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Can’t Get Around Access Limit
by Ron Davis
Neighbors of a Kentucky shopping center have thwarted efforts to provide an additional access point for the center property.
The shopping center, located in Owensboro, now has only a single access point to and from a main road, known as Fairview Drive, that borders the 11.83-acre property. The neighbors, who own residential property just adjacent to the center, had opposed the center’s development from the onset. But the Owensboro planning authority granted the zoning change needed for building the center.
That change, however, was subject to a local court order that prevented any further access points from Fairview Drive to the shopping center property.
The shopping center’s owners subsequently sold a small tract of their property to another developer, which in turn asked the local planning authority to permit an access point for its property along Fairview Drive. Such a request was in violation of the court order denying such a second access. The local planning authority nevertheless granted the request.
The neighboring property owners objected to the granting of the second access point. They argued that the planning authority’s action was invalid and contrary to the law because it disregarded the court’s decision limiting access to and from Fairview Drive to one location.
The planning authority responded that the change to allow a second access is a “discretionary matter” properly subject to the planning authority’s right to approve final development plans.
A Kentucky appellate court ruled in favor of the neighboring residential property owners, explaining, “The planning authority is availed of the authority to approve a development plan that comports with the zoning regulations. However, an action that seeks to deviate from the text of a law requires an affirmative vote by the proper court.... The Owensboro Court chose clear, unambiguous and mandatory language of limitation (‘shall be limited to a single access point’), and one would be hard-pressed to argue that the court meant something other than what it said or that this limiting language should be afforded less weight than other elements [of the zoning regulations].” (Clark v. Kirkland, 2006 WL 1195895 [Ky.App.])
Decision: May 2006
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