Opinion
NO. 2014-CA-000263-MR
08-12-2016
CAROLYN AND TERRY MAUNEY; PHILLIP AND BETTIE STEWART; AND ELZIE AND BRIDGETTE WATSON APPELLANTS v. LOUISVILLE METRO COUNCIL; LOUISVILLE METRO PLANNING COMMISSION; BARDSTOWN CAPITAL CORPORATION; FRANK A. CSAPO; ROBERT MILLER; LAWRENCE MILLER; GEORGE WILHELMI; ADDIE MAE WILHELMI; PAUL EUGENE WILHELMI; NORMA JOYCE WILHELMI; HAZEL J. WINGFIELD; JEAN W. READ; COMMONWEALTH OF KENTUCKY; KENTUCKY RETIRED TEACHERS ASSOCIATION; DEXTER HATFIELD; ELIZABETH HATFIELD; HARRY T. NETHERLAND, TRUSTEE OF JANICE T. NETHERLAND TRUST; JEWELL STRANGE; RITA F. STEVENS; STEVE CROWE; WALTER J. RATTERMAN; RONALD A. PARTIN; STANLEY E. BOCKTING; DIANA L. BOCKTING; MAURICE K. WEATHERFORD; MABEL R. WEATHERFORD; ROGER K. NICHOLS; JAMES L. CHESSER; ONEIDA CHESSER; FRED MCCOY; EMMA J. MCCOY; CANDACE TABOR; PATRICIA A. TRAFF; DARRELL SATTERLY; JUDY SATTERLY; JEFFERSON CO. SCHOOL DIST. FINANCE CORP.; THOMAS WEAKLY; JUANITA WEAKLY; JOHN LOWRY; DEBORAH G. HILL; JACK WILLIS APPELLEES
BRIEF FOR APPELLANTS: Bill V. Seiller Gordon C. Rose Louisville, Kentucky JOINT BRIEF FOR APPELLEES, BARDSTOWN CAPITAL CORPORATION, FRANK CSAPO, ROBERT MILLER, LAWRENCE MILLER, PAUL E. WILHELMI, NORMA J. WILHELMI, HAZEL J. WINGFIELD, GEORGE WILHELMI, ADDIE M. WILHELMI, JEAN W. READ, THE ESTATE OF DEXTER HATFIELD, HARRY NETHERLAND—TRUSTEE OF JANICE Y. NETHERLAND TRUST, JOHN LOWRY, STANLEY E. BOCKTING, DIANA L. BOCKTING, FRED MCCOY, EMMA J. MCCOY, CANDACE TABOR, WILLIAM TABOR, RONALD PARTIN, PATRICIA A. TRAFF, STEVE CROWE, WALTER J. RATTERMAN AND THE JEFFERSON COUNTY SCHOOL DISTRICT FINANCE CORPORATION: John E. Hanley Louisville, Kentucky JOINT BRIEF FOR APPELLEES, LOUISVILLE METRO PLANNING COMMISSION AND LOUISVILLE METRO COUNCIL: Michael J. O'Connell Jefferson County Attorney Jonathan Baker John G. Carroll Assistant Jefferson County Attorneys Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 10-CI-006022 OPINION
AFFIRMING
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BEFORE: COMBS, NICKELL AND VANMETER, JUDGES. NICKELL, JUDGE: Carolyn and Terry Mauney, Phillip and Bettie Stewart, and Elzie and Bridgette Watson appealed to the Jefferson Circuit Court from the final action of the Louisville Metro Council regarding a zoning change for a proposed development near the intersection of Bardstown Road and Interstate 265 in Jefferson County. Following a review of the administrative record, the Jefferson Circuit Court granted summary judgment in favor of the Appellees. This appeal followed and we affirm.
Bardstown Capital Corporation ("BCC") proposed to develop approximately 43.5 acres of property located in the southeast quadrant of the intersection of Bardstown Road and Interstate 265, and being bounded to the south by Wingfield Road. The proposed development, when complete, would contain a mixture of retail, restaurant and other commercial uses intended to serve the entertainment and shopping needs of nearby residents and the region as a whole. The proposed development site consisted of numerous individual parcels owned by the Appellees. Each of the Appellants owns real property on Wingfield Road, directly adjoining the proposed development site. BCC convened neighborhood meetings concerning the proposal to inform interested parties and solicit feedback in September 2008 and July 2009. The Stewarts and Watsons attended both meetings.
