Waste Services of the Bluegrass, LLC v. Scott County Board of Adjustment ( 2021 )

RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1225-MR
WASTE SERVICES OF THE
BLUEGRASS, LLC; AND WASTE
SERVICES REALTY, LLC APPELLANTS
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, SPECIAL JUDGE
ACTION NO. 17-CI-00264
SCOTT COUNTY BOARD OF
ADJUSTMENT; KIM STAMPER,
JANET HOLLAND, SONYA
BARNETT, ANNA ISAACS, AND
KEITH LANCASTER, IN THEIR
OFFICIAL CAPACITIES AS
MEMBERS OF THE SCOTT COUNTY
BOARD OF ADJUSTMENT; JOE
KANE, IN HIS OFFICIAL CAPACITY
AS PLANNING DIRECTOR OF
GEORGETOWN-SCOTT COUNTY
PLANNING COMMISSION; SCOTT
COUNTY FISCAL COURT; AND
SCOTT COUNTY, KENTUCKY APPELLEES
AND NO. 2018-CA-1226-MR
MICHELLE AND JOHN DAVID
MCCALL; MICHAEL ROSZKOWSKI;
LORRI AND JON LITTRELL; ANN
AND JAMES R. HARTMAN; CASEY
LEA AND SHAWN CROSS;
RHONDA AND JIM CROSS;
MARTHA E. MADDIX; NORRIS
STACY; JOANN C. WARNER;
CHASSIDY AND CHRISTOPHER
FIGHTMASTER; TOMMY LEE
JAMISON; AND LINDA STACY CROSS-APPELLANTS
CROSS-APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, SPECIAL JUDGE
ACTION NO. 17-CI-00264
WASTE SERVICE OF THE
BLUEGRASS, LLC; WASTE
SERVICES REALTY; SCOTT
COUNTY BOARD OF
ADJUSTMENT; KIM STAMPER,
JANET HOLLAND, SONYA
BARNETT, AND ANNA ISAACS, IN
THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE SCOTT COUNTY
BOARD OF ADJUSTMENT; JOE
KANE, IN HIS OFFICIAL CAPACITY
AS PLANNING DIRECTOR OF
GEORGETOWN-SCOTT COUNTY
PLANNING COMMISSION; SCOTT
COUNTY FISCAL COURT; AND
SCOTT COUNTY, KENTUCKY CROSS-APPELLEES
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AND NO. 2018-CA-1240-MR
SCOTT COUNTY BOARD OF
ADJUSTMENT; KIM STAMPER,
JAMES HOLLAND, SONYA
BARNETT, ANNA ISAACS AND
KEITH LANCASTER, ALL IN THEIR
OFFICIAL CAPACITIES AS
MEMBERS OF THE SCOTT COUNTY
BOARD OF ADJUSTMENT CROSS-APPELLANTS
CROSS-APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, SPECIAL JUDGE
ACTION NO. 17-CI-00264
SCOTT COUNTY FISCAL COURT;
SCOTT COUNTY, KENTUCKY; JOE
KANE, IN HIS OFFICIAL CAPACITY
AS PLANNING DIRECTOR OF
GEORGETOWN-SCOTT COUNTY
PLANNING COMMISSION; WASTE
SERVICES OF THE BLUEGRASS,
LLC; AND WASTE SERVICES
REALTY, LLC CROSS-APPELLEES
AND NO. 2018-CA-1241-MR
SCOTT COUNTY FISCAL COURT;
AND SCOTT COUNTY, KENTUCKY CROSS-APPELLANTS
-3-
CROSS-APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, SPECIAL JUDGE
ACTION NO. 17-CI-00264
WASTE SERVICES OF THE
BLUEGRASS, LLC; WASTE
SERVICES REALTY, LLC; SCOTT
COUNTY BOARD OF
ADJUSTMENT; KIM STAMPER, IN
HER OFFICIAL CAPACITY AS A
MEMBER OF THE SCOTT COUNTY
BOARD OF ADJUSTMENT; JAMES
HOLLAND, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SCOTT COUNTY BOARD OF
ADJUSTMENT; SONYA BARNETT,
IN HER OFFICIAL CAPACITY AS A
MEMBER OF THE SCOTT COUNTY
BOARD OF ADJUSTMENT; ANNA
ISAACS, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
SCOTT COUNTY BOARD OF
ADJUSTMENT; KEITH
LANCASTER, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
SCOTT COUNTY BOARD OF
ADJUSTMENT; JOE KANE, IN HIS
OFFICIAL CAPACITY AS
PLANNING DIRECTOR OF
GEORGETOWN-SCOTT COUNTY
PLANNING COMISSION; MICHELLE
AND JOHN DAVID MCCALL;
MICHAEL ROSZKOWSKI; LORRI
AND JON LITTRELL; ANN AND
JAMES R. HARTMAN; CASEY LEA
AND SHAWN CROSS; RHONDA
AND JIM CROSS; MARTHA E.
