BIG SANDY PIKEVILLE LIMITED PARTNERSHIP AND SEI DEVELOPMENT CORPORATION v. CITY OF PIKEVILLE LOWE'S HOME CENTER, INC. v. CITY OF PIKEVILLE TEACHER'S RETIREMENT SYSTEM FOR THE STATE OF KENTUCKY
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RENDERED: May 24, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000276-MR
BIG SANDY PIKEVILLE
LIMITED PARTNERSHIP AND
SEI DEVELOPMENT CORPORATION
v.
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NOS. 99-CI-01173 & 99-CI-01174
CITY OF PIKEVILLE
APPELLEE
AND:
2001-CA-000284-MR
LOWE’S HOME CENTER, INC.
v.
APPELLEE
NO. 2001-CA-000333-MR
TEACHER’S RETIREMENT SYSTEM
FOR THE STATE OF KENTUCKY
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 99-CI-01174
CITY OF PIKEVILLE
AND:
APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 99-CI-01174
APPELLANT
CITY OF PIKEVILLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BARBER AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Big Sandy/Pikeville Limited Partnership (Big
Sandy) and SEI and Development Corporation (SEI Development),
Teacher’s Retirement System for the Sate of Kentucky (Teacher’s
Retirement), and Lowe’s Home Center, Inc. (Lowe’s) (collectively
appellants) bring these separate appeals from the same amended
interlocutory order and judgment entered January 25, 2001, by the
Pike Circuit Court in a condemnation proceeding.
The separate
appeals have been combined by prior order of this Court.
We
affirm.
On August 11, 1999, the City of Pikeville filed a
verified petition pursuant to Kentucky Revised Statutes (KRS)
416.540-416.670 in which it sought to condemn the land and/or
materials (surface only) of appellants and further sought the
right to take possession of the land owned by the appellants for
the purpose of constructing of roadway.1
Specifically,
paragraphs 5, 6 and 7 of the petition stated:
5. The plaintiff states that this
action is instituted pursuant to Kentucky
Revised Statutes 416.540-416.670.
1
Firstar Bank, N.A., was made a party defendant to the
action but did not file an answer or otherwise participate in the
action before the circuit court. Firstar is also not a named
party to this appeal.
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6. That the City of Pikeville on the
23rd day of November, 1998, did adopt a
resolution or order authorizing and directing
the design and construction of a permanent
public street leading from Cassidy Boulevard
to Thompson Road as evidenced by the plans
and specifications on file with the Clerk of
the City of Pikeville, all of which is for
the public interest, necessity and
convenience and further authorizing the
acquisition of the necessary real property to
construct and maintain the permanent public
street by agreement or by virtue of the
Eminent Domain Act of the Commonwealth of
Kentucky.
7. That it is necessary for the
plaintiff to acquire the land and/or
materials (surface only) of the defendants
herein, as same is more particularly
described hereinafter, all of which is for
the public purpose of construction and
maintaining the aforesaid street.
Following a report from the three commissioners
appointed to appraise the tracts of land in question and answer
filed and memoranda of law filed by the parties thereto, the Pike
Circuit Court entered an amended interlocutory order and judgment
on January 25, 2001, granting the city of Pikeville the right to
take possession of the land and materials of the appellants upon
payment of the amount previously awarded by the commissioners.
The trial court made the following findings concerning the City
of Pikeville’s right to condemn the property:
....
2. KRS 82.082 authorizes a city to use
the power of eminent domain in accordance
with the provisions of the Eminent Domain Act
of Kentucky. Private property can be taken
under the right of eminent domain by a city
for a municipal use or purpose. Miller v.
City of Georgetown, 301 Ky. 241, 191 S.W.2d
403 (1946). Streets or roadways for the
public use are within that requirement for
“municipal use or purpose.” Sturgill v. Co.,
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Dept. Of Highways, Ky., 384 S.W.2d 98 (1964);
Com., Dept. Of Highways v. Burchett, Ky., 367
S.W.2d 262 (1963).
3. The property sought to be condemned
herein is for the design, construction, and
maintenance of a public street leading from
one public street, Cassady Boulevard, to
another public street, Thompson Road, for
which the public access will in no way be
restricted. The Court has viewed the
property to be condemned and notes much
congestion in the area. Therefore, the Court
finds that the taking is a necessity and for
a public purpose.
4. The Plaintiff, under the provisions
of KRS 416.540 to KRS 416.680, is entitled to
condemn the land and materials hereinafter
described.
5. The Defendants have alleged that
actions the Plaintiff took during city
commission meetings to condemn the properties
was in violation of the Open Meetings Act,
KRS 61.800, et seq.
6. CR 8.03 states, “In pleading to a
proceeding pleading [in this case, a
Petition], a party shall set forth
affirmatively...fraud, illegality, ..., and
any other matter constituting an avoidance or
affirmative defense.” Nowhere in any of the
Defendants’ Answers do they allege fraud or
illegality concerning the city commission
meetings.
