Opinion
NO. 2018-CA-000991-DG NO. 2018-CA-001454-DG
02-07-2020
David HENGEHOLD and Julie Hengehold, Appellants v. CITY OF FLORENCE, Kentucky ; and City of Florence Code Enforcement Board, Appellees City of Florence, Kentucky ; and City of Florence Code Enforcement Board, Cross-Appellants v. David Hengehold and Julie Hengehold, Cross-Appellees
BRIEFS AND ORAL ARGUMENT FOR APPELLANTS/CROSS-APPELLEES: William L. Purtell, Cincinnati, Ohio. BRIEF AND ORAL ARGUMENT FOR APPELLEES/CROSS-APPELLANTS: Thomas R. Neinaber, Florence, Kentucky.
BRIEFS AND ORAL ARGUMENT FOR APPELLANTS/CROSS-APPELLEES: William L. Purtell, Cincinnati, Ohio.
BRIEF AND ORAL ARGUMENT FOR APPELLEES/CROSS-APPELLANTS: Thomas R. Neinaber, Florence, Kentucky.
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
OPINION
MAZE, JUDGE:
This Court granted motions for discretionary review by David and Julie Hengehold (collectively, "the Hengeholds") and the City of Florence, Kentucky ("the City") and the Code Enforcement Board of the City of Florence, Kentucky ("the Board"). The parties seek review of an opinion and order by the Boone Circuit Court which affirmed a judgment by the Boone District Court. In turn, the district court upheld the Board’s finding that the Hengeholds were in violation of applicable zoning ordinances by keeping chickens on their property.
In the cross-motion for discretionary review, the City and the Board contend that the district court erred by failing to dismiss the Hengeholds’ complaint, since they did not name the Board as a separate party within the time allowed. We find no error because the statute does not require the Board to be named and the Board is functioning as an enforcement agency of the City, which was properly named. In the Hengeholds’ motion for discretionary review, we conclude that the lower courts erred in finding that the applicable zoning regulations prohibit the keeping of chickens as a permitted accessory use. We further find that there are factual issues as to whether the structures used by the chickens are prohibited or would qualify as non-conforming uses. Hence, we affirm the circuit court’s judgment on the cross-motion for discretionary review, but we reverse the judgment on the direct motion and remand for additional findings of fact, conclusions of law and entry of a new judgment consistent with this opinion.
I. Facts and Procedural History
The underlying facts of this action are not in dispute. The Hengeholds are residents of the City of Florence and are the owners of a two-acre tract located at 8545 Imperial Court. The property is a single-family residence located in a Suburban Residential-One ("SR-1") district. They occupy the property with their children as a primary residence.
In 2011, the Hengeholds began raising chickens as a school project for the children. The chickens are allowed to roam freely in the backyard of the property. There is also a wire enclosure which allows the chickens to move freely and out of danger from predators. The chickens also have access to a small greenhouse building at the rear of the property.
On April 4, 2017, Code Enforcement Officer Dale Jesensky issued a notice of violation for possession of livestock. In his notice, Jesensky stated that he had observed chickens in the Hengeholds’ rear yard and that this condition was not allowed within the SR-1 district. The notice further directed the Hengeholds to remove the chickens within five days after receipt of the letter.
The Hengeholds challenged the citation, arguing that the chickens were permitted under Section 932(1)(f) of the Boone County Zoning Regulations, which permits "[t]he keeping of pets and animals." The Hengeholds asserted that they kept the chickens as pets with no intent for profit and no use of the chickens for meat.
The matter proceeded to a hearing before the Board on June 7, 2017. The City introduced the testimony of Jesensky and Kevin Wall, the City’s zoning administrator. Wall testified that the Code was amended in 2014 specifically identifying zones where "chicken coops" were allowed as an accessory use within certain districts, but not within the SR-1 district within the City limits. Prior to 2014, the Code did not refer to chickens or chicken coops. Wall further testified that the Code is interpreted as "inclusive" in nature, meaning that any use not explicitly permitted within a district is deemed as not permitted. Wall also stated that any structure in which chickens reside would be considered a "coop" under the current version of the Code. Both Jesensky and Wall stated the City’s position that chickens could never be considered as "pets" under the Code and were not permitted within the City or the SR-1 district.
