Lisa Gannoe v. Lexington Fayette Urban County Government Board of Adjustment ( 2023 )

RENDERED: MARCH 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0940-MR
LISA GANNOE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 20-CI-03008
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; CHAD
NEEDHAM, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; CHAD T.
WALKER, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; ECTON FARM,
LLC; HARRY CLARKE, IN HIS
OFFICIAL CAPACITY AS MEMBER
OF THE LEXINGTON FAYETTE
URBAN COUNTY GOVERNMENT
BOARD OF ADJUSTMENT; JANICE
MEYER, IN HER OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; JOAN WITMAN,
IN HER OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; MICHAEL ECTON;
PHILIP GROSS, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; RAQUEL
CARTER, IN HER OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT; AND THOMAS
GLOVER, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT BOARD
OF ADJUSTMENT APPELLEES
AND
NO. 2021-CA-0990-MR
ECTON FARM, LLC, AND MICHAEL
ECTON CROSS-APPELLANTS
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 20-CI-03008
LISA GANNOE; CHAD NEEDHAM,
IN HIS OFFICIAL CAPACITY AS
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MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; CHAD T. WALKER,
IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; HARRY CLARKE, IN
HIS OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; JANICE MEYER, IN
HER OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; JOAN WITMAN, IN
HER OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; PHILIP GROSS, IN
HIS OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; RAQUEL CARTER,
IN HER OFFICIAL CAPACITY AS
MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY
GOVERNMENT BOARD OF
ADJUSTMENT; AND THOMAS
GLOVER, IN HIS OFFICIAL
CAPACITY AS MEMBER OF THE
LEXINGTON FAYETTE URBAN
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COUNTY GOVERNMENT BOARD
OF ADJUSTMENT CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Lisa Gannoe appeals from the Fayette Circuit Court’s order
affirming the Lexington Fayette Urban County Government Board of Adjustment
(the Board or BOA) decision to approve the conditional use permit application of
Michael Ecton and Ecton Farm LLC (Ecton). Ecton cross-appeals, arguing that the
Fayette Circuit Court erred in denying Ecton’s motion to dismiss Gannoe’s
administrative appeal. We affirm on appeal and cross-appeal (Nos. 2021-CA-0940
and 2021-CA-0990, respectively).
The litigation centers around a piece of property located in a rural area
of southern Fayette County. In 2006 the Board had granted a conditional use
permit for a plant nursery to the former owner who then built a structure but failed
to comply with a number of the conditions. The property was essentially
abandoned, and that permit was revoked in 2017. Ecton, the current owner,
purchased the property in July 2020 at a master commissioner’s sale. Ecton then
sought Board approval for another conditional use permit; he submitted his plans,
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including restoration of the existing greenhouse, for the structure to remain a plant
nursery. Gannoe, whose residence is located across the road from Ecton’s
property, and other adjoining landowners (residents of the Old Richmond Road
Neighborhood Association) opposed the permit. The Board held a hearing, during
which Ecton presented his testimony and proposed plans; after Gannoe and the
others voiced their objections, the Board voted (6 to 1) to approve the permit for a
plant nursery on the property. The permit was subject to nine separately listed
conditions.1
In October 2020, Gannoe appealed the Board’s decision to the Fayette
Circuit Court pursuant to Kentucky Revised Statute (KRS) 100.347(1), which
states:
Any person or entity claiming to be injured or aggrieved
by any final action of the board of adjustment shall
appeal from the action to the Circuit Court of the county
in which the property, which is the subject of the action
of the board of adjustment, lies. Such appeal shall be
taken within thirty (30) days after the final action of the
board. All final actions which have not been appealed
within thirty (30) days shall not be subject to judicial
review. The board of adjustment shall be a party in any
such appeal filed in the Circuit Court.
1
Included among the listed conditions were limitations on hours of operation, installation of a
stormwater management system, appropriate landscaping, and lighting, as well as conditions
regarding ingress and egress. No sales were to take place on the property. And Ecton agreed to
bring the existing structure, which had suffered significant neglect since its original construction,
up to code.
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Ecton and the Board filed separate motions to dismiss the action, arguing that
Gannoe and the other neighbors failed to establish sufficiently that they were
injured or aggrieved. KRS 100.347(1). The motions were denied after a hearing
on December 4, 2020.2
The parties briefed the remaining issues, and the circuit court held a
hearing with all parties present on July 13, 2021. Judgment was entered on August
3, 2021. Gannoe filed her appeal, and Ecton filed his cross-appeal.
We begin by stating our standard of review, namely:
Judicial review of an administrative decision is
concerned with whether the action of the agency was
arbitrary. American Beauty Homes Corp. v. Louisville
and Jefferson County Planning and Zoning Comm’n, 379
S.W.2d 450, 456 (Ky. 1964). Three grounds exist for
finding that an agency’s decision was arbitrary: (1) the
agency acted in excess of its statutory powers, (2) the
agency did not afford procedural due process, and (3) the
agency’s decision was not supported by substantial
evidence. Id.Baesler v. Lexington-Fayette Urban County Government, 237 S.W.3d 209, 212
(Ky. App. 2007).
