# Board of Adjustment Hearing - January 10, 2022 > Auto-transcribed civic record · January 10, 2022 - **Permalink**: https://meetings.lexingtonky.news/meeting/5498 - **Source video**: https://lfucg.granicus.com/player/clip/5498?view_id=14&redirect=true - **Date**: 2022-01-10 - **Last revised**: January 10, 2022 - **Length**: 9,368 words > ⚠️ **Auto-generated content.** Audio from the official Granicus video was auto-transcribed with OpenAI's open-source Whisper large-v3-turbo model, run locally by The Lexington Times. Structured facts were extracted with GPT-4o; the narrative summary was written by Anthropic Claude. Verbatim wording may contain errors. See [methodology](https://meetings.lexingtonky.news/about/methodology) or [report a correction](mailto:editor@lexingtonky.news). --- ## Meeting Overview The Board of Adjustment convened on January 10, 2022, at 1:30 PM in the Council Chambers at 200 East Main Street in Lexington, Kentucky, with Thomas Glover presiding as the meeting officer. The board addressed four agenda items during the session, taking four votes on various appeals and administrative matters. The meeting included one public comment from community members. Of the four cases heard, three were approved by the board: YAHUAH'S Conditional Use Appeal, Ryan Dawson Administrative Appeal, and HPI Preserve LLC Variance Appeal, while the Ecton Farm LLC Administrative Review was denied. ## Attendance The following members were present at the January 10, 2022 meeting: • Harry Clarke • Thomas Glover • Branden Gross • Chad Needham • Raquel Carter • Joan Whitman **Absent:** • Chad Walker No members arrived late to the meeting. ## Votes and Decisions The board considered four items during the meeting, with three motions passing unanimously and one failing to achieve the required majority. **PLN-BOA-21-00072** - YAHUAH's request for a conditional use to establish a personal care facility was approved unanimously. Raquel Carter made the motion, seconded by Harry Clarke. All six board members voted in favor: Harry Clarke, Thomas Glover, Branden Gross, Chad Needham, Raquel Carter, and Joan Whitman. The approval is subject to three conditions listed in the staff report. [timestamp: 00:00] **PLN-BOA-21-00070** - Ryan Dawson's request for an administrative appeal to allow for construction of an in-ground swimming pool passed unanimously. Chad Needham motioned for approval, with Joan Whitman providing the second. The same six board members voted in favor, with the approval subject to one condition listed in the staff report. [timestamp: 00:00] **PLN-BOA-21-00066** - HPI Preserve LLC's request for a lesser variance to increase the allowable height of columns and vehicular gates was approved unanimously. Branden Gross made the motion, seconded by Joan Whitman. All six board members voted to approve, subject to two conditions listed in the amended staff report. [timestamp: 00:00] **PLN-BOA-21-00071** - Ecton Farm LLC's request for an administrative review regarding a previously approved conditional use failed to pass. Branden Gross made the motion, with Harry Clarke providing the second. The roll call vote resulted in 4 ayes and 2 nays, falling short of the required majority. Voting in favor were Raquel Carter, Branden Gross, Chad Needham, and Harry Clarke. Thomas Glover and Joan Whitman voted against the motion. [timestamp: 00:00] ## Public Comment One member of the public addressed the board during the public comment period. **Lisa Gannoe** spoke in opposition to Ecton Farm LLC's appeal [timestamp: 00:00]. Gannoe argued that the structures in question were constructed without proper approval and constitute violations of the conditional use permit. She urged the board to deny the appeal based on these permit violations. The public comment period focused exclusively on the Ecton Farm LLC matter, with no other topics or speakers participating in this portion of the meeting. ## Contested Items The meeting featured one contested item that resulted in a split vote among board members. **Ecton Farm LLC Administrative Review** The board faced a divisive decision regarding Ecton Farm LLC's administrative review request. The central disagreement focused on whether to permit an additional application related to a conditional use that was currently under appeal. Board members were split on the appropriateness of allowing this supplementary application to proceed while the original conditional use remained in the appeals process. The debate centered on procedural questions about the timing and validity of considering new applications when existing matters were still being contested through official channels. After discussion, the board ultimately denied Ecton Farm LLC's request in a 4-2 vote, with four members voting against allowing the additional application and two members supporting it. The split decision reflected the complexity of the procedural issues involved and differing interpretations among board members about the appropriate course of action. The specific details of the conditional use under appeal and the nature of the additional application were not detailed in the available meeting materials, but the vote outcome demonstrates that a majority of the board felt it was inappropriate to move forward with new applications while the underlying conditional use remained unresolved in the appeals process. ## YAHUAH'S Conditional Use Appeal [timestamp: 00:00] The Board of Adjustment reviewed application PLN-BOA-21-00072, a request for a conditional use permit to establish a personal care facility in a Planned Neighborhood Residential (R-3) zone. Angela Shaw served as the key speaker presenting information about the proposed conditional use application. The request involved establishing a personal care facility within the R-3 zoning district, which requires special approval through the conditional use process. Staff had conducted their review of the application and recommended approval of the conditional use permit, subject to specific conditions. The staff recommendation indicated that the proposed personal care facility met the necessary criteria for approval within the residential zoning classification. The Board of Adjustment considered the staff recommendation and the details of the proposed facility during their deliberations. The application underwent the standard review process for conditional use permits in residential zones, which typically includes evaluation of compatibility with surrounding land uses, traffic impacts, and compliance with zoning requirements. Following their review and discussion of the application materials and staff recommendation, the Board of Adjustment approved the conditional use permit for YAHUAH'S personal care facility. The approval allows the establishment of the facility in the R-3 zone, subject to the conditions outlined in the staff recommendation. The successful approval of PLN-BOA-21-00072 enables the applicant to move forward with establishing the personal care facility in accordance with the approved conditional use permit and any associated requirements or restrictions imposed by the Board. ## Ryan Dawson Administrative Appeal [timestamp: 00:00] The Board of Appeals considered case PLN-BOA-21-00070, an administrative appeal submitted by Ryan Dawson requesting permission to construct an in-ground swimming pool as an accessory structure to a non-conforming single family dwelling unit. Steve Taylor served as the key speaker presenting information on this appeal case. The request centered on allowing construction of the swimming pool despite the property's non-conforming status under current zoning regulations. The appeal involved reviewing whether the proposed in-ground pool construction would be appropriate given the existing non-conforming nature of the single family residence on the property. Administrative appeals of this type typically