Julie Hengehold testified that the family had kept the chickens since 2011. She stated that the family consulted two attorneys at that time to determine whether chickens were permitted. Both attorneys advised the Hengeholds that chickens were acceptable domestic animals under the City’s Animal-Control ordinance. Julie Hengehold further stated that the chickens are non-commercial varieties which are not suitable for meat or egg production. However, the family eats some of the eggs produced.
Julie Hengehold further testified the family treated the chickens as pets and they never heard any complaints from neighbors. Julie testified that they erected a wire enclosure over part of the yard to protect the chickens from hawks. The chickens have free access to the greenhouse. But otherwise, the chickens have free access to the backyard and to enter the house by means of a cat door.
Julie Hengehold added that they take the chickens to the veterinarian whenever any of them got sick. She further stated that the family currently had forty-eight chickens, but they kept more in the past. The Hengeholds also introduced the testimony of several neighbors, who stated that the chickens were well cared-for and never caused any problems or nuisance in the neighborhood.
At the conclusion of the hearing, the Board voted unanimously to uphold the notice of violation. The vote was memorialized by written findings of fact and an order entered on June 21, 2017. The Board directed the Hengeholds to remove the chickens within thirty days, subject to a maximum fine of $50 for non-compliance.
On July 6, 2017, the Hengeholds filed a complaint in the Boone District Court disputing the Board’s decision. The Hengeholds’ complaint named only the City as defendant. Thereafter, the Hengeholds moved to file an amended complaint naming the Board as a party. The district court granted the motion on July 31.
By agreed order, the parties submitted a typed transcript of the Board hearing, along with exhibits presented at the hearing. The parties agreed that the Board record was sufficient for the district court to conduct a de novo review of the Board’s action. The parties further submitted the matter to the district court on cross-motions for summary judgment. Separately, the City and the Board moved to dismiss, arguing that the Board was an indispensable party to the appeal, the absence of which could not be remedied by an amended complaint after the 30-day appeal period passed.
After considering the record and written arguments of counsel, the district court entered a judgment on February 8, 2018, which denied the motion to dismiss, but otherwise upheld the Board’s action. On the motion to dismiss, the district court found that the Board is an agency of the City and was not an indispensable party to the action at its inception. Turning to the merits, the district court found the City properly interpreted the Code as inclusive, meaning that the raising of chickens is not permitted in a zone unless specifically listed as a permitted use. The district court also rejected the Hengeholds’ arguments that the chickens were permitted as pets or were a valid non-conforming use that existed prior to 2014. Thereafter, the district court denied the Hengeholds’ motion to alter, amend or vacate pursuant to CR 59.05.
Kentucky Rules of Civil Procedure.
The Hengeholds filed a notice of appeal to the Boone Circuit Court. The City and the Board cross-appealed, again arguing that the district court action should have been dismissed due to the Hengeholds’ failure to name the Board as a party to the appeal. After considering the record and the briefs of counsel, the circuit court affirmed the district court in both the appeal and cross-appeal. The circuit court first noted that KRS 65.8831 does not specify what entities must be named as parties to an appeal from a code enforcement board. The circuit court also noted that an appeal from the Board to district court is treated as an original action and is subject to de novo review. Consequently, the circuit court concluded that the district court was within its authority to allow the Hengeholds to amend their complaint to join the Board.
Kentucky Revised Statutes.
On the merits, the circuit court found that the Board properly interpreted the Code as inclusive. Consequently, since chickens are not listed as either household pets or animals specifically permitted within the SR-1 zone, the court found that they are not allowed. The circuit court next concluded that the chickens are not a valid non-conforming use under either the Code or KRS 100.253(3). Based on these conclusions, the circuit court affirmed the district court’s judgment. By orders entered on September 24 and November 28, 2018, this Court accepted the Hengeholds’ motion for discretionary review and the cross-motion for discretionary review filed by the City and the Board.
