Westover Subdivision Association, Inc. v. Legislative Body of the louisville/jefferson County Metro Government

Opinion

RENDERED: AUGUST 21, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-0472-MR

WESTOVER SUBDIVISION ASSOCIATION, INC. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SARAH E. CLAY, JUDGE ACTION NO. 23-CI-003998

LEGISLATIVE BODY OF THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; CHRIST TEMPLE APOSTOLIC CHURCH, INC.; LOUISVILLE HISTORIC PRESERVATION DISTRICTS AND COMMISSION; LOUISVILLE METRO PLANNING COMMISSION; AND RENAISSANCE ON BROADWAY, LP APPELLEES

OPINION

AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND MOYNAHAN, JUDGES.

MOYNAHAN, JUDGE: Appellant, Westover Subdivision Association, Inc. (“Westover”),1 challenges the Jefferson Circuit Court’s Opinion of March 14, 2025, which affirmed the administrative decisions of Appellees, the Legislative Body of the Louisville/Jefferson County Metro Government (“Metro Council”); Louisville Metro Planning Commission (“the Commission”); and the Louisville Historic Preservation Districts and Commission (“LHPDC”) resulting in the adoption of Metro Ordinance No. 66, Series 3 2023, which concerned the rezoning and development of a certain parcel of land located at 4422-4423 W. Broadway, and South 45th Street, Louisville, Kentucky 40211 (“the Property”). Finding no error, we affirm.

I. BACKGROUND

Appellee, Christ Temple Apostolic Church, Inc. (“Christ Temple”), owns the Property at issue. In 2022, Christ Temple, working with Appellee, Renaissance on Broadway, LP (“Renaissance”), initiated the process of requesting a zoning change of the Property for its entirety to be designated solely as a residential multi-family district (R-7)2 for the purpose of constructing a three-story apartment unit building for low-income residents.

1 Westover is a neighborhood association for residents located in the Chickasaw neighborhood in Louisville. 2 A portion of the Property was already designated as R-7, but the remaining portion, upon which the Christ Temple Apostolic Church and Christian Life Center were located, was designated as a

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On March 16, 2023, the Commission held a public hearing concerning the development plan and rezoning change as requested by Christ Temple and Renaissance. Present at the hearing was Westover, as represented by its undersigned counsel, along with several other members of the community who voiced their objections to the requests, remarking that the new development would disrupt the character of the neighborhood for a variety of reasons. Westover also raised concerns that the development as presented did not align with portions of the Comprehensive Plan (“Plan 2040”) as adopted by the Commission pursuant to Kentucky Revised Statutes (“KRS”) 100.197, namely, the failure of the development plan to conform with the basic components for residential design standards contained in the LDC.3 In acknowledgment of the deviation from those components, Renaissance and Christ Temple also sought a waiver pursuant to LDC Chapter 11.8.

After considering public comments, the Commission conducted the business session of the hearing. In a 6-1 vote, the Commission formally recommended to the Metro Council that the zoning change be approved. In a 4-2 vote, the Commission did not approve the request for a waiver, which foreclosed

residential single-family district (R-5). Louisville Metro Land Development Code (“LDC”) Chapter 2.2. 3 The four basic components listed are a “public realm area, the principal structure area, the private yard area, and the accessory use/structure area.” LDC Chapter 5.4.

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its ability to vote on the development plan. During the business session, Planning Director, Emily Liu (“Director Liu”), who was present, indicated that she had had a brief conversation with Renaissance’s counsel about continuing the case for the purpose of revising the development plan. The Commission then continued the case for a second public hearing on March 30, 2023.

At that hearing, Christ Temple and Renaissance presented a new development plan substantially similar to the initial one presented on March 16, 2023, with the primary amendment being the removal of a property line that divided the two lots of the Property. By removing the property line, the new lot would consist of both the already-existing church and community center as well as the contemplated apartment building; the Property would then fall under the purview of LDC Chapter 5.5 which addresses mixed-use design standards rather than residential design standards. As a result, the residential design standards contained in LDC Chapter 5.4 were no longer applicable, and so a request for a waiver was no longer necessary.

Again, the Commission heard public comment on the new plan.

Westover disagreed that the new plan could be designated as mixed-use and reiterated its concerns with the plan’s failure to comport with the residential design patterns contained in LDC Chapter 5.4. In another 6-1 vote, the Commission approved the updated development plan.

