Agenda - Planning Commission - 12/03/2008

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"\ ( ) (~ ...........~. I I November 10, ;2008\ Volume 21 No. 21 In 2002, Sebastian applied for a preliminary subdivision plat for the remaining 59 acres. The preliminary plat proposed residential one-acre lots on the 59 acres. The P & Z denied approval. because, among oth- er reasons: (1) the preliminary plat for the 59 acres, la~t reapproved in 1966, had long since expired and was not eligible for reapproval or an extension of its past approval; and (2) the plat did not meet the mini- mum 10-acre lot size requir~ment for the A-R zone. Sebastian brought legal action contesting the P Be Z's decision. Sebas~ tian argued that the P & Z was estopped (essentially stqpped because it would otherwise be unfair) from denymg the request for reapproval of the preliminary subdivision plan. He Cited the prior approvals given in the last 39 years, and argued those prior approvals vested certain prop- erty rights in him. Essentially, he argued that the P & Z could not be al- lowed~6 enforce the zoning regulations now because it did not do so in the past (i.e., it had not enforced the 10-acre minimum required on lots . approved after 1967). The circuit court found against Sebastian. " On Sebastian's appeal, the Court of Appeals held that the doctrine of equitable estoppel could. be. inv!Jked against a: governmental entity" only under exceptional circumstance.'TJ;1e court found that the facts ill Sebas- tian's case diri not rise to that level. Sebastian appeale~: DECISION: Affirmed. u The Supreme Court of Kentucky held that the history of the P & Z's prior approvals did not equitably estop the P & Z from denying Sebas- tian's 2002 preliminary plan, which had lots under the minimum size re- . quiredin the A-R zone. The court said that because Sebastian's proposed development of one-acre lots conflicted with the then current A - R zoning of minimum 10-acre lots, the P &: Z could not approve it. The court rejected Sebastian's argument that regardless of the current zoning,.the P &Z shoUld have been equitably estopped from denying the 2002 preliminary plat because of the long history of prior approval of the residential developments in the subdivision. The court said that equitable estoppel could be invoked against a governmental entity only where "ex- ceptional and extraordinary equities are involved." Specifically, in order for equitable estoppel to be invoked, the P& Z had to: (1) falsely repre- sent or conceal material facts, or at least attempt to convey the impression" that the facts were other than those Sebastian subsequently attempted to assert; (2) intend that such conduct would be acted upon or influence Se- bastian; and (3) know the real facts. And, Sebastian had to: (1) not know the facts in question and lack the means to learn of the truth as to them; (2) rely, in good faith, on the P & Z's conduct; and (3) act or fail to act based on that reliance so as to change Sebastian's position. @ 2008 Thomson ReutersJWest 3 65