Pisgah Community Historical Association, Inc. v. Brian Traugott, in His Capacity as Mayor of Versailles, Kentucky

RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1054-MR
PISGAH COMMUNITY HISTORICAL
ASSOCIATION, INC.; ABE FOSSON;
AMI SELF; ANN HAYES; ANNE
KEOGH; CARRIE FARRIS; DAN
ROSENBERG; DONNA ALLEN; ED
ROSS; ERIC SELF; FRANCES ROSS;
JUDY WELLS; KATHLEEN GROSS;
MARGARET DUNLAP; MICHAEL
MCMAHON; NATANYA
MCMAHON; NEIL FARRIS; SALLE J.
COCHRAN; SUSAN FOSSON;
WHITNEY DUNLAP, III; AND
WILLIAM FISHBACK APPELLANTS
APPEAL FROM WOODFORD CIRCUIT COURT
v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE
ACTION NO. 16-CI-00227
BRIAN TRAUGOTT, IN HIS
CAPACITY AS MAYOR OF
VERSAILLES, KENTUCKY;
ALLYSON LYSTER; ANN MILLER
AS MEMBER OF THE CITY
COUNCIL; BEN CHANDLER;
BRYAN LYSTER; CARL ELLIS AS
MEMBER OF THE CITY COUNCIL;
CHAD WELLS AS A MEMBER OF
THE COMMISSION; CONNIE
SNYDER; CRM COMPANIES, A
KENTUCKY ASSUMED NAMED
CORPORATION; CRM
DEVELOPMENT COMPANY, A
KENTUCKY CORPORATION; DOUG
ARNOLD; EDGEWOOD FARM LLC,
A KENTUCKY LIMITED LIABILITY
COMPANY; EDWARD MCCLEES AS
A MEMBER OF THE COMMISSION;
GARY JONES AS MEMBER OF THE
CITY COUNCIL; GLENN
BROMAGEN; GRAY LYSTER;
HARDEN FIELDS, IV; J.D. WOLF AS
A MEMBER OF THE COMMISSION;
JENNIFER CHANDLER; JERI
HARTLEY AS A MEMBER OF THE
COMMISSION; JIM BOGGS AS
CHAIRMAN OF THE COMMISSION;
JOHN DOWDELL; KEN KERKHOFF
AS MEMBER OF THE CITY
COUNCIL; KIRSTEN JOHNSON;
MARGARET LYSTER; MARY
BRADLEY AS MEMBER OF THE
CITY COUNCIL; NATALIE LYSTER;
NEWTOWNANNER STUD FARM,
LLC; OWEN ROBERTS AS MEMBER
OF THE CITY COUNCIL; PATTY
PERRY AS A MEMBER OF THE
COMMISSION; RANDAL
BOHANNON AS A MEMBER OF
THE COMMISSION; RICH SCHEIN
AS A MEMBER OF THE
COMMISSION; RICHARD SNYDER;
ROBERT CLAY; SANDRA
BROMAGEN; SARAH FARISH; THE
CITY COUNCIL OF VERSAILLES,
KENTUCKY; THE CITY OF
VERSAILLES, KENTUCKY; TIM
PARROT AS A MEMBER OF THE
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COMMISSION; VERSAILLES-
MIDWAY-WOODFORD COUNTY
PLANNING COMMISSION;
VIRGINIA FIELDS; WAYNE
LYSTER; WILLIAM CRAIG
TURNER; WILLIAM S. FARISH;
WINSTAR FARM, LLC; AND
WOODFORD COALITION, INC. APPELLEES
AND
NO. 2020-CA-1058-MR
PAYNE’S MILL COMMITTEE, INC.;
ALLYSON LYSTER; BEN
CHANDLER; BRYAN LYSTER;
CONNIE SNYDER; DOUG ARNOLD;
GLENN BROMAGEN; GRAY
LYSTER; JENNIFER CHANDLER;
JOHN DOWDELL; KIRSTEN
JOHNSON; MARGARET LYSTER;
NATALIE HENTON LYSTER;
NEWTOWNANNER STUD FARM
KENTUCKY, LLC; RICHARD
SNYDER; ROBERT CLAY; SANDRA
BROMAGEN; SARAH S. FARISH;
WAYNE LYSTER; WILLIAM S.
