Ann Ramser Individually and as a Representative of Neighborhood v. Catholic Charities of Louisville, Inc. ( 2021 )

RENDERED: MAY 28, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0739-MR
ANN RAMSER; MARTINA
KUNNECKE; AND NEIGHBORHOOD
PLANNING AND PRESERVATION,
INC. APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 19-CI-008078
CATHOLIC CHARITIES OF
LOUISVILLE, INC.;
LOUISVILLE/JEFFERSON COUNTY
GOVERNMENT (WHICH INCLUDES
ITS LEGISLATIVE COUNCIL);
LOUISVILLE/JEFFERSON COUNTY
METRO HISTORIC LANDMARKS
AND PRESERVATION DISTRICTS
COMMISSION; AND ROMAN
CATHOLIC BISHOP OF LOUISVILLE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
ACREE, JUDGE: Ann Ramser, Martina Kunnecke, and Neighborhood Planning
and Preservation, Inc. (Appellants), appeal the Jefferson Circuit Court’s April 20,
2020 opinion and order dismissing their petition for declaratory judgment and
appeal from the final decision of the Louisville Metro Legislative Council (Metro
Council). Appellants contend the circuit court erred by dismissing their appeal for
failure to name the Metro Council as required under LMCO1 § 32.263 and denying
their petition for declaratory judgment. Finding no error, we affirm.
BACKGROUND
This case concerns the plans to demolish the Holy Name Convent,
gym, and school in furtherance of a design proposal to create a parking lot and
headquarters for Catholic Charities of Louisville, Inc. (Catholic Charities).
Catholic Charities currently operates from an old convent building at that location.
The Holy Name Convent dates from 1890 and Appellees contend it has significant
historical, aesthetic, architectural, religious, and cultural significance to the
community. Because the building is more than fifty years old, the application for
demolition triggered a waiting period and sent notice to neighbors and historic
preservation groups. Upon receiving such notice, Appellants circulated a petition
and obtained enough signatures to oppose the redevelopment; however, it did not
contain signatures from residents in the same zip code as the Holy Name Convent.
1
Louisville Metro Code of Ordinances.
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Regardless, this matter moved to the Louisville/Jefferson County Metro Historic
Landmarks and Preservation Districts Commission (Commission) for a hearing.
At the Commission hearing, multiple Holy Name Convent
parishioners testified and asked the Commission to allow the plans to proceed.
Nevertheless, the Commission voted to designate four of the Holy Name Convent
buildings as landmarks, thwarting the redevelopment plans. Unsatisfied with the
result, the Appellees appealed the matter to the Metro Council. There, the
Planning and Zoning Committee of Metro Council unanimously overturned the
Commission’s designation of the Holy Name Convent as a landmark.
After the Metro Council’s decision, the Appellants filed a verified
complaint, petition for judicial review, declaratory judgment, injunctive relief, and
notice of appeal in the circuit court. Appellants filed the appeal under LMCO §
32.263, stating the Appellees actions were illegal, improper, arbitrary, capricious,
void, and violated the Kentucky Constitution.
The circuit court did not review the decision on its merits. Instead, it
found Appellants failed to strictly comply with LMCO § 32.263 by failing to name
Metro Council in its complaint. The circuit court ruled that, because of this
deficiency, it lacked jurisdiction to hear the administrative appeal and dismissed
the case with prejudice. It also dismissed Appellants’ claim for a declaration of
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rights because it “involves rights that are encompassed in the appeal and the action,
when judged on its terms, is no more than an appeal of the Council’s decision.”
Appeal to this Court followed.
STANDARD OF REVIEW
Because the issues presented require statutory interpretation, our
review is subject to the de novo standard. Commonwealth v. Garnett, 8 S.W.3d
573, 575 (Ky. App. 1999).
ANALYSIS
The Appellants argue the circuit court erred by dismissing their appeal
for failing to name the Metro Council in its compliant as required by LMCO §
32.263. According to Appellants, the dismissal was error because no statute
governs the appeal of a landmark designation—only an ordinance. Although there
is no statute on point, we disagree with Appellants and hold the ordinance controls.
Appeal to the courts from actions of administrative agencies is not a
matter of right. “When grace to appeal is granted by statute, a strict compliance
with its terms is required.” Board of Adjustments of City of Richmond v. Flood,
581 S.W.2d 1, 2 (Ky. 1978); see also Taylor v. Duke, 896 S.W.2d 618 (Ky. App.
1995); Kentucky Unemployment Ins. Comm’n v. Providian Agency Group, Inc.,
981 S.W.2d 138 (Ky. App. 1998). Appellants ask that this Court undermine the
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city ordinance because our case law only references the “statute” and not
“ordinances.” We are not persuaded.
The differences between a statute and an ordinance are minor.
According to Black’s Law Dictionary, a statute is “[a] law enacted by a legislative
body; specif[ically], legislation enacted by any lawmaking body, such as a
legislature, administrative board, or municipal court.” 2 (Emphases added.)
Furthermore, an ordinance, is defined as “[a]n authoritative law or decree;
specif[ically], a municipal regulation, esp[ecially] one that forbids or restricts an
activity. Municipal governments can pass ordinances on matters that the state
government allows to be regulated at the local level. A municipal ordinance
carries the state’s authority and has the same effect within the municipality’s limits
as a state statute.” 3 (Emphasis added.) Logically, and as a matter of law, these
definitions lead us to certain understandings: when a statute and an ordinance
conflict, a statute controls; otherwise, if a statute does not speak, an ordinance will
control, if constitutional. Here, the parties concede there is no relevant statute.
Therefore, LMCO § 32.263 must control.
LMCO § 32.263(C) provides in relevant part,
2
Statute, BLACK’S LAW DICTIONARY (11th ed. 2019).
3
Ordinance, BLACK’S LAW DICTIONARY (11th ed. 2019).
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An appeal from the Council shall be taken by any person
or entity claiming to be injured or aggrieved by the final
action of the Council to the Jefferson Circuit Court within
30 days of the Council’s final action, . . . and any appeal
shall be taken within 30 days of that 120th day. The
property owner, applicant, Commission and the Council
shall be named as parties to the appeal.
Id. (emphasis added). Our courts have a long history of affirming circuit courts
that dismiss cases seeking relief from administrative agency action for failing to
strictly comply with the authorizing law. Flood, 581 S.W.2d at 2; Taylor, 896
S.W.2d at 618; Kentucky Unemployment Ins. Comm’n, 981 S.W.2d at 138; Alcorp,
Inc. v. Barton, No. 2002-CA-1806-MR, 2003 WL 22064248, at *1 (Ky. App. Sept.
5, 2003); Richerson v. Cahoe, No. 2019-CA-0176-MR, 2020 WL 4500429, at *8
(Ky. App. Jul. 10, 2020). The authority Appellants cite does not persuade us that
we should depart from that jurisprudence. They give us no reason why we should
not affirm the circuit court’s decision to dismiss the appeal for failure to name a
party in compliance with the ordinance.
Appellants also argue their petition for declaratory judgment should
stand alone, separate and apart from the appeal, under Greater Cincinnati Marine
Service, Inc. v. City of Ludlow, 602 S.W.2d 427 (Ky. 1980). We disagree.
Greater Cincinnati Marine Service makes clear under such
circumstances as these that our courts will not exalt form over substance. If a
complaint is simply an appeal from a decision of an administrative body, the
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failure to join a necessary party is fatal. Id. at 428. However, if the complaint
stands on its own, based on averments entirely independent of an administrative
body’s act, it may proceed. Id. at 428-29. Here, the Appellant’s complaint cannot
stand alone; they are aggrieved by an act of the Metro Council. That grievance is
the subject of the declaration of rights action and it is intertwined with the
underlying designation of a landmark and which version of the ordinance the
Council should have considered. Therefore, the circuit court was correct in
dismissing the petition for declaratory judgment because it was based on the same
operative facts as the administrative appeal.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
April 20, 2020 opinion and order.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES
CATHOLIC CHARITIES OF
T. Scott Abell LOUISVILLE, INC. AND ROMAN
Louisville, Kentucky CATHOLIC BISHOP OF
LOUISVILLE:
Donald J. Kelly
Jordan M. White
Louisville, Kentucky
BRIEF FOR APPELLEES
LOUISVILLE/JEFFERSON
COUNTY METRO HISTORIC
LANDMARKS AND
PRESERVATION DISTRICTS
COMMISSION AND
LOUISVIILLE/JEFFERSON
COUNTY METRO GOVERNMENT:
Laura M. Ferguson
Louisville, Kentucky
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