ANN WILSON, GENE SNAWDER, DAVID DOBBS, CLIFFORD AND CLARA TOLES, DAN GIBSON, JUNE FIELDS, GARY MASTERSON, ROSZELLE MOORE, AND CONCERNED CITIZENS UNITED, THE UNINCORPORATED OF WEST POINT, KENTUCKY v. ROGERS GROUP, INC.; HOLLOWAY CITY OF WEST POINT, WEST POINT CITY COUNCIL; WEST POINT PLANNING POINT BOARD OF ZONING ADJUSTMENT

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RENDERED: JANUARY 12, 2001; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1999-CA-001838-MR ANN WILSON, GENE SNAWDER, DAVID DOBBS, CLIFFORD AND CLARA TOLES, DAN GIBSON, JUNE FIELDS, GARY MASTERSON, ROSZELLE MOORE, AND CONCERNED CITIZENS UNITED, THE UNINCORPORATED ASSOCIATION OF CITIZENS AND RESIDENTS OF WEST POINT, KENTUCKY APPELLANTS v. APPEAL FROM HARDIN CIRCUIT COURT HONORABLE T. STEVEN BLAND, JUDGE ACTION NO. 97-CI-00904 ROGERS GROUP, INC.; HOLLOWAY & SON CONSTRUCTION CO., INC.; CITY OF WEST POINT, WEST POINT CITY COUNCIL; WEST POINT PLANNING & ZONING COMMISSION; AND WEST POINT BOARD OF ZONING ADJUSTMENT APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: BUCKINGHAM, JOHNSON, AND MILLER, JUDGES. Ann Wilson, Gene Snawder, David Dobbs, BUCKINGHAM, JUDGE: Clifford and Clara Toles, Dan Gibson, June Fields, Gary Masterson, Roszelle Moore, and Concerned Citizens United, hereinafter referred to collectively as appellants, appeal from an order of the Hardin Circuit Court denying their motions to intervene, to reinstate Masterson and Moore as defendants, and to alter, amend, or vacate a previous order. Because we conclude that the trial court did not abuse its discretion in denying the motions, we affirm. On February 24, 1997, Rogers Group, Inc., and Holloway & Son Construction Company, Inc., hereinafter referred to as private appellees, filed an application for a conditional use permit for three tracts of property located in the City of West Point, Kentucky, with the City of West Point Planning Commission. Holloway was the owner of the tracts, and Rogers Group had an option to lease them pursuant to a written agreement with Holloway. Of the three tracts of property, tract A had been zoned agricultural, and according to the private appellees, tracts B and C had not been zoned. After a period of time passed without action, the private appellees filed a declaratory judgment action in the Hardin Circuit Court. That action was filed on June 13, 1997, and it alleged that the West Point zoning ordinance and practices were not in compliance with KRS1 Chapter 100 and that the ordinance and procedures, if compliant, were not applicable to tracts B and C. The private appellees’ complaint named City of West Point, West Point City Council, West Point Planning and Zoning Commission, and West Point Board of Zoning Adjustment as defendants. These parties are hereinafter referred to as the The public appellees filed a counterclaim public appellees. alleging ownership of seventeen acres of the tracts of land. 1 Kentucky Revised Statutes. -2- The parties agreed to try the case by deposition, and numerous depositions were taken over a period of time. The private appellees and the public appellees negotiated during this time period in an effort to reach a settlement. The ongoing litigation and settlement negotiations were the subject of various public meetings in 1998 and 1999, and there was widespread coverage in the local newspaper as well as in the Courier-Journal. The private appellees and the public appellees reached a settlement in February 1999. part, the following terms: This settlement included, in (1) that tracts B and C were never zoned by the public appellees, (2) the zoning ordinance as it related to tract A was in violation KRS Chapter 100, (3) the private appellees were permitted to operate a rock quarry on all three tracts of land, (4) the private appellees were to donate land for a school to the public appellees, and (5) the private appellees were to make payments to the public appellees for the tonnage of earth products taken from the land. The agreement was tendered to the trial court which signed the document as an agreed judgment on June 15, 1999. On June 25, 1999, appellants Masterson and Moore filed a motion to be reinstated as defendants in the case. On the same day, the remaining appellants, property owners and/or residents in the City of West Point, filed a motion to intervene as party defendants. Additionally, the appellants filed a motion to By order entered on July alter, amend, or vacate the judgment. -3- 23, 1999, the trial court denied each of the motions. appeal followed. The appellants argue that the agreed judgment This improperly rezoned the property without complying with the statutory requirements of KRS Chapter 100. They assert their statutory rights were violated because they were denied a public hearing. See KRS 100.211(1). Appellants Masterson and Moore argue that they were dismissed from the case against their will and without their prior knowledge, and all appellants argue that they should have been