The Louisville Metro Council and Louisville Metro Planning Commission are the only non-landowner Appellees.
In furtherance of the development plan, in August of 2009, BCC filed an application with Louisville Metro Planning and Design Services requesting: a change in zoning for the subject property from R-4, R-5 and OR-3 to C-2 and OR-1; a change in the form district from neighborhood to regional center; and approval of a general development and subdivision plan. Following this filing, a public review of the case was conducted on December 10, 2009, by the Land Development and Transportation Committee ("LD&T") of the Louisville Metro Planning Commission. Notice of the meeting was mailed to first and second tier adjoining property owners, including each of the Appellants. At the hearing, a date of February 4, 2010, was scheduled and announced for the public hearing required pursuant to KRS 100.214, and the case was scheduled to return to LD&T on January 14, 2010.
Kentucky Revised Statutes.
On December 29, 2009, an official notice of the February 4, 2010, public hearing before the Commission was mailed by first class mail to all first and second tier adjoining property owners, including each Appellant, as required by KRS 100.214(2). Mauney claims to have never received this notice. On December 31, 2009, approximately twelve signs were erected on and around the property notifying the public of the February 4, 2010, hearing.
The case returned to LD&T on January 14, 2010, and the floor was opened for public comments. Although the Stewarts were present at the meeting, they did not offer suggestions or comments. LD&T again announced the February 4, 2010, public hearing date and scheduled the matter to return to LD&T on January 28, 2010, for further review. On January 22, 2010, a notification of the public hearing date was published in The Courier-Journal, the primary daily newspaper for Louisville.
At the January 28, 2010, LD&T meeting—attended by the Stewarts and Mauneys—additional public comments were fielded, including comments from Carolyn Mauney. Approximately twelve seconds after Mrs. Mauney concluded her remarks, the LD&T chairman announced the February 4, 2010, public hearing date.
The full Commission convened on February 4, 2010, and announced in open session that the public hearing would be continued to March 4, 2010, and ordered the matter returned to LD&T on February 25, 2010, for further review. Additional public comments were taken at the February 25 meeting. At the March 4, 2010, Commission meeting, approximately three hours of public testimony and evidence was taken. It was then announced the hearing would be continued to March 18, 2010, so additional work could take place. On March 18, the Commission announced the hearing would be continued to April 1. That hearing was again rescheduled to April 15, and the continuance was announced in an open session. The hearing was once again rescheduled to May 20, and the matter was returned to the May 13, 2010, LD&T meeting for further review. Additional public comments were fielded by LD&T on May 13 and an announcement was made in open session about the May 20, 2010, public hearing date.
Finally, on May 20, 2010, the Commission took approximately five and one-half hours of evidence and testimony, after which it unanimously recommended approval of the zoning change, form district change, and the general development and subdivision plan. The Commission forwarded its extensive written recommendation to the Council which then passed an ordinance approving the change in zoning and form district with only a single vote of nay.
On August 26, 2010, the Appellants filed a complaint and statement of appeal contesting the Commission's recommendation to approve the zoning and form district change and final approval of the Council's changes. Allegations were levied that the actions of the Commission and Council were erroneous, arbitrary and capricious, and done in violation of KRS Chapter 100. A lengthy period of discovery and motion practice ensued. Approximately three years later, both sides filed motions for summary judgment with supporting memoranda. After hearing oral arguments, the trial court granted summary judgment in favor of the Appellees. This appeal followed.
The issues raised in this appeal relate to the trial court's rejection of the Appellants' claims related to violations of the notice and certification requirements of KRS 100.214. At all pertinent times, KRS 100.214 stated, in relevant part, as follows:
In 2013, the General Assembly amended the statute to reduce the notice period from thirty to fourteen days. All other provisions remained unchanged.
