RENDERED: DECEMBER 15, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0217-MR

PAMELA D. BLAIR APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE

ACTION NO. 20-CI-004093

LOUISVILLE METRO BOARD OF 

ZONING ADJUSTMENT (“BOZA”); 

GARY SHEARER; GDS BUILDER 

AND REMODELER LLC; HARINI 

CHENNA; RANDALL CAMPBELL; 

RONALD J. BIDDLE; AND SUNRISE 

CUSTOM HOMES, LLC APPELLEES 

OPINION

VACATING

AND REMANDING

**   **  **

BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.

COMBS, JUDGE: This case is an appeal arising from a zoning issue. Pursuant to 

the provisions of KRS1 Chapter 100, Pamela Blair appeals an order of the Jefferson 

1 Kentucky Revised Statutes.
-2-

Circuit Court that affirmed a decision of the Louisville Metro Board of Zoning 

Adjustment (the Board or BOZA.) The Board approved a variance from the 

county’s development code provisions and authorized the encroachment of a 

structure (a home and retaining wall) upon the setback requirement. The circuit 

court affirmed the Board’s issuance of a variance. Based upon the inadequacy of 

the Board’s findings of fact, we are compelled to vacate and remand. 

In April 2020, Ronald Biddle applied for a variance related to his 

property in Sanctuary Bluff subdivision. The single-family residence encroached 

by approximately 2.6 feet upon the Land Development Code’s 30-foot front yard 

setback requirement. A retaining wall, part of which rose above ground level by 

more than four feet, was a mere 15 feet from the front property line. 

Less than a year earlier, the Board had rejected a variance application 

submitted by Sunrise Custom Homes, LLC, the builder of the home, for the same 

property. However, before making his application for the variance, Biddle had 

made significant alterations to the structure by removing a portion of the front of 

the house in an effort to reduce the encroachment. The Board’s staff analyzed the 

second application and found that the variance was now justified because, in part, 

“strict application of the provisions of the regulation would create an unnecessary 

hardship on the applicant as they [sic] have made significant alterations to the 

layout of the structure to reduce the encroachment as much as possible.” 
-3-

A public hearing was conducted by the Board in June 2020. A 

presentation was made by Board staff, and several individuals testified in support 

of the variance. Blair testified in opposition. She argued that the builders had 

originally constructed the new home in willful disregard of the setback 

requirements and that her neighboring property had been damaged by the forward 

placement of the new residence. Following a period of deliberation, the Board 

adopted a resolution approving the variance request. It found specifically as 

follows:

WHEREAS, the Louisville Metro Board of Zoning 

Adjustment finds that the requested variance will not 

adversely affect the public health, safety or welfare as the 

structure must be constructed to comply with all building 

codes, including fire codes, and 

WHEREAS, the Board further finds that the requested 

variance will not alter the essential character of the 

general vicinity as there is some variation in front yard 

setbacks for principal structures in the area, and 

. . .

WHEREAS, the Board further finds that the requested 

variance will not allow an unreasonable circumvention of 

the zoning regulations as the applicant has made 

significant changes to the structure to reduce the 

encroachment into the front yard . . . .

Thereafter, Blair filed an appeal in the Jefferson Circuit Court seeking 

judicial review of the Board’s decision. The circuit court rejected Blair’s 

contention that the decision was arbitrary or capricious and concluded that she had 
-4-

been afforded due process. As an aside, it noted that Blair had a separate cause of 

action against any property owner who impinged upon her rights as established in 

the subdivision’s master deed. This appeal followed. 

On appeal, Blair argues that the circuit court erred by affirming the 

Board’s decision because the testimony at the public hearing showed that 

construction of the home in violation of the zoning regulations was willful. Blair 

also contends that she was deprived of due process and that the Board failed to 

render necessary findings of fact. 

The standard of review applicable in planning and zoning matters was 

set forth in American Beauty Homes Corporation v. Louisville and Jefferson

County Planning and Zoning Commission, 379 S.W.2d 450 (Ky. 1964), which held 

that the overriding concern of the reviewing court is whether the administrative 

body’s action was arbitrary. In determining arbitrariness, the court must 

determine: (1) whether the agency exceeded its statutory authority; (2) whether the 

parties were afforded procedural due process; and (3) whether the agency decision 

was supported by substantial evidence. Id.