require the board to evaluate whether the proposed accessory structure would further violate zoning requirements or create additional non-conformity issues. Following discussion and consideration of the appeal request, the Board of Appeals approved PLN-BOA-21-00070, granting Ryan Dawson permission to proceed with construction of the in-ground swimming pool accessory to the non-conforming single family dwelling unit. The approval allows the property owner to move forward with the pool construction project while maintaining the existing residential use of the property. ## HPI Preserve LLC Variance Appeal [timestamp: 00:00] The Board of Adjustment considered case PLN-BOA-21-00066, a variance request from HPI Preserve LLC to increase the allowable height of a fence in a front yard area. Christian Elliott served as a key speaker during the discussion of this variance application. The request involved modifying existing height restrictions for fencing in the front yard setback area of the property. Initially, planning staff had recommended disapproval of the variance request as originally submitted. However, during the course of the meeting proceedings, the application was modified to request a lesser variance than what was initially proposed. The Board ultimately approved the revised variance request, allowing HPI Preserve LLC to proceed with their fencing project at the reduced height specifications rather than the original proposal that staff had recommended for denial. The approval represents a compromise between the applicant's needs and the city's zoning requirements, with the Board finding that the modified request met the necessary criteria for granting a variance while addressing staff's initial concerns about the original proposal. ## Ecton Farm LLC Administrative Review [timestamp: 00:00] The Board of Adjustment reviewed case PLN-BOA-21-00071, an administrative review request submitted by Ecton Farm LLC. The applicant sought a determination on whether the Division of Planning made an error in their decision to not accept an additional application related to a previously approved conditional use permit. Key speakers during the discussion included Doug Martin and Lisa Gannoe, who presented arguments regarding the planning division's administrative decision. The review centered on the procedural question of whether the planning staff had properly declined to accept the supplemental application submission. The administrative review process allows applicants to challenge staff-level decisions before the Board of Adjustment when they believe an error was made in the application of planning regulations or procedures. In this case, Ecton Farm LLC contested the planning division's refusal to accept their additional application materials related to an existing conditional use approval. Following discussion of the merits of the administrative review request, the Board of Adjustment denied the appeal. This decision upheld the Division of Planning's original determination to not accept the additional application materials submitted by Ecton Farm LLC. The denial means that the planning staff's administrative decision stands, and the applicant's additional application materials will not be processed through the standard review procedures. This outcome concludes the administrative review process for case PLN-BOA-21-00071. --- ## Decisions - **PLN-BOA-21-00072** — passed (6-0): YAHUAH’S request for a conditional use to establish a personal care facility - **PLN-BOA-21-00070** — passed (6-0): Ryan Dawson's request for an administrative appeal to allow for construction of an in-ground swimming pool - **PLN-BOA-21-00066** — passed (6-0): HPI Preserve LLC's request for a lesser variance to increase the allowable height of columns and vehicular gates - **PLN-BOA-21-00071** — failed (4-2): Ecton Farm LLC's request for an administrative review regarding a previously approved conditional use --- ## Full transcript We do have some updated imagery that's available to us, so we're going to be issuing a request for proposals soon and hiring a consultant who can evaluate that data and assess where our tree canopy currently stands, but then as well help us to develop planting plans and opportunities and places where we can plant additional trees in Lexington to not only grow the urban canopy, overall, but to try to get more trees in places where they're really not a lot currently in existence. So, you know, it's a long goal because just because you plant a tree, it's small, but in the hopes of 10, 15, 20 years down the line, we will see some really increased numbers in terms of our tree canopy citywide. Yeah, I'll tell you what, we were just in Austin on a leadership visit and the saying kept coming up about the best time to plant a tree was either 20 years ago or right now. So I think engaging in and improving in Lexington's tree canopy is a way to get everybody involved with making our environment better. Yes. Congratulations on your promotion and your new role with the city. I look forward to working with you in various roles. Yes, yes. It's already been a pleasure to work together on the Corridors Commission and yes, we're going to have a great relationship going forward. Yeah, and thank you for allowing me to introduce you to the community, and I look forward to working with you. Thanks so much. I appreciate it. Thank you. I'm Councilman James Brown, and I'm joined today by Sergeant Terry. Sergeant Terry is not a new face of city government, but he is currently in a new role as the Sergeant of a Neighborhood Resource Officer. Thanks for joining me, Sergeant Terry. I appreciate it. Thanks for having me. Last year, there were a lot of concerns surrounding public safety, and one of the commitments we made of the city government was to strengthen and double down on the things that we do well. And one of those things that we do well are our neighborhood resource officers. They were, they do a good job of engaging the community, working to be proactive to address public safety issues in neighborhoods and are good at building relationships in our community with our police department and community members and community leaders. Sergeant Terry and his new role, I think, is going to help better coordinate those efforts amongst the officers and look for ways for additional opportunities. Sergeant Terry, if you don't mind, can you just give us a little introduction about yourself and your years on the force, the police department? Definitely. Well, I'm not from Lexington. I'm actually from Stanford, Kentucky. That's about an hour south of here. I grew up in Lincoln County. So I came here several years ago. I've been with the department about 22 years, coming up. Okay. So started back in 2000. So moved on approval. Mr. Gross moved for approval. Second. Thank you. Ms. Whitman seconds the motion. All those in favor, let's see if we can crank up our electronic voting device. Probably need to stoke the flame in the furnace to get it going this afternoon. All right, the motion to approve the minutes carries. The next item of the agenda is we will sound the agenda, but before we do, we swear all all the witnesses who may speak today on any of the applications that are before us. So if there's anybody in the audience, including applicants, who will speak or thinks they may speak on any of these four applications, please stand and raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth? Thank you, you may be seated. And what I will do is what I ordinarily do, I will go through and sound the agenda. It's a short one today, that doesn't mean it's a brief one. It just means it's a short one. So I will sound the agenda and those cases for there is no opposition we will take those first if there's any opposition to the application we will hear those at the end of the of the docket of the agenda the first case is HPI