ELM STREET/MCCRACKEN PIKE PRESERVATION ALLIANCE, INC. v. JOSEPHINE BARROWS; BLUEGRASS TRADITION, LLC; CITY OF VERSAILLES
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RENDERED:
OCTOBER 17, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001927-MR
ELM STREET/MCCRACKEN PIKE
PRESERVATION ALLIANCE, INC.
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
CIVIL ACTION NO. 01-CI-00238
v.
JOSEPHINE BARROWS; BLUEGRASS
TRADITION, LLC; CITY OF VERSAILLES
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON,
Chief
Judge;
McANULTY,
Judge;
HUDDLESTON,
Senior Judge.1
HUDDLESTON,
Senior
Judge:
The
Elm
Street/McCracken
Pike
Preservation Alliance2 appeals from a summary judgment in favor
1
Senior Judge Joseph R. Huddleston sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
of Josephine Barrows and Bluegrass Tradition.3
appealed
to
Woodford
Circuit
Court
from
the
The Developers
denial
of
their
application for a zoning change involving approximately 47 acres
owned
Barrows.4
by
Midway-Woodford
Because
County
the
Planning
findings
and
of
Zoning
the
Versailles-
Commission
were
supported by substantial evidence, the circuit court ordered the
“Versailles City Council to adopt the proposal of the [planning
commission] amending the zoning map to show that the [Barrows
property]
shall
be
zoned
R-1B/PUD
with
a
planned
unit
development overlay.”
Since 1977, the Barrows property has been designated
for future residential land use in the comprehensive plan, and
that
designation
remained
update in 1997.
intact
as
of
the
most
recent
plan
In 1999, the City of Versailles annexed the
property into the city limits with the consent of Barrows based
on its finding that the property was “suitable for residential
subdivision
Currently,
2
or
urban
41.197
purposes
acres
of
the
without
Barrows
unreasonable
property
delay.”
are
being
The Alliance was the intervening defendant below.
3
Barrows and Bluegrass Tradition will be referred
collectively as the Developers throughout this opinion.
4
to
The subject property is located on the south side of Elm
Street/McCracken Pike (Ky. Hwy. 1659) adjacent to and west of
Elm Street Heights, within the city limits of Versailles, in
Woodford County, Kentucky. Currently, 1.651 acres are zoned R1A, 4.961 acres are zoned R-1B and 40.585 acres are zoned A-1.
2
utilized for agricultural purposes although there is one single
family residence on the portion of the farm currently zoned R1A.
On May 8, 2000, the Developers filed an application
for
a
zoning
map
amendment
requesting
that
the
zoning
classification of the subject property be changed to R-4.
The
Developers subsequently decided to reconfigure their development
plan
in
order
to
incorporate
principles
of
new
urbanism
as
defined by a task force appointed to study future development in
Woodford County, and they amended their application to request
that the property be classified as R-1C with a Planned Unit
Development (PUD) overlay.
both
the
zoning
map
After conducting a public hearing on
amendment
and
conceptual
development
plan/preliminary plat, but prior to any motion, the chairman of
the planning commission clarified that only the issues of the
amendment and the PUD would be considered.
No vote was taken on
the preliminary plat.
On
March
8,
2001,
the
planning
commission
held
a
public hearing on the zone change application at which the staff
presented
its
report
and
introduced
numerous
exhibits.
The
Developers and the Alliance offered documentary and testimonial
evidence in support of their respective positions.
At a meeting
held on May 10, 2001, the planning commission voted six to three
in favor of recommending that the zoning classification of the
3
Barrows property be changed to R-1B/PUD “based upon the Summary
of Evidence and Findings and Conclusions presented on behalf of
[the Developers], and the minutes of the public hearing held on
March 8, 2001 . . . .”
In so doing, the planning commission
concluded that the zone map amendment, and the evidence offered
in
support
thereof,
“fits
precisely
within
the
land
use
and
development standards of the 1997 Comprehensive Plan and further
is in conformity with the princip[le]s of the Master Plan as
recently approved” by the planning commission.
On July 17, 2001, the Versailles City Council convened
to consider the recommendation of the planning commission.
By a
unanimous vote, the city council declined to conduct a public
hearing
or
reviewing
hear
the
presentations
entire
record
from
of
the
the
parties.
