Opinion
NO. 2011-CA-001540-MR NO. 2011-CA-001681-MR
01-11-2013
JESSAMINE COUNTY-CITY OF WILMORE BOARD OF ADJUSTMENT; LARRY LEWIS, IN HIS OFFICIAL CAPACITY; ALTON BOONE, IN HIS OFFICIAL CAPACITY; BONNIE BANKER, IN HER OFFICIAL CAPACITY; CARL RHODES, IN HIS OFFICIAL CAPACITY; WEBSTER RUSSELL, IN HIS OFFICIAL CAPACITY; BRIAN DENGER, IN HIS OFFICIAL CAPACITY; OWEN RHINEHEIMER, IN HIS OFFICIAL CAPACITY; AND BETTY TAYLOR, ADMINISTRATIVE OFFICER, IN HER OFFICIAL CAPACITY APPELLANTS v. READY MIX CONCRETE OF SOMERSET, INC.; RICHARD D. HISEL; LUCIEN D. HISEL AND ALLTECH, INC. APPELLEES AND ALLTECH, INC. APPELLANT v. JESSAMINE COUNTY-CITY OF WILMORE, JOINT BOARD OF ADJUSTMENT; LARRY LEWIS, CHAIRMAN; ALTON BOONE; BONNIE BANKER; CARL RHODES; WEBSTER RUSSELL; BRIAN DENGER, IN HIS CAPACITY AS MEMBER OF THE JESSAMINE COUNTY/CITY OF WILMORE JOINT BOARD OF ADJUSTMENT; BETTY TAYLOR, ADMINISTRATOR; READY MIX CONCRETE OF SOMERSET, INC.; RICHARD D. HISEL; AND LUCIEN D. HISEL APPELLEES
BRIEFS AND ORAL ARGUMENT FOR APPELLANTS/APPELLEES JESSAMINE COUNTY-CITY OF WILMORE JOINT BOARD OF ADJUSTMENT, LARRY LEWIS, ALTON BOONE, BONNIE BANKER, CARL RHODES, WEBSTER RUSSELL, BRIAN DENGER, OWEN RHINEHEIMER, AND BETTY TAYLOR: Bruce E. Smith Nicholasville, Kentucky BRIEFS AND ORAL ARGUMENT FOR APPELLANT/APPELLEE ALLTECH, INC.: T. Bruce Simpson, Jr. Lexington, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES READY MIX CONCRETE OF SOMERSET, INC., RICHARD D. HISEL, AND LUCIEN D. HISEL: Robert L. Gullette, Jr. Nicholasville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 10-CI-00317
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 10-CI-00317
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT, AND MAZE, JUDGES. KELLER, JUDGE: The Jessamine County-City of Wilmore Board of Adjustment, its members (collectively referred to herein as the Board), its administrative assistant, and Alltech, Inc. (Alltech) appeal from an opinion and order of the circuit court reversing the Board's denial of an application for a conditional use permit filed by Ready Mix Concrete of Somerset, Inc. (Ready Mix). Having reviewed the record and the arguments of counsel, we affirm.
Larry Lewis, Alton Boone, Bonnie Banker, Carl Rhodes, Webster Russell, Brian Denger, and Owen Rhineheimer are members of the Board.
FACTS
In July 2009, after a "consultation" with the Board's administrative assistant, Betty Taylor (Taylor), Ready Mix filed an application for a conditional use permit with the Board. In its application, Ready Mix sought permission to build a concrete batch plant on property owned by Richard D. and Lucien D. Hisel (the Hisels). The property is in the "Light Industry, I-1 Zone" and operation of a concrete batch plant is not specifically listed as a permitted use. Ready Mix presented its case to the Board at the August 20, 2009, meeting. Following discussion, the Board members voted six to one to approve a motion to deny the permit because "the activity [is] a principal use listed in I-2 Zone and [Ready Mix had] not shown sufficient evidence for it to be a conditional use for the I-1 Zone." Ready Mix did not appeal that decision by the Board.
On October 28, 2009, Ready Mix filed another application for a conditional use permit, again designating the Hisels' property as the location for its concrete batch plant. However, in this application, Ready Mix limited the area on the property to "tract 1A." On January 14, 2010, counsel for Ready Mix sent correspondence to Taylor asking for an interpretation of Section 3.2721 of the zoning ordinance. According to Ready Mix, Section 3.2721, which lists permitted uses for Zone I-1, would permit the operation of a concrete batch plant, thus negating the need for a conditional use permit. In response, Taylor stated that Ready Mix filed its first application "based in part on a consultation with" her. However, Taylor did not set forth any details regarding what was said or otherwise communicated during that consultation. Taylor further stated that, because the Board had denied Ready Mix's application in August and Ready Mix had not appealed that denial, she would not give the requested interpretation. Ready Mix filed an appeal with the Board regarding Taylor's refusal to make the requested interpretation.
The Board scheduled a hearing for February 18, 2010, on Ready Mix's application for a conditional use permit and on its appeal of Taylor's refusal to interpret Section 3.2721 of the zoning ordinance. Prior to that meeting, Alltech, a neighboring landowner, filed a motion to dismiss the conditional use application. In its motion, Alltech argued that Ready Mix's October 2009 application was essentially the same as the application the Board had denied in August 2009. According to Alltech, because Ready Mix had not appealed that denial, the Board was foreclosed from reviewing an identical application based on res judicata. Ready Mix filed a response arguing that the second application was similar but not the same because the property description differed. Furthermore, Ready Mix argued that res judicata is not applicable to administrative proceedings.
At the February 18 meeting, counsel for the Board stated that there were
[t]wo (2) threshold issues for the Board to address: one is whether or not to hear a second application for a conditional use permit to operate a concrete plant in the I-1 Zone at the same location on Catnip Hill Road on the Hisel property and the second is whether or not to hear an appeal of the refusal of the Administrative officer [sic] to offer an interpretation of the Zoning Ordinance requested by . . . Ready Mix . . . .
Counsel for the Board, Ready Mix, and Alltech then made arguments to the Board regarding those two issues. After hearing those arguments, and without hearing any evidence on the merits of the application or Taylor's refusal to interpret the regulations, a Board member made the following motion:
[t]o deny the request for the conditional use permit application (concrete batch plant) under Section 3.2722, Ready Mix Concrete Batch Plant, submitted by Ready Mix Concrete of Somerset, Inc. for property located on the north side of Cantnip [sic] Hill Pike, Tract 1A of the G.D. and Bessie Hisel property because it does not meet zoning specifications and that it is an I-1 Zone and also based on the findings submitted by [the Board's attorney].Presumably, the reference to the "findings submitted by" the Board's attorney is to an attachment to a memo from that attorney to the Board setting forth the above issues in greater detail. Those findings are as follows:
1. The subject application is identical to the first application heard by the Board on August 20, 2009, with the exception that the size of the tract of land to be used by applicant (at the same geographic location on Catnip Hill Road) differs.(Emphasis in original). The Board voted 3-1 in favor of the motion.
2. No appeal to the Jessamine Circuit Court was taken by the applicant as to the Board's denial of the first application.
3. There has been no change in the text of The Zoning Ordinance of Jessamine County ("Zoning Ordinance") relative to Section 3.272, Light Industry, I-1 or Section 3.275 Heavy Industry, I-2 since the hearing of the first application.
4. The first application was denied on the basis of insufficient evidence and being authorized as a principal use in the Heavy Industry, I-2 zone.
5. The conditional use requested by the applicant is not specifically named as a conditional use in the Light Industry, I-1 zone section of the Zoning Ordinance.
6. Section 3.2731 - Principal Uses in the Heavy Industry, I-2 section of the Zoning Ordinance specifically names "concrete plants" as a permitted activity.
