Opinion
NO. 2017-CA-001345-MR
09-07-2018
CITY OF WILMORE, KENTUCKY; HAROLD RAINWATER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF WILMORE, KENTUCKY, AND HIS OFFICIAL CAPACITY AS MEMBER OF THE WILMORE, KENTUCKY, CITY COUNCIL; AND JEFF BAIER, JIM BRUMFIELD, LYNN COOPER, KIM DEYER, LEONARD FITCH, AND DAVID RIEL ALL IN THEIR OFFICIAL CAPACITITES AS MEMBERS OF THE WILMORE, KENTUCKY, CITY COUNCIL APPELLANTS v. HAL SNOWDEN, JR., D.B.A. ROSEGLADE FARM; JESSAMINE COUNTY - CITY OF WILMORE JOINT PLANNING COMMISSION; AND PETER BEATY, JAMES MCKINNEY, JANE BALL, DAVE CARLSTEDT, DON COLLIVER, BRIAN BENGER, MARY JO MORROW, JOHN OSBORNE, ERIC ZABILKA, AND DENNIS ADAMS, ALL IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE JESSAMINE COUNTY - CITY OF WILMORE JOINT PLANNING COMMISSION APPELLEES
BRIEF FOR APPELLANTS: Robert L. Gullette III Nicholasville, Kentucky BRIEF FOR APPELLEES: Bruce E. Smith Nicholasville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE HUNTER DAUGHERTY, JUDGE
ACTION NO. 17-CI-00158 OPINION
REVERSING
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BEFORE: COMBS, DIXON AND MAZE, JUDGES. COMBS, JUDGE: The City of Wilmore and the members of its town council appeal from a summary judgment of the Jessamine Circuit Court entered in favor of Hal Snowden, Jr., d/b/a Roseglade Farm on July 17, 2017. The circuit court declared that a conservation easement granted by Snowden was unenforceable because the written legal description of the real property to be encumbered was insufficient. After our review, we reverse.
Snowden owns a 175-acre parcel of land referred to as Roseglade Farm. The northeast portion of the tract lies near the "Y" intersection of U.S. Highway 68 and Kentucky Highway 29 in Jessamine County. Proceedings concerning the development of this property have been ongoing for decades.
In 1997, Snowden submitted an application for a zone change for the farm from agricultural to residential. A review of the several public hearings conducted as part of the zoning process indicates that the matter was hotly contested. Members of the public were most concerned that greenspace would be lost across that part of Roseglade farm lying between two historic homes on the northern part of the farm near the Y-intersection of U.S. Highway 68 and Kentucky 29. However, Snowden's preliminary plan for the development of the farm explicitly depicted greenspace at this location, setting aside slightly more than 100 acres (identified as the East Field Permanent Greenspace Area) for continued agricultural uses.
In December 1997, the Wilmore City Council approved a zone change of the farm from A-1 to R-5 as consistent with the Wilmore Comprehensive Plan. "R-5" is designated a rural transition zone. The local zoning ordinance provides that those areas within the City of Wilmore zoned as R-5 should function as transition areas between the smaller urban lots found in the Wilmore community and the five (5) - acre minimum density lots found in the agricultural areas of surrounding Jessamine County. In R-5 zones, both agricultural and residential development are permitted. According to the ordinance, this zone "shall provide a permanent green space/buffer area to the growing areas of Wilmore and allow a compatible transition into the active agricultural areas of the surrounding County." As a condition to development in this zone, "an undeveloped portion of the parent tract . . . will remain in permanent green space."
The town council found that "the proposed zone change and development plan are in agreement with the comprehensive plan as they meet all the criteria of the requirements of an R-5 zoning classification, the goals and objectives and the Wilmore Community Plan." It also found that there "is a present need for residential property as proposed by the applicant. His property provides for and protects a substantial green space along the two abutting highways [the Y-intersection at U.S. Highway 68 and Kentucky Highway 29]."
In December 1998, Snowden decided to dedicate 100 acres of Roseglade Farm to the City of Wilmore through a conservation easement. The deed of the conservation easement contains the following relevant provisions:
[T]he Property includes a designated area of permanent greenspace, as shown on Exhibit "B" and described in Exhibit "C" attached hereto and incorporated herein by this reference, and such area shall be maintained perpetually subject to the terms and restrictions of this Conservation Easement (hereinafter referred to as the "Protected Property"); and
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WHEREAS, the Protected Property possesses many conservation values which are of great importance to the GRANTOR, the people of Wilmore and Jessamine County, and the people of the Commonwealth of Kentucky, which include but are not limited to open space, scenic, agricultural, historic and recreational values (hereinafter collectively referred to as the "Conservation Values"); and
WHEREAS, in particular these specific conservation values include the following:
a. Open Space Values. The Protected Property contains open space of
approximately 100 acres of farmland, pastures, and grasslands and provides much needed open space for the residential development of more than one hundred (100) homes that will be located on the remainder of the original tract of the Property and also allows for an open space buffer between those residential homes and existing and potential future commercial development on property that is directly to the northeast of the Protected Property. Furthermore, the open space is necessary inasmuch as it forms a beautiful view of historic homes which are located on either side of the Protected Property. The exact amount of acreage relative to this paragraph will be determined by reference to the final construction plans that are submitted to and approved by the Jessamine County-City of Wilmore Joint Planning Commission.
