GEORGE KRAUSER, JR., AND PATRICIA KRAUSER; DON EDLING AND MARTHA EDLING; LEONARD GROSS; BARBARA BALLARD, DR. ARMAND GORDON; CLARA BILHARZ; WILLIAM AND THELMA McGUIRK; MARK AND MARY LEE O'BRYAN; TRUDY YORK MILLER; PATRICE RYMAROWITZ; CLARE BLACKBURN; STEVEN AND JUDY SPOONER; EDWARD AND BARBARA WEILAGE; AND THEODORE AND ANN H. STEWART v. PUBLIC SERVICE COMMISSION OF KENTUCKY; MARTIN J. HUELSMANN, CHAIRMAN AND COMMISSIONER OF THE PUBLIC SERVICE COMMISSION OF KENTUCKY; EDWARD J. HOLMES, VICE-CHAIRMAN AND COMMISSIONER OF THE PUBLIC SERVICE COMMISSION OF KENTUCKY; GARY W. GILLIS, COMMISSIONER OF THE PUBLIC SERVICE COMMISSION OF KENTUCKY; CROWN COMMUNICATIONS, INCORPORATED; KENTUCKY CGSA, INCORPORATED; TRITEL COMMUNICATIONS, INCORPORATED; TRITEL FINANCE, INCORPORATED; AND VERIZON WIRELESS
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RENDERED: JUNE 13, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002006-MR
GEORGE KRAUSER, JR., AND PATRICIA KRAUSER;
DON EDLING AND MARTHA EDLING; LEONARD GROSS;
BARBARA BALLARD, DR. ARMAND GORDON;
CLARA BILHARZ; WILLIAM AND THELMA McGUIRK;
MARK AND MARY LEE O’BRYAN; TRUDY YORK MILLER;
PATRICE RYMAROWITZ; CLARE BLACKBURN;
STEVEN AND JUDY SPOONER; EDWARD AND BARBARA
WEILAGE; AND THEODORE AND ANN H. STEWART
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 01-CI-00655
v.
PUBLIC SERVICE COMMISSION OF KENTUCKY;
MARTIN J. HUELSMANN, CHAIRMAN AND COMMISSIONER
OF THE PUBLIC SERVICE COMMISSION OF KENTUCKY;
EDWARD J. HOLMES, VICE-CHAIRMAN AND COMMISSIONER
OF THE PUBLIC SERVICE COMMISSION OF KENTUCKY;
GARY W. GILLIS, COMMISSIONER OF THE PUBLIC SERVICE
COMMISSION OF KENTUCKY; CROWN COMMUNICATIONS,
INCORPORATED; KENTUCKY CGSA, INCORPORATED;
TRITEL COMMUNICATIONS, INCORPORATED; TRITEL FINANCE,
INCORPORATED; AND VERIZON WIRELESS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
George Krauser, Jr., Patricia Krauser, Don
Edling, Martha Edling, Leonard Gross, Barbara Ballard, Dr.
Armand Gordon, Clara Bilharz, William McGuirk, Thelma McGuirk,
Mark O’Bryan, Mary Lee O’Bryan, Trudy York Miller, Patrice
Rymarowitz, Clare Blackburn, Steven Spooner, Judy Spooner,
Edward Weilage, Barbara Weilage, Theodore Stewart and Ann H.
Stewart (hereinafter Krauser) have appealed from an order of the
Franklin Circuit Court entered on August 27, 2001, which
dismissed their action contesting a decision of the Public
Service Commission (PSC).
Having concluded that strict
compliance with the procedural guidelines at KRS1 278.420 is
necessary in order to perfect an appeal from a PSC decision, we
affirm.
On October 21, 1999, Crown Communications, Inc.,
Kentucky CGSA, Inc. (d/b/a BellSouth Mobility), Verizon
Wireless, Tritel Communications, Inc., and Tritel Finance, Inc.
(collectively, the appellees), submitted an application to
construct a cellular communications tower near Old Cannons Lane
in Louisville, Jefferson County, Kentucky.
The Louisville and
Jefferson County Planning Commission (Planning Commission)
rejected Crown’s application by unanimous decision on December
2, 1999.
On March 3, 2000, pursuant to Kentucky administrative
procedures, the appellees filed an appeal of the Planning
Commission’s decision with the PSC.
1
Kentucky Revised Statutes.
-2-
Following a public hearing,
at which Krauser and the Planning Commission were both heard,
the PSC granted Crown’s application on May 9, 2001.
On June 1, 2001, Krauser filed an action in the
Franklin Circuit Court seeking judicial review of the PSC’s
order granting Crown’s application.
On June 22, 2001, and June
27, 2001, the appellees filed separate motions to dismiss,
arguing that Krauser had failed to comply with KRS 278.420 by
failing to designate those portions of the record necessary to
resolve the issues raised in the action.
On June 29, 2001,
Krauser filed a belated designation of the record, and on July
5, 2001, Krauser filed a motion for enlargement of the time
period in which to file a designation of the record under KRS
278.420.
In essence, Krauser’s motion for enlargement argued
that it was within the sound discretion of the Franklin Circuit
Court to grant the enlargement due to excusable neglect.