KRS 100.241 grants the Board “the power to hear and decide on 

applications for variances” and allows the Board to “impose any reasonable 

conditions or restrictions on any variance it decides to grant.” KRS 100.243 sets 
-5-

forth the findings and considerations that must be made before the Board may 

grant a variance:

(1) Before any variance is granted, the board must find 

that the granting of the variance will not adversely affect 

the public health, safety or welfare, will not alter the 

essential character of the general vicinity, will not cause 

a hazard or a nuisance to the public, and will not allow an 

unreasonable circumvention of the requirements of the 

zoning regulations. In making these findings, the board 

shall consider whether:

(a) The requested variance arises from special 

circumstances which do not generally apply to 

land in the general vicinity, or in the same zone;

(b) The strict application of the provisions of the 

regulation would deprive the applicant of the 

reasonable use of the land or would create an 

unnecessary hardship on the applicant; and

(c) The circumstances are the result of actions of 

the applicant taken subsequent to the adoption of 

the zoning regulation from which relief is sought.

(2) The board shall deny any request for a variance 

arising from circumstances that are the result of willful 

violations of the zoning regulations by the applicant 

subsequent to the adoption of the zoning regulation from 

which relief is sought.

A party seeking a variance bears the burden of proof to convince the Board that a 

variance is justified. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 

836 (Ky. App. 1994).
-6-

The Supreme Court of Kentucky has held that “[t]he legislative limits 

on the grant of variances [set forth in KRS 100.243] are not mere technicalities. 

The system delineated sets forth specific factors that the Board must consider and 

findings that must be made.” Louisville & Jefferson County Planning Comm’n v.

Schmidt, 83 S.W.3d 449, 454 (Ky. 2001). Thus, adequate findings of fact in strict 

compliance with KRS 100.243 are required before the Board may grant a variance. 

While the Board is not held to strict judicial standards in making its findings, its 

findings must include “sufficient information to afford a meaningful review as to 

the arbitrariness of the [its] decision.” Currans, 873 S.W.2d at 838. We conclude 

that the Board’s findings in this matter were insufficient to permit meaningful

judicial review.

To reiterate, KRS 100.243(1) requires the Board to make findings as 

to four specific issues in considering an application for a variance: (1) whether the 

granting of the variance will adversely affect the public health, safety, or welfare; 

(2) whether the granting of the variance will alter the essential character of the 

general vicinity; (3) whether the granting of the variance will cause a hazard or a 

nuisance to the public; and (4) whether the granting of the variance will allow an 

unreasonable circumvention of the requirements of the applicable zoning 

regulations. Blair contends that the Board failed to find whether the granting of the 

variance “will cause a hazard or a nuisance to the public.” 
-7-

In its brief, the Board argues that Blair does not understand the breadth of its 

authority. It contends that its failure to find specifically that the variance would 

not cause a hazard or a nuisance to the public is inconsequential because no one 

offered testimony to suggest that it would. Additionally, it maintains that this 

Court has “conflated the ‘public health, safety and welfare’ requirement of KRS 

100.243 with the prohibition on ‘hazard or nuisance to the public.’” Finally, it 

argues that the existence of a building permit indicates that the structure would not 

cause a hazard or nuisance to the public. Biddle and Sunrise Custom Homes, LLC, 

join in these contentions. Sunrise Custom Homes, LLC, adds that “absent any 

allegation that there was a threat to public safety, additional findings that there was 

no public threat would merely be gilding the lily.” 

The appellees rely heavily on our analysis in Ball v. Oldham County

Planning and Zoning Commission, 375 S.W.3d 79 (Ky. App. 2012). In Ball, we 

considered the legal sufficiency of the Board’s findings of fact. The Board found 

as follows:

Move to approve the variance because as we have 

discussed today it will not adversely affect the public 

health, safety, or welfare because [it] will not alter the 

essential character of the general vicinity, will not cause 

a hazard or nuisance to the public, and will not allow an 

unreasonable circumvention of the requirements of the 

zoning regulations because there has been no testimony 

today that any of these criteria would be violated[.] 

[T]he cliffs and slopes on the property are unique and 

therefore the requested variance arises from special 
-8-

circumstances which do not generally apply to land in the 

general vicinity or in the same zone[.] [A]lso the steep 

slopes make it cost prohibitive to build an access across 

the property[.] [I]n addition the strict application of the 

provisions of the regulation would deprive the applicant 

of the reasonable use of the land or would create an 

unnecessary hardship on the applicant, because the 

applicant bought the property and did not know the 

requirements of dividing it and denying this would 

deprive him of the ability to sell the land as a separate lot 

thus denying him reasonable use of the land.

Id. at 83. We determined that the Board’s findings were not “so sparse or ‘bare 

bones’ in nature” as to require that they be set aside as insufficient (id.) --

especially where no evidence had been introduced to show that the variance could 

“adversely affect the public health, safety, or welfare” or that it “would cause a 

hazard or nuisance to the public . . . .” (Beyond Appellant’s personal objection.) 

Id. We concluded that more extensive findings as to these issues would not have 

been helpful or perhaps even possible. 