b. Scenic Values . The Protected Property contains approximately 4,100 feet of frontage along U.S. Highway 68, a federal highway which has been designated as a Kentucky Scenic Byway, and approximately 3,000 feet of frontage along Kentucky Highway 29, and the public traveling these roads are afforded scenic views of the farmland, open pastures and grasslands, whose beauty and open character shall be protected by this Conservation Easement. Furthermore, the Protected Property is specifically located at the beginning of the Kentucky Highway 29 scenic entry corridor to the City of Wilmore and is a crucial piece of property to the
implementation of the entire scenic corridor plan.
c. Agricultural Values. The Protected Property includes approximately 100 acres of farmland. . ..
d. Historic Values. The Protected Property is immediately adjacent to two historically important houses, known as the Betty Bryan House and the Ashbrook House, both of which are listed on the National Register of Historic Places, and therefore have been designated by the United States Department of Interior to be worthy of preservation.
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WHEREAS, the GRANTOR intends that the Conservation Values of the Protected Property be preserved and maintained by this Conservation Easement in perpetuity, and that the continuation of land use patterns, including, without limitation, those relating to farming, equestrian breeding, training, and selling existing at the time of this Conservation Easement or agricultural or other uses permitted hereunder contemplated in the future, shall not be permitted to impair or interfere with those values; and
WHEREAS, the GRANTOR further intends, as owner of the Protected Property to convey to Grantee, by and through this Conservation Easement, the right to preserve and protect the Conservation Values of the Protected Property in perpetuity; and
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NOW, THEREFORE, in consideration of all of the recitations above and mutual covenants, terms,
conditions, promises and restrictions contained herein, and the desire of each party to be bound by same, and further in consideration of the agreement by the Wilmore City Council to grant a zone map amendment for the remaining balance of the original tract of Property from A-1 (Agricultural) to R-5 (Residential) and to allow the development thereof . . . GRANTOR hereby voluntarily grants and conveys to GRANTEE a conservation easement in perpetuity over the Protected Property of the nature and character and to the extent hereinafter set forth below.
1. PURPOSES. GRANTOR and GRANTEE acknowledge that the purposes of this Conservation Easement are as follows:
a. The primary purpose of this Conservation Easement is to conserve the open space and scenic values of the Protected Property by ensuring that the Protected Property will be retained forever in its present undeveloped open space condition and to prevent any use of the Protected Property that will significantly impair or interfere with the Conservation Values of the Protected Property. . ..
b. The secondary purposes are to preserve the agricultural and historical conservation values associated with the Protected Property.
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3. PROHIBITED USES. Any activity on or use of the Protected Property inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited:
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c. The GRANTOR and his successors in title do hereby agree that the total number of agricultural buildings on the part of this property known as the east field shall not exceed five (5) in number . . ..
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7. DEDICATION OF TRAIL AREA. The GRANTOR herein, or his successors in title, do hereby agree to donate unto the GRANTEE, or its successor in title, simultaneously with the execution of the Conservation Easement, a perpetual trail area around this property, which shall be located in the area between the boundary fence of this property along U.S. Highway 68 and Kentucky Highway 29, as it existed at the time this document was signed, and the right-of-way of that road, extending 20 feet from the pavement of such highways to the fence of the GRANTOR; provided, however, and notwithstanding the foregoing, the trail area on the Northeastern boundary of the property between the property of GRANTOR and the property of Turfmor Motel shall extend 20 feet from the south bank of the stream which flows between the subject property and the property of the Turfmor Motel, all as shown on the development plan of Roseglade Farm last revised, December, 1997; the grant of such trail area shall be in fee, subject to easement of record and rights of way ....
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9. CHANGE IN ECONOMIC CONDITIONS. The fact that any use of the Protected Property that is expressly prohibited by the terms of this Conservation Easement may become more economically valuable than uses permitted by the terms of this Conservation Easement, or that neighboring properties may, in the future, be put to uses that are not permitted by this Conservation Easement, has been considered by GRANTOR in granting this Conservation Easement. . .. In addition, the inability of GRANTOR, his successors or
assigns, to conduct or implement any or all of the use permitted under the terms of this Conservation Easement or the unprofitability of doing so, shall not impair the validity of this Conservation Easement or be considered grounds for its termination or extinguishment.(Italics added). The conservation easement was duly recorded. However, the documents described in the deed as "Exhibit B" and "Exhibit C" were not attached. In fact, there is no evidence to suggest that they were ever prepared. The farm was not developed into residential lots as planned.
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18. GENERAL PROVISIONS.
