Murphy v. Key West Crossing, LLC

152 S.W.3d 876, 2004 Ky. App. LEXIS 341, 2004 WL 2320264
CourtCourt of Appeals of Kentucky
DecidedOctober 15, 2004
DocketNo. 2003-CA-001812-MR
StatusPublished

This text of 152 S.W.3d 876 (Murphy v. Key West Crossing, LLC) 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
Murphy v. Key West Crossing, LLC, 152 S.W.3d 876, 2004 Ky. App. LEXIS 341, 2004 WL 2320264 (Ky. Ct. App. 2004).

Opinion

OPINION

VANMETER, Judge.

George M. Murphy is appealing for the second time from summary judgment orders entered by the Kenton Circuit Court after the Kenton County Board of Adjustment (Board) granted conditional use permits allowing the development and operation of a golf course adjacent to Murphy’s property. We conclude that the Board failed to make required threshold findings of fact before issuing the conditional use permit, and that the circuit court erred by granting summary judgment for appellees.

In March 1998 Roger Shrout, on behalf of appellee Key West Crossing, LLC, filed an application with the Board seeking a conditional use permit to build a golf course in an area zoned for agricultural use. Murphy objected to the request. The Northern Kentucky Area Planning Commission recommended denial of the permit both because the proposed use was not necessary or desirable, and because that use, with access from the adjacent U.S. 25 across busy railroad tracks at the Key West Road crossing, would be detrimental to the public’s health, safety or general welfare. After a hearing in April 1998, the Board tabled the issue for further discussion.

In July 1998 another hearing was conducted. The Planning Commission again recommended denial of the requested conditional use permit, noting that the submitted information was insufficient and incomplete, and that there were concerns about traffic patterns and safe access to the site from U.S. 25. The Board nevertheless granted the requested permit, conditioned on Key West’s future submission of plans for approval by the Board.

Murphy appealed to the Kenton Circuit Court, which granted appellees’ motion for a summary judgment, holding that the Board’s decision was not arbitrary as KRS 100.237(1) permits a conditional use permit to be granted subject to “attached require[878]*878ments that something be done before the request may be initiated.” That decision was reversed by this court in Appeal No.2000-CA-001105-MR, which noted that although a board of adjustment may attach conditions to a conditional use permit’s approval, KRS 100.237(1) neither dispenses with a board’s fundamental obligation to make findings of fact based upon substantial evidence, nor allows a board to approve permits conditioned on the future justification of the request. More specifically, this court held:

The Board’s decision to grant a conditional use permit, contingent upon Shrout’s furnishing a plan in the future, lacks a substantial evidentiary foundation. By its very definition, a conditional use permit must contain a “statement of the factual determination by the board of adjustment” which justifies its issuance. KRS 100.111(7).

The matter was remanded to the Board with directions to deny the permit due to the lack of sufficient evidence.

Meanwhile, Key West made property improvements and hired consultants to design a golf course and conduct a feasibility study. Key West then reapplied for a conditional use permit, which the Board denied based on concerns about safe access to the property via the Key West crossing. After a study confirmed that the Key West crossing was unsafe and could not reasonably be improved, Key West began advocating for improvements to the “Murphy crossing” used for access to the Murphy property, so that the golf course could be accessed from U.S. 25 at KY 14.

On October 21, 2002, the Planning Commission recommended approval of Key West’s application for a conditional use permit, subject to the following conditions:

1. That all public improvements be approved by all applicable agencies including, but not limited to, the Kenton County Planning Commission, Norfolk Southern Railroad, and the Kentucky Transportation Cabinet.
2. That the previously submitted development plan, except for the amended access, be incorporated as part of this application and that it meet the minimum requirements of the Kenton County Zoning Ordinance.

The Commission noted that the proposed improvements should be approved by all applicable agencies to ensure that they would “not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity of the site[.]” Further, it concluded that “[t]he proposed golf course is desirable and will provide a facility and service which will contribute to the general well being of the community” as there was a need for recreational facilities in the southern portion of the county.

Three days later, the Board conducted a three-hour public hearing on Key West’s application for a conditional use permit. Evidence was adduced regarding the inability to adequately improve the Key West crossing and the steps which were planned for improving the Murphy crossing at KY 14. Those steps included the installation of railroad gates and signals, the construction of a stacking/deceleration lane, and the construction of a new public roadway. The proposals were supported by the written report of traffic engineer Jack Geh-rum, who confirmed that the upgraded Murphy crossing would conform with standard traffic engineering practices. The proposals also were supported by the report of Viox & Viox, Inc., addressing the dangers of the Key West crossing and recommending its closure. During the hearing there were discussions about acquiring a sufficient right of way for the road, about Key West’s absorption of vari[879]*879ous costs, and about dedicating the new roadway as a county road. Evidence was adduced concerning the golf course’s anticipated operation and use, and regarding the regional benefits of developing the facility and nearby properties. There was testimony that although the design of the proposed Murphy crossing had not yet been approved by state and local administrative bodies, it had been approved by railroad authorities.

Murphy and his attorney challenged the sufficiency of the evidence to support Key West’s application for a conditional use permit, asserting that there was inadequate evidence to address the impact which passing trains would have on U.S. 25 traffic while cars waited to cross the tracks to the golf course. They asserted that the Murphy crossing would be unsafe for the proposed use, and that safer access to the course could be had through another crossing located ¾ mile away.

At the close of the hearing the Board unanimously agreed to the following motion:

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Related

Bourbon County Board of Adjustment v. Currans
873 S.W.2d 836 (Court of Appeals of Kentucky, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
152 S.W.3d 876, 2004 Ky. App. LEXIS 341, 2004 WL 2320264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-key-west-crossing-llc-kyctapp-2004.