Biddle v. Pub. Serv. Comm'n of Ky., 092421 KYCA, 2018-CA-1686-MR

CourtCourt of Appeals of Kentucky
JudgeBEFORE: DIXON, KRAMER, AND K. THOMPSON, JUDGES. DIXON, JUDGE, CONCURS. KRAMER, JUDGE, DISSENTS AND FILES SEPARATE OPINION. KRAMER, JUDGE, DISSENTING:
Writing for the CourtTHOMPSON, K., JUDGE:
PartiesCOREY M. BIDDLE AND JOHN K. POTTS APPELLANTS v. PUBLIC SERVICE COMMISSION OF KENTUCKY AND CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS APPELLEES
Docket Number2018-CA-1686-MR

COREY M. BIDDLE AND JOHN K. POTTS APPELLANTS

v.

PUBLIC SERVICE COMMISSION OF KENTUCKY AND CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS APPELLEES

No. 2018-CA-1686-MR

Court of Appeals of Kentucky

September 24, 2021

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 18-CI-00621

BRIEFS FOR APPELLANTS:

Michael Edward Gregory

Gregory Edward Mayes

Louisville, Kentucky

Thomas Joseph FitzGerald

Frankfort, Kentucky

BRIEF FOR APPELLEE PUBLIC SERVICE COMMISSION OF KENTUCKY:

John Edward Brooks Pinney

Brittany Hayes Koenig

William Andrew Bowker

Frankfort, Kentucky

BRIEF FOR KENTUCKY RSA #3 CELLULAR GENERAL PARTNERSHIP:

John Edmund Selent

Edward Tipton Depp

Felix Henri Sharpe, II

Louisville, Kentucky

BEFORE: DIXON, KRAMER, [1] AND K. THOMPSON, JUDGES.

OPINION

THOMPSON, K., JUDGE:

Corey M. Biddle and John K. Potts appeal from the Franklin Circuit Court's order which upheld the denial of their motion to intervene in an action before the Public Service Commission of Kentucky (the Commission) as to whether Kentucky RSA #3 Cellular General Partnership (RSA #3) would be granted a certificate of public convenience and necessity (CPCN) to build and operate a permanent cell tower at property in Stephensport, outside of Hardinsburg, Breckinridge County, Kentucky. The proposed site adjoined property owned by Biddle and Potts. Subsequent to the denial of their motion to intervene, the CPCN was granted.

Biddle and Potts separately own several parcels of property in a single-family residential development in Stephensport which was platted in 2003, but as of yet is mostly undeveloped. This property is not under the jurisdiction of a planning commission. Biddle owns lots 5-9, 11, 12, and 20-23; Potts owns lots 13-18; and RSA #3 leased lot 4.

Biddle bought lots 11, 12, and 20-23, and Potts bought lots 13-18 before RSA #3 leased lot 4 in 2008 and placed a cell tower on wheels (COW) on Lot 4. The COW is approximately sixty feet tall and intended as a temporary coverage gap solution. Subsequent to the placement of the COW, Biddle bought lots 5-9.

Lot 4 shares borders with lots 3, 5, 15, 16, 23, and 24. Biddle's lot 5 is just west of lot 4 and shares its west border; Biddle's lot 23 is north of lot 4 and shares part of its north border. Potts's lots 15 and 16 are south of lot 4 and share its southern border.

On October 25, 2017, RSA #3 filed an application requesting a CPCN to construct a wireless communication facility (cell tower) at lot 4 pursuant to Kentucky Revised Statutes (KRS) 278.650. As adjoining landowners, Biddle and Potts received notice of the requested CPCN.

Biddle and Potts, pro se, moved to intervene. The Commission held an informal conference with them regarding intervention. Biddle and Potts explained their status as adjoining landowners and expressed concerns with the location selected within a subdivision and how a permanent and much taller cell tower would impact their property values. They suggested alternative sites they believed would be feasible as well as co-location on sites with existing cell towers. They stated that if they were allowed to intervene, they would provide expert testimony to support their position.

The Commission denied Biddle's and Potts's request to intervene.2 First, the Commission stated that intervention by anyone other than the Attorney General is permissive and within the sound discretion of the Commission pursuant to 807 Kentucky Administrative Regulations (KAR) 5:001 Section 4. The Commission then quoted 807 KