Taylor v. Duke
| Decision Date | 14 April 1995 |
| Docket Number | No. 93-CA-002658-MR,93-CA-002658-MR |
| Court | Kentucky Court of Appeals |
| Parties | David TAYLOR and Paula Taylor, Appellants, v. Joel DUKE; Imogene Duke; Joel's Construction & Contracting, Inc.; Pamela Johnson; Morgantown Planning and Zoning Commission; Charles Mauzy; Douglas Neighbors; Jodie Forgy; Jessie J. Evans; Chester Renfrow; Tyler Peay; and Billie C. Clark, Zoning Administrator, Appellees. |
E.F. Martin, Jr., Hartford, for appellants.
Lanna M. Kilgore, J. Brent Travelsted, Campbell, Kerrick & Grise, Bowling Green, for appellees, Joel Duke, Imogene Duke; and Joel's Const. & Contracting, Inc.
Harold D. Ricketts, Morgantown, for appellees, Morgantown Planning and Zoning Com'n, Charles Mauzy, Douglas Neighbors, Jodie Forgy, Jessie J. Evans, Chester Renfrow, Tyler Peay, and Billy C. Clark.
Pamela Johnson, no appearance.
Before HOWERTON, HUDDLESTON and JOHNSON, JJ.
Butler Circuit Court dismissed as untimely filed David and Paula Taylor's complaint challenging the approval by the Morgantown Planning and Zoning Commission of the division of Pamela Johnson's property into two building lots smaller than permitted by the City's zoning ordinance. The complaint also challenged the granting by the City's zoning administrator of a permit allowing construction of a house on one of the two lots. The Taylors appeal seeking reinstatement of their lawsuit.
The Taylors own a lot, upon which their home is located, adjacent to property formerly owned by Pamela Johnson. In September 1992, the Morgantown Planning and Zoning Commission granted Johnson's request that her property be divided into two lots. After the division, each lot contained 6,048 square feet, some 1,952 square feet less than permitted by the city's zoning ordinance. 1 To obtain approval for the division of her property into two lots, Johnson simply presented a subdivision plat to the Commission during the meeting at which it was approved. Johnson did not submit the plat to the Commission ten days before the meeting as required by the local zoning ordinance. Because of that omission, the Commission did not provide notice of the hearing concerning the proposed subdivision to adjacent land owners, including the Taylors. The failure to provide such notice violated the zoning ordinance's requirement that not less than five days before the hearing scheduled to consider a request to subdivide, "notice shall be mailed to the owners of the land immediately adjoining the area proposed to be platted as shown on the proposed subdivision."
After the subdivision was approved, Johnson conveyed both lots to Joel and Imogene Duke. The Dukes obtained permits from the zoning administrator to build homes on the two lots. The first building permit was obtained on November 30, 1992, just after they had purchased the property, and the other on April 20, 1993. A house was constructed on one of the lots without incident, but when the Taylors realized that a second house was being built on property adjacent to theirs, they contacted an attorney. On May 18, 1993, the Taylors' attorney sent a letter to the Dukes informing them that the construction of a home on the second lot was in violation of the local zoning ordinance and regulations. A second letter containing a similar complaint was sent by the Taylors' attorney on June 10, 1993. When construction continued, the Taylors filed suit 2 in Butler Circuit Court seeking injunctive relief to prevent construction of the house from proceeding.
Citing Ky.Rev.Stat. (KRS) 100.347, the circuit court dismissed the Taylors' complaint because of their failure to appeal the Commission's subdivision approval or the zoning administrator's grant of a building permit within thirty days after the Commission and the zoning administrator acted. The statute relied on by the circuit court, headed "Appeal from board of adjustment, planning commission or legislative body action--Final action defined," provides, in pertinent part, that:
(2) Any person or entity claiming to be injured or aggrieved by any final action of the planning commission shall appeal from the final action to the Circuit Court of the county in which the property, which is the subject of the commission's action, lies. Such appeal shall be taken within thirty (30) days after such action. Such action shall not include the commission's recommendations made to other governmental bodies. All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review.
* * * * * *
(5) For purposes of this chapter, final action shall be deemed to have occurred on the calendar date when the vote is taken to approve or disapprove the matter pending before the body.
A second relevant statute, KRS 100.261, provides for an administrative appeal to the board of adjustment from the granting of a building permit by a zoning enforcement officer within thirty days after he acts. Upon conclusion of the administrative appeal, the aggrieved party has another thirty days to appeal to circuit court.
Admittedly, the Taylors did not appeal to the circuit court within thirty days after the Commission authorized a division of the Johnson property. Neither did they file an administrative appeal from the zoning officer's decision to grant a building permit for the second of the two lots purchased by the Dukes from Johnson. The Taylors, however, insist that the circuit court misinterpreted KRS 100.347, and that its time limit has not begun to run. Because the Commission violated the zoning ordinance's notice requirements and subdivision restrictions, they say its action in approving the division of the Johnson property into two lots is not final under KRS 100.347(5).
In Minton v. Fiscal Court of Jefferson County, Ky.App., 850 S.W.2d 52 (1992), this Court faced a similar claim of inadequate notice of a zoning hearing. Several persons opposed to a rezoning asserted, among other things, that the zoning commission had failed to comply with statutory notice requirements before considering a zoning change. The statute invoked, KRS 100.214(2), requires notice by first-class mail to various property owners when a hearing is to be held to consider a proposed zoning change. While some affected property owners did not receive notice of the hearing by mail, legal notices were printed in newspapers and signs advising of the hearing were posted on the property.
The objecting property owners argued, and this Court agreed, that notice requirements for hearings for zone changes are generally viewed as mandatory and...
To continue reading
Request your trial
-
Seiller Waterman, LLC v. Bardstown Capital Corp.
...Court.An appeal from a zoning decision by a legislative body is "a matter of legislative grace, and not a right." Taylor v. Duke , 896 S.W.2d 618, 621 (Ky. App. 1995).13 As discussed in Kenton County Board of Adjustment v. Meitzen , 607 S.W.3d 586, 595 (Ky. 2020), by enacting KRS 100.347 th......
-
Associated Healthcare of Jessamine Cnty., LLC. v. Commonwealth
...of legislative grace and not a right." Triad Development/Alta Glyne, Inc. v.Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). "Thus, the failure to follow the statutory guidelines for such an appeal is fatal." Gellhaus, 150 S.W.3d at 47. In that re......
-
Short v. City of Olive Hill
...they failed to file a timely appeal with the district court, even after they did receive the written order. See, e.g., Taylor v. Duke, 896 S.W.2d 618 (Ky.App.1995).12 While the Shorts claim that they did not receive the order purportedly mailed on September 6, 2006, and that, accordingly, a......
-
Louisville/Jefferson Cnty. Metro Gov't v. Louisville Historical League, Inc.
... ... Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, ... 2 (Ky. 1978) (emphasis added); see also Taylor v ... Duke, 896 S.W.2d 618 (Ky. App. 1995); Kentucky ... Unemployment Ins. Comm'n v. Providian Agency Group, ... Inc., 981 S.W.2d ... ...