SANDY POWER JANE THOMAS JOSEPH HUFF PATRICIA HUFF SHEILA MATTOX AND HARLAN POWER APPELLANTS v. CYNTHIANA HARRISON COUNTY BERRY BOARD OF ADJUSTMENTS MEMBERS KAREN BEAR CHAIRWOMAN DON JOHNSON STEVE EADS JAMES PAUL SWITZER DAVID LAWLER NED TAWASHA AND TAWASHA INC APPELLEES

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Court of Appeals of Kentucky.

SANDY POWER, JANE THOMAS, JOSEPH HUFF, PATRICIA HUFF, SHEILA MATTOX, AND HARLAN POWER APPELLANTS v. CYNTHIANA–HARRISON COUNTY- BERRY BOARD OF ADJUSTMENTS MEMBERS:  KAREN BEAR-CHAIRWOMAN, DON JOHNSON, STEVE EADS, JAMES PAUL SWITZER, DAVID LAWLER (in their capacity as members);  NED TAWASHA AND TAWASHA, INC. APPELLEES

NO. 2011–CA–000471–MR

Decided: March 30, 2012

BEFORE:  acree, moore and vanmeter, JUDGES. BRIEFS FOR APPELLANTS:  W. Henry Graddy, IV Randal A. Strobo Versailles, Kentucky BRIEF FOR APPELLEES BOARD OF ADJUSTMENTS:  Charles M. Perkins Georgetown, Kentucky BRIEF FOR APPELLEES TAWASHA, INC., AND NED TAWASHA:  Rochelle E. Boland Cynthiana, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Sandy Power, Jane Thomas, Joseph Huff, Patricia Huff, Sheila Mattox, and Harlan Power (hereinafter collectively referred to as “Appellants”) appeal from the February 11, 2011, order of the Harrison Circuit Court which dismissed their appeal and complaint for declaration of rights filed against the Cynthiana–Harrison County–Berry Board of Adjustments members (Karen Bear, Don Johnson, Steve Eads, James Paul Switzer, David Lawler, in their capacity as members), Tawasha, Inc., and Ned Tawasha (hereinafter collectively referred to as “Appellees”).   For the following reasons, we affirm.

The underlying action arose from proceedings before the Board of Adjustment (“Board”) concerning the development of a certain piece of property located in Harrison County.   In 2005, the Board granted Tawasha a conditional use permit for a convenience store and gas station on the property and the Planning Commission subsequently approved Tawasha's proposed site development plan.   On appeal, this court affirmed in part and vacated in part, and remanded the case, ordering that Tawasha may seek to obtain a conditional use permit for the operation of his proposed deli, and may seek to obtain a variance for his lot's width to conform to the zoning ordinances in place at that time.  Thomas v. Cynthiana–Harrison County–Berry Joint Planning Comm'n, 2008 WL 4601243 (Ky.App.2008).   On remand, the Harrison Circuit Court ordered accordingly.

However, while the appeal was pending, the Cynthiana–Harrison County–Berry Joint Planning Commission adopted new zoning regulations which made a deli a principal permitted use and no longer required minimum lot widths.   As a result, this court's directions on remand became moot.

In May 2010, Tawasha filed an application for a conditional use permit seeking clarification from the Board regarding the status of his conditional use permit granted in 2005.   In an accompanying letter, counsel for Tawasha set forth the procedural history of the case, including the relevant zoning changes, and requested that the Board “reapprove” the conditional use permit granted in 2005, and acknowledge that Tawasha is no longer required to obtain a conditional use permit for the deli or a variance in the lot's width because of the changes to the zoning ordinances.   Since no specific application exists to address this situation, Tawasha submitted his request for “reapproval” as an application for a conditional use permit.

At a hearing before the Board on July 13, 2010, Appellants presented arguments opposing the issuance of a new permit to Tawasha;  however, the Board declined to treat his application as one for a new permit and instead assessed whether sufficient evidence existed to merit a revocation hearing.   The Board ultimately determined that insufficient evidence existed on which to conduct a revocation hearing of Tawasha's existing permit.   An appeal to the Harrison Circuit Court followed.

Before the circuit court, Appellants argued that (1) they were denied due process of law because they were not given a full opportunity to speak at the Board hearing, (2) the Board acted contrary to section 9.15 of the zoning ordinance by not requiring Tawasha to meet the required burden of proof, and (3) they should be issued a declaration of rights that Tawasha's business shall be located in a Highway Commercial Zone (“HCZ”) instead of a Rural Residential District (“RRD”).  In response, Appellees filed a motion to dismiss Appellants' complaint pursuant to CR  Double 12.02(a) and (f) for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.   The circuit court granted Appellees' motion to dismiss and this appeal followed.

When a party files a motion to dismiss for failure to state a claim upon which relief may be granted it

“admits as true the material facts of the complaint.” So a court should not grant such a motion “unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved․” % rAccordingly, “the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true.”   This exacting standard of review eliminates any need by the trial court to make findings of fact;  “rather, the question is purely a matter of law.   Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?” Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination;  instead, an appellate court reviews the issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky.2010) (internal citations omitted).

