Mindy Davenport v. City of Morehead ( 2023 )

RENDERED: FEBRUARY 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1395-MR
MINDY DAVENPORT; DEBRA
FRENCH; JASON GRIFFITH;
JESSICA BLAKEMAN; PENNY
GOZZARD; SUE HAMILTON; AND
TIM MASSEY APPELLANTS
APPEAL FROM ROWAN CIRCUIT COURT
v. HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 21-CI-90143
CITY OF MOREHEAD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Mindy Davenport (“Davenport”) and other former
residents (collectively, “Appellants”) of the North Fork Mobile Home Park (“North
Fork”) appeal from the judgment of the Rowan Circuit Court dismissing their
amended complaint. After careful review, we affirm.
BACKGROUND
In December 2020, the Morehead City Council (“the City”) adopted
Ordinance No. 20:2020 (“the Ordinance”) to establish the Morehead Gateway
Development Area. The Ordinance was passed under Kentucky’s Tax Increment
Financing (“TIF”) statute. KRS1 65.7041-65.7083. The purpose of the Ordinance
was to encourage investment and redevelopment within the development area. The
development area encompasses North Fork in its entirety.2 The Ordinance includes
redevelopment assistance to share incremental tax revenues with a private
developer as a means of underwriting the costs of the project.
Appellants are former residents of North Fork, all of whom leased lots
from the owner of the property, Joanne Fraley (“Fraley”), on a month-to-month
basis. In March 2021, Fraley sent Appellants and all other residents letters
instructing them to vacate North Fork by April 30, 2021. Appellants complied
with Fraley’s demand to vacate. Davenport, Penny Gozzard (“Gozzard”), Jessica
Blakeman (“Blakeman”), and Debra French (“French”) moved to new residences
in Morehead, Kentucky. Sue Hamilton (“Hamilton”), Tim Massey (“Massey”),
1
Kentucky Revised Statutes.
2
The development area, formerly North Fork, is located at the northeast quadrant of the I-64/KY
32 interchange. Both prior to and after passage of the ordinance, the development area was
zoned B-2 Highway Business. Manufactured home communities are not permitted in areas
zoned B-2. City of Morehead Zoning Ordinance § 154.149(D)(4)(a).
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and Jason Griffith (“Griffith”) now reside elsewhere. Fraley has since sold the
property. Fraley is not a party to this action and Appellants have not alleged she
acted unlawfully by terminating their leases. Furthermore, they do not claim any
right to remain at North Fork beyond April 30, 2021.
Instead, Appellants sought declaratory relief based on alleged
procedural errors in the City’s passage of the Ordinance. In the amended
complaint, Appellants claimed the following: (1) the development plan filed with
the Morehead City Clerk did not fully comply with KRS 65.7051(1); (2) the
development plan was not filed with the Rowan Fiscal Court as required by KRS
65.7051(3); (3) because the development plan was deficient and was not filed with
the fiscal court, the City’s notice to the public and public hearing did not meet the
requirements of KRS 65.7051(2); (4) the City did not make sufficient findings of
fact under KRS 65.7049; and (5) the City violated Appellants’ due process rights
when it failed to give actual notice of the public hearing on the Ordinance.
Appellants claimed they incurred thousands of dollars in costs when
they were required to move their mobile homes to new locations. Those who were
unable to relocate their mobile homes were required to find new housing, resulting
in ongoing housing expenses. In their amended complaint, Appellants requested
only for the Ordinance to be declared void. They do not request reimbursement of
their relocation or ongoing housing costs.
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The City filed a motion under CR3 12.02 to dismiss Appellants’
complaint. The circuit court granted the motion, finding Appellants did not have
constitutional or statutory standing to bring their claims. The court also found the
Appellants did not have taxpayer standing to pursue their claims. In the
alternative, the court determined the ordinance was valid under the City’s home
rule powers.
This appeal followed.
STANDARD OF REVIEW
Issues of standing are pure questions of law reviewed de novo. Ward
v. Westerfield, 653 S.W.3d 48, 51 (Ky. 2022) (footnote omitted).
ANALYSIS
On appeal, Appellants argue: (1) with regard to constitutional
standing: (a) despite Fraley’s termination of the leases, their injuries were caused
by the City’s adoption of the Ordinance, and (b) their injuries are redressable by
voiding the Ordinance; (2) they have standing as Rowan County, Kentucky
taxpayers; (3) they have standing to sue under the Declaratory Judgment Act; (4)
the City’s notice of the public hearing did not satisfy the procedural due process
requirements of Section 2 of the Kentucky Constitution; and (5) the City exceeded
its home rule powers by enacting the Ordinance.
3
Kentucky Rules of Civil Procedure.
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First, Appellants do not have constitutional standing to bring their
claims against the City. Courts may only address justiciable claims which require
the plaintiff have standing. See Kentucky Unemployment Insurance Commission v.
Nichols, 635 S.W.3d 46, 49-50 (Ky. 2021). Under Lujan v. Defenders of Wildlife,
504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992), to establish constitutional
standing, the plaintiff must prove: (1) injury, (2) causation, and (3) redressability.
Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020). In other words, “[a]
plaintiff must allege personal injury fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by the requested relief.”
Commonwealth v. Sexton, 566 S.W.3d 185, 196 (Ky. 2018) (internal quotation
marks and footnotes omitted).
First, Appellants fail to prove they have suffered a legally cognizable
injury. An injury is defined as “[t]he violation of another’s legal right, for which
the law provides a remedy; a wrong or injustice.” Kasey v. Beshear, 626 S.W.3d
204, 208 (Ky. App. 2021) (citation omitted). To establish standing, an injury must
be particularized, meaning “it must affect the plaintiff in a personal and individual
way.” Overstreet, 603 S.W.3d at 252 (footnotes omitted). Appellants allege they
were injured when they were required to vacate North Fork and incurred the costs
of moving their mobile homes, leasing new lots, and/or leasing new residences
because some individuals were unable to move their mobile homes. These
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particularized and concrete injuries were actually suffered by Appellants. Id.
However, by Appellants’ own admission, the law provides no remedy for them,
meaning they are not legally cognizable.4
The Lujan test mandates that Appellants prove all elements to have
constitutional standing, meaning it is unnecessary to proceed in our analysis. See
Kasey, 626 S.W.3d at 209. However, we will briefly address the remaining
elements.
Even if Appellants’ alleged injuries were legally cognizable, they are
not fairly traceable to the City’s allegedly unlawful conduct. Sexton, 566 S.W.3d
at 196. Appellants claim the City made several procedural errors in the
consideration and passage of the Ordinance. None of these errors or the Ordinance
itself caused Appellants’ injuries. Regardless of Appellants’ theories about
Fraley’s motivations, they have not alleged either the City or the Ordinance
required her to terminate the leases or take any other action to remove residents
from North Fork. Instead, displacement and the resulting costs were caused by
Fraley’s termination of their month-to-month leases, which Appellants concede
was within her legal rights as the property owner.
4
Appellants admit “the law does not provide an avenue to un-displace [them] or compensate
them for their displacement.” Appellants’ brief at 20.
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Additionally, Appellants’ injuries cannot be redressed by their
requested relief. A generalized “interest in the proper administration of the
laws[,]” is not a redressable injury. Id. at 197 (footnote omitted). As noted above,
Appellants concede that the law does not provide any avenue for them to receive
compensation or return to North Fork. Because of this reality, they ask only for the
Ordinance to be invalidated for alleged procedural errors. Declaring the Ordinance
void cannot remedy their alleged injuries, making it insufficient under the Lujan
standard.
Having failed to prove a legally cognizable injury that is fairly
traceable to the City’s allegedly unlawful conduct, and which is likely redressable
by their requested relief, Appellants do not have constitutional standing to proceed.
Next, Appellants do not have standing as taxpayers. Being a taxpayer
within a county alone does not confer standing on a litigant. Price v.
Transportation Cabinet, 945 S.W.2d 429, 431 (Ky. App. 1996). This is because
“[o]ur concept of constitutional standing would be eviscerated if litigants could
challenge any government action based on an attenuated relationship between the
harm alleged as a result of the government action and the general expenditure of
public funds to support government functions.” Ward, 653 S.W.3d at 56.
Therefore, where a party claims taxpayer standing, for a matter to be justiciable,
“the taxpayer [must] represent an interest that is direct, pecuniary, and substantial.”
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Id. The taxpayer’s injury must be separate from that of the general public in order
to establish standing. Catchen v. City of Park Hills, 356 S.W.3d 131, 133 (Ky.
App. 2011) (citing Carrico v. City of Owensboro, 511 S.W.2d 677 (Ky. 1974)).
Here, Appellants cannot prove they suffered injuries “different in
character from that sustained by the public generally.” Carrico, 511 S.W.2d at
680. Just as Appellants could not establish constitutional standing, in part, because
their injuries were not caused by the City’s actions in enacting the Ordinance, their
claim of taxpayer standing fails on the same grounds. The non-legally cognizable
and non-redressable injuries that they allege are distinct from those of the general
public and, therefore, give them taxpayer standing, were not caused by the City.
They were caused by Fraley’s independent termination of their leases. Otherwise,
Appellants have only the same interest in proper administration of law and
expenditure of taxpayer funds as any other citizen of the county. Therefore,
Appellants do not have standing as taxpayers of Rowan County.5
Finally, the Declaratory Judgment Act does not confer standing on
Appellants.
In any action in a court of record of this Commonwealth
having general jurisdiction wherein it is made to appear
that an actual controversy exists, the plaintiff may ask for
a declaration of rights, either alone or with other relief;
5
Although superfluous to our holding on this issue, several of the appellants are no longer
taxpayers of Rowan County, as they are no longer residents therein.
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and the court may make a binding declaration of rights,
whether or not consequential relief is or could be asked.
KRS 418.040. “A court may only rule on the merits of justiciable issues, or, in
other words, matters that involve an actual case or controversy.” Nichols, 635
S.W.3d at 49-50 (footnotes omitted). Justiciability requires the party seeking relief
have standing to do so. Id. Therefore, Appellants cannot bypass the requirements
of constitutional standing by seeking relief under this statute. See Ward, 653
S.W.3d at 55.6
Because Appellants do not have standing to challenge the Ordinance,
we need not address the merits of their arguments regarding the circuit court’s
determination that the Ordinance was a valid exercise of the city’s home rule
powers. On the same grounds, we will not address the merits of Appellants’
constitutionality argument.
CONCLUSION
Based on the foregoing, the judgment of the Rowan Circuit Court is
affirmed.
ALL CONCUR.
6
The City correctly alleges the TIF statute does not create a statutory right of action for
individuals challenging the actions of local governments in enacting ordinances. Appellants
have not alleged they have such a statutory right. Therefore, we will not further address the
merits of this issue.
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BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:
Benjamin Wesley Carter William M. Lear, Jr.
Louisville, Kentucky Dana Rashay Howard
Felisa Sue Moore
Lexington, Kentucky
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