Opinion
NO. 2012-CA-001553-MR
04-08-2016
MICHAEL SHELIGA APPELLANT v. ROCKCASTLE COUNTY FISCAL COURT; AND ROCKCASTLE COUNTY RECREATION AND WELLNESS TASK FORCE APPELLEES
BRIEF FOR APPELLANT: Michael Sheliga Adam L. Towe Pro se London, Kentucky Export, Pennsylvania BRIEF FOR APPELLEES: Adam L. Towe London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DAVID TAPP, JUDGE
ACTION NO. 11-CI-00280 OPINION
AFFIRMING BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: This appeal arises out of the Rockcastle Circuit Court. Primarily, it concerns two issues: 1) the alleged closure and/or interference with a county road; and 2) the alleged violation of open record and open meeting laws. Ultimately, the trial court granted summary judgment in favor of the Appellees, Rockcastle County Fiscal Court and the Rockcastle County Recreation and Wellness Task Force (hereinafter collectively referred to as "Rockcastle County"). Acting without the assistance of counsel, the Appellant, Michael Sheliga, asks us to reverse and remand this action for further proceedings. Having carefully reviewed the record and applicable legal authorities, we find no error by the trial court. Accordingly, we AFFIRM.
I. STANDARD OF REVIEW
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Summary judgment "is proper where the movant shows that the adverse party could not prevail under any circumstances." Id. (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).
On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Because summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the circuit court's decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 1992). Our review is de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
II. ANALYSIS
A. Eagle Creek Road
Eagle Creek Road is located in Rockcastle County. Daniel Boone National Forest is adjacent to the road. Sheliga, an avid bicyclist, enjoys biking in the area. He argues that a locked gate has been placed on Eagle Creek Road, which impedes his ability to freely transgress it on his bike rides. He maintains that Appellees should be required to remove the locked gate.
Kentucky Revised Statutes (KRS) 178.100 provides:
From a decision of the fiscal court ordering a new road to be opened, or ordering an alteration or discontinuance of an existing road, or allowing gates to be erected across a road or abolishing existing gates, or a decision refusing any such order, the party aggrieved may bring an action in the Circuit Court of the county where the road is located to contest the decision of the fiscal court.
By statute, a road must be formally accepted or acquired to become part of the county road system. See KRS 178.010(1)(b). The fiscal court's ultimate decision to adopt a given road as a county road—and thus assert control and possession of it—must be evidenced by proof consisting of an official order, resolution or ordinance of the fiscal court that appears of record. This point was underscored in Illinois Cent. R. Co. v. Hopkins County, 369 S.W.2d 116 (Ky. 1963), in which the court held that a road was not a "county road," even in the face of several years' worth of county maintenance and a substantial passage of time, in the absence of a formal order of the fiscal court accepting the road into its system of maintenance. As noted in Sarver v. County of Allen, 582 S.W.2d 40 (Ky. 1979), there is a valid public policy behind requiring a fiscal court to evidence its acceptance of a particular road by way of an official order: a county should not be held responsible for maintenance of a road which happens to become public through a process over which it has no control. Id. at 41.
Sheliga filed numerous documents spanning a period from 1885 to 2010, to show that Eagle Creek Road was treated as a county road by Rockcastle County. These documents include maps, plats and bond receipts. However, no resolution, order or ordinance from the Rockcastle Fiscal Court formally adopting or acquiring Eagle Creek Road appears in the record.
Nevertheless, for purposes of summary judgment, we will assume that Eagle Creek Road was a properly adopted county road at one time. However, this does not mean that it remained so. In support of his motion for summary judgment, Sheliga filed a copy of the Rockcastle County Fiscal Court's meeting minutes from February 13, 1996. Those minutes provide as follows:
a resolution as read in its entirety by County Attorney Jeff Burdette: pursuant to KRS 178.116, the Rockcastle County Fiscal Court hereby resolves the following: the portion of the county road, known as Eagle Creek Road, ... is discontinued because no public need is presently served by the road; the road is impassible; the road does not provide access for any private person; and the road has not been maintained or policed within the last three years.