permitted to intervene pursuant to CR2 24.01. The appellants desire reversal of the circuit court’s judgment with directions that the court remand the matter to the city council and planning commission for further proceedings concerning rezoning. In essence, the appellants claim the circuit court had no jurisdiction to rezone the property “de novo.” The public and private appellees respond to the appellants’ arguments by stating that the appellants did not timely move to intervene and therefore cannot contest the agreed judgment. The appellees further assert that Masterson and Moore were never parties and, therefore, were never dismissed from the case against their will or without their prior knowledge. The private appellees further contend that they were not required to exhaust their administrative remedies before directly attacking the constitutionality of the zoning ordinance. 2 Kentucky Rules of Civil Procedure. -4- As we have noted, the appellants appeal from the agreed judgment and from the trial court’s order overruling their motion to intervene, their motion to alter, amend, or vacate the judgment, and Masterson’s and Moore’s motion to modify the May 7, 1999, order seeking their reinstatement as defendants. First, unless the appellants were allowed to intervene, it is apparent they could not appeal from the agreed judgment since they were not parties to the case. White v. England, Ky., 348 S.W.2d 936, 937 (1961); Bartholomew v. Paniello, Ky., 287 S.W.2d 616, 617 (1956). It is equally apparent that the appellants would not have standing to file their motion to alter, amend, or vacate the judgment unless they were parties. Furthermore, the motion by Masterson and Moore to modify the court’s order dismissing them as parties is without merit because the order did not dismiss them since neither of them had ever been parties in the case in the first place.3 In short, the only issue is whether the trial court erred in denying the appellants’ motion to intervene.4 Masterson and Moore had only been served with summons on behalf of the West Point Planning and Zoning Commission and the West Point Board of Zoning and Adjustment and were never parties in the case. The May 7, 1999, order did not dismiss them as party defendants but only clarified that they were not defendants. Much of the appellants’ argument relates to the issue of whether the trial court improperly rezoned the property in the agreed judgment. The appellants contend that this court should order the matter remanded to the trial court so that it may be referred to the city council and planning commission. The private appellees respond that they were not required to exhaust their administrative remedies before filing the circuit court action. See Bellefonte Land, Inc. v. Bellefonte, Kentucky, Ky. App., 864 S.W.2d 315 (1993). They further respond that it would be inappropriate for the matter to be remanded to the city council and planning commission for further action because the (continued...) -54 3 The appellants’ motion to intervene was based on CR 24.01(1) which provides: Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties [emphasis added]. Because the motion was filed after the final judgment was rendered, the issue is whether the motion was timely. “An attempted intervention clearly must be undertaken in a timely fashion.” Rosenbalm v. Commercial Bank of Middlesboro, Ky. App., Whether a motion to intervene was 838 S.W.2d 423, 427 (1992). timely filed is a fact question which must be determined by the presiding judge. Id. Furthermore, “[a]n applicant who moves for intervention after judgment carries a special burden of justifying the apparent lack of timeliness.” Id., citing Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272, 274 (1958). The appellants contend they were relying on the public appellees to protect their interests in the lawsuit and that the public appellees failed to do so when they entered into the agreed judgment. The appellants assert in their brief “that when a party to litigation changes position and that change can injure (...continued) court has already ruled that the city’s zoning system is legally flawed. We believe this whole issue is moot if the trial court did not err in denying the appellants’ motion to intervene. -6- 4 or aggrieve another person, that other person has a reasonable amount of time from the discovery of that injury to take action to protect that person’s legal rights.” supra case in support of their arguments. Rosenbalm involved a debt collection action in the Bell Circuit Court by a bank against the Bell County Garbage and Refuse Disposal District. Due to the financial difficulties They cite Rosenbalm, encountered by the district, it was unable to pay a debt owed to the bank. A judgment was awarded to the bank, and the district’s efforts to discharge the debt in bankruptcy were unsuccessful because the district possessed the taxing authority to satisfy its debts. The circuit court