KENTUCKY PUBLIC SERVICE COMMISSION V. 255. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY V. CARLENE SLUSHER
Annotate this Case
Download PDF
RENDERED : NOVEMBER 18, 2010
TO BE PUBLISHED
,.Q
;vixyrrmr Courf of ~rnf
2009-SC-000053-DG
..W+ArE~soW,rW+;~.c.
~~nr~ri.rr~ur +rr m
1Z-9- iO F .rrnnrrrrnwr ..
KENTUCKY PUBLIC SERVICE COMMISSION
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NOS. 2007-CA-000697 AND 2007-CA-000713
FRANKLIN CIRCUIT COURT NO. 06-CI-001213
L. GLENN SHADOAN, ET AL.
APPELLEES
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING
This appeal is from an opinion of the Court of Appeals concluding that
the Public Service Commission ("PSC") had jurisdiction over the siting and
construction of a proposed cellular antenna tower adjacent to the Appellees'
property. We adjudge that under the language of KRS 100.987, the local
planning commission had jurisdiction over the placement and construction of
the proposed cellular tower. Accordingly, we reverse the decision of the Court
of Appeals and remand for further proceedings consistent with this opinion.
In September 2005, Bluegrass Wireless filed an application with the PSC
to secure a certificate of public convenience and necessity for the construction
of a proposed cellular tower on property located in London, Kentucky . As
adjacent property owners, Glenn and Sue Shadoan sought to intervene in the
application process, and in October 2005, the PSC granted their request. After
the Shadoans intervened, Bluegrass Wireless requested by letter that the PSC
dismiss the application proceedings for lack of jurisdiction . The PSC
determined that it did not have jurisdiction over the application because,
pursuant to KRS 100.987(1), the London/Laurel County Joint Planning
Commission had jurisdiction over the matter. The PSC entered an order
dismissing the application proceedings on June 27, 2006, and subsequently
denied the Shadoans' motion for rehearing on August 8, 2006.
On September 1, 2006, the Shadoans filed a complaint and petition for
review in the Franklin Circuit Court, naming the PSC and Bluegrass Wireless
as respondents. The sole issue raised in the complaint and petition for review
was whether the PSC had jurisdiction over the proposed cell tower siting and
construction . The Shadoans did not thereafter file a separate and specific
designation of the record as required by KRS 278 .420. However, the Shadoans
did attach a copy of the August 8, 2006 PSC order denying their motion for
rehearing.
The PSC and Bluegrass Wireless filed a motion to dismiss the Shadoans'
complaint for failure to designate the record . The circuit court ultimately
denied the motion to dismiss and entered an opinion and order granting
summary judgment to the Shadoans . The circuit court concluded that the
provisions of KRS 278 .650 required the PSC to exercise jurisdiction over the
matter where the local planning body had formally declined to do so by failing
to adopt regulations dealing specifically with construction of cell phone towers.
On appeal to the Court of Appeals, the PSC and Bluegrass Wireless
argued that the Franklin Circuit Court did not have jurisdiction over the action
because of the Shadoans' failure to designate the record as required under KRS
278 .420(2). In the alternative, they argued that the circuit court erred in
concluding that the local planning commission lacked jurisdiction to consider
the proposed construction of the cell phone tower. The Court of Appeals
adjudged that the Shadoans had complied with the statutory requirements of
KRS 278.420(2) because the only issue in the case was an issue of law
(whether the PSC or local planning commission had jurisdiction), there was no
evidentiary record compiled by the agency, and the Shadoans had attached the
PSC order with their complaint. Thus, the court held that the Franklin Circuit
Court properly had jurisdiction on review of the PSC order. The Court of
Appeals additionally agreed with the circuit court that the PSC had jurisdiction
over the substantive issue of the application for construction of the cell tower
because the London/Laurel County Joint Planning Commission had not
exercised their discretionary authority to regulate construction of cell phone
towers by adopting regulations pertaining thereto . We accepted discretionary
review to decide whether the circuit court had jurisdiction over review of the
PSC order, and, if so, whether the PSC or local planning commission had
original jurisdiction over the placement and construction of the cell phone
tower.
COMPLIANCE WITH KRS 278.420(23
The PSC and Bluegrass Wireless argue that the Court of Appeals erred in
determining that the Shadoans had complied with the statutory requirements
of KRS 278 .420(2) for designation of the record . They maintain that, because
the Shadoans did not timely file a formal designation of the record in the
Franklin Circuit Court, that court did not have jurisdiction over the petition for
review and thus should have dismissed the case .
KRS 278 .420(2) provides :
Unless an agreed statement of the record is filed with
the court, the filing party shall designate, within ten
(10) days after an action is filed, the portions of the
record necessary to determine the issues raised in the
action. Within ten (10) days after the service of the
designation or within. ten (10) days after the court
enters an order permitting any other party to intervene
in the action, whichever occurs last, any other party to
the action may designate additional portions for filing.
The court may enlarge the ten (10) day period where
cause is shown. Additionally, the court may require or
permit subsequent corrections or additions to the
record .
This Court has recently addressed the issue of compliance with KRS
278.420(2) in Louisville Gas and Electric Company v. Hardin and Meade County
Property Owners for Co-Location, 319 S.W.3d 397 (Ky. 2010), wherein we
reaffirmed the doctrine of strict compliance with regard to administrative
appeals. In Louisville Gas and Electric Company, the petitioners failed to
designate the record or file a motion for enlargement of time within the ten-day
period in KRS 278.420(2). We held that the failure to timely designate the
record was jurisdictional, and thus fatal to the petition for review, reasoning:
Under the statutory scheme of KRS Chapter 278, the
legislature requires two things to invoke the
jurisdiction of the circuit court over appeals of public
service commission orders - the timely filing of the
action in the Franklin Circuit Court and the timely
filing of the designation of the record. KRS 278.410;
KRS 278.420 . . . . The designation of the record is
especially important in administrative appeals because
of the voluminous record frequently produced by the
administrative proceedings . The designation of the
record serves notice of those relevant portions of the
record for the appeal and serves to narrow the record
for appellate review, presumably for purposes of
judicial economy.
Id. at 401 .
There is, however, a distinguishing factor in the instant case . Unlike
Louisville Gas and Electric Company, there is no evidentiary record from the
administrative proceedings in the present case, and the sole issue on review is
one of law. In Louisville Gas and Electric Company, "It [was] undisputed that
the issues to be decided in the appeal required designation of some portion(s) of
the administrative record in order to decide the appeal." Id. Moreover, in the
present case, the Shadoans attached the August 8, 2006 opinion and order
denying their motion for rehearing to their complaint. So, while the Shadoans
did not file a separate document specifically entitled a "Designation of Record,"
they did file in the record the actual document from the administrative
proceedings disposing of the sole issue before the PSC. In so doing, they
served notice of the only portion of the administrative record necessary and
relevant to the issue on appeal . Accordingly, we adjudge that the Shadoans
complied with KRS 278 .420(2) .
JURISDICTION OF CELLULAR ANTENNA TOWER SITING AND
CONSTRUCTION
The PSC and Bluegrass Wireless argue that the Court of Appeals and the
Franklin Circuit Court erroneously concluded that jurisdiction over the
application for the siting and construction of the proposed cellular tower in this
case rested with the PSC . The main statutes in play in this case are KRS
100 .987, KRS 278 .650, and KRS 278.665. The pertinent provisions in KRS
100.987, originally enacted in 1998, state as follows:
(1) A planning unit as defined in KRS 100 .111 and
legislative body or fiscal court that has adopted
planning and zoning regulations may plan for and
regulate the siting of cellular antenna towers in
accordance with locally adopted planning or zoning
regulations in this chapter.
(2) Every utility or a company that is engaged in the
business of providing the required infrastructure to a
utility that proposes to construct an antenna tower for
cellular telecommunications services or personal
communications services within the jurisdiction of a
planning unit that has adopted planning and zoning
regulations in accordance with this chapter shall:
(a) Submit a copy of the applicant's completed uniform
application to the planning commission of the affected
planning unit to construct an antenna tower for
cellular or personal telecommunications services. The
uniform application shall include a grid map that
shows the location of all existing cellular antenna
towers and that indicates the general position of
proposed construction sites for new cellular antenna
towers within an area that includes:
1 . All of the planning unit's jurisdiction; and
2. A one-half (1/2) mile area outside of the boundaries
of the planning unit's jurisdiction, if that area contains
either existing or proposed construction sites for
cellular antenna towers;
(b) Include in any contract with an owner of property
upon which a cellular antenna tower is to be
constructed, a provision that specifies, in the case of
abandonment, a method that the utility will follow in
dismantling and removing a. cellular antenna tower,
including a timetable for removal; and
(c) Comply with any local ordinances concerning land
use, subject to the limitations imposed by 47 U.S.C .
sec . 332(c), KRS 278.030, 278 .040, and 278.280 .
(emphasis added) .
KRS 278 .650, originally enacted in 1996, provides:
If an applicant proposes construction of an antenna
tower for cellular telecommunications services or
personal communications services which is to be
located in an area outside the jurisdiction of a
planning commission, the applicant shall apply to
the Public Service Commission for a certificate of
public convenience and necessity pursuant to KRS
278.020(1), 278.665, and this section. The commission
shall convene a local public hearing on the application
upon the receipt of a request from the local governing
body or from not less than three (3) interested persons
that reside in a county or municipal corporation in
which the tower is proposed to be constructed. In
reviewing the application, the commission may take
into account the character of the general area
concerned and the likely effects of the installation on
nearby land uses and values . A local government may
charge a fee for a building permit, in connection with
the construction or alteration of any structure for
cellular telecommunications services or personal
communication services, if the fee does not exceed that
charged for any other commercial structure of
comparable cost of construction .
(emphasis added) .
.
KRS 278 .665(1), enacted in 1998, provides, "The commission shall, by
administrative regulation promulgated in accordance with KRS Chapter 13A,
establish the minimum content of an application for a certificate of convenience
and necessity to construct cellular antenna towers for areas outside the
jurisdiction of a planning commission." (emphasis added)
The Court of Appeals determined from the permissive language - "may" in KRS 100.987(1) that the local planning commission had discretionary
authority to regulate cellular tower construction within its political boundaries,
and that "this authority is triggered by the local adoption of regulations specific
to the construction of cellular towers ." Because the London/Laurel Joint
Planning Commission had not adopted regulations regarding construction of
cellular towers, the Court of Appeals concluded that the planning commission
had declined to exercise jurisdiction over the application by Bluegrass Wireless
and, therefore, the PSC was required to fill the jurisdictional vacuum pursuant
to KRS 278 .650.
This Court, however, is not persuaded of such an interpretation by the
word "may" in KRS 100.987(l) . Rather, we read the word "shall" in section (2)
of KRS 100 .987, in requiring "every" applicant to submit a copy of the
application "to the planning commission of the affected planning unit[,]" as
demonstrating the Legislature's intent that jurisdiction over cellular tower
siting and construction would always be in the local planning commission if
the area in question has such
a commission. See Kentucky Ins. Guar. Ass'n u.
Jeffers ex rel: Jeffers, 13 S .W.3d 606 (Ky. 2000) (cardinal rule of statutory
construction is to give effect to the intent of the Legislature) . This
interpretation is more consistent with KRS 278 .650, in that it gives the phrase
"in an area outside the jurisdiction of a planning commission" its plain
meaning of outside the geographical jurisdiction of the local planning
commission . See Deuasier u. James, 278 S.W.3d 625 (Ky. 2009) (plain,
commonly accepted meaning of language in statute controls) . The mandatory
"shall" language
in KRS 100.987(4), regarding the planning commission's duty
to review and approve or disapprove each application, further evinces an intent
to vest jurisdiction of cellular tower applications in the local planning
commission.
This construction can also be harmonized with the permissive language
in KRS 100.987(1) providing that the local government planning unit "may plan
for and regulate the siting of cellular antenna towers in accordance with locally
adopted planning or zoning regulations in this chapter." See Combs u . Hubb
Coal Corp., 934 S.W.2d 250, 252 (Ky. 1996) (Courts must try to harmonize and
give effect to all sections of a statute.). Under the statutory scheme of KRS
Chapter 100, the planning unit's compliance with the comprehensive plan
provisions is mandatory, see KRS 100.183 -- 100 .197, whereas the regulation of
property through zoning ordinances is permissive. See KRS 100.203(1) ("Cities
and counties may enact zoning regulations . . . . The city or county may
regulate . . . . ..) (emphasis added); see also Grannis u. Schroder, 978 S.W.2d
328, 330 (Ky. App. 1997) . Hence, a local planning unit is not required to enact
any zoning regulations for its area, let alone regulations that specifically
pertain to cellular antenna towers.
Pursuant to KRS 100 .203, the planning unit may choose to regulate one
type of activity or structure, but not another. Thus, our reading of the word
"may" in KRS 100.987(1) is that a planning unit has the discretion to enact
regulations pertaining to cellular antenna towers, as they do with any other
activities or structures, but this exercise of discretion is not a condition of
jurisdiction . If the area of the proposed cellular tower has a planning unit that
has adopted planning and zoning regulations, the jurisdiction over matters
relating to cellular tower placement and construction rests with that planning
commission, not the PSC, regardless of whether the planning unit has enacted
regulations specifically relating to cellular towers. If there are no regulations
specifically pertaining to cellular towers, as in the present case, the applicant
will, however, still need to meet the general restrictions of the particular zone
in which the proposed cell tower is to be constructed, e.g. permitted uses
within the zone, height and setback requirements, etc.
For the reasons stated above, the judgment of the Court of Appeals is
reversed. Any further proceedings, if any, on Bluegrass Cellular's application
must occur before the London/Laurel County Joint Planning Commission .
All sitting. Minton, C .J . ; Abramson, Cunningham, Noble, and Venters,
JJ., concur. Scott, J ., dissents by separate opinion.
SCOTT, J., DISSENTING : Because I believe the majority misconstrues
KRS 100 .987, 1 cannot join its opinion. Quite frankly, I cannot conceive that
the General Assembly ever intended that cellular antenna towers-with all their
transmission capabilities-would not be regulated in any way if a county fiscal
court or planning commission defaulted. Therefore, I respectfully dissent as to
the determination that the PSC does not have jurisdiction in this case .
KRS 100 .987 provides in pertinent part:
(1) A planning unit as defined in KRS 100.111 and legislative
body or fiscal court that has adopted planning and zoning
regulations may planfor and regulate the siting of cellular
antenna towers in accordance with locally adopted planning
or zoning regulations in this chapter.
(2) Every utility or a company that is engaged in the
business of providing the required infrastructure to a utility
that proposes to construct an antenna tower for cellular
telecommunications services or personal communications
services within the jurisdiction of a planning unit that has
adopted planning and zoning regulations in accordance with
this chapter shall : (a) Submit a copy of the applicant's
completed uniform application to the planning commission
of the affected planning unit to construct an antenna tower
for cellular or personal telecommunications services.
The majority makes much of the words "shall" and "every" in sub-section (2) of
KRS 100 .987, gleaning that the legislature intended local planning
commissions to "always" maintain jurisdiction over cellular tower placement "if
the area in question has such a commission." I do not believe that "shall" and
"every' as used in sub-section (2) evinces such an intention, particularly given
the question at handwhether the PSC has jurisdiction in this case. To
answer this question, 1, like the Court of Appeals, concentrate on the
description of the entity that may regulate cellular tower placement, i.e., "[a]
planning unit as defined in KRS 100 .111 and legislative body or fiscal court
that has adopted planning and zoning regulations . . . ." in KRS 100.987(l) and
,,a planning unit that has adopted planning and zoning regulations . . . . " in KRS
100.987(2) . A plain reading of these two provisions defies the majority's
conclusion that "a planning unit has the discretion to enact regulations
pertaining to cellular antenna towers, as they do with any other activities or
structures, but this exercise of discretion is not a condition ofjurisdiction."
While it is true enough that no jurisdiction "must" enact planning and zoning
regulations, the fact remains that pursuant to the plain reading of KRS
100 :987(1) and (2), they are required to do so before asserting authority over
the placement of cellular towers. Otherwise, KRS 100.987(1) would simply
read,
A planning unit as defined in KRS 100.111 and legislative
body or fiscal court
'I - atiens may plan for and regulate the siting [sic] of
cellular antenna towers in accordance with locally adopted
planning or zoning regulations in this chapter.
