lexington, Kentucky

-13-