Planning
“After
Commission
and
listening to the summary statements from opposing counsel,” the
city attorney submitted a motion to disapprove the requested
zoning
change
and
“findings
of
fact”
in
support
thereof
on
behalf of a council member which the city council unanimously
approved.
On
the
same
day,
the
Developers
filed
a
complaint
against the City of Versailles alleging that the city had acted
arbitrarily
and
in
excess
of
its
authority
in
denying
the
recommendation of the planning commission thereby denying them
due process of law.
On August 24, 2001, before the Alliance had
4
filed a responsive pleading, the Developers filed an amended
complaint, again naming the City of Versailles as the defendant.
The City of Versailles filed its answer on August 30, 2001 and,
one
week
later,
the
Alliance
filed
a
motion
to
intervene.
Although the Alliance argued its motion on September 12, 2001,
the circuit court did not grant the motion until November 13,
2001.
While the motion was pending, Barrows deposed the members
of the city council and those depositions were of record below.
The
Developers
then
filed
a
motion
for
summary
judgment to which both the City of Versailles and the Alliance
responded.
the
On April 26, 2002, the court held oral arguments on
matter.
Because
all
parties
agreed
that
there
were
no
factual issues to be resolved, the sole issue as framed by the
court was “whether the record supports the decision of the city
council.”
Drawing a parallel with Bryan v. Salmon Corp.,5 the
circuit court determined that the decision of the city council
was
arbitrary
“since
there
was
not
significant
evidence
to
support any of its findings, some of its findings were beyond
its
authority,
and
some
were
irrelevant.”
Having
read
the
depositions of the council members, the court concluded that the
city council had improperly relied upon extraneous evidence not
5
Ky. App., 554 S.W.2d 912 (1977).
5
considered by the planning commission in reaching its decision.
As the action taken by the planning commission was “supported by
the record,” the court concluded that it “had no choice but to
order the City of Versailles to amend its zoning map to reflect
the decision of the [planning commission] in this case.”
Relevant for present purposes, the court resolved the
threshold issue of whether the proper parties had been named as
follows:
The first issue which must be resolved is
[the Alliance’s] argument that the complaint must be
dismissed because it has named the improper party by
naming
the
City
of
Versailles
Versailles City Council.
Alliance]
submits
a
instead
of
the
As grounds for that, [the
charter
of
a
municipal
improvements corporation granted on December 8, 1965,
and
claims
that
that
municipal
improvements
corporation is the party actually sued and not the
Versailles
City
correctly
Council.
point
out,
the
As
[the
charter
Developers]
cited
by
very
[the
Alliance] is for a municipal improvement corporation
and is not the City of Versailles.
argument is absurd.
than
the
planning
caption
and
[the Alliance’s]
One need not look any further
of
one
zoning
cases
6
of
the
in
most
significant
Kentucky,
City
of
Louisville v. McDonald,[6] to see that the proper way
to
institute
Versailles.
this
action
was
to
name
the
City
of
It is this Court’s decision that the City
of Versailles is the proper party and the complaint
will not be dismissed for that reason.
In denying the Alliance’s subsequent motion to alter,
amend or vacate the summary judgment, the court engaged in the
following analysis of this issue:
Obviously,
pointed
that
out
argument
that
the
was
City
of
absurd
and
the
Versailles
was
Court
not
a
corporation, but a municipality and a local unit of
government pursuant to Section 156 of the Constitution
of Kentucky and KRS Chapter 81, et seq.
Alliance]
is
quite
correct
that
However, [the
.
.
.
City
of
Louisville v. McDonald, [] is not controlling on this
issue
since
that
case
was
decided
prior
to
the
amendment of KRS 100.347, which specifically requires
that “[t]he legislative body shall be a party in any
such appeal filed in the Circuit Court.”
[The
should
be
Alliance]
dismissed
now
since:
states
the
that
the
case
Versailles
City
Council has never been named in this case; and more
6
Ky., 470 S.W.2d 173 (1971).
7
than 30 days have elapsed since the final decision in
this matter.
It is interesting to the Court that the
City of Versailles and the members of the Versailles
City
Council
which
have
participated
in
this
litigation and are represented by the City Attorney
have
never
raised
this
objection
and,
in
fact,
in
their answer admitted that they were before the Court
as the legislative body through the naming of the City
of Versailles,[].
