Opinion
2023-CA-0086-MR 2023-CA-0087-MR
09-27-2024
LOUISVILLE AND METRO PLANNING COMMISSION AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT APPELLANTS v. FRIENDS OF 42 LLC; GUY R. SUTCLIFFE; JUDITH C. QUAIFE; KEVIN MORLEY; LDG LAND HOLDINGS, LLC; MARBOB, LLC; MICHAEL DAVID POWER REVOCABLE TRUST; ROBERT H. QUAIFE; AND SARAH MORLEY APPELLEES AND LDG LAND HOLDINGS, LLC; LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AND LOUISVILLE/JEFFERSON COUNTY METRO PLANNING COMMISSION APPELLANTS v. FRIENDS OF 42, LLC; GUY R. SUTCLIFFE; JUDITH C. QUAIFE; KEVIN MORLEY; MARBOB, LLC; MICHAEL DAVID POWER REVOCABLE TRUST; ROBERT H. QUAIFE; AND SARAH MORLEY APPELLEES
BRIEFS FOR APPELLANT LDG LAND HOLDINGS, LLC: Clifford H. Ashburner Philip E. Cecil Suzanne M. Marino Louisville, Kentucky BRIEFS FOR APPELLANTS LOUISVILLE AND METRO PLANNING COMMISSION AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT: Michael J. O'Connell Anne P. Scholtz Laura M. Ferguson Travis J. Fiechter Louisville, Kentucky BRIEF FOR APPELLEES: Stephen T. Porter Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 20-CI-006891 NO. 2023-CA-0087-MR
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 20-CI-006891
BRIEFS FOR APPELLANT LDG LAND HOLDINGS, LLC: Clifford H. Ashburner Philip E. Cecil Suzanne M. Marino Louisville, Kentucky
BRIEFS FOR APPELLANTS LOUISVILLE AND METRO PLANNING COMMISSION AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT: Michael J. O'Connell Anne P. Scholtz Laura M. Ferguson Travis J. Fiechter Louisville, Kentucky
BRIEF FOR APPELLEES: Stephen T. Porter Louisville, Kentucky
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
OPINION
ACREE, JUDGE
In these two appeals, Appellants challenge the Jefferson Circuit Court's April 12, 2022 Order vacating the Louisville Metro Planning Commission's (Commission) decision to approve LDG Land Holdings, LLC's application to build an apartment complex in Louisville. We reverse.
BACKGROUND
LDG owns property in Jefferson County at 10500 and 10600 U.S. Highway 42. That land is currently zoned R-6 Residential, Multi-Family District, which permits land uses such as apartment complexes. Louisville Land Development Code 2.2.11(a). In accordance with the current zoning scheme, LDG filed an application in July 2019 with the Commission to build the apartment complex on the property. LDG did not need to seek a waiver, variance, or rezoning for approval because Louisville already zoned the land for LDG's intended use; it did not need to change the zoning for the land in question. Instead, to approve LDG's application, the Commission needed to determine only that the application met the applicable requirements of the Louisville Land Development Code, an ordinance scheme adopted by local government.
The Commission held a public hearing on LDG's application on October 29, 2020. Appellees, neighboring landowners, challenged the proposed apartment complex, arguing it did not satisfy or comply with the Louisville Comprehensive Plan. Despite this challenge, the Commission stated numerous times that the application complied with the Louisville Land Development Code and found no evidence that the application violated the code. On this finding the Commission approved LDG's application to build the apartment complex.
On November 20, 2020, Appellees initiated this lawsuit to appeal the Commission's decision. They filed their appeal pursuant to KRS 100.347, which states: "Any person or entity claiming to be injured or aggrieved by any final action of the planning commission shall appeal from the final action to the Circuit Court of the county in which the property, which is the subject of the commission's action, lies." KRS 100.347(2).
Kentucky Revised Statutes.
In that appeal, Appellees alleged the Commission failed to properly consider the Comprehensive Plan, and that the now-approved apartment complex would violate numerous sections of that plan. Because of this alleged failure, Appellees claimed the Commission's decision was arbitrary and capricious. The Jefferson Circuit Court agreed and vacated the Commission's decision to approve LDG's application. In its April 2022 Order, the circuit court remanded this case to the Commission to determine whether the apartment complex would satisfy the Comprehensive Plan.
This appeal follows.
ANALYSIS
Appellate review of an administrative agency's decision examines whether it evinces arbitrariness or caprice. Am. Beauty Homes Corp. v. Louisville &Jefferson Cnty. Plan. & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964). "Kentucky Courts have long held that judicial review of administrative action is concerned with the question of arbitrariness .... Unless action taken by an administrative agency is supported by substantial evidence it is arbitrary." Dep't for Cmty. Based Servs., Cabinet for Health & Fam. Servs. v. Baker, 613 S.W.3d 1, 6 (Ky. 2020) (citations omitted). A decision will not be arbitrary if it is supported by substantial evidence. Kentucky Unemployment Ins. Comm'n v. Landmark Cmty. Newspaper of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002); see Taylor v. Coblin, Kentucky, 461 S.W.2d 78, 80 (1970) ("If there is any substantial evidence to support the action of the administrative agency, it cannot be found to be arbitrary and will be sustained."). "Substantial evidence is defined as 'evidence of substance and relative consequence having the fitness to induce conviction in the minds of reasonable [persons].'" Kentucky Unemployment Ins. Comm'n, 91 S.W.3d at 579 (quoting Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998)).
Ultimately, "[a]rbitrariness review is limited to the consideration of three basic questions: (1) whether an action was taken in excess of granted powers, (2) whether affected parties were afforded procedural due process, and (3) whether determinations are supported by substantial evidentiary support." Hilltop Basic Res., Inc. v. Cnty. of Boone, 180 S.W.3d 464, 467 (Ky. 2005). A planning commission's decision is not arbitrary and capricious merely because neighboring landowners dislike that decision.
Pursuant to KRS 100.183, local governments "shall prepare a comprehensive plan, which shall serve as a guide for public and private actions and decisions to assure the development of public and private property in the most appropriate relationships." KRS 100.183. In relevant part, [t]he comprehensive plan shall contain . . . [a] statement of goals and objectives, which shall serve as a guide for the physical development and economic and social well-being of the planning unit[.]" KRS 100.187(1) (emphasis added). The local government "adopt[s] the goals and objectives or principles of the entire comprehensive plan prior to enacting zoning regulations in order for a zoning code, so adopted, to be valid and enforceable, but the body need not have adopted all of the elements of the comprehensive plan ...." City of Lakeside Park v. Quinn, 672 S.W.2d 666, 667 (Ky. 1984) (emphasis added). Accordingly, a comprehensive plan "serves as a guide rather than a strait-jacket." Ward v. Knippenberg, 416 S.W.2d 746, 748 (Ky. 1967).
After a local government has enacted a comprehensive plan, that local government then:
may enact permanent land use regulations, including zoning and other kinds of growth management regulations to promote public health, safety, morals, and general welfare of the planning unit, to facilitate orderly and harmonious development and the visual or historical character of the unit, and to regulate the density of population and intensity of land use in order to provide for adequate light and air.
KRS 100.201(2). Thus, under the current statutory scheme, a local government first adopts a comprehensive plan and then that local government enacts various zoning plans.
Nothing in the statutory scheme indicates the Commission must consult the Comprehensive Plan when reviewing an application like the one at issue here. Appellees also fail to show why the Comprehensive Plan must be consulted or contemplated by the Commission in reviewing this application. In fact, the Supreme Court made it clear that local government was not "to duplicate the role of the planning commission by requiring that all of the technical elements of the comprehensive plan and all amendments thereto be adopted by the legislative body" before making zoning and development decisions. City of Lakeside Park, 672 S.W.2d at 669 (overruling Kindred Homes, Inc. v. Dean, 605 S.W.2d 15 (Ky. App. 1979)).
The current zoning for LDG's property is for multi-family units, such as apartment complexes. Under the current statutory scheme, the Comprehensive Plan would need to be consulted to re-zone the parcels for R-6. Because the property is already zoned for R-6, Louisville has already determined that zoning 10500 and 10600 U.S. Highway 42 satisfies the applicable parts of the Comprehensive Plan, the "guide for public and private actions and decisions to assure the development of public and private property in the most appropriate relationships." KRS 100.183. See also KRS 100.201(2) (after adoption of a Comprehensive Plan, "the legislative bodies and fiscal courts within the planning unit may enact permanent land use regulations, including zoning and other kinds of growth management regulations[.]"). If there is compliance with the Louisville
Land Development Code, there is compliance, necessarily, with that local government's Comprehensive Plan.
"[A] zoning agency is not bound to follow every detail of a land use plan[;] . . . such a plan is simply a basic scheme generally outlining planning and zoning objectives in an extensive area." Ward, 416 S.W.2d at 748.
By nature, a comprehensive plan speaks to future development even though it takes into consideration the current land uses. The comprehensive plan as here can include a current land-use plan or map which the legislative body can zone appropriately. KRS 100.201, 100.203. The comprehensive plan, however, looks beyond current uses, to the future, and is constantly undergoing review. KRS 100.197. Zoning changes are allowed if they are in accordance with the comprehensive plan, KRS 100.213, or if the plan is out of touch with reality, KRS 100.213(1)(a) &(b); Wells v. Fiscal Court of Jefferson County, Ky., 457 S.W.2d 498 (1970), and there is a compelling need for the proposed change. McDonald, supra; and KRS 100.213.Fritz v. LFUCG, 986 S.W.2d 456, 459 (Ky. App. 1998). Again, 10500 and 10600 U.S. Highway 42 are already zoned for multi-family units such as apartment complexes. No zoning change is needed and no review of the land's current zoning is required before the Commission could approve the proposed apartment complex.
Because the land is already zoned for the proposed use, and LDG's application satisfied the applicable building codes, the Commission's decision was not arbitrary. The circuit court, however, did abuse its powers on review when it granted summary judgment in favor of Appellees after determining the Commission's decision was arbitrary. The record does not support the circuit court's ruling.
CONCLUSION
For the aforementioned reasons, the Jefferson Circuit Court erred when it granted summary judgment for Appellees.
We reverse.
TAYLOR, JUDGE, CONCURS.
CETRULO, JUDGE, CONCURS IN RESULT ONLY.