Following a hearing on the respective motions for
dismissal and enlargement, the Franklin Circuit Court ruled that
Krauser’s failure to comply with KRS 278.420 deprived it of
subject-matter jurisdiction, and accordingly, it dismissed
Krauser’s action.
The circuit court stated that it was bound by
this Court’s earlier decision in Forest Hills Developers, Inc.
v. Public Service Commission,2 and that Krauser’s attempt to
2
Ky.App., 936 S.W.2d 94 (1996).
-3-
distinguish the case sub judice from Forest Hills was
unconvincing.
This appeal followed.
Krauser argues that the designation of the record
under KRS 278.420(2) is not jurisdictional.
Specifically, he
maintains that the basis for the Franklin Circuit Court’s
jurisdiction over his action is KRS 278.410 rather than KRS
278.420.
Krauser argues that irrespective of his failure to
timely designate the record, that the Franklin Circuit Court was
vested with jurisdiction to adjudicate the action and that the
circuit court abused its discretion by denying his motion to
enlarge the time period during which the record could be
designated.
KRS 278.410 provides that any party to a PSC
proceeding or any utility affected by an order of the PSC may,
within 30 days of the order, bring an action in Franklin Circuit
Court to vacate or set aside the order or determination on the
ground that it is unlawful or unreasonable.
KRS 278.420(2)
states:
Unless an agreed statement of the
record is filed with the court, the filing
party shall designate, within ten (10) days
after an action is filed, the portions of
the record necessary to determine the issues
raised in the action. Within ten (10) days
after the service of the designation or
within ten (10) days after the court enters
an order permitting any other party to
intervene in the action, whichever occurs
last, any other party to the action may
-4-
designate additional portions for filing.
The court may enlarge the ten (10) day
period where cause is shown. Additionally,
the court may require or permit subsequent
corrections or additions to the record.
In Forest Hills, supra, this Court held that KRS
278.420(2) required the party filing an action in circuit court
pursuant to KRS 278.410 to timely and properly designate the
portions of the record necessary to resolve the issues raised in
the action.
This Court further held that the failure of the
party to timely and properly designate the record deprived the
circuit court of subject-matter jurisdiction to adjudicate the
action.
This Court in Forest Hills quoted its previous decision
in Frisby v. Board of Education of Boyle County,3 for the
proposition that “‘where a statute prescribes the method for
taking an appeal from an administrative action and the time in
which the appeal must be taken, these requirements are mandatory
and must be met in order for the circuit court to obtain
jurisdiction to hear the case.’”4
In the case sub judice, the
Franklin Circuit Court properly relied upon this Court’s
decisions in Forest Hills and Frisby in dismissing Krauser’s
action.
While Krauser attempts to distinguish the case sub
judice from the decision in Forest Hills, like the circuit
3
Ky.App., 707 S.W.2d 359, 361 (1986).
4
Forest Hills, 936 S.W.2d at 96.
-5-
court, we find his argument unconvincing.
the same critical facts:
Both cases involved
the party filing the action failed to
designate the record within ten days of filing the action, the
party filing the action later attempted to file a belated
designation of the record, and the party filing the action filed
a motion for enlargement of the time period in which to
designate the record.
The only procedural distinction between
the two cases is that the appellant in Forest Hills attempted to
argue that the record did not have to be designated because no
portion of the record was essential to deciding the action.5
In
determining the proper application of the holding in Forest
Hills to the case sub judice, we conclude that the distinction
between the two cases is irrelevant.
The holding in Forest
Hills is clear and it requires the timely and proper designation
of the record pursuant to KRS 278.420 in order for the subjectmatter jurisdiction of the Franklin Circuit Court to be invoked
pursuant to KRS 278.410.
Krauser failed to comply with the
mandatory jurisdictional requirement of timely and properly
designating the record.
For the foregoing reasons, the order and opinion of
the Franklin Circuit Court dismissing the action is affirmed.
ALL CONCUR.
5
Unlike the appellant in Forest Hills, Krauser admits that portions of the
record are necessary to decide the action. Krauser’s counsel also admits
that he simply neglected to designate the record because of the
contemporaneous timing of his son’s wedding.
-6-
BRIEFS FOR APPELLANTS:
H. Edwin Bornstein
Louisville, Kentucky
BRIEF FOR APPELLEE PUBLIC
SERVICE COMMISSION OF
KENTUCKY:
Deborah T. Eversole
C. Dale Wright
Frankfort, Kentucky
BRIEF FOR APPELLEE, CROWN
COMMUNICATIONS, INC.:
David A. Pike
F. Keith Brown
Christopher L. King
Shepherdsville, Kentucky
BRIEF FOR APPELLEE, KENTUCKY
CSGA, INC.:
Mark R. Overstreet
Frankfort, Kentucky
BRIEF FOR APPELLEE, TRITEL
COMMUNICATIONS, INC.:
Sandra F. Keene
Mark W. Dobbins
Melissa M. Bauer
Alissa Domine
Louisville, Kentucky
BRIEF FOR APPELLEE VERIZON
WIRELESS :
Douglas T. Logsdon
Lexington, Kentucky
-7-
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