Opinion
Nos. 2007-CA-000697-MR and 2007-CA-000713-MR.
June 20, 2008.
Appeal from Franklin Circuit Court, Honorable Phillip J. Shepherd, Judge, Action No. 06-CI-01213.
David S. Samford, Frankfort Kentucky, Brief for Appellants.
Thomas J. FitzGerald, Frankfort, Kentucky, Brief for Appellees.
Before: COMBS, Chief Judge; CAPERTON and MOORE, Judges.
OPINION
The Public Service Commission of Kentucky (PSC) and Bluegrass Wireless, LLC, appeal from an opinion and order of the Franklin Circuit Court reversing an order entered by the PSC in which the PSC denied the Shadoans' motion for rehearing and reversed an order of the PSC dismissing Bluegrass's application seeking a Certificate of Public Convenience and Necessity (CPCN) in order to build a cellular antenna tower on property adjacent to the Shadoans' property. Both the PSC and Bluegrass argue on appeal that the circuit court should have dismissed the Shadoans' appeal because they failed to designate the record as required by statute. Additionally, Appellants argue that the Franklin Circuit Court erred by misinterpreting both KRS 278.650 and KRS 100.987. Finding that the circuit court correctly determined that the designation requirement of KRS 278.420 was met, we affirm that decision; however, having concluded that the circuit court erred in interpreting the statutes in question, we reverse.
Kentucky Revised Statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2005, Bluegrass Wireless, LLC filed an application seeking a CPCN with the PSC. Bluegrass wished to construct a cellular antenna tower in London, Laurel County, Kentucky. Bluegrass planned to build this tower on property adjacent to property owned by the Shadoans. As adjacent property owners, the Shadoans sought to intervene in the application process, and, in October 2005, the PSC granted the Shadoans' request. After the Shadoans intervened, Bluegrass discovered that Laurel County had established a joint city/county planning commission pursuant to KRS Chapter 100. Believing that the London-Laurel County Joint Planning Commission had subject matter jurisdiction over the proposed cell tower, Bluegrass requested the PSC to dismiss Bluegrass's application action, arguing that the PSC lacked jurisdiction. After Bluegrass submitted its request, the PSC interpreted KRS 100.987(1) as meaning that the London-Laurel County Joint Planning Commission had jurisdiction over the proposed cell tower even though the London-Laurel County Joint Planning Commission had not adopted any planning or zoning regulations specific to the siting of cell towers. Accordingly, on June 27, 2006, the PSC entered an order dismissing Bluegrass's case. From the record, it does not appear any evidence was taken on the issue; rather, it was resolved as a matter of law.
If built, the cell tower would be approximately five hundred feet away from the Shadoans' residence.
After the PSC dismissed Bluegrass's case, the Shadoans filed a motion for rehearing with the agency; however, the PSC denied the Shadoans' motion on August 8, 2006, as a matter of law. Subsequently, on September 1, 2006, the Shadoans filed, pursuant to KRS 278.410, a complaint and petition with the Franklin Circuit Court seeking review of the PSC's August 8, 2006, order. The Shadoans named both the PSC and Bluegrass as respondents. Although the Shadoans timely filed their petition per KRS 278.410, the Shadoans did not file a separate and specific designation of record under KRS 278.420. However, they did attach to their Complaint and Petition for Review an appendix containing the August 8, 2006, order denying rehearing.
Both Bluegrass and the PSC independently moved the circuit court to dismiss the Shadoans' petition for failure to designate the record pursuant to KRS 278.420 and Forrest Hills Developers v. Public Service Commission, 936 S.W.2d 94 (Ky.App. 1996). They argued that by failing to strictly comply with the statutory mandate dismissal was warranted.
The circuit court denied these motions, determining that
there [were] no additional documents in the record of this proceeding needed for this Court to rule on the questions of law presented in the appeal. Since there are no "portions of the record necessary to determine the issues raised" in this action beyond the Complaint and Petition for Review and the Order appealed from, this Court concludes that the lack of designation of any portion of the Commission's record under K.R.S. 278.420 does not require dismissal of the action in this instance.
After the circuit court denied the respondents' motions to dismiss, it ultimately entered an opinion and order granting summary judgment in the Shadoans' favor. The court ruled that KRS 278.650, et seq., required the PSC to hold a hearing regarding Bluegrass's proposed cell tower. The circuit court based its decision on the fact that the London-Laurel County Joint Planning Commission had declined to exercise jurisdiction over Bluegrass's application because the commission had not adopted regulations, pursuant to KRS 100.987(1), dealing specifically with cell towers. In response to the circuit court's judgment, Bluegrass and the PSC each filed an appeal with this Court.
II. ANALYSIS
A. DESIGNATION OF THE RECORD
On appeal, Appellants reiterate that the Shadoans failed to designate the administrative record as required by KRS 278.420(2). Citing to the Court of Appeals in Forest Hills, 936 S.W.2d 94, Appellants maintain that a party's failure to designate the record as required by KRS 278.420(2) deprives the Franklin Circuit Court of jurisdiction to review the PSC's decision. Appellants argue that Forest Hills is directly on point and given its holding, the circuit court erred when it did not dismiss the Shadoans' petition for review for lack of jurisdiction.
In addition to Forest Hills, Appellants cite Board of Adjustments of the City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1979), and aver that the Supreme Court held that an appeal from an administrative agency is not a matter of right but is a matter of legislative grace. As a result, the party seeking review must strictly comply with the statutes establishing the administrative appeal. Id. If the requirements set forth by statute are not met, the reviewing court's judicial power is not invoked and the court lacks jurisdiction over the appeal. Id. According to Appellants, given the holding in Flood, strict compliance is still the law in Kentucky. We agree that strict compliance is the law in Kentucky when the right to appeal is a matter of legislative grace.
Notwithstanding the requirement of strict compliance, KRS 278.420 does not set forth precisely what constitutes a designation of the record. Pursuant to KRS 278.420(2),
[u]nless an agreed statement of the record is filed with the court, the filing party shall designate, within ten (10) days after an action is filed, the portions of the record necessary to determine the issues raised in the action. Within ten (10) days after the service of the designation or within ten (10) days after the court enters an order permitting any other party to intervene in the action, whichever occurs last, any other party to the action may designate additional portions for filing. The court may enlarge the ten (10) day period where cause is shown. Additionally, the court may require or permit subsequent corrections or additions to the record.
Other than the requirement of having a designation of record, the statute does provide exactly what is necessary to accomplish this. In other appeal proceedings, the designation requirement is much more detailed. See e.g., Kentucky Rule of Civil Procedure (CR) 75.01.
In the case at hand, the Shadoans attached, as an appendix, to their complaint and petition the August 8, 2006, order denying rehearing. The issue regarding the designation of record strictly involves subject matter jurisdiction, i.e., a question of law. The circuit court determined that the attachment of the August 8, 2006, order was the only necessary document it needed for review of the matter. While the Shadoans may not have specifically or formally identified this as a "designation of record," we cannot say the circuit court erred in determining as a matter of law, that this was sufficient to meet the substantive requirements of a designation of record when the only issue to be reviewed was addressed in the August 8, 2006, order, which was timely filed with the circuit court.
Our conclusion does no injustice to the strict compliance requirement of administrative appeal actions. The only record necessary for the circuit court to review was filed as an attachment with the complaint and petition. Neither Bluegrass nor the PSC can complain that they did not have notice of the portions of the record relied upon by the Shadoans. The purpose of a designation of record is to put the opposing party on notice of the evidence upon which the petitioner or appellant plans to rely for an appeal. In the case at hand, this requirement was met.