MADDIX; NORRIS STACY; JOANN
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C. WARNER; CHASSIDY AND
CHRISTOPHER FIGHTMASTER;
TOMMY LEE JAMISON; AND
LINDA STACY CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
GOODWINE, JUDGE: Appellants Waste Services of the Bluegrass, LLC and
Waste Services Realty, LLC (collectively “Waste Services”) appeal from the Scott
Circuit Court’s July 13, 2018 order granting summary judgment in favor of Scott
County Board of Adjustment and Scott County Fiscal Court (collectively “Scott
County”). The circuit court determined the Scott County Board of Adjustment’s
adoption of Scott County Planning Commission Director Joe Kane’s zoning
determination was not arbitrary. Scott County, Joe Kane, and Scott County
Citizens cross-appeal. After careful review, finding no error, we affirm.
BACKGROUND
In its July 13, 2018 order affirming the decision of the Scott County
Board of Adjustment (“SCBOA”), the Scott Circuit Court summarized the
background of this case as follows:
Petitioners Waste Services of the Bluegrass, LLC
(“WSB”) and Waste Services Realty, LLC (“WSR”) are
Kentucky Limited Liability Companies with their
principle places of business in Lexington, Kentucky.
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WSB is an environmental services company that owns
and operates a sanitary landfill (“the Landfill”) on its
property located off Double Culvert Road in Scott
County, Kentucky. The Landfill is currently located on a
102.8-acre tract of land of which 46.8 acres are actively
used to dispose of refuse. The previous owner of the site,
the City of Georgetown (“the City”), had also used the
site as a landfill. WSB claimed in its complaint that
without expansion, the Landfill has less than five (5)
years of remaining useful life. To lengthen the estimated
useful life of the Landfill to eighteen (18) years, WSB
sought to purchase 500 acres of adjoining land
owned by WSR and expand the refuse disposal area to
occupy the entirety of the original 102.8-acre tract; the
additional 500-acre tract was to be used as a “borrow”
source for dirt, as a site for sedimentation ponds, and as
buffer zone between the Landfill and adjoining
properties. WSB claims the 500-acre property was not
meant to be used for refuse disposal.
In 2012, WSB’s corporate predecessor began the
Landfill expansion permit application process by filing a
permit request with the Commonwealth of Kentucky
Energy and Environment Cabinet, Department for
Environmental Protection, Waste Management Division
(“KYDEP”). The permitting process is lengthy and
involves substantial administrative and technical review.
As part of the application process, WSB was required to
obtain a certification from the local zoning authority that
the plan complies with local zoning laws. While former
Georgetown Scott County Planning Commission
(“GSCPC”) Director Earl Smith [(“Smith”)] issued a
certificate of compliance in 2013, current GSCPC
Director Joe Kane would later issue a letter (“the Kane
Letter”) stating that the wording of the certificate
appeared to only certify part of the Landfill expansion
plan and that the other part of the plan could not proceed
without a conditional use permit or rezoning. The
conflict that resulted from the Kane Letter ultimately led
to an appeal which was heard before SCBOA on March
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14, 2017.
The hearing was attended by SCBOA members
Keith Lancaster, Janet Holland, Sonya Barrett, Kim
Stamper, and Anna Issacs; GSCPC Director Joe Kane;
WSB representative James Wade; and various Scott
County residents. Counsel for the parties also
participated in the hearing; Charlie Perkins appeared on
behalf of SCBOA; Jon Woodall and Jacob Walbourn
appeared on behalf of WSB; William Lear and D. Barry
Stilz appeared on behalf of Joe Kane; Glenn Williams
appeared on behalf of the Scott County Attorney’s
Office; Thomas Nienaber appeared on behalf of Scott
County; and Stephen Porter appeared on behalf of a
group of affected Scotty County residents.
The hearing primarily consisted of testimony by
James Wade, Joe Kane, and their counsel. After the
parties testified and were examined, a period of public
comment was held. SCBOA then deliberated and issued
its final determination, finding that Joe Kane had the
authority to issue his letter and concurring with his
analysis that the proposed use of the 500-acre tract did
not comply with Scott County Ordinances.
