Commonwealth v. DLX, Inc. , 2001 Ky. LEXIS 59 ( 2001 )

WINTERSHEIMER, Justice,

Dissenting.

I must respectfully dissent from the majority opinion because the claim of DLX was ripe for review as an exception to the exhaustion of administrative remedies doctrine. Here, DLX had no way of initiating or precipitating a challenge except by proceeding in circuit court. When DLX attempted to raise its constitutional taking claims in the administrative proceedings, the motion of the Cabinet to strike the issue from the petition for review was granted. Consequently, DLX was prevented from raising the issue before the Cabinet. DLX did avail itself of the required administrative procedures by seeking the amended permit before the Cabinet and it is now seeking just compensation in court for the taking. Cf. Harrison’s Sanitarium, Inc. v. Commonwealth, Dept. of Health, Ky., 417 S.W.2d 137 (1967); Greater Cincinnati Marine Service, Inc. v. City of Ludlow, Ky., 602 S.W.2d 427 (1980).

Although the Cabinet may have acted within its authority in denying the permit amendment, that does not prevent a finding that the action of the Cabinet did constitute a taking. See Commonwealth of Kentucky ex rel Dept. for Natural Resources and Environmental Protection v. Stephens, Ky., 539 S.W.2d 303 (1976). The taking claim involved a constitutional issue and DLX was not permitted to raise the taking question in the administrative proceedings. Accordingly, it could not have raised the issue on appeal of that decision. The appeal of the decision of the Cabinet would have been an exercise in futility regarding the taking claim. See Harrison’s Sanitarium, supra. Consequently, it was properly raised for the first time in the separate claim before the circuit court. The claim for inverse condemnation is ripe for determination.

I would affirm the decision of the Court of Appeals.

LAMBERT, C.J., joins this dissent.