Failure to Follow These Procedures Can Be Fatal to Your Appeal
Written by CHRISTOPHER M. CLENDENEN | MARCH 16, 2019
Among the powers authorized by statute, to local Boards of Adjustment is the power to grant variances to applicants. A “variance”, for lack of a better definition, is permission from the local governmental authority to build something that for one reason or another does not comply with the local zoning ordinance. In order for this to occur, a public hearing is held with notice of the hearing provided to parties deemed to have standing in the event they want the opportunity to be heard on the matter. The applicant makes their case to the “board members” and opponents, if any, are given the same opportunity. There is a record made of the proceeding. Frequently, whether the decision is in favor of or against granting the variance, someone doesn’t like the decision. The decision of the board is appealable, however.
KRS 100.347, “authorizes an statutory right to an appeal from a decision from the local board of adjustment, and states in pertinent part “Any person or entity claiming to be injured or aggrieved by any final action of the board of adjustment shall appeal to the Circuit Court of the county in which the property, which is the subject of the action of the board of adjustment, lies. Such action shall be taken within 30 days after the final action of the board’… For purposes of this chapter, final action shall be deemed to have occurred on the calendar date when the vote is taken to approve or disapprove the matter taken before the body”.
The key language here being “final action of the board” as the Appellants found out in the recent case of Moore v. Corbin Board of Adjustment, 544 S.W.3d 666, (Ky. Ct. App. 2018). The Appellants, who were opposed to the granting of a dimensional variance of an applicant, appeared at the hearing in which evidence was taken on the record from all parties, but no vote was taken before the hearing was adjourned. Following the hearing, the board went into its regularly scheduled meeting at which time the Board voted to approve the application. The Board action was followed by a formal notice to all parties who attended the hearing. Appellants received their copy of the notice about eleven days after the hearing and filed their appeal with the circuit court twenty-four (24) days after receipt of the formal notice from the Board. The Circuit Court dismissed the appeal as untimely pursuant to KRS 100.347 holding that the Appellants were required to file their appeal with the circuit court within thirty (30) days of the “final action of the board”. The Court of Appeals affirmed the decision and reiterated that when “appeal is granted by statute, strict compliance with the terms of the statute is required”. Triad Development/Alta Glyne, Inc. v. Gelhaus, 150 S.W.3d 43, 47 (Ky. 2004).
Key Holding: Failure to follow statutory guidelines for appeals on administrative actions is fatal.