WSB and WSR then filed suit, alleging that
SCBOA “ignored, disregarded, and/or failed to consider”
substantial evidence that Respondent Kane was without
authority to issue his January 18, 2017 clarification/
revocation letter (“the Kane Letter”) and that Kane
“misinterpreted and/or failed to properly apply” Scott
County Zoning Ordinances. Pet’rs’ Compl. at 9-10.
WSB requests that the Court find that SCBOA’s denial of
WSB’s appeal was arbitrary and capricious, an abuse of
discretion, unsupported by substantial evidence in the
record as a whole and clearly erroneous, in violation of
Sections 1 and 2 of the Kentucky Constitution; that
SCBOA’s decision exceeded its statutory grant of
authority; that SCBOA grant Petitioners’ Appeal, vacate
SCBOA’s determination, and/or remand this matter to
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SCBOA for further consideration; and that the Kane
Letter is null, void, and without legal effect.
Record at 916-18.
The circuit court determined the record supported the SCBOA’s
finding that Kane had the authority to clarify or revoke Smith’s certificate of
compliance letter based on the following evidence:
The following findings were proved by
documentary evidence and testimony at the March 14,
2017 appeal hearing. On August 8, 2013, WSB
employee James Wade emailed a request for the
certificate of zoning compliance to then-GSCPC Director
Earl Smith. Pet’rs’ Compl. Ex. 2. Wade attached a
certificate of compliance form that he had drafted, which
contained WSB’s letterhead. Hearing Transcript at 67.
Earl Smith signed the certificate of compliance form; the
form only stated that “the expansion of the landfill
within the current property boundary does not conflict
with Scott County planning and zoning ordinances.”
Pet’rs’ Compl. Ex.s 2 & 3 (emphasis added). The
certificate made no reference to the 500-acre parcel;
James Wade admitted at the hearing that the “current
boundaries” language in WSB’s form was not meant to
include the 500-acre tract. Id.; Hearing Transcript at 65-
66. Earl Smith forwarded his correspondence with Wade
to then-GSCPC Senior Planner Joe Kane, although Kane
was not asked to review the transaction. Hearing
Transcript at 89-90. WSB submitted Earl Smith’s
certification to KYDEP. In November of 2013, Earl
Smith left GSCPC and was ultimately replaced as
Director by former GSCPC Senior Planner Joe Kane. Id.
at 13, 75-76.
In 2015, WSB counsel with the McBrayer law firm
requested a zoning letter for both the 500-acre tract and
the Landfill tract as part of WSB’s mortgaging process;
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on August 3, 2015, GSCPC Director Joe Kane responded
with a statement that while expanding the landfill within
the original tract may not require rezoning, expansion
onto the 500-acre parcel could not occur without
rezoning or a conditional use permit because
it was zoned Agricultural (A-1). Resp’ts’ Joint Mot. for
Summ. J. Ex. J; Hearing Transcript at 30-31. On
September 28, 2016, attorney Thomas Breidenstein,
representing an unknown client, sent an open records
request to Joe Kane; Breidenstein sought all
correspondence related to the Landfill. Hearing
Transcript at 30-31. This caused Kane to perform a
document search, which revealed his 2015 memorandum
to McBrayer. Id.
On October 18, 2016, Breidenstein wrote again to
Kane, this time in a letter providing a lengthy analysis
questioning the legality of any expansion of the Landfill,
even within the original bounds of the property. Resp’ts’
Joint Mot. for Summ. J. Ex. K; Hearing Transcript at 46.
Breidenstein also sent a copy of this letter to Danny
Anderson at KYDEP; Anderson responded two days later
with a letter titled Notice of Deficiency which was sent to
Kane and to WSB. Hearing Transcript at 33-34. On
November 1, 2016, WSB’s counsel responded with a
letter contradicting the claims in Breidenstein’s October
18 letter. This activity triggered a period of research and
consultation between Kane, the City, and landfill
engineers, which consultation led Kane to believe that a
zoning letter clarifying the expansion project’s zoning
compliance was warranted. Id. at 34-35.
