BACKER (JOHN), ET AL. VS. WOODFORD COUNTY, ET AL
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RENDERED: APRIL 2, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000358-MR
JOHN BACKER; AND BEAZER
HOMES INVESTMENTS, LLC
v.
APPELLANTS
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 06-CI-00397
WOODFORD COUNTY; WOODFORD
COUNTY FISCAL COURT; MEMBERS
OF THE WOODFORD COUNTY FISCAL
COURT: MAGISTRATE CARL ROLLINS;
MAGISTRATE JACKIE BROWN;
MAGISTRATE JAMES E. STAPLES;
MAGISTRATE TOMMY TURNER;
MAGISTRATE CHARLES "BONES"
WEBBER; AND MAGISTRATE JAMES
R. ALCOKE, IN THEIR OFFICIAL
CAPACITIES; WOODFORD COUNTY
MAGISTRATE LEWIS "BUDDY"
MCDANNOLD, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES;
MAGISTRAGE BOBBY GAFFNEY,
IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES; COUNTY CHIEF EXECUTIVE
JOE D. GORMLEY, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES;
THE VERSAILLES-MIDWAY-WOODFORD
COUNTY PLANNING AND ZONING
COMMISSION AND ITS MEMBERS IN THEIR
OFFICIAL CAPACITIES: ROBERT
BLANKENSHIP, JIM BOGGS, GERALD
DOTSON, CARL ELLIS, JOEL EVANS,
GAY GLENN, JIM HUME, MARK
MCDONALD, AND J.D. WOLF;
THE WOODFORD COALITION; AND
BACKER FARM, LLC
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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BUCKINGHAM, SENIOR JUDGE: John Backer and Beazer Homes Investments,
LLC (hereinafter referred to collectively as “Backer”), appeal from a summary
judgment upholding the Woodford Fiscal Court’s denial of an application for a
zoning change and a judgment on the pleadings in favor of three fiscal court
members individually. Backer argues that: (1) he was entitled to depose the fiscal
court members to discover the facts upon which they relied in voting on the
application; (2) the fiscal court denied him procedural due process; and (3) the trial
court improperly granted judgment on the pleadings to the individuals. We affirm.
Backer owns 300 acres of farmland in Woodford County and had
planned to sell the land to Beazer Homes Investments for the purpose of
development. Beazer had planned to convert the property into a mixed-use
development consisting of 562 single-family residences, 240 townhomes, 100
apartment units, and 90,000 square feet of retail space. The proposed development
required a zoning change from A-1 agricultural to R-1B residential. On April 7,
2006, Backer applied to the Versailles-Midway-Woodford County Planning and
Zoning Commission for the necessary zoning change.
The planning commission held three hearings on the application.
Proponents and opponents presented evidence on several aspects of the planned
development. The issue of traffic consequences became the primary contested
issue.
Backer hired an engineer, Tim Sorenson, to testify before the planning
commission and to present a traffic study detailing the likely traffic consequences
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of the proposed development. Sorenson first testified before the planning
commission on June 22, 2006, at which time Henry Graddy, counsel for the
opponent group Woodford Coalition, did not cross-examine Sorenson. Graddy
complained that he did not have the opportunity to effectively cross-examine
Sorenson because he had not been provided with a copy of the traffic study despite
having requested one several months earlier.
At the hearing on July 22, 2006, the Woodford Coalition presented
testimony from another engineer, Adam Kirk, to rebut Sorenson’s conclusions. At
the hearing on August 10, 2006, Backer recalled Sorenson as a witness to rebut
Kirk’s testimony, and at that time Graddy cross-examined Sorenson. The planning
commission later voted 5 to 3 to recommend approval of Backer’s zoning change
application.
On October 9, 2006, while the proceedings before the fiscal court
were pending, and unbeknownst to the members of the fiscal court, Graddy
contacted the Woodford County Attorney by letter and complained that he had not
had a fair opportunity to present evidence to the planning commission on the issue
of traffic consequences. Graddy requested the county attorney’s assistance in
securing a public hearing before the fiscal court on that limited issue. The next
day, Graddy appeared at the public comment portion of a fiscal court meeting and
requested that the fiscal court hold an evidentiary hearing on the issue of traffic
consequences. The fiscal court scheduled an evidentiary hearing for November 14,
2006.
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Upon learning of the scheduled evidentiary hearing, Bruce Simpson,
Backer’s attorney at that time, appeared at the fiscal court meeting on October 24,
2006, and complained that Graddy had not notified him prior to appearing at the
October 10 meeting. Simpson also filed a written motion requesting that the
November 14 hearing be canceled. Although it did not act immediately, the fiscal
court eventually canceled the hearing.