If we accept that Eagle Creek Road was formally adopted as a county road prior to 1996, based on these minutes filed by Sheliga, it was properly discontinued pursuant to KRS 178.116. KRS 178.116 provides an alternative mechanism for the informal discontinuance of roads adopted or maintained by the county in instances where a fiscal court has not taken formal action. Specifically, KRS 178.116(1) sets forth how possession of an informally discontinued county road may revert to the prior owners of the land:
Any county road, or road formerly maintained by the county or state, shall be deemed discontinued and possession shall revert to the owner or owners of the tract of land to which it originally belonged unless at least one (1) of the following conditions exists:
(a) A public need is served by the road;
(b) The road provides a necessary access for a private person;
(c) The road has been maintained and policed by the county or state within a three (3) year period.
While Sheliga argues that the fiscal court failed to perform the required procedures under KRS 178.070 to formally discontinue Eagle Creek Road as a county road, under KRS 178.116, no formal action by a fiscal court is necessary. Sheliga failed to offer any evidence that the 1996 discontinuance of Eagle Creek Road pursuant to KRS 178.116 was unlawful. Thus, for the purposes of summary judgment, it is undisputed that Eagle Creek Road ceased to be a county road on or about February 13, 1996.
There is no evidence in the record that the Rockcastle Fiscal Court reestablished Eagle Creek Road as a county road by way of a formal resolution or order subsequent to the 1996 discontinuance. Therefore, even if Eagle Creek Road was at one time a county road, it was not one in 2010 when Sheliga maintains a locked gate appeared on the road. As such, Sheliga has no right of action against Rockcastle County for erecting and/or allowing the locked gate to remain on Eagle Creek Road.
Additionally, any argument Sheliga might have concerning the propriety of Rockcastle County's discontinuance of Eagle Creek Road as a county road is no longer actionable. As evidenced by the 1996 minutes, Rockcastle County discontinued Eagle Creek Road as a county road almost two decades before Sheliga brought this action. Therefore, Sheliga cannot complain now that the discontinuance was improper.
B. Open Record/Open Meeting Laws Violations
On September 18, 2011, the Rockcastle Fiscal Court and the Rockcastle Recreation and Wellness Task Force took part in a joint meeting. This was a closed meeting. The purpose of the meeting was to discuss the acquisition and/or disposition of certain property. The meeting consisted of a presentation and discussion. No formal action was taken at the meeting. Sheliga complains that the meeting should have been open and the county has wrongfully refused to turn over minutes from the meeting.
KRS 61.810 requires that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]" The legislative rationale underpinning this statutory directive is that the "formation of public policy is public business and shall not be conducted in secret[.]" KRS 61.800. There are limited exceptions to the "open meeting" rule. See KRS 61.810(1)(a) - (m). These exceptions "shall be strictly construed," KRS 61.800, "so as to avoid improper or unauthorized closed, executive or secret meetings." Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997).
Appellees argue the meeting was properly closed under KRS 61.810(1)(b), which provides:
(1) All meetings of a quorum of the members of any public agency at which any public business is discussed, or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:
. . . .
(b)Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.
It is undisputed that the meeting at issue involved the future acquisition or sale of real property. Appellees averred that publicity would have likely affected the value of the specific piece of property discussed, and therefore, acted properly in closing the meeting. Given this fact, it was proper for them to conduct a closed meeting. See 93-OMD-56 (5-10-93)("The board of commissioners of a county hospital does not violate the Open Meetings Act by going into a closed session to deliberate the proposed sale of the hospital building and the property on which it is located where the board is of the opinion that publicity would likely affect the value of the property to be sold."). Because Appellees acted properly in closing the meeting pursuant to a valid statutory exception to the open meetings requirements, the trial court was correct in granting summary judgment on this portion of Sheliga's claim.
Next, Sheliga argues that he is entitled to obtain the minutes from the closed meeting. Under KRS 61.835, "the minutes of actions taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."
There are two problems with Sheliga's argument. First, the minutes of a properly held closed meeting may be kept confidential. See OAG 91-235 (minutes of a properly held closed meeting may be kept confidential at the discretion of the school board). Second, the Appellees presented an affidavit from County Judge Executive Carlofit stating that the meeting consisted entirely of a presentation and related discussion, but no formal action was taken. Accordingly, no minutes were prepared.
Having reviewed the record, we agree with the circuit court that Sheliga failed to offer any evidence to support his claims of a violation of the open records and open meeting laws. The meeting at issue was not required to be made public and no formal action having been taken, no minutes were prepared.
III. CONCLUSION
For these reasons, we AFFIRM the ruling of the Rockcastle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Michael Sheliga
Adam L. Towe
Pro se
London, Kentucky
Export, Pennsylvania BRIEF FOR APPELLEES: Adam L. Towe
London, Kentucky