Opinion
NO. 2017-CA-001783-MR
08-31-2018
MARLENE WHITE AND RIKKI JAMALIA APPELLANTS v. LEXINGTON-FAYETTE URBAN COUNTY PLANNING COMMISSION MEMBERS, DALLAM HARPER, LINDA GODFREY, JOAN WHITMAN, NEIL DAY, ATEN LYLE, K. MICHAEL CRAVENS, JIM MAHAN, LYNN ROCHE-PHILLIPS AND ANN ROSS; AND THE LEXINGTON-FAYETTE URBAN COUNTY CITY COUNCIL, JIM NEWBERRY, MAYOR, JIM GRAY, VICE MAYOR, RANDAL VAUGHN, CHUCK ELLINGER, LINDA GORTON, ANDREA JAMES, TOM BLUES, JULIAN BEARD, DAVID STEVENS, KEVIN STINETT, K. C. CROSBIE, GEORGE MYERS, JAY MCCHORD, DON BLEVINS, RICHARD MOLONEY AND ED LANE APPELLEES
BRIEFS FOR APPELLANTS: W. Henry Graddy, IV Versailles, Kentucky Randal A. Strobo Louisville, Kentucky BRIEF FOR APPELLEES: Tracy W. Jones Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 07-CI-00985 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. COMBS, JUDGE: Marlene White and Rikki Jamalia appeal a summary judgment of the Fayette Circuit Court entered in favor of the Lexington-Fayette Urban County Government (LFUCG). The circuit court concluded that the decision of LFUCG to enact a zone change affecting property owned by White did not constitute a taking of the property nor did it violate constitutional principles of equal protection. After our review, we affirm.
White purchased property at 119 South Ashland Avenue in Lexington in January 2006. She intended to convert the premises to a bed-and-breakfast. At the time of the purchase, the neighborhood's R-3 "planned neighborhood residential" zoning designation allowed property to be put to such a use if other conditional use permit application requirements were met. White applied for a conditional use permit from the LFUCG Board of Adjustments.
Her efforts were vigorously opposed by the Ashland Park Neighborhood Association. Ultimately, the neighborhood association sought a zone change affecting properties in the Ashland Park area—including the subject property—in a manner that would disallow White's proposed use of the premises altogether. In response to this proposal, the urban county council placed a moratorium on decisions relating to conditional use permits in the area while it conducted hearings on the proposed zone change decision.
On August 17, 2006, White appeared before the urban county council and asked that her property be removed from the zone change proposal that was under consideration. The council rejected her petition and passed a resolution affecting properties on South Ashland Avenue that called for a zone change from R-3 to R-2, or "two-family residential."
The urban county council's zone change proposal was subsequently submitted to the LFUCG Planning Commission for a public hearing. On November 9, 2006, the planning commission voted 9-0 to recommend disapproval of the zone change proposal. Nonetheless, the urban county council declined to follow the recommendation of the planning commission and took action on January 25, 2007, to enact a zone change affecting White's property and others in the area from an R-3 to an R-2 designation.
This decision would have effectively eliminated the possibility of using the property at 119 (a/k/a 121) South Ashland Avenue as a bed-and-breakfast, but the urban county council decided that White "may go forward to have her application [for a conditional use permit] considered on the merits as submitted with the full rights of an R-3 property." This decision by the urban county council turned on its recognition that White "bought the property when it was zoned R-3 and submitted an application before the moratorium was imposed . . . in reasonable reliance on the zoning regulations in effect when she filed her application." The urban county council observed that the board of adjustments had exclusive jurisdiction to conduct a hearing and to issue a decision with respect to White's application for a conditional use permit.
On February 23, 2007, White appeared before the LFUCG Board of Adjustments and reiterated her request for a conditional use permit that would allow her to open and operate a bed-and-breakfast on her property as though it still had an R-3 designation. This effort was again opposed by the neighborhood association. The board of adjustments ultimately denied White's application for a conditional use permit because the property did not meet the requirements for such a permit. The decision of the board of adjustments is not subject to our review in this proceeding.
White and Jamalia filed an appeal to the Fayette Circuit Court with respect to the decision of the urban county council to enact a moratorium and then a zone change affecting the disputed property. They contended that the decision of the urban county council to enact a zone change affecting the property was arbitrary and capricious. They also alleged that the decision of the urban county council to impose a six-month moratorium on conditional use permits in the neighborhood denied them due process and equal protection of law. Finally, they alleged that the zone change affecting the property constituted a taking without just compensation. The urban county council answered and denied the allegations.
On January 16, 2015, the urban county council filed a motion for summary judgment. The motion was granted in an order entered March 2, 2015. Upon its review, the circuit court rejected the contention that the urban county council's decisions to impose a moratorium and then to enact a zone change were arbitrary or unreasonable. The circuit court also rejected the contention that the council's decisions deprived White and Jamalia of due process, violated their rights to equal protection, or constituted an unlawful "taking" of the disputed property. This appeal followed.
White and Jamalia argue that the circuit court erred by upholding the decisions of the urban county council to impose a moratorium on consideration of conditional use permit applications and to enact a zone change that affected the subject property. They argue that the court erred by failing to conclude that those decisions were unreasonable and arbitrary. White and Jamalia also contend that they were deprived of just compensation for the "taking" of the property and that the court erred by failing to so conclude. Finally, White and Jamalia contend that the circuit court erred by failing to address its claims under the provisions of 42 U.S.C. § 1983.
Local legislative bodies have the ultimate authority to make zone change decisions. KRS 100.211; Hougham v. Lexington-Fayette Urban County Gov't, 29 S.W.3d 370 (Ky. App. 2000). Since those decisions are not judicial functions, our review is limited to whether the legislative body acted in an arbitrary manner in making its decisions. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450 (Ky. 1964). Decisions are deemed to be arbitrary if they are not supported by substantial evidence. Id.
Kentucky Revised Statutes.
Upon our review of a grant of summary judgment, we must determine "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Because summary judgment involves only legal questions and factual findings are not at issue, "an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Kentucky Rules of Civil Procedure. --------
In this case, the circuit court undertook a comprehensive analysis of the issues before it. It carefully evaluated the entirety of the evidence presented to the urban county council and observed that the council's decisions were based on facts and arguments presented by a variety of affected parties. White and Jamalia complain that the trial court erred by placing reliance upon the fact that most of the people in attendance at the various hearings favored the decisions eventually reached by the urban county council. They argue that the "composition of the attendees was contrived and strategic and should not have been viewed as representative of community sentiment."
However, there is no requirement that opinions expressed at a public hearing or the number of citizens appearing to present relevant facts or their positions must represent a cross-section of community attitudes. The trial court did not err by noting that "the majority of concerned citizens who appeared in the Council's chambers stood, or in some cases spoke, in favor of the [zone change] proposal." On the contrary, this account of the proceedings tends to support the trial court's conclusion that the decisions of the urban county council were supported by substantial evidence.
Next, White and Jamalia contend that the circuit court erred by failing to conclude that the zone change did not comport with statutory requirements. Citing the provisions of KRS 100.213(1), they argue that an amendment to the zoning map may only be granted where either (1) the existing classification is inappropriate or (2) "major changes of an economic, physical, or social nature" not anticipated when the comprehensive plan was enacted have taken place.
Local authority to regulate land use derives from the police power of the General Assembly delegated to cities and counties by way of KRS Chapter 100. KRS 100.211 details the exclusive procedure by which a zoning map amendment may be accomplished. Hacker v. Baesler, 812 S.W.2d 706 (Ky. 1991). Once the planning commission has made its recommendation on a proposed amendment, the legislative body may override the commission by a full majority vote.
At its meeting held on January 25, 2007, the urban county council unanimously decided that the existing R-3 zoning classification was inappropriate for property (specifically 119 South Ashland Avenue) located in the Ashland Park Neighborhood. It found that the R-3 classification permitted boarding houses and fraternity houses as conditional uses of property which were not compatible with the neighborhood that was intended for family dwellings. The urban county council found that the more restrictive R-2 designation was appropriate because it eliminated the more intensive uses of neighborhood property which were unsuited to the area. Furthermore, the urban county council found that the proposed R-2 designation agreed with the 2001 Comprehensive Plan and the 2007 Comprehensive Plan Goals and Objectives. The trial court did not err by concluding that the substance of the urban county council's decisions and the procedure underlying those decisions comported with the requirements of KRS 100.213. Nor did it err by concluding that the decision to enact the disputed zone change was supported by substantial evidence.
Next, White and Jamalia argue that the circuit court erred by failing to conclude that the moratorium and zoning map amendment constituted an unlawful taking. We must note that the urban county council specifically decided that the disputed property would be excepted from the zoning map amendment with respect to the conditional use application that had been filed before hearings were undertaken to consider the zone change. Thus, the disputed property was not "taken" under these circumstances because the zone change had absolutely no substantive effect on White's proposed use of the property. White was not entitled to a conditional use permit authorizing her use of the property as a bed-and-breakfast. The urban county council decided to allow her application for the permit to proceed as if the disputed property had not been the subject of a zoning map amendment since she had filed the application before the zone change had been considered.
White's dissatisfaction with the outcome of that proceeding is not subject to our review, but it is the focus of a separate appeal. Additionally, the circuit court concluded that the moratorium was undertaken for the legitimate purpose of limiting further development in the neighborhood while the urban county council took sufficient time to consider the proposed zoning map amendment. From the evidence of record, we cannot conclude otherwise. The circuit court did not err on this issue.
Next, White and Jamalia contend that the circuit court erred by concluding that the urban county council's decision to enact a zoning map amendment did not deny them equal protection. We disagree.
As noted above, the urban county council did not arbitrarily enact a zoning map amendment affecting the disputed property. As noted above, the zoning map amendment had no effect on the disputed property whatsoever since the urban county council specifically excepted the property from the amendment to the extent that the outstanding application for a conditional use permit could be considered by the board of adjustments. Under the circumstances, the claim that White and Jamalia were denied equal protection is not sustainable as a matter of law.
Finally, White and Jamalia contend that the circuit court erred by failing to address their claim for violation of the provisions of 42 U.S.C. § 1983. We are precluded from addressing this contention, however, because the trial court did not rule on the matter, and White and Jamalia made no request for a specific finding with respect to it. Abuzant v. Shelter Ins. Co., 977 S.W.2d 259, 262 (Ky. App. 1998). As noted by the Kentucky Supreme Court in Crain v. Dean, 741 S.W.2d 655, 658 (Ky. 1987), such failure "constitutes a waiver and precludes appellate review."
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: W. Henry Graddy, IV
Versailles, Kentucky Randal A. Strobo
Louisville, Kentucky BRIEF FOR APPELLEES: Tracy W. Jones
Lexington, Kentucky