TRIAD DEVELOPMENT/ALTA GLYNE, APPELLANTS/ INC . ; DOMINION HOMES, INC . ; DOMINION HOMES OF KENTUCKY, GP, LLC ; DOMINION HOMES OF KENTUCKY, LTD . ; LOUISVILLE AND JEFFERSON COUNTY PLANNING 119 COMMISSION ; LOUISVILLE AND JEFFERSON COUNTY DEPARTMENT DQA7 OF PUBLIC WORKS ; AND THE LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT V RITA C . GELLHAUS ; WINSTON L . SHELTON ; AND LAURA S . HALL
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AS MODIFIED : DECEMBER 16, 2004
RENDERED : SEPTEMBER 23, 2004
TO BE PUBLISHED
Auprrun (9ourf of Aettfurkv
2002-SC-0733-DG and 2003-SC-0398-DG
TRIAD DEVELOP MENT/ALTA GLYNE,
INC . ; DOMINION HOMES, INC. ;
DOMINION HOMES OF KENTUCKY, GP,
LLC ; DOMINION HOMES OF
KENTUCKY, LTD . ; LOUISVILLE AND
JEFFERSON COUNTY PLANNING
COMMISSION; LOUISVILLE AND
JEFFERSON COUNTY DEPARTMENT
OF PUBLIC WORKS ; AND THE
LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT
V
APPELLANTS/CROSS-APPELLEES
r
119
DQA7
ON APPEAL FROM THE COURT OF APPEALS
2001-CA-0325-MR
JEFFERSON CIRCUIT COURT NOS . 00-CI-3933 ; 94-CI-2642 ; 96-CI-926
RITA C. GELLHAUS; WINSTON L.
SHELTON ; AND LAURA S. HALL
APPELLEES/CROSS-APPELLANTS
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING IN P ART AND REVERSING IN PART
This appeal and cross-appeal are from an opinion of the Court of Appeals which
affirms in part and reverses and remands in part a circuit court decision that dismissed
an appeal from the Jefferson County Planning Commission and a civil complaint on the
constitutionality of that decision .
The principal issues are whether the statutory appeal was properly dismissed
because it was not timely, and whether the so-called constitutional appeal was properly
dismissed .
The controversy in this matter involves a 117-acre tract of land located near
Bilitown Road and the Gene Snyder Freeway. Triad Development has made numerous
attempts to obtain approval of a subdivision plan through the Planning Commission,
however, neighboring landowners have been protesting all of those plans. The litigation
concerning the property began in 1994 and has continued until this time.
Gellhaus and her associates are adjacent property owners who contend that
their real estate will be adversely affected by the subdivision development in that it will
have an adverse environmental impact on their properties because runoff from the
development will flow onto their properties and into their lakes and streams. They also
argue that they have a constitutional right to an appeal based on due process
principles.
In 1992, Triad submitted an "innovative" subdivision plan to the Planning
Commission which was approved on April 21, 1994. The adjacent landowners
appealed to circuit court within 30 days from the Planning Commission's approval of
this "innovative" plan although it was conditioned upon various binding elements. In
July 1999, Triad conditionally sold the property to Dominion Homes and proposed a
substitute development plan which was a "standard" plan rather than the "innovative"
plan. The Commission approved the standard plan on August 19, 1999 by a vote.
Gellhaus and her associates did not appeal the approval of that voted plan within the
thirty days provided by KRS 100 .347(2) .
The development of the land could not begin until the Metropolitan Sewer District
approved a soil and sedimentation control plan and until the County Works Director
approved the construction plan . MSD approved the plan on May 11, 2000, and the
County Works Director approved the construction plan on May 18, 2000. Gellhaus and
others filed their appeal and civil complaint in the Jefferson Circuit Court on June 17,
2000 . The appeal and civil complaint alleged that the final approval of the construction
plan was arbitrary and that they had been denied due process of law.
