Case against new kennel is dismissed

Published 9:14 am Saturday, July 25, 2020

The case against construction of a commercial dog kennel on North Maple Avenue was dismissed in Boyle County Circuit Court last week.

James Hinkle and Sue Pease, whose properties adjoin the new kennel, owned by Wendy Howard on land owned by Control Wiring & Solutions, filed a motion in late January for the temporary injunction on construction of the project. They argued that the zoning permit should not have been approved by The Danville-Boyle County Planning and Zoning Commission and the building permit should not have been issued by Boyle County Building Inspector Rusty Cox because of new zoning ordinances that had just been approved by the county.

According to Circuit Court Judge Darren Peckler’s order to dismiss the case, he wrote that the plaintiffs – Hinkle and Pease – should have followed “strict compliance with statutory procedures,” and request that the Board of Adjustments review P&Z’s decision before seeking “judicial review in circuit court.” 

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In other words, “The proper means to appeal the planning director’s action (granting the permit) would have been an appeal to the Board of Adjustment rather than jumping straight to the Circuit Court,” according to Henry Smith, attorney for the Planning Commission.

The order stated, “… as a result, this court lacks the jurisdiction to decide this case. Accordingly, plaintiffs’ failure to comply with the statutory procedure requires dismissal of this action.”

When requesting that the case be dismissed, Smith said he also argued that, P&Z Director Steve Hunter, not the planning commission – was the relevant party in action, “and yet he was not named to the suit,” and the “zoning permit issued for the kennel was valid -grandfathered in – per the terms of the old zoning ordinance.”

However, “Judge Peckler seems to have based his opinion on … procedural ground,” Smith said.

The order to dismiss is appealable.

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