This conclusion finds support in Forest Hills, 936 S.W.2d at 96, wherein our Court ruled that
KRS 278.420(2) states in clear and unambiguous terms that the party filing the complaint shall designate the portions of the record necessary to resolve the issues raised in its complaint. It is uncontested in the matter at bar, however, that Forest Hills did not designate any portion of the record within ten days of filing the complaint. Forest Hills maintained in its complaint that the Commission's dismissal of its application was unlawful and unreasonable, and further set forth its argument that the Commission's orders preceding the dismissal were inconsistent and contradictory. Accordingly, it appears that at a minimum the designation of those orders would be necessary in order for the trial court to resolve the issue raised. Irrespective of the mandatory language of KRS 278.420(2), the party challenging the Commission's order "[s]hall have the burden of proof to show by clear and satisfactory evidence that the determination, requirement, direction or order is unreasonable and unlawful." KRS 278.430. Without presenting to the trial court the orders which Forest Hills maintained were inconsistent, contradictory, unlawful and unreasonable, there existed no evidence, much less clear and satisfactory evidence, that the Commission had exceeded its authority.
(Emphasis added). Consequently, the Forest Hills Court determined that at a minimum the orders of which Forest Hills complained needed to be presented to the circuit court. In the case at hand, this requirement was met.
Of course, the better and more prudent practice is to file with the circuit court a separate document entitled "Designation of Record" to avoid unnecessary delays in litigation. Further, few cases will fall into line with the unique facts in the case at hand. The issue under review having involved only a matter of law and the Shadoans' having filed the only relevant order necessary for that review, we do not disagree with the circuit court's legal assessment that the Shadoans met their requirement under KRS 278.420.
B. INTERPRETATION OF KRS 278.650 AND KRS 100.987
Having determined that the designation requirement set forth in KRS 278.420 was met, we turn to the crux of this appeal: the interpretation of KRS 278.650 and KRS 100.987.
In the Franklin Circuit Court's opinion and order, the court determined that the language "in accordance with locally adopted planning or zoning regulations" found in KRS 100.987(1) is a jurisdictional requirement and the jurisdiction to regulate cell towers is not automatically conferred upon a local planning unit based on its geographical boundaries. According to the circuit court,
[a] local commission may plan, but only in accordance with siting regulations. Thus, a commission that has no siting regulations is not vested with jurisdiction over cell tower siting, since it could not satisfy the statutory requirement to plan in accordance with its regulations. This must have been the intent of the legislature; otherwise the mandate to plan "in accordance with locally adopted planning and zoning regulations" would be surplusage. See Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001).
Further, the fact that a local commission has adopted general planning regulations does not satisfy KRS 100.987(1); something more than the general regulations, necessary for a local commission to exist and operate at all, must be required to prevent the "in accordance" mandate from being surplusage. Therefore, this language must have been included for the purpose of requiring that local commissions adopt specific regulations in order to obtain jurisdiction over cell tower siting in their geographic boundaries.
Continuing this line of reasoning, the circuit court decided that the language "in an area outside the jurisdiction of a planning commission" found in KRS 278.650 referred to subject matter jurisdiction not geographical jurisdiction. According to the circuit court, this phrase could not mean geographical jurisdiction. The circuit court opined that all local planning units/commissions are confined by their geographical boundaries. If the phrase "in an area outside the jurisdiction of a planning commission" referred to a commission's geographical jurisdiction, this language would be meaningless because no local governmental body may regulate outside its geographical boundaries.
The circuit court ultimately held that a local planning unit/commission has the discretion, pursuant to KRS 100.987(1), to regulate the siting of cell towers, but in order to exercise this authority, the unit is required to adopt local planning and zoning regulations specifically dealing with siting of cell towers before it can regulate such towers. Furthermore, the circuit court concluded that if a local planning unit has not adopted such specific regulations, the PSC is required by KRS 278.650 to process a utility's application. Consequently, the court ruled that because the London-Laurel County Joint Planning Commission had not adopted specific regulations regarding cell towers, the PSC was required to process Bluegrass's application for a CPCN.
