Opening Brief Filed In Challenge To City's After-The-Fact Condemnation Of Land Where A Private Sewer Line Was Illegally Installed

Opening Brief Filed In Challenge To City's After-The-Fact Condemnation Of Land Where A Private Sewer Line Was Illegally Installed  Posted: October 16, 2008
STATEMENT OF THE CASE

On November 2, 2006, the Kentucky Division of Water issued a Notice of Violation to Wheeler Subdivision of 3105 Indian Run Road in Flatwoods, Kentucky, advising the company that it was in violation of 401 KAR 5:005 Section 24(2), which required that sewer facilities be ?constructed and tested in accordance with the approved plans and specifications[.]” 401 KAR 5:005 Section 24(b)1 requires that “[t]here shall be no deviations from the plans and specifications submitted[.]” According to the Notice of Violation, the sewer line was incorrectly placed, and the Wheeler Subdivision was ordered to undertake these remedial measures:

(1) The permittee must stop using the sewer line and either abandon it in place or move it to a different location off Mr. Cliff Wilburn’s property within the next 60 days. Installing a new line or moving the existing line needs to conform to the requirements of regulation 401 KAR 5:005 covering permits to construct, modify or operate a facility.

(2) The permittee shall submit plans and specifications and other supporting documents to demonstrate to the Division of Water the new line is designed in accordance with the requirements of regulation 401 KAR 5:005, including the “Recommended Standards for Wastewater facilities” (known as the Ten States Standards).

(3) Prior to the issuance of the Construction Permit, it is required that the permittee supply proper documentation to DOW relating to all necessary property easements, should the proposed new sewer line cross any property not otherwise owned by the permittee. [401 KAR 5:005 Section 24(2)].

A copy of the Notice of Violation was attached to the Answer filed in this action by the Wilburns on November 6, 2006, and that Answer and Notice of Violation is annexed hereto as Appendix 1.

On November 15, 2006, the City of Flatwoods filed a Complaint against Cliff and Judy Wilburn pursuant to K.R.S. 58.010, 58.014 and 416.540, et seq., seeking a “permanent easement” over a portion of the Wilburn property. According to the Complaint, at numerical paragraph 3, the easement required by the City was as follows:

Beginning at a point in the easterly right-of-way line of Georgia Avenue, said point being located North 13O – 33’ – 00” East, 9.74 ft. from the common boundary corner of Lot Nos.15 and 16 of the South Beachland Subdivision, in Flatwoods, Greenup County, Kentucky; thence in a southeast direction with the center line of Sanitary Sewer Line “A” for a distance of 16.84 ft. to a point in the southerly boundary line of Lot No. 16, said point being located South 76o – 27’ – 00” East, 13.74 ft. from the southwest corner of said lot, where the construction of Sanitary Sewer Line “A” leave the Grantor’s land and containing 172 square feet, more or less, and as shown on the Sanitary Construction Drawing prepared by Sisler-Maggard Engineering, PLLC, Project No.A-4014, dated May 6, 2004, and as revised on August 15, 2006.

Complaint, pp. 1-2.

According to the Complaint, the City of Flatwoods “intended to condemn an easement over said real property for the use of a gravity-flow sewer line, which will be owned, managed and maintained by the City of Flatwoods, Kentucky, a public entity.” Id., p. 2, Num. Para. 4.

On December 6, 2006, Cliff and Judy Wilburn, acting pro se, answered the Complaint, arguing that “[t]here is no merit for eminent domain in this case. It is being sought for the benefit of a private developer only. The state of KY has already ruled on this matter. There would be no advantage to the City of Flatwoods or the public to not have the State’s order carried out.” Answer, December 6, 2006, p. 2.

Among the specific objections noted by the Wilburns in their Answer were that: The City of Flatwoods is asking the Court to impose eminent domain on my property because a private developer illegally installed a sewer line on my property for his private development, [doing the work himself] without my permission or knowledge. The developer was aware of where my property line was. He had a permit from the Ky. Dept. of Water and an easement from my neighbor to install the sewer line 80 feet from where he actually installed it. The sewer line can easily be installed in the original location or multiple others including ones crossing only the developers land.

