Posted by: Patricia Salkin | September 17, 2017

KY Appeals Court Holds Owners Could Not Assert Private Cause of Action Based on Alleged Violation of Ordinance and Setback Variance

Hugh Herndon and Jeannie Castleberry Herndon, his wife appealed from an order granting Defendants’ Motion for Summary Judgment by the Circuit Court in favor of appellees, James Wilson and Jane Wilson, his wife. The Wilsons applied to the Grant County Board of Adjustment for a variance permit to build a new house on their property, reducing the normal side yard setback from 20 feet to 10 feet. The Wilsons constructed the house on their property and the Grant County Building Inspector issued an occupancy permit in 2009. In April 2010, the Herndons initiated this action against the Wilsons in the Grant Circuit Court, alleging that the Wilsons’ house was constructed inside the 10-foot side yard setback line adjacent to their property in violation of the variance.

Rather than seeking injunctive relief, the Herndons filed a separate legal action for damages for alleged injury to their real estate by virtue of the Wilsons’ actions on their adjoining property. By virtue of this, the court determined that the Herndons were not entitled to assert any claims for damages directly related to the Zoning Ordinance or the variance. The Herndon’s inverse trespass claim was also found to be properly dismissed since no cause of action had been recognized in Kentucky for inverse trespass. Additionally, the court held that the Herndons failed to state their allegation of fraud with the requisite particularity under CR 9.02.

The court next found that under Kentucky law, the Herndons failure to label the Wilsons’ alleged conduct as a nuisance, as opposed to a trespass, did not defeat the claim as long as the allegations of fact sufficiently plead the cause of action. Here, the question of whether the Wilsons had unreasonably diverted water onto the Herndon property and caused damages was a disputed issue of fact based on the record before the court. Additionally, the unrefuted allegations that the Wilsons impeded the Herndons’ quiet and peaceful use and enjoyment of their property was an element of a private nuisance claim. Because these questions of fact existed, the court reversed the grant of summary judgement on this claim.

Herndon v Wilson, 524 SW 3d 490 (KY App. 5/19/2017)

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