LUKE PIKE AND PRISCILLA PIKE v. MEADE COUNTY FISCAL COURT AND COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001324-MR
LUKE PIKE AND PRISCILLA PIKE
APPELLANTS
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 02-CI-00080
v.
MEADE COUNTY FISCAL COURT AND
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Luke and Priscilla Pike have appealed from the
findings of fact, conclusion of law, and judgment entered by the
Meade Circuit Court on June 3, 2003, which, inter alia,
permanently enjoined them from operating any automobile,
vehicle, or machinery recycling establishment or place of
business on their property until they secure the proper permits.
Having concluded that the trial court erred in its determination
that the Kentucky Department of Highways was legally precluded
from granting the Pike’s application for a recycler’s permit, we
reverse and remand.
On March 13, 1976, Luke purchased a lot in the Wild
Wood Park subdivision, which is located in Meade County.
On
February 12, 1977, Luke purchased an adjoining lot in the same
subdivision.1
When Luke purchased the lots, the plat for the
subdivision contained a restrictive covenant prohibiting any
junk from accumulating on the lots located within the
subdivision.
The plat of the subdivision was recorded in the
Meade County Clerk’s Office on October 1, 1975.
In the early 1980’s Luke began collecting older model
cars and storing them on his property.
In 1998 the Meade County
Fiscal Court enacted the Meade County Zoning Ordinance.
In
addition to designating the Pikes’ property as “R-1
Residential,” the zoning code restricted the use of junkyards to
industrial zones.
Pursuant to Section 1.8(43) of the zoning
code, a junkyard is defined as:
Any area, lot, land or parcel where
junk is kept outside as defined herein, or
waste discarded or salvaged materials are
bought, sold, exchanged, stored, baled,
cleaned, packed, disassembled, handled,
including auto wrecking yards, used lumber
yards and places or yards for use of
1
Both lots abut a county road.
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salvaged house wrecking structural steel
materials and equipment.2
In December 1999 the Pikes were cited for storing junk
on their property in violation of the zoning code.
In March
2000 the fiscal court filed a complaint against the Pikes in the
Meade District Court seeking to enforce the provisions of the
zoning code.
The action was subsequently dismissed at the
fiscal court’s request.
In December 2000 the fiscal court filed
another complaint against the Pikes seeking to enforce the
provisions of the zoning code.
This action was also dismissed
at the fiscal court’s request.
On March 4, 2002, Luke filed an application for a
recycling permit with the Department of Highways.3
In his
application, Luke indicated that “ten (10) or more junked,
wrecked or nonoperative automobiles, vehicles or machines” were
2
Junk is defined in Section 1.8(42) of the zoning code as:
Any scrap, waste, reclaimable material, or
debris, whether or not stored, for sale or in the
process of being dismantled, destroyed, processed,
salvaged, stored, baled, disposed, or other use or
disposition. Examples of which include tires,
vehicle parts, equipment, paper, rags, metal, glass,
building materials, household appliances, machinery,
brush, wood and lumber.
3
Kentucky Revised Statutes (KRS) 177.910 requires an operator of an
automobile, vehicle, machinery or material recycling establishment which is
located closer than 1,000 feet from the right-of-way of any road to obtain a
permit from the Department of Highways. Pursuant to KRS 177.905(2), an
automobile, vehicle or machinery recycling establishment is defined as “any
place where five (5) or more junked, wrecked or nonoperative automobiles,
vehicles, machines and other similar scrap or salvage materials . . . are
deposited, parked, placed or otherwise located[.]”
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stored on his property.4
On March 5, 2002, the fiscal court
filed a complaint against the Pikes in the Meade Circuit Court,
in which it alleged that the Pikes were operating a junkyard in
violation of the zoning code.
The fiscal court sought an
injunction against the Pikes prohibiting them from using their
property “in a manner that does not conform to the Meade County
Zoning Ordinance[.]”5
On March 14, 2000, Luke received a letter
from the Department of Highways notifying him that his
application for a recycling permit had been denied on the basis
that he had failed to obtain “local approval.”
