Opinion
NO. 2014-CA-000099-MR
06-19-2015
ERFAN ALAMI AND VLADIMERA ALAMI APPELLANTS v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT BOARD OF ADJUSTMENT; AND BARRY STUMBO, JANICE MEYER, THOMAS GLOVER, JAMES GRIGGS, KATHRYN MOORE, NOEL WHITE, AND JOSEPH SMITH, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF ADJUSTMENT APPELLEES
BRIEF FOR APPELLANTS: Derek G. Gordon Lexington, Kentucky Jacob K. Michul Matthew R. Malone Lexington, Kentucky BRIEF FOR APPELLEES: Tracy W. Jones Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 12-CI-05154
OPINION
REVERSING AND REMANDING
BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES. J. LAMBERT, JUDGE: Store owners Erfan and Vladimera Alami have appealed from the Fayette Circuit Court's order affirming the determination of the Lexington-Fayette Urban County Government (LFUCG) Board of Adjustment (the Board) that the Alamis' use of a drive-up window was an impermissible enlargement or expansion of the legal nonconforming use of their property. We reverse this decision as arbitrary.
The Alamis are the owners and operators of the Subcity Market in Lexington, Kentucky, located on the corner of East 7th Street and Shropshire Avenue at 500 East 7th Street. The Alamis have operated the store since 2002, where they sell groceries as well as beer and other alcoholic beverages. In 2012, Erfan purchased the building where the store is located at 500-502 East 7th Street from Thuan Van Phan and Canh Thi Phan. In 2009, Erfan had previously purchased two tracts of residential property from Patrick and Toya Wright, one at 508 East 7th Street and the second at 512 East 7th Street. Although the area is zoned R-3, the Alamis have been operating the retail store as a legal nonconforming use. In the past, the same property had been used as a refinishing shop, a grocery store, and a restaurant. Board minutes from 1963 establish that a building on the property had housed a restaurant prior to 1963.
When the Alamis began operating the store, customers could come into the store or use a walk-up or drive-up window on the west side of the building to purchase items. As a result of an attempted armed robbery in 2006, the Alamis began making all sales through the window and did not permit customers to enter the store. However, they began to use the window on the east side of the building rather than the one on the west side due to concerns about traffic congestion and accessibility to the window on the west side.
In 2012, the Alamis sought permission from the Board to continue to operate a drive-through window. The Board entered its refusal on June 19, 2012, reasoning that the use of the drive-through window constituted the expansion of a nonconforming use and had been established without a permit. The Alamis filed an appeal, stating:
In 2009, the Alamis first asked for approval to continue using the drive-through window, which the Board determined to be an expansion of the nonconforming use at that time. After the disapproval, the Alamis continued to operate the drive-through window, which led to several criminal, civil, and administrative actions. In 2011, the Board sought an injunction to stop the Alamis from using the drive-through window. The court entered a permanent injunction in 2012 disallowing the use of the window, noting that the Alamis had not appealed the Board's decision to not allow them to continue to use the drive-through window. Therefore, the court did not have the authority to review the Board's decision. In a later order, the circuit court permitted the window to be reopened and used for walk-up traffic only.
The building has an existing drive-thru window. The permit was signed and we have been operating this drive-thru for almost five years. The drive-thru was there before the inspection & approval of my business. There was an attempted robbery in which the robber was shot & killed. Since that incident I only operate my business through the window as I do not want anything like that to happen again.The Board referred the matter to the Division of Planning and scheduled a public hearing for later that year.
The administrative record contains a copy of the Board's Staff Case Report dated August 17, 2012. The case review portion includes details about the prior uses of the property as well as the inconclusive investigation into when the sliding glass window had been installed. The staff report recommended disapproval of the Alamis' application, citing three reasons:
a. Establishing a retail drive-through service at this location, in a Planned Neighborhood Residential (R-3) zone, represents an expansion of a non-conforming use in both scope and area of operation, which is not permitted pursuant to Article 4-3(a) of the Zoning Ordinance.
b. Establishing the drive-through window service required an alteration to the exterior of the building, and additional land to be used outside of the building (for the gravel drive), neither of which is permitted pursuant to Article 4-3(e) and 4-3(g) of the Zoning Ordinance.
c. A drive-through service along the east side of the building has great potential to adversely impact the adjoining residential use, which could negatively impact the existing or future development/redevelopment of that property. Such an outcome would be contrary to the provisions of Article 7-6(e) of the Zoning Ordinance.
The Board heard the Alamis' appeal at its October 26, 2012, meeting, and the minutes from that meeting set forth in detail the discussion surrounding the request. The Alamis, represented by counsel, argued that drive-through sales were not an enlargement or expansion of the nonconforming use, and noted that the areas outside of the building had always been available for vehicles and walk-up customers. Furthermore, the nature of the use of the building had not changed; since 1983, the building had been used for retail sales and customers had always used all areas outside of the building. There had also been no structural or physical change to the building. Traffic Engineer Jim Gallimore presented information about how a drive-through facility changes traffic patterns, and he recommended improvements to the property if the application were to be approved. With one board member abstaining, the Board unanimously denied the Alamis' administrative review and disallowed further drive-through sales for the reasons recommended by the staff.
While the Alamis cite to the video record of the Board meeting, that recording has not been included with the administrative record or the certified record on appeal, nor has a transcript of the board meeting been included in either record. --------
The Alamis filed an appeal to the circuit court pursuant to Kentucky Revised Statutes (KRS) 100.347(1) against the Board and the Board members in their official capacities seeking review of the Board's decision, asserting that this decision was arbitrary, capricious, in excess of its authority, and invalid as a matter of law. They contended that the only issue before the Board was whether use of the drive-through window on the east side of the building enlarged or extended the existing legal nonconforming use, but it did not have authority to decide or consider any other issue. In conjunction with this argument, the Alamis asserted that there was no substantial evidence to support the Board's finding that this constituted an enlargement or expansion of the nonconforming use and that it therefore had no authority or discretion to make a contrary ruling. They argued that the drive-through sales on the east side of the building were a substitute to walk-in sales and drive-through sales from another window on the west side of the building.
The parties filed briefs setting forth their respective positions, and the circuit court held a hearing on October 22, 2013. The court indicated that the Board appeared to express concern about danger created by the pedestrian traffic and vehicular traffic at the same time, with both cars and people walking up to the window. The Board pointed out that the drive-through had not come to the attention of the Division of Building Inspections until 2006 when the complaint was filed. The Board went on to argue that the drive-through constituted an expansion of the legal nonconforming use of the property. However, the Board indicated that it was not disputing the Alamis' right to continue to use the window for walk-up customers. The court found that the use of the window for drive-through sales constituted an impermissible expansion of the legal nonconforming use, citing the impact on the neighborhood.
On December 23, 2013, the circuit court entered an order affirming the Board's decision. Based upon its review of the record, the court did not find that the Board's decision was arbitrary and found that the drive-through was an enlargement of the nonconforming use as a matter of law. In support of this decision, the court stated as follows:
4. Grocery stores typically do not have drive-throughs. When the legal nonconforming use was granted, it was granted with the front door of the store being open and sales being made directly to customers. That was the use at the time.The court ultimately held that the use of the drive-through on the east side was an expansion of the legal nonconforming use, but permitted the Alamis to continue to operate the store using the window for walk-up sales. This appeal now follows.
5. Adding a drive-through, particularly when the front door is shut, changes the actual use of the store. In a typical grocery store situation patrons come in the front
door. The patrons walk around the store and they select their goods and then they go up to the counter and they pay for those goods. In a drive-up or drive-through, the consumer stays in the car. The consumer then has to tell the person behind the window the products that the customer wants, and that person then goes and gets the products while the customer stays in the car. The cars behind that first customer back up and there might be five cars in line waiting while all five of those people in the cars, if there is one person per car, could have been inside the store getting their goods if the front door was open. There is a big difference between five people inside the store, all shopping for their goods, and five cars lined up outside a window waiting to be waited on.
6. That is an expansion of the use because, particularly if there is only one person working at the window, it is far easier, quicker, and less impact on the outside surrounding neighborhood if the customers parked in a parking space, got out, and walked in the store as opposed to lining up at the window. On a busy day such as Super Bowl Sunday, the line is likely to be even longer. Looking at it from this perspective, one would have to conclude that the drive-through is an expansion of the use because the customers are not getting out of their vehicles and going inside the store to make purchases. They are waiting in line and as a matter of law that is an expansion of the nonconforming use that the Board had in mind when it originally granted the legal nonconforming use to begin with as a grocery store.
7. It would be different if the front door was still open to customers because if customers had the option to use the door or the window then having that option would eliminate the fear that nobody would get out of their car because some people might park and go inside, especially if there is a long line at the drive-through. But that option does not exist at Appellants' store so the traffic just keeps backing up because there is no other option. By closing the front door and removing the option of going inside takes the drive-through out of being an accessory use or makes it an expansion when that original nonconforming use has been eliminated. The
Court believes that this was part of the Board's concern when it made that decision that is now under review.
On appeal, the Alamis continue to argue that the drive-through window on the east side had always been part of the store and/or was within the scope or did not enlarge the nonconforming use, that the Board misconstrued and misapplied the law and the facts, that the Board exceeded its authority, and that the Board's decision was not supported by substantial evidence. The Board contends that the decision should be upheld.
Our standard of review in administrative appeals is well-settled in the Commonwealth:
Judicial review of an administrative decision is concerned with whether the action of the agency was arbitrary. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964). Three grounds exist for finding that an agency's decision was arbitrary: (1) the agency acted in excess of its statutory powers, (2) the agency did not afford procedural due process, and (3) the agency's decision was not supported by substantial evidence. Id.Baesler v. Lexington-Fayette Urban Cnty. Gov't, 237 S.W.3d 209, 212 (Ky. App. 2007). "If [a] decision is erroneous as a matter of law, it is inherently arbitrary." Bd. of Adjustments, Bourbon Cnty. v. Brown, 969 S.W.2d 214, 216 (Ky. App. 1998). "[T]his Court is authorized to review issues of law on a de novo basis." Alliance for Kentucky's Future, Inc. v. Envtl. & Pub. Prot. Cabinet, 310 S.W.3d 681, 686 (Ky. App. 2008), as modified (May 8, 2009), citing Mill Street Church of Christ v. Hogan, 785 S.W.2d 263, 266 (Ky. App. 1990). "[A]n erroneous interpretation or application of the law is reviewable by the court which is not bound by an erroneous administrative interpretation no matter how long standing such an interpretation." Camera Ctr., Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000). Whether changes constitute an enlargement or extension of a nonconforming use is a question of law. Brown, 969 S.W.2d at 216. As the Alamis assert in their brief, in this particular case, our review is de novo because it concerns the Board's and the circuit court's application of the relevant statutes and articles of the Zoning Ordinance.
First we shall set forth the relevant statutory provisions and articles of LFUCG's Zoning Ordinance. KRS 100.253 provides for the continuance of or change to an existing nonconforming use:
(1) The 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, except as otherwise provided herein.LFUCG provided for nonconforming uses in Article 4 of the Zoning Ordinance. Article 4-1(a) defines nonconforming uses as:
(2) The board of adjustment shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification, provided, however, the board of adjustment may grant approval, effective to maintain
nonconforming-use status, for enlargements or extensions, made or to be made, of the facilities of a nonconforming use, where the use consists of the presenting of a major public attraction or attractions, such as a sports event or events, which has been presented at the same site over such period of years and has such attributes and public acceptance as to have attained international prestige and to have achieved the status of a public tradition, contributing substantially to the economy of the community and state, of which prestige and status the site is an essential element, and where the enlargement or extension was or is designed to maintain the prestige and status by meeting the increasing demands of participants and patrons.
Uses of land or structures that were lawful prior to the adopted or amendment of this Zoning Ordinance but would be prohibited, regulated or restricted under this Zoning Ordinance in the zone in which they are located. Included in this definition are uses that would be otherwise permitted in the zone by this Zoning Ordinance, but do not meet the requirements associated with such uses, e.g., parking, open space, and the like.Article 4-3 addresses the continuation of a nonconforming use, and it provides, in relevant part, as follows:
A non-conforming use shall be permitted to continue as long as it remains otherwise lawful and shall be regulated as follows:Article 7-6(d) provides for review of a decision of the Division of Planning by the Board:
(a) No non-conforming use shall be enlarged or extended; nor may the building it occupies be enlarged, extended or rebuilt so as to occupy a greater area of land than was occupied at the date of the adoption or amendment of this Zoning Ordinance. In addition, it may not be altered in any way that would extend or enlarge either the scope or the area of its operation.
. . . .
(e) Any non-conforming use may be changed to another non-conforming use by appeal to the Board of Adjustment under Article 7, Section 6(c), provided the proposed use is in the same or a more restrictive classification than the previous use. If the use is located in a building, no structural changes may be made to the exterior of the building.
. . . .
(g) Any non-conforming use may be extended throughout any parts of a building that were arranged or designed for such use at the date of the adoption or amendment of this Zoning Ordinance, but in no instance shall a non-conforming use be extended to displace a conforming use nor to occupy land outside such building.
The Board of Adjustment shall have the power to hear and decide cases where it is alleged by an applicant that there is an error in any order, requirements, decision, grant, or refusal made by the . . . Division of Planning or the Division of Building Inspection in the enforcement of this Zoning Ordinance. Appeals under this section must be taken within thirty (30) days of the date of official action by the Division of Planning.With these provisions in mind, we shall consider the issues the Alamis raise in their appeal.
The Alamis' first argument addresses whether the drive-through on the east side of the building enlarged or extended their nonconforming use of the building. They contend that the use of the drive-through did not change the original nature and purpose of the nonconforming use, which was a neighborhood grocery store. Furthermore, they contend that the drive-through window and drive aisle already existed.
"A nonconforming-use is one legally in existence prior to the adoption of a zoning regulation under which it is prohibited. The right to continue such uses by the property owner free from government intervention is based in constitutional law and enjoys broad constitutional protection." Greater Harrodsburg/Mercer Cnty. Planning & Zoning Comm'n v. Romero, 250 S.W.3d 355, 359 (Ky. App. 2008), citing Dempsey v. Newport Board of Adjustments, 941 S.W.2d 483 (Ky. App. 1997). The Romero Court went on to explain that:
Although afforded protection, a nonconforming-use, by nature, is not necessarily favored by the community as reflected in the subsequent adoption of zoning regulations prohibiting such use. As a result, the courts seek a proper balance between the welfare of the public and the rights of the individual property owner. Perkins v. Joint City-Council Planning Commission, 480 S.W.2d 166 (Ky. 1972).Romero, 250 S.W.3d at 359. After noting that the Board did not seek to limit the use of the property until "after neighbors became disgruntled in this otherwise residential area," the Court pointed out that "[t]he courts have historically cautioned against such reactive local legislation." Id. at 360. The Brown Court, in holding that the enclosure of a front porch to add a bathroom and the increase in weekly auctions did not constitute an enlargement of the nonconforming use, relied upon the holding in A.L. Carrithers & Son v. City of Louisville, 63 S.W.2d 493, 497 (Ky. 1993):
To balance those interests, the courts will not invoke the nonconforming-use doctrine when the use of the property has transformed the inherent nature of the pre-existing primary use. The resolution of what constitutes an existing use is defined on a case-by-case basis. Perkins, 480 S.W.2d at 167.
The extending the walls of the building so as to enclose space for the relocating the can-washing and by-products rooms is not a vital and substantial change of the building in its characteristic or of the fundamental purpose of its creation, nor is it a change of such a nature as materially affects the realty itself, or its use, or the health, morals, or general welfare of the zoned district. (citations omitted) . . . "Structural alterations" intended to be prohibited by the zoning ordinance are the changing an old building in such a way as to convert it into a new or substantially different structure.Brown, 969 S.W.2d at 216.
In the present case, the Board and the circuit court were required to determine whether the use of a drive-through window on the east side of the building constituted an enlargement or extension of the nonconforming use as a grocery and retail establishment. The Board minutes reflected the members' various views related to the use of the drive-through.