I decline to so edit the statute and render superfluous the phrase "that has
adopted planning and zoning regulations. " Instead, I would give full effect and
meaning to the Legislature's drafting of this provision.
My belief that the majority misconstrues KRS 100 .987 is bolstered by the
question begged by the majority's opinion: when does the PSC have
jurisdiction over the placement of cellular towers? Applying the rule
announced by the Court today, and given the fact that every single jurisdiction
in this Commonwealth has a fiscal court or a planning unit as defined in KRS
100.
the answer is never.
This, I believe, is the result of the majority's conclusion that the
Legislature intended the placement and regulation of cellular antenna
placement to "always be in the local planning commission if the area in
question has such a commission." To the contrary, it seems to me that the
legislative intention to be gleaned from KRS 100.987 was to provide jurisdiction
to planning units which have opted to zone and plan their jurisdictions, but
only if demonstrated by the local unit's adoption of "planning and zoning
regulations" and not by the simple existence of the planning body. Where the
local units decline to regulate, the Legislature intended the PSC to be the
authority to fill the regulatory vacuum. Otherwise, and given the majority's
sweeping statements in this case, the PSC would never have jurisdiction and
the possibility exists that the placement of cellular towers could go entirely
unregulated .
1 KRS 100 . 111(15) defines a planning unit as: "[A]ny city, county, or consolidated local
government, or any combination of cities, counties, or parts of counties, or parts of
consolidated local governments engaged in planning operations. KRS 100. 111(14)
defines planning operations to "mean[ ) the formulating of plans for the physical
development and social and economic well-being of a planning unit, and the
formulating of proposals for means of implementing the plans ."
13
My concern that the majority's opinion could permit cellular towers to go
unregulated derives from the fact that there may be counties and planning
units which have not designated zoning regulations of any kind . Thus, where a
cellular tower is to be placed in a jurisdiction with some type of planning body,
but that jurisdiction is lacking in regulations, a court would look to this
opinion and determine that jurisdiction over cellular tower placement always
resides in the local planning commission. This would be so merely because the
area in question "has such a commission" regardless of whether the
commission has planned or zoned in any way. Thus, the placement of the
tower in such a jurisdiction would go unregulated. I therefore, cannot agree
with the majority on this issue.
In any event, while I think the majority reads out a key portion of KRS
100 . 987, I stop short of adopting the Court ofAppeals' position on this issue
for one simple reason-I believe it goes one step too far. The Court of Appeals
held that in order for the local planning unit to maintain jurisdiction it "must
have first adopted local planning and zoning regulations dealing specifically
with the construction of cellular towers." (emphasis added) Nothing in KRS
100 .987 supports the conclusion that a local planning unit must have
"specifically" regulated cellular tower placement or construction, but rather the
only requirement necessary is "that [it] has adopted planning and zoning
regulations." Thus, I believe that a local planning unit invokes its authority by
creating any regulations that could be read to apply to the placement of cell
towers, and need not be specifically so. Therefore, in cases such as the one at
bar, I would ask a simple question: has the local jurisdiction adopted a
planning and zoning regulation that would regulate the placement of cellular
towers in any way? Where the question is answered in the affirmative, then the
local planning unit should be considered as having invoked its permissive
authority to regulate the cell towers. Where the question is answered in the
negative, the PSC is vested with the regulatory function.
Therefore, for the foregoing reasons, I dissent from the majority's opinion
in this case .
COUNSEL FOR APPELLANT:
David Shawn Samford
Helen C. Helton
Tiffany Jacquel Bowman
Kentucky Public Service Commission
211 Sower Blvd.
P.O . Box 615
Frankfort, KY 40602-0615
COUNSEL FOR APPELLEES L. GLENN SHADOAN AND
SUE SHADOAN :
Thomas Joseph Fitzgerald
Kentucky Resources Council, Inc.
P.O . Box 1070
Frankfort, KY 40602
COUNSEL FOR APPELLEE BLUEGRASS WIRELESS, LLC :
John Edmund Selent
Dinsmore Shohl
1400 PNC Plaza
500 West Jefferson St.
Louisville, KY 40202
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.