II. Jurisdictional Issue
In their cross-motion for discretionary review, the City and the Board again argue that the Hengeholds’ complaint failed to name the Board as a party to their appeal within the statutory time period. Consequently, they contend that the Hengeholds’ complaint should have been dismissed for lack of subject-matter jurisdiction. As the City and the Board correctly note, strict compliance is required with statutory procedures for filing appeals from administrative bodies. See Taylor v. Kentucky Unemployment Ins. Com'n , 382 S.W.3d 826, 830 (Ky. 2012).
There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that
the court lacks jurisdiction or has no right to decide the controversy.
Board of Adjustments of the City of Richmond v. Flood , 581 S.W.2d 1, 2 (Ky. 1978).
The City and the Board argue that the Board was an indispensable party to the appeal to district court. Because strict compliance is necessary to perfect an appeal from an administrative agency, they contend the Hengeholds were required to name the Board as a party to the appeal within the thirty-day period provided by KRS 65.8831(1). Since the Hengeholds did not add the Board as a party until after that period expired, they argue that the district court lacked jurisdiction to consider the merits of the appeal. We disagree.
In KRS Chapter 100, the legislature delegated zoning authority among local boards of adjustment, local planning commissions, and certain local legislative bodies. A person claiming to be aggrieved by a final action of these bodies must file an appeal to the circuit court within thirty days pursuant to KRS 100.347(1), (2), and (3), respectively. Each of these sections requires that the body taking the final action "shall be a party in any such appeal filed in the Circuit Court."
In contrast, the legislature has delegated code enforcement in KRS Chapter 65 under the "General Provisions Applicable to Counties, Cities, and Other Local Units[.]" KRS 65.8801 authorizes cities, counties or other local government units to create "administrative boards with the authority to issue remedial orders and impose civil fines in order to provide an equitable, expeditious, effective, and inexpensive method of ensuring compliance with the ordinances in force in local governments."
The Code Enforcement Board’s authority extends to "any ordinance of the local government, including but not limited to, any zoning or nuisance ordinance." KRS 65.8808(2). Consequently, code enforcement is an extension of the general police powers granted to local governments rather than the specific zoning powers granted under KRS Chapter 100. Furthermore, KRS 65.8831(1) provides that an appeal from a final order of a code enforcement board
may be made to the District Court of the county in which the local government is located within thirty (30) days of the date the order is issued. The appeal shall be initiated by the filing of a complaint and a copy of the final order in the same manner as any civil action under the Rules of Civil Procedure. The District Court shall review the final order de novo.
The City acknowledges that KRS 65.8831(1) does not specify that the Board shall be a party to the original action in district court. However, the City notes that an administrative agency is typically an indispensable party to an appeal where: (1) the agency has been made a representative of the public interest in the controversy; and (2) the agency will be directly affected by the final decision of the court. Boyd & Usher Transp. v. S. Tank Lines, Inc. , 320 S.W.2d 120, 122 (Ky. 1959). The City states that it has delegated its code enforcement authority to the Board and, consequently, the Board will be directly affected by any order of the court implicating the validity of the enforcement order. Thus, the City maintains that the Board alone is the indispensable party to this action.
However, the statutory language indicates that the matter under review is the final action taken by the local government, rather than specifically the Board. Indeed, the statute requires the district court to treat the appeal as an original action and not as an administrative appeal pursuant to KRS 13B.140. Moreover, the district court has no appellate jurisdiction, so the district court’s only consideration of the matter may be through an original action subject to a de novo trial. Louisville Metro Health Dep't v. Highview Manor Ass'n, LLC , 319 S.W.3d 380, 384 (Ky. 2010). Thus, the rules relating to an "appeal" from an administrative agency do not apply in this case.
