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Drakes Creek Holding Co. v. Franklin-Simpson County Board of Zoning Adjustment

Court of Appeals of Kentucky

March 31, 2017

DRAKES CREEK HOLDING CO., LLC APPELLANTS
v.
FRANKLIN-SIMPSON COUNTY BOARD OF ZONING ADJUSTMENT; AND FRANKLIN-SIMPSON COUNTY PLANNING & ZONING COMMISSION, AND JIM HENDERSON INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS JUDGE/EXECUTIVE OF SIMPSON COUNTY, KENTUCKYAPPELLEES AND FRANKLIN-SIMPSON COUNTY BOARD OF ADJUSTMENT, A/K/A FRANKLIN-SIMPSON COUNTY BOARD OF ZONING ADJUSTMENT; JOE PERRYAPPELLANTS v.

         APPEAL FROM SIMPSON CIRCUIT COURT HONORABLE TYLER L. GILL, SPECIAL JUDGE ACTION NOS. 14-CI-00337, 14-CI-00258, 12-CI-00086

          BRIEF FOR DRAKES CREEK HOLDING CO., LLC: Stephen K. Heard Nashville, Tennessee Adam O. Knight Brentwood, Tennessee

          AT ORAL ARGUMENT FOR DRAKES CREEK HOLDING CO., LLC: Adam O. Knight Brentwood, Tennessee

          BRIEF FOR FRANKLIN/SIMPSON COUNTY BOARD OF ADJUSTMENT AND JOE PERRY, IN HIS OFFICIAL CAPACITY AND AT ORAL: Aaron D. Smith Bowling Green, Kentucky John T. Soyars Hopkinsville, Kentucky

          AT ORAL ARGUMENT FOR PLANNING AND ZONING COMMISSION AND SIMPSON COUNTY JUDGE EXECUTIVE HENDERSON: Sarah Payne-Jarboe Bowling Green, Kentucky

          BRIEF FOR CHARLES DEWEESE, ET AL: Buckner Hinkle, Jr. Lexington, Kentucky Margaret Ruth Grant Louisville, Kentucky Bethany A. Breetz Timothy D. Crocker Franklin, Kentucky

          ALSO APPEARED AT ORAL ARGUMENT FOR CHARLES DEWEESE, ET AL: Steven Henderson Louisville, Kentucky

          BRIEF FOR DAVID CARVER; ALSO APPEARED AT ORAL ARGUMENT: Tim Mefford Franklin, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

          OPINION

          LAMBERT, D., JUDGE

         This consolidated opinion resolves several disputes arising from the grant and subsequent revocation of a conditional use permit (CUP) by the Franklin-Simpson County Board of Zoning Adjustment (the Board). After review, we find no reversible error and affirm the Simpson Circuit Court.

         I. BACKGROUND

         In February 2012, Charles and Penny Deweese applied for a CUP to begin operating a rock quarry on two adjoining properties in Simpson County, Kentucky. The properties belonged to the Deweeses and comprised 87 agriculturally zoned acres. At the time, the properties were only accessible via Ditmore Ford Road, a narrow county road. The Deweeses included detailed maps in their application. The maps described the quarry's location within the properties' boundaries.

         The Board considered the Deweeses' application during a public hearing on February 28, 2012. The hearing itself lasted more than six-hours, and nearly 400 people attended. Among those in the crowd were a group of neighboring landowners (the Carvers) who opposed the CUP. In particular, the Carvers were concerned about prospective traffic on Ditmore Ford Road. When given the opportunity to speak at the hearing, the Carvers presented evidence that Ditmore Ford Road would require certain improvements to accommodate large commercial trucks traveling to and from the quarry. The Carvers, through counsel, also cross-examined a Deweese representative. In their case in chief, the Carvers offered evidence that an unimproved Ditmore Ford Road was too narrow for large commercial trucks to negotiate and unsafe for motorists at one ...


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