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On June 1, 2023, the Metro Council accepted and approved the Commission’s recommendation to rezone the Property in Metro Ordinance No. 66, Series 3 2023. Though the Ordinance did not explicitly address the Commission’s approval of the updated development plan,4 it provided that the development plan must be approved by the relevant construction authorities prior to any building permit is requested; issued a binding element that the residential density on site shall not exceed 11.55 dwelling units; and stated that any subsequent and significant changes to the structures contemplated, which would warrant a public hearing by the Commission, shall be reviewed by the Commission with final action to be determined by the Metro Council.

An appeal to the Jefferson Circuit Court followed on June 30, 2023.

Ultimately on March 14, 2025, the circuit court affirmed the administrative decisions taken by the Commission, the Metro Council, and LHPDC.5 Westover filed a notice of appeal with this Court thereafter. On appeal, Westover argues that

4 The LDC does not require that the Metro Council explicitly review the Commission’s approval of a plan; however, LDC Chapter 11.7.5 does provide the option for the Metro Council to do so. 5 While Westover contested the actions of the Metro Council and LHPDC previously below, its briefs on appeal to this Court as well as the circuit court solely focus on the actions taken by the Commission; therefore, we shall limit our review to those decisions. Pers. Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986) (“Error not called to the attention of an appellate court prior to the time when a final decision is rendered may be deemed to be waived.”) (citations omitted).

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the actions of the Commission during the March 2023 hearings were arbitrary, biased, and violated tenets of due process II. ANALYSIS

It is well established in Kentucky that “[a]n appeal from an administrative decision is a matter of legislative grace and not a right,” and any failure to strictly adhere to statutory guidelines is fatal in bringing an appeal. Triad Dev./Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004). As indicated in KRS 100.347(2):

Any person or entity claiming to be injured or aggrieved by any final action of the planning commission and that owns real property within the same zone where the property that is the subject of the final action is located shall appeal from the final action to the Circuit Court of the county in which the property that is the subject of the commission’s action lies. The appeal shall be taken within thirty (30) days after the action of the commission.

Such action shall not include the commission’s recommendations made to other governmental bodies.

All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review.

In reviewing administrative decisions of agencies on appeal, a great deal of deference is afforded. Louisville/Jefferson Cnty. Metro Government v. TDC Group, LLC, 283 S.W.3d 657, 663 (Ky. 2009) (“‘The . . . court’s role as an appellate court is to review the administrative decision, not to reinterpret or to reconsider the merits of the claim, nor to substitute its judgment for that of the

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agency as to the weight of the evidence.’”) (citation omitted)). The primary focus for appellate review is whether the decisions of the agency were arbitrary. Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty. Plan. & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). Three factors to be considered regarding arbitrariness are: (1) whether the administrative body took “action in excess of granted powers”; (2) whether the administrative proceedings “lack[ed] procedural due process”; and (3) whether the administrative decision “lack[ed] . . . substantial evidentiary support[.]” Id. at 454.

“Procedural due process in the administrative or legislative setting has widely been understood to encompass ‘a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence, and, where the party’s constitutional rights are involved, a judicial review of the administrative action.’” Hilltop Basic Resources, Inc. v. Cnty. of Boone, 180 S.W.3d 464, 469 (Ky. 2005) (citing Morris v. City of Catlettsburg, 437 S.W.2d 753, 755 (Ky. 1969)). Decisions which are tainted by conflicts or predicated on blatant favoritism are considered arbitrary. Id.; see also Louisville Hist. League, Inc. v. Louisville/Jefferson Cnty. Metro Gov’t, 709 S.W.3d 213, 228 (Ky. 2025) (“An action is tainted by blatant favoritism when any reasonable person would recognize the interests of a particular party were favored to the exclusion of others, such that

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the latter were deprived of a fair opportunity to be heard and have their position considered.”). Importantly, the reviewing court must limit its analysis of these questions to the record made before the planning commission and the legislative body. City of Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky. 1973).

As a threshold issue, Appellees argue that Westover’s challenge to the Commission’s actions was untimely taken, and the circuit court should have not considered any arguments pertaining to those actions. Appellees acknowledge that Westover’s appeal from the Metro Council’s decision to rezone the Property was timely taken under KRS 100.347(3); however, they argue Westover should also have appealed, within thirty (30) days, the Commission’s decision to approve the updated development plan on March 30, 2023.