preserve PLN BOA 21-66 is the applicant present applicant is present is there anyone who wishes to speak either either for or against this application besides the applicant. Anyone who wishes to oppose this application, I see no hands. So you will be the, I'm sorry, this is one that's for disapproval, so we're going to hear you last anyway. So stand by. I think, is this the one we had the revised? This was postponed from last month. That's correct. This was postponed from last month. You all should have received a revised staff report late this morning, I guess, around 11 or so. So staff is now recommending approval of a lesser variance than what the applicant is requesting. So I'm not sure if they're agreeable to that or if there will be discussion. It came out late, so we may want to see if the applicant's seen and if they're agreeable. Is it in our documents, Autumn? Yes. Okay. Well, then when we get there, I'll bring it up. Because I didn't open that email for some reason. The other thing that you'll notice about my head cold is that my voice is much lower than it ordinarily is. Lower and sexier, if that's even possible, than ordinary. So I apologize for that. If you can't hear me, just let me know. The next item on the agenda is PLNBOA 21-72. Yahuas, request for conditional variance. Is the applicant present? Present? Is it anybody in the audience who wishes to speak either in favor or against this application? Besides the applicant, I see no hands, so you'll be first on the agenda. The next application is PLNBOA 21-70, Ryan Dawson. Is the applicant present? I see. Is that Mr. Dawson? That was the contractor. Okay, contractor. Is there anyone who wishes to speak about this application either for or against? Anyone in the audience who wishes to speak against this application? I see no hands. He'll be next on the agenda. The next is Acton Farms, PLNBOA 21-71. Is the applicant present? Excuse me. I see Mr. Farms. Acton Farms, is the applicant present? Okay, a couple of you. Is there anyone who wishes to speak for or against this application? I see one hand. So Acton Farms, you'll be at the end of the docket as well. Okay, the first item on the agenda is Yahoo, am I pronouncing that correctly? Yes, I'm wrong. Please come up to the podium if you would, and you're welcome to remove your mask so we can hear you and understand you. Okay. And tell us your name, please. My name's Angela Shaw. I'm sorry? Angela Shaw. Angela Shaw, Ms. Shaw, welcome. Do any members of the Board of Adjustment have any questions of the applicant? I guess not. Thank you. Hold on a second. I don't have a question, but I didn't want her to walk away. Right, right. Don't leave yet. We're not through. Okay. I'll entertain a motion. I move for approval of PLNBOA 21-72, Yahuwah's request for a conditional use to establish a personal care facility in a planned neighborhood residential zone on property located at 2813 Snow Road, based on the staff's recommendations and subject to the three listed conditions. Thank you, Ms. Carter. Is there a second? Second. Mr. Clark, seconds. Thank you, Mr. Clark. All those in favor, register your vote electronically. Your motion carries. Good luck with your project. Thank you. Thank you. Mr. Glover, you think just a suggestion that maybe HPI, if they have any questions about the revised conditions and variants, to talk with staff before we give them a call? Yes. We'll get there when we call the case. Thank you. The next case on the agenda is Ryan Dawson. As Mr. I'm sorry, as an applicant present, please come up to the podium and you may remove your mask so we can see you and hear you. My name is Steve Taylor with TaylorMade Swimming Pools, and I'm representing the owner, Mr. Ryan Dawson. Mr. Taylor, were you sworn? I was not. Okay. Would you raise your right hand? Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth? I do. Thank you. This is an application for an in-ground swimming pool. Anybody on the board have questions of Mr. Taylor? No questions? I don't have any either. So I'll entertain a motion. Mr. Chair, I move to approve PLNBOA 21-70 Ryan Dawson's request for an administrative appeal to allow for the construction of an in-ground swimming pool accessory to a non-conforming single-family dwelling unit located within the B1 zone on split zone property neighborhood business B1 slash agricultural AR zones located at 8660 Tates Creek Road. based on the recommendations by staff and subject to their one condition. Thank you, Mr. Needham. Is there a second? A second. Thank you, Ms. Whitman. Motion has been made and seconded. All those in favor, register your vote. Motion carries. Your project's approved. Good luck to you. Thank you very much. Next application is HPI Preserve. Applicant, please come up. Good afternoon, my name is Christian Elliott representing HPI Preserve LLC. Thank you, I'm sorry, tell me your name again. Christian Elliott. Mr. Elliott, Because this is recommended for disapproval. Let me pull up the documents before I go any further, because there is an amended staff report that I have not seen. Yes, sir. We squeaked in at the finish line with the holidays and a little bit of COVID issues with my colleague. Got this in to Ms. Autumn last week, and they had a chance to review it. So I apologize for the delay on our part. It was like this weekend in the NFL. Well, all the games were like that. Last minute overtime. Exactly, we were taking it down to the wire. Hopefully we won't need another overtime. It looks like the, have you seen the amended staff report? Yes, sir, I saw it this morning. This is my first viewing, so I apologize. Give me just a second. No problem. It looks like from the recommendation that the recommendation is to approve the columns and gates from a height of four feet to a height of five and three quarters feet. Is that correct? Yes, sir. Are there any other differences in the staff report? Autumn? based on the updated justification statement that the applicant provided staff was comfortable making the recommendation to approve a lesser variance and on the conversation that you all had last month we still were not comfortable with requesting the full variance that they had initially requested for up to six feet and three quarters but but we felt that this was a good compromise that would fit in well with the existing non-conforming fence that's five feet three inches I believe along the front edge of Red Mile Road. I understand. Does anybody have any questions for Mr. Elliott? So Mr. Elliott, are you okay with that? I mean, is that? Yes, we can work within the 5.75 feet parameters. Okay, good. Thank you. Any other questions? Any other questions? I don't have any questions either. So in that case, let me see if I can negotiate my way back to. If the chair is ready, I'll make a motion. I am ready for a motion, Mr. Gross. Thank you. Okay. I move to approve PLNBOA-21-66HP1 preserve LLC of a lesser variance to increase the allowable height of the columns and vehicular gates from four feet to 5.75 feet for the reasons set forth by the staff and subject to the conditions set forth by staff both of which are in the amended board of adjustment staff case report that went out today thank you mr gross uh is there a second Second. I heard Ms. Whitman first, perhaps because she's closer. And so motions may have been made and seconded. Please register your vote. Motion carries. Good luck Mr. Elliott with your project. Thank you. We appreciate you giving us the extra time in the city working with us. Sure. Glad it worked out for you. The last item on the agenda is PLN BOA 21-71, Acton Farm, LLC. Will the applicant please come forward? Good morning, Mr. Chair, members of the board. We're back again. Welcome back. we're we're familiar with with the property and with the uh dispute uh we've read the case report but we'd like we'd like to hear from