Opinion
NO. 2011-CA-001694-MR
03-22-2013
KATHLEEN MCINTOSH AND ROBERT MCINTOSH APPELLANTS v. SCOTT COUNTY BOARD OF ADJUSTMENT APPELLEE
BRIEF FOR APPELLANT: Jeffrey W. Jones Lexington, Kentucky BRIEF FOR APPELLEE: Charles M. Perkins Georgetown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 09-CI-00429
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. KELLER, JUDGE: Kathleen and Robert McIntosh (the McIntoshes) appeal from an order of the Scott Circuit Court upholding the Scott County Board of Adjustment's (the Board) determination that the McIntoshes' use of a portion of their real property as a dog rescue facility was a "kennel" as defined in Scott County Zoning Ordinance §2.1.45, and that it was an invalid nonconforming use. For the following reasons, we affirm.
FACTS
The McIntoshes own a home located in Craigmoor Estates in Scott County, Kentucky. Craigmoor Estates is a subdivision comprised of at least five-acre tracts of land and is zoned A-1, Agriculture. After receiving a complaint that an unpermitted building was constructed on the McIntoshes' property, the staff of the Georgetown-Scott County Planning Commission, Building Inspection and Code Enforcement conducted a site visit of the McIntoshes' property in August 2008. It was determined that the McIntoshes were operating a dog rescue operation at their residence with approximately twenty-five dogs on site.
In August 2008, the McIntoshes applied to the Board for a conditional use permit to run a dog rescue service at their residence in Craigmoor Estates, but they withdrew that application in September 2008. By letter dated December 9, 2008, the Georgetown-Scott County Building Inspection Department, Code Enforcement sent a letter to the McIntoshes informing them that their "dog kennel/rescue business . . . must be removed or moved to another location prior to January 13, 2009."
On February 19, 2009, the McIntoshes, through counsel, requested an administrative review of the definition of "kennel" as set forth in Scott County Zoning Ordinance §2.1.45 to determine whether their dog rescue operation required a conditional use permit. They also requested that the Board determine whether their dog rescue service was a valid nonconforming use that was in existence prior to the adoption of the applicable zoning ordinance in September 2000.
On March 17, 2009, the Board held a hearing on the McIntoshes' requested interpretation of "kennel." Scott County Zoning Ordinance §2.1.45 defines "kennel" as "[a] commercial business for the sale or temporary boarding of three (3) or more dogs over the age of six (6) months, not including those owned by the resident or property owner." At the conclusion of the hearing, the Board concluded that the McIntoshes' dog rescue operation did fall within the definition of "kennel" as set forth in the ordinance. The Board further concluded that it would hold a hearing at its April 21, 2009, meeting on the issue of whether the McIntoshes' use of their property as a kennel was a valid nonconforming use.
At the April 2009 meeting, the Board concluded that the McIntoshes' operation was not a nonconforming use because it had been "significantly expanded when the new building was constructed." The Board directed the McIntoshes to apply for a conditional use permit to be heard at the May 2009 meeting. Because the McIntoshes did not file their application for conditional use in time for the May 2009 meeting, a hearing on their application was held at the June 16, 2009, Board meeting. The "Board unanimously denied the application due to applicant's absence, not due to the substance of the application." Another hearing on the McIntoshes's application was held at the July 21, 2009, Board meeting, and the Board denied the McIntoshes application for conditional use due to the noise of the dogs.
The McIntoshes filed an action in the Scott Circuit Court arguing the Board incorrectly determined that their dog rescue operation was a kennel and that they failed to meet the requirements of a valid nonconforming use as set forth in Kentucky Revised Statute (KRS) 100.253. The circuit court entered an order on August 9, 2010, remanding the case to the Board for further findings. The circuit court found that the Board did not determine whether the McIntoshes ran a kennel within the purview of Scott County Zoning Ordinance §2.1.45. Specifically, the circuit court noted that the Board found that the McIntoshes' dog rescue service met the requirements for "commercial" under the Ordinance, but failed to determine whether it fell within the definition of "business" pursuant to the ordinance.
On remand, the Board made the determination that the words "commercial" and "business" were redundant terms and thus interchangeable for purposes of the zoning ordinance. The Board also found that the McIntoshes' operation fell within the term "business," and ultimately the term "kennel" because it had already held an evidentiary hearing and determined that the operation fell within the term "commercial." The Board ultimately decided that the McIntoshes' operation was a "commercial business" within the purview of the Ordinance.
Thereafter, the circuit court entered an order on June 23, 2011, affirming the Board. The McIntoshes filed a motion to alter, amend or vacate, which the circuit court denied. This appeal followed.
Additional facts will be set forth below.
STANDARD OF REVIEW
As set forth in Allen v. Woodford County Bd. of Adjustments, 228 S.W.3d 573, 575 (Ky. App. 2007):
It is well-established that a court's review of the action of an administrative agency is limited to review, not reinterpretation. A reviewing court may not substitute its judgment for that of an administrative agency even though it might have reached a different result. The Supreme Court of Kentucky articulated this standard of review as follows:
[T]he scope of judicial review of zoning action taken by public bodies, both administrative and legislative, is limited to determining whether the action was arbitrary, which ordinarily involves these considerations: (1) whether the action under attack was in excess of the powers granted to the public bodies [;] (2) whether the parties were deprived of procedural due process by the public bodies[;][and] (3) whether there is a lack of evidentiary support in the findings of the public bodies[.]