Even taking the allegations in Appellants' complaint as true, they could not have prevailed under any circumstance and the circuit court did not err by dismissing their complaint.   With respect to Appellants' due process claim, the court found this claim to be meritless since the Board did not treat Tawasha's request for “reapproval” as an application for a new permit.   We agree.

In Kaelin v. City of Louisville, 643 S.W.2d 590 (Ky.1982), the Kentucky Supreme Court discussed procedures affording due process before an administrative body such as the Board as follows:

Basically, judicial review of administrative action is concerned with the question of arbitrariness.  Section 2 of the Kentucky Constitution prohibits the exercise of arbitrary power over the “lives, liberty and property” of the citizens of the Commonwealth.   In the interest of fairness and in order to comply with the mandate of Section 2, a party whose rights are affected by an administrative action is entitled to procedural due process.   Moreover, administrative proceedings which affect a party's rights but do not afford an opportunity to be heard could likewise be classified as arbitrary.  American Beauty Homes Corp. v. Louisville, Ky., 379 S.W.2d 450 (1964).

A constitutional due process requires a trial type hearing for the purpose of determining the adjudicative facts necessary to decide the issue.  City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).   Procedural due process is required in proceedings before a zoning board.  Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753 (1969).   The requisite procedural elements are a hearing, the taking and weighing of evidence, a finding of fact based upon an evaluation of the evidence and conclusions supported by substantial evidence.  McDonald, supra, at 177.   Proceedings before a Board of Zoning Adjustment were held to be a denial of procedural due process where there was no real hearing, no taking of evidence and no finding of fact.  Morris, supra.   A trial-type hearing is automatically required for disputes of adjudicative facts (as opposed to legislative facts ).

Kaelin, 643 S.W.2d at 591.

Appellants argue that they should have been afforded due process protection before the Board acted under KRS  Double 100.237 to (1) grant or deny a new permit and/or (2) revoke an existing permit.   Although a hearing conducted for the purpose of granting or denying a zone change has been held to be of an adjudicatory nature, thereby mandating a “trial type of hearing for the purpose of determining the adjudicative facts necessary to decide the issue[,]” in the present case, the record shows that the Board did not grant or deny a new permit, or revoke an existing permit, but merely determined that a revocation hearing was not warranted based on the evidence and that the existing permit shall stand as approved.  McDonald, 470 S.W.2d at 177.   We further note that Appellants were afforded the opportunity to present arguments in support of revoking Tawasha's permit at the July 13, 2010, hearing.   Thus, under these circumstances, we fail to appreciate how Appellants' due process rights were violated.

Next, Appellants argue that the Board acted contrary to section 9.15 of the zoning ordinance, which was enacted after Tawasha's permit was approved in 2005, and which requires an applicant for a new permit to show beyond a reasonable doubt that the proposed use of the permit at the particular location is necessary or desirable and will not be detrimental.   The court determined that the “beyond a reasonable doubt” showing under section 9.15 did not apply to Tawasha since he was not seeking a new permit.   Appellants argue that the Board arbitrarily applied the zoning ordinances enacted after Tawasha's permit was approved in 2005 by applying the changes that work in his favor (he need no longer seek a conditional use permit for the deli or a variance for the lot's width) and by ignoring the ones that do not (proof beyond a reasonable doubt requirement).   Yet, Kentucky authority suggests that the enactment of new ordinances does not retroactively affect existing permits.   Indeed, KRS 100.253(1) provides that “[t]he lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it, may be continued, although such use does not conform to the provisions of such regulations[.]”  This statute recognizes Tawasha's right to continue the legal use of the property despite any subsequent amendments to land use regulations.   In addition, according to current regulations, Tawasha's permit as issued in 2005 is compliant, e.g., the former requirements of minimum lot width and a conditional use permit for the deli are no longer mandatory.

Appellants also moved the circuit court to issue a declaration of rights that Tawasha's business shall be located in an HCZ instead of an RRD. But because Appellants failed timely to appeal approval of the permit, the court found that they were barred from raising any issues relating to its approval now.   Therefore, the court ruled that the zoning for Tawasha's permit remains effective as approved in 2005.

Additionally, the court found that the Board's “vote” at the July 13, 2010, hearing did not constitute a “final action” for purposes of KRS 100.347(5), which requires a vote “to approve or disapprove the matter pending before the body” before an appeal of the Board's decision may be taken to the circuit court.   Given that the Board did not grant, deny or revoke a permit, the court held that its “vote” not to pursue revocation could not be construed as a “final action.”   And even if it could, the court observed that none of the issues appealed relate to revocation of the previously issued permit.   We agree with the court that Appellants are precluded from seeking a declaration of rights as to the zoning of Tawasha's permit since they failed timely to appeal approval of the permit in 2005, and that any issues relating to revocation were not properly before the circuit court and are not subject to judicial review.   As a result, the circuit court did not err by granting Appellees' motion to dismiss.

The order of the Harrison Circuit Court is affirmed.

ALL CONCUR.

VANMETER, JUDGE: