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Southwest Clark Neighborhood Association, Inc. v. Branham

Court of Appeals of Kentucky

March 31, 2017

SOUTHWEST CLARK NEIGHBORHOOD ASSOCIATION, INC.; MELANIE LEDFORD; MARK LEDFORD; REGENA CAMPBELL; ELIZABETH MERIDETH; STEPHEN GREEN; MICHAEL K. MAUFFREY; LEE ANN COTTRELL; THOMAS COTTRELL; DEBORAH GARRISON; GARY GARRISON; MARION SHEARER; DEBORAH JAE ALEXANDER; PAMELA ROUNDTREE; ADRIAN THOMAS; GENEVA FLANNERY; JOHN QUISENBERRY; CANDACE TOOLE; JOAN MAYER; BOB TABOR; JOHN M. FOX; ANGELA KELLY FOX; TOM LYKINS; M. CLARE SIPPLE; HARRY ENOCH; CRAIG STOTTS; MOLLY STOTTS; RUTHIE SKINNER; RANKIN SKINNER; BEN C. KAUFMANN; AND JANET ZUSMAN APPELLANTS
v.
HENRY BRANHAM, JUDGE EXECUTIVE-CLARK COUNTY FISCAL COURT; RICK SMITH, COMMISSIONER, CLARK COUNTY FISCAL COURT; VANESSA OAKS ROGERS, COMMISSIONER, CLARK COUNTY FISCAL COURT; JOELLEN REED, COMMISSIONER, CLARK COUNTY FISCAL COURT; LARRY DISNEY, CHAIR, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; GRAHAM JOHNS, VICE CHAIR, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; STEVE BERRYMAN, MEMBER, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; PAUL DEATON, MEMBER, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; GLENN FARRIN, MEMBER, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; BONNIE HUMMELL, MEMBER, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; MARK POOLE, MEMBER, WINCHESTER-CLARK COUNTY JOINT PLANNING COMMISSION; A. DWAIN WHEELER; MEMBER, WINCHESTER- LARK COUNTY JOINT PLANNING COMMISSION; THE ALLEN COMPANY APPELLEES

         APPEAL FROM CLARK CIRCUIT COURT HONORABLE WILLIAM G. CLOUSE, JUDGE ACTION NO. 14-CI-00305

          BRIEF AND ORAL ARUGMENT FOR APPELLANTS: W. Henry Grady, IV Dorothy T. Rush Versailles, Kentucky Tom Fitzgerald Frankfort, Kentucky Randal A. Strobo Louisville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE, THE ALLEN COMPANY, INC.: John H. Rompf, Jr. Winchester, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEES, CLARK COUNTY FISCAL COURT; HENRY BRANHAM, JUDGE EXECUTIVE; COMMISSIONERS RICK SMITH, VANESSA OAKS ROGERS, AND JOELLEN REED Thomas R. Neinaber Florence, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.

          OPINION

          JONES, JUDGE:

         JONES, JUDGE: Southwest Clark Neighborhood Association, Inc. ("Southwest") - along with 30 named individuals - appeals the Clark Circuit Court's September 23, 2015, order approving the adoption of the Clark County Fiscal Court's ordinance reclassifying zoning of approximately 165 acres of real property from A-1 (Agricultural) to I-2 (Heavy Industry). After a thorough review of the record, we affirm.

         I. Background

          This zoning saga first began in July of 2013, when Appellee, The Allen Company, Inc. ("Allen"), applied for a zoning map amendment seeking to rezone approximately 103 acres of real property located at 7527 New Boonesboro Road, Clark County, from Agricultural to Heavy Industry in order to operate an open-surface aggregate mine on the land ("Application 103"). Following a due-process type hearing, the Clark County Kentucky Planning and Zoning Commission ("Planning Commission") recommended denying Application 103, as it found the application was not in agreement with the Clark County Comprehensive Plan ("Comprehensive Plan"). The Clark County Fiscal Court ("CCFC"), also an Appellee in this action, heard the matter on October 9, 2013, and officially denied Application 103.[1]

         On November 5, 2013, the Planning Commission adopted the following bylaw:

Any zoning map amendment that has been denied by the Planning Commission will not be reheard within 2 years from the time the Planning Commission has submitted, in writing, its recommendation to the legislative body unless:
1. There has been an update to the Comprehensive Plan, or
2.There have been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.

         ("Article VIII") (emphasis added). This bylaw was enacted under the authorization of KRS[2] 100.213(2), which states: "The planning commission, legislative body, or fiscal court may adopt provisions which prohibit for a period of two (2) years, the reconsideration of a denied map amendment or the consideration of a map amendment identical to a denied map amendment."

         Allen subsequently acquired six tracts of land adjacent to the 103-acre tract. In April of 2014, Allen filed a second application ("Application 165") with the Planning Commission. Application 165 included the 103-acre tract, along with the six newly acquired tracts (collectively, the "Property"), and again sought a zoning map amendment reclassifying the Property from A-1 to I-2. Along with Application 165, Allen submitted an affidavit, and later a substituted affidavit, signed by its secretary, Robert Beam, as well as a proposed development plan (the "Development Plan").[3] The affidavits stated that, if Application 165 was approved, Allen would only use the Property for an underground quarrying operation and other uses associated with underground quarrying. The affidavit further stated that the only surface use Allen would make of the Property would be in accordance with the Development Plan. Potential surface use included, but was not limited to, ventilation, parking, detention facilities, conveyor, utilities, and other safety facilities that the government may impose. In addition to delineating the surface use of the Property, the Development Plan included a rendering of a conveyor belt over the Kentucky River, which Allen intended to use to transport mined limestone from the Property to its active quarry located in neighboring Madison County, Kentucky, for processing and shipment.