you that uh a little bit about what this uh i think in your own words what this most recent matter is about so tell us this is an administrative appeal from the notice of violation that was issued by director jim duncan on november 5th of last year uh concerning the construction of what we believe were temporary greenhouses at 75 24 old richmond road i just want to hit touch on a couple things one is that the staff report basically says that the property has been a rat has a rather contentious history with the board of adjustment. My client purchased the property. He was the high bidder in July of 2020. Nothing that's happened on the property had anything to do with my client. This board granted him a conditional use in September of 2020, and I think his conduct has been anything but exemplary, and so I don't really want to poison the well, if you will, with some of the past history which my client hasn't had any participation with. The second thing is, it's not really in the staff report, but you know, my client talked to staff maybe early last year about temporary greenhouses. And I don't want to put words in the staff's mouth because they've been nothing but conscientious, helpful, professional. But there was a misunderstanding as a result of that conversation and my client thought that he had the the go-ahead to to put this and that the city really doesn't regulate temporary greenhouses and I think there were two things really where the mistakes were one is that the period of time in order to qualify as a temporary greenhouse under the city's ordinances is shorter than my client was intending to use it these are were poles with plastic over them that just really intended to protect plants in the ground over winter. And obviously we've missed that opportunity for this year. And the second thing is that even though they were put in line with the existing permanent greenhouse, that existing permanent greenhouse has a 30-foot variance for it to be within the 30-foot setback. And so that, you know, that was a mistake. So it was, and I apologize, myself, you can hear, with my voice, I'm getting over something as well. So it was a good faith mistake, and as unhappy and tragic as this result is, because, you know, these poles in plastic still were, you know, tens of thousands of dollars. We, rather than, you know, go through a bunch of appeal stuff, we could have tied this up, continue to use them and appeal it and take it to Circuit Court, all that kind of stuff. My client has always wanted to be in compliance. We want to be the good guys here. And so he took them down, and we negotiated with the cities because he had to talk to the people who installed them and sort of figure out how to do that. But they were, by December 15th, the agreed upon date, they were down. So it really wasn't willful noncompliance. It was a mistake of understanding based on a conversation with the staff. He had a conversation with the staff for the sole purpose of trying to understand what he was allowed to do, what he could and couldn't do at the property. And so he was acting in good faith. So the November 5th notice of violation, and we're not here to argue the merits of that. So we're not arguing about the variance. We're not arguing about the conditional use permit. We're simply, let me back up. We had a meeting with the staff, with myself, Mr. Ecton, Director Jim Duncan, Tracy Wade, Tracy Jones, Ms. Godewis, and to talk about this. And at that meeting, it came up that, you know, we would, Mr. Ecton would not be allowed to apply for the variance that they said would be needed and possibly an amendment to the site plan. because of this policy that the city has that, you know, that board actions that are on appeal are basically, let me say this differently, that you can't file additional applications or revisions to a conditional use while it's on appeal or as a staff report says, while it's in litigation. And so I would remind the board that the board approved this conditional use for Mr. Ecton. It was approved by the Fayette Circuit Court. And so this was an allowed, approved use. I understand the case might be different if the board had denied his use. but this is a situation where he's in full compliance and unable to come to the board to ask for a change in the use in order to you know to correct the situation which we had a misunderstanding about and to ask the board whether it's appropriate to have you know these temporary greenhouses over the winter time to protect the plant so they can be in the ground Mr. Ecton is an Ecton Farms. He's not a fly-by-night operation. So he was hired to re-landscape the Louisville Airport. He has re-landscape. I don't think we need to hear the history of this, Mr. Martin. Let me see if I can summarize what the dispute is. And I think it's a single issue. And I think it's a legal issue that whether or not an applicant can file an application for a conditional use while the approved conditional use is on appeal. Is that the issue? That is correct. Now, is that the only issue before? That is correct, yes. Well, let me ask you a couple of questions based on that then. The issue that's, because this sounds like a legal issue rather than a factual issue, and maybe a question of policy. I understand that the case went before the Fayette Circuit Court. Is that correct? Yes. What did the Fayette Circuit Court do with it? It upheld the board's grant of the conditional use permit. Did it issue a final order? It did. And it's that order that's on appeal, is that correct? That is on appeal to the Kentucky Court of Appeals. Okay. And the appellant has filed their brief, and our brief is due in about six weeks. I understand. Now, the lawyers among us know the process and the process on appeal. So it seems like the issue is really about the policy of the planning staff, whether or not to accept an additional application if there is a matter connected with that application that's on appeal. Now, what I'd like to do is to hear from the staff, perhaps from legal, about the policy itself. I've got a few questions. If I might just make a couple of short statements about that. Sure. When we met with staff and Director Duncan, Ms. Jones had agreed to kind of, because I brought this up at the meeting, It's like, well, that sounds like a pretty definitive policy. What's the legal basis for it? And they agreed to look into it and get back to me. And the word back was basically this complicated issue, but it's our longstanding policy, and that's what we're going to do. And so to my ears, my legal ears, the policy sounds like this is the way we've always done it, and we think this is the way we should continue to do it. So, but I think that, and the other thing I'd say is that the staff allows the conditional use to go into effect, even though it's on appeal. And so there is, there obviously is some risk to the applicant if it's overturned at the Kentucky Supreme Court six years later, applicant has to cease use and possibly tear something down. And that's no different than what this would be. Right, I understand that. Anybody have any other questions of Mr. Martin before we let him sit down this time? Thank you. Have a seat. We may call you back. I'll be close by. Ms. Jones? And Mr. Glover, if you recall, while not directly on point, We had a similar issue with the office building at High Street and Mill, in which the applicant wanted a demolition permit. And I believe we ruled in favor of the applicant. But I think Judge Travis overturned our decision. And I'm not sure if Ms. Jones has, if she thinks that's a comparable case to this one. Yeah, I don't know. Let's hold off on that until we get through the vagarities of this case. Ms. Jones, I understand this is a long-standing policy, is that right? That's correct. Is it a written policy? It is not a written policy. And the reason