Opinion
NO. 2013-CA-001130-MR NO. 2013-CA-001166-MR
01-23-2015
SHAWN CLAGGETT AND TONYA CLAGGETT APPELLANTS v. JOHN CARROLL AND KAREN CARROLL; JESSAMINE COUNTY/CITY OF WILMORE JOINT BOARD OF ADJUSTMENTS AND ITS MEMBERS LARRY LEWIS, ALTON BOONE, BONNIE BANKER, CARL RHODES, WEBSTER RUSSELL, BRIAN DENGER AND OWEN RHINEHEIMER; AND CHRIS WOODALL, ENFORCEMENT OFFICER APPELLEES AND JOHN CARROLL AND KAREN CARROLL CROSS-APPELLANTS v. SHAWN CLAGGETT AND TONYA CLAGGETT; JESSAMINE COUNTY/CITY OF WILMORE JOINT BOARD OF ADJUSTMENTS AND ITS MEMBERS LARRY LEWIS, ALTON BOONE, BONNIE BANKER, CARL RHODES, WEBSTER RUSSELL, BRIAN DENGER AND OWEN RHINEHEIMER; AND CHRIS WOODALL, ENFORCEMENT OFFICER CROSS-APPELLEES
BRIEF FOR APPELLANTS: William Miles Arvin Nicholasville, KY BRIEF FOR APPELLEES: Robert L. Gullette, Jr. Nicholasville, KY
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 12-CI-00270
CROSS-APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 12-CI-00270
OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
BEFORE: COMBS, STUMBO, THOMPSON, JUDGES. COMBS, JUDGE: Shawn Claggett and his wife, Tonya Claggett, appeal the order of the Jessamine Circuit Court entered on April 20, 2013. The circuit court affirmed a decision of the Jessamine County/City of Wilmore Joint Board of Adjustments. The Board's decision confirmed its administrative officer's granting of a building permit to adjacent property owners -- John Carroll and his wife, Karen Carroll; and his denial of the Claggetts' request for a cease-and-desist order regarding certain improvements to the Carrolls' property. The Claggetts argue that the Board's decision was arbitrary and capricious and that the Board failed to make adequate findings in support of its decision. They also contend that the circuit court exceeded its authority on review.
The Carrolls filed a cross-appeal. They argue that the Claggetts' appeal of the administrative officer's decision to the Board was untimely and that the appeal to the circuit court should have been summarily dismissed without a review on the merits. After our review, we affirm in part and vacate in part and remand. We are persuaded that the Claggett's appeal was timely filed. However, we are compelled to remand to the circuit court for an order setting aside the Board's findings and sending the matter back to the Board for further proceedings.
In July 2011, the Carrolls bought a house at 1032 Gayheart Lane in rural Jessamine County. The property in this area of the county is zoned A-1 (agricultural), which permits certain accessory uses, including single-family residences. However, the house and lot at 1032 Gayheart Lane predate the adoption of Jessamine County's planning and zoning ordinance and do not conform to current standards. For example, the current minimum lot size in an A-1 zone is five acres, but the property at 1032 Gayheart Lane is approximately only one acre. The A-1 zone requires a front yard setback of 60 feet, but the house on the property at issue is located closer to the roadway. Nevertheless, under the terms of the local zoning ordinance, the property is considered to be a "lot of record" and is not in violation of the zoning requirements. We quote as follows from the opinion and order of the Jessamine Circuit Court at page 5:
Lots of Record are addressed in Article IV, Section 4.223(C) of the ordinance. By definition, a Lot of Record does not include enough land to conform to the current requirements of the Ordinance. It is anticipated that owners of Lots of Record who want to build structures thereon will request variances from the Ordinance from the Board of Adjustments....
In 1996, a previous owner of the residence added a room and a porch to the front of the house without seeking or obtaining a building permit. The addition was positioned across a portion of the front of the house, bringing it even closer to the roadway. Nevertheless, by statute, after ten years had elapsed, no objection could be lodged with respect to the addition to the house.
In September 2011, the Carrolls demolished the 1996 addition to their residence and began constructing a second addition that stretched across the entire length of the front of the house. Although the second addition was no wider than the first, a portion of the new addition lies closer to the road because the house does not sit at a right angle with respect to the roadway. The Claggetts reported the new construction to Chris Woodall, the Board of Adjustments administrative officer, and demanded that he issue a stop-work order.