In the absence of any clearer requirement in the statute, we conclude that the Board functions as an agency of the City rather than a separate entity. Consequently, we hold that the City (or the applicable local government) is a proper party to be named as defendant in an appeal brought pursuant to KRS 65.8831. Since the City was timely named and before the court, the district court had the authority to amend the pleadings pursuant to CR 15.01 to add the Board as a party. Furthermore, both the City and the Board clearly had notice of the action, and there is no showing that the Board was prejudiced in maintaining its defense on the merits. Therefore, the amendment relates back to the date of the complaint. CR 15.03. Consequently, we conclude that the district court properly exercised jurisdiction to consider the merits of the Hengeholds’ complaint. To avoid further confusion, we shall henceforth refer to the City and the Board collectively as "the City" unless the context requires otherwise.
III. Standard of Review
As discussed above, the statute directs the district court to conduct a de novo review of the Board’s action. The statute further provides that a "judgment of the District Court may be appealed to the Circuit Court in accordance with the Rules of Civil Procedure." KRS 65.8831(2). In addition, KRS 23A.080 authorizes a direct appeal to the circuit court from any final action of the district court. When sitting as an appellate court, the circuit court is bound by the district court’s factual findings unless they are clearly erroneous. CR 52.01. The district court’s conclusions of law, however, are subject to independent appellate determination. A & A Mech., Inc. v. Thermal Equip. Sales, Inc. , 998 S.W.2d 505, 509 (Ky. App. 1999). On discretionary review, this Court applies the same standard of review.
IV. Scope of the Zoning Regulations as Inclusive
Since the factual issues in this case are largely undisputed, we must first consider the meaning and interpretation of the applicable zoning regulations. The Hengeholds primarily argue that the Board’s authority is limited to enforcing the plain language of the zoning regulations, and not re-writing or expanding them. Consequently, they contend that the Board’s interpretation of "inclusive" is not entitled to any deference. The Hengeholds further argue that neither the zoning regulations nor the City’s generally applicable ordinances prohibit the keeping of chickens in the SR-1 zone. As a result, the Hengeholds contend that the Board has arbitrarily interpreted the zoning regulations as inclusive, thus exceeding the scope of its authority to merely interpret and apply the regulations as written.
In response, the City relies on Carlton v. Taylor , 569 S.W.2d 679 (Ky. App. 1978), as holding that inclusive zoning ordinances are constitutional. In Carlton , the applicant appealed a board of adjustment’s denial of a building permit and a conditional use permit to construct a liquor store. The applicant argued that the zoning ordinance was unconstitutional for failure to delineate standards by which the board could approve exceptions to the uses permitted in local business districts. This Court agreed that the ordinance was unconstitutional. Id. at 680. But in the absence of the severed portion, this Court found that only those businesses which fell within one of the permitted uses were allowed; all other uses were prohibited. Id. at 681. Thus, it was reasonable for the board of adjustment to refuse to deviate from the list of permitted uses. Id.
The City interprets Carlton as broadly upholding the constitutionality of inclusive zoning ordinances. We disagree. The only issue before the Court in Carlton concerned the enforceability of a zoning ordinance following severance of an unconstitutional provision relating to the granting of conditional uses. Id. While the Court interpreted the zoning ordinance as inclusive, the panel did not specifically address the basis for doing so.
The City maintains that it may broadly interpret the zoning ordinance as "inclusive," meaning that any uses not specifically permitted within a district are excluded. However, the zoning regulations at issue do not specifically provide for such a reading, and the Board does not have the authority to expand the scope of the ordinances beyond their express terms. "Zoning ordinances are an exercise of the police power of the state, and no subdivision thereof may exercise that power except through a grant made by the people of the state through its legislative branch." Hardin County v. Jost , 897 S.W.2d 592, 594 (Ky. App. 1995) (citing Fowler v. Obier , 224 Ky. 742, 7 S.W.2d 219, 223 (1928) ). As an enforcement agency, the Board must interpret the zoning regulations as a whole, rather than as individual sections. See Keogh v. Woodford Cty. Bd. of Adjustments , 243 S.W.3d 369, 373 (Ky. App. 2007). But since the district court’s review arises through an original action, the courts need not defer to the Board’s interpretation of the zoning ordinance. Louisville Metro Health Dep't , 319 S.W.3d at 384. For the same reason, we cannot simply defer to the City’s reading of the zoning regulations as inclusive.
