Opinion
NO. 2016-CA-000336-MR
05-25-2018
THE FACTORY LANE DEVELOPMENT AWARENESS GROUP, LLC APPELLANT v. METRO LOUISVILLE/JEFFERSON COUNTY PLANNING COMMISSION; GREG FISHER, MAYOR; BALL HOMES; & ST. JOSEPH CATHOLIC ORPHAN SOCIETY APPELLEES
BRIEFS FOR APPELLANT: Sarah S. Almy Louisville, Kentucky BRIEF FOR APPELLEES: William B. Bardenwerper Nicholas R. Pregliasco Jonathon Baker John G. Carroll Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CI-005903 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES. JONES, JUDGE: Appellant, Factory Lane Development Awareness Group, LLC ("Factory Lane"), appeals from the Jefferson Circuit Court's opinion and order dismissing its appeal from a decision of the Louisville Metro Planning Commission ("Planning Commission") for want of jurisdiction. After a review of the record and applicable law, we AFFIRM the order of the Jefferson Circuit Court.
I. BACKGROUND
Factory Lane is a neighborhood organization comprised of several individuals who reside and/or own real property surrounding two tracts of land located at 13605 and 13615 Factory Lane in Jefferson County, Kentucky (the "Property"). The Property has been owned by St. Joseph's Orphan Society ("St. Joseph's") at all times relevant to this litigation. On April 6, 2015, Appellee Ball Homes filed a subdivision plan application with the Planning Commission to develop a conservation subdivision on the Property. The Planning Commission conducted a hearing on Ball Homes's subdivision plan application on October 22, 2015, at which Factory Lane opposed the development of the proposed subdivision. Over the objections of Factory Lane and numerous other individuals, the Planning Commission issued a final decision approving Ball Homes's proposed development plan, also on October 22, 2015.
On November 20, 2015, Factory Lane filed a complaint with the Jefferson Circuit Court pursuant to KRS 100.347 appealing the Planning Commission's decision. Factory Lane's complaint alleged numerous counts of error, namely, that: the Planning Commission's decision approving Ball Homes's proposal was arbitrary, the composition of the planning commission was in violation of KRS 100.137(2), the conservation subdivision proposed by Ball Homes was unlawful in that the plan did not meet the criteria for a conservation subdivision, and that the Planning Commission had violated Factory Lane's due process rights. Factory Lane named the Planning Commission, Ball Homes, and Metro Louisville/Jefferson County Mayor, Greg Fisher, as defendants.
Kentucky Revised Statutes.
All defendants named in Factory Lane's complaint filed a joint motion to dismiss on December 10, 2015. The memorandum accompanying defendants' motion contended that Factory Lane's appeal should be dismissed on two separate grounds: (i) Factory Lane's failure to timely perfect its appeal under KRS 100.347(4), by failing to name St. Joseph's, the owner of the Property, as a party to the appeal in its complaint; and (ii) Factory Lane's failure to timely plead and allege that it had been "injured or aggrieved" as required under KRS 100.347(2).
Factory Lane responded to defendants' motion on December 30, 2015. Therein, Factory Lane contended that its failure to name St. Joseph's as a party in the complaint was a mere technical error. As to defendants' point that Factory Lane had not properly pleaded that it had been "injured or aggrieved" by the Planning Commission's decision, Factory Lane stated that, based on its complaint and its extensive dispute with the Planning Commission over Ball Homes's proposed development plan, "it is impossible to believe that [it] . . . [is] not injured or aggrieved." R. 116. Factory Lane further argued that the circuit court should apply CR 73.03 to its complaint/appeal. Factory Lane noted that this Court has recognized that a complaint from an administrative agency's decision is equivalent to a notice of appeal filed under CR 73.03. As CR 73.03 does not require an appellant to include a specific claim that the appellant has been injured or aggrieved in his notice of appeal, Factory Lane argued that it should not be required to do so in its complaint. With its response to defendants' motion to dismiss, Factory Lane tendered a motion to amend its complaint and a proposed amended complaint.
Kentucky Rules of Civil Procedure. --------
The circuit court entered an Opinion and Order dismissing Factory Lane's complaint on February 11, 2016. The circuit court found that it was undisputed that Factory Lane had failed to name St. Joseph's as a party to its appeal within the thirty-day time period required by KRS 100.347. Accordingly, the circuit court found that one of the conditions precedent to its exercise of jurisdiction had not been met. Therefore, the circuit court ordered Factory Lane's appeal dismissed.
This appeal followed.
II. ANALYSIS
The only issue on this appeal is whether the circuit court properly dismissed Factory Lane's appeal for lack of jurisdiction. "The question of jurisdiction is ordinarily one of law, meaning that the standard of review to be applied is [de novo]." Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007). Factory Lane contends that its failure to name St. Joseph's as a party in its complaint was a mere technical error and should not be fatal to its appeal. Analogizing its complaint filed pursuant to KRS 100.347 to a CR 73.03 notice of appeal appellants file with this Court, Factory Lane urges this Court to hold that parties appealing from administrative decisions need only be in substantial compliance with KRS 100.347 for their appeals to be perfected.
"Section 115 of the Kentucky Constitution provides for appeals as a matter of right in all cases originating in our court system. However, the Kentucky Constitution does not contemplate that an administrative agency and its decisions are the equivalent of a court and the rulings therefrom." Spencer Cty. Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007) (citing Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795 (Ky. 1990)). "There is no question that the appeal of a planning and zoning decision is an appeal of an administrative decision made by an administrative body." Id. (citing Taylor v. Duke, 896 S.W.2d 618 (Ky. App. 1995)). Factory Lane's right to appeal the Planning Commission's decision in circuit court is derived from KRS 100.347, not from the Kentucky Constitution. In Spencer Cty. Preservation, supra, a panel of this Court reiterated the fact that when an appeal is filed in circuit court under authorization of statute, the appealing parties must strictly comply with that statute. 214 S.W.3d at 329. "An appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal." Id. (citing Taylor, 896 S.W.2d 618).
While Factory Lane urges this Court to apply CR 73.02 to allow it to proceed with its appeal, we cannot do so. "The civil rules do not apply in this type of litigation until after the appeal has been perfected." Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978) (citing CR 1; KRS 100.347(2)). In deciding whether Factory Lane properly perfected its appeal before the circuit court we look only to its compliance with the statutory guidelines set forth in KRS 100.347. The language of KRS 100.347(4) is clear. It states that "[t]he owner of the subject property and applicants who initiated the proceeding shall be made parties to the appeal. Other persons speaking at the public hearing are not required to be made parties to such appeal." KRS 100.347(4) (emphasis added). "Shall means shall." Vandertoll v. Commonwealth, 110 S.W.3d 789, 796 (Ky. 2003). Factory Lane failed to name St. Joseph's as a party to its complaint/appeal within thirty days of the Planning Commission's decision; it failed to strictly comply with the mandates of KRS 100.347. "Consequently, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to dismiss the appeal for want of jurisdiction." Flood, 581 S.W.2d at 2 (citations omitted).
III. CONCLUSION
Based on the foregoing analysis, the opinion and order of the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Sarah S. Almy
Louisville, Kentucky BRIEF FOR APPELLEES: William B. Bardenwerper
Nicholas R. Pregliasco
Jonathon Baker
John G. Carroll
Louisville, Kentucky