Although it is not dispositive of
the issue in this case, the Court does question the
ability
of
intervene
[the
until
Alliance],
after
the
who
did
not
file
to
of
the
City
of
answer
Versailles was filed and the 30 days had run, to raise
an
issue
concerning
jurisdiction
over
the
original
Defendant.
However, there is another reason this matter
should not be dismissed. * * *
memorandums
discussed
items
All parties in their
produced
during
the
discovery which indicate that this was more than an
appeal
of
an
administrative
body.
[In]
Greater
Cincinnati Marine Service, Inc. v. City of Ludlow,[7]
the [C]ourt held:
7
“It is clear that the complaint,
Ky., 602 S.W.2d 427, 429 (1980).
8
judged
by
its
content,
is
far
more
than
an
appeal
under the aegis of KRS 100.347(2) [which requires any
person or entity claiming to be injured or aggrieved
by a final action of the planning commission to name
the planning commission as a party on appeal to the
circuit court].”
Since this matter is clearly more
than just an appeal, the requirements under Board of
Adjustments
v.
100.347(2)
are
City
of
not
Richmond
dispositive
v.
of
Flood[8]
this
of
KRS
matter.
Therefore, the complaint should not be dismissed.
On appeal, the Alliance argues that the failure to
name the legislative body, i.e., the Versailles City Council,
“is a clear jurisdictional defect and requires dismissal as a
matter of law.”
In its view, City of Louisville v. McDonald
“had nothing to do with any issue relative to filing a zone
change appeal against a statutorily mandated party” and is not
dispositive.
Further, “the 1986 General Assembly, in amending
KRS 100.347, made it unequivocally clear that the legislative
body had to be named as a party.”
We agree.
According to the Alliance, the city attorney filed an
answer on behalf of the City of Versailles rather than the city
council and, contrary to the court’s opinion, the city attorney
8
Ky., 581 S.W.2d 1 (1978).
9
“could not answer on behalf of a party which was never sued” nor
does
the
effect.
court
cite
any
authority
for
its
holding
to
that
Acknowledging that the city attorney did not raise an
objection
council
regarding
as
a
party,
the
failure
the
of
Alliance
Barrows
also
to
name
observes
the
that
city
it
did
object on that basis.
Citing Evangelical Lutheran Good Samaritan Society v.
Albert
Oil
Co.,
Inc.[9]
and
Nicholasville
Road
Neighborhood
Consortium, Inc. v. Lexington-Fayette Urban County Government,10
the Alliance emphasizes that strict compliance with a planning
and zoning statute is required.
assertion
Alliance
that
its
explains
motion
that
it
to
In response to the court’s
intervene
“filed
its
was
Motion
not
timely,
the
to
Intervene
on
September 7, 2001, only fourteen days after [the Developers]
filed their amended complaint[] and only eight days after the
City of Versailles tendered its answer[],” although the court
did not grant its motion until November 13, 2002.
Lastly, the
Alliance disputes the court’s characterization of the complaint,
distinguishing Greater Cincinnati Marine Service which involved
a complaint consisting of nine substantive counts in addition to
the appeal itself, from the “single count complaint which, by
9
Ky., 969 S.W.2d 691 (1998).
10
Ky. App., 994 S.W.2d 521 (1999).
10
its own terms, was an ‘appeal’ of the rezoning decision” at
issue here.
In relevant part, the Kentucky Supreme Court held
in that case that the “requirement that the planning commission
be joined as a party is applicable only to the part of the
complaint which sought review of the decision of the board of
adjustment,”11
a
holding
which,
according
to
the
Alliance,
supports its position.
In response, the Developers argue that “the only means
of invoking jurisdiction over the City Council is to name the
City
of
Versailles
as
the
real
party
in
interest”
as
“the
Council is not a corporate entity, and the Council itself lacks
the power to sue and be sued.”
The Developers further contend
that the City of Versailles, “including its Council members were
not only on notice of the appeal, but appeared in the action
below and attempted to defend its arbitrary acts.”12
In their
view, the Alliance is estopped from arguing that the City of
11
Greater Cincinnati Marine Service, supra, n. 7, at 428.
12
In City of Louisville v. McDonald, relied upon by the circuit
court, Kentucky’s highest court reaffirmed its prior holding
that the circuit court “was not at liberty to consider
additional exhibits and evidence in the absence of a claim of
fraud or misconduct on the part of the fiscal court or its
individual members.”
Supra, n. 6, at 228.
Although our
resolution of the statutory question renders further discussion
of this issue unnecessary, the circuit court should not have
considered the depositions of council members in the instant
case.
11
Versailles is not the proper party given its “failure to raise
any objection to the alleged misnomer” below.
According to the Developers, the cases relied upon by
the Alliance, Evangelical Lutheran and Nicholasville Road, “can
be readily distinguished” because in those cases the Kentucky
Supreme Court and this Court, respectively, were “specifically
addressing
the
90
day
deadline
for
action
recommendation under KRS 100.211(1).”
on
a
commission’s
Further, Kentucky Rules
of Civil Procedure (CR) 9.01 and 12.02, as well as Kentucky case
law, “establish that the defense of a misnomer is waived if not
plead [sic],” and the City of Versailles “also admitted that the
jurisdiction
of
the
circuit
court”
was
invoked
under
KRS
injured
or
100.347.
Pursuant to KRS 100.347(3):
Any
person
or
entity
claiming
to
be
aggrieved by any final action of the legislative body
of any city, county, consolidated local government, or
urban-county government, relating to a map amendment
shall appeal from the action to the Circuit Court of
the county in which the property, which is the subject
of
the
map
amendment,
lies.
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
12
subject
shall
to
be
judicial
a
party
review.
in
any
The
such
legislative
appeal
filed
body
in
the
Circuit Court.13
Our duty is to construe statutes so as to ascertain
and give effect to the intent of the General Assembly.
determining
legislative
language
of
the
subtract
from
statute
the
intent,
and
are
legislative
courts
not
must
at
enactment
refer
liberty
or
to
to
In
the
add
or
it
at
interpret
variance from the language used.14
“Statutes should be construed
in
not
such
a
way
that
they
do
become
meaningless
or
ineffectual,” and courts have a duty to harmonize the law and
give effect to multiple statutes on the same subject.15
All
statutes should be interpreted to give meaning to each provision
in accord with the statute as a whole.16
Courts have a duty to
accord the words of a statute their literal meaning unless to do
13
Emphasis supplied.
14
Hale,
id.,
at
151(citations
omitted);
Commonwealth, Ky. App., 35 S.W.3d 831, 834 (2000).
Stogner
v.
15
Commonwealth
v.
Phon,
Ky.,
17
S.W.3d
106,
108
(2000)(citation omitted).
See also Manies v. Croan, Ky. App.,
977 S.W.2d 22, 23 (1998).
16
DeStock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952, 957
(1999); Aubrey v. Office of Attorney General, Ky. App., 994
S.W.2d 516, 520 (1998).
13
so would lead to an absurd or wholly unreasonable conclusion.17
“Where the words of a statute ‘are clear and unambiguous and
express legislative intent, there is no room for construction or
interpretation
written.’”18
and
the
statute
must
be
given
effect
as
Statutory interpretation is purely a question of
law subject to de novo review.19
Both
the
circuit
court
and
the
Developers
have
misconstrued governing precedent as to the dispositive issue of
whether the Developers were required to name the city council as
a party on appeal to the circuit court from its decision.
In
Nicholasville Road, decided well after the 1986 amendments to
KRS 100.347, this Court reiterated that “‘strict compliance with
the statute on planning and zoning is required.’”20
Contrary to
the Developers’ implicit assertion, noticeably absent from this
explicit directive is any language limiting its application to
specific provisions.
Although we have not been cited to nor has
17
McElroy v. Taylor, Ky., 977 S.W.2d 929, 931 (1998); Bailey
v. Reeves, Ky., 662 S.W.2d 832, 834 (1984); Worldwide Equipment,
Inc. v. Mullins, Ky. App., 11 S.W.3d 50, 59 (1999).
18
White v. Check Holders, Inc., Ky., 996 S.W.2d 496, 497
(1999)(citation omitted). See also Commonwealth v. W.E.B., Ky.,
985 S.W.2d 344, 345 (1998); Ware v. Commonwealth, Ky. App., 34
S.W.3d 383, 386 (2000).