On April 1, 2002, the Pikes filed a response and
counterclaim, in which they averred, inter alia, that they were
exempt from complying with the zoning code because their use of
the property qualified as a nonconforming use pursuant to KRS
4
Specifically, the application contained the following questions:
4. If automobile, vehicle or machinery recycling
establishment, does it contain a combined total of
five (5) or more junked, wrecked, or nonoperative
automobiles, vehicles or machines? YES__ NO__
5. If automotive dealer, body shop operator, wrecker
service operator or service station operator, does it
contain ten (10) or more junked, wrecked or
nonoperative automobiles, vehicles or machines?
YES__ NO__
Luke checked the box marked “YES” in response to both questions.
5
The fiscal court also sought a declaration that the Pikes’ property
constituted a public nuisance pursuant to KRS Chapter 177.910, which is
incorporated in the zoning code.
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100.253(3).6
The Pikes also alleged that the fiscal court’s
action was barred by the doctrine of laches and that the zoning
code was unconstitutional on its face and as applied to their
case.7
On November 22, 2002, the Department of Highways filed
a motion to intervene as a third-party plaintiff pursuant to CR8
24.01(b), which was granted.
On December 6, 2002, the
Department filed a third-party complaint, in which it alleged
that the Pikes were operating an automobile, vehicle, or
machinery recycling center without a permit in violation of KRS
177.910.
The Department sought an injunction against the Pikes
prohibiting them from operating any automobile, vehicle, or
machinery recycling business on their property without a permit.
On December 10, 2002, the Pikes filed a response and
6
KRS 100.253(3) provides, in relevant part, that except in counties
containing a city of the first or second class, a consolidated local
government or urban county government:
Any use which has existed illegally and does
not conform to the provisions of the zoning
regulations, and has been in continuous existence for
a period of ten (10) years, and which has not been
the subject of any adverse order or other adverse
action by the administrative official during said
period, shall be deemed a nonconforming use.
7
In a subsequent pleading, the Pikes alleged that their use of the property
qualified as a lawful existing, nonconforming use pursuant to KRS 100.253(1),
which provides, in relevant part, as follows:
The lawful use of a building or premises,
existing at the time of the adoption of any zoning
regulations affecting it, may be continued, although
such use does not conform to the provisions of such
regulations[.]
8
Kentucky Rules of Civil Procedure.
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counterclaim, in which they alleged that the Department’s cause
of action was barred by the doctrine of laches and that its
actions were arbitrary and capricious under the United States
and Kentucky Constitutions.
A bench trial was held on May 29, 2003.
The trial
court heard testimony from Luke concerning the status of the
vehicles stored on his property.
Specifically, Luke went
through a list of all the vehicles stored on his property and he
identified each vehicle that was not capable of being driven in
its present condition.
Luke conceded that he had more than ten
vehicles stored on his property that were not capable of being
driven in their present condition.
Luke further testified that
the statements contained in his application for a recycling
permit were truthful.
The trial court also heard testimony from
the Department of Highways.
In sum, the Department argued that
it was precluded from granting the Pikes a recycler’s permit
based on the restrictive covenant contained in the plat for the
Wild Wood Park subdivision.9
The Pikes responded that the
Department did not have standing to raise the restrictive
covenant.10
9
As previously discussed, the subdivision plat, which was recorded in the
Meade County Clerk’s Office on October 1, 1975, contained a restriction
prohibiting the accumulation of junk on the lots located within the
subdivision.
10
The Pikes contended that the restrictive covenant could only be enforced by
the other property owners in the subdivision.
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On June 3, 2003, the trial court entered its findings
of fact, conclusion of law and judgment.
The trial court first
found that the Pikes were required to obtain a recycler’s permit
due to the number of inoperable vehicles located on their
property.
The trial court defined operable as “‘capable of
being used or operated’” and reasoned that “[i]f additional
repairs are needed to get a vehicle’s engine ready to operate,
beyond charging the battery, then the vehicle is not ‘capable of
being operated.’”
