Stuff Props. v. Winchester/Clark Cnty. Bd. of Adjustments

• Decision Date: 15 April 2022
• Docket Number: 2021-CA-0204-MR
• Parties: STUFF PROPERTIES, LLC APPELLANT v. WINCHESTER/CLARK COUNTYBOARD OF ADJUSTMENTS; AND TRESA BRIDGES APPELLEES
• Court: Kentucky Court of Appeals

STUFF PROPERTIES, LLC APPELLANT v. WINCHESTER/CLARK COUNTYBOARD OF ADJUSTMENTS; AND TRESA BRIDGES APPELLEES

No. 2021-CA-0204-MR

Court of Appeals of Kentucky

April 15, 2022

NOT TO BE PUBLISHED

APPEAL FROM CLARK CIRCUIT COURT HONORABLE JEAN C. LOGUE, JUDGE ACTION NO. 19-CI-00029

BRIEFS FOR APPELLANT: Grahmn N. Morgan Clifford H. Ashburner K Cassandra Carter Lexington, Kentucky

BRIEF FOR APPELLEE, WINCHESTER/CLARK COUNTY BOARD OF ADJUSTMENTS William A. Dykeman Winchester, Kentucky

BRIEF FOR APPELLEE, TRESA BRIDGES: Tom FitzGerald Frankfort Kentucky

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

OPINION AFFIRMING

JONES JUDGE

Stuff Properties, LLC, ("Stuff") appeals an opinion and order of the Clark Circuit Court affirming a determination of the Winchester/Clark County Board of Adjustments that Stuff unlawfully expanded a nonconforming use of its property in Winchester, Kentucky. Upon review, we affirm.

I. Background

On or about November 22, 2010, Stuff acquired approximately nine (9) acres located at 6169 Lexington Road (US 60), Winchester, Kentucky (hereinafter "the Property"). At the time Stuff purchased it, most of the Property had been utilized for recycling of one kind or another (junk automobiles, auto parts, and surplus army goods) since at least the mid-1990's. To date, Stuff has continued utilizing the Property for that purpose. On November 15, 2011, in a letter responding to an inquiry from Stuff about the propriety of its use of the Property, the Winchester/Clark County Planning Commission notified Stuff that "[t]he property located at 6169 Lexington Road is zoned B-4 (General Business). Automobile recycling is not a permitted use in that zone. Automobile recycling is only a legal land use in the I-2 (Heavy Industry) zone." The Planning Commission added, however, that because it appeared "automobile recycling" may have been regularly occurring on the Property without incident for more than ten years, it might qualify as a legal, nonconforming use pursuant to KRS^[1] 100.253(3).

Accordingly, Stuff filed an application with the Winchester/Clark County Board of Adjustments ("Board") seeking a zoning interpretation that its scrap and recycling operations qualified as a legal, nonconforming use within the meaning of KRS 100.253(2). After considering Stuff's application during a special meeting on February 13, 2012, the Board confirmed that Stuff's "existing metal recycling land use" was a "heavy industrial use" suited for an I-2 district, but that it qualified as a legal nonconforming use on Stuff's Property, which had been zoned B-4. According to the minutes, the Board also "expressed concerns that the recycling business might move closer to the road and the Board doesn't want that." As such, the Board defined the scope of Stuff's nonconforming use, voting unanimously that it "includes the 7 +/- acres behind the existing line of buildings and to include the interior of those buildings, that fronts U.S. 60," and that "recycling cannot be extended beyond the fronts of the buildings."

On February 15, 2012, the Board's director of planning and community development, Rhonda Cromer, then wrote a follow-up letter to Stuff summarizing the pertinent aspects of the Board's decision, stating in relevant part:

• Buildings could be remodeled or reconfigured as long as no additional square footage was added to the existing square footage of structures currently on the property;

• Any changes to buildings should be done in such a way as to continue screening the recycling operation from Lexington Road;

• All recycling must be done within the structures or behind them so that it cannot be seen from Lexington Road[.]

