Posted by: Patricia Salkin | April 15, 2017

District Court of Kentucky Denies Takings Claims Related to Unpaved Public Street

The Plaintiffs, Gary and Jennifer Hunter, owned property abutting a 100-foot undeveloped stretch of Jillian Court on the north. To the west of the Hunters’ property was 13 acres of undeveloped land which Defendant JAYSAC Company, LLC purchased in 2014. Prior to that purchase, the City of Highland Heights Planning and Zoning Committee voted to allow the 100-foot unpaved grass portion of Jillian Court “to be treated as a driveway unless there are more than two lots developed, in which case it would have to be developed as a public right-of-way according to the City’s subdivision regulations.”

The court found that use of the term “driveway” was an erroneous characterization, as the area in question remained an unpaved street. When Plaintiffs and their neighbors became upset with JAYSAC accessing its 13 acres by crossing the 100-foot unpaved section of Jillian Court, they filed open records requests and drafted a signed petition asking City officials to either create a cul-de-sac or other turnaround at the end of Jillian Court or leave it in its current grass form. In response, the City spent $9,369.69, and JAYSAC spent some of its own money, to extend the paved portion of Jillian Court by 10 feet, add a drainage area at the end of the street, remove bushes and trees, add dirt and level the unpaved portion of the street, plant grass, and place a temporary block at the end of the paved portion to prevent vehicles from driving on the freshly planted grass. The Plaintiffs then filed this action under 42 U.S.C.A. § 1983 alleging violations of the Fifth and Fourteenth Amendments, along with two Kentucky state law claims and a claim for declaratory relief.

Here, the original plat map for the subdivision indicated that this area was a City street. Even though City of Highland Heights employees referred to this area as a “driveway,” the record demonstrated that the City of Highland Heights maintained the stretch as an unpaved public street, which JAYSAC or any person was free to use. For the street to have been closed, the City would have had to bring an action under KRS 82.405. This action was never filed, nor did the City cut off access to the unpaved portion to create an informal closure. As such, a taking never took place. The Court then dismissed the remaining state law claims without prejudice. Hunter v. City of Highland Heights Jaysac Company, LLC, 2017 WL 1028568 (2017) Court of Appeals of Kentucky Holds Failure to Name Property Owner was a Fatal Omission to Complaint

In 2014, AT & T filed for permission to construct a cell phone tower in a neighborhood zoned as B–1 (Neighborhood Business). Pursuant to Kentucky Revised Statute (KRS) 100.9865(12), contiguous landowners and landowners within 500 feet of the proposed tower were duly notified of the application. The Hill ‘N Dale Neighborhood Association (of which Carlin Robbins and Rebecca Lutz are members) opposed the tower as inappropriate, unnecessary, and damaging to property values. The Planning Commission approved the cell tower application, and the Circuit Court affirmed. In this case, Robbins and Lutz appealed from the opinion and order of the Fayette Circuit Court dismissing their claim against the Lexington–Fayette Urban County Planning Commission and New Cingular Wireless, PCS, LLC d/b/a AT & T Mobility. Robbins and Lutz first contended that the circuit court erred in holding that KRS 100.987 did not provide for an independent grant of authority to appeal separate and apart from KRS 100.347. Here, Robbins and Lutz conceded that KRS 100.347(2) conferred jurisdiction and venue in Fayette Circuit Court but dispute that the procedural requirements of KRS 100.347(2) must be followed to vest jurisdiction, and that there were no procedural requirements set forth in KRS 100.987. Moreover, the court found that Robbins and Lutz were aware prior to or at the Planning Commission hearing of the property owner’s identity, yet they chose not to name the owner as a party to the complaint or appeal filed 30 days later. The court held that this omission was fatal to their cause of action.

Robbins and Lutz next argued that the trial court erred in not granting leave to amend their complaint to include the property owner. They cited CR 19.01 in support of this argument, but the court found that the civil rules did not apply in this type of litigation until after the appeal had been perfected. Here, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to dismiss the appeal for want of jurisdiction. Accordingly, the order of the Fayette Circuit Court was affirmed.

Robbins v. Lexington-Fayette Urban County Planning Commission, 2017 WL 1034493 (2017)


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