The developers sought to dismiss the appeal and civil complaint for lack of
jurisdiction pursuant to CR 12 .02(a) . The developers argued that the circuit court did
not have jurisdiction to hear the appeal because it was not filed within 30 days of
August 19, 1999, the date the Planning Commission approved the subdivision . In
addition, the developers maintained that the civil complaint was indistinguishable from
the appeal because it claimed arbitrary approval of the construction plan and a denial of
due process, issues which had been raised in the appeal of the administrative decision .
After a hearing, the circuit judge granted the motion to dismiss by the developers . The
circuit judge stated that he was without jurisdiction to consider the appeal and that the
civil complaint stated the same grounds as the appeal . Gellhaus and others appealed
to the Court of Appeals.
A panel of the Court of Appeals was sharply divided with Judge Buckingham
writing a lead opinion which was joined by Judge Schroder who concurred in result only.
Judge Knopf agreed with the lead opinion that the latest complaint by the neighbors
was simply untimely and properly dismissed . He dissented from the decision, however,
on the grounds that there was no statutory authority for the civil complaint . Judge
Knopf believed that any possible relief would have been through a declaratory judgment
action . In essence, the decision by the Court of Appeals was that the trial judge
properly dismissed as untimely the statutory appeal, but he erred by dismissing the
constitutional appeal . This Court accepted discretionary review.
I . Final Action
We have considered in great detail all the legal authorities submitted by the
parties. We will cite only those cases that are directly pertinent to the questions at
hand .
KRS 100 .347(2) states in pertinent part that "All final actions which have not
been appealed within thirty (30) days shall not be subject to judicial review." KRS
100.347(5) states in relevant part that "For purposes of this chapter, final action shall be
deemed to have occurred on the calendar date when the vote is taken to approve or
disapprove the matter pending before the body." See also Leslie v. City of Henderson ,
Ky.App ., 797 S.W.2d 718 (1990) .
We must agree with the Court of Appeals that KRS 100.347(5) applies to actions
of the Planning Commission as well as legislative bodies. The word "body" as used in
the statute refers to the Planning Commission, as well as to legislative bodies, including
county and city governments. Consequently, KRS 100.347(5) relates to KRS
100 .347(2), as well as KRS 100.347(3) .
Gellhaus and others argue vigorously that the Commission only conditionally
voted to approve the plan and then referred it to MSD and the Works Department.
They assert that these agencies were required to return the plans to the Commission
for additional final approval .
We must acknowledge that there is an initial problem with the nomenclature
used by the Planning Commission and with the labeling of particular actions taken by it.
A simple reading of the statute would indicate that there is nothing to suggest that the
Commission's final approval would be conditional . However, the statute is clear that
final action is deemed to occur when a vote is taken on the subdivision plat, conditional,
preliminary or otherwise . We must take notice that in practice, all plats, when initially
submitted, are referred to as preliminary . If such a plat is preliminarily approved, the
developer can then seek to proceed with the development which, again, includes the
submission of plans to all relevant agencies to demonstrate compliance with the
conditions placed on the approval of the preliminary plat. The so-called preliminary plat
is crucial in the process because the final plat must comply with it.
The final approval of the amended subdivision plan is a reasonably foreseeable
consequence of granting the so-called tentative approval . Certainly, there cannot be
two final actions for the purposes of KRS 100.347. Consequently, the right to review or
appeal must accrue in relation to the first date when the vote is taken . Any other
interpretation would permit an aggrieved party to take no action while the builder and
the community proceed in reliance of the original approval, and then later, seek appeal
of the granting of the so-called final approval .
Here, the final action occurred on August 19, 1999, the date when the vote was
taken to approve the subdivision plan. The matter was not subject to judicial review
because Gellhaus and others did not appeal within the thirty days from that date as
provided by the statute . Only one vote was taken by the Planning Commission and that
was on August 19, 1999. The Planning Commission approved the plan subject to
certain conditions . It delegated to the MSD and the County Works Department the
responsibility for evaluating the drainage and construction plans. On May 11, 2000,
MSD approved the compliance with the plans and on May 18, the County Works
Department did likewise. No subsequent vote was taken by the Planning Commission.