* * *

Allowing the sewer line to remain active on my property instead of the developer installing the sewer line off my property, like the Ky. Dept of Water has ordered, in no way benefit the City of Flatwoods or the public, this is being done solely for the benefit of the private developer only. The Kentucky Supreme Court ruled in 1979 that the government cannot take private property for private, commercial or industrial development – unless it is blighted and this is a private development and my property is not blighted.

Answer, December 6, 2006, p. 1.

The Answer further objected to the Complaint as being insufficient since the Complaint did not contain allegations “explaining why the City of Flatwoods is entitled to Cliff and Judy Wilburn’s property.” Id.

On November 30, 2006, the City of Flatwoods filed an Amended Verified Complaint, containing the same allegations as the initial Complaint and including a verification from Bobby F. Crager.

On March 7, 2007, the Wilburns filed an Answer To Amended Verified Complaint and Request For Trial By Jury. The late Answer was allowed by a February 21, 2007 Order Plaintiff’s Motion For Judgment.

In the Answer to the Amended Verified Complaint, the Wilburns again put in issue the questions of whether the taking was necessary or for a valid public use, whether the Complaint contained necessary allegations as required under K.R.S. 416.570, and that the taking would not benefit the City or public, but was instead to benefit a private development and engineering firm. A copy of the “Answer to Amended Verified Complaint” is attached as Appendix 2.

On March 23, 2007, a hearing was held before the Circuit Court regarding the exercise of the power of condemnation in this case. The tape of that hearing is included in the record.

A review of the videotape of the March 23, 2007 hearing reflects that Mr. Wilburn argued that the taking of the property would not meet the public use standard. Mr. Wilburn requested that the Court dismiss the Complaint due to a lack of allegations to justify the taking of his property as required by K.R.S. 416.5780, and that the taking does not meet the public use requirement, since whether the line is on his property or where it was supposed to be constructed, there is no benefit to the city or the public. Tape of March 23, 2007 hearing, (hereinafter “Tape”), 9:51:06 a.m.

During the course of the hearing, the Judge noted that “there’s no issue as to the fact that the sewer line is not where it should be.” Tape, 9:54:55 a.m. The Notice of Violation was introduced into evidence by Mr. Wilburn, and Counsel for the City explained to the Court the status of the Notice of Violation: There was a conference held between the developer, his engineer and the state Division of Water. Quite frankly, they’re not concerned about it because once Flatwoods obtains this easement the problem… the permit the state issued does not concern property lines anyway… once this ownership issue is resolved by a judgment of this court that’s gonna end the property….

Tape 9:55:30.

Mr. Wilburn later reiterated his position that there was no public use to support condemnation of his property when the private developer had a permit and easement authorizing the installation on another property:

Whether its on me or on my neighbor it would not benefit the city or the public in any way to leave it on me instead of moving it like the Kentucky Department of Water has ordered it to be done.

Tape; 9:58:08 a.m.

The Court then asked Mr. Wilburn “how can you prove its not for a public purpose? Isn’t it going to serve residents in the subdivision?” Tape, 9:58:50.

Mr. Wilburn responded that: It would serve them if it was in the original location which they have a permit and an easement. It would serve the same amount, so there’s no increase, there’s no benefit to the city to leave it on me. Tape 9:59:01.

At the conclusion of the hearing, the Trial Court paraphrased Mr. Wilburn’s statement as one in which “you’ve admitted that its for a public use – you said it would benefit the public just as much on your property as off your property. So you’ve admitted that its for a public use – you just don’t want it on you.” Tape, 9:59:50 a.m.

Mr. Wilburn replied, “yeah and its illegally on me.” Tape, 10:00:01.

On April 9, 2007, an Interlocutory Judgment was entered in which the Court Ordered and determined that the “Plaintiff has the right, pursuant to the Kentucky Eminent Domain Act, KRC 416.550 et seq. and other applicable law, to condemn the property identified by the attached Exhibit A (the “property”)[.]” Interlocutory Judgment, p. 2, (Attached as Appendix 3.) The Interlocutory Judgment authorized the Plaintiff to take possession of the property on payment of the Commissioner’s award in the amount of $500. Id.

The Interlocutory Judgment noted that “through their Answer, the Defendants were questioning whether or not the taking was for a public purpose.” According to the Interlocutory Judgment, "[t]he Court inquired of Mr. Wilburn whether or not he admitted the taking was for a public purpose. Mr. Wilburn did, in fact, admit that the taking was for a public purpose. With the Wilburns admitting the taking was for a public purpose, there were no further issues for the Court to consider."