18.2 LIBERAL CONSTRUCTION. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed in favor of the grant to effect the purpose of this Conservation Easement. . . . If any provision in this instrument is found to be ambiguous, any interpretation consistent with the purpose of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
In 2016, Snowden applied again to the planning commission for a new consideration of a plan to develop Roseglade Farm into 174 residential lots of approximately .25 acres each. This plan for the property reconfigured the preliminary development plan prepared in August 1997 (and approved in December 1997) by inverting the proposed residential area as platted and the greenspace area referred to in the conservation easement. Under Snowden's amended plan, the residential area would now be located on the northeast portion of the farm near the Y-intersection of U.S. Highway 68 and Kentucky 29. The revised preliminary plat and amended development plan indicated that Snowden would grant to the City of Wilmore a substitute conservation easement to include the newly envisioned permanent greenspace areas identified on the revised preliminary plat.
Because the property that Snowden proposed to develop encompassed the conservation easement, the planning commission advised him in writing that it would not approve the amended development plan absent the agreement of the town council to release or modify the easement recorded in January 1999. Snowden represented to the town council that the 1999 conservation easement "will remain totally intact and valid until such time that a new easement for the land residual may be established." Nevertheless, through a resolution adopted on January 17, 2017, the town council denied Snowden's request to modify or release the 1999 conservation easement. Snowden sought to void any arguable binding effect of the 1999 conservation/agreement.
On March 9, 2017, Snowden filed a complaint for declaratory relief in the Jessamine Circuit Court. Snowden contended that he had a continuing right to modify and amend his preliminary development plan for Roseglade Farm subject only to the rules, regulations, and processes of the planning commission and without regard for the conservation easement recorded in 1999. Snowden argued that the portion of the farm that the parties intended to subject to the conservation easement "would and could only be identified with specificity at a future date when the [planning commission] approved 'final construction plans.'" He contended that as a consequence, the easement "obviously fails to sufficiently identify the dimensions and boundaries of the property" and that the physical location of the property that it purported to encumber could not be located with reasonable certainty. In essence, Snowden sought to void any binding effect or continuity of his original conservation easement. The City of Wilmore and members of the town council denied that Snowden was entitled to the relief he sought.
Following a hearing conducted on July 13, 2017, the circuit court concluded that the conservation easement was facially void and unenforceable for want of an adequate description of the encumbered property. Summary judgment was entered in Snowden's favor. This appeal followed.
The City of Wilmore and members of its town council argue that the circuit court erred by granting summary judgment in favor of Snowden because the portion of Roseglade Farm referred to in the conservation easement as "Protected Property" is sufficiently identified so that its location is readily ascertainable. We agree.
Upon our review of a grant of summary judgment, we must determine "whether the trial court correctly found there were no genuine issues as to any material fact and the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Because summary judgment involves only legal questions and factual findings are not at issue, "an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Kentucky codified the provisions of the Uniform Conservation Easement Act at KRS Chapter 382, et. seq. Under the provisions of the Act, these easements are valid even though they do not have the characteristics of ordinary easements recognized at common law. KRS 382.830. Conservation easements may be created in the same manner as traditional easements. KRS 382.810(1). Like any other written easement, an express conservation easement may be established even without a definite statement as to its dimensions or exact location. 25 Am. Jur. 2d Easements and Licenses § 55. A description that allows one to identify the land upon which the easement is located is sufficient. Id. "Language fixing the location of an easement is not always necessary when other terms of the easement safeguard the servient estate from the risk that its burden may be greater than that for which it bargained." Id., see Vorherr v. Coldiron, 525 S.W.3d 532 (Ky. App. 2017).
Kentucky Revised Statutes. --------
Despite the absence of exhibits B and C identified in the written easement at the center of this dispute, the dimensions and boundaries of the conservation easement can be physically located with reasonable certainty. Roseglade Farm is bounded by U.S. Highway 68 to the north and Kentucky Highway 29 to the southeast. These highways intersect at a point just northeast of the farm. The description of the encumbered property indicates that it forms a quadrilateral. The location of two of its sides are defined by the location of the two highways bordering the farm; the third side is defined by its intersection with the first two (and is more particularly described as that part of the farm bordering the existing commercial property located at the Y-intersection lying to the northeast); the fourth is, therefore, readily ascertainable. Moreover, the "protected property" is described as consisting of approximately 100 acres lying between the Betty Bryan House and the Ashbrook House and "located at the beginning of the Kentucky highway 29 scenic entry corridor to the City of Wilmore."
Finally, the easement provides that its objective is to comply with the requirements of the R-5 zone calling for a transition area between the City of Wilmore lying to the southwest of the farm and the agricultural areas of Jessamine County lying to its west, north, and south. The dimensions and boundaries of the conservation easement are fairly delineated. Its situs is clear. Consequently, we agree with the Appellants that the easement is not void as a matter of law but that it is instead susceptible of enforcement.
Based upon the foregoing, the summary judgment of the Jessamine Circuit Court is reversed.
ALL CONCUR. BRIEF FOR APPELLANTS: Robert L. Gullette III
Nicholasville, Kentucky BRIEF FOR APPELLEES: Bruce E. Smith
Nicholasville, Kentucky