FARISH; WINSTAR FARM, LLC;
AND WOODFORD COALITION, INC. APPELLANTS
APPEAL FROM WOODFORD CIRCUIT COURT
v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE
ACTION NO. 16-CI-00228
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THE CITY OF VERSAILLES; ABE
FOSSON; AMI SELF; ANN HAYES;
ANN MILLER, IN HER OFFICIAL
CAPACITY; ANNE KEOGH; BRIAN
TRAUGOTT, MAYOR; CARL ELLIS,
IN HIS OFFICIAL CAPACITY;
CARRIE FARRIS; CHAD WELLS, IN
HIS OFFICIAL CAPACITY; CRM
COMPANIES (ASSUMED NAME OF
CRM DEVELOPMENT COMPANY);
DAN ROSENBERG; DENISE LUTZ;
DONNA J. ALLEN; ED ROSS; ED
SELF; EDGEWOOD FARM, LLC;
EDWARD MCCLEES, IN HIS
OFFICIAL CAPACITY; FRANCIS
ROSS; GARY JONES, IN HIS
OFFICIAL CAPACITY; HARDIN
FIELD; J.D. WOLF, IN HIS OFFICIAL
CAPACITY; JERI HARTLEY, IN HER
OFFICIAL CAPACITY; JIM BOGGS,
IN HIS OFFICIAL CAPACITY; JUDY
WELLS; KATHLEEN S. GROSS; KEN
ACTON; KEN KERKHOFF, IN HIS
OFFICIAL CAPACITY; MARGARET
M.W. DUNLAP; MARY BRADLEY,
IN HER OFFICIAL CAPACITY;
MICHAEL J. MCMAHON; NATANYA
N. MCMAHON; NEIL FARRIS;
OWEN ROBERTS, IN HIS OFFICIAL
CAPACITY; PATTY PERRY, IN HER
OFFICIAL CAPACITY; RANDAL
BOHANNON, IN HIS OFFICIAL
CAPACITY; RICH SCHEIN, IN HIS
OFFICIAL CAPACITY; SALLIE J.
COCHRAN; SUSAN FOSSON; TIM
PARROTT, IN HIS OFFICIAL
CAPACITY; VERSAILLES CITY
COUNCIL; VERSAILLES-MIDWAY-
WOODFORD COUNTY PLANNING
COMMISSION; VIRGINIA FIELD;
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VIVIAN ACTON; WHITNEY
DUNLAP, III; WILLIAM CRAIG
TURNER; AND WILLIAM D.
FISHBACK APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This is a zoning case involving 405.25 acres of property
located in Versailles, Kentucky (hereafter, the “Property”). In 2015, the owners of
the Property successfully sought a zone change for 68.42 acres to be designated
within the Urban Service Boundary (“USB”). That result is not being challenged
here.
The city of Versailles subsequently sought to annex the remaining
portion of the Property and to also rezone it in the USB. A public hearing was held
before the Planning Commission, during which members of the public were
permitted a limited, but reasonable, time to voice their concerns. It appears from
the administrative record that the Property may be utilized, in part, to build a new
hospital. The Planning Commission recommended to approve the annexation and
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to amend to the City’s Comprehensive Plan accordingly. These measures were
unanimously approved by the Versailles City Council.1
The Appellants are Pisgah Community Historical Association, Inc., et
al., and Paynes Mill Committee, Inc., et al. Due to their objections to the City
Council’s actions, Appellants filed suit against the City and various local
government officers/officials (collectively referred to as the “City”). The
Woodford Circuit Court issued summary judgment in favor of the City. The court
specifically found that Appellants lacked standing to contest the annexation, that
they were not deprived of due process, and that the City’s actions were not
arbitrary. The court specifically concluded that the City satisfied KRS
100.213(1)(a), which dictates the findings necessary for map amendments.
In an eleven-page order further buttressing its well-reasoned summary
judgment, the circuit court denied Appellants’ motions to alter, amend, or vacate
its prior decision. In support, the court specifically cited to the written findings
1
Kentucky Revised Statute (“KRS”) 100.183 discusses the Comprehensive Plan as follows:
The planning commission of each unit shall prepare a
comprehensive plan, which shall serve as a guide for public and
private actions and decisions to assure the development of public
and private property in the most appropriate relationships. The
elements of the plan may be expressed in words, graphics, or other
appropriate forms. They shall be interrelated, and each element
shall describe how it relates to each of the other elements.
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made by the Planning Commission and adopted by the City. Appellants appealed
to this Court as a matter of right. Having carefully considered the relevant portions
of the record and the arguments advanced by the parties, we see no clear factual or
legal directive that would necessitate reversal in this instance. Therefore, we
affirm the circuit court.
STANDARD OF REVIEW
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR2 56.03. And as this Court observed in Hilltop Basic Resources, Inc. v.
County of Boone:
since zoning determinations are purely the responsibility
and function of the legislative branch of government,
such determinations are not subject to review by the
judiciary except for the limited purpose of considering
whether such determinations are arbitrary. [American
Beauty Homes Corp. v. Louisville & Jefferson County
Planning & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky.
1964))]. Arbitrariness review is limited to the
consideration of three basic questions: (1) whether an
action was taken in excess of granted powers, (2)
whether affected parties were afforded procedural due
process, and (3) whether determinations are supported by
substantial evidentiary support. Id.2
Kentucky Rules of Civil Procedure.
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180 S.W.3d 464, 467 (Ky. 2005). “Substantial evidence means evidence
that is sufficient to induce conviction in the minds of reasonable people.” Smith v.
Teachers’ Ret. Sys. of Kentucky, 515 S.W.3d 672, 675 (Ky. App. 2017) (citation
omitted).
However, decision makers are not free to be
biased or prejudicial when performing nonjudicial
functions. To the contrary, any bias or prejudicial
conduct which demonstrates “malice, fraud,
or corruption” is expressly prohibited as
arbitrary. [National-Southwire Aluminum v. Big
Rivers Elec. Corp., 785 S.W.2d 503, 515 (Ky.
App. 1990)]. Furthermore, decisions tainted by
conflicts of interest or blatant favoritism are also
prohibited as arbitrary. See [City of Louisville v.
McDonald, 470 S.W.2d 173, 177 (Ky. 1971)].
Hilltop Basic Res., Inc., 180 S.W.3d at 469. With these standards in mind, we turn
to the facts of the present case.
ANALYSIS
To be clear, there are two separate issues here concerning the
Property: 1) the annexation; and 2) the amendment of the Comprehensive Plan.
Before we address these matters, however, we must first dispense with the City’s
argument that Appellants failed to timely appeal from the Planning Commission’s
determinations. See KRS 100.347. The City did not cross-appeal on this issue.
Therefore, it is not properly before this Court. Without the authority to review that
issue, we now proceed to the remaining justiciable claims.
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We begin with the argument raised by Appellant-Paynes Mill
Committee Inc., et al., that the circuit court erroneously determined Appellants
lacked standing to contest the annexation.
Pursuant to KRS 81A.420, those in the area to be
annexed who are resident voters or property owners
have standing to contest annexation. Also, a taxpayer
who does not vote or own property in the area to be
annexed but who does live in the municipality that is
seeking the annexation has standing “if he shows that he
is being personally, substantially and adversely affected
by the annexation, and that the damage to himself is
different in character from that sustained by the public
generally.”
Fourroux v. City of Shepherdsville, 148 S.W.3d 303, 306 (Ky. App. 2004) (citing
King v. City of Corbin, 535 S.W.2d 85, 86 (Ky. 1976)). In its summary judgment
order, the circuit court cited to its judicial predecessor’s order granting the City’s
motion to dismiss due to lack of standing. That prior order states in relevant part
as follows: “In this case, none of the [Appellants] claim to reside or own property
in the area that was annexed or live in the city limits of the City of Versailles.
According to statutory and case law, one of these requirements must be met prior
to any showing of the adverse effect of the annexation.” Similarly, Appellants
have not provided this Court direct evidence challenging the circuit court’s
findings pursuant to Fourroux. Therefore, we cannot conclude that the circuit
court erred in dismissing Appellants’ challenge to the City’s annexation.
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Appellants further argue that the changes to the Comprehensive Plan
violated the “research” requirement of KRS 100.191. In support they cite to Hines
v. Pinchback-Halloran Volkswagen, Inc:
A comprehensive plan cannot be adopted by
the Planning Commission without compliance with
the research requirements of KRS 100.191 and the
holding of a public hearing as required by KRS
100.197. The procedure for amendment of the
comprehensive plan is the same as for the adoption
of the original plan. KRS 100.197.
513 S.W.2d 492, 493 (Ky. 1974).3
However, KRS 100.197(1), provides in relevant part that, when
zoning authority amends or readopts a Comprehensive Plan, “[i]t shall not be
necessary to conduct a comprehensive review of the research done at the time of
the original adoption pursuant to KRS 100.191, when the commission finds that the
original research is still valid. ” (Emphasis added.) In its findings of facts in
support of amending the 2011 Comprehensive Plan, the Planning Commission
specifically determined “the required research that was done pursuant to KRS
100.191 and which was the basis for the adoption of the 2011 Comprehensive Plan
remains valid for the purposes of making the requested amendment.” Therefore,
3
See also 3A Robert W. Keats, Comprehensive plan – Periodic review, Ky. Prac. Real Estate
Transactions § 28:16 n.2 (citing Hines, 513 S.W.2d 492; and Jessamine Cnty. Fiscal Ct. v.
Sternberg, No. 2002-CA-000286-MR, 2003 WL 21480267, at *2 (Ky. App. Jun. 27, 2003)).
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the exception to the research requirement provided in KRS 100.197 has been
satisfied here.
The present record contains many documents memorializing the
extensive process that unfolded before the Planning Commission, City Council,
and the Woodford Circuit Court – each of which either approved or affirmed the
planning and zoning decisions at issue here. We are not the entity most apprised of
the uniquely local concerns underlying the present case. Rather, this Court is
charged with determining whether these legislative decisions were arbitrary. For
the foregoing reasons, we conclude that they are not. See Hilltop, 180 S.W.3d at
469 (internal quotation marks omitted) (“At its core, arbitrariness review is
concerned primarily with the product [of legislative or administrative action], and
not with the motive or method which produced it.”).
Similarly, we cannot conclude that Appellants were denied due
process. Id. (internal quotation marks and citation omitted) (“The fundamental
requirement of procedural due process is simply that all affected parties be given
the opportunity to be heard at a meaningful time and in a meaningful manner.”).
Nothing has been presented to the Court indicating that the underlying decisions
failed to comply with the requisite statutory directives, lacked reasonable
consideration, or lacked public discourse. They were certainly not arbitrary. Any
remaining arguments not specifically addressed herein either lack a sufficient basis
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for further discussion, or are otherwise unpersuasive. Therefore, we affirm the
circuit court.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEFS FOR APPELLEES:
Christopher M. Clendenen T. Bruce Simpson, Jr.
Lexington, Kentucky Lexington, Kentucky
W. Henry Graddy, IV. Preston C. Worley
Dorothy T. Rush Lexington, Kentucky
Versailles, Kentucky
William K. Moore
Versailles, Kentucky
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