When in any planning unit containing any portion of a county containing a city of the first class or a consolidated local government a hearing is scheduled on a proposal by a property owner to amend any zoning map, the following notice shall be given in addition to
any other notice required by statute, local regulation, or ordinance to be given:
(1) Notice of the hearing shall be posted conspicuously on the property the classification of which is proposed to be changed at least thirty (30) days immediately prior to the hearing. Posting shall be as follows:
(a) The sign shall state "zoning change" and the proposed classification change in letters three (3) inches in height. The time, place, and date of hearing shall be in letters at least one (1) inch in height; and
(b) The sign shall be constructed of durable material and shall state the telephone number of the appropriate zoning commission;
(2) Notice of the hearing shall be given at least thirty (30) days in advance of the hearing by first-class mail, with certification by the commission secretary or other officer of the planning commission that the notice was mailed, to the mayor and city clerk of any city with a population of less than three thousand (3,000) based upon the most recent federal decennial census so affected, to an owner of every parcel of property adjoining at any point the property the classification of which is proposed to be changed, to an owner of every parcel of property directly across the street from said property, and to an owner of every parcel of property which adjoins at any point the adjoining property or the property directly across the street from said property; provided, however, that no first-class mail notice, required by this subsection, shall be required to be given to any property owner whose property is more than five hundred (500) feet from the property which is proposed to be changed. It shall be the duty of the person or persons proposing the map amendment to furnish to the planning commission the names and addresses of the owners of all property as
described in this subsection. Records maintained by the property valuation administrator may be relied upon conclusively to determine the identity and address of said owner. In the event such property is in condominium or cooperative forms of ownership, then the person notified by mail shall be the president or chairman of the owner group which administers property commonly owned by the condominium or cooperative owners. A joint notice may be mailed to two (2) or more co-owners of an adjoining property who are listed in the property valuation administrator's records as having the same address[.]
The Appellants first argue the notice provisions of KRS 100.214(2) require actual receipt by adjoining landowners of the notice of public hearing, a task which was not complied with in the instant matter as the Mauney's averred they did not receive the notice which was mailed to them. Their contention focuses on the statute's use of the word "given" in relation to notice, and contend a person cannot be "given" notice if it is not placed in their possession or control. We believe this strained interpretation creates a higher burden than called for by the plain statutory language.
Of nearly 300 notices sent by the Commission to first and second tier landowners regarding this particular project, only the Mauneys have complained of not receiving their notice. They expressly—without citation to any appropriate evidentiary support—accuse the Commission of failing to actually mail a notice to them. The sole support offered comes in the form of affidavits filed in the trial court which were not included in the administrative record. Because the trial court was sitting as an appellate court in this matter, KRS 100.347, these affidavits were not properly before it and any reliance thereon would have been wholly improper. See City of Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky. 1973) (circuit court confined to record made before planning commission and legislative body).
In construing a statute, it is fundamental that our foremost objective is to determine the legislature's intent in enacting the legislation. "To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning." Richardson v. Louisville/Jefferson County Metro Government, 260 S.W.3d 777, 779 (Ky. 2008). Further, we construe a "statute only as written, and the intent of the Legislature must be deduced from the language it used, when it is plain and unambiguous . . . ." Western Kentucky Coal Co. v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400, 401-02 (1929). Therefore, when a statute is unambiguous, we need not consider extrinsic evidence of legislative intent and public policy. County Bd. of Educ. Jefferson County v. Southern Pac. Co., 225 Ky. 621, 9 S.W.2d 984, 986 (1928). However, if the statutory language is ambiguous, we will look to other sources to ascertain the legislature's meaning, such as legislative history and public policy considerations. MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009). Further, we "read the statute as a whole, and with other parts of the law of the Commonwealth, to ensure that our interpretation is logical in context." Lichtenstein v. Barbanel, 322 S.W.3d 27, 35 (Ky. 2010).Pearce v. University of Louisville, by and through its Board of Trustees, 448 S.W.3d 746, 749 (Ky. 2014). With these standards in mind, we now consider the scope and meaning of KRS 100.214.