Mr. Griggs commented about the Board's consideration of a number of administrative appeals for changes in nonconforming uses over the years. However, he felt that closing the front door of the store and opening the drive-through window was "a wash" in this particular instance. He said if this was all the case was about; he would not think it was an enlargement of a nonconforming use. . . .Other Board members expressed their view as follows:
Mr. Griggs asked whether it would be precedent setting to allow the drive-through window. Mr. Marx [of Zoning
Enforcement] said the Board would have to look carefully at the dynamics of a drive-through store versus a store without that provision, with respect to noise disturbance, public safety, impact on the neighborhood, etc. He said this is an R-3 zone totally surrounded by a neighborhood, noting the practical implications of legalizing the drive-through window.
Vice-Chair Moore related her understanding about the purpose of limiting the expansion of a nonconforming use so that it eventually ceases to exist.Board member Stumbo said "he was unable to support having a drive-through window there because it is an unsafe situation; it is not properly zoned; and there is not enough room for it. He said he wished Mr. Alami the very best; however, his vote would be the same as it was in 2009." Board member Glover, who abstained from the final vote, stated:
. . . .
Ms. Meyer asked about the staff's recommendations. She commented that this property is in an R-3 zone; it is a nonconforming use; and it is contrary to the Zoning Ordinance. For those reasons, she said she was unable to support this request.
Mr. Glover commented with respect to the three reasons for disapproval recommended by the staff. He said the question is not whether this is a nonconforming use, but rather whether a drive-through window is an expansion of the use. He said it appeared that the exterior of the building has a window in it or had one to begin with. Therefore, he was uncertain that having a drive-through window required the alteration of the exterior of the building. He said whether the drive-through window could negatively impact the adjoining residential use was a prediction of the future use of the property; and thatHe went on to comment "that the driveway from the back of the property to the front that allows ingress/egress from the Seventh Street side of the building was there previously, so he was uncertain whether there was increased traffic by having to stop at the window under discussion. He said, at this point, he was more persuaded by the applicant's argument than the staff's."
Mr. Alami had purchased the property next door and across the street and potentially would be the developer. Mr. Glover asked the staff to further their argument because he was not entirely convinced that the nonconforming use was expanded.
The circuit court considered traffic issues, its belief that "[g]rocery stores typically do not have drive-throughs[,]" and that customers were no longer going inside of the store to purchase items but were rather not getting out of their vehicles.
Based upon our review of this case and the applicable authorities, we must agree with the Alamis that, as a matter of law, the use of the existing drive-through on the east side of the building did not expand or enlarge the non-conforming use. The use of the property remained the same throughout the time the Alamis ran the store and owned the property. The fundamental purpose of the establishment did not change; it remained a neighborhood retail store where customers could purchase groceries and alcohol. The use of the drive-through window, rather than permitting customers to enter the store to make their purchases, does not work to change the fundamental purpose of the property or the scope of its operation. It merely changes the method of completing the transaction. Any discussion of traffic issues or that the store was being operated as a legal non-conforming use are irrelevant to whether the use of the drive-through constituted an expansion of the nonconforming use. There is no evidence to establish that the store was being used any differently than it had been for several years; it at all times remained a retail establishment. As the Alamis stated in their brief, "the drive-through sales in this case do not enlarge the Owners' building, add additional facilities, increase their capacity or volume, or change their customer base. And the drive-through does not increase or change the number, variety, or type of products sold at the store." Article 4-3 provides that "[a] non-conforming use shall be permitted to continue as long as it remains otherwise lawful" and is not enlarged or expanded, which is not the case here. Therefore, we must hold that the Board was arbitrary in its denial of the Alamis' petition and that the circuit court erred as a matter of law in upholding that decision.
Based upon this holding, we need not address the remainder of the Alamis' arguments.
For the foregoing reasons, the judgment of the Fayette Circuit Court is reversed, and this matter is remanded to the Lexington-Fayette Urban County Government Board of Adjustment for further proceedings in accordance with this opinion.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
KRAMER, JUDGE, DISSENTS. BRIEF FOR APPELLANTS: Derek G. Gordon
Lexington, Kentucky
Jacob K. Michul
Matthew R. Malone
Lexington, Kentucky
BRIEF FOR APPELLEES: Tracy W. Jones
Lexington, Kentucky