Keogh v. Woodford County Board of Adjustments

243 S.W.3d 369, 2007 Ky. App. LEXIS 371
CourtCourt of Appeals of Kentucky
DecidedOctober 5, 2007
DocketNo. 2006-CA-001745-MR
StatusPublished
Cited by5 cases

This text of 243 S.W.3d 369 (Keogh 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
Keogh v. Woodford County Board of Adjustments, 243 S.W.3d 369, 2007 Ky. App. LEXIS 371 (Ky. Ct. App. 2007).

Opinion

OPINION

WINE, Judge.

James and Anne Keogh (the Keoghs) and David B. and Donna J. Allen (the Allens) appeal from an order of the Wood-ford Circuit Court which affirmed a decision by the Versailles-Midway-Woodford County Board of Adjustment (the Board) to grant a conditional use permit to Thomas R. Post to operate a “tourist home” on his property. The Keoghs and the Allens contend that the Planning Director exceeded her authority by creating a definition for a “tourist home,” and that the Board acted arbitrarily in granting the conditional use permit where the zoning ordinance did not adequately define the term. We agree with the circuit court that the Planning Director and the Board did not exceed their authority by defining the term as used in the ordinance. However, we agree with the Keoghs and the Allens that Post’s application clearly does not meet the requirements of a “tourist home” as defined by the Board. Consequently, the Board acted arbitrarily in granting the conditional use permit. Hence, we reverse the circuit court and remand for entry of a new order setting aside the conditional use permit.

The underlying facts of this action are not in dispute. Post is the owner of 207.496 acres of agricultural land located at 105 Shannon Run Road, Versailles, [371]*371Woodford County, Kentucky. The property has entrances off U.S. Highway 60, a federal highway, and Shannon Run Road, a state highway. The primary entrance is off Shannon Run Road. The property is zoned agricultural, A-l.

On August 12, 2005, Post, d/b/a Kentucky Mansion, filed an application with the Board requesting a conditional use permit to operate a tourist home. Post planned to renovate an existing residence into a twelve-bedroom structure which would be available for use by guests who would be accommodated overnight for a fee. There would be one parking space per bedroom for the guests, with an additional five spaces for employees and others.

Several months earlier, Post had filed an application with the Board for a conditional use permit to operate a tourist home on another tract of property which he owned in Woodford County. At the time, Wood-ford County’s zoning ordinance recognized “tourist home” as a permitted conditional use, but the ordinance did not define that term. Patricia Wilson, the Planning Director, supplied the definition from 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.” Based on this definition, the Board granted the previous conditional use permit.

The Board conducted a public hearing on Post’s current application on September 6, 2005. Planning Director Wilson recommended that the definition of “tourist home” adopted for the prior application be applied to the current application. The Board also took testimony and accepted written comments both in support of and in opposition to the application. At its next meeting on October 3, 2005, the Board voted unanimously to approve granting the conditional use permit subject to certain listed conditions.

On November 1, 2005, the Keoghs and the Allens brought this action pursuant to KRS 100.347 challenging the Board’s decision to grant the conditional use permit. The Keoghs and the Allens each own property in close proximity to Post’s. They argued that Planning Director Wilson and the Board exceeded their authority by creating a definition of tourist home that did not exist in the zoning ordinance. They also argued that the Board acted arbitrarily in granting the conditional use permit. After considering the arguments of all parties, the circuit court affirmed the Board. This appeal followed.

As discussed above, the Board granted a prior conditional use permit to Post based on the definition of “tourist home” supplied by Planning Director Wilson and at issue in this case. The Keoghs and the Allens also appealed that decision to the circuit court. But in the prior matter, the circuit court found that the Keoghs and the Al-lens failed to preserve their objection to the adoption of the definition. On further appeal, this Court agreed, finding that the Keoghs and the Allens had failed to properly raise the issue before the Board and were thus precluded from raising it on appeal. Allen v. Woodford County Board of Adjustments, 228 S.W.3d 573 (Ky.App.2007).

In the prior appeal, the Keoghs and the Allens failed to timely raise their objection to the definition of tourist home as supplied by Planning Director Wilson. Similarly, the prior panel noted that the Keoghs and the Allens had not raised any [372]*372specific arguments as to how the Board’s action was arbitrary. In this appeal, however, the Keoghs and the Allens timely objected to the definition of tourist home, and they directly argue that the Board acted arbitrarily in granting the conditional use permit. Therefore, these issues are properly presented in this appeal.

In planning and zoning cases, the standard of review is set forth in American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450 (Ky.1964), which held that the overriding concern of the reviewing court is whether the administrative body’s action was arbitrary. In determining arbitrariness, the court must determine: (1) whether the agency exceeded its statutory authority; (2) whether the parties were afforded procedural due process; and (8) whether the agency decision was supported by substantial evidence. Id. at 456. See also Minton v. Fiscal Court of Jefferson County, 850 S.W.2d 52, 55 (Ky.App.1992). In this case, the Keoghs and the Allens primarily challenge the Board’s decision based on the first element of this test.

In particular, they argue that Planning Director Wilson exceeded her authority by providing a definition for “tourist home” and the Board exceeded its authority when it accepted the definition provided by the Director. Both of these matters involve questions of law, which we review de novo. Cincinnati Bell Telephone Co. v. Kentucky Public Service Commission, 223 S.W.3d 829, 836 (Ky.App.2007).

As the circuit court noted, § 402 of the county’s zoning ordinance grants the powers of interpretation and enforcement to the administrative officer — in this case the Planning Director. The Keoghs and the Allens contend that Planning Director Wilson exceeded her authority by creating a conditional use that either did not exist or was not sufficiently defined by the legislative body, thus giving the administrative body unrestrained authority to create a conditional use. Section 701.4(G) of the county’s zoning ordinance lists “Tourist home along State or Federal highways” as a permitted conditional use in the A-l zone. Thus, neither Planning Director Wilson nor the Board attempted to create a conditional use which did not exist under the zoning ordinance.

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243 S.W.3d 369, 2007 Ky. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keogh-v-woodford-county-board-of-adjustments-kyctapp-2007.