Citizens for Preservation v. Cooper Development, LLC, No. 2007-CA-001460-MR (Ky. App. 10/17/2008)
| Decision Date | 17 October 2008 |
| Docket Number | No. 2007-CA-001460-MR.,2007-CA-001460-MR. |
| Parties | CITIZENS FOR PRESERVATION of Jessamine County, LLC, Appellant v. COOPER DEVELOPMENT, LLC; Jessamine County/City of Wilmore Joint Planning Commission; Peter Beaty, Chairman; Charles Kestel, Jr., Joseph L. Poage, Charles Fuller, Jane Ball, James McKinney, Dwight Winter, Annette Sparks, Isaiah Suirbrook, Don Colliver, in their Capacities as Members of the Jessamine County/City of Wilmore Joint Planning Commission, Appellees. |
| Court | Kentucky Court of Appeals |
David Russell Marshall, Nicholasville, Kentucky, Briefs and Oral Argument for Appellant.
Robert L. Gullette, Jr., Nicholasville, Kentucky, Brief and Oral Argument for Appellee Cooper Development, LLC.
Before: VANMETER and WINE, Judges; LAMBERT,1 Senior Judge.
The issues before us relate to a landowner's right to proceed with a cluster development as a permitted use within an agriculturally zoned area. For the reasons stated hereafter, we affirm in part, and reverse and remand in part, the decision of the Jessamine Circuit Court.
Appellee landowner Cooper Development, LLC (Cooper) filed an application with appellee Jessamine County/City of Wilmore Joint Planning Commission (Planning Commission) seeking to proceed with a proposed cluster development of 45 residential lots on a 155.46-acre tract in Jessamine County as a permitted use within an agricultural zone. Appellant Citizens for Preservation of Jessamine County, LLC (Citizens) opposed the development, and a hearing was conducted before the Planning Commission.
Cooper produced extensive evidence to support its application. Citizens asserted, however, that the property's development would harm both the operation of an adjacent horse farm, and the ongoing efforts to preserve the agricultural nature of the surrounding community. Private citizens and owners of neighboring properties spoke both in favor of and against the proposed development. The Planning Commission then made the following findings and conclusions before denying Cooper's application:
FINDINGS OF FACT
155.46 acres of land owned by it, presently zoned A-1 and located approximately one-mile north of the junction of U.S. highway 68 and Kentucky highway 29, to be called "Barkley Woods, Unit 7", was held on Tuesday, May 30, 2006.
2. The application proposed sub-dividing the land into 45, one acre lots for single-family residences, with the remaining land, less proposed roads, to be reserved for agricultural or open space usage. Fourteen of the proposed lots would be considered "additional lots in exchange for demolition or removal" of existing, habitable dwellings, pursuant to section 1.8 of the Zoning Ordinance.
3. The land is bordered on the west by existing U.S. highway 68; on the east by Jessamine Creek and Foxtale Farm; on the south by existing Barkley Woods Subdivision (R-1); and on the north by existing A-1 zoned properties, which are either being used for agricultural (i.e. equine) or residential purposes as permitted uses in the A-1 zone.
4. The land is located in a scenic area of Jessamine County that contains, both historically and presently, a large concentration of horse farm operations, including several of world reknown, such as for example, Almahurst Stud and Ramsey Farm.
5. The land is covered in at least three different types of soil at varying depths, with karst substrata and sinkholes of various sizes, including one very large one on the north west side bordering U.S. 68 which is encompassed within the proposed septic drip field treatment area.
6. The 100-year flood plain for Jessamine Creek, which flows the length of the land's eastern boundary, encroaches on the proposed development in general, and in particular, on at least one of the proposed lots as shown on the submitted preliminary plat.
7. Conflicting proof was presented regarding the relative demand for cluster development lots in Jessamine County at the present time. There are at least 21, currently-approved cluster developments. There may be as many as 54.9% of those lots currently on the market for sale, being held for resale or currently being built upon for resale. In any event, it appears that there is more supply than demand.