According to Appellants, the Franklin Circuit Court misinterpreted both KRS 278.650 and KRS 100.987, thereby erring as a matter of law. Regarding KRS 278.650, the pertinent part of that statute reads:
If an applicant proposes construction of an antenna tower for cellular telecommunications services or personal communications services which is to be located in an area outside the jurisdiction of a planning commission, the applicant shall apply to the Public Service Commission for a certificate of public convenience and necessity pursuant to KRS 278.020(1), 278.665, and this section.
On appeal, Appellants assert that the phrase "in an area outside the jurisdiction of a planning commission" refers to the geographical jurisdiction of a local planning unit/commission. Consequently, according to Appellants, an applicant, who is seeking to build a cell tower, must apply for a Certificate of Public Convenience and Necessity with the PSC only if the applicant seeks to build a tower outside the geographical jurisdiction of a local planning commission. When an applicant seeks to build a tower within the geographical boundaries of a local planning unit, it must file an application with the local planning commission. Appellant contends this is the appropriate method even if that commission's legislative body has failed to adopt any planning or zoning regulations dealing specifically with the siting of cell towers. We agree.
When we interpret a statute, we attempt to ascertain and effectuate the intent of the General Assembly. KRS 446.080(1); Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky. 2004). If a statute's language is clear, unambiguous and expresses the legislature's intent, then we are prohibited from construing the statute and must give the statute effect as it was written. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 309 (Ky. 1994). Moreover, if a statute does not provide a specific statutory definition for the words contained therein, then we must construe the statute's words within their common usage. Alliant Health System v. Kentucky Unemployment Ins. Com'n, 912 S.W.2d 452, 454 (Ky. 1995). And we must give the statute's language its literal meaning unless giving the statute its literal meaning would produce a wholly absurd result. Id. Furthermore, where an apparent conflict exists between two or more sections of a statute, we must try to harmonize and give effect to all sections and must try to construe the statute in such a manner that no part is rendered meaningless and ineffectual. Combs v. Hubb Coal Corp., 934 S.W.2d 250, 252 (Ky. 1996). Also we must construe each section of a statute in accordance with the statute as a whole. Id. at 253.
In the present case, we are called upon to interpret both KRS 278.650 and KRS 100.987; however, we will first and foremost address KRS 100.987 because once the meaning of that statute has been properly ascertained, the meaning of KRS 278.650 becomes apparent.
According to Appellants, the circuit court's interpretation of KRS 100.987(1) is flawed because it ignored the remaining sections of the statute. Kentucky Revised Statute 100.987(1) provides:
A planning unit as defined in KRS 100.111 and legislative body or fiscal court that has adopted planning and zoning regulations may plan for and regulate the siting of cellular antenna towers in accordance with locally adopted planning or zoning regulations in this chapter.
The circuit court determined that this section of KRS 100.987 granted discretion in a local planning commission whether or not to regulate the siting of cell towers. Reading the entire statute as a whole, we are compelled to disagree with this analysis.
Turning to the subsequent sections of KRS 100.987, section two provides that all utilities interested in constructing a cell tower shall file a completed uniform application with the local planning commission "of the affected planning unit[.]" Furthermore, section four of the statute provides that the local planning commission shall review the utility's uniform application in light of the comprehensive plan and local zoning regulations that have been adopted by the commission's legislative body. This section also states that the local commission shall make a final decision, in writing, either approving or disapproving the utility's application and, if the commission disapproves, it shall give the reasons for disapproval. According to KRS 446.010(30), "shall" is mandatory. See also Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 861(Ky.App. 1995). Clearly, sections two and four are mandatory, yet the circuit court completely ignored them, failing to construe section one in light of these subsequent sections as required by the rules of statutory construction. See Combs, 934 S.W.2d at 253.