Id., p. 1.

A review of the tape and Mr. Wilburn’s statement, in context, reflects that his position was that there was no benefit to the public or City from condemning the property where the sewer line had been illegally installed in order to allow it to stay in place. He consistently maintained before and during the hearing that there was no necessity or public benefit.

On May 12, 2008, a final Order was entered by the Circuit Court granting summary judgment for the Plaintiff and ordering that the Master Commission execute a deed conveying the easement to the Plaintiff. A copy of that Order was attached to the Notice of Appeal and is also attached as Appendix 4.

This appeal followed.

SUMMARY OF ARGUMENT

The invocation by the City of Flatwoods of a power of eminent domain in this case was quintessentially arbitrary, and in clear violation of applicable legal standards. The City of Flatwoods initiated condemnation proceedings to take an easement on the Wilburn property, not out of necessity to install a new sewer line for the public’s use and benefit, but to cure and accommodate a trespass that had occurred on the Wilburn property by a private developer who had previously and unlawfully installed a private sewer line on the Wilburn land despite having an easement and permit to install the line on an adjoining property.

The Trial Court erred as a matter of law in concluding that the City had the right to condemn the Wilburn property for several adequate and independent reasons: first, because the written finding concerning the exercise of the condemnation power was premised on an “public purpose” standard rather than the required public “use” standard; second, because the taking was not for a legitimate public use, but instead to was used belatedly to cure the developer’s trespass; third, because the taking was not necessary since an easement and state permit authorizing construction of the lines within that easement had already been secured on a neighboring property; and finally, because the condemnation action was lacking in the requisite good faith; and was arbitrary government action in violation of the Kentucky Constitution.

STANDARD OF REVIEW

This appeal is limited to the question of whether the trial court correctly applied the legal standards in concluding that taking of an easement on the Wilburn property was justified, necessary and appropriate, and whether the City of Flatwoods satisfied the required legal prerequisites to the use of its eminent domain power. The questions of necessity and justification for a taking are ones of law. McGee v. Williamstown, 308 S.W.2d 795, 796 (Ky. App. 1957) (the need for the taking of land by a municipality is a question of law for the court); Baxter v. Louisville, 6 S.W.2d 1074, 1077 (Ky. 1928) (the necessity of taking private property for public use is a question of law).

When the outcome of a case turns on issues of law, as in the instant matter, appellate review is de novo. Moreover, a question of law is also presented where the relevant facts are undisputed and the issue on appeal becomes the legal effect of those facts. Revenue Cabinet v. Comcast Television, Ky. App. 147 S.W.3d 743 (2004). Whether the City of Flatwoods was entitled to exercise its eminent domain power in this instance, is subject to de novo review by this court since it is a question of application of law to undisputed facts.

ARGUMENT

Eminent domain is the power of a state to take, or authorize the taking of, private property without the owner’s consent, if the property is taken for a public use and just compensation is made to the owner. 26 AM. JUR.2D EMINENT DOMAIN § 2 (2008). The power of eminent domain is limited by the Kentucky Constitution and enactments of the General Assembly. Under the Kentucky Constitution, a taking must be for a “public use” and the condemnee must receive “just compensation.” Ky. Const. §§ 13, 242. Additionally, only the General Assembly can authorize the exercise of the eminent domain power, and while the power may be delegated to municipalities, such as the City of Flatwoods, the power “must be exercised in strict accordance with its essential elements to protect the right of the citizen to own and possess property against an unlawful perversion of such right.” 26 AM. JUR.2D EMINENT DOMAIN §30 (2008); God’s Center Foundation, Inc. v. Lexington Fayette Urban County Government, 125 S.W.3d 295, 299 (Ky. App. 2002).

In every case where the power of eminent domain is invoked, the property must be desired for a “public use” and be reasonably necessary for that use. Proffitt v. Louisville & Jefferson County Metro. Sewer Dist., 850 S.W.2d 852, 854 (Ky. 1993). In addition, the taking cannot be done arbitrarily. Id.