why is because our position has been over the years that, based on KRS-10347, if an applicant or another aggrieved party chooses to appeal onto either, you know, whatever entity it is, in this case it's a Board of Adjustments, so it goes to the circuit court onto the Court of Appeals, that the jurisdiction transfers from the administrative body to the circuit court, then to the appellant court. And so it has been our legal interpretation and position over the years that when that happens, that, you know, as you pointed out earlier, the issue on appeal is this conditional use. And this conditional use is based on the site plan that you all saw. all the circumstances that were discussed during that time. What's being proposed at this point would constitute some type of an amendment to that conditional use and some change into what you all approved, and that's exactly what is on appeal. So it's been the law department's position that over the years that we shouldn't jump back into something that jurisdiction has gone on up to the courts on appeal while that appeal is still pending. Did either court issue an injunction against either party on appeal about not amending the application or not asking for a new application or anything like that? Is there any prohibition by the court saying that the applicant can't do what they have done or want to do? No, there were no requests for any type of injunctive action, and there were no granting of that, which is slightly different from the situation that you discussed on High Street and also from a situation that some of you may have, or maybe none of you, I can't recall, were on the board at the time we had the issue at Boone Creek with the zip lines. But in both of those cases, injunctions were issued, so they're a little different. Yeah, I remember Boone Creek well. I don't remember. I don't know who else. Really? Nobody else? Mr. Clark, do you remember Boone Creek? You do? Yeah. Some of us have. Yeah. I'm the oldest person on here. Those injunctions were a little different, too, because in Boone Creek, the injunction was against the activity and in the other case, it was about a demolition permit. So it's sort of different circumstances. Who were the parties on appeal in this particular case? In this particular case, the appeal was made as an aggrieved party by Lisa Gonneau, who's a neighbor. She made the appeal to circuit court, and then she also, after the circuit court upheld this board's decision, made the appeal to the court of appeals so it's the government in in form in the form of the board of adjustment the um mr ecton and then she's the appellant in that case okay any questions from miss jones or to miss jones while she's here well yeah i got a quick question um Okay. It looks like you guys issued a notice of violation on November 5. Doesn't that fly in the face of the loss of jurisdiction if you guys are still enforcing provisions? Well, we're required to continue to enforce what's been granted. I mean, certainly that argument could be made, but it was based on what was granted by this board. And so when a complaint is made to the Board of Adjustment Staff or the Zoning Enforcement Staff about something going on that wasn't granted by the board, then we usually investigate it as some type of a violation. But that's not before us? No. That notice file? Okay. No, Mr. Chairman Glover pretty much summarized what one issue before you is. Well, what would happen if we were to grant Mr. Martin's request to grant this appeal? Well, and that's part of the reason for the policy is that we don't want to have our boards and commissions changing things or altering things so that we have potentially inconsistent results up the chain because we don't know what the Court of Appeals is going to do. You know, obviously we know in this at this point, we know what the circuit court did, but we still don't know. And all the briefs haven't been filed to the Court of Appeals. I mean, I'm assuming they're going to look fairly similar as they did at circuit court, but we still have to wait for a ruling from them. So, you know, our policy and our interpretation about who can make the decisions about this stuff has always been also based on we don't want to allow some type of decision or activity that's going to in any way create an alternative set of facts that are different from what whatever court is considering it is considering at the time. So that's, you know, that's one possibility is that right now they're only considering was the grant of the conditional use based on what you all saw appropriate or not appropriate and supported by the substantial evidence that you all heard and based your decision on. if that's changed in some fashion while that appeal is pending, they won't rule on what the changes are, but you can see how inconsistent results could happen because you all could then have granted some type of an amendment or some type of a change or some type of a variance, and then the court could say, I mean, I guess as long as they agreed with the circuit court, it wouldn't necessarily cause a problem, But in the instance where they might not, they could overturn it, and then we'd have these other actions that would have been granted. So that's a part of trying to be consistent with who's holding the jurisdiction. Yeah, I can see the complications that would arise from that. Well, that depends. You know, if we have a case not in front of you all, but one of our other boards right now where the judge reversed it but didn't remand it. And so in that case, we took the position when the applicant wanted to file something different and new that they could do that because the existing one had been completely reversed. It basically didn't apply anymore. The court also has the authority, though, to remand it back to you all. So we'll have to wait and see what they would say. I guess for me, my concern is, you know, like prohibiting them from even going through the application process. I mean, would it not behoove us to allow them to apply and then look at what they're asking for and see how at that? Because, I mean, just this particular case is one thing, but for other people as well, they may be applying for things that really would not have any effect, or aren't those decisions that we could make after reviewing the application? Well, that's not a circumstance that we've dealt with before. but if you were inclined to do that, we would probably need to look very closely at what you're looking at and also any language in whatever action you took so as not to counter, I'm trying to think of the best way to do that. We would have to think about that in terms of not to put something else on the table while it's still being considered at the Court of Appeals. We would just be deciding to allow them to apply, right? We wouldn't be making a decision. I'm with you today. I'm with you. But then if you made that decision and allowed it, then we would definitely need to consider about exactly how we would word that because we just would need to be careful with that, I think. Yeah, that's the issue. Is there, we've done it in the past, but is there a way to, you know, I guess my main concern is creating a precedent that would apply to other boards and future boards, perhaps future configurations of this board that might, I don't know, affect that policy. And I'm always concerned about creating or making a decision here that has future ramifications and creates conditions that we haven't anticipated in making that decision. So if we, for example, if we deny the application, then that solves the problem. If we grant the application, it creates issues. I'm not sure they're insurmountable issues, as Ms. Carter says, the devil's in the details, but I hesitate to try to even define what the parameters of our decision are. Is there a decision that we can make