There can be no doubt the overriding purpose of KRS 100.214 is notification to adjoining property owners of proposed zoning changes which could potentially impact adjoining parcels. Layers of safeguards are put in place to accomplish this task including the posting of signs on the subject property and mailing notices to the potentially affected property owners. Our focus is solely upon the statutory language concerning the mailed notices and what was intended by the chosen words.
Contrary to the Appellants' assertion, the plain text of the statute does not indicate the Legislature intended to require the Commission to guarantee actual receipt of the mailed notices. The statute requires only mailing to interested parties "by first-class mail" and certification that such task was accomplished. Clearly, had the Legislature intended actual receipt to be mandatory, it could and would have so stated. Our position is bolstered by the statute's requirement that the secretary of the Commission certify only that notices were mailed, not received. Again, had the Legislature intended actual receipt to be a requirement, it would presumably have likewise required certification of same. It did not. No ambiguity exists in the simple statutory language and we will not accept the Appellants' invitation to engage in logical gymnastics to graft an onerous burden onto the statutory language when the General Assembly itself chose not to do so. We cannot say the Commission failed to comply with the statutory requirements.
Next, the Appellants contend the Commission failed to comply with the certification of mailing requirements set forth in KRS 100.214(2). Although they admit a writing exists which asserts the notices were mailed, they contend it "falls woefully short of a certification." In support, they cite only the definition of "certification" from Black's Law Dictionary and an example of a more formal document issued by one of the planning technicians involved in this matter. Our review indicated that while the certification at issue could have been more thorough and formal, it meets the technical requirements of being "an official document stating that a specified standard has been satisfied." CERTIFICATION, Black's Law Dictionary (10th ed. 2014). Although the Appellants contend the writing at issue is inadequate, the text of the statute requires only certification of mailing but does not specify the manner of such certification. The handwritten and attested notation that the notices were mailed in this matter was sufficient to satisfy the basic statutory requirements. There was no error.
Finally, the Appellants argue noncompliance with the statutory notice and certification provisions resulted in material prejudice to them, specifically by denying them the opportunity to testify and present evidence in opposition to the proposed zoning and form district changes, and requires invalidation of the zoning ordinance, citing KRS 100.182. However, we have discerned no procedural flaw in the notice and certification procedures utilized in this matter. Thus, in the absence of error, we cannot say the Appellants have been materially prejudiced nor that they are entitled to the relief sought. They have simply failed to carry the heavy burden required by KRS Chapter 100 to overturn a validly enacted zoning ordinance.
The Appellants also cite Minton v. Fiscal Court of Jefferson County, 450 S.W.2d 52 (Ky. App. 1993), in support of their position. However, Minton is easily factually distinguishable from the case at bar as it concerned a challenge from persons who were not property owners entitled to notice pursuant to KRS 100.214(2). The holding is inapposite to the instant case. --------
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: Bill V. Seiller
Gordon C. Rose
Louisville, Kentucky JOINT BRIEF FOR APPELLEES,
BARDSTOWN CAPITAL
CORPORATION, FRANK CSAPO,
ROBERT MILLER, LAWRENCE
MILLER, PAUL E. WILHELMI,
NORMA J. WILHELMI, HAZEL J.
WINGFIELD, GEORGE WILHELMI,
ADDIE M. WILHELMI, JEAN W.
READ, THE ESTATE OF DEXTER
HATFIELD, HARRY
NETHERLAND—TRUSTEE OF
JANICE Y. NETHERLAND TRUST,
JOHN LOWRY, STANLEY E.
BOCKTING, DIANA L. BOCKTING,
FRED MCCOY, EMMA J. MCCOY,
CANDACE TABOR, WILLIAM
TABOR, RONALD PARTIN,
PATRICIA A. TRAFF, STEVE
CROWE, WALTER J. RATTERMAN
AND THE JEFFERSON COUNTY
SCHOOL DISTRICT FINANCE
CORPORATION: John E. Hanley
Louisville, Kentucky JOINT BRIEF FOR APPELLEES,
LOUISVILLE METRO PLANNING
COMMISSION AND LOUISVILLE
METRO COUNCIL: Michael J. O'Connell
Jefferson County Attorney Jonathan Baker
John G. Carroll
Assistant Jefferson County Attorneys
Louisville, Kentucky