On March 21, 2013, Stuff purchased what will hereinafter be referred to as the "Lot," an approximately one-acre tract of land that not only adjoined the front of the Property, but was situated between Lexington Road and the buildings on the Property that the Board had delineated as the boundary for "screening" Stuff's "recycling operation from Lexington Road," per Cromer's letter. The Lot, which had another small building situated upon it, was located at 6223 Lexington Road. The Lot was also located in a B-4 zoning district and, prior to its acquisition by Stuff, it had never been utilized for any purpose beyond what its B-4 classification permitted. Following the acquisition, however, Stuff proceeded to utilize the Lot in conjunction with its recycling business, i.e., "to park trucks, trailers, equipment, and to store recycled materials, both indoors and in containers."^[2]

On May 5, 2016, the Interim Director of Planning and Community Development, Joshua Cook, issued a Notice of Violation ("NOV") to Stuff for what he regarded as the illegal expansion of Stuff's nonconforming use relative to the Property. In pertinent part, his NOV explained:

The property located at 6169 Lexington Road, Winchester, Kentucky is in violation of the Winchester Clark County Zoning Ordinance. The property is zoned B-4 (General Business) which allows for the storage of MATERIALS on site, behind the existing building lines. However, currently the property is storing both material, equipment, trash and recycling bins, and tractor trailers at or near the property line. This is not in conformance to either the Zoning Ordinance for the B-4 Zoning District nor your February 13, 2012 Zoning Interpretation granted by the Winchester/Clark County Board of Adjustments that specifically states, ". . . recycling cannot be extended beyond the fronts of the buildings."

Please remove all materials, debris, vehicles, tractor trailers, trash and recycling dumpsters, and all other items behind the existing line of buildings by Monday, May 20, 2016. Violations to the zoning ordinance may result in fines of $500.00 per day per violation for as long as the violation continues if the property is not brought into compliance by the deadline.

Stuff acknowledges it received this NOV and claims it responded by erecting a "privacy screen" partially enclosing the Property; but that it continued storing recycling materials, including equipment, trash, recycling bins, and tractor trailers in front of the building lines and on the Lot. Stuff further claims that because the Board took no further immediate action against it regarding the NOV, it assumed the matter had been resolved. The Board, on the other hand, claims it took no immediate action against Stuff regarding the NOV because the NOV was "lost" during the transition of its directors and was not brought to its attention until approximately three years later, as discussed later in this Opinion.

That aside, the next significant development in this matter occurred on September 27, 2018, when, in response to a complaint from residents in the community, the Board held a special meeting to determine whether the scope, area, and usage of the Property had changed since the Board's prior 2012 zoning interpretation. The Board listened to comments and questions from various individuals, including appellee Bridges and Stuff's counsel, although it did not render a decision concerning the expansion of the nonconforming use. Instead, the Board announced it would take up the matter at the next meeting allowing time to review the issues presented. On October 4, 2018, another public meeting was held during which the Board went into closed session to discuss whether Stuff was violating the Board's 2012 Zoning Interpretation. Upon returning to open session, the Board voted unanimously that Stuff had expanded its recycling operations beyond the front of the buildings and determined "the storage of recycling materials in containers or on the ground is found to be accessory to the recycling business and is prohibited." The Board's decision on October 4, 2018, was not appealed.

On November 8, 2018, Bridges then submitted a written complaint to the Board pursuant to KRS 61.846(1) (and copied Stuff's counsel) alleging the Board's closed session meeting and resulting decision on October 4, 2018, had violated Kentucky's Open Meetings Act, KRS 61.800-850 (the "OMA"). Regarding what the Board should do to remedy its violation, Bridges requested the following relief:

1. Acknowledge that the actions of the Board of Adjustment of going into closed session during the meeting of October 4, 2018[, ] violated the requirements of KRS 61.810, KRS 61.815(1)(a), KRS 61.815(1)(b), and KRS 61.815(1)(c); 2.Vacate the motion regarding Stuff's Recycling that was approved by the Board of Adjustment based on the discussion in the unlawful closed session; and

3.Schedule this matter for a Meeting of the Board of Adjustment within sixty (60) days for further action in open session on the complaints that the scope, area, and intensity of the usage of the property at 6169 Lexington Road has expanded beyond the nonconforming use recognized in February, 2012, in a manner consistent with the Kentucky Open Meetings Act.

On November 13, 2018, the Board served Bridges a timely response to her complaint^[3] (and copied Stuff's counsel on November 18, 2018), agreeing that it had indeed violated the Act as alleged. Additionally, the Board stated:

Following the October 4, 2018, meeting and before approval of the minutes, it was discovered that a Notice of Zoning Violation issued by an interim Planning Director, May 5 2016, had been served upon Stuffs [sic] Properties LLC, owner of 6191 Lexington Road, Clark County, Kentucky. The Notice is attached.

The Notice was not brought to the attention of the Planning Staff, the Board Members or Counsel. As such, the Complainant, the property owner, its Counsel, the Board or members of the public did not have the opportunity to address the May, 2016 Notice during the October, 2018 meeting.

The

...