Following an investigation, no stop-work order was issued. However, because the project was begun before it was authorized by a building permit, the Carrolls were assessed a fine by the county's department of inspection. The Carrolls paid the fine and secured the necessary building permit on November 1, 2011; construction of the addition resumed.
Evidence indicates that the Claggetts met with Woodall after the building permit was issued. On November 10, 2011, Woodall confirmed to the Claggetts in writing that a building permit had been issued. He explained that the permit was proper since the width of the front yard setback line had been established with the 1996 addition and that the Carrolls' new addition (although it stretched across the entire front of the house) did not extend beyond that established setback line.
On December 6, 2011, the Claggetts, pro se, filed an appeal of Woodall's decision to the Board of Adjustments. They alleged that the building permit issued to the Carrolls unlawfully authorized the expansion of a nonconforming use and that the new construction violated the setback line requirement established by the zoning ordinance. A second appeal filed the same day by the Claggetts' counsel alleged additionally that the Claggetts had been injuriously affected and aggrieved by the decision of the building inspector. After a public hearing was conducted on January 19, 2012, the Board of Adjustments adopted proposed findings of fact submitted by its counsel confirming Woodall's decision.
On March 16, 2012, the Claggetts filed an appeal in the Jessamine Circuit Court in which they challenged the Board's decision to confirm the decision of its administrative officer. The Claggetts contended that the Board's decision was arbitrary and capricious because it unlawfully permitted the expansion of a nonconforming use. They also challenged the adequacy of the Board's findings of fact.
The circuit court's opinion and order were entered on April 30, 2013. Rejecting the Carrolls' contention to the contrary, the circuit court concluded that the Claggetts' appeal to the Board of Adjustments had been timely filed. However, it rejected the Claggetts' contention that the disputed addition should have been analyzed as an unlawful expansion of a nonconforming use. Instead, and as noted above, the court concluded that the Board had correctly determined that the issue could be resolved by reference to the "lot of record" provisions in the local zoning ordinance since those provisions were enacted specifically to address the problems associated with construction on a nonconforming lot. However, the court noted that the new addition to the residence expanded its former footprint and extended its reach beyond the previously established setback line. Thus, it held that the Carrolls should have been required to apply for a variance from the terms of the zoning regulation as provided in the "lot of record" section of the ordinance. Although the Carrolls had failed to apply for a variance, the court upheld the Board's decision to confirm the administrative officer's authority to grant a building permit under the circumstances, reasoning that the Board's decision was the legal equivalent of or tantamount to a formal approval for a variance. The circuit court denied the Claggetts' motion to alter, amend, or vacate, and this appeal followed.
Kentucky Revised Statute[s] (KRS)100.111(24) defines "variance" as "a departure from dimensional terms of the zoning regulation pertaining to the height, width, length, or location of structures, and the size of yards and open spaces where such departure meets the requirements of KRS 100.241 to 100.247."
The standard of review applicable in planning and zoning matters was 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 (3) whether the agency decision was supported by substantial evidence. Id.
The trial court concluded that under the circumstances, the Board's administrative officer should have required the Carrolls to make an application for a variance under the "lot of record" provision of the zoning ordinance. That provision reads as follows:
Lot of Record -- where the owner of a lot of official record, which lot at the time of the adoption of this regulation does not include sufficient land to conform to the yard or other requirements of this regulation, an application may be submitted to the Board of Zoning Adjustments for a variance from the terms of this regulation. Such lot may be used as a building site, provided, however, that the yard and other requirements of the district are complied with as closely as is possible in the opinion of the Board of Zoning Adjustments.The Zoning Ordinance of Jessamine County, Article IV, Section 4.22(c).
The court was well within its authority to decide - as a matter of law - that the Carrolls were required to follow this procedure. See Moore v. City of Lexington, 309 Ky. 671, 218 S.W.2d 7 (1948). The Board contends that the circuit court discussed the "lot of record" variance application process merely as an essentially ancillary approach to its review of the Board's decision for arbitrariness. We must analyze the court's conclusion that the Board "complied with what is required for a variance under the ordinance" in affirming the decision of its administrative officer. Order and opinion at 6. After our review, we conclude the Board fell short of complying with variance requirements.