8. Conflicting proof was presented whether there was adequate proposed screening to protect the scenic viewsheds of adjoiners or whether, overall, the proposal adequately minimized visibility of cluster lots from adjacent property or public right-of-ways. However, Applicants did not submit a landscape and buffering plan per se, pursuant to Section 3.224(A)(iii)(I)(vii), p.15c, of the Zoning Ordinance.
Based on all the findings made above, it is the conclusion of the Jessamine County-City of Wilmore Joint Planning Commission that the application by Cooper Development, LLC, for approval of a preliminary plat, should be denied, and it makes the following conclusions of law in support thereof:
1. Although a cluster development is a permitted use in an A-1 zone, pursuant to our Zoning Ordinance, it is equally clear that the Commission is vested with exercise of its sound discretion whether to permit it or not based upon application of the general principles of the Comprehensive Plan and whether the proposal complies with the letter and spirit of the cluster development portions of the Ordinance. It is simply not a rubber stamp, taking ministerial action, mandated to approve every cluster development proposed.
to enhance and take advantage of Jessamine County'[s] history and culture, to recognize agribusiness as an important industry and encourage its diversification and expansion, and to only permit cluster developments to allow environmentally and agriculturally productive areas to be protected and to remain undeveloped, are not being adequately met by this proposal for these following reasons specifically, among others: (a) its location in an area of the county adjacent to and in the vicinity of existing, historic and significant equine operations, which undoubtably [sic] potentially impacts the continued viability of the adjacent horse farms and impacts future usage of horse farm operations in the vicinity; (b) its impact on scenic watersheds, both natural and of adjoining landowners; and (c) its conversion of prime agricultural land to residential usage in such a way by design which makes the remaining acreage more likely to be used as "open space" versus actual, continued agricultural usage.
3. The applicant bears the burden of demonstrating the adequacy of the proposed infrastructure for the development at the time of hearing, including the proposed disposal of sewage. Applicants failed to so demonstrate that its septic system is adequate in that it proposes a drip drain field over top of an existing sinkhole, with covering soils that may not be of adequate depth, using a method rarely used or tested by experience in the Bluegrass karst topography; thereby creating a not insignificant risk of future problems of release of effluent and contamination of groundwater.
4. The applicant failed to submit a landscape and buffering plan that shows adequate protections to minimize visibility of the development from adjoiner landowners and/or right-of-ways.
5. It appears that there is no compelling need at the present time for additional cluster development lots in Jessamine County. Supply of such lots exceeds demand; therefore, this development is premature.
Since actual agricultural usage preservation is the goal of the Zoning Ordinance in the A-1 zone whenever possible, when a proposed development appears to be premature, Section 3.224(A)(iii)(1)(viii), at p.15d, requires it to be discouraged.
6. Finally, it is important to note that the [sic] it is not perhaps any one of the reasons individually that has caused the Commission to reach its ultimate conclusion; but the entirety of the evidence as a whole measured on balance that sways it to conclude that this proposal should be denied at the present time. Time and circumstances may change; however at the present time the negatives outweigh the positives and, ultimately, it is the applicant that bears the burden of convincing the Commission that the soundness of its proposal meets the letter, spirit and intent of the Comprehensive Plan and the Zoning Ordinance and it has failed to do so.
Cooper appealed to the Jessamine Circuit Court, which reversed the Planning Commission's decision and approved the requested land use.2 This appeal followed.
Judicial review of an administrative agency's decision is limited to determining whether (1) the agency exceeded its granted powers, (2) the parties were afforded procedural due process, and (3) the agency's decision was supported by substantial evidence. American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964). A court's
review of an administrative decision is not de novo, but instead turns on a determination of whether the decision was arbitrary or capricious, based on the record made before the administrative agency. Id. at 456-57. See also City of Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky. 1973); Oldham Farms Dev., LLC v. Oldham County Planning & Zoning Comm'n, 233 S.W.3d 195, 196 (Ky.App. 2007). An administrative decision is arbitrary, and therefore clearly erroneous, if it is not supported by substantial evidence. Fritz v. Lexington-Fayette Urban County Gov't, 986 S.W.2d 456, 458 (Ky.App....
To continue reading
Request your trial