By letter dated January 18, 2017, Joe Kane wrote
to WSB acknowledging the prior zoning certification
issued by Earl Smith to the extent of the Landfill’s
expansion within the original property boundaries but
stated his finding that the 500-acre tract part of the plan
did not comply with Scott County Ordinances. Pet’rs’
Compl. Ex. 4; Hearing Transcript at 35-40. The Kane
Letter contained a detailed history and analysis of the
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legal status of the Landfill and its use, stating the
following:
1) the Landfill property was previously
owned by the City, which was exempt
from zoning ordinances;
2) upon purchase of the Landfill, WSB was
not exempt from zoning ordinances but
inherited a legal non-conforming use from
the City;
3) the non-conforming use would remain
valid so long as the entire operation,
including all its supporting ancillary uses,
stayed within the existing parcel
boundaries of the land as originally
owned by the City;
4) the other, 500-acre tract is currently
zoned A-1 Agricultural;
5) using the 500-acre tract as a source for
borrow dirt would require clear-cutting a
forest, excavating the earth to a depth of
up to twenty (20) feet, and processing the
clay and rock to obtain workable clay
material that can be used for the
subsequent construction of waste liner and
cover; the foregoing would be done solely
to support the Landfill operation and does
not constitute commonly accepted
agricultural activities;
6) the planned construction of 3.5-acre
sedimentation ponds were designed to
drain the entire Landfill property and in
no way resemble farm ponds;
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7) the Landfill expansion plan would
constitute the expansion of a non-
conforming use which “would require a
re-zoning of the property to Light
Industrial (I-1) with a Conditional Use
Permit or Heavy Industrial (I-2) for the
entire area of the proposed landfill
expansion. . . .”’
8) WSB’s statement in its administrative
application, that the planning and zoning
commission did not have jurisdiction over
the area in question, was misleading and
needed rebuttal.
Pet’rs’ Compl. Ex. 4; Hearing Transcript at 35-40. The
Kane Letter also stated, “[t]his letter should be
considered the updated and current Zoning Compliance
letter.” Id. At the appeal hearing, Kane discussed the
relationship between his letter and Earl Smith’s
certificate, stating:
“A topic that was not addressed in the Smith
letter—I think the letter from 2013 and my
letter from 2015 are not necessarily in
conflict—but . . . Earl Smith did not address
the 500 acres. He may have been given
information about the uses proposed in the
expansion, but he gave no evidence of
considering that in his reasoning since we do
not have . . . an official zoning letter. There
was the form signed in the application, and
the form simply said that uses on the
existing tract are approved as
nonconforming uses. It didn’t mention the
500 acres at all.”
Hearing Transcript at 40-41. On January 26, 2017,
KYDEP issued a Notice of Deficiency on the expansion
permit application, citing the Kane Letter and stating that
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KRS[1] 224.40-315(2)(d) requires that “no permit to . . .
expand a municipal solid waste disposal facility shall be
approved unless . . . the application conforms to and is
consistent with applicable zoning regulations. . . .”
Pet’rs’ Compl. Ex. 5. WSB timely filed its Notice
of Appeal with the Scott County Board of Adjustment
(“SCBOA”) on February 9, 2017, seeking a declaration
that the Kane Letter was null and void. Pet’rs’ Compl.
Ex. 6.
At the March 14, 2017 appeal hearing, Kane
agreed with Earl Smith’s determination that the
expansion of the Landfill within the boundaries of the
original tract was acceptable under Scott County
Ordinances. Hearing Transcript at 38. However, he
found that Smith’s letter said nothing about the 500-acre
tract, and thus the Kane Letter’s determination that the
500-acre tract required rezoning did not contradict
Smith’s prior determination. Id. at 37-38. WSB
representative James Wade admitted that Earl Smith’s
certificate did not mention the 500-acre tract at all. Id. at
65-66.
William Lear, Kane’s special counsel, also gave
testimony regarding Earl Smith’s zoning determination.
Lear showed that, even if Earl Smith had addressed the
500-acre tract in his determination, that determination
would have been void if it was contrary to Scott County
Ordinances. Id. at 43-44. Per Scott County Ordinance
§5.5(A), “[t]he Enforcement Officer has initial authority
for the literal enforcement of the Zoning Ordinance. He
has no discretionary authority to allow any departure
from the literal conformance with the Zoning
Ordinance.” Resp. SCBOA & Scott County Fisc. Ct’s
Reply and Memo. of Law of Scott County, Ex. A;
Hearing Transcript at 43-44.
1
Kentucky Revised Statutes.
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Therefore, if Earl Smith issued a certificate of
compliance for a project that did not comply with the
relevant ordinance, he was without authority to do so.
Ordinance §5.5(B) states “[t]he Board of Adjustment has
authority to hear appeals from decisions by the
Enforcement Officer and to make literal interpretations of
the pertinent provisions to correct any possible
misinterpretation by the Enforcement Officer.” Resp.
SCBOA & Scott County Fisc. Ct’s Reply and Memo. of
Law of Scott County, Ex. A; Hearing Transcript at 43-
44.