Consequently, when KRS 100.987(1) is viewed in light of the entire statute, it becomes apparent that no conflict exists between section one and the remaining sections and no ambiguity exists within the statute. All parties involved in this case agree that the General Assembly has decentralized the regulation of cell tower placement over the years. Given this intent, it only makes sense that the legislature would require local planning units to regulate the siting of cell towers because the planning commission for such a unit would be most familiar with the local comprehensive plan, adopted by the unit, which controls the physical, economic and social growth of the unit's community. In fact, Chapter 100, commencing with KRS 100.113, discusses the types of planning units, of which the London-Laurel County Joint Planning Commission is one; KRS 100.193 states that such a commission shall prepare a comprehensive plan; KRS 100.187 states the plan shall contain a "land use plan element"; KRS 100.987(2) states that "[e]very utility or company . . . that proposes to construct an antenna tower for cellular telecommunications services . . . within the jurisdiction of a planning unit that has adopted planning and zoning regulations in accordance with this chapter[] shall: (a) [s]ubmit a copy of the applicant's completed uniform application to the planning commission . . .", and lastly KRS 100.987(4)(a) states that local planning commissions shall regulate cell towers in accordance with its local comprehensive plan.
We note that this subsection does not state with this "section" but specifically refers to this "chapter."
Given this, we conclude that the legislature intended to make local planning units primarily responsible for approving or disapproving placement of cell towers within their geographic boundaries. Kentucky Revised Statute 100.987(1) means that, while a local planning unit must approve or disapprove the siting of cell towers within its geographical boundaries, it has the option of adopting its own regulations or of using the regulations set forth in KRS Chapter 100, specifically KRS 100.985 to 100.987, to plan for and regulate the siting of cell towers. Moreover, finding no ambiguity within KRS 100.987, we determine that it must be applied as written. See Graves, 885 S.W.2d at 309.
This notion that local planning units are first and foremost responsible for the siting of cell towers is reinforced when KRS 100.987 is considered in light of KRS 100.985, which sets forth definitions for KRS 100.985 to 100.987; KRS 100.986, which sets forth mandatory prohibitions on planning commissions in regulating the placement of cell towers; and KRS 100.9865, which sets forth the contents of uniform application to be filed with local planning commissions. When KRS 100.987 is placed in context with these other statutes, it becomes obvious that the General Assembly passed a comprehensive statutory scheme for local planning commissions to regulate the siting of cellular antenna towers, and the only discretion granted to local planning units is set forth in KRS 100.987(1) regarding whether the local planning commission elects to adopt its own regulations concerning the siting of towers or to merely use the statutory scheme provided by the legislature. Therefore, we conclude that the circuit court's interpretation of KRS 100.987 was erroneous and the proper entity to consider Bluegrass's application is the London-Laurel County Joint Planning Commission.
III. CONCLUSION
The order of the Franklin Circuit Court in which it determined that the designation requirement of KRS 278.420 was met is affirmed. However, the opinion and order of the Franklin Circuit Court in which it granted summary judgment in the Shadoans' favor and misinterpreted KRS 278.650 and 100.987 is reversed. This matter is remanded to the circuit court with instructions to grant judgment in Appellants' favor and dismiss the Shadoans' petition with prejudice.
CAPERTON, JUDGE, CONCURS.
COMBS, CHIEF JUDGE, CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION.
After reviewing the opinion of the Franklin Circuit Court, I find no error on either issue. I thoroughly agree with the majority opinion that sufficient designation of the record occurred. However, I dissent from that portion of the opinion reversing the court's interpretation of KRS 278.650 and 100.987.
The London-Laurel County Planning Commission has not adopted regulations addressing cell tower locations as required in the clear language of KRS 100.987. Therefore, the circuit court correctly reasoned that the local planning commission lacked jurisdiction and that jurisdiction over this matter correctly devolved to the PSC.
I would affirm the order of the Franklin Circuit Court in all respects.