on this case, Ms. Jones, that would not have precedence in the future if we granted the application. Well, I mean, we can attempt to word it in such a way that it applies only in these particular circumstances, but there's no guarantee these circumstances might not happen again, as you were pointing out. The only other thing I can think of off the top of my head, and I am thinking that's off the top of my head right now, but would be that if anything that you would allow and consider would be subject to, like, for example, if you were to allow them to file this and in your consideration you granted some part or all of what they're asking for, then that would have there may be some way to condition that so that if the court of appeals overturns it it would also overturn any action that you all took subsequently. That might be a possibility. We have not done that before and we have to be very careful in the wordsmithing of that but you know the result we do not want to end up with is a conditional use that gets reversed for some reason, and then amendments to that conditional use or variances that go with that conditional use that are still standing when you don't have the conditional use anymore. Yeah. How long has the case been at the Court of Appeals? Do you know? Well, I think it was filed in maybe August. I mean, you know, there's the period of time, more than you want to know, but the period of time where it gets reviewed by the court. You have to file the record. You have to, you know, all those things. And then there's a 60-day period for the appellate to write their brief, which they just filed. And now we have 60 days to write hours. So it's, you know, it's been some time, but it's not abnormally long time. It's just the court of appeals time. Yeah. But in your experience, how long does the court of appeals take to rule on a case before it? Too long? I don't know. That's a general consensus. There are some cases that they rule on more quickly. There are others that, for whatever reason, maybe it's the panel. They assign a three-judge panel to each case. It's hard to say. It's hard to say how long they may or may not take. My impression is that if it's a case that they don't hear arguments on and that they feel like is more straightforward, they might rule faster. Have they granted or denied oral argument in the case? I don't think they've issued a ruling about that yet. Okay, not that far along. Mr. Gross, what's your experience? Oh, my experience at the pellet level is it's a crapshoot. I've had cases come back quickly. They give me a written order, and then I've had other ones where it just seems like it falls into a black hole. I think it is who gets the panel and whether that panel has the particular expertise in the area. But I would say even if we were to deny the applicant's application today, Mr. Ecton would be able to appeal that to the circuit court, presumably consolidated to the existing case, and have a ruling by the circuit court judge. on whether our denial was appropriate or not. And I assume the same with an approval. An approval, yeah, that's right. If it was approved, Dr. Gonneau could take the same steps, presumably. Sure. Any other questions for Ms. Jones? I'd like to just comment. It seems like we're going around in circles here about a legal matter when in fact it seems like to me the issue is what harm is there, and I can ask Mr. Martin this, what harm is there to wait until the appeal is decided and then make your application for an extended conditional use? I'd like to ask that question just in general, if you would, Mr. Martin. Thank you, Mr. Clark. Well, I guess that the harm is basically the denial of use, on some incremental level, of the use of the property. And, you know. But you said it's too late to do what you were going to do. But, you know, if there's an appeal to the Kentucky Supreme Court, we could be in a couple more years down the road. So just assume for the sake of argument, divorce it from this case, that you have someone, objector, who has absolutely no basis for the objection, but they file an appeal, and then they file an appeal of that decision and that decision. This objector can basically tie up the property for years. And so, now I understand if you, the Board of Adjustment, deny the use. But if you just have some objector, you're allowing them to basically control the use of the property for a period of years, even though you've approved it and the circuit court's approved it. So you're basically getting, putting a substantial amount of power in the hands of a single objector. I can't agree with that because... Now we're discounting the judgment of the appeals court. Well, in my experience, an appeal before the court of appeals takes approximately two years, or probably an average of two years, and I've had many appeals to the court of appeals. After that, if the case goes any further, and they typically don't, quite frankly, but I've had several that have, it could take another three, perhaps four years beyond that. So I think the answer to, in my opinion, Mr. Clark, to your question, is even on favorable rulings all the way up, and I just finished, I just concluded a case that was concluded very quickly and that I won't go into, but that case took two years and we didn't even wait for the court of appeals. So there's no telling how long it might have taken. So I am not persuaded that just letting the courts have their way is the best answer, especially on a matter in which the applicant has prevailed in the circuit court and in which neither the circuit court nor the court of appeals has issued an injunction to this body to make a decision on a pending application or even whether a pending application is appropriate. I think the only issue before us really is the question of the policy, the longstanding, although unwritten policy of planning to not accept applications. and in fact in derogation of their own regulations. So that concerns me probably more than anything else. Is that our purview to make that decision as a board of adjustment? I think it is. To make that decision? I think it is, yes. Yeah. Don't you, Mr. Gross? I do. I think I'm leaning maybe a different direction than Mr. Glover is. I think it sounds to me the policy is reasonable, given the reasons. So I'm more likely than not to deny the applicant today. We'll listen to Dr. Gonneau, but right now I think the staff's reasoning is reasonable to me. I think there's a reason for it, but I think the reason for the outcome of the staff's decision or the unwritten policy itself creates undue harm. I agree. And that's where the problem is. Well, thank you, Mr. Martin. May I make two short statements? Sure. First, I think I agree with Ms. Jones that the board can actually condition any change in the use. You know, one of the things on whether it's upheld on appeal or not, one of the things we want to do is we've got approval for a second entrance, which we think would be safer to the property. So this is going to create a safety issue over time that we can't put in the second entrance. And I guess the second thing is, if you step away from this property and just look at the legal basis for this policy, this vague legal basis could be used to justify denying an applicant's use of a conditional use, even if approved, if it were appealed. Well, we just don't want to complicate the waters on appeal. If they go ahead and build it, we won't be able to, they have jurisdiction. The fact is the same sort of vague policy basis for this could be used to justify a different result on whether or not they can even continue to use their property if it's appealed. And so I think what that tells me is that it's something they, I think people honestly and fairly think is the right thing to do. I think it's unfair to my client, and I think there are ways to mitigate that