Gannoe argues that, because the Board was interpreting the Zoning
Ordinance’s provisions regarding commercial greenhouses versus plant nurseries,
the circuit court should have reviewed the Board’s decision de novo, rather than
2
However, one named Board member (Janice Meyer) was dismissed as a party without
objection because she was not a member at the time the Board voted to approve the permit.
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simply for arbitrariness. Gannoe contends that Ecton’s proposed use fit the
definition of a commercial greenhouse, rather than the plant nursery for which
Ecton was approved. Furthermore, Gannoe insists, the greenhouse, because it is
the only building on the property, cannot be considered an accessory structure but
must be the primary one. This, she maintains, necessarily makes Ecton’s
enterprise a commercial greenhouse rather than a plant nursery. Therefore,
Gannoe continues, the Board improperly granted the permit to Ecton for the
proposed plan’s failure to meet those definitions included in the zoning ordinances
and the circuit court erred in affirming on direct appeal. Gannoe additionally urges
that she and the other objectors were denied due process because her video camera
was muted during the Board’s hearing.
We disagree. We have examined the record in its entirety (including
the videotaped sessions held in the circuit court) and can find no error in the circuit
court’s judgment upholding the Board’s grant of a conditional use permit to Ecton.
The circuit court’s focus, and rightly so, was on the propriety of the Board’s
decision given applicable ordinances and the evidence presented before it.
KRS 100.237 authorizes local zoning boards of
adjustment to hear and decide applications for
conditional use permits. A “conditional use permit” is an
exception within Kentucky’s zoning law which allows an
applicant to undertake a beneficial land use not otherwise
permitted in a particular zoning district. KRS
100.111(7). The local zoning ordinance supplies the
standards the board of adjustment must follow in
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determining whether to grant or deny a conditional use
permit. Hardin County v. Jost, 897 S.W.2d 592, 595
(Ky. App. 1995). Typically, these standards appear in
the zoning ordinance as list of acceptable conditional
uses that the board of adjustment may authorize in
particular zones. See Harrison Silvergrove Property,
LLC v. Campbell County and Municipal Board of
Adjustment, 492 S.W.3d 908, 913 (Ky. App. 2016). The
applicant is then able to choose from the list and apply
for a conditional use permit, which the board of
adjustment may approve, modify, or deny. KRS
100.237. The board of adjustment must, however, adhere
to fundamental due process requirements. See Hilltop
Basic Resources, Inc. v. County of Boone, 180 S.W.3d
464, 469 (Ky. 2005) (right to a hearing, the taking and
weighing of evidence, factual findings based on the
record, an appropriate order, and a judicial review of the
administrative action); see also Kaelin v. City of
Louisville, 643 S.W.2d 590, 592 (Ky. 1982) (right to
cross-examination).
In its final form, a conditional use permit consists
of two parts: (1) a factual determination justifying the
issuance of a permit; and (2) a statement of conditions
which the applicant must meet for the use to be
permitted. KRS 100.111(7). This latter part must be
recorded in the board of adjustment’s meeting minutes
“and on the conditional use permit. . . .” KRS
100.237(1). Once approved, the local administrative
official issues the conditional use permit. See KRS
100.111(7).
Drakes Creek Holding Co., LLC v. Franklin-Simpson Cnty. Board of Zoning
Adjustment, 518 S.W.3d 174, 179-80 (Ky. App. 2017).
Here, the Board had a sufficient basis for issuing Ecton the permit.
The local zoning ordinance lists a plant nursery as an available and acceptable
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conditional use for this agricultural zone, and Ecton’s proposal met that definition.
Ecton’s proposal was sufficiently detailed for the Board to make its decision (and
for the circuit court to consider in its review on appeal). The Board’s hearing did
not violate Gannoe’s due process rights. Gannoe and other affected parties were
given ample opportunity to submit evidence and voice their concerns. In fact, as
Ecton points out, the testimony of the opposition effectively equaled Ecton’s in
terms of time spent at the hearing. Gannoe does not specify what, if anything, she
or other objectors were prevented from presenting. The Board imposed nine
conditions which appeared on the permit, and the Board recorded the conditions in
its meeting minutes. Id. Any future violation of those conditions would be
improper for the Board’s or circuit court’s consideration. The circuit court
considered all these factors on appeal before issuing its judgment. Accordingly,
the permit was properly issued.
Ecton’s cross-appeal (which argues that the circuit court erred by
denying his motion to dismiss)3 must also fail. We agree with the circuit court’s
ruling that Gannoe and the other objectors sufficiently met their burden of proving
that they were “injured or aggrieved” parties. KRS 100.347(1). We find no error
3
The Board also argues that the circuit court erred in this respect; the Board’s brief essentially
mirrors Ecton’s in its position.
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in that determination as well as the circuit court’s order denying the motion to
dismiss.
The judgment and order of the Fayette Circuit Court is affirmed.
THOMPSON, CHIEF JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEES/CROSS-
APPELLEE LISA GANNOE: APPELLANTS ECTON FARMS LLC
AND MICHAEL ECTON:
Jessica K. Winters
Lexington, Kentucky R. Douglas Martin
Lexington, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLEE LEXINGTON FAYETTE
URBAN COUNTY GOVERNMENT:
Tracy W. Jones
Lexington, Kentucky
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