We can find no authority that supports the argument that ministerial approval of
construction plans during and after the voted approval of a subdivision plan tolls or
extends the appeal time provided in KRS 100.347(2). In fact, the holding in
Spainhoward v. Henderson, Henderson County Bd . of Zoning Adjustment , Ky.App ., 7
S .W .3d 396 (1999), is that the vote of the administrative body is the final action from
which an appeal must be taken. City of Lyndon v. Proud , Ky.App ., 898 S.W .2d 534
(1995), holds that final action was taken on the date a resolution was passed by a vote
and not on the date when a subsequent ministerial action was completed . We
conclude that the holdings of these cases are correct and we reaffirm them .
II . Right of Appeal
The approval by the Planning Commission of the plat in this case was based on
the satisfaction of conditions set out in its initial approval . That decision required
ministerial approval by MSD of a soil and sedimentation plan and the approval by the
County Public Works Director of a construction plan. Both agencies satisfied that
requirement . The Planning Commission did not undertake an independent review of
these findings, rather it deferred to the expertise of these agencies to ensure
compliance with its conditions .
It could be argued that there is an apparent division in the law regarding the
inherent right to review orders from administrative agencies . It has been held that there
is an inherent right of appeal from orders of administrative agencies regardless of
whether there is an explicit right to appeal because an agency is prohibited by Section
Two of the Kentucky Constitution from acting arbitrarily. See American Beauty Homes
Corp . v. Louisville & Jefferson County Planning & Zoning Comm'n, Ky., 379 S.W .2d
450 (1964) .
On the other hand, it has been repeatedly held that an appeal from an
administrative decision is a matter of legislative grace and not a right . Thus, the failure
to follow the statutory guidelines for such an appeal is fatal. A person seeking review of
administrative decisions must strictly follow the applicable procedures . See Taylor v.
Duke, Ky . App., 896 S .W.2d 618 (1995) .
American Beauty Homes Corp . , supra , does not recognize a constitutional
appeal or an independent claim resulting from administrative actions in addition to a
statutory appeal . Instead, that case simply recognized that the courts of Kentucky have
inherent jurisdiction to review decisions of administrative agencies and legislative
bodies for arbitrariness . However, when the right of appeal or the trial court's
jurisdiction is codified as a statutory procedure, as it is in KRS 100 .347, then the parties
are required to strictly follow those procedures . Here, Gellhaus and others did not
strictly comply with the statute and the circuit judge properly dismissed their appeal.
Individuals and others who may be aggrieved by the subordinate ministerial
decisions cannot appeal pursuant to the Planning Commission statute, KRS 100 .347 .
A careful examination of the statutes does not indicate any authority for an appeal from
the decisions of entities such as the MSD or the Public Works Director. Apparently, the
only relief available may be through a declaratory judgment action authorized by KRS
418 .040 which allows a party to seek a declaration of rights when an actual or judicable
controversy exists . Cf. Greater Cincinnati Marine Services, Inc. v. City of Ludlow , Ky.,
602 S .W.2d 427 (1980). The parties here did not seek a declaratory judgment .
It is of interest to note that KRS 76.180(2) authorizes the MSD to conduct
procedures for the hearing, review and resolution of complaints by citizens and other
grievances. Decisions by the Hearing Officer may be accepted or rejected by the Board
of MSD. However, the approval of a drainage plan is not the type of action by which the
statute allows review .
Section 115 of the Kentucky Constitution provides in pertinent part that in all civil
and criminal cases, there shall be allowed as a matter of right, at least one appeal to
another court . Here, that concept has been fully satisfied because the aggrieved
parties have litigated this matter from circuit court to the Court of Appeals and now to
the Supreme Court. The requirement of the constitution has been exhausted.
It is the decision of this Court that the opinion of the Court of Appeals is affirmed
insofar as it denies judicial review and is reversed in regard to the constitutional claim of
an inherent right of appeal . The final action of a planning commission in this situation is
determined on the date of the vote to approve the development plan . An appeal must
be taken within thirty days from that date . Subsequent ministerial actions taken
pursuant to the vote approval do not extend the statute of limitations .
All concur except Keller, J ., who dissents by separate opinion .
COUNSEL FOR APPELLANT/CROSSAPPELLEES :
Dustin E. Meek
Brian F. Haara
TACHAU MADDOX HOVIOUS &
DICKENS PLC
2700 National City Tower
Louisville, KY 40202-3116
B . Frank Radmacher III
Asst . Jefferson County Attorney
Deborah A Bilitski
Office of Jefferson County Attorney
531 Court Place . Suite 1001
Louisville, KY 40202
Paul B . Whitty
J. Mark Grundy
Ann Toni Kereiakes
GREENEBAUM DOLL & MCDONALD
PLLC
3500 National City Tower
101 S . Fifth Street
Louisville, KY 40202
John H. Dwyer, Jr.
Nancy J. Schook
Laurence Zielke
PEDLEY ZIELKE & GORDINIER PLLC
2000 Meidinger Tower
462 South Fourth Avenue
Louisville, KY 40202-2555
COUNSEL FOR APPELLEES/CROSSAPPELLANTS :
COUNSEL FOR AMICUS CURIAE:
THE HOMEBUILDERS ASS'N OF
LOUIVILLE, INC.
Patricia A. Abell
Richard M . Trautwein
TRAUTWEIN & ASSOCIATES
804 Stone Creek Parkway, Suite 6
Louisville, KY 40223
Marshall P. Eldred, Jr.
Rebecca Anne Wood
FROST BROWN TODD LLC
400 West Market Street, 32 nd Floor
Louisville, KY 40202
RENDERED : SEPTEMBER 23, 2004
TO BE PUBLISHED
,Sixpmur 49ourf of ~mfurkg
2002-SC-0733-DG and 2002-SC-0398-DG
TRIAD DEVELOPMENT/ALTA GLYNE,
INC. ; DOMINION HOMES, INC . ;
DOMINION HOMES OF KENTUCKY,
GP, LLC ; DOMINION HOMES OF
KENTUCKY, LTD. ; LOUISVILLE AND
JEFFERSON COUNTY PLANNING
COMMISSION ; LOUISVILLE AND
JEFFERSON COUNTY DEPARTMENT
OF PUBLIC WORKS; AND THE
LOUISVILLE AND JEFFERSON
COUNTY METROPOLITAN SEWER
DISTRICT
V.
APPELLANTS/CROSS-APPELLEES
ON APPEAL FROM THE COURT OF APPEALS
2001-CA-0325-MR
JEFFERSON CIRCUIT COURT NOS . 00-CI-3933 ; 94-CI-2642 ; 96-CI-926
RITA C. GELLHAUS ; WINSTON L.
SHELTON ; AND LAURA S . HALL
APPELLEES/CROSS-APPELLANTS
DISSENTING OPINION BY JUSTICE KELLER
Rita C . Gellhaus, Winston Shelton, and Laura Hall ("Homeowners") want to
challenge by appeal to the circuit court the soil and sedimentation control plan for
the Billtown Farms subdivision in Jefferson County as finally approved by the
Louisville and Jefferson County Planning Commission ("Planning Commission" or
"Commission"). KRS 100.347(2) requires that this challenge be made within thirty
days of the Planning Commission's "final action ." The majority opinion believes that
the "final action" from which the Homeowners should have appealed occurred on
August 19, 1999 when the Planning Commission approved the standard subdivision
plan, subject to fifteen conditions. Because one of those conditions was that the
Louisville and Jefferson County Metropolitan Sewer District ("MSD") devise a soil
and sedimentation control plan ("Soil Plan") for the Commission's approval and
because MSD's Soil Plan was later approved by the Director of the Louisville and
Jefferson County Department of Public Works ("Director') on behalf of the
Commission , I dissent for the reason that I believe the appropriate "final action" from
which this appeal should have been taken occurred on May 18, 2000, when the
Director, on behalf of the Commission , approved MSD's Soil Plan - to hold
otherwise denies the Homeowners due process of law.