While Appellees are correct that approval of a development plan is more akin to a “final action” than a recommendation for zoning, and both determinations are resolved by a separate vote, we recognize that as a practical matter any challenge to the approval of the development plan would be premature until the Metro Council made the zoning decision.6 Furthermore, as maintained by LDC Chapter 11.4.6, the Metro Council may require changes or additional binding

6 Compare Bd. of Comm’rs of City of Danville v. Davis, 238 S.W.3d 132, 137 (Ky. App. 2007) (holding that KRS 100.203(2) does not explicitly require a development plan to be approved prior to a zoning change, only that it be submitted) with Davis v. Bd. of Comm’rs of City of Danville, 995 S.W.2d 404, 405 (Ky. App. 1999) (reversing and remanding a zoning change because no conceptual development plan was submitted prior to the change).

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elements on a development plan issued in conjunction with a zoning change. Considering the development plan was submitted in conjunction with the request for the zoning change; the Metro Council had the option to review the updated development plan when addressing the zoning change under LDC Chapter 11.7.5; and the Metro Council apparently reviewed and considered the minutes from the Commission’s March 30, 2023, hearing, which included the Commission’s determinations for both the initial development plan and the updated development plan, we do not find the circuit court erred in considering the Commission’s decisions relating to the March 2023, hearings. We next turn to whether the administrative decisions in this case were arbitrary.

Notably, Westover does not contest that the Metro Council or the Commission acted in excess of their granted powers or that the decision lacked substantial evidentiary support. Instead, its arguments pertain solely to the purported lack of due process in the Commission’s administrative proceedings.

Specifically, Westover alleges the Commission acted with bias, arguing that it showed blatant favoritism when it did not prevent Ms. Liu from speaking during the business session portion of the March 16, 2023, hearing, and approved the updated development plan despite none of the initial concerns with the residential design standards being addressed.

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Sub judice, Westover does not contest that it had adequate notice of both of the Commission hearings in March 2023 and was allowed to present evidence at each. In fact, those in opposition were given three times the amount of time normally afforded in public hearings of this type.

Regarding Director Liu, Westover suggests bias existed as evidenced by the fact that Director Liu and Renaissance’s counsel, who was a previous city employee, were colleagues in the past. Additionally, Westover cites to Friends of Louisville Public Art, LLC v. Louisville/Jefferson County Metro Historic Landmarks and Preservation Districts Commission, 671 S.W.3d 209, 214-15 (Ky. 2023), in which the Kentucky Supreme Court found bias to have existed in another case in which Director Liu was involved. However, Friends is clearly distinguishable. In that case, Director Liu was a voting member of the legislative body as well as an employee of the applicant of the request. Here, Director Liu is not a voting member on the Commission, is not employed by Renaissance or Christ Temple, and was not even present at the March 30, 2023, hearing. While she may have a previous professional relationship with Renaissance’s counsel, a brief conversation concerning the procedural issue of continuing the case for a second public hearing simply does not rise to the level of blatant favoritism.

Regarding the Commission’s decision to approve the updated development plan, Westover states the outcome was shocking because it was a

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significant departure from the previous conversation concerning the request for a waiver relating to the residential design standards. Notably however, Westover does not argue that a mixed-use development need not comply with residential design standards, and, while it questions the designation of the development as mixed-use, provides no authority or specific argument to dispute the designation. Though Westover clearly “feels” that the Commission’s decision was arbitrary and that the updated development plan’s approval was based on a “legalistic sleight of hand” regarding the change to mixed-use development, there is nothing in the record which serves as proof that the decision was arbitrary. Ultimately, while this Court may have come to a different conclusion on the facts presented, it is not a function of an appellate court to make its own findings or substitute its own judgment in place of an agency’s decision. See McCollum v. City of Berea, 53 S.W.3d 106, 111 (Ky. App. 2000).

III. CONCLUSION

Accordingly, because we hold the Jefferson Circuit Court properly determined that the underlying administrative agencies did not act arbitrarily, we affirm the Opinion of March 14, 2025.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES CHRIST TEMPLE APOSTOLIC CHURCH,

Ryan Fenwick INC. AND RENAISSANCE ON Louisville, Kentucky BROADWAY, LP:

Daniel P. Reed

Jonathan A. Baker

Louisville, Kentucky

BRIEF FOR APPELLEES

LEGISLATIVE BODY OF THE

LOUISVILLE/JEFFERSON

COUNTY METRO GOVERNMENT;

LOUISVILLE HISTORIC

PRESERVATION DISTRICTS AND COMMISSION; LOUISVILLE

METRO PLANNING

COMMISSION:

Anne P. Scholtz

Michael J. O’Connell

Travis J. Fiechter

Laura M. Ferguson

Louisville, Kentucky