However, our analysis in Ball does not support the appellees’ 

contention that the Board’s failure to make a required finding of fact can be 

overlooked. While the findings challenged in Ball were characterized as “sparse,” 

they did not entirely omit a finding specifically required by the provisions of KRS 

100.243. In the case before us, there is no indication that the Louisville Metro 

Board of Zoning Adjustment considered whether the granting of the variance 

would cause a hazard or a nuisance to the public. Moreover, despite the appellees’ 
-9-

representations, no opinion of this Court has “conflated the ‘public health, safety 

and welfare’ requirement of KRS 100.243 with the prohibition on ‘hazard or 

nuisance to the public.’” 

The provisions of KRS 100.243 establish specific factors that the 

Board must consider and findings that must be made before a variance can be 

granted. The language is clearly mandatory rather than permissive. As the 

Supreme Court of Kentucky observed in Schmidt, 83 S.W.3d at 454, “the 

legislature recognized the very real tensions that necessarily exist between the 

interests of the landowner and society as a whole.” In Schmidt, our Supreme Court 

agreed with the circuit court’s assertion that where a variance is sought, “the 

interests of the focused and financially motivated landowners are pitted against that 

of the general public, whose interests frequently, if represented at all, are voiced by 

uncompensated adjoining landowners.” Id. The Supreme Court astutely observed 

that issues related to the public welfare are “much more nebulous.” As a 

consequence, in order to prevent the objectives of the comprehensive plan from 

being compromised and eroded over time, the General Assembly enacted clear 

limitations upon the Board’s ability to grant variances. 

 By requiring the Board to comply with the requirements of the 

provisions of the statute, we are not asking the Board merely “to gild the lily.” 

Instead, by rendering the required findings of fact, the Board complies with its 
-10-

statutory duty to clarify the basis of its decision so that we can conduct a 

meaningful review. It reveals its intention to consider and to protect the public at 

large by finding whether the variance will cause a hazard or nuisance. Our 

legislature’s requirement that this finding be made cannot be ignored.

 Appellees have also argued essentially that the issuance of a building 

permit by another office of the City of Louisville is evidence per se of compliance 

with the zoning regulations -- even where the contested structures were not built in 

accordance with the provisions of that very permit. We do not agree. The issuance 

of a building permit alone cannot be deemed to substitute for -- or be tantamount to

-- the Board’s duty to make its mandatory statutory findings. That reasoning 

neglects to recognize both the logical and temporal sequence of events; i.e., that 

strict compliance with the zoning regulations on their face or by means of a duly 

granted variance is a condition precedent to the ability of the property owner to 

utilize a building permit. In so holding, we are not “gilding the lily”; we are 

instead safeguarding its very root system.

 To summarize, the Board’s findings fail to reflect that it considered all 

of the factors set forth in KRS 100.243. Its omission of any analysis of whether 

the variance will cause a hazard or nuisance to the public renders its decision 

fatally flawed. 
-11-

 Consequently, we vacate the order of the Jefferson Circuit Court and 

remand it to the court for further proceedings, which would necessarily implicate 

its remand to the Board for required findings as set forth in KRS 100.243 and the 

relevant statutes.

EASTON, JUDGE, CONCURS. 

CETRULO, JUDGE, DISSENTS AND FILES SEPARATE 

OPINION.

CETRULO, JUDGE, DISSENTING: Respectfully, I would affirm the Jefferson 

Circuit Court which upheld the grant of a variance by the Board of Zoning 

Adjustment. Therefore, I dissent.

I agree that adequate findings of fact and strict compliance with 

KRS 100.243 are required. However, I do not find the Board’s findings in this 

matter were insufficient to permit our meaningful review. Rather, I believe Ball, 

supra, does support upholding the variance granted herein. In its resolution, the 

Board twice stated that “the requested variance will not adversely affect the public 

health, safety, or welfare as the structure must be constructed to comply with all 

building codes, including fire codes.” As in Ball, there was no evidence here that 

the variance would cause any hazard or nuisance to the public. Instead, Blair 

simply asserted her own complaints of a perceived private nuisance.

Therefore, I “fail to see how more extensive findings . . . would have 

been helpful or even possible.” Ball, 375 S.W.3d at 85.
-12-

BRIEFS FOR APPELLANT:

Bart L. Greenwald

James L. Adams

Louisville, Kentucky

BRIEF FOR APPELLEE

RONALD J. BIDDLE:

Paul R. Schurman, Jr. 

Mackenzie Ackermann

Louisville, Kentucky 

BRIEF FOR APPELLEE

LOUISVILLE METRO BOARD OF 

ZONING ADJUSTMENT:

Michael J. O’Connell

Anne P. Scholtz

Travis J. Feichter

Laura M. Ferguson

Louisville, Kentucky

BRIEF FOR APPELLEE SUNRISE 

CUSTOM HOMES, LLC:

Robert W. Dewees, III

Louisville, Kentucky