In this case, the City of Flatwoods initiated condemnation proceedings to take an easement on the Wilburn property, not to install a sewer line for the public use, but to allow a sewer line that had been previously and unlawfully installed on the Wilburn property to remain in place. As will be seen, the Trial Court’s approval of the use of the power of eminent domain in this instance was in violation of statutory and constitutional limits in that it failed to make the requisite finding of “public use,” approved the condemnation of the private property despite the lack of necessity for such condemnation; and approved the exercise of the power of eminent domain by a municipality in violation of public policy and in the absence of good faith.

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT TO THE CITY OF FLATWOODS, SINCE THERE WAS NO PUBLIC USE OR NECESSITY TO SUPPORT THE EXERCISE OF EMINENT DOMAIN UNDER KRS CHAPTERS 58 AND 416.

A. The Trial Court Erred As A Matter Of Law In Applying A “Public Purpose” Standard To Justify A Taking By Eminent Domain, And Failed To Make The Required Finding Of “Public Use” To Support The Exercise By The City of Flatwoods Of Eminent Domain Authority.

This issue was properly preserved for review since it was specifically referenced in the Answer to Amended Verified Complaint filed pro se by Mr. Wilburn, as well as at the March 23, 2007 hearing.

Section 13 of the Kentucky Constitution provides, “nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.” Ky. Const. Section 13 (Emphasis added). Kentucky law has historically taken a narrow view of the public use requirement and has refused to expand the definition of public use to accommodate a public purpose. In 1979, the Supreme Court of Kentucky held that the Kentucky Constitution does not recognize the power of eminent domain where the property being condemned will not be used for a public use. City of Owensboro v. McCormick, 581 S.W.2d 3, 7 (Ky. 1979). In that case, the Supreme Court specifically rejected a trial court finding that “public use” and “public purpose” were synonymous: "In our view, the constitutional provisions involved clearly require that finding of “public purpose” does not satisfy the requirement of a finding of 'public use.'"

Id. at p. 11.

A review of the Interlocutory Judgment reflects that the Trial Court finding was that “Mr. Wilburn did, in fact, admit that the taking was for a public purpose.” Id. at p. 1. Similarly, in the final Order, the Court noted that “As such, there is no issue of fact to be decided by the Court at this point, the Court having already previously concluded, based upon the admission of the Defendants, that the taking was for a public purpose.”

Leaving aside, for the moment, the factual question of whether Mr. Wilburn “admitted” that there was a public purpose, the lack of requisite written finding by the Trial Court that the power of eminent domain was being utilized for a public “use” requires that the case be remanded for hearing and appropriate findings on whether the taking would be for a public use.

As a result, the trial court erred in finding that the taking by eminent domain was justified because it served a “public purpose.” Mr. Wilburn, representing himself pro se, argued to the trial court in his answer and in hearings that under McCormick a “public purpose” could not justify a taking, and that only a “public use” could support a taking by eminent domain. See “Answer to Amended Verified Complaint” (March 7, 2007). However, the trial court ignored Mr. Wilburn’s argument, Kentucky case law rejecting the “public purpose” standard, and the Eminent Domain Act, all of which require a “public use,” and instead issued an Interlocutory Judgment and final Order premising the legitimacy of the taking on a finding a “public purpose” and granting the City’s request for condemnation without so much as addressing Mr. Wilburn’s contention that the court was employing an improper standard. As such, the trial court erred as a matter of law in failing to issued a written finding that the taking met the legal requisite of being in furtherance of a “public use” as demanded by Kentucky law.

B. There Was No Necessity For Condemnation Of The Wilburn Property Since The Private Developer Possessed An Easement And Permit To Install The Line On An Adjacent Property

This issue was properly preserved for review through Mr. Wilburn’s assertion, in his Answers to the initial Complaint and Amended Verified Complaint, disputing the necessity for and presence of a public “use” component, in condemning property in order to allow an improperly installed sewer line to remain in place rather than on an easement in the location approved by the state. In every case where the power of eminent domain is invoked, the condemnor must demonstrate that the property sought to be condemned will be reasonably necessary for the public use sought. Riley v. Louisville, 133 S.W. 971, 973 (Ky. 1911); Bowling Green v. Cooksey, 858 S.W.2d 190 (Ky. App. 1992). Additionally, KRS 58.140 requires that the real property sought to be acquired is necessary for the public project. Here, the City’s taking of an easement corresponding to where the Wheeler Subdivision had unlawfully installed a private sewer line on the Wilburn property was not necessary, since Wheeler had already secured an easement and a state permit for placement of the sewer line on an adjoining property. The only “necessity” was that Wheeler was under order to cease using the improperly placed line, and that the condemnation action allowed the illegal installation of the line on the Wilburn property to remain – compounding an action that violated common law and a state-issued permit by garbing it in the mantle of the city’s ownership of the easement.