In the meantime, Simpson asserted that three members of the fiscal
court, Magistrate Bobby Gaffney, Magistrate Buddy McDannold, and County
Judge-Executive Joe Gormley, were improperly interested in the property and/or
biased against the zoning change application and requested that they recuse
themselves. The county attorney investigated Simpson’s allegations and
determined that there was no basis upon which to believe that the members were
improperly interested in the property or biased against the zoning change. The
county attorney reported his findings at the fiscal court meeting on November 14,
2006. While the county attorney was investigating Simpson’s allegations, Graddy
sent the members of the fiscal court copies of a traffic study by another traffic
expert, Nick Stamatiadias, as well as proposed findings of fact for the fiscal court
to adopt.
The fiscal court adopted a resolution overriding the recommendation
of the planning commission and denied Backer’s application for a zoning change.
The fiscal court made extensive findings of fact and also stated that it based its
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decision on the record before the planning commission and did not rely on the
traffic study that Graddy had sent to fiscal court members.
Backer filed an appeal and complaint in Woodford Circuit Court and
also asserted claims against Magistrates McDannold and Gaffney and County
Judge-Executive Gormley in their individual capacities. Magistrates McDannold
and Gaffney and County Judge-Executive Gormley moved for judgment on the
pleadings. While that motion was pending, Backer sought to depose them as well
as Magistrates Tommy Turner and Jackie Brown. The trial court granted judgment
on the pleadings in favor of the three fiscal court members and issued a protective
order prohibiting the taking of their depositions.
Subsequently, the parties filed cross-motions for summary judgment.
The trial court granted summary judgment in favor of Woodford County and
against Backer. Backer filed a motion to alter, amend, or vacate, which the trial
court denied. This appeal followed.
Backer first argues that he was entitled to depose the five members of
the fiscal court to ascertain the basis upon which they relied in casting their votes.
Backer argues that the speech and debate clauses of the Kentucky Constitution and
U.S. Constitution, upon which the trial court relied, neither shields fiscal court
members from being questioned about their deliberations nor applies to fiscal court
members.
The parties did not cite any authority directly on point which
addresses the issue of whether members of a county fiscal court may be deposed in
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a circuit court action alleging that the granting or denying of a zoning change
application was arbitrary. Jefferson County Fiscal Court v. Shake, 82 S.W.3d 917
(Ky. 2002), however, bears some similarity to this case.2
The facts in Shake reveal that an owner and a developer of land
sought a zoning change for undeveloped land, and a planning commission
recommended the change to the Jefferson County Fiscal Court. As in this case, the
fiscal court in Shake overruled the planning commission’s approval and denied the
change. The owner and developer appealed the denial to the Jefferson Circuit
Court and sought to take the discovery depositions of a county commissioner and
four members of his staff. The fiscal court sought a protective order arguing that
deposing its members violated the separation of powers doctrine. The circuit court
denied the motion for a protective order, and the fiscal court sought a writ of
prohibition from the Court of Appeals. The Court of Appeals denied the petition
for a writ on the grounds that there was an adequate remedy by appeal.
The Kentucky Supreme Court affirmed the denial of the writ by the
Court of Appeals, citing American Beauty Homes Corp. v. Louisville & Jefferson
County Planning & Zoning Comm’n, 379 S.W.2d 450 (Ky. 1964). Shake, 82
S.W.3d at 919. In American Beauty Homes, the Court had held that “[n]o new or
additional evidence would be admissible on appeal except to determine what state
of facts the Commission acted on, or possibly to establish the violation of some
legal right with respect to a matter not in issue in proceedings before the
2
The Shake case was not cited by the parties in their briefs.
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Commission.” American Beauty Homes, 379 S.W.2d at 457-58 (internal citations
omitted).
The Court in Shake reasoned that because the county commissioner
acknowledged that he had been improperly contacted by persons attempting to
influence his vote in violation of a specific city ordinance, the commissioner could
be deposed to determine whether some legal right of the zoning applicants had
been violated. Id. at 919-20. The Court stated that “[t]he Ordinance would be
meaningless without a means of enforcement when there is probable cause to
believe a violation has occurred.” Id.
There are limits to the judicial review of zoning change
determinations, however. In Hilltop Basic Resources, Inc. v. County of Boone, 180
S.W.3d 464 (Ky. 2005), the Kentucky Supreme Court explained that:
[S]ince zoning determinations are purely the
responsibility and function of the legislative branch of
government, such determinations are not subject to
review by the judiciary except for the limited purpose of
considering whether such determinations are arbitrary.
Arbitrariness review is limited to the consideration of
three basic questions: (1) whether an action was taken in
excess of granted powers, (2) whether affected parties
were afforded procedural due process, and (3) whether
determinations are supported by substantial evidentiary
support. [Internal citations omitted].
Id. at 467. The Court further stated:
The fundamental requirement of procedural due process
is simply that all affected parties be given “the
opportunity to be heard at a meaningful time and in a
meaningful manner.” Procedural due process in the
administrative or legislative setting has widely been
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understood to encompass “a hearing, the taking and
weighing of evidence if such is offered, a finding of fact
based upon a consideration of the evidence, the making
of an order supported by substantial evidence, and, where
the party’s constitutional rights are involved, a judicial
review of the administrative action.” [Internal citations
omitted].
Id. at 469.
Additionally, the Court in Hilltop Basic Resources held that “the
‘right to an impartial tribunal’ is nowhere to be found” in the list of procedural due
process requirements in an administrative or legislative setting. Id. But, the Court
cautioned that
However, decisions makers are not free to be biased or
prejudicial when performing nonjudicial functions. To
the contrary, any bias or prejudicial conduct which
demonstrates “malice, fraud, or corruption” is expressly
prohibited as arbitrary. Furthermore, decisions tainted by
conflict of interest or blatant favoritism are also
prohibited as arbitrary. [Internal citations omitted].
Id.
In addressing the issue of whether Backer could depose the
magistrates, the trial court held that “the taking of depositions of individual local
legislators is clearly prohibited by Section 43 of Kentucky’s Constitution and
Article 1, Section 6 of the United States Constitution.” The court further stated
that “simply making those allegations does not allow Appellants/Plaintiffs to
circumvent the prohibitions against questioning legislators concerning their official
acts in this or any proceedings.” The court apparently relied on Jacobs v.
Underwood, 484 S.W.2d 855 (Ky. 1972), in making this determination. In Jacobs,
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the Court held that KRS 84.050(5), a statute that has since been repealed, “made
the legislative immunity in Kentucky absolute for members of secondary
legislative bodies.” Jacobs, 484 S.W.2d at 857.
We disagree with the trial court’s conclusion that deposing members
of a county fiscal court is prohibited by the Kentucky Constitution and U.S.
Constitution. Section 43 of the Kentucky Constitution provides in part that “for
any speech or debate in either House they [members of the General Assembly]
shall not be questioned in any other place.”3 In holding that this provision also
applies to secondary legislative bodies (such as city councils or fiscal courts), the
Court in Jacobs relied on KRS 84.050(5), which has since been repealed. Thus,
we agree with Backer that the Jacobs case is no longer good authority to support
the idea that local legislators are protected from being questioned concerning their
decisions. More importantly, as evidenced by the Supreme Court’s holding in the
Shake case, depositions of fiscal court members are allowed at least in some
circumstances.
The question before this court is whether the fiscal court members
may be deposed under the circumstances in this case. We believe the answer lies
in whether Backer’s allegations of bias are relevant to the determination of
arbitrariness. See Hilltop Basic Resources, 180 S.W.3d at 469.
3
Similarly, Article 1, Section 6, of the U.S. Constitution provides in part that “for any Speech or
Debate in either House, [the Senators and Representatives] shall not be questioned in any other
Place.”
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Backer alleged that Magistrate Gaffney was personally interested in
the property because he had expressed an interest in buying it; that Magistrate
McDannold was biased because he had made a campaign statement indicating that
he was generally opposed to development along U.S. Highway 60; and that County
Judge-Executive Gormley was biased because he had signed a petition years earlier
advocating that current urban services along the highway not be expanded.
Concerning Magistrate Gaffney’s alleged interest in purchasing the
property, he had been interested in purchasing it several years earlier. The only
proof in this regard was an affidavit presented from an individual named Henry
Haynes who had engaged Gaffney in conversation concerning the proposed zone
change. There was no indication that this interest, or alleged conflict of interest,
still existed. Concerning Magistrate McDannold’s alleged bias against the zoning
change, the only proof was again an affidavit from Henry Haynes who, according
to McDannold, had joined him for breakfast one morning even though McDannold
had not seen him in years. There is no indication that McDannold should have
recused. Concerning County Judge-Executive Gormley’s alleged bias because he
had signed a petition years before he had become a magistrate and because he had
once referred to U.S. Highway 60 as “sacred ground,” we again find no basis to
support his disqualification to consider the issue as a member of the fiscal court.
As the Kentucky Supreme Court stated in Hilltop Basic Resources,
“the ‘right to an impartial tribunal’ is nowhere to be found” in the list of procedural
due process requirements. Id. at 469.
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A legislative decision-maker will not be disqualified
simply because he or she has taken a public position on a
policy issue related to the dispute, or demonstrated a bias
or pre-disposition toward a certain result. . . . But a local
legislator is not disqualified unless there is a showing that
the legislator is not capable of judging a particular
controversy fairly on the basis of its own circumstances.