8. [sic] The subject application is essentially and substantially a request by the Applicant for a rehearing of the first application heard and denied on August 20, 2009.
A Board member then made a motion to uphold Taylor's decision to refrain from interpreting Section 3.2721. The Board voted 3-1 in favor of that motion. The minutes of the February 2010 meeting contain no explanation or findings of fact for the Board's vote on that motion.
Ready Mix filed a complaint appealing the Board's decisions to circuit court. The circuit court reversed the Board finding that res judicata and issue preclusion do not apply to administrative actions. According to the court, the only impediment to filing "numerous and repeated requests for ordinance interpretations, conditional use permits or zone changes for the same property . . . would be the cost incurred and the potential wrath of the administrative body."
Furthermore, the court concluded:
There is nothing in the Board's decision of August 20, 2009 to indicate that another application would not be considered. The first ground stated in the motion to deny was that the activity was a principle use listed in an I-2 zone and, apparently by implication, could not be aBased on the preceding, the court concluded that Ready Mix "should have been allowed to present [its] case on its merits to the Board."
conditional use in an I-1 zone. By Board counsel's own admission during oral argument, a principle use in one zone does not necessarily preclude it as a conditional use in another zone, and the Board has granted such conditional use permits in the past. To complicate matters further, Ordinance 3.2722 listing the conditional uses in an I-1 zone is extraordinarily broad in that it allows:
Any use, other than those prohibited [in Section 3.2732], which in the opinion of the Board of Adjustments would not admit detrimental or obnoxious noise, vibration, smoke, odors, dust and/or other objectionable conditions beyond the confines of its property.By acknowledging that the applied for use was a concrete plant as listed in 3.2731, as opposed to a cement manufacturing plant, as listed in 3.2732, the Board was acknowledging that the use was not one of the prohibited uses referred to in 3.2722.
The second reason given in the motion on August 20, 2009 was that "the applicant has not shown sufficient evidence for it to be a conditional use for the I-1 zone." Nothing in that statement would preclude the Plaintiff from coming back on a future occasion to try to present what would constitute "sufficient evidence," and, presumably, if sufficient evidence is then presented, applicant would be entitled to the permit.
Several motions to alter, amend, or vacate followed and the court issued an amended opinion and order, from which the above cited language was taken. It is from that opinion and order that the Board and Alltech appeal.
Because of the timing of the motions to alter, amend, and vacate and the orders disposing of same, the Board and Alltech filed separate appeals. However, both appeals were timely filed and essentially the same issues are raised in both appeals. Therefore, a motion panel of this Court combined the appeals for briefing and oral argument.
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On appeal, Alltech and the Board delineate a number of issues, several of which go to the merits of Ready Mix's October 2009 application, i.e. whether the operation of a concrete batch plant is an acceptable conditional use for the I-1 zone. The Board did not conduct an evidentiary hearing on the merits of Ready Mix's October 2009 application; therefore, issues related to the merits of that application are not properly before us. After discarding those issues, we conclude that there are only two issues properly before us: (1) whether Ready Mix's failure to appeal from Taylor's "consultation" in July 2009 foreclosed it from seeking an interpretation of Section 3.2721 from Taylor in January 2010; and (2) whether the Board's denial of Ready Mix's conditional use application in August 2009 precluded any consideration on the merits of Ready Mix's October 2009 conditional use application.
STANDARD OF REVIEW
The issues, as outlined above, are questions of law, not fact. Therefore, we review them de novo. See Transportation Cabinet v. Weinberg, 150 S.W.3d 75 (Ky. App. 2004).
ANALYSIS
We first address Taylor's refusal to interpret Section 3.2721 of the zoning regulations. KRS 100.257 provides that the Board "shall have the power to hear and decide cases where it is alleged by an applicant that there is error in any order, requirement, decision, grant, or refusal made by an administrative official in enforcement of the zoning regulations. Such an appeal shall be taken within thirty (30) days."