A board's factual findings are not deemed to be arbitrary if they are supported by substantial evidence, which is defined as evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.(Citations and quotations omitted).
ANALYSIS
1. Remand to Board
On appeal, the McIntoshes first contend that they were denied due process when the circuit court remanded the case to the Board to make additional findings as to whether the McIntoshes' dog rescue service was a "business" as provided in the definition of "kennel" as set forth in Scott County Zoning Ordinance §2.1.45. The McIntoshes further argue that the circuit court improperly ordered the Board to "amend" the zoning ordinance by asking it to supply the definition of the term "business." Having carefully reviewed the record, we note that these issues were raised for the first time on appeal to this Court and they were not raised before the circuit court. Therefore, we do not address them. See Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001).
We note that the circuit court did not order the Board to "amend" the zoning ordinance, but instead asked it to interpret and apply the term "business" to the instant case.
2. Kennel
On appeal, the McIntoshes contend that the circuit court erred in concluding that the Board correctly determined that their dog rescue operation was a "kennel" as set forth in the zoning ordinance, and that they had to apply for a conditional use permit. Scott County Zoning Ordinance §2.1.45 defines "kennel" as "[a] commercial business for the sale or temporary boarding of three (3) or more dogs over the age of six (6) months, not including those owned by the resident or property owner." Specifically, the McIntoshes argue that their rescue service is not a "commercial business" as set forth in the definition of "kennel" because it does not make a profit.
The McIntoshes acknowledged that they are involved in the adoption of 80-90 dogs per year and that they have up to 40 dogs at a time. Additionally, it is undisputed that the McIntoshes request an adoption fee of up to $300 for every dog that is adopted from them. According to the McIntoshes and their website, the fee is to help cover the veterinary costs of all the dogs they care for, especially those that require extra veterinary services. Thus, the McIntoshes argue that their operation is not a "commercial business" because they do not make a profit by charging the adoption fees.
The Board contends that the McIntoshes do make a profit because they retain the adoption fee for each adopted dog regardless of whether that particular dog required veterinary services. In support of its argument, the Board points to the McIntoshes' dog rescue website, which states the following:
Please understand the dog you adopt may have not required extensive vetting, [b]ut the next three dogs we rescue may need the care. So we must charge a higher fee in order to offset the care for the three dogs who need special care.Further, the Board argues that the McIntoshes' motive is to make a profit because their website also lists various products for sale.
We note that Kathleen McIntosh testified that none of the products listed on their website had ever been sold.
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We agree with the circuit court that it is irrelevant whether the McIntoshes have a profit motive. As set forth in Auto-Owners Ins. Co. v. Veterans of Foreign Wars Post 5906, 276 S.W.3d 298, 301 (Ky. App. 2009):
Webster's Online Dictionary defines "business" as "a usually commercial or mercantile activity engaged in as a means of livelihood." Additionally, the American Heritage College Dictionary defines "business" as "the occupation, work, or trade in which a person is engaged." Although non-binding on this court, we find the New Hampshire Supreme Courts analysis of an almost identical fact pattern elucidating. In American Legion Post # 49 v. Jefferson Insurance Co., 125 N.H. 758, 485 A.2d 293 (1984), the New Hampshire Supreme Court opined that "in the business of" has two ordinary meanings: 1) "any regular activity that occupies one's time and attention, with or without direct profit motive;" or 2) "an activity with a direct profit objective."(Footnotes omitted) (emphasis added).
There was substantial evidence that the McIntoshes's rescue operation is a regular activity that occupies their time and attention. Thus, contrary to the McIntoshes' assertion, it is irrelevant whether they have a direct profit motive. Accordingly, we conclude that their operation is a "commercial business" that falls within the definition of "kennel" as set forth in the zoning ordinance. Therefore, we conclude that the circuit court correctly affirmed the Board's determination that the McIntoshes were operating a kennel.
2. Nonconforming Use
Next, the McIntoshes argue that the circuit court erred in concluding they needed a conditional use permit to operate their kennel because they enlarged their nonconforming use when they added a new building in 2008. We disagree.
"A nonconforming-use is one legally in existence prior to the adoption of a zoning regulation under which it is prohibited." Greater Harrodsburg/Mercer County Planning & Zoning Comm'n v. Romero, 250 S.W.3d 355, 359 (Ky. App. 2008); see also KRS 100.253(1). The portion of KRS 100.253(2) which is pertinent to this appeal reads as follows:
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, . . .