At the close of the hearing, [a] SCBOA member
moved to affirm that Joe Kane had the authority to issue
the Kane Letter. The motion was stated thus: “based on
my literal and reasonable evidence that was presented
here tonight, that I support that – with substantial
evidence – that the letter submitted by Joe Kane is within
the scope of his authority, and after following the
timeline of the evidence that was presented, that is why
I base my decision.” Hearing Transcript at 161. Upon
suggestion by counsel, the movant added some specific
factual findings to the Motion: that the Landfill was
purchased from the City in 1999; that the land was
bought by a private company in 2010; that the permit
process began in 2012; that Earl Smith wrote his letter in
2013; that Joe Kane wrote his opinion in a letter in an
open records request in 2015, and that he wrote the letter
again in 2017. Id. The Movant from SCBOA then added
“[b]ased on that, I feel like he did what we as the County
have paid him to do, to look out for the County.” Id.
The Motion was unanimously approved. Id.
While the wording of the motion does not
specifically identify why Kane had the authority to write
his letter, the evidence and testimony before the
committee made it abundantly clear that Smith never
actually recorded any determination with respect to the
proposed use of the 500-acre tract; as such, Kane was
well within his authority as an initial enforcement officer
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to render an initial opinion with respect to the 500-acre
tract. SCBOA’s determination that Kane had authority to
issue the letter was thus based on substantial evidence in
the record, and its determination was not arbitrary.
R. at 920-26.
Furthermore, the circuit court concluded the record supported Kane’s
determination that the zoning rules prohibit ancillary landfill operations on the
500-acre tract based on the following evidence:
As shown above, Earl Smith never officially
addressed the proposed use of the 500-acre tract. At the
appeal hearing, a great deal of testimony concerning the
approved uses for land zoned A-1 Agricultural. Counsel
for WSB argued that Earl Smith intended to certify the
entire expansion project, including the 500-acre tract, and
attached an affidavit from Smith which stated, “. . . based
upon the thorough review of all relevant and necessary
documents and regulations, I concluded that the
Expansion, as proposed, was and would be in accord with
the applicable planning and zoning regulations at that
time.” Hearing Transcript at 17; Pet’rs’ Mot. for Summ.
J. Ex. 9. However, at no point did either Smith’s
affidavit or the testimony of WSB’s counsel give any
specific argument or analysis regarding whether the
ancillary Landfill activities were appropriate for land
zoned A-1 Agricultural. Petitioners simply reiterated that
Earl Smith’s certificate blessed the whole project and
avoided any real discussion regarding the tract’s
agricultural zoning or an analysis of related ordinances.
Petitioners’ only real arguments on this point
were raised in filings, primarily in Jon Woodall’s
February 9, 2017 Notice of Administrative Appeal to
SCBOA. Pet’rs’ Mot. for Summ. J. Ex. 8, at 7-8.
Woodall argued that Scott County Ordinances do not
prohibit soil removal and stated that soil removal is a
normal agricultural activity; his analysis did not mention
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the fact that WSB planned to remove up to twenty (20)
feet of soil, nor did the analysis address the language in
Scott County Ordinances defining Agricultural zones as
those meant for “continuing farm use.” Id.
Respondents, by contrast, spent a great deal of
time at the hearing and in their filings addressing the
Agricultural zoning question. In addition to the analysis
supplied by the Kane Letter, Joe Kane testified that he
was not swayed by the argument that the proposed uses
of the 500-acre tract were agricultural; specifically, he
stated that the twenty (20) foot depth of clay excavation
required the transport and processing of the waste
containment material, the necessary construction of
roadways, piping, retention ponds, and the constant
presence of heavy equipment were not agricultural in
nature. Hearing Transcript at 39-40. Kane’s counsel,
William Lear, stated that the proposed soil excavation
was not just for topsoil but would necessarily go all the
way into the clay, that landfill liner material has certain
technical requirements which would necessitate its
processing, and that such activities do not fit the
definition of the A-1 zone which is “intended . . . to
conserve agricultural lands for continued farm use.” Id.
at 51-52. Lear also cited the statutory definition of
“Agricultural use” at KRS 100.111(2), which identifies
growing crops and raising livestock, and stated that
nothing in that definition is close to the proposed uses of
the 500-acre tract. Id. at 52. Lear also stated that
landfills were a conditional use allowed in a light
industrial zone, that clay is a mineral, and that
extraction, storing, and processing of minerals is a
conditional use allowed in a heavy industrial zone. Id. at
53.