The trial court went on to conclude that the
Department was “legally precluded from granting [Luke’s]
[a]pplication for [a] Recycler’s Permit even if it found all
other conditions for approval were met” [footnote omitted].
The
trial court reasoned that the restrictive covenant contained in
the subdivision plat precluded the Department from issuing the
Pikes a recycler’s permit.11
The trial court specifically
declined to address the remaining issues surrounding the zoning
ordinance on the ground that they were moot in light of its
resolution of the “Recycler Permit issue.”12
The trial court
permanently enjoined the Pikes from operating any automobile,
11
In support of its ruling, the trial court cited Ashland-Boyd County CityCounty Health Dept. v. Riggs, Ky., 252 S.W.2d 922 (1952), for the proposition
that a governmental body, such as the Department of Highways, is barred from
issuing a permit in violation of a restrictive covenant imposed upon a
subdivision by the developers or property owners.
12
As previously discussed, the Pikes raised several issues concerning the
validity of the zoning ordinance in their responsive pleadings. In addition,
the Pikes alleged that the Department acted arbitrarily when it denied Luke’s
application for a recycler’s permit.
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vehicle, or machinery recycling establishment or place of
business on their property until they secure the proper permits
and it ordered the Pikes to remove all but four of the
nonoperable vehicles stored on their property within 30 days.13
This appeal followed.
The Pikes contend that the trial court erred in its
determination that the Kentucky Department of Highways was
legally precluded from granting their application for a
recycler’s permit.
Further, the Pikes claim that the trial
court used an improper definition of “nonoperative” as it
appears in KRS 177.905(2).14
We first address the Pikes’ argument that the trial
court erred in its determination that the Kentucky Department of
Highways was legally precluded from granting them a recycler’s
permit.
As previously discussed, the trial court concluded that
pursuant to Ashland-Boyd, supra, a governmental body, such as
the Department of Highways, is barred from issuing a permit in
violation of a restrictive covenant imposed upon a subdivision
13
The trial court also declared the Pikes’ use of their property to be a
public nuisance.
14
In addition, the Pikes claim they “have a protected constitutional right to
continue to use their property as they have for over twenty (20) years” and
that “Meade County had no legitimate basis under the allegations contained in
its initial complaint for an injunction against [them].” However, these
issues were not addressed by the trial court and we decline to address them
for the first time on appeal, especially since the trial court will have an
opportunity to do so on remand. See, e.g., Light v. City of Louisville,
Ky.App., 93 S.W.3d 696, 699 (2002).
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by the developers or property owners.
We disagree with the
trial court’s interpretation of Ashland-Boyd.
In Ashland-Boyd, a city-county health department
acquired a parcel of land located in a Boyd County subdivision
and proposed to erect a health center on the property.15
The
subdivision consisted of several lots, each of which was subject
to a restrictive covenant prohibiting the erection of a
“business house of any kind” on the property.
Several property
owners in the subdivision sought an injunction prohibiting the
health department from violating the covenant.
The former
Court of Appeals concluded that the health department was bound
by the restrictive covenant.16
The Court stated:
[W]e are among the jurisdictions which
adhere to the concept that such restrictions
constitute mutual, reciprocal, equitable
easements of the nature of servitudes in
favor of owners of other lots of a plot of
which all were once a part; that they
constitute property rights which run with
the land so as to entitle beneficiaries or
the owners to enforce the restrictions, and
if it be inequitable to have injunctive
relief, to recover damages.17
The Court went on to hold that “the state and its subdivisions
of government are bound by restrictions of this charter the same
15
Ashland-Boyd, 252 S.W.2d at 923.
16
Id. at 925.
17
Id. at 924-25.
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as a private person, subject, however, to the exercise of power
of eminent domain.”18
We are unpersuaded that Ashland-Boyd stands for the
proposition that a governmental body, such as the Department of
Highways, is barred from issuing a permit in violation of a
restrictive covenant imposed upon a subdivision by the
developers or property owners.
First and foremost, the
procurement of a permit to operate an automobile vehicle or
machinery recycling establishment does not relieve the permit
holder from complying with any restrictive covenants prohibiting
such use on the property in question.
