Kentucky

Preexisting nonconforming use exception applied in zoning case: LEGRAND v. EUBANK (COA 8/29/2008)

By Michael Stevens

LEGRAND v. EUBANK
ZONING:   Pre-existing nonconforming use exception upheld       
2007-CA-001770
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, HENRY CONCUR
GALLATIN CIRCUIT COURT:
DATE RENDERED: 8/29/2008
      
THOMPSON, Judge.
his is an appeal from an order of the Gallatin Circuit Court that affirmed a ruling by the Gallatin Board of Adjustments (Board) that Nugent Sand Company had nonconforming-use rights to conduct sand and gravel mining operations on all lands it owned that were under permit at the time Gallatin County adopted comprehensive planning and zoning provisions. Under the provisions, the property owned by Nugent was zoned R1-A, designated for single family residential and/or agricultural activities. The Board determined that Nugent's operations were a preexisting nonconforming use and extended to the total acreage owned at the time the applicable zoning ordinance was passed. The Gallatin Circuit Court affirmed and this appeal followed.
      
In this case, the entirety of the property was dedicated to the mining of sand and gravel. The property is one contiguous tract and no additional tracts are sought to be mined. Prior to the enactment of the ordinances, Nugent obtained a permit that encompassed approximately 227 acres. Michael Wedding, Vice President of Operations for Nugent, testified that the company is a sand and gravel mining operation and sends the mined material to a facility it owns on-site for the purpose of screening and sizing. It is then placed in stockpiles for sale. Since obtaining its permit in 2001, Nugent has invested substantial amounts of money developing the permitted property including building its plant, constructing facilities, undertaking archaeological surveys, and other activities. During the time its permit was suspended, Nugent continued to sell sand and gravel from stockpiles and never intended to abandon its use of the property as a mining operation.

The Board's determination was supported by substantial evidence. Consistent with KRS 100.253, it appropriately defined the scope of the preexisting nonconforming use to the land owned by Nugent and encompassed within the mining permit on the date the ordinance was enacted.    The Board did not err when it included property not actively mined at the time the zoning ordinance was enacted as a nonconforming-use exception to the ordinance's scope.  Entire acreage encompassed within sand company's pits and and gravel mining operations, including property not actively mined at time zoning ordinance was enacted, qualified for preexisting nonconforming use status       

The order of the Gallatin Circuit Court is affirmed.       

Digested by Michael Stevens

Full post as published by Kentucky Cases on October 26, 2008 (boomark / email).