Various members of the public also denied that the
proposal qualified as an agricultural use. Stephen Porter,
testifying on behalf of several Scott County residents,
stated that clay is a mineral, that mining clay is only an
accepted conditional use in an industrial zone, and that
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the proposal’s clay excavation would require the 500-
acre tract to be rezoned. Id. at 114. Bruce Kohnz stated
that Scott County Ordinance § 2.1 defines “agricultural
use” as the use of a tract of at least five contiguous acres
for the production of agricultural or horticultural crops,
including livestock, poultry, grain, hay, pastures, and so
on; he also stated that it is unquestionably clear that
WSB’s intended use of the property is not agricultural by
this definition. Id. at 123-24. Beth Emery argued that
sedimentation ponds were not agricultural in nature,
stating that the ponds would be akin to “special waste
ponds” as defined by KRS 224.50-760. Id. at 132.
Finally, Michelle and David McCall stated that they raise
cattle very close to the landfill and that no part of the
landfill is agricultural. Id. at 134-35.
After deliberating, SCBOA moved to adopt Joe
Kane’s determination that the proposed use of the 500-
acre tract was unacceptable for land zoned A-1
Agricultural. The Movant stated: “. . . based on the facts
that we have heard about the proposed use of the
500 acres . . . we find that it is definitely not within the
definition of an agricultural use and that it is a necessary
attachment . . . to the . . . actual landfill where they
deposit the trash . . . and the action that is done there is
essentially part of the Landfill and therefore requires
Planning Commission approval for the non-conforming
use because it’s owned by . . . private property owners,
and therefore we support Joe Kane’s finding in that
regard.” Id. at 162-63. The Motion was also
unanimously approved. Id. at 163.
Based on wealth of documentary and testimonial
evidence before SCBOA, the Court finds that the Board’s
ruling—that the proposed uses of the 500-acre tract were
not agricultural in nature, and the tract required rezoning
for the planned expansion—was based on substantial
evidence and was not arbitrary.
R. at 926-28.
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Thus, the circuit court granted the Scott County Respondents’ motion
for summary judgment and denied Petitioners’ motion for summary judgment.
This appeal and cross-appeals followed.
ANALYSIS
Before we reach the merits of Waste Services’ arguments on appeal,
we must address the deficiency in their brief. Scott County points out that Waste
Services’ brief lacks a preservation statement citing to the record on appeal where
the issues it raises were properly preserved for appeal in violation of CR2
76.12(4)(c)(v). “There are rules and guidelines for filing appellate briefs.
Appellants must follow these rules and guidelines, or risk their brief being stricken,
and appeal dismissed, by the appellate court.” Koester v. Koester, 569 S.W.3d
412, 413 (Ky. App. 2019) (citing CR 76.12). Waste Services’ brief fails to
“reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner” as required by CR 76.12(4)(c)(v). “It is not the
function or responsibility of this court to scour the record on appeal to ensure that
an issue has been preserved.” Koester, 569 S.W.3d at 415 (citing Phelps v.
Louisville Water Co., 103 S.W.3d 46 (Ky. 2003)). Our procedural rules “are lights
and buoys to mark the channels of safe passage and assure an expeditious voyage
2
Kentucky Rules of Civil Procedure.
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to the right destination.” Louisville and Jefferson County Metropolitan Sewer Dist.
v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v. Commonwealth,
551 S.W.2d 557, 559 (Ky. 1977)). Therefore, an appellant’s compliance with this
rule allows us to undergo “meaningful and efficient review by directing the
reviewing court to the most important aspects of the appeal[,] [such as] what facts
are important and where they can be found in the record[.]” Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis, 328 S.W.3d at 696 (citation omitted).
Because Waste Services’ argument fails on the merits, we will ignore the
deficiency and proceed with our review.
On appeal, Waste Services argue the circuit court erred in granting
summary judgment because Kane’s letter and SCBOA’s ratification of it were
arbitrary. Our review of a zoning action is limited “to a determination of whether
the action taken was arbitrary, and neither the trial court nor this Court is
authorized to conduct a de novo review of the decision.” Warren County Citizens
for Managed Growth, Inc. v. Board of Com’rs of City of Bowling Green, 207
S.W.3d 7, 16 (Ky. App. 2006). In reviewing whether the zoning decision was
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arbitrary, we are limited to three considerations: “(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.” Harrison Silvergrove Property, LLC v. Campbell County and
Municipal Board of Adjustment, 492 S.W.3d 908, 912 (Ky. App. 2016) (citations
omitted).
Under the first prong, Waste Services argue the Kane Letter exceeded
statutory authority under KRS 100.261 because neither Kane nor any other injured
party appealed the Smith certificate of compliance letter within 30 days, rendering
the Kane Letter void. Waste Services further argue SCBOA exceeded its statutory
authority in ratifying the Kane Letter. Scott County argues Waste Services’
argument would require the SCGPC to appeal its own decision. Scott County
asserts Waste Services offered no testimony or other evidence to suggest the Smith
certification of compliance letter was sent to any person or entity except Joe Kane.
