Zoning Approval For Western Kentucky Strip Mine Is Challenged

COMMONWEALTH OF KENTUCKY
DAVIESS CIRCUIT COURT
DIVISION NO. ___
CIVIL ACTION NO. _________

ROBERT HUXOL

DAVID EGGERS

CORNELIUS ?NEAL” VAN MILLIGAN

CURTIS WHISTLE

CARLIN GREGORY

PLAINTIFFS/APPELLANTS

v.

DAVIESS COUNTY FISCAL COURT

and

OWENSBORO METROPOLITAN PLANNING COMMISSION

and

RUBY JEAN HITCHCOCK REVOCABLE LIVING TRUST
and
REGINA VANOVER
and
CLARA THOMPSON ESTATE
and
ANNA FAYE BELCHER
and
MILDRED TAYLOR JOHNSON HEIRS
and
LINDLEY K. TAYLOR
and
HORRELL C. and MINGA TROGDLEN, JR.
and
DOROTHY H. TROGDLEN AND HORRELL C. TROGDLEN, Sr.
and
TILFORD THOMPSON
and
STEVE AND KAREN DIANA THOMPSON
and
TROY AND MARCIE VANOVER
and
SHIRLEY G. AND CHRIS TAYLOR
and
GLEN YEISER
and
WESTERN KENTUCKY LEASING, LLC
and
CHARLES AND DONNA STEWART
and
WESTERN KENTUCKY MINERALS, INC.

DEFENDANTS/APPELLEES

* * * * * * *

APPEAL AND COMPLAINT
PURSUANT TO KRS 100.347

* * * * * * *

Come the Plaintiffs/Appellants (hereinafter “Plaintiffs”), by and through counsel, and for their complaint and appeal states as follows:

INTRODUCTION

1. This appeal arises under the provisions of KRS 100.347, which vests the Circuit Court for the county in which the subject property is located, with jurisdiction over appeals from any final legislative action concerning the rezoning of property. Here, the Plaintiffs challenges the final action of the Daviess County Fiscal Court in adopting and approving a recommendation of the Owensboro Metropolitan Planning Commission to change the zoning classification of the properties located in Daviess County, Kentucky at 3100, 3570, 3574 and 3580 Girl Scout Road; 2895, 3031, 3035, 3139, 3300, 3484, and 3515 Russell Road; and 11300, 11440 US Highway 231 from A-U Urban Agriculture and A-R Rural Agriculture to EX-1 Coal Mining.

JURISDICTION AND PARTIES

2. This action arises under the provisions of KRS 100.347, which provides in relevant part that:

(3) Any person or entity claiming to be injured or aggrieved by any final action of the legislative body of any city, county, consolidated local government, or urban-county government, relating to a map amendment shall appeal from the action to the Circuit Court of the county in which the property, which is the subject of the map amendment, lies. Such appeal shall be taken within thirty (30) days after the final action of the legislative body. All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review. The legislative body shall be a party in any such appeal filed in the Circuit Court.

3. This appeal is timely filed, since the final action of the legislative body complained of was taken on August 2, 2012, when the recommendation of the Owensboro Metropolitan Planning Commission to rezone the subject properties was adopted and approved by the Daviess County Fiscal Court. Under KRS 100.347(5), a “final action” is deemed to occur “on the calendar date when the vote is taken to approve or disapprove the matter pending before the body.”

4. Dr. Robert Huxol is a person injured or aggrieved by the final legislative action complained of herein, within the meaning of KRS 100.347(3). Dr. Robert Huxol is a property owner residing on property located near the properties that were rezoned to allow the proposed surface coal mining operation, and will be aggrieved and adversely affected, and injured in his peaceful use and enjoyment of his property by additional traffic, noise, dust, and other changes to his neighborhood and use and enjoyment of his property attendant the zoning change. The zoning change would allow for more intensive use than would have been permissible under the former zoning classification.

5. Dr. David Eggers is a person injured or aggrieved by the final legislative action complained of herein, within the meaning of KRS 100.347(3). Dr. Eggers is a property owner residing on property located near the properties that were rezoned to allow the proposed surface coal mining operation, and will be aggrieved and adversely affected, and injured in his peaceful use and enjoyment of his property by additional traffic, noise, dust, and other changes to his neighborhood and use and enjoyment of his property attendant the zoning change. The zoning change would allow for more intensive use than would have been permissible under the former zoning classification.

6. Cornelius “Neal” Van Milligan is a person injured or aggrieved by the final legislative action complained of herein, within the meaning of KRS 100.347(3). Mr. Van Milligan is a property owner residing on property located near the properties that were rezoned to allow the proposed surface coal mining operation, and will be aggrieved and adversely affected, and injured in his peaceful use and enjoyment of his property by additional traffic, noise, dust, and other changes to his neighborhood and use and enjoyment of his property attendant the zoning change. The zoning change would allow for more intensive use than would have been permissible under the former zoning classification.

7. Curtis Whistle is a person injured or aggrieved by the final legislative action complained of herein, within the meaning of KRS 100.347(3). Mr. Whistle is a property owner residing on property located near the properties that were rezoned to allow the proposed surface coal mining operation, and will be aggrieved and adversely affected, and injured in his peaceful use and enjoyment of his property by additional traffic, noise, dust, and other changes to his neighborhood and use and enjoyment of his property attendant the zoning change. The zoning change would allow for more intensive use than would have been permissible under the former zoning classification.

8. Carlin Gregory is a person injured or aggrieved by the final legislative action complained of herein, within the meaning of KRS 100.347(3). Mr. Gregory is a property owner residing on property located near the properties that were rezoned to allow the proposed surface coal mining operation, and will be aggrieved and adversely affected, and injured in his peaceful use and enjoyment of his property by additional traffic, noise, dust, and other changes to his neighborhood and use and enjoyment of his property attendant the zoning change. The zoning change would allow for more intensive use than would have been permissible under the former zoning classification.

9. The Daviess County Fiscal Court (hereinafter, “Fiscal Court”) is named as a defendant/appellee pursuant to KRS 100.347(3), which states that the “legislative body shall be a party in any such appeal filed in the Circuit Court.” The Daviess County Fiscal Court is the legislative body that voted to approve recommendation of the Owensboro Metropolitan Planning Commission for the zoning change at a meeting of the Fiscal Court on August 2, 2012.

10. Owensboro Metropolitan Planning Commission (Planning Commission) is named as a defendant/appellee as the entity that recommended the zoning change to the Fiscal Court in violation of Article 2 of the Kentucky Constitution, which prohibits arbitrary government action.

11. Ruby Jean Hitchcock Trust, Clara Thompson Estate, Steve and Karen Diana Thompson, Horrell C. and Minga Trogdlen, Troy and Marcie Vanover, Regina Vanover, Glen Yeiser, Shirley G. and Chris Taylor, Western Kentucky Leasing, LLC., Charles and Donna Stewart, Lindley K. Taylor, Anna Faye Belcher, Mildred Taylor Johnson Estate, and Horrell C. Sr. and Dorothy Trogdlen are named as defendants/appellees pursuant to KRS 100.347(4) because they are identified in the May 10, 2012 Staff Report as owners of properties that were rezoned through the action on August 2, 2012 of the Daviess County Fiscal Court, and because they are listed as applicants for the zoning change that is the subject of this complaint.

12. Western Kentucky Minerals, Inc. is listed as a defendant/appellee as an applicant for the zoning change that is the subject of this complaint.

STATEMENT OF FACTS

13. On August 2, 2012, the Daviess County Fiscal Court, adopted, and approved the findings and recommendation of the Owensboro Metropolitan Planning Commission to change the zoning of the properties located at 3100, 3570, 3574 and 3580 Girl Scout Road, 2895, 3031, 3035, 3139, 3300, 3484, and 3515 Russell Road, and 11300 and 11440 US Highway 231” in Daviess County, Kentucky from A-U Urban Agriculture and A-R Rural Agriculture to EX-1 Coal Mining.

14. The findings and recommendations of the Planning Commission were those adopted by the Planning Commission at a May 10, 2012 Planning Commission meeting. After the conclusion of the public hearing, the Planning Commission voted to recommend rezoning the subject properties based on “findings” announced by Commissioner and Vice Chair, Ward Pedley that were not based on evidence in the record before the Commission, and additionally adopted the “findings” and recommendations developed by the Staff and included in the Staff Report.

GROUNDS FOR APPEAL

COUNT I: THE DECISION TO APPROVE THE REQUESTED ZONING MAP AMENDMENT WAS ARBITRARY, CAPRICIOUS, AND OTHERWISE INCONSISTENT WITH LAW SINCE NEITHER THE PLANNING COMMISSION NOR THE DAVIESS COUNTY FISCAL COURT PROVIDED SUFFICIENT FINDINGS OF FACT BASED ON THE RECORD BEFORE THE COMMISSION TO SUPPORT THE DECISION TO APPROVE REZONING OF THE SUBJECT PROPERTIES

15. KRS 100.213 outlines the legal findings required by a legislative body to justify approval of a zoning map amendment. The statute requires that before granting a map amendment, the legislative body must:

find that the map amendment is in agreement with the adopted comprehensive plan, or in the absence of such finding, that one (1) or more of the following apply and such finding shall be recorded in the minutes and records of the planning commission or the legislative body or fiscal court:

(a) That the existing zoning classification given to the property is inappropriate and that the proposed zoning classification is appropriate;

(b) That there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated in the adopted comprehensive plan and which have substantially altered the basic character of such area.

16. The standard for judicial review of actions of a legislative body approving a request for a zoning map amendment is that generally applicable to judicial review of actions involving planning and zoning, and asks whether the body acted arbitrarily. In determining arbitrariness, three factors are considered: 1) did the administrative agency act within its statutory powers; 2) was due process afforded; and 3) was the decision reached supported by and based on substantial evidence in the record?

17. In this case, the final action of the legislative body adopting the findings and recommendation of the Planning Commission and approving the requested zoning change was arbitrary, capricious, and otherwise inconsistent with law for two reasons relating to the “findings” adopted by the Planning Commission and subsequently by the Fiscal Court:

a. The Planning Commission failed to provide specific and legally sufficient findings of adjudicative fact to support the conclusion that the statutory criteria for a map amendment (zoning change) had been met. The decision of the Planning Commission was grounded on the “findings of fact” contained in the Staff Report, and additional “findings” enunciated by Commissioner Pedley verbally during the May 10, 2012 Hearing. The Staff Report “findings of fact” failed to include sufficient findings of fact regarding the compliance of the proposed rezoning with many of the elements of the adopted Comprehensive Plan, and instead restated the legal conclusion that the proposal “is in compliance with the community’s adopted Comprehensive Plan” without addressing numerous specific Comprehensive Plan provisions compliance with which had been challenged in public comments.

The decision of the Daviess County Fiscal Court to approve rezoning of the property rested on the recommendation of the Planning Commission, which based the recommendation on the “findings” voiced by Commissioner Pedley and on the Staff Report prepared for the May 10, 2012 hearing, which were adopted in their entirety. The recommendation was grounded not on the legal standards and adjudicative facts satisfying KRS 100.213(a) or (b), but instead on the Staff “finding of fact” that the approval was in compliance with the “community’s adopted Comprehensive Plan.”

In truth, the rezoning request was inconsistent with a number of the Goals and Objectives of the Comprehensive Plan, yet the Staff Report failed to address these and to include sufficient adjudicative facts demonstrating compliance with these aspects of the Comprehensive Plan. These include, among others:

* 4.1.1. Allocate wisely the use of land for various activities by encouraging sound land development policies.

* 4.1.1.1 Use the fixed amount of land in Daviess County as wisely and sparingly as possible.

* 4 1.1.2 Group activities so that uses of greater intensity (industrial or commercial) do not harm weaker types (residential and agricultural)

4.1.3 Protect our rural areas from intrusion by incompatible urban activities by encouraging growth in the Urban Service Area and Rural Communities.

4.1.3.1 Minimize impact on fragile lands-prime agriculture, flood plains, etc.

The lack of specific and adequate findings of fact to support the legal conclusion of compliance with all of the applicable provisions of the Comprehensive Plan renders the Planning Commission’s recommendation insufficient and arbitrary. By adopting and approving the findings and recommendation of the Planning Commission as the basis for its decision to approve the rezoning, the Fiscal Court acted in a manner that was arbitrary and inconsistent with law.

b. The Planning Commission recommendation was also grounded in the verbal “findings” enunciated by Commissioner Pedley, who made the motion to approve the rezoning request. Due process demands that all actions to approve a rezoning request are taken on the "basis of a record and on the basis of substantial evidence." Here, the recommendations of the Planning Commission did not rest on the basis of a record, but instead rested in large part on a number of independent investigations, observations and opinions of this single Commissioner that were absolutely outside of the record, not subject to cross-examination, and not even marginally related to the statutory criteria necessary to support a rezoning. The wholesale adoption of these recommendations as the basis for the approval decision by the Fiscal Court was likewise tainted, since the Fiscal Court decided not to hold a separate due process hearing.

It is axiomatic that legislative findings that are grounded in “facts” and “evidence” developed outside of the record and not introduced into the record, and which are not subject to cross-examination, cannot be used to justify a recommendation for rezoning. The total lack of ability for concerned parties to challenge the “facts” asserted by Commissioner Pedley, the lack of opportunity for cross-examination of those “facts,” and the failure to confine the “findings of fact” to evidence presented in the record before the Commission that is relevant to and consistent with the legal findings required by law, demands that the decision be voided and the recommendation for rezoning rejected. The reliance by the Planning Commission on these “findings” in deciding to recommend rezoning unquestionably tainted the decision making process and rendered the resulting recommendation arbitrary as being inconsistent with the due process rights of the participants. The blanket adoption of such tainted findings to support the Fiscal Court decision renders that decision constitutionally deficient, and demands that the decision be reversed.

COUNT II. THE FISCAL COURT ACTED IN A MANNER THAT IS ARBITRARY, CAPRICIOUS AND OTHERWISE INCONSISTENT WITH LAW IN THAT THE DECISION TO APPROVE THE REZONING RESTED ON A HEARING CONDUCTED BY THE OWENSBORO METROPOLITAN ZONING COMMISSION THAT FAILED TO PROVIDE DUE PROCESS TO INDIVIDUALS SEEKING TO COMMENT IN OPPOSITION TO THE PROPOSED REZONING

A. THE PLANNING COMMISSION IMPOSED AN ARBITRARY LIMITATION ON
PUBLIC COMMENT LENGTH THAT PREVENTED AFFECTED INDIVIDUALS FROM BEING ACCORDED A MEANINGFUL OPPORTUNITY TO BE HEARD AND TO EXAMINE THE WITNESSES AND EVIDENCE

18. Under Kentucky law, participants in a zoning case before a Planning Commission are entitled to procedural due process, which has been defined in this context to include “a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence[.]” Morris v. City of Catlettsburg, 437 S.W. 2d 753, 755; City of Louisville v. McDonald, 470 S.W. 2d 173. An administrative proceeding that affects a party’s rights but does not afford a meaningful opportunity to be heard is “arbitrary” under Kentucky law.

19. In the instant case, the Planning Commission was asked to recommend rezoning approximately 692 acres (an initial request, later withdrawn by the applicant, was for approximately 385 acres) of rural residential and agricultural land in order to allow it to strip mine the property. Given the withdrawal of the prior application, the second request to rezone 692 acres was a “new” application, thus triggering all rights, duties and obligations granted/afforded by statute and the Kentucky Constitution. Prior to the Planning Commission hearing on May 10, 2012, a newspaper article in the Messenger-Inquirer stated that the OMPC intended to limit each citizen to three (3) minutes to voice their concerns concerning the new rezoning request. This limitation was also announced on the record at the hearing on May 10, 2012 by Planning Commission Chairman Drew Kirkland (Transcript of May 10, 2012 Hearing at p. 5, hereinafter, “TR” and the hearing date and page number).

20. The limitation on the public’s ability to speak began with the first witness, Mr. Scott Hester. In the middle of making a point regarding the Planning Staff’s recommendation based upon the Comprehensive Plan, he was interrupted by Chairman Kirkland, and while Mr. Hester continued to object and reiterate he had questions of a legal nature and regarding the Staff interpretation of the Comprehensive Plan, Mr. Kirkland interjected, “Sir, I’m sorry. We stated in public to the public, each person will have three minutes of chance.” (Tr. 5/10/2012, p. 18) Mr. Hester continued to try to make his point, but he was continually interrupted and “told” that his questions, which had not been stated yet, would be answered. Id. After Chairman Kirkland called Mr. Brian Howard of the Planning Staff to the stand to respond to what he thought Mr. Hester’s questions were, Mr. Hester asked if he could make “one point” and was cut off, mid-sentence, when the chairman stated, “No, Sir, you have exceeded your three minute time. Please be seated.” Id. at 22.

21. The imposition of the artificial limitation had a chilling effect on the participation of residents affected by the proposed rezoning, and on their ability to present information bearing on the question of rezoning. The application, which followed a prior application to rezone a much smaller area and had been withdrawn, was a new request that including significant new areas and affected additional land owners. The failure to allow each affected or potentially affected person full and fair opportunity to speak and to address the evidence in the record violated the due process rights of the public and requires reversal of the Fiscal Court decision, which was grounded on recommendations developed on this flawed record.

B. THE PLANNING COMMISSION FAILED TO PROVIDE AN OPPORTUNITY
TO BE HEARD TO MANY DAVIESS COUNTY RESIDENTS BY SCHEDULING A MEETING AT A TIME INCONVENIENT TO WORKING RESIDENTS, AND BY LOCKING THE DOORS TO THE HEARING LOCATION

22. The Planning Commission set the zoning hearing in this matter for 5:30 p.m. CST. The property owners in Daviess County who would be affected by the proposed rezoning live in the Pleasant Ridge area of Daviess County, some 25-30 minutes from the location of the hearing without traffic, and longer when there is traffic and when parking is difficult to find near the City Hall.

23. The doors of City Hall were locked at 5:30 and no additional witnesses, citizens, onlookers, and/or interested parties could come into the “public” hearing after that time. In order to have a meaningful “opportunity to be heard”, one must have an “opportunity to be present.” This failure to allow access to the hearing after the beginning of hearing was inconsistent with due process, and constitutes arbitrary government action in violation of law.

COUNT III. THE ACTION OF THE DAVIESS COUNTY FISCAL COURT WAS
ARBITRARY SINCE THE FISCAL COURT HELD AN “ARGUMENT” TYPE OF
HEARING IN WHICH IT ADMITTED NEW EVIDENCE THAT WAS NOT PART OF
THE HEARING RECORD, AND FOR WHICH THERE WAS NO PUBLIC OPPORTUNITY
TO CHALLENGE THE EVIDENCE.

24. The Daviess County Fiscal Court opted neither to hold a hearing nor to limit consideration of the rezoning request to the record developed before the Planning Commission. Instead, the Court took an approach that is not consistent with the case law regarding procedural due process in the context of zoning cases, described by Fiscal Court counsel as follows:

"At this hearing what the court can do, it has a couple of options. It can either accept the Planning Commission’s recommendations with an argument type hearing. That is a review of the Planning Commission’s recommendations and find that the Planning Commission’s recommendations comply with the Comprehensive Plan. From
reviewing the record, they can make no other findings of fact that would support an alternate finding.

They can accept or approve the recommendation of the Planning Commission with an argument type hearing, which is what we plan to do tonight. The Court will listen to and hear arguments from persons. I will go over those. If you were at the hearing on May 10th, at least allow those persons to make comments. The other option that the court has is to review the planning commission’s records and to determine from the record other facts which would differ from the Planning Commission’s facts and which would support an alternate findings. The third option is that we could hold out own trial type of hearing, which the court elected not to do."

Tr. July 19, 2012 Hearing, pp. 15-16.

In addition to hearing “argument,” a number of new statements of alleged fact were introduced that were not provided in the record before the Planning Commission, and which were not subject to cross-examination before the Fiscal Court. Absent a full due process hearing, the Fiscal Court should not have entertained additional “argument” or presentation of facts by any party, and should have confined the review to the record developed before the Planning Commission.

25. For this reason, the decision of the Fiscal Court is arbitrary, capricious and inconsistent with law.

PRAYER FOR RELIEF

WHEREFORE, for the reasons stated herein, Appellants/Plaintiffs respectfully request that this Court:

(1) Accept jurisdiction over this complaint and appeal;

(2) Enter an Order setting aside the August 2, 2012 action of the Fiscal Court approving the findings and recommendations of the Planning Commission to rezone the subject property from urban agriculture and rural agriculture to coal mining use, as being arbitrary, capricious, and otherwise inconsistent with law;

(3) Voiding the change in zoning for the affected properties and restoring the zoning classifications that existed before the August 2, 2012 Fiscal Court action; and

(4) For any and all other relief to which the Plaintiffs/Appellants may appear entitled.

Respectfully submitted,

Kent Overstreet
OVERSTREET LAW OFFICES, P.L.L.C.
214 West Third Street
Owensboro, Kentucky 42303
Telephone (270) 686-8320
Fax (270) 686-8351

Thomas J. FitzGerald
Kentucky Resources Council, Inc.
P.O. Box 1070
Frankfort, Kentucky 40602
(502) 875-2428
(502) 875-2845 fax
KY Bar # 22370

Counsel for Plaintiffs/Appellants

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