The majority opinion creates a catch-22 for the Homeowners by denying them
the right to appeal the actions by MSD and the Director (when the contents of the
Soil Plan are known and the Homeowners have a claim) and by requiring them
instead to appeal from the Commission's first approval of the subdivision plan (when
the Soil Plan does not exist and the claim is not ripe). In effect, the majority prevents
judicial review of the Soil Plan .
The majority relies on the 1988 amendment to KRS 100 .347 where the words
"final action" were defined as the "date when the vote is taken to approve or
disapprove the matter before the body."' In using the words "final action," the
Legislature was primarily concerned with preventing premature challenges that
would or could be extinguished by subsequent changes or actions by the body. 2 But
KRS 100.347(5) .
2 Leslie v. City of Henderson , Ky.App ., 797 S .W.2d 718, 720 (1990)
("Accordingly, we hold that the `final action' in the present case was on October 11,
1988, when the ordinance was given its second reading and final passage . Hence
appellant's appeal to the circuit court was timely. With regard to judicial economy,
interpreting the statute otherwise could lead to an unsound result . It is possible that
-2-
the majority rejects the characterization of the Director's approval as a "final action"
because it is not a "vote."
In adopting this strict interpretation, the majority is in effect insulating the
Planning Commission's decisions from judicial review by preventing the
Homeowners from challenging any delegable action, regardless of the impact or
magnitude, which occurred after the approval of the initial plan on August 19, 1999 .
Time and again, this Court and its predecessor have refused to adopt a strict literal
construction of a statute if it would lead to an unreasonable or absurd result .3
Requiring a party to appeal before the matter is final is unreasonable, absurd, and
clearly contrary to KRS 100 .347(2) whose primary purpose is to prevent premature
appeals of the Planning Commission's interlocutory decisions .
One point where I do agree with the majority is that "there cannot be two final
actions for the purpose of KRS 100 .347 ." 4
But I believe the "final action" depends
on the particular matter being appealed. In this situation, I had hoped the members
of this Court would have recognized the problem created by requiring appeals from
the Planning Commission's August 19, 1999 approval - one could appeal from this
approval of the initial plan, only to find the matter had been satisfactorily resolved
after MSD and the Director became involved . And since the subdivision plan
approved in August contained fifteen conditions (items that were not final or even
one could appeal from the initial zoning change decision and have the matter heard,
only to find that the ordinance effecting the change did not pass, rendering the circuit
court's action for naught . We do not believe the legislature intended such a result .").
3 See , eg_.., Commonwealth v. White, Ky., 3 S .W.3d 353 (1999) ; McElroy v.
Taylor , Ky., 977 S .W.2d 929 (1998); Bailey v. Reeves , Ky., 662 S .W.2d 832 (1984);
Ky. Mountain Coal Co . v. Witt, Ky., 358 S.W.2d 517 (1962) ; Dept . of Revenue v.
Greyhound , Ky., 321 S.W .2d 60 (1959).
4 Triad Development/Alta Glyne, Inc . v. Gellhaus , Ky.,
(Slip Op. at 5).
S.W .3d
(2004)
developed at that time), the opposite also holds true - one who did not appeal the
initial plan would find that the final plan contained objectionable items but that the
time to appeal had run before the appealable matter had become part of the
subdivision plan. The majority's interpretation works if all "subordinate ministerial
decisions" are made within thirty days of the Commission's initial approval, thus
theoretically allowing time for appeal. But in this case, the "subordinate ministerial
decisions" from which the Homeowners appeal occurred almost a year later.
I would also point out that neither the initial plan nor the final plan has been
filed in the record, despite the Homeowners' request to the Planning Commission .
