WARREN COUNTY CITIZENS FOR MANAGED GROWTH, INC.; JIM DUFFER, AS CHAIRMAN AND INDIVIDUALLY; AND GAYLA CISSELL, v. BOARD OF COMMISSIONERS OF CITY OF BOWLING GREEN, KENTUCKY; CITY-COUNTY PLANNING COMMISSION OF WARREN COUNTY, KENTUCKY; INTER-MODAL TRANSPORTATION AUTHORITY, INC.; AND SOUTH-CENTRAL KENTUCKY REGIONAL DEVELOPMENT AUTHORITY
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RENDERED:
SEPTEMBER 29, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2005-CA-002339-MR
WARREN COUNTY CITIZENS FOR MANAGED
GROWTH, INC.; JIM DUFFER, AS
CHAIRMAN AND INDIVIDUALLY;
AND GAYLA CISSELL,
AS SECRETARY AND INDIVIDUALLY
v.
APPELLANTS
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 05-CI-00350
BOARD OF COMMISSIONERS OF
CITY OF BOWLING GREEN, KENTUCKY;
CITY-COUNTY PLANNING COMMISSION OF
WARREN COUNTY, KENTUCKY;
INTER-MODAL TRANSPORTATION AUTHORITY, INC.;
AND SOUTH-CENTRAL KENTUCKY REGIONAL
DEVELOPMENT AUTHORITY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DIXON AND TAYLOR, JUDGES;
KNOPF, SENIOR JUDGE:
KNOPF,1 SENIOR JUDGE.
Warren County Citizens for Managed Growth,
Inc. (WCCMG) appeals from a summary judgment of the Warren
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Circuit Court affirming a Bowling Green city ordinance re-zoning
a tract of property from agricultural to light industrial.
WCCMG also appeals from the circuit court’s dismissal of its
declaratory judgment action relating to that re-zoning.
We
agree with the circuit court that the ordinance granting the map
amendment was not arbitrary.
Furthermore, the trial court
properly dismissed the declaratory judgment action because it
presented issues which were subsumed in the statutory appeal.
Hence, we affirm.
The subject property in this case is comprised of
three adjoining tracts of real property consisting of a total of
28.31 acres.
These tracts are owned by the Intermodal
Transportation Authority, Inc. and the South-Central Kentucky
Regional Development Authority (collectively, the landowners).
The subject property is located within the city limits of
Bowling Green.
The tracts are located at 458 and 500 Glasgow
Road, on the north side of U.S. Highway 68/Kentucky Highway 80
near the intersection of U.S. 68/Ky. 80 and U.S. Highway 31-W.
At the time of the application, the subject property was zoned
agricultural and was used for that purpose.
The adjoining
properties to the north, east and south were also zoned and used
for agriculture.
The adjoining property to the west is zoned
industrial, a use that pre-dated Warren County’s adoption of
zoning.
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On November 5, 2004, the landowners filed an
application for a zoning map amendment seeking to re-zone the
subject property to Light Industrial (LI).
The landowners
sought the re-zoning of the subject property as part of a larger
development of the Kentucky Intermodal Transpark - a proposed
regional industrial park development with air, rail and highway
links.
The City-County Planning Commission of Warren County,
Kentucky (the Planning Commission) referred the matter to its
staff for initial review.
After reviewing the application and
supporting studies, the Planning Commission staff issued a
report recommending that the map amendment be granted, subject
to certain binding elements concerning matters which concerned
the staff.
After the staff issued its report, the Planning
Commission held a public hearing on December 2, 2004.
The
landowners and the opponents of the re-zoning were each
represented by counsel and were afforded the opportunity to call
and cross-examine witnesses.
In addition, the staff report was
read into the record, and the Planning Commission Executive
Director testified concerning the studies which went into the
report and the binding elements which came out of the report.
Other witnesses also testified for both sides.
And at the
conclusion of proof, individuals were allowed to make statements
to the Planning Commission concerning their views on the
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proposed re-zoning.
After hearing the evidence, the Planning
Commission voted 11-1 to recommend approval of the proposed map
amendment.
The matter then proceeded to the Board of
Commissioners of the City of Bowling Green (the City Commission)
for consideration on January 18, 2005.
The City Commission
received the Planning Commission’s report and recommendation,
and heard arguments from proponents and opponents of the rezoning.
The City Commission then conducted the first reading of
the ordinance granting the map amendment,2 which was approved by
unanimous vote.
On February 1, 2005, the City Commission
conducted its second reading of the ordinance, where it was
enacted by unanimous vote.
On March 3, within thirty days from the City
Commission’s final action, WCCMG filed an appeal pursuant to KRS
100.347 seeking judicial review of the ordinance.
WCCMG filed a
separate count alleging that members of the Planning Commission
and the City Commission were predisposed in favor of the map
amendment application.
The matter was submitted to the court on
WCCMG’s motion for summary judgment.
In an opinion and order
rendered on October 11, 2005, the circuit court found that WCCMG
had standing to pursue an appeal from the re-zoning.
2
Ordinance No BG2005-3, “ORDINANCE REZONING REAL ESTATE”.
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Nevertheless, the court affirmed the ordinance granting the map
amendment.
The circuit court also dismissed WCCMG’s separate
count seeking declaratory relief.
This appeal and cross-appeal
followed.
The subject property is the fourth of four related
tracts which are also part of the proposed Transpark.
The
Planning Commission and the City have approved the re-zoning of
at least three other tracts, and these actions have been the
subject of separate appeals.
A previous appeal from a map
amendment involving the first tract was affirmed by the Warren
Circuit Court and by this Court.3
Recently, this Court affirmed
an appeal from re-zonings of the second and third tracts.4
WCCMG
has filed a motion for discretionary review of this opinion with
the Kentucky Supreme Court.
Unlike in the previous appeals, the landowners, the
Planning Commission and the City Commission have not filed a
cross-appeal from the circuit court’s finding that WCCMG and its
named members have standing to appeal from the enactment of the
map amendment.
On the other hand, the issues raised by WCCMG
are, for the most part, identical to the issues which it raised
3
City of Oakland, et al. v. Board of Commissioners of the City of Bowling
Green, et al., Nos. 2003-CA-001153-MR & 2003-CA-001229-MR (Not-to-be
Published Opinion rendered September 24, 2004) (D.R. den. September 14,
2005).
4
Warren County Citizens for Managed Growth, et al. v. Board of Commissioners
of the City of Bowling Green, et al., Nos. 2004-CA-002251-MR, 2004-CA-002320MR, 2005-CA-000287-MR & 2005-CA-000345-MR (To-Be-Published Opinion rendered
May 26, 2006).
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in the previous appeals.
In the interest of brevity, we shall
adopt the legal analysis set forth at pages 12 through 23 of
this Court’s May 26, 2006 opinion.
To the extent that this
appeal raises unique factual matters, we note that the circuit
court engaged in a thorough analysis of the specific
Comprehensive Plan policies which are at issue in this rezoning.
We find the circuit court’s reasoning to be sound, and
we adopt the analysis beginning at the second paragraph of page
11 through the end of the first full paragraph on page 14 of the
circuit court’s October 11, 2005 opinion.
Accordingly, the judgment and order of the Warren
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
W. Henry Graddy, IV
W.H. Graddy & Associates
Midway, Kentucky
H. Eugene Harmon
City of Bowling Green
Department of Law
Bowling Green Kentucky
Benjamin D. Crocker
Crocker Law Offices, PLLC
Bowling Green, Kentucky
Whayne C. Priest, Jr.
English, Lucas, Priest &
Owsley
Bowling Green, Kentucky
Frank Hampton Moore, Jr.
Matthew P. Cook
Cole & Moore, PSC
Bowling Green, Kentucky
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