19
Revenue Cabinet v. Hubbard, Ky., 37 S.W.3d 717, 719 (2000);
Bob Hook Chevrolet-Isuzu v. Commonwealth, Transp. Cab., Ky., 983
S.W.2d 488, 490 (1999); Marks v. Bean, Ky. App., 57 S.W.3d 303,
306 (2001).
20
Supra, n. 10, at 523 (citation omitted).
14
our research revealed any Kentucky case directly addressing the
precise issue presented here, Rosary Catholic Parish of Paducah
v.
Whitfield,21
involving
provides guidance.
the
application
of
KRS
100.347(1),
In significant part, the language of that
provision parallels KRS 100.347(3), with the primary distinction
being that the entity referenced is the “board of adjustment”
rather than “the legislative body.”22
Whitfield
community
because
sought
residential
it
violated
to
enjoin
correctional
a
municipal
the
center
operation
zoning
in
his
of
a
neighborhood
ordinance.23
In
concluding that the circuit court did not have jurisdiction to
entertain the action, we observed that Whitfield had not raised
issues
sufficient
to
allow
him
to
bypass
the
administrative
review process.24 Citing KRS 100.347(1), we reminded him “and
others contemplating appeal to circuit court, that the Board of
Adjustment must be made a party to any appeal taken” consistent
21
Ky. App., 729 S.W.2d 27 (1987).
22
Noteworthy is the fact that subsections (1), (2) and (3) of
KRS 100.347 all contain mandatory language requiring that the
person or entity claiming to be injured or aggrieved name the
entity whose decision is being appealed as a party on appeal to
the circuit court, i.e., the board of adjustment, planning
commission and legislative body, respectively, thereby removing
any doubt as to the intent of the General Assembly in this
regard.
23
Rosary Catholic Parish, supra, n. 22, at 27.
24
Id. at 29.
15
with the guiding principle that “[s]tatutory procedures must be
strictly complied with in respect to administrative appeals.”25
As this reasoning is equally applicable here, the same outcome
necessarily follows.
The right of appeal in administrative as well as other
proceedings does not exist as a matter of right.
When
the right is conferred by statute, a strict compliance
with its terms is required.
that
where
the
conditions
It is the general rule
for
the
exercise
of
the
power of a court are wanting the judicial power is
not, in fact, lawfully invoked.26
It
“legislative
is
beyond
body”
in
dispute
this
that
the
instance.
city
In
council
is
the
unambiguous
and
mandatory27 terms, KRS 100.347(3) requires any person or entity
[the
Developers]
claiming
to
be
injured
or
aggrieved
by
any
final action of the legislative body [the city council] to name
the legislative body as a party in an appeal to the circuit
court from its decision.
Contrary to the Developers’ assertion,
“a party [the City of Versailles] and particularly a nonparty
25
Id. (citation omitted).
26
Roberts v. Watts, Ky., 258 S.W.2d 513 (1953).
Although
this case was decided prior to the enactment of the 1986
amendments to KRS 100.347, the quoted language is consistent
with the more recent authority previously cited.
27
According to KRS 446.010(29)
16
“‘Shall’ is mandatory[.]”
[the city council], could not waive the statutory conditions
which
limited
after
the
complied.28
[the
time
Developers’]
had
passed
right
within
of
appeal,”
which
they
especially
could
have
Accordingly, the Developers’ failure to name the
Versailles City Council as the defendant in their appeal was a
fatal omission and the jurisdiction of the circuit court was not
“lawfully invoked.”
reach
the
merits
In light of this conclusion, we do not
of
the
remaining
arguments
raised
by
the
Alliance.
Consistent with the foregoing authority, the judgment
is vacated and this case is remanded to Woodford Circuit Court
which is instructed to dismiss the Developers’ appeal.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
T. Bruce Simpson, Jr.
Lexington, Kentucky
Robert L. Roark
WALTHER, ROARK, GAY & TODD, PLC
Lexington, Kentucky
28
George v. Kentucky Alcoholic Beverage Control Board, Ky.,
403 S.W.2d 24, 25 (1966).
17
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