7. KRS 416.650 states, “All proceedings
under KRS 416.550 to 416.670 shall be
governed by the provisions of the Rules of
Civil Procedure except where the provisions
of KRS 416.550 to 416.670 specifically or by
necessary implication provide otherwise.”
8. KRS 416.550 to 416.670 do not
specifically or by necessary implication
otherwise provide for all affirmative
defenses to be preserved.
9. In eminent domain proceedings, a
court will deny the right to take only where
there has been gross abuse or manifest fraud.
Commonwealth v. Cooksey, Ky. App., 948 S.W.2d
-4-
122 (1997). The Defendants have failed to
carry their burden of proof in this regard.
10. The reports of the Commissioners
entered in these consolidated actions conform
to the provisions of KRS 416.580.
It is from these findings and the amended interlocutory order
entered that appellants appeal.
On appeal, appellants contend the trial court erred in
that the taking of their private property was for a private
purpose and not a public purpose or necessity and that the city’s
right to condemn is defeated due to the presence of fraud, bad
faith and illegal conduct on behalf of the city in violation of
KRS 61.800, the Open Meeting Act.
We have thoroughly reviewed
the facts, the pleadings, the legal arguments and the trial
court’s findings and judgment and found no error which would
mandate reversal, thus we affirm.
Appellants first argue that the trial court erred in
allowing the city to condemn the appellants’ property interests
because Kentucky law does not permit the taking of private
property to be used for a private purpose, especially where there
is no public purpose of interest.
See generally, Prestonsburg
Area Neighborhood Association v. Abransom, Ky. App., 797 S.W.2d
708 (1990); City of Bowling Green v. Cooksey, Ky. App., 858
S.W.2d 190 (1992).
Appellants argue the action taken by the city
benefits only a private developer who has subsequently entered
into a development agreement relative to the development of
property adjacent to the new roadway.
Appellants cite several
cases which explicitly condemns the use of eminent domain for
private use, but more emphatically express concerns over the
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development agreement between the city and the potential
developer.
The city responds citing several cases that condones
the taking of private property if for a municipal use or purpose.
In this case, the city adopted a resolution on November 23, 1998,
relative to design and construction of a permanent public street
which the city claims is for the public interest, necessity and
convenience.
The circuit court determined that the taking was a
necessity and for a public purpose.
As such, the court held,
under the provisions of KRS 416.549 to KRS 416.680, the city
properly exercised its power of eminent domain in this instance.
The trial court’s findings of fact, conclusions of law and
judgment thoroughly discussed the evidence presented and
applicable law.
We must observe proper deference to the role of
the trial court as factfinder.
City of Bowling Green v. Cooksey,
Ky. App., 757 S.W.2d 190, 193 (1992) citing Commonwealth,
Transportation Cabinet, Department of Highways v. Taub, Ky., 766
S.W.2d 49 (1989) and CR 52.01.
Because there is credible,
competent and substantial evidence that the acquisition of the
land and material in question is necessary for an intended public
purpose, this Court is unable to conclude that the trial court’s
findings of fact were clearly erroneous.
Thus, we must affirm
the trial court in this matter.
The next issue raised by Appellants is that the city’s
actions constituted fraud, bad faith or an abuse of discretion.
In this vain Appellants contend the city violated the open
meetings law, used a false or misleading traffic study to justify
the taking and violated ethical duties in that council members
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and staff had conflicts of interest which affected the final
decision in this matter.
We have thoroughly reviewed these
allegations and find no merit as to these arguments.
The traffic
study indicated that the traffic flow would improve and relieve
congestion on existing roadways.
Despite appellants’ objections
to who was going to develop the adjacent property and in what
manner it would be developed, the property was prime
developmental property and a new connecter road would be
necessary for both existing land owners and increased traffic
resulting from the future development.
Also, the meetings in
question were open to the public and despite appellants’
arguments to the contrary, the issues discussed in executive
(closed) session met the statutory requirements set forth in KRS
61.810.
As to allegations of conflicts of interest, we find no
error of such magnitude as to require reversal.
While we express
concern over the role of the city engineer (Mr. Sykes) in
providing professional services to the developer as well as the
city, we do not believe his conduct reaches the level sufficient
to require reversal.
While appellants have made several allegations against
city officials, the developer, the future development and the
condemnation process, the record supports the decision of the
Pike Circuit Court that the City of Pikeville properly enacted a
regulation to initiate the condemnation of the property in
question and proceeded legally to effectuate the condemnation of
appellants’ property.
As such, the order and judgment of the
Pike Circuit Court is affirmed.
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ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, BIG SANDY/PIKEVILLE
LIMITED PARTNERSHIP:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Russell H. Davis, Jr.
Pikeville, KY
Michael Lucas
Pikeville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, LOWE’S HOME CENTER:
Bernard Pafunda
Lexington, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, TEACHERS’
RETIREMENT SYSTEM FOR THE
STATE OF KENTUCKY:
George J. Miller
Lexington, KY
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