where it's fair to applicants. And, you know, if they're turned down, but if that's not the case, they have here. All right. Thank you, Mr. Martin. Before you leave the podium, can you identify who's with you? Everybody's wearing a mask. Well, this is Mr. Michael Ecton, and he is the owner of Ecton Farm. and he while on zoom he's not always screeching close to the screen but he's always been present for all of our hearings and i appreciate your taking time out your valuable time to hear us today okay thank you mr martin we have an objection from the from the audience ms gonneau you want to come up and speak to us Sure. Well, hopefully you received, for one thing, a letter from our neighborhood president, Mary Diane Hanna. And I also submitted a letter as well. I have a couple of photos that I submitted that I would like to show in just a moment. But first of all, first, I appreciate you allowing me to speak for decision deliberation. liberation. I think it's important for the board to hear the other side as well as the public for the record. And so I've decided I'd like to read my letter, first of all, to the members of the Board of Adjustment. We've got the letter. I would still like to read it, please. I'm allowed to do that. I don't think you can make that decision. That's a decision that's up to this board. If your testimony is comprised of the language that's in this letter, we already have that, and it is part of the record. And we don't need to repeat what we've already got in the record. So if you have something other to say than is what contained in your letter, we'd be happy to hear it. If you have any new matters to bring up, we'd be happy to hear that. And also, if you have anything to add about the legal issue that's before us today, which is the only issue before us, we'd be happy to hear that as well. But I don't think it's necessary for you to read your letter. Okay. Well, I've been allowed to do that before, and I know it's been done for many other folks. So I just would like to make that acknowledgement. I think it's important to know that I made some complaints on September 3rd regarding some activity that began on the property, including some gravel being brought in. and Mr. Martin had responded to the division of planning that they were for the rows of plantings, which was actually a complete fabrication. Actually, nothing has been planted outside anywhere on the property and no trees or shrubs are currently occupying the 6,500 square foot accessory greenhouse that is on 1.46 acres. And then after this began, the new structures, two new greenhouse structures began being constructed. So when you guys approved this back in September 2020, a plant nursery definition is engaging in the outdoor cultivation of only trees and shrubs for transplanting, and that's according to the zoning ordinance. So as of January 2022, no ground has been broken to establish a primary use for plant nursery on the property. So the zoning ordinance also states then that a greenhouse can or may be an accessory structure, and the 6,500 square foot existing greenhouses there was granted only as an accessory structure on the property. So the accessory structure cannot be constructed on the lot before the principal use, which has not begun. So now we've got a 6,500 square foot accessory greenhouse, and he constructed two very large other greenhouses on an acre lot. And so those three structures can't be subordinate and incidental when nothing is planted outdoors on the lot. And so if you're not using 6,500 square foot greenhouse at all, why would you need another application to expand the use? I think that's a very valid question. The notice that they were given on November 5th also states that the structures don't meet the required minimum setbacks from the property lines. That's very clear. So numerous additional variances would need to be required before additional structures were added to that lot. So all requirements for a non-conforming lot of record in an agricultural rural zone, things like parking and the yard, cannot legally be met to conform there. Mr. Martin, in his appeal for Mr. Acton, discusses this issue of one disgruntled person. And I think there's been a pattern of trying to stain the reputation of neighborhood members to draw attention away from the facts. I am only one of the disgruntled neighbors. As I said, there's a letter from the neighborhood president as well. And, you know, there's other people opposed to the way that this conditional use has been handled. These structures continue to be called temporary, but they clearly are not temporary as they're anchored in the ground in concrete. So the photos that I submitted that hopefully we can see here is to confirm that these structures were not completely removed on December 15th as they were supposed to be done. The greenhouse post being placed in concrete is also in a letter from Doug Martin to planning staff, which I have here. It's a letter dated November 19th. As we discussed, Mr. Acton will cut off the support poles at one foot above the ground, and he will remove the remainder of the above ground poles, structure, and plastic. Because some of the soil on the property appears to be non-homogeneous field material from the construction of I-75, the soil was simply too loose in several places to support the poles without concrete. So I can show you that the structure remains and it is violating the law. So a definition of a structure according to the zoning ordinance means anything constructed, the use of which requires permanent or continuous location on the ground, which it still does, or attached to something having permanent location on the ground. These poles are still standing straight up in the air, and there are things supporting it by concrete on the ground as well. So this is indeed a permanent structure. They've taken part of it down, but what remains there is still in violation. I believe that Mr. Ecton's costs for the new structures aren't relevant because he had no permission to build these in the first place. he already has two conditional use permits one for swigert avenue and one for old richmond road and so i believe fully that he must know that he needs permission from the board of adjustment regarding the construction of such large structures that were not part of his original plans nor were they approved by you all um i believe this is a disregard for the neighborhood and for you all making decisions and for the division of planning. So I fully support the staff in this, that the notice of violation was warranted and appropriate, and that no other application should be allowed until the court of appeals case is settled. These structures need to be completely removed as they are still in violation because they were not taken down completely. I would like to say, too, that this is not, the city's policy is not an arbitrary policy, as Mr. Martin would like to say. Because any person can appeal Board of Adjustment Decisions, LFUGC's policy allows any disgruntled person to essentially shut down a business by filing appeal after appeal. This is not arbitrary, actually. KRS 100 allows anybody aggrieved to come before the board. And we have done that many times, and I'm guessing we will continue to do because that's our right as well. I just... Well, actually, if you have the photos, I'd like to show the photos. I sent them digitally to you all. See, Autumn. We do, but the ones that pop up, they don't, the Zoom is too Zoomed out for us to get a good sense. Yeah, they're bigger than we can see. They don't fill the screen. They're larger than the screen. But, I mean, I think we're familiar with, okay. It's also important to note that this is not before you all today. So, this is actually the structure that is remaining. So it is attached to the ground, which means it is a permanent structure