Barone v. Sanitation Dist. No. 1, Corp.
| Decision Date | 17 January 2020 |
| Docket Number | NO. 2016-CA-001715-MR,NO. 2016-CA-001714-MR,NO. 2016-CA-001734-MR,NO. 2016-CA-001716-MR,NO. 2016-CA-001733-MR,NO. 2016-CA-001717-MR,NO. 2016-CA-001713-MR,NO. 2016-CA-001711-MR,NO. 2016-CA-001712-MR,NO. 2016-CA-001718-MR,2016-CA-001711-MR,2016-CA-001712-MR,2016-CA-001713-MR,2016-CA-001714-MR,2016-CA-001715-MR,2016-CA-001716-MR,2016-CA-001717-MR,2016-CA-001718-MR,2016-CA-001733-MR,2016-CA-001734-MR |
| Parties | NANCY A. BARONE APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ROBERT AND KAREN JOHNSON APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE DANIEL AND CONNIE HEEB APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE DOROTHY SAUERBECK AND REGINA MURPHY APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KENNETH STUDER APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KEITH AND AMY NELTNER APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ALONZA AND PAMELA GRAY APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KENNETH AND ELISSA PLATTNER APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE JOHN AND JOANNE FELDMANN APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ANNA M. ZINKHON APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
Appellants/property owners appeal from orders of the Campbell Circuit Court granting temporary and permanent easements to install sewer lines across their properties in favor of Appellee/Sanitation District No. 1, a Kentucky corporation (SD1). For the following reasons, we affirm.
This matter involves ten cases. The trial court consolidated the cases for hearing below.1 Likewise, this Court consolidated the cases to the extent that they would be heard by the same panel considering the merits of the appeals. Although the property owners raise different issues in their briefs, they all challenge the trial court's order allowing SD1 to take their properties for the easements and, therefore, we will address them collectively.
The property owners own properties in Northern Kentucky along a proposed sewer line route. SD1 is a public sanitation department serving Northern Kentucky. SD1 seeks to install a sewer line from Ash Street in Silver Grove, Kentucky, to the Riley Road pump station in Alexandria, Kentucky.
As background, Northern Kentucky's wastewater collection system is comprised of two types of sewers: separate sanitary sewers and combined sewers. A sanitary sewer system carries sewage from underground pipes to a wastewater treatment facility to be treated before ending up in nearby waterways, like creeks or rivers. Sanitary sewers originate from bathrooms, sinks, or other such plumbing sources. Meanwhile, the combined sewer system carries both sewage and stormwater, like rain or melting snow. During dry weather conditions, the combined sewer system mostly contains sewage from homes and businesses,which is then treated at a wastewater treatment facility. During wet weather conditions, however, the capacity of the combined sewer can overflow because of excess stormwater. This results in excess flow discharged from the system. This is called combined sewer overflows (CSOs). Likewise, the sanitary sewers can exceed their capacity during wet weather conditions because, for example, the rain water may flow into the sanitary sewer pipes through improper connections. This is called sanitary sewer overflows (SSOs).
SD1 is responsible for the management, collection, transmission, and treatment of sanitary wastewater, as well as the stormwater. In 2007, SD1 reached an agreement with the United States Environmental Protection Agency (EPA) and the Kentucky Environmental and Public Protection Cabinet, as set forth in a Federal Court Order Consent Decree. See The Commonwealth of Kentucky, et al. v. Sanitation District No. 1 of Northern Kentucky, Civil Action No. 05-CV-199-WOB (E.D. Ky. April 18, 2007). The purpose of this Consent Decree was to improve the quality of the area's waterways and rivers to comply with the Clean Water Act, 33 U.S.C. § 1342. Under this Consent Decree, SD1's cleanup of CSOs and SSOs would help alleviate health hazards, such as raw sewage leaked into the environment before being treated.
To comply with the Consent Decree, SD1 planned certain projects to address the overflows. SD1's proposed construction of the Ash Street PumpStation and Ash Street Force Main (the "Project") is at issue in this matter. This Project includes five miles of pipe and construction of a pump station and is estimated to cost $22 million.
To complete the Project, SD1 needed easements from forty-seven property owners. SD1 obtained easements from all but twelve of these property owners.
SD1 made monetary offers to the twelve remaining property owners for the easements on their properties. Some of the property owners tried to negotiate with SD1, while others rejected the offers.
After the twelve property owners did not grant SD1 the easements, SD1 filed petitions for condemnation against them in Campbell Circuit Court beginning in October 2015. SD1 filed the petitions pursuant to Kentucky Revised Statutes (KRS) 220.010-.520 to exercise their right of eminent domain. SD1's petitions claimed that permanent easements were needed to install, operate, repair, and maintain the sewer lines, and temporary easements were needed to construct and install the sewer lines. Attached to the petitions were descriptions and drawings/plats of where the sewer lines would be located on each property.
After SD1 filed the petitions, the trial court appointed three commissioners, pursuant to KRS 416.580, to award the property owners the difference in fair market value of their lands before and after the taking of theeasements, as well as to award the property owners the rental value for the temporary easements. After the commissioners filed their reports and listed the awards, the clerk issued summons against the property owners to show cause why SD1 did not have the right to condemn the properties.
The property owners answered SD1's petitions, contesting SD1's right to condemn. In addition, they argued alternative routes, not running through their properties, existed for the sewer lines.
SD1 agreed that the property owners could challenge the right to take their properties but requested an expedited evidentiary hearing on this issue because KRS 416.610(4) requires such challenges to be heard "forthwith." In addition, SD1's petitions were placed on the trial court's economical litigation docket. This docket is used in Campbell Circuit Court to promote prompt and inexpensive discovery in certain cases, such as property rights cases. See Kentucky Rule of Civil Procedure (CR) 93.04. The rules contemplate these cases will go to trial within several months. See CR 89(1)(d).
Accordingly, the trial court scheduled a right-to-take hearing for June 1, 2016. Leading up to the hearing, the parties filed various motions and pleadings, such as the property owners' petition for declaration of rights arguing that KRS 416.610(4) is unconstitutional, motions to compel, motions in limine, motions to set a jury trial, motions to continue the trial date, motions to declareSD1 a public agency, motions for an order to obtain soil samples, motions to set aside the commissioners' awards, motions to dismiss, motion to extend discovery deadlines, and motions for summary judgment.
Before the hearing, the trial court consolidated the cases into Sanitation District No. 1, a Kentucky Corporation v. Nancy Barone, Case No. 15-CI-01070. The trial court also bifurcated the issue of damages from the right-to-take hearing.
On the property owners' motion, the trial court continued the June 1, 2016 hearing to June 20, 2016. However, the trial court denied a subsequent motion by the property owners to continue, and the right-to-take hearing took place on June 20-21, 2016.
During the hearing, SD1 called four witnesses: Joseph Henry, Jeffrey Abshire, Ralph Johnstone, and Greg Larison. Mr. Henry is an engineer employed by GRW Engineer, Inc. He was hired to design a force main to mitigate the CSOs and the SSOs in the area. He testified regarding why the route was chosen and how studies were performed regarding the need for the Project by Hazen and Sawyer, an environmental engineering firm. Mr. Henry personally observed the raw sewage overflow. Jeffrey Abshire, the chief financial officer for the Kentucky Infrastructure Authority (KIA), testified that KIA agreed to lend SD1 up to $19,000,000 to fund the Project. Ralph Johnstone, the director of design andconstruction manager for SD1, testified regarding his work on the Project. He testified that SD1 considered different locations for the pump stations and different routes for the force main line, but the location chosen was the most constructible, effective,...
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