That is not to say, however, that an inclusive interpretation of the zoning regulations is prohibited. In the drafting of comprehensive zoning ordinances, two classifications are generally employed: the inclusive type which permits only those uses specifically named; and the exclusive type which prohibits specified uses and permits all others. Some ordinances utilize both forms and all three are recognized as valid classifications. 1 E.C. Yokley, Zoning Law and Practice , §§ 4-5, pp. 143, 144; (3d Ed. Michie, 1965). But in any case, the ordinance must provide both fair notice to the public that certain conduct is prohibited and minimal guidelines to aid officials in the enforcement of that prohibition. Short v. City of Olive Hill , 414 S.W.3d 433, 442 (Ky. App. 2013) (citing Grayned v. City of Rockford , 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) ). A statute, ordinance or regulation is unconstitutionally vague if individuals cannot reasonably understand what it requires or if it allows an agency unfettered discretion in enforcement. See Curd v. Kentucky State Bd. of Licensure for Prof'l Engineers & Land Surveyors , 433 S.W.3d 291, 305 (Ky. 2014).
Cited in Wiley v. Hanover Cty. , 209 Va. 153, 155, 163 S.E.2d 160, 162 (1968), and State v. Owens , 114 Ariz. 565, 566, 562 P.2d 738, 739 (Ariz. Ct. App. 1977).
V. Scope of Principally Permissible Uses
Accordingly, we may properly infer an inclusive interpretation of zoning regulations either from the express text of the regulations or necessary implication. The regulations at issue do not expressly provide for an inclusive interpretation. But the regulations do set out comprehensive zoning classifications and districts within Boone County. In pertinent part, Article 9 of the Boone County Zoning Regulations establishes ten residential zoning districts, each with principally permitted uses, accessory uses, and conditional uses and criteria. Each district is also subject to size, density and intensity standards. Section 930 of the Boone County Zoning Regulations provides that the purpose of the SR-1 district is
to provide a low density, residential environment whose dwelling types and densities are typical of a suburban character. It is also to provide limited or passive and active residential uses that are appropriate to the permitted uses in the district. [SR-1] districts will be located on lands within established urban areas where adequate infrastructure facilities and services are available or proposed.
We further note that Section 931 uses the term "principally permitted uses," with "principally" serving as an adverb meaning, "chiefly" or "mainly," but not necessarily "exclusively." See https://www.dictionary.com/browse/principally (Accessed January 23, 2020). The use of the modifier "principally" does not clearly indicate whether "permitted uses" should be interpreted either inclusively or exclusively, suggesting that it includes elements of both.
But Section 931 sets out the principally permitted uses within the SR-1 district:
1. Detached single-family dwelling units;
2. Patio homes within clusters of twenty or more contiguous units and in accordance with Section 3159;
3. Detached single family landominiums within clusters of twenty or more contiguous units.
4. Farms of tobacco, fiber, cash grain, fruits, tree nuts, vegetables, or other field crops;
5. Farms of no predominant crops, including range and grassland pastures, horticultural specialties, apiary farms and other agriculture and related activities;
6. Wild life preserve sanctuaries, habitats, cultures and related activities;
7. Garden plots and other similar forms of communal or organizational farming practices;
8. Recreation defined in this district to be playgrounds, open space parks, hiking areas and trails, bikeway systems and picnicking areas[.]
The City notes that farms and ranches for livestock production, including poultry, are specifically permitted within the Rural Suburban Estates (RSE) district, and chicken coops are permitted as an accessory use within the Rural Suburban (RS) district (except within the City of Florence). On the other hand, farms for livestock production are not listed as principally permitted uses in any other districts. This specific listing of permitted uses (even if qualified as "principally permitted uses") is more consistent with an inclusive reading than an exclusive or mixed interpretation.
