Background
John Huffman, acting as agent for Buttermilk Pike Self Storage, LLC, constructed a flagpole approximately 199 feet tall on the company’s property in a Crescent Springs, Kentucky Industrial Park-1 zoning district — a district capped at a maximum structure height of forty feet. Huffman undertook the multi-year project without obtaining a sign permit from the City, asserting he had reviewed the applicable ordinances and concluded no permit was required, and that none of the engineers or contractors he engaged advised him otherwise. He did obtain Federal Aviation Administration approval given the property’s proximity to Cincinnati/Northern Kentucky International Airport.
After construction was completed, the Kenton County Joint Code Enforcement Board issued a Notice of Violation for constructing the flagpole without a sign permit and for exceeding the permitted height restrictions under the City’s zoning ordinances. Huffman responded by applying to the City of Crescent Springs Board of Adjustment for a variance. Following a public hearing in June 2021, the Board denied the application, finding that Huffman had committed a willful violation of the zoning ordinances by proceeding without the required permit. Huffman appealed to Kenton Circuit Court, which affirmed the Board’s denial and later granted summary judgment against Huffman’s remaining constitutional and statutory claims.
Huffman then appealed to the Kentucky Court of Appeals, arguing: (1) the Board’s willfulness finding was legally and factually erroneous; (2) the City’s sign ordinances were unconstitutionally vague and unintelligible; and (3) the Board’s decision was invalid because one member had not completed statutorily required training.
The Court’s Holding
The Court of Appeals affirmed on all three grounds. On the variance denial, the court held that the Board’s finding of a willful violation under KRS 100.243(2) was supported by the record. Applying the standard that a “willful” violation may occur where conduct reflects careless disregard of whether one has the right to act, the court concluded the Board was entitled to reject Huffman’s good-faith misunderstanding testimony. Given the scale of the project — a nearly 200-foot structure in a 40-foot-height district — and Huffman’s admitted failure to obtain any City approval, the court found the evidence did not compel a contrary conclusion and that the Board’s denial was mandatory under KRS 100.243(2).
On the constitutional challenge, the court applied Kentucky’s “unintelligibility” standard for civil regulatory enactments, asking whether persons of ordinary intelligence could reasonably understand what the ordinances required. The court held the ordinances were comprehensible when read as a whole: Section 14.3 expressly regulated flags as signs, required a sign permit, and distinguished between residential and non-residential properties — undermining Huffman’s claim the provisions applied only to residential districts. Huffman’s selective or incomplete reading of the ordinances did not render them unconstitutional.
On the Board member training issue, the court held that KRS 100.346(7) provides only that a non-compliant member “shall be subject to removal” — it does not render Board actions void. The court further noted that the member who lacked training had actually voted in Huffman’s favor and was not part of the denying majority, providing an additional basis to reject the challenge.
Key Takeaways
- Under KRS 100.243(2), a Board of Adjustment must deny a variance where the applicant’s circumstances result from a willful zoning violation; “willful” includes conduct marked by careless disregard of whether a permit is required, and a good-faith subjective belief of compliance does not automatically preclude such a finding.
- Kentucky’s unintelligibility standard for civil regulatory enactments is objective — the question is whether persons of ordinary intelligence can reasonably understand the ordinance when read as a whole, not whether the particular applicant subjectively understood it.
- A board member’s failure to complete KRS 100.346 training does not void board decisions; the statute provides only removal as the remedy, and any error is further harmless when the non-compliant member voted in the appellant’s favor.
- Property owners are charged with reading ordinances in their entirety; ignorance of permit requirements — even when consulting professionals — does not excuse noncompliance or support a variance.
Why It Matters
This decision reinforces a demanding standard for variance applicants in Kentucky who construct first and seek forgiveness later. By affirming that a willfulness finding can rest on careless disregard — not just bad faith or deliberate flouting — the court signals that boards may deny relief even where an applicant sincerely, but unreasonably, believed no permit was needed. The scale and duration of an unpermitted project are relevant factors in that analysis.
The court’s treatment of the unintelligibility challenge also has practical significance for municipalities defending imperfectly drafted ordinances. So long as the ordinance is comprehensible when read as a whole, constitutional challenges based on structural ambiguity or awkward organization are likely to fail. Attorneys advising clients on development or signage projects should take note: a subjective claim that the regulations were confusing will not substitute for the objectively required careful, complete reading of applicable codes before breaking ground.