KEVIN BASHAM; FRED D. WILLIAMS; and CHRIS DUFF v. BOBBY L. ROARK; MARCIA H. ROARK; and FISCAL COURT OF ANDERSON COUNTY, KENTUCKY
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RENDERED: September 24, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000539-MR
KEVIN BASHAM; FRED D.
WILLIAMS; and CHRIS DUFF
v.
APPELLANTS
APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 97-CI-000040
BOBBY L. ROARK; MARCIA
H. ROARK; and FISCAL COURT
OF ANDERSON COUNTY, KENTUCKY
AND
NO.
1998-CA-000540-MR
KEVIN BASHAM; FRED D.
WILLIAMS; and CHRIS DUFF
v.
APPELLEES
APPELLANTS
APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 97-CI-000040
BOBBY L. ROARK; MARCIA
H. ROARK; FISCAL COURT
OF ANDERSON COUNTY, KENTUCKY;
AND LAWRENCEBURG - ANDERSON
COUNTY JOINT PLANNING AND
ZONING COMMISSION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE, GUIDUGLI, AND MCANULTY, JUDGES.
DYCHE, JUDGE.
Kevin Basham, Fred D. Williams, and Chris Duff
appeal from a ruling of the Anderson Circuit Court denying their
motion to intervene in a settled action to which they were not
original parties, and dismissing their petition on appeal and for
declaratory judgment.
We affirm.
Bobby and Marcia Roark applied to the LawrenceburgAnderson County Joint Planning and Zoning Commission (the
Commission) to have approximately 82 acres of their property rezoned from A-1 (Agricultural) to R-1 (Low Density Residential).
The Commission had a public hearing on the application on July 9,
1996, at which it tabled the application and asked the Roarks to
provide additional documentation concerning the proposed
development, specifically a plan for sewage service to the area.
At a Commission meeting on November 12, 1996, the Roarks
presented a resolution from the Alton Water and Sewer District
agreeing to provide water and sewage treatment to the
development.
Based on this change in circumstances, the
Commission voted to approve the zone map amendment.
Appellants,
in opposition to the amendment, were present not only at these
two meetings, but also at the intervening monthly meetings at
which the application was not discussed.
The Anderson Fiscal Court, by a vote of 4-3, voted on
January 21, 1997, to override the Commission's recommendation and
deny the zone map amendment.
Prior to this meeting, the Roarks
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had commenced an unsuccessful action in Anderson Circuit Court
seeking a restraining order to prevent two magistrates who had a
personal interest in the outcome of the proceedings from
participating in deliberation on the matter.
All parties were at
that time aware of the magistrates' conflicts of interest.
The
magistrates nevertheless improperly deliberated and voted on the
recommendation, in violation of the Anderson County Ethics Code,
both voting to override the Commission.
The Roarks then filed this action in Anderson Circuit
Court seeking relief from the improper vote of the fiscal court,
and a separate action against the magistrates for their improper
participation.
While these actions were pending, the Anderson
County Attorney was required to withdraw as counsel for both the
two magistrates and the fiscal court due to conflict of interest
concerns.
The fiscal court met on July 22, 1997, and in an
attempt to settle the litigation, authorized the County JudgeExecutive to enter into an Agreed Order and Judgment with the
Roarks.
The order, entered by the circuit court on July 24,
1997, stated that because the two magistrates were required to
recuse themselves but instead had participated in the
deliberation of this issue contrary to law, their participation
rendered the January 21, 1997, action of the fiscal court null
and void, as if it never existed.
As a result, the
recommendation of the Commission became effective by operation of
law and the zone map amendment took effect pursuant to Kentucky
Revised Statute [KRS] 100.211.
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Appellants filed a motion on August 4, 1997, after
final judgment was entered by the circuit court, to intervene in
the settled action.
On August 21, 1997, they also filed a
separate petition to appeal pursuant to KRS 100.347 and a
petition for declaratory judgment.
The motions were denied by
the Anderson Circuit Court on February 3, 1998, and these appeals
followed.
Appellants seek to intervene pursuant to Ky. R. Civ.
Proc. [CR] 24.
Both CR 24.01 and CR 24.02, cited as applicable
by appellants, require a "timely application" to intervene.
A
party seeking to intervene after judgment has a special burden of
justifying the lack of timeliness.
S.W.2d 462 (1978).
Pearman v. Schlaak, Ky., 575
Appellants have not met that special burden
required to permit intervention.
Pearman dealt with a similar fact situation.
There, as
in this case, the zoning commission recommended a zone map
amendment and the city council voted to deny the change.
The
Pearmans filed a complaint in circuit court against the city
council, and the court ultimately entered an order setting aside
the council's action and directing the council to re-zone the
property, from which the council did not appeal.
In
characterizing the actions of the would-be intervenors, the Court
stated that
Virginia Schlaak and the other property
owners did not participate in the trial of
this case because they had not sought
intervention prior to judgment. They were
seeking a free ride on the train of the
Radcliff City Council, and were left at the
station when the city council failed to
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prosecute an appeal from the decision of the
trial court.
Id. at 463-64.
Appellants in this case are similarly situated.
From
the initial presentation by the Roarks to the Commission through
the disposition of the case in circuit court, appellants watched
the proceedings from the sidelines, sitting on their rights
rather than acting to protect their interests.
Appellants claim that they could not reasonably have
foreseen that the Anderson Fiscal Court would reverse its
position and allow the zone map amendment to take effect.
not persuaded by this argument.
We are
Appellants were aware before the
fiscal court voted on the Commission's recommendation that two of
the magistrates had potential conflicts of interest, one as an
adjoining landowner.
Because KRS 100.211 requires a majority of
the entire fiscal court to override a commission recommendation,
the recusal of even one of the magistrates made it impossible, in
this situation, for the court to prevent the map amendment from
taking place, as both parties conceded below.
The fact that
appellants had actual notice of the proceedings from their
inception, attended most, if not all, of the hearings regarding
this matter, and were in contact with the neighboring magistrate
prior to the fiscal court's vote belies the contention that
appellants were blind-sided by either the illegality of the
fiscal court's action or its ultimate disposition of the
litigation.
As in Pearman, appellants were content to "sit under
their own 'vine'" and leave the burden of defending the action to
the fiscal court.
575 S.W.2d at 463.
-5-
The circuit court
correctly held that appellants had shown no justifiable cause why
they failed to timely intervene.
Appellants also claim that they should be permitted to
pursue an appeal under KRS 100.347.
That statute provides in
pertinent part:
(2) Any person or entity claiming to be
injured or aggrieved by any final action of
the planning commission shall appeal from the
final action to the Circuit Court . . . .
Such appeal shall be taken within thirty (30)
days after such action. Such action shall
not include the commission's recommendations
made to other governmental bodies. All final
actions which have not been appealed within
thirty (30) days shall not be subject to
judicial review. . . .
(3)
Any person or entity claiming to be
injured or aggrieved by any final action of
the legislative body of any city, county, or
urban-county government, relating to a map
amendment shall appeal from the action to the
Circuit Court . . . . Such appeal shall be
taken within thirty (30) days after the final
action of the legislative body. All final
actions which have not been appealed within
thirty (30) days shall not be subject to
judicial review. . . .
*
*
*
(7) For purposes of this chapter, final
action shall be deemed to have occurred on
the calendar date when the vote is taken to
approve or disapprove the matter pending
before the body.
KRS 100.347.
In this instance the recommendation was forwarded
to another governmental body, the Anderson Fiscal Court.
100.211 states the following:
(1) . . . Unless a majority of the entire
legislative body or fiscal court votes to
override the planning commission's
recommendation, such recommendation shall
become final and effective and if a
recommendation of approval was made by the
planning commission, the ordinance of the
fiscal court or legislative body adopting the
-6-
KRS
zoning map amendment shall be deemed to have
passed by operation of law.
*
*
*
(7) The fiscal court or legislative body
shall take final action upon a proposed
zoning map amendment within ninety (90) days
of the date upon which the planning
commission takes its final action upon such
proposal.
KRS 100.211.
According to KRS 100.347, a planning commission's
recommendation to another governmental body is not subject to
appeal.
If the fiscal court fails to take action within ninety
days, the recommendation becomes effective by operation of law
pursuant to KRS 100.211.
Rules of statutory construction require a court to read
statutes in connection and in harmony with each other, if
possible.
Mitchell v. Kentucky Farm Bureau Mutual Insurance Co.,
Ky., 927 S.W.2d 343, 346 (1996).
KRS 446.080 requires a court to
construe all statutes liberally with the goal of implementing the
intent of the legislature.
S.W.2d 210 (1997).
Mullins v. Commonwealth, Ky., 956
This case presents that unusual situation in
which no lawful action was taken by the fiscal court within the
prescribed ninety day period.
Given the comprehensive appeals
scheme set out in these statutes, we do not believe the
legislature intended to deny aggrieved parties a remedy if the
fiscal court allowed a planning commission recommendation to
become effective by inaction.
However, there is no apparent
avenue of appeal for parties who do not receive the benefit of a
lawful vote of the fiscal court within the prescribed time limit.
If no lawful vote is taken, then the expiration of the ninety day
-7-
period shall constitute a final action and the thirty day period
for appeal of a final action shall begin to run.
It does not, however, afford relief to appellants in
this case.
The ninety day period for action by the fiscal court
expired in February, 1997, and the thirty day period for appeal
of the final action expired in March, 1997.
Appellants did not
file the petition to appeal until August 21, 1997, well beyond
the expiration of either of these periods.
Appellants were
aware, even before the fiscal court voted in January, that there
was a potential problem with the votes of two magistrates who
were committed to opposing the zone change.
They at all times
had the opportunity to intervene in an effort to protect their
interests, but chose not to do so.
We cannot say that appellants
lacked notice of the zone change because of their involvement
throughout the proceedings.
The circuit court correctly
dismissed appellants' petition to appeal.
For the foregoing reasons, the judgment of the Anderson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE
ANDERSON COUNTY FISCAL COURT:
Robert W. Kellerman
Frankfort, Kentucky
C. Thomas Hectus
Louisville, Kentucky
BRIEF FOR APPELLEES
BOBBY AND MARCIA ROARK:
Robert L. Roark
Lexington, Kentucky
Thomas M. Jones
Lawrenceburg, Kentucky
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