As noted above, after filing its second application for a conditional use permit, Ready Mix asked Taylor in January 2010 to interpret Section 3.2721 of the zoning regulation. Taylor refused indicating that she had had a consultation with Ready Mix representatives regarding that section of the regulation in July 2009. However, there is nothing in the record setting forth what Taylor said during that consultation. Furthermore, the Board did not make any findings of fact regarding what Taylor said. Because the record is silent regarding what interpretation Taylor made of Section 3.2721 in July 2009, the Appellants' argument that Ready Mix was foreclosed from seeking an interpretation of that Section in January 2010 is without merit. Absent any evidence or findings of fact on this issue, we must remand to the Board for an evidentiary hearing. At that hearing, the Board must first determine what interpretation, if any, Taylor made regarding Section 3.2721 of the regulation in July 2009. The Board must then determine whether Taylor's interpretation was accurate.
Finally, on this issue, we note Alltech's citation to Allen v. Woodford County Bd. of Adjustments, 228 S.W.3d 573 (Ky. App. 2007). In Allen, a landowner sought a conditional use permit to build and operate a "tourist home" on his property. The zoning regulation had no definition of tourist home so the Board's compliance officer supplied one using "standard reference works in the Board's library." Id. at 574. The Board issued the permit and neighboring landowners appealed arguing that the compliance officer's definition of tourist home was faulty. On appeal, this Court affirmed, holding that the neighbors had not timely raised an objection to the compliance officer's interpretation. Alltech argues that, based on Allen, Ready Mix was foreclosed from seeking an interpretation of Section 3.2721 in January 2010. However, Allen is not persuasive because there is nothing in the record herein regarding what interpretation, if any, Taylor made to Section 3.2721 in July 2009. Therefore, it is impossible to discern whether there was any interpretation in July 2009 from which Ready Mix could have or should have appeal.
We next address the Appellants' argument that the Board's August 2009 denial of Ready Mix's application for a conditional use permit barred Ready Mix's October 2009 application. As we understand it, the Appellants rely primarily on "the law-of-the-case doctrine" to support their argument. Their reliance is misplaced for two reasons. First, the law-of-the-case doctrine has no application to executive branch administrative proceedings. In Hume v. Franklin County Fiscal Court, 276 S.W.3d 748 (Ky. 2008), this Court ruled that res judicata could be applied to decisions regarding zoning changes. However, the Supreme Court of Kentucky reversed that ruling, holding that "res judicata is a judicial doctrine, while rezoning is a legislative function. While res judicata may apply to subsequent litigation of a zoning change application, it does not, nor can it apply to a subsequent zone change map amendment application." Id. at 751 (footnotes omitted). The Board is no less a legislative body than the planning commission and determining whether to issue a conditional use permit is no less a legislative body function than is determining whether to make an amendment to a zoning map. Furthermore, the-law-of-the-case doctrine is no less a judicial doctrine than res judicata is. Just as res judicata has no application with regard to decisions of the zoning commission, the-law-of-the-case doctrine has no application to decisions by the Board. Therefore, the Board's denial of Ready Mix's application for a conditional use permit in August 2009 is not binding as to its later application.
We note that Alltech cites to a number of cases for the proposition that the-law-of-the-case doctrine does apply. We address each below. Bates v. City of Monticello, 173 Ky. 244, 190 S.W. 1074 (1917), involved a case that had been appealed to the former Court of Appeals three times. The Court ruled that a party could not re-argue an issue on remand when an appellate court had previously ruled against that party on that issue. The case herein had not been previously appealed nor has it been remanded; therefore, Bates is distinguishable and not persuasive.
In Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1 (Ky. 1978), two businesses applied for a variance for a sign. The Board of Adjustment granted the variance over the objection of two interested parties. Those parties appealed to the circuit court within thirty days but did not join the Planning and Zoning Commission until sixty-eight days after the Board's approval. The Supreme Court held that "[w]hen grace to appeal is granted by statute, a strict compliance with its terms is required." Id. at 2. Because the appellants had not timely joined the Commission, as required, the Court upheld the circuit court's dismissal of the appeal. Id. Flood is distinguishable because the issue before the Court was what occurs when an aggrieved party files a faulty appeal, not what occurs when an aggrieved party fails to appeal.
In Spainhoward v. Henderson, Henderson County Bd. of Zoning Adjustment, 7 S.W.3d 396 (Ky. App. 1999), Spainhoward was advised by the code administrator that his recycling center was a permitted use in the retail business zone. A nearby property owner appealed that determination and the Board of Adjustment reversed the administrator's decision. In doing so, the Board stated that Spainhoward could continue to operate the recycling center while he sought a conditional use permit. However, Spainhoward chose to appeal the Board's reversal of the administrator's decision. The circuit court dismissed Spainhoward's appeal, finding that the Board's determination was not final because the Board had not ruled on any potential conditional use application. This Court reversed the circuit court, holding that the Board's determination regarding what is a permitted use had nothing to do with any determination regarding a conditional use. Therefore, the Board's determination reversing the administrator was final and appealable. The issue in Spainhoward was whether the Board's determination was final, not whether an un-appealed adverse ruling by the Board forecloses a subsequent application. Thus, as with the other cases, Spainhoward is distinguishable and not persuasive.
Having determined that the-law-of-the-case doctrine does not apply, we must next address what impact Ready Mix's failure to appeal the denial of its August application has. The Appellants argue that the planning and zoning statutes provide an appellate process, and Ready Mix's failure to avail itself of that process foreclosed the Board from considering the October 2009 application. We disagree for two reasons.
First, nothing in the planning and zoning statutes, KRS 100, et seq., provides that failure to appeal denial of a conditional use application forecloses the filing of subsequent similar or even identical applications. Second, KRS 100.213(2) provides that a "planning commission, legislative body, or fiscal court may adopt provisions which prohibit for a period of two (2) years, the reconsideration of a denied map amendment or the consideration of a map amendment identical to a denied map amendment." The legislature contemplated the filing of successive applications for map amendments and provided a method to limit them. The legislature's failure to so limit the filing of successive applications for conditional use permits indicates that they did not intend to do so.
Finally, although we agree that Hume is not controlling because it addresses map amendments, not conditional use permits, we find its reasoning to be persuasive. As the Court noted, "life changes, . . . communities change, and . . . in short periods of time, the economic, physical, or social nature of [a] community or area can be subject to change." Id. 276 S.W.3d at 751. Because those changes can occur and, absent any provision limiting the filing of successive conditional use applications, the Board's denial of Ready Mix's application in August 2009 did not foreclose it from considering the October 2009 application.
CONCLUSION
For the foregoing reasons, we affirm the circuit court and remand this matter to the Board so that it can conduct a hearing on the merits of Ready Mix's October 2009 application for a conditional use permit and on Taylor's refusal to interpret Section 3.2721 of the zoning regulations.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANTS/APPELLEES
JESSAMINE COUNTY-CITY OF
WILMORE JOINT BOARD OF
ADJUSTMENT, LARRY LEWIS,
ALTON BOONE, BONNIE
BANKER, CARL RHODES,
WEBSTER RUSSELL, BRIAN
DENGER, OWEN RHINEHEIMER,
AND BETTY TAYLOR:
Bruce E. Smith
Nicholasville, Kentucky
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT/APPELLEE
ALLTECH, INC.:
T. Bruce Simpson, Jr.
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEES READY MIX
CONCRETE OF SOMERSET, INC.,
RICHARD D. HISEL, AND LUCIEN
D. HISEL:
Robert L. Gullette, Jr.
Nicholasville, Kentucky