In this case, the Board determined that the kennel was not a nonconforming use "because it [had] been significantly expanded when the new building was constructed." In making its determination, the Board considered the following evidence. Kathleen McIntosh stated in her affidavit that she and her husband began rescuing dogs and cats in 1991. By 1995, they "were keeping 25-30 rescue dogs." In 2000, Kathleen became a Kentucky representative for "Florida-based Dachshund Adoption Rescue and Education (DARE)." She resigned from DARE in January 2004 but "continued to accept pets in need" even though she "had no outlet to adopt the pets." In 2005, the McIntoshes formed Kentucky Dachshund Rescue, Inc., and in January 2008, they expanded the building the dogs used. Kathleen further stated that the most dogs that have been on their property at the same time is approximately 40. In addition to Kathleen's affidavit, the McIntoshes submitted a letter from Central Kentucky Veterinary Center, which stated that, since 1991, it had provided veterinary services for the McIntoshes' rescued dogs. At the April 21, 2009, hearing, Kathleen testified that the expansion was thirty feet by forty feet, and the McIntoshes' counsel explained that the expansion was so that the dogs could stay inside.
Fred Beirle, a neighbor, testified that there were only five dogs on the McIntoshes' property in 1993. He further testified that the McIntoshes' dog operation did not begin until Spring 2008, when he first observed the large new kennel being built and heard the daily barking of the McIntoshes' dogs. David Greg, another neighbor, testified that he heard dogs on the property for years, but nothing like the present level. He also testified that the existing building, prior to the 2008 addition, was not used for dogs.
The McIntoshes contend that the new building constructed in 2008 on the property was not an "enlargement or extension of a nonconforming use beyond the scope and area of its operation" as prohibited by KRS 100.253(2). In support of their argument, they cite to Greater Harrodsburg/Mercer County Planning & Zoning Comm'n v. Romero, 250 S.W.3d 355 (Ky. App. 2008) and Board of Adjustments, Bourbon County v. Brown, 969 S.W.2d 214 (Ky. App. 1998). In Romero, the Romeros purchased Aspen Hall and utilized it as a bed and breakfast, a tearoom, and catering service, and held events such as weddings. Shortly after purchasing Aspen Hall, the Romeros' neighbors complained to the Planning Commission that the Romeros were operating a restaurant. Thereafter, the Fiscal Court enacted an ordinance requiring the operator of a bed and breakfast to apply to the Board of Adjustments for a conditional use permit if the operator planned to have a tearoom or cater special events and weddings. 250 S.W.3d at 357-58.
In concluding that the Romeros did not need a conditional use permit because they did not enlarge their valid non-conforming use of the property, this Court noted the following:
Prior to the passage of the amended ordinance, the Romeros utilized Aspen Hall as not only a bed and breakfast but also, as accessory uses, operated a tearoom, catering service, and held events such as weddings. These are precisely the same uses the Board seeks to restrict. Absent from the record is evidence that establishes that Aspen Hall offers any services materially different than those offered prior to the adoption of the amended ordinance. What can be gleaned from the record is that, at the time the Romeros purchased the property and began their business, no zoning ordinance prohibited the uses of the property now questioned. Only after neighbors became disgruntled in this otherwise residential area, did the Board seek to limit such uses.Id. at 360.
In Brown, this Court concluded that an enclosure of a porch of an auction house with siding to add a bathroom was not an expansion of the non-conforming use. Quoting A.L. Carrithers & Son v. City of Louisville, 250 Ky. 462, 469-470, 63 S.W.2d 493, 497 (1933), this Court noted that:
[E]xtending the walls of the building so as to enclose space for the relocating [of] 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 [of] an old building in such a way as to convert it into a new or substantially different structure.969 S.W.2d at 216-17.
Unlike Romero and Brown, the McIntoshes added a new building in 2008 that converted their kennel into a "substantially different structure." 969 S.W.2d at 217. This expansion occurred after the adoption of the applicable zoning ordinance in 2000. Accordingly, we conclude that the circuit court did not err in determining that the expansion violated KRS 100.253(2) because it was an "enlargement or extension of a nonconforming use beyond the scope and area of its operation[.]"
We note that the McIntoshes also contend that the circuit court erred in concluding that the McIntoshes' kennel did not exist until 2008 when they constructed the new building. Having concluded that the new building constructed in 2008 was an enlargement that violated KRS 100.253(2), it is irrelevant whether the kennel was created in 2008 or whether it existed prior to the adoption of the zoning ordinance in 2000. If the kennel was a valid non-conforming use that existed prior to adoption of the zoning ordinance, that non-conforming use became invalid with the construction of the new building in 2008. Therefore, we need not address this issue, and choose not to do so.
Finally, we note that the McIntoshes also argue that the circuit court erred when it noted in its August 9, 2010, order that the Board found that the McIntoshes "discontinued the rescue operation for an extended time and this fact meant the grandfather rule would not apply." Because the circuit court ultimately did not address or make any determinations as to whether the McIntoshes discontinued their rescue operation for a period of time, this argument is inconsequential. Thus, we do not address it.
CONCLUSION
For the foregoing reasons, we affirm the Scott Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey W. Jones
Lexington, Kentucky
BRIEF FOR APPELLEE: Charles M. Perkins
Georgetown, Kentucky