         On May 6, 2014, the Planning Commission conducted a five-hour due-process type hearing on Application 165. Counsel for Allen and counsel for those in opposition to Application 165 were both present.[4] At the beginning of the hearing, Rhonda Cromer, Planning Director for the Planning Commission, submitted a Zoning Map Amendment Analysis. Cromer's Analysis noted the differences between Application 103 and Application 165 and found, in part, that: Application 165, with the conditions included in the affidavits, is in agreement with the Comprehensive Plan; the existing zoning classification for the Property is inappropriate; and that Application 165 should be approved.

         During the hearing, any individual who requested to speak was allowed to do so, and all present were given the opportunity to "cross-examine" each individual who spoke. Allen called three witnesses - its Executive Vice President, who is a licensed blaster, and two mining engineers, also experienced with blasting. Five witnesses spoke against the zoning map amendment. These witnesses spoke out about concerns regarding declining property values, effects from the blasting, and the historical significance of the Property and surrounding area. Along with their testimony, the opponents of the amendment presented a PowerPoint presentation and written materials. After the close of the hearing, the Planning Commission voted five-one to recommend denial of the zoning map amendment on the grounds that the proposed amendment did not meet the criteria for approval in the Comprehensive Plan.

         The record of the hearing, along with the Planning Commission's recommendation, was then referred to CCFC for final action on June 17, 2014. The following day, counsel for Allen sent a letter to CCFC Judge Executive, Henry Branham, outlining the applicable law and Allen's legal arguments in support of Application 165. Allen enclosed a proposed ordinance changing the zoning of the Property, an area plat, a copy of the proposed motion adopting the proposed ordinance, and additional copies of the record from the Planning Commission's hearing. In addition to the originals, Allen included 10 copies of the letter and all attached documents in his correspondence; however, Allen did not send a copy of the letter to counsel for those opposing the zone change amendment.

         CCFC did not hold another public hearing, instead choosing to base its decision on the record forwarded to it by the Planning Commission. On June 25, 2014, CCFC gave first reading of an ordinance approving Application 165, entitled Ordinance 2014-11 (the "Ordinance"). At this time, Allen's counsel gave a presentation in support of the zoning amendment. Southwest's counsel was absent from the reading.[5] In lieu of having counsel argue against the adoption of the ordinance, several members of Southwest spoke in opposition.[6] On July 9, 2014, CCFC conducted a second reading of the Ordinance and approved Application 165 with "the binding element that the property will be used as an underground quarry operation, that a conveyor be approved by appropriate governmental agencies and other underground uses associated therewith with the only surface uses as shown on the Development Plan . . . ." In the Ordinance, CCFC found both that the proposed zoning classification was in agreement with the Comprehensive Plan and that the current zoning of the Property was inappropriate and the proposed zoning classification was appropriate.

         In support of its conclusion that the proposed amendment was in agreement with the Comprehensive Plan, CCFC made the following findings of fact:

A. The industrial goals for the Plan . . . are in agreement with the proposed map amendment in that the proposed quarry will meet Goal LU-3 by accommodating a diversification of industrial development, which will assist in providing for a broad and stable economic base while retaining the area's character and meeting the objective of providing services for industrial development, encouraging the development of a diverse range of industries, and providing an industry and product that will meet the community's long-term needs for quarry products.
B. The proposed map amendment is in accord with the principles . . . for industrial development. Based upon an area or county-wide consideration the proposed quarry location is appropriate due to the advantageous characteristics of the property and its proximity to highway access and markets. Near the property are existing similar activities such as a waste water plant, quarry, and power substation. All necessary utilities are available to the site. The applicant is subject to significant regulation from State and Federal governments and has stated and agreed that it will comply with all state and federal requirements.
C. Moreover, at page 47 the Plan specifically recognizes the significance of high quality limestone in the area where the property is located stating that it "is under laid by a thick quality seam of Limestone." Also at page 49 the Plan recognizes that the land near the Southwestern end of the county along the Kentucky River where the subject property is located has the "The McAfee-Salvisa-Ashwood Association of soils" and is "underlain by high-grade limestone" and that "Generally, the soils in this association are not good for cultivation because the soils are droughty." This is further buttressed by the fact that The Allen Company operated a quarry on the site for nearly 30 to 40 years until about 1959.
D. The Plan does not mention a land use for a quarry anywhere in the text or map, but it does not preclude such use . Based upon the above language, the proposed use of the property is in agreement with the goals and land use specifications of the Plan and thus is in agreement with the Plan.

         Additionally, CCFC made the following findings of fact in support of its conclusion that the existing zoning classification for the Property was inappropriate and that the proposed classification is appropriate:

A. The present zoning classification for the property is agricultural. This would allow for agricultural activity as well as residential construction. Based upon present criteria requiring 250 feet of road frontage and at least one acre for the construction of one residence, the property could be divided into 26 lots each with a separate septic tank. Such division would destroy the existing view shed and add potential surface water pollution. [Allen] has placed a binding element or agreement on its application that would restrict its surface activities in a manner that would avoid such surface development, thereby avoiding the destruction of the view shed as well at [sic] the potential water pollution issues.
B. The subject property has unique geological features which make it extremely suitable for limestone quarrying purposes. The subsurface of the property consists of limestone and dolomite stone from the "High Bridge Group." This stone has a high resistance to abrasion and weathering and maintains a high carbonite content with a low silica and alumina content.
C.. . . The High Bridge Group of stone . . . is approximately 570 feet thick. The High Bridge seam typically lies below the surface and is predominately mined underground; however, vertical displacement across the Kentucky River causes the High Bridge Group to be exposed along the valleys of the ...

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