With respect to eminent domain, necessity means “a reasonable necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owners consistent with such benefit.” God’s Ctr. Foundation v. Lexington-Fayette Urban County Government, 125 S.W.3d 295 (Ky. App. 2002), citing Davidson v. Comm. Ex rel. State Highway Comm., Ky. 61 S.W.2d 34 (Ky. 1933). In considering the necessity of the taking, the Court may look at the motives and reasons for the condemnation. Id., citing Chesapeake & O.R. Co. v. Greenup County, 175 F.2d 169 (6th Cir. 1949). Where the use is overwhelmingly private or plainly without reasonable foundation, a court may overturn a finding of necessity. Id. at 303.

Here, the taking of an easement on the Wilburn’s property was plainly without reasonable foundation and was absolutely unnecessary. Mr. Wheeler had already obtained an easement from a neighboring property owner for construction of the sewer line, and possessed a state permit to do so, but instead illegally and unlawfully installed the same line on the Wilburn property in violation of the construction permit issued by the Division of Water and without first attempting to obtain an easement from Mr. Wilburn. As such, the taking was purely for the private purpose of curing the outstanding permit violation and the Wheeler Subdivision trespass on the Wilburn property, allowing the sewer line to remain in place instead of forcing its abandonment or removal to its appropriate location. There is no reasonable foundation for the taking here, since Mr. Wheeler had already obtained an easement from a neighboring property owner to construct the line and the routing of the line was approved by the Division of Water for that, and only that, location. There is no public necessity for condemning the Wilburn property after-the-fact to allow the sewer in this location as opposed to the originally approved location, and there is a great burden on Mr. Wilburn in that he was forced to give up his property rights in order to accommodate a sewer line that was illegally, unlawfully, and unnecessarily installed on his property. Since the sewer line could have, and should have been, constructed without condemnation of an easement on the Wilburn property, there was no necessity for the taking in this case, as required by Kentucky law.

C. The City’s Invocation of the Power of Condemnation to Cure a Private Developer’s Trespass and Unlawful Activity on Private Land Does Not Constitute a Public Use

This issue was properly preserved for review by Mr. Wilburn’s Answer to Amended Verified Complaint, which concluded by stating that “[a] private development does not meet the requirements for public use and therefore is taking Mr. and Mrs. Wilburn’s property is unlawful in the state of Kentucky.”

KRS 416.675 provides that, “[e]very grant of authority contained in the Kentucky Revised Statutes to exercise the power of eminent domain shall be subject to the condition that the authority be exercised only to effectuate a public use of the condemned property.” Although KRS 416.675 includes in its definition of “public use” the use of property for the operation of utilities, (KRS 416.675(2)(d)), the legislative determination of what a public use is can be overturned upon the determination by the court that the taking is not reasonably related to “the public interest or welfare” and not within the “scope of legitimate government.” Faulconer v. City of Danville, 232 S.W.2d 80 (Ky. 1950). Additionally, K.R.S. 416.675(3) provides that “no property may be condemned primarily for the purpose of facilitating an incidental private use.”

The question before the Trial Court was and before this Court is not whether, in the abstract, a sewer line installed by a developer that is later connected to a public wastewater system is a “public use.” The question in this instance is whether the after-the-fact invocation of the power of eminent domain by a municipality to take property in order to “cure” the improper and unlawful installation of a sewer line by a neighboring developer on the Wilburn property, was in furtherance of a “public use” and was necessary. Mr. Wilburn attempted repeatedly to address the lack of necessity and public use, making the point that there was no public interest served by condemning the property in order to allow the illegally-installed sewer line to remain, since there was a lawful easement and state-approved permit to install it on an adjoining land.

In his Answer to the initial Complaint, Mr. Wilburn wrote: The City of Flatwoods is asking the Court to impose eminent domain on my property because a private developer illegally installed a sewer line on my property for his private development, [doing the work himself], without my permission or knowledge. The developer was fully aware of where my property line was. He had a permit from the Ky. Dept. of Water and an easement from my neighbor to install the sewer line 80 feet from where he actually installed it. The sewer line can easily be installed in the original location or multiple others including ones crossing only the developers land.

* * * *

Allowing the sewer line to remain active on my property instead of the developer installing the sewer line off my property, like the Ky. Dept of Water has ordered, in no way benefit the City of Flatwoods or the public, this is being done solely for the benefit of the private developer only. The Kentucky Supreme Court ruled in 1979 that the government cannot take private property for private, commercial, or industrial development – unless it is blighted and this is a private development and my property is not blighted.

In the 1979 case, City of Owensboro v. McCormick, the Kentucky Supreme Court struck down a portion of a statute that allowed localities to take any property for economic development as being unconstitutional. The court noted that consistent interpretations of the Kentucky constitution have forbidden the taking of private property for private use. In addition, the court refused to broaden the definition of “public use” to encompass a “public purpose” and it was noted that there are no Kentucky cases equating the two phrases. Otherwise, the court stated, there would be no limit to the right to take private property. The decision of the court was that government power to force one citizen to surrender productive property for the use of another simply because an alternative use is preferable to government authorities is “repugnant to our constitutional protections.”

Answer, December 6, 2006.

The Court turned aside Mr. Wilburn’s argument as one that was not relevant to the case, when in fact as a matter of law it was an essential prerequisite to approving the exercise of eminent domain by the City.

The Kentucky Constitution prohibits the taking of private property for the purpose of transfer to another private party. City of Owensboro v. McCormick, 581 S.W.2d 3, 5 (Ky. 1979). That is, in essence, what has transpired in this case, where a private party trespass onto the lands of another has been “blessed” by the imprimatur of the city post hoc. Mere avoidance of inconvenience to another private party as justification for exercising the power of eminent domain is an abuse of authority. Commonwealth, Department of Transportation, Bureau of Highways v. Knieriem, 707 S.W. 2d 340, 341 (Ky. 1986). Where the paramount reason for the taking is for a private interest, and public use of the land is merely an incidental result of the taking, such public use is only marginal and the taking is not considered within the legitimate purpose of the legislature. 26 Am. Jur. 2d Eminent Domain § 49.

The Kentucky Supreme Court has noted that “government cannot use the power of eminent domain in order to act as land broker for private interests.” City of Owensboro, supra at 11. In this instance, the City of Flatwoods is condemning private land not because such a condemnation is necessary to serve a public use, but because the line was illegally placed in violation of a state permit and despite the availability of an already-obtained easement on an adjoining property. The dispute between Mr. Wilburn and the private developer that had trespassed on his land, installed a sewer line in violation of a state permit and despite the existence of an easement on an adjacent land, is one in which neither the City nor its citizens had a legitimate interest, and the use of eminent domain authority to sanction the unlawful activity of the private developer served only that private interest. As noted by the Court in City of Owensboro,

"Naked and unconditional governmental power to compel a citizen to surrender his . . . property to another citizen who will use it predominantly for his own private profit just because such alternative private use is thought to be preferable in the subjective notion of governmental authorities is repugnant to our constitutional protections whether they be cast in the fundamental fairness component of due process or in the prohibition against the exercise of arbitrary power."

Id. at 6-7.

The public and City of Flatwoods had no legitimate interest in the resolution of this property dispute, since the public interest in proper management of wastewater from residential developments would have to be addressed by the private developer prior to allowing occupancy of homes constructed for residential use. The condemnation of Mr. Wilburn’s property after the fact in order to allow the sewer line to remain where it had been unlawfully installed, benefitted the developer alone, and did so at the expense of an innocent landowner who suffered first, an unlawful trespass, and second, an abusive exercise of “naked and unconditional” governmental power.

The lack of actual public “use” justifying the taking of an easement from Mr. Wilburn’s land as a convenience to the private developer who had unlawfully installed a private sewer line in the wrong location, justifies reversal of the Trial Court. As in the case of Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, Movant, v. Knieriem, 707 S.W.2d 340 (Ky. 1986), the taking in this case was for the convenience of the developer rather than to primarily benefit the public, and as such, was an abusive exercise of the power of eminent domain. Id. at 340.

