Agenda - Planning Commission - 12/04/2014

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November 10, 2014 I Volume 8 I Issue 21 Zoning Bulletin The Board argued that a persistent and ongoing violation of the zoning law by Boone Creek irreparably banned the public interest in law enforcement. Boone Creek maintained that the "intangible injury of a vague and general- ized diminution of public,confidence in government that might arise pending the full and final adjudication of the zoning violation" did not meet the "irrep- arable harm" standard required for an injunction. DECISION: Judgment of district court reversed, and matter remanded. As a matter of first impression (i.e., the first time the court addressed the is- sue), the Supreme Court of Kentucky held that when a government is seeking a temporary injunction, "irreparable harm is presumed where the government is enforcing a statute designed to protect the public interest." The court emphasized that under this rule there is only a presumption of irreparable harm, which opponents of the government's motion for an injunction may rebut. Thus, the court concluded that where Boone Creek was violating the zoning law, irreparable harm was presumed and thus it was not the Board's duty to present other evidence (such as environmental damage or damage to neighboring property owners); rather the burden was upon Boone Creek to rebut the presumption of irreparable harrn. Accordingly, the court affirmed the grant of the Board's motion for temporary injunction, ceasing Boone Creek's nonconforming recreational activities. In so holding and concluding, the court explained that a finding of irrepara- ble harm is an essential prerequisite of the issuance of a temporary injunction pursuant to Kentucky law, CR 65.01. The court found that "the affront to governmental authority presented by an ongoing violation of the law and the enforcing body's inability to promptly resolve the violation could be regarded as irreparable harm so as to justify the issuance of a temporary injunction to halt the violation pending the full and final adjudication of the matter." The court said this was because "a government's inability to enforce its laws and to promptly rectify a violation harms the government by undermining its authority and jeopardizing the government's esteem in the eyes of the populace." "Consequently," found the court, "the irreparable harm which would occur in this case in the absence of an injunction is the genuine but intangible harm relating to the power and right of the county zoning authori- ties to correct open violations of the applicable zoning code." See also: Miami -Dade County v. Fernandez, 905 So. 2d 213 (Fla. 3d DCA 2005). See also: Polk County v. Mitchell, 931 So. 2d 922 (Fla. 2d DCA 2006). See also: U.S. v. Blue Ribbon Smoked Fish, Inc., 179 F. Supp. 2d 30 (E.D. N.Y. 2001), aff'd, 56 Fed. Appx. 542 (2d Cir. 2003). 6 @ 2014 Thomson Reuters