Simply put, “[p]ermits as
to [the] use of property [issued] by [governmental] authorities
do not abrogate or destroy the rights of persons acquired under
covenants as to restrictive use of property, where such
restrictions do not violate public law or public policy.”19
Moreover, KRS 177.935 vests the discretion to grant or to deny a
recycler’s permit with the Department of Highways.
To allow
private covenantors to divest the Department of such discretion
by way of a restrictive covenant would, in our opinion,
constitute an impermissible usurpation of the authority granted
18
Id. at 925. The Court further concluded, however, that the city-county
health department’s proposed use of the property did not constitute a
“business house” within the meaning of the restrictive covenant. Id. at 926.
19
Arlington Cemetery Corp. v. Hoffman, 119 S.E.2d 696, 700 (Ga. 1961). See
also 8 McQuillin, The Law of Municipal Corporations, § 25.09 (3d ed. 2000 &
Supp. 2004).
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to the Department by the Legislature.
If the other property
owners in the Wild Wood Park subdivision are aggrieved by the
Pikes’ use of their property they may seek to enforce the
restrictive covenant by way of a declaratory judgment action or
injunctive relief.
In sum, we are of the opinion that the trial
court erred in its determination that the Kentucky Department of
Highways was legally precluded from granting the Pikes a
recycler’s permit.
Consequently, we must remand the matter for
further proceedings.
In the interest of judicial economy, we will address
the Pikes’ argument that the trial court’s definition of
“nonoperative” was erroneous as this issue is likely to arise
again on remand.
The Pikes take issue with the trial court’s
conclusion that any vehicle that needed additional repairs to
render its engine ready to operate is “not capable of being
operated.”
As previously discussed, KRS 177.905(2) defines an
automobile, vehicle or machinery recycling establishment as “any
place where (5) or more junked, wrecked or nonoperative
automobiles, vehicles, machines and other similar scrap or
salvage materials . . . are deposited, parked, placed or
otherwise located”
[emphasis added].
does not define “nonoperative.”
The statute, however,
Consequently, the trial court
defined operable as “capable of being used or operated” and
reasoned that “[i]f additional repairs are needed to get a
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vehicle’s engine ready to operate, beyond charging the battery,
then the vehicle is not capable of being operated.”
The Pikes
contend that the term “operable” should be defined so as to
include vehicles that are “stored without a battery[.]”
We
cannot agree.
The construction and application of statutes is a
matter of law subject to de novo review.20
When interpreting a
statute, we must “ascertain and give effect to the intent of the
General Assembly.”21
“A fundamental rule of statutory
construction is to determine the intent of the legislature,
considering the evil the law was intended to remedy.”22
In
addition, it is well-established that the words used in a
statute are to be given their plain and ordinary meaning.23
A
court may refer to a dictionary to ascertain the plain and
ordinary meaning which the Legislature intended to ascribe to
the term.24
Operative is defined by Webster’s Dictionary as
“[f]unctioning effectively[.]”25
We are of the opinion that this
20
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet,
Ky., 983 S.W.2d 488, 490 (1998).
21
Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 546 (2000)
22
Beach v. Commonwealth, Ky., 927 S.W.2d 826, 828 (1996).
23
Harrelson, supra at 547.
24
See Young v. Commonwealth, Ky., 968 S.W.2d 670, 672 (1998).
25
Webster’s II New College Dictionary 767 (2d ed. 1995).
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definition is consistent with the principle objective of KRS
177.905, et seq., which is to control the unsightliness of junk
along our highway system in Kentucky.26
Furthermore, we are
persuaded that an automobile without a battery is not capable of
functioning effectively.
Consequently, we find no error on the
part of the trial court in this respect.
Based on the foregoing reasons, the judgment of the
Meade Circuit Court is reversed and this matter is remanded for
further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
George R. Carter
Louisville, Kentucky
26
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, TRANSPORTATION
CABINET:
Darren A. Sipes
Brandenburg, Kentucky
See Jasper v. Commonwealth, Ky., 375 S.W.2d 709, 711 (1964).
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