subsequently ordered the county officials to proceed to impose and collect a tax so that the judgment could be satisfied. Thereafter, several Bell County taxpayers sought to intervene, and this court held that the taxpayers should have been given the right to do so to contest the validity of the tax. 838 S.W.2d at 429. In Rosenbalm, this court held that the taxpayers “lacked the lawyerly acumen to recognize the possibility of advancing a sophisticated constitutional argument at a time when their pecuniary interest was by all appearances not in jeopardy.” Id. That is not the case herein because the appellants were clearly on notice of this pending litigation and the private appellees’ attempt to alter the use of their land. Masterson and Moore were aware of the litigation as they had been served with summons as representatives of the public appellees. Appellant Wilson became a member of the West Point Board of Zoning -7- Adjustment subsequent to the filing of the lawsuit with the trial court, and she testified by deposition in the case. Furthermore, an earlier settlement proposal had been mailed to all of the water customers of the City of West Point with their water bills, and the litigation had been discussed in various public settings as well as in the media. This case is factually similar to Pearman v. Schlaak, Ky., 575 S.W.2d 462 (1978). Therein, the issue was whether local property owners who were not a party to the action had a right to intervene nine days after judgment was entered in favor of other individuals in their action against the City of Radcliff and the planning commission. The property owners moved the court to allow them to intervene for the purpose of filing an appeal since the Radcliff city council failed to appeal, but the trial court held that the owners’ interests had been adequately protected by the city and that the motion to intervene following the judgment was not timely filed. Id. at 463. Citing Murphy v. Lexington- Fayette Airport Board, Ky., 472 S.W.2d 688 (1971), the Kentucky Supreme Court affirmed. 575 S.W.2d at 464. In Murphy, the court held that the parties seeking to intervene after a judgment, “could be excused from not sooner applying to intervene only if the relied-upon adequate representation was not in fact given, in violation of representations on which the reliance was based.” Id. at 690. The court further held that “[t]he mere fact that an unfavorable judgment was entered and that the airport board chose not to appeal from that judgment does not establish lack of adequate representation. . . .” Id. -8- We conclude that the trial court did not abuse its discretion in denying the appellants’ motion to intervene on the ground that the motion was not timely made. The appellants chose not to intervene in the litigation but chose to rely on the public appellees for their representation. The public appellees negotiated a settlement based on their belief that their zoning procedures were in danger of not withstanding court scrutiny in light of this court’s holding in Hardin County v. Jost, Ky. App., 897 S.W.2d 592 (1995). Although the agreed judgment allowed the private appellees to use the property as a rock quarry, there is no indication that the public appellees had agreed to represent the interests of other property owners. The fact that the ultimate outcome of the litigation did not suit the appellants does not now give them cause to challenge the court’s judgment.5 The judgment of the Hardin Circuit Court is affirmed. JOHNSON, JUDGE, CONCURS. MILLER, JUDGE, CONCURS BY SEPARATE OPINION. MILLER, JUDGE, CONCURRING BY SEPARATE OPINION: I concur in affirming the appeal as I am of the opinion appellants were properly excluded from entering this litigation. Nevertheless, I am concerned about the argument advanced that the judiciary and not the legislative branch re-zoned the property in dispute. Under our system, re-zoning is a legislative function. judiciary, of course, may not invade that province. The Ky. Const. Because the appellants are not parties and were not allowed to intervene, we will not address their argument that the public appellees actually rezoned the property contrary to law. The appellants may have other legal remedies in the event they wish to further attack the judgment as being void. -9- 5 § 27 and § 28. The judgment under attack, if based upon such invasion, may well be adjudged void in a proceeding under Ky. R. Civ. P. 60.03. BRIEFS AND ORAL ARGUMENTS FOR APPELLANTS: W. Henry Graddy, IV Midway, Kentucky BRIEF FOR APPELLEES ROGERS GROUP AND HOLLOWAY & SON CONSTRUCTION: David A. Pike F. Keith Brown Shepherdsville, Kentucky ORAL ARGUMENTS FOR APPELLEES ROGERS GROUP AND HOLLOWAY & SON CONSTRUCTION: F. Keith Brown Shepherdsville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES CITY OF WEST POINT, WEST POINT CITY COUNCIL, WEST POINT PLANNING & ZONING COMMISSION, AND WEST POINT BOARD OF ZONING ADJUSTMENT: Thomas E. Cooper Elizabethtown, Kentucky -10-