Burns v. Peavler , 1986 Ky. App. LEXIS 1205 ( 1986 )

MILLER, Judge.

Appellant, Don Burns, appeals a Mercer Circuit Court order dismissing his cause of action. We affirm.

A detailed rendition of the facts is necessary for a complete understanding of our disposition. In. October, 1982, Tyler and Tyler Enterprises (Tyler) requested a zone change from the Mercer County Planning and Zoning Commission. Tyler desired to build multi-family dwelling units on a tract of land zoned only for single or double occupancy. On October 11, 1982, Larry Morris, Mercer County Enforcement Officer, sent a letter to Tyler stating his belief that no zone change was necessary. The land in question carried a deed restriction allowing for multi-family dwellings. Mercer County ordinances provided that uses or structures existing prior to the enactment of their ordinances would be allowed to remain in force. Because the deed to the property specifically allowed for multifamily dwellings, and because the deed preexisted the Mercer County ordinances, it was concluded that construction of the units was proper, without a need to change the zone classification. Evidence from the record indicates that all parties now generally agree that the enforcement officer was incorrect in his determination that no zone change was necessary.

Armed with the advice of the enforcement officer, Tyler applied for and received initial building permits in March, 1983, and began construction the following month. The record reflects that sometime in April, the enforcement officer was contacted by the wife of Don Burns who evidently sought to ascertain how Tyler had received permission to build housing units for more than double occupancy contrary to the existing zoning restrictions. The Burns’s property was directly adjacent to the Tyler project. In his affidavit, Morris reveals that he explained to Mrs. Bums both the reasoning behind his determination, and also the proper avenues available to the Burnses should they decide to appeal. . He testifies they were invited to his office to discuss the situation, but that he had no further contact with them. The Burnses have never denied that this contact took place.

Meanwhile, construction continued through the summer and into the fall of 1983. In October, nearly six months after Mrs. Bums had contacted the enforcement officer, Don Burns filed a declaratory judgment suit in the Mercer Circuit Court. The suit was dismissed on November 8, 1983, on the basis that Burns had not filed a written complaint with the proper administrative official as required by Mercer County ordinances. As such, he had failed to exhaust his administrative remedies and the court lacked jurisdiction to hear his complaint. At this point, Burns — through his attorney — commenced writing letters to the Mercer County Planning and Zoning Commission and to the Board of Adjustments wherein he complained of the Tyler development. (It should be noted that none of these letters were generated until after the suit had initially been dismissed.) Bums also filed a motion to reconsider at this juncture. Tyler countered with a motion for permanent injunction, alleging that Burns’s actions had placed a cloud on his title and had placed the project in severe financial difficulty. Consequently, in December, 1983, the trial court amended its order of dismissal to include the following injunction:

The plaintiff (Don Bums) and the defendant (Greater Mercer County Planning and Zoning Commission), the spouses, agents, servants and employees of either, and all other persons acting in active concert with either of them be and they are hereby permanently enjoined from appealing, protesting, questioning or otherwise contesting the decision of the defendant Greater Mercer County Planning and Zoning Commission allowing the construction and sale of condominium units consisting of more than two units per building upon the property owned by the defendant (therein) Tyler and Tyler Enterprises, Inc., and located in the Bright Leaf Subdivision, Mercer County, Kentucky, for which building permits were issued prior to October 10, 1983.

Burns then appealed to this court. The appeal centered on the propriety of the circuit court’s granting of an injunction which he felt deprived him of his mandatory right to an appeal. In other words, Burns did not appeal the merits of the trial court’s order of dismissal. On April 5, 1984, in No. 84-CA-243-MR, the Court of Appeals rendered a decision affirming the lower court, stating:

We make no decision as to the correctness of the action taken by the enforcement officer, but it is clear that any attempt by Burns to appeal that decision must fail because he did not file an appeal or contest such decision as proscribed by the Mercer County Planning and Zoning Ordinance or the provisions of KRS Chapter 100.

In May, 1984, Burns again filed this present suit in Mercer Circuit Court, this action being in the nature of a mandamus, requesting the court to force the Board of Adjustment to issue certificates of occupancy to Tyler limiting his buildings to residency by two families or less. In other words, Burns previously attempted to halt construction, but in the instant suit, he is attempting to restrain Tyler from using the buildings as multi-family dwellings — the sole purpose for which they were built. The circuit court once again dismissed his suit, and cited Burns for contempt of the previous injunction. This appeal ensued.

