Posted by: Patricia Salkin | July 25, 2017

KY Appeals Court Holds Board of Zoning Adjustment Had a Sufficient Basis for Issuing a Conditional Use Permit for a Quarry

Charles and Penny Deweese applied for a CUP to begin operating a rock quarry on two adjoining properties in Simpson County, Kentucky. After opponents of the rock quarry sought review of board of zoning adjustment’s approval of quarry’s conditional use permit, Plaintiff sought review of board’s later revocation of the permit and brought an action against the county executive and the county planning and zoning commission for inverse condemnation and tortious interference with contracts regarding the revocation of the permit and ordinances approved by other bodies that restricted commercial trucks on a road next to the quarry. The Circuit Court, Simpson County,  decided that the permit was properly issued, decided that the permit was improperly revoked, and dismissed the action against county executive and planning commission.
The court first determined that the Board had a sufficient basis for issuing the CUP.  Here, the local zoning ordinance listed a limestone quarry as an available conditional use for agricultural zones. Additionally, the Board found that the Deweese quarry would serve the public interest by providing jobs in the community while also lowering prices for construction materials. At the hearing, the Board relied on a report filed by Joe Perry, the local planning and zoning administrator, who stated that it would be impossible for Plaintiff to comply with the CUP. However, the CUP only required trucks to exit the quarry by turning west on Ditmore Ford Road, while the ordinances only banned commercial trucks from traveling on Ditmore Ford Road. As such, the ordinances did not prevent the Deweeses from operating the quarry, nor did they restrict all vehicles from using Ditmore Ford Road. Accordingly, the court held that the Board erroneously concluded that the ordinances rendered compliance with the CUP “impossible.”
As for the claims against Jim Henderson and the Planning Commission, the court found that the Planning Commission played no role in the subject matter of this lawsuit. Under the applicable ordinance, it was the Board, rather than the Planning Commission, which heard and decided the CUP. Jim Henderson, as the County Judge/Executive, only oversaw the executive functions of the county government, and did not enact legislation. Accordingly, dismissal of Drakes Creek’s lawsuit was found to be appropriate, and the decisions of the Simpson Circuit Court were affirmed.
Drakes Creek Holding Co LLC v Franklin-Simpson County, 518 SW 3d 174 (KY App. 3/3/2017)


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