II. THE TAKING OF THE WILBURN PROPERTY WAS ARBITRARY ACTION IN VIOLATION OF SECTION 2 OF THE KENTUCKY CONSTITUTION

This issue was properly preserved by the Answer and Answer to Amended Verified Complaint filed by Mr. Wilburn, as well as his statements at hearing on March 23, 2007. While bad faith, fraud, and abuse of discretion are not statutory grounds for denying the right to take, courts necessarily imply the exercise of good faith by government agencies using their eminent domain power. Commonwealth v. Cooksey, 948 SW.2d 122, 123 (Ky. App. 1997). A court will deny the right to take where there has been manifest fraud or a gross abuse of power. Id.

Additionally, the Kentucky Constitution prohibits arbitrary power of government over property of citizens. Kentucky Const. §2. Com. Transp. Cabinet v. Taub, 766 S.W.2d 49 (Ky. 1989). As such, a presumption of bad faith is created where condemnation proceedings are “blatantly illegitimate and when instigated raise the specter of undue harassment and expense for a private citizen.” Bernard v. Russell County Air Bd., 747 S.W.2d 610, 612 (Ky.App. 1987).

In this case, the exercise by the City of Flatwoods of its power to condemn the private property of Mr. Wilburn was quintessentially arbitrary. The condemnation of the Wilburn property was not necessitated by the lack of available locations for lawful installation of a sewer service to the Wheeler Subdivision – such a lawful easement, and a state permit for installation, existed. Instead, the City used its power to secure an easement on the Wilburn property with the express purpose of allowing an illegally located, unlawfully installed, private sewer line to remain on the Wilburn property by seizing the offending line under the auspices of “public purpose.”

As reflected in the state-issued Notice of Violation, and as acknowledged by the Trial Court, the line was not where it was approved to be located. It was installed outside of the approved location, on a land for which the developer possessed no easement, and in violation of the requirement of state regulation 401 KAR 5:005 Section 24(4)(b)1 which prohibits “deviations from the plans and specifications submitted with the application or the conditions specified in this subsection unless authorized in writing by the cabinet.”

The City was aware of the pending Notice of Violation, and the City’s attorney argued at the March 23 hearing that it had no bearing on the propriety of condemnation of the location of the unlawfully installed line:

"There was a conference held between the developer, his engineer and the state Division of Water. Quite frankly, Judge, they’re not concerned about it because once Flatwoods obtains this easement the problem… the permit the state issued does not concern property lines anyway… once this ownership issue is resolved by a judgment of this court that’s gonna end the [problem]… and frankly it doesn’t concern the circuit court anyway. That’s a fight for somebody to make with the Division of Water."

Tape, 9:55:30.

It is apparent that the City of Flatwoods was involved in this matter in order to “cure” the trespass – a questionable use of governmental power to resolve a private property dispute by seizing the lands of one of the disputants, and the innocent one at that. The use of eminent domain in this instance, to create a post hoc approval for the unlawful invasion of private land by an adjoining private landowner by seizing the land so invaded, is against public policy as expressed in 401 KAR 5:005, and invites similarly situated developers to build first, to ignore the constraints of the state permit, and to use the instrumentality of city condemnation power to justify later.

The exercise of governmental power by the City of Flatwoods was unnecessary, since a lawful easement and permit existed on an adjacent land, and the taking bore no reasonable relation to the public interest or welfare, since the private developer bore the responsibility for installing and connecting a sewer line to the residential development and the public interest was protected by that obligation. The use of the eminent domain power in this case served no public benefit, but was wielded instead to settle a land dispute between an innocent landowner and a trespassing neighbor by seizing the land trespassed upon. The misuse of this power was fundamentally unfair and repugnant to the constitutional prohibition against the exercise of arbitrary power. City of Owensboro v. McCormick, 581 S.W.2d 3, 6-7 (Ky. 1979).

CONCLUSION

For the reasons stated herein, Appellants Cliff and Judy Wilburn respectfully request that this Court: (1) vacate the Trial Court’s Order; (2) declare that the post hoc use of the power of eminent domain in this case violated Kentucky Constitution Section 2; (3) determine that the taking was not necessary nor for a “public use,” and (4) for any and all other relief to which Appellants may appear entitled.

Respectfully submitted,
Thomas J. FitzGerald
P.O. Box 1070
Frankfort, KY 40602
(502) 875-2428
(502) 875-2845 fax
FitzKRC@aol.com

Counsel for Appellants Cliff
and Judy Wilburn

---