Inasmuch as the resolution of this issue revolves around the administrative procedures for appeal, a discussion of the state statutes and pertinent Mercer County ordinances is in order. KRS Chapter 100 was extensively revised in 1966 so as to provide uniform legislation for the use of planning and zoning controls on land development. Prior to the 1966 revisions, review of administrative decisions with regard to zoning matters was a hodgepodge of various procedures which ranged from a complete trial de novo to no appeal at all, depending entirely upon the situation involved. See Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 KLJ 556, 624 (1967-68).

The revised legislation allowed or “enabled” local governments to set up their own planning and zoning units, as long as they conformed to the state’s general guidelines. The state statutes provide for the appointment of a local administrative or enforcement official (as was Larry Morris in this case) to enforce the existing ordinances. KRS 100.271. The statutes further set out the procedures for organizing local planning and zoning commissions and boards of adjustment. The duties of the planning and zoning commissions are basically to advise the local legislative body concerning amendment of zoning classifications. The statutes give the boards of adjustment the power to grant dimensional variances and conditional-use permits. In addition, they were given authority to hear appeals from decisions made by enforcement officers in the day-to-day administration of the local ordinances. KRS 100.257. An appealing party was given thirty (30) days from the date of notice of the determination of the enforcement officer in which to file an appeal with the board of adjustment. KRS 100.261. If the appeal to the board of adjustment was unsuccessful, the statutes provided a further appeal to circuit court from final actions of the board. KRS 100.347. Again, the moving party is required to file his action within thirty (30) days.

The Mercer County ordinances also authorized the appointment of a zoning enforcement officer “who shall administer and enforce this ordinance and issue building permits and certificates of occupancy.” Article II, Number 200. As congruent with the state statutes, appeals from the decisions of the Mercer County Enforcement Officer may be had to the Board of Adjustment. Article IV. Contrary to the statutes, however, there is no 30-day limit in which to bring the appeal. The ordinance further provides that, should the appeal to the Board of Adjustment be unfavorable, a further appeal to circuit court may be had, “in the manner provided by the laws of the Commonwealth of Kentucky and particularly by KRS 100.347.” Article IV, Number 420.

Comparing the state statutory scheme to the Mercer County ordinances, it is apparent that the statutorily mandated 30-day time limit in which to bring an action of appeal from the decision of the zoning officer with the Board of Adjustment applied to Burns in this case, whether or not the local ordinance provided as much. Obviously, the intent of the statute was, and is, to prevent situations such as the one arising here, where Bums waited nearly six months after he had notice of the Tyler development to take any action.

Review of administrative decisions must strictly follow the applicable statutory procedures. See Board of Adjustments of the City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1979). It is only with regard to actions taken by an administrative body which can be regarded as legislative, that no time limitations exist on the right to request review. See Fiscal Court of Jefferson Co. v. Don Ridge Land Development Co., Ky., 669 S.W.2d 922 (1984).

Burns was precluded from filing a suit in the circuit court inasmuch as the state statutory scheme mandates that the Board of Adjustment first be allowed to review the action of the enforcement officer. KRS 100.257 and .261. (Cf. Ashland Lumber Co. v. Williams, Ky., 411 S.W.2d 909 (1967), a proceeding under KRS 100.980, now repealed). Only after the board’s rendered decision would the act be deemed sufficiently final to qualify for judicial review. See Thomas v. Barnett, Ky., 397 S.W.2d 781 (1966). If Bums attempted to have the enforcement officer’s actions reviewed, he did so in an untimely fashion. Moreover, as previously indicated, Bums made no contact with the Board of Adjustment until after he had filed suit in the circuit court. In effect, Bums was seeking review of a determination which was not administratively final. This was clearly improper. Burns contends that his present suit to enjoin the Board of Adjustment from issuing certificates of occupancy to Tyler which would allow more than two-family occupancy is markedly different from his original attempt to stop the construction of the buildings in question. We see no distinction. What Burns has been attempting from the outset is to prevent multi-family dwellings on the property. Preventing multi-family occupancy is but another way of accomplishing the same end.

As pointed out previously, it is not seriously doubted that the initial position of the enforcement officer was incorrect. In any event, it was incumbent upon Bums to appeal to the Board of Adjustment within 30 days from first learning of the officer’s decision. Admittedly, this was not done. Rather, more than six months after commencing of construction, Burns complained. Now, more than two years later, he still complains and attempts — by a circuitous method and in violation of a court-ordered injunction — to prohibit use of the buildings. This he cannot do.

Por the foregoing reasons, the judgment of the Mercer Circuit Court is affirmed.

WILHOIT, J., concurs.

COMBS, J., dissents by separate opinion.