because it's in concrete and the wooden poles are in concrete and remain. This is clearly a violation. In the next picture, there's another picture. It's really hard to see this way. But as you can see, that's my drive. And there actually are, yeah, there's two new greenhouses there, which butt up against the 6,500-square-foot greenhouse on 1.46 acres. So that's a lot of an accessory structure. It's very, very interesting. So you can see what it looks like when they're fully constructed there. In the 2006 original construction of this property, there was considerable discussion about this rocky rise here in this part of the property, which is why it was not recommended that anything be built there because you really can't shield it from the neighboring properties. So I think we still have many, many issues here regarding this property. Not only this legal issue, but I think there's still some things not being followed in terms of plant nursery, accessory structures, incidental and subordinate. I think we've got a lot of issues here. and thank you for your time and I appreciate the opportunity to be able to speak on this matter. Thank you. Do any members of the board have any questions before she leaves the podium? Yes, I do. Ms. Gano, just let me say, I think I said with the legal issue we were going around in circles and I kind of feel that way about what you've said because, well, even though I understand your concerns, I worry that we're looking at this as if we are debating whether these additional conditional uses are appropriate. That's not the issue here. And so I'm a little concerned that we're, again, going around in circles, because our issue is whether the decision of the law department is correct, that we, well, you understand that. So I think that we have to back up a little bit and be sure that we're talking about the right issue here. Yeah, well, these are not temporary structures. And he built these without your all's approval, without the neighbors having any say in this matter. And I think that's important as well. Thank you, Ms. Gonneau. Any other questions for Ms. Gonneau while she's here? Thank you. I have the same concern about the unwritten policy. The policy was issued without the input of anybody having comments on it. I understand it's a long-standing policy, but I still have issues with it. Anyway, what's your pleasure on the matter, any further questions of legal or Mr. Martin? We want Mr. Martin to have an opportunity to finish and rebut, and then we can close? I'm sorry? Do we want rebuttal and then close? I don't think we heard anything from Ms. Gonneau about the legal issue that's before us, other than it hadn't been stated already. I'm comfortable with that. Yeah, I don't know that there's any. I mean, I think that does everybody on the board understand the issue before us? I think we do. Yeah, personally, yeah, I agree with you. just a blanket policy not to accept any applications related to beast property that's up on appeal. I would not necessarily approve that. But I think in this instance, I think that what they're requesting is so tied to the underlying use that is on appeal that I would feel comfortable denying the appeal and relying upon staff's reasonable policy. But I would not necessarily blanket that policy for every matter. Well, by you stating it that way, that's why I wonder should we accept the application and then make a decision based on the application so it's not a blanket policy anymore. It's that the application is made, we can take a look at it and then make a decision that this is tied too closely to what's already in litigation. I think I would do the opposite. I would say that it's so tied to the particular issues that are up on appeal that I would not take the application. Because then we've got possible additional new facts and arguments that the courts have not seen related to the underlying appeal. But I'm not saying I would do this for everyone. So, for example, I could see I get a conditional use permit for a drive-through on a piece of property, but I want to do something else now and seek another application that's unrelated to what's on appeal, which is the drive-through. I would be comfortable taking that application. I would not necessarily be comfortable taking the application for them to expand to a two-lane drive-through in the middle of an appeal. The board generally wouldn't have that information until the application is made. That's the catch 22. We won't have those details generally. That's the catch 22. We don't have, if the application is prevented from being made, then we don't know to what extent it's tied to the original conditional use. That's my opinion. Well, I think this hearing gave us enough for this application. I think it would be most inappropriate to grant the applicant the permission to make additional appeal for conditional use in light of the fact that it is being litigated as we speak. I think it would be disrespectful to the process. And I just don't see how we can do anything but agree with the staff at this point. But whether that's a longstanding issue or not, I think the facts support the staff's concern. Well, are you ready to vote? I think we are. Okay. I'll entertain a motion. Ms. Carter? I think mine will lose, so you might as well make yours. Well, we'll need one before we can have another. I mean, that's the problem. I'll say I don't mind making a motion. Okay. I hear by move that we deny applicants' request of an administrative review to determine whether the Division of Planning made an error, intercision, or not accepting additional application related to the previously approved conditional use. the issues which has been appealed, currently being litigated, based upon in this particular instance, finding that the underlying application based upon testimony today would be so related to the litigation that I think it's reasonable for the staff to deny an application in this instance. Does that work, Ms. Jones? All right. So moved. So moved. Is there a second? Mr. Clark seconds. We'll see if we can get our electronic gear up. Looks like the motion carries. Is that correct? Am I reading that correctly? Motion passed. Yes, four to two? Yep. Okay. The application is denied, and good luck in the future with everybody. Thank you very much. Thanks. All right, that ends the docket. Are there any board items that any board member wants to make before we adjourn? I have one board item. I won't be here in February. I'll be elsewhere on the date of the board meeting. So I'll let you all have some practice in. Mr. Needham, I think you're vice chair. He is the vice chair. He needs some reps, Tommy. This will be good for him. Did we not pay attention to that being Valentine's Day? Are we just heartless? Are we on? Is our next meeting on Valentine's Day? I'm sorry? It is. It's on Valentine's Day. Ah, okay. Well, I expect sweets from the staff. Probably. Probably. Are there any staff items? No staff items. The next meeting will be February 14th. Is that still Valentine's Day? That's what we were just saying. Yeah. Heaven's sakes. You need to find a girlfriend, Tommy. You know, it's interesting. It's interesting. For about 30 years, I was always skiing on Valentine's Day. And during that 30 years, from the early 80s until I finally quit skiing, the manner of celebrating Valentine's Day changed from just being a nice little day to talk about it, maybe a card or something like that, to an all-out commercial tsunami. And I was stunned when I was home for the first time on February 14th, about six years ago, to find out what Valentine's Day had become. So for those of you who will be here next month, those of you who are here will see each other, and you won't see me. And unless there are other matters, this board is adjourned. Thank you. Thank you. Yeah. Thank you. Oh, you're the best