And I am hesitant to join the majority without comparing the specifications on soil
and sedimentation control in the initial subdivision plan approved on August 19,
1999 with the final subdivision/construction plan approved on May 18, 2000.
Without the benefit of the "before" and "after' subdivision plans and because the
case is before us on an appeal of a motion to dismiss, I believe that the appropriate
appellate review requires the Court to make an evaluation that assumes the
allegations in the Homeowners' complaint are true .
According to the complaint, the initial plan approved by the Planning
Commission on August 19, 1999 did not describe a soil and sedimentation control
plan, but assigned the task to MSD through conditions nine and fourteen :
9. A soil erosion and sedimentation control plan shall be
developed and implemented in accordance with the
Metropolitan Sewer District and the USDA Soil
Conservation Service recommendations . Documentation
of the Metropolitan Sewer District's approval of the plan
shall be submitted to the Planning Commission prior to
grading and construction activities .
5 La Vielle v . Spay, Ky., 412 S .W.2d 587 (1966) ; James v. Wilson , Ky .App .,
95 S .W .3d 875 (2002) .
14. The Woolpert Report entitled "Erosion Prevention and
Sediment Control for the Alta Glyne Development,
Jeffersontown, Kentucky" dated August 1998 and
originally submitted for Docket 10-46-92 and resubmitted
for 10-20-99 shall be updated to reflect the current
approved plan and executed according to its
recommendations . A copy of the revised report shall be
submitted to MSD prior to construction plan approval .
In accordance with condition nine, MSD devised (by out-sourcing the job to PDR
Engineers, Inc.) and approved a soil and sedimentation control plan, which the
Director approved on behalf of the Planning Commission through his delegated
power - the Metropolitan Subdivision Regulations provide that once MSD approves
the plan, "the Director of Works shall take action on behalf of the Commission" to
approve or disapprove the plan . I believe that the Director's approva1 6 was the "final
action" by the Planning Commission and that the Homeowners filed a timely appeal ;
thus I would reverse the Court of Appeals and remand the case to the circuit court
for resolution on the merits .
6 Although it is questionable whether the Planning Commission may properly
delegate to the Director such unrestricted authority, this issue is not before us. If
such delegation is not proper, then after MSD and the Director recommended or
approved a soil erosion and sedimentation control plan, the plan would properly go
back before the Planning Commission for its final approval and vote .
Suyrrmr C~vurf of ~pufurhV
2002-SC-0733-DG AND 2003-SC-0398-DG
TRIAD DEVELOPMENT/ALTA GLYNE,
INC. ; DOMINION HOMES, INC. ;
DOMINION HOMES OF KENTUCKY, GP,
LLC; DOMINION HOMES OF
KENTUCKY, LTD; LOUISVILLE AND
JEFFERSON COUNTY PLANNING
COMMISSION ; LOUISVILLE AND
JEFFERSON COUNTY DEPARTMENT
OF PUBLIC WORKS ; AND THE
LOUISVILLE AND JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT
APPELLANTS/CROSS-APPELLEES
ON APPEAL FROM THE COURT OF APPEALS
2001-CA-0325-MR
JEFFERSON CIRCUIT COURT
94-CI-2642, 96-CI-926 AND 00-CI-3933
V.
RITA C . GELLHAUS ; WINSTON L.
SHELTON ; AND LAURA S. HALL
APPELLEES/CROSS-APPELLANTS
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION
The petition for rehearing of this Court's opinion filed by Appellees/CrossAppellants, Rita C. Gellhaus, Winston Shelton and Laura Hall, is hereby denied .
On the Court's own motion, the original opinion rendered herein on September
23, 2004, is modified by the substitution of a new page one (1), attached hereto, in lieu
of page one (1) of the opinion as originally rendered . The modification does not affect
the holding of the Opinion of the Court or the Dissenting Opinion as originally rendered .
All concur.
ENTERED : December 16, 2004 .
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