We further agree with the City that the inclusion of farms for poultry production in the RSE district strongly suggests that similar-type operations are not permitted in other districts. But as noted, chicken coops are permitted within the RS district even though farms for poultry production are not listed as principally permitted uses within that district. This tends to contradict the City’s position that the keeping of chickens for non-commercial purposes is categorically prohibited unless specifically listed as a principally permitted use.
VI. Scope of Permitted Accessory Uses
To clarify this ambiguity, we must turn to the permitted accessory uses within the SR-1 district. As the Hengeholds note, Section 932(1)(f) permits the keeping of "pets and animals" as an accessory use within the SR-1 district. Similar terms are used in the RSE and RS districts (allowing for "[p]rivate stable or other keeping and use of pets and animals"), and in the SR-2 district. But the accessory uses allowed in the other districts are limited specifically to "pets" (SR-3, UR-1, UR-2 and R-1F districts ), and "household pets" (UR-3 and MHP districts ). The term "animal" is not defined within the ordinance, but Article 40, Section 4000 of the Boone County Zoning Regulations defines "pet" to mean:
Suburban Residential Two.
Suburban Residential Three, Urban Residential One, Urban Residential Two, and Residential One Family, respectively.
Urban Residential Three and Mobile Home Park, respectively.
The definitions set out under Article 40 specifically apply to terms used in the Zoning Regulations.
Animals customarily kept within a home or upon the premises for the resident’s personal use and enjoyment. They are not to be raised for commercial purposes and must be appropriately confined to a dwelling unit or a private boarding stable so as to not create a nuisance to adjoining property owners. Household pets include, but not limited to, domestic dogs, domestic cats, domestic birds, domestic fish, and domestic rodents.
Id. at 40.12.
There is some factual question of whether chickens could be considered "[a]nimals customarily kept within a home or upon the premises for the resident’s personal use and enjoyment." But in any event, the section also permits the keeping of "animals," which is broader than the defined term "pets." For this reason, we disagree with the City that the keeping of chickens is categorically prohibited in the SR-1 zone. Consequently, as the zoning ordinance is currently written, we hold that non-commercial chickens are permitted as pets or animals. Therefore, we disagree with the lower courts and the City that non-commercially raised chickens can never be considered as "pets and animals" permitted under the regulation.
We recognize that there is a legitimate question whether the number of chickens kept on the Hengeholds’ property exceeds the reasonable scope of an accessory use. The Boone County Zoning Regulations indicate that accessory uses are those uses which are "customarily incidental and subordinate to" the permitted uses of the property. See also Wells v. Fiscal Court of Jefferson Cty. , 457 S.W.2d 498, 502 (Ky. 1970), and Hudman v. Terry , 375 S.W.3d 812, 815 (Ky. App. 2011). The keeping of pets and animals, even certain non-traditional ones, is consistent with the purposes and permitted uses of the district.
The City has never argued that the number of chickens is unreasonable. As noted, the City has only argued that the regulations categorically prohibit any chickens within the SR-1 zone. Since a plain reading of the zoning regulations does not support that interpretation, the scope of the permitted accessory use has never been at issue. And indeed, this Court is not authorized to make independent factual findings or to establish standards regarding permissible numbers of pets or animals. Nor should we rule on arguments which the City has not made.
Therefore, we conclude that the lower courts erred in finding that the chickens kept on the Hengeholds’ property are not permitted as an accessory use in the SR-1 district. To the extent that the Board held otherwise, the notice of violation must be set aside. In the future, the City may argue that the number of pets and animals exceeds the reasonable scope of an accessory use within the SR-1 district. But for purposes of this action, we conclude that the City has waived that argument with respect to the Hengeholds’ chickens.
VII. Non-Conforming Use
Lastly, the Hengeholds argue that the 2014 amendment to the zoning regulations does not apply to their chickens or the structures on their property. With respect to the chickens, we conclude that possession of chickens was a permitted accessory use when the Hengeholds acquired them in 2011. The mere prohibition of "chicken coops" in the 2014 amendment does not clearly alter the terms of the regulation with respect to the chickens themselves. In any event, the Hengeholds are entitled to claim a non-conforming use for uses or structures which were in existence at the time the applicable regulation was adopted. KRS 100.253(1). Even if the 2014 amendment could be read to ban chickens within the City, the amendment would not apply to the Hengeholds’ chickens, which they kept prior to the enactment of the amendment.