At the time of the Smith certification, Kane was employed as a “planner” and later
by SCGPC. As zoning administrators, both Kane and Smith were representatives
of SCGPC.
KRS 100.261 provides:
Appeals to the board may be taken by any person, or
entity claiming to be injuriously affected or aggrieved by
an official action, order, requirement, interpretation,
grant, refusal, or decision of any zoning enforcement
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officer. Such appeal shall be taken within thirty (30)
days after the appellant or his agent receives notice of the
action of the official by filing with said officer and with
the board a notice of appeal specifying the grounds
thereof, and giving notice of such appeal to any and all
parties of record. Said officer shall forthwith transmit to
the board all papers constituting the record upon which
the action appealed from was taken and shall be treated
as and be the respondent in such further proceedings. At
the public hearing on the appeal held by the board, any
interested person may appear and enter his appearance,
and all shall be given an opportunity to be heard.
(Emphasis added.)
Waste Services failed to assert that any person or entity was
“injuriously affected or aggrieved” by the Smith certification. As Scott County
points out, aside from WSB representative James Wade, Joe Kane, who was
employed by SCGPC at the time, was the only person who received the Smith
certification letter. Based on the evidence in the record, both Smith and Kane
believed landfill operations would continue on the original 102-acre tract, so
neither was injured or aggrieved by Smith’s certification letter. As such, there was
no basis for an appeal under KRS 100.261, and we hold the Kane Letter was not
rendered void for failure to appeal.
Even if an appeal should have been taken, Smith lacked the authority
to allow ancillary landfill operations on the 500-acre tract without a proper zoning
change. KRS 100.271 provides:
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An administrative official shall be designated by the city
or county to administer the zoning regulation, and, if
delegated, housing or building regulations. The
administrative official may be designated to issue
building permits or certificates of occupancy, or both, in
accordance with the literal terms of the regulation, but
may not have the power to permit any construction, or to
permit any use or any change of use which does not
conform to the literal terms of the zoning regulation.
This statute specifically prohibits Smith and Kane from authorizing “any use or
any change of use which does not conform to the literal terms of the zoning
regulation.” Id. As Kane testified, the 500-acre tract is zoned A-1 Agricultural,
and it is clear the intended uses of the tract are prohibited in an A-1 zone. Thus,
even if the Smith certification applied to the 500-acre tract and no injured or
aggrieved party appealed it, the Smith certification would be void as to Waste
Services’ intended uses.
Waste Services also contest the SCBOA’s authority to ratify the Kane
Letter under KRS 100.261. Because we held the Kane Letter was not void for
failure of any party to appeal, the SCBOA had the authority to uphold Kane’s
Letter stating that ancillary landfill operations could not occur on the 500-acre tract
without a zoning change. Thus, we hold the Kane Letter was valid, and the
SCBOA acted within its statutory authority in upholding the Kane Letter.
Under the second prong, Waste Services argue they were denied due
process before the Kane Letter was issued. “The hallmark of procedural due
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process is ‘the opportunity to be heard at a meaningful time and in a meaningful
manner.’ That is, notice and an opportunity to be heard.” Harrison Silvergrove
Property, LLC, 492 S.W.3d at 915 (citations omitted). In zoning actions, litigants
are afforded an opportunity to be heard under the following circumstances: “When
a city legislative body makes a zoning change, it must make a finding of
adjudicative facts necessary to support the change. These findings must be made
from and supported by the evidence heard at a trial-type hearing.” Warren County
Citizens for Managed Growth, Inc., 207 S.W.3d at 18 (footnote omitted).
Waste Services’ argument is disingenuous as they clearly attempted to
circumvent the proper rezoning process in obtaining the Smith certification letter in
2013. The Smith letter was a certificate of compliance KYDEP required as part of
Waste Services’ application for a landfill expansion permit. There was no trial-
type hearing before the Smith letter because Waste Services did not apply for a
zoning change of the 500-acre tract.
Waste Services do not argue they were denied procedural due process
when Waste Services’ counsel requested a zoning letter for the 500-acre tract and
the Landfill tract as part of a mortgaging process. In response to this request, Kane
issued a 2015 memorandum informing Waste Services that expansion of the
Landfill within the existing tract may not require rezoning, but expansion onto the
500-acre tract could not occur without rezoning because it was zoned A-1
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Agricultural. In 2016, counsel for an unknown client triggered “a period of
research and consultation between Kane, the City, and landfill engineers, which
consultation led Kane to believe that a zoning letter clarifying the expansion
project’s zoning compliance was warranted.” R. at 922. This resulted in the
issuance of the 2017 Kane Letter, which was meant to clarify the Smith letter.
Waste Services knew in 2015 they would have to apply for rezoning
of the 500-acre tract to use it for ancillary landfill purposes and participated in the
research and consultation process that ensued in 2016. Despite their participation
in this process, which was for a certificate of compliance for their KYDEP
application and not an application for rezoning, Waste Services argue Kane
unilaterally issued the letter notifying KYDEP of the zoning deficiency. Based on
our review of the record and applicable law, Waste Services were on notice and
participated in the process that lead Kane to issue his 2017 deficiency notice to
KYDEP. A formal trial-type hearing and findings of fact were not required
because Waste Services sought a certificate of compliance for expansion of the
Landfill and did not apply for rezoning of the 500-acre tract. Thus, Waste Services
were not denied due process.
Under the third prong, Waste Services argue both the Kane Letter and
SCBOA’s decision to uphold the Kane Letter were unsupported by substantial
evidence.
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A decision that is not supported by substantial evidence
is clearly erroneous and therefore arbitrary. Substantial
evidence has been defined as some evidence of substance
and relevant consequence, having the fitness to induce
conviction in the minds of reasonable people. In its role
as a finder of fact, the Planning Commission is afforded
great latitude in its evaluation of the evidence heard and
the credibility of witnesses, including its findings and
conclusions of fact.
Warren County Citizens for Managed Growth, Inc, 207 S.W.3d at 16 (footnotes
omitted).
Waste Services again argue Kane lacked authority to issue his 2017
letter because no timely appeal was taken of the Smith letter, and, as a result,
SCBOA lacked authority to uphold Kane’s determination. As discussed above,
Kane did not exceed his statutory authority in issuing the 2017 letter, and SCBOA
did not exceed its authority in upholding the Kane Letter.
Scott County asserts the evidence that Waste Services intended to use
the 500-acre tract for ancillary landfill operations, which was not permitted in an
A-1 agricultural zone, was overwhelming and uncontroverted. Kane testified that a
borrow pit would require clear-cutting a forest, excavating the earth up to a depth
of twenty feet and processing clay and rock for construction of waste liner and
cover, and construction of two 3.5-acre sedimentation ponds in no way resembled
farm ponds. As such, those uses were not permitted in an A-1 Agricultural zone.
It is also clear from the record that, in order to use the 500-acre tract for these
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purposes, Waste Services would need to apply for a rezoning of the property to
Light Industrial (I-1) with a conditional use permit or Heavy Industrial (I-2) for the
entire area of the proposed landfill expansion. Thus, we hold Kane’s and the
SCBOA’s decisions were based on substantial evidence and were not arbitrary.
Next, we turn to Scott County’s, Kane’s, and Scott County Citizens’
arguments on cross-appeal. Scott County argues: (1) Waste Services lacked
statutory standing because it failed to plead that it was “injured and aggrieved”
under KRS 100.347(1); and (2) WSR failed to exhaust administrative remedies
before the SCBOA. Kane argues: (1) Waste Services waived any appeal of the
circuit court’s dismissal of their claims against Kane by failing to raise it in their
initial brief; or (2) alternatively, the circuit court correctly dismissed claims against
Kane. Scott County Citizens argue: (1) they had and have a right to intervene
under CR 14.01; or (2) alternatively, they should be granted permissive
intervention under CR 24.02.3 Because we affirm the circuit court’s ruling on the
merits, the arguments raised in these cross-appeals are rendered moot.
CONCLUSION
For the foregoing reasons we affirm the judgment of the Scott Circuit
Court.
3
A separate motion panel of this Court denied Scott County Citizens’ motion to intervene by
order entered October 22, 2019.
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ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEFS FOR APPELLEES/
CROSS-APPELLANTS,
Robert E. Maclin III SCOTT COUNTY BOARD OF
Jon A. Woodall ADJUSTMENT AND SCOTT
Scott A. Schuette COUNTY FISCAL COURT:
Lexington, Kentucky
Bruce E. Smith
Henry E. Smith
Nicholasville, Kentucky
Thomas R. Nienaber
Florence, Kentucky
BRIEFS FOR APPELLEE/
CROSS-APPELLANT,
JOE KANE:
D. Barry Stilz
Lynn Sowards Zellen
BRIEFS FOR CROSS-
APPELLANTS,
SCOTT COUNTY CITIZENS:
Bethany A. Breetz
Louisville, Kentucky
Stephen T. Porter
Louisville, Kentucky
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