KRS 100.241 grants the Board "the power to hear and decide on applications for variances" and allows the Board to "impose any reasonable conditions or restrictions on any variance it decides to grant." KRS 100.243 sets forth the findings and considerations that must be made before the Board may grant a variance:
(1) Before any variance is granted, the board must find that the granting of the variance will not adversely affect the public health, safety or welfare, will not alter the essential character of the general vicinity, will not cause a hazard or a nuisance to the public, and will not allow an unreasonable circumvention of the requirements of the zoning regulations. In making these findings, the board shall consider whether:
(a) The requested variance arises from special circumstances which do not generally apply to land in the general vicinity, or in the same zone;
(b) The strict application of the provisions of the regulation would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant; and
(c) The circumstances are the result of actions of the applicant taken subsequent to the adoption of the zoning regulation from which relief is sought.
(2) The board shall deny any request for a variance arising from circumstances that are the result of willful violations of the zoning regulations by the applicant subsequent to the adoption of the zoning regulation from which relief is sought.A party seeking a variance bears the burden of proof to convince the Board that a variance is justified. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836 (Ky.App.1994).
The Supreme Court of Kentucky has held that "[t]he legislative limits on the grant of variances [set forth in KRS 100.243] are not mere technicalities. The system delineated sets forth specific factors that the Board must consider and findings that must be made." Louisville & Jefferson County Planning Comm'n v. Schmidt, 83 S.W.3d 449, 454 (Ky.2001). Thus, adequate findings of fact in compliance with KRS 100.243 are required before the Board may grant a variance. The Board is not held to strict judicial standards in making its findings. However, its findings must include "sufficient information to afford a meaningful review as to the arbitrariness of the [its] decision." Currans 873 S.W.2d at 838. We are not persuaded that the Board's decision to affirm the administrative officer's action complied with the statutory requirements for a variance. Nor are the Board's findings legally sufficient to permit adequate judicial review.
To recapitulate, KRS 100.243 (1) generally requires a board of adjustment to make findings as to four issues in considering an application for a variance: (1) whether the granting of the variance will adversely affect the public health, safety, or welfare; (2) whether the granting of the variance will alter the essential character of the general vicinity; (3) whether the granting of the variance will cause a hazard or a nuisance to the public; and (4) whether the granting of the variance will allow an unreasonable circumvention of the requirements of the applicable zoning regulations. At the public hearing, a suggestion was made that the construction in question could adversely affect the public health, safety, or welfare. However, these issues were not addressed in the Board's findings. On the other hand, there was no suggestion that approval for the proposed new addition would alter the essential character of the general vicinity. On the contrary, the testimony indicated that the new addition would not impact the rural, residential status of the area in any way. The Board did not consider or address the question of whether the granting of the variance would allow for an unreasonable circumvention of the requirements of the zoning regulations. Thus, we must remand this matter for the Board to adequately address this issue with additional, relevant findings.
Finally, the Board did not make findings with respect to KRS 100.243(2), which provides that:
[t]he board shall deny any request for a variance arising from circumstances that are the result of willful violations of the zoning regulation by the applicant subsequent to the adoption of the zoning regulation from which relief is sought.It is true that the Carrolls commenced their new addition without first securing the necessary permit. However, it will be left to the Board to decide whether the violation of the zoning regulation was willful and whether the need for a variance arose from a willful violation. Because we are holding that the Board's findings of fact were not adequate in this case, we shall not address whether the Board's decision was arbitrary or unsupported by substantial evidence.
With respect to the Carrolls' cross-appeal, we note that the Claggetts' appeal to the Board was timely since it was filed within thirty (30) days after they received notice of the action taken by the Board's administrative officer. The Board so found, and that decision is adequately supported by the evidence.
The judgment of the Jessamine Circuit Court is affirmed in part, vacated in part, and remanded for an order consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANTS: William Miles Arvin
Nicholasville, KY
BRIEF FOR APPELLEES: Robert L. Gullette, Jr.
Nicholasville, KY