The question is not as clear with respect to the structures. The City maintains that any structure used to house or service chickens must be considered a "coop" within the meaning of the amended regulation. As a result, the City argues that the chickens, the wire enclosure and the greenhouse as currently used are also in violation of the zoning regulations. We disagree.
The district court and the circuit court assumed, as a matter of law, that the keeping of chickens and the maintenance of a chicken coop are synonymous. But the mere fact that a structure may be used by or for the benefits of poultry does not make it a coop. Rather, that is a factual determination which must be made based upon the purpose, design and use of the structure. Since the word "coop" is not defined in the regulation, the meaning of the word should be given its common and ordinary definition. See Devasier v. James , 278 S.W.3d 625, 630 (Ky. 2009). The word "coop" is generally understood to mean, "an enclosure, cage, or pen, usually with bars or wires, in which fowls or other small animals are confined for fattening, transportation, etc." See https://www.dictionary.com/browse/coop (Accessed January 23, 2020). It is not clear from the record that the greenhouse and the wire enclosure would fall within the generally accepted definition of "coops" even in light of their current use.
Furthermore, even if the greenhouse and the wire enclosure may be considered as coops for purpose of the regulation, there is still a factual question of whether these structures existed and were used by the chickens prior to the 2014 amendment. If the Hengeholds establish these facts, then they are entitled to maintain the structures as non-conforming uses. Like the question of whether the structures are coops, this is also a factual question.
As discussed above, we find that the pre-2014 version of the regulations did not categorically prohibit the Hengeholds from possessing chickens. Consequently, there are factual issues remaining whether the structures constitute coops and, if so, whether they would be allowed as a non-conforming use. We further conclude that the district court and the circuit court erred by deferring to the City’s definition of coop rather than making its own assessment and findings. Since KRS 65.8831 gives the district court the exclusive authority to make factual findings on disputed issues of fact, these matters must be remanded for additional findings of fact and conclusions of law.
VIII. Conclusion
As discussed above, we first find that the district court did not err by denying the motion to dismiss the Hengeholds’ complaint. A complaint brought pursuant to KRS 65.8831(1) is not an appeal from a final action by the Board but is treated as an original action challenging the enforcement order issued under the City’s authority. The statute does not require the plaintiff to name the Board as a party to the appeal. Thus, we conclude that the Board was not an indispensable party to the action at its inception.
On the merits of the Hengeholds’ motion for discretionary review, we conclude that the Board erred by upholding the notice of violation. While the City has the authority to prohibit the possession of chickens within its limits, it has not done so by express enactment. Even applying an inclusive interpretation of the zoning regulations, a property owner must have reasonable notice that a proposed use is prohibited.
In this case, the applicable zoning regulations exclude commercial poultry operations from the SR-1 district. But the regulations do not prohibit non-commercial possession and raising of chickens. To the contrary, the permitted accessory use allowing the "keeping of pets and animals" is broad enough to permit the Hengeholds’ activities. We are not at liberty to consider evidence of the City’s intention where the enactment is not reasonably susceptible to different interpretations. See Overnite Transp. Co. v. Gaddis , 793 S.W.2d 129, 131 (Ky. App. 1990). The City has waived any complaint about the number of chickens on the Hengeholds’ property. Since the Hengeholds were permitted to possess the chickens under the pre-2014 regulation, there are factual issues on whether the structures are prohibited as coops and, if so, whether the structures would qualify as non-conforming uses. These questions must be determined by the district court on remand.
Accordingly, we reverse the order of the Boone Circuit Court with directions for the circuit court to enter an order remanding this matter to the Boone District Court for additional findings of fact and conclusions of law as set forth in this opinion.
ALL CONCUR.