Warren County Citizens for Managed Growth, Inc. v. Board of Comm’rs of City of
Bowling Green, 207 S.W.3d 7, 17 (Ky. App. 2006). We conclude that Backer’s
allegations are insufficient to constitute “malice, fraud, or corruption” or to
constitute a “conflict of interest or blatant favoritism[.]” Hilltop Basic Resources,
180 S.W.3d at 469. In the absence of sufficient allegations, the trial court did not
abuse its discretion in denying Backer the right to depose the fiscal court members.
Backer next argues that he was denied procedural due process before
the fiscal court. Specifically, he argues: (1) that Graddy’s ex parte contact with
the fiscal court violated his rights; (2) that the allowance of additional evidence
violated his rights; (3) that the refusal of Magistrates McDannold and Gaffney and
County Judge-Executive Gormley to recuse themselves violated his rights; and (4)
that the fiscal court’s failure to render its own findings indicates that it did not
meaningfully consider the zoning change application. We disagree.
In this regard, Backer first argues that Graddy’s ex parte contact with
the fiscal court on October 10, 2006, violated his due process rights. Although
Backer maintains that his rights were “unquestionably impacted,” the fact is that
Graddy simply requested a hearing at the public comment portion of the meeting.
Although the court did schedule the hearing, it ultimately canceled it as Backer had
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requested. We conclude that Graddy’s ex parte request for a hearing did not
violate Backer’s procedural due process rights.
Backer next argues in this regard that the fiscal court’s allowance of
additional traffic study evidence violated his rights. While Graddy did mail the
Stamatiadias traffic study to the fiscal court, the fiscal court stated on the record
that it did not consider the evidence but based its decision solely on the record of
the planning commission. We conclude that there was no procedural due process
violation in this regard.
Backer next asserts that the failure of Magistrates McDannon and
Gaffney and County Judge-Executive Gormley to recuse themselves violated
procedural due process. We have earlier stated herein that the three fiscal court
members were not required to recuse themselves. Even assuming that the three
fiscal court members should have recused themselves from considering the zoning
change application, it is of no consequence because the fiscal court voted 6 to 2 to
deny the zoning change. The absence of three members’ votes would still have left
a majority vote of 3 to 2 denying the application.
Backer also contends that the fiscal court’s failure to issue its own
findings indicates that it did not meaningfully consider the zoning application.
This argument is not supported by the record. The fiscal court made thorough
findings, and the members recited their individual positions into the record. The
fiscal court made some findings in support of denying the zoning change that were
different from the tendered findings. Most importantly, even if the fiscal court
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adopted some or even all of the tendered findings, we are neither cited to nor can
we discern any authority prohibiting such a practice. We conclude that there was
no violation of procedural due process in this regard.
Backer’s last argument is that the trial court erred in granting
judgment on the pleadings to three fiscal court members. He asserts that the trial
court erred by failing to accept his allegation that the members acted “willfully,
maliciously, and outside the scope of their duties” as true for the purposes of
deciding the motion.
In the Hilltop Basic Resources case, the Kentucky Supreme Court,
while noting what the fundamental requirement of procedural due process
encompasses, further stated that “[h]owever, decision makers are not free to be
biased or prejudicial when performing nonjudicial functions. To the contrary, any
bias or prejudicial conduct which demonstrates ‘malice, fraud, or corruption’ is
expressly prohibited as arbitrary.” 180 S.W.3d at 469. Backer argues that he
alleged such conduct and that the trial court erred in granting the three members of
the fiscal court judgment on the pleadings.
We conclude that the trial court correctly decided, based on Tenney v.
Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that the fiscal court
members were immune from personal liability in connection with their rejection of
the proposed zoning change application. “[L]egislators are generally immune from
civil or criminal actions for acts committed or statements made in their official
capacities.” Wiggins v. Stuart, 671 S.W.2d 262, 264 (Ky. App. 1984). “Members
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of legislative bodies cannot be held personally responsible in civil actions based on
their vote cast in the exercise of discretion vested in them by virtue of their office
either for or against any particular legislation, at least in the absence of
corruption.” Id. citing 72 Am. Jur. 2d States § 55 (1974).
Assuming the three members acted in the manner alleged by Backer,
his remedy was to attack the decision as arbitrary rather than seek personal
individual liability against the members of the fiscal court. The trial court did not
err by entering judgment on the pleadings in favor of the three fiscal court
members.
The judgment of the Woodford Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Taft A. McKinstry
Timothy A. West
Lexington, Kentucky
Jeffrey C. Mando
Jennifer H. Langen
Covington, Kentucky
ORAL ARGUMENT FOR
APPELLANTS:
ORAL ARGUMENT FOR
APPELLEES:
Matthew Ellison
Lexington, Kentucky
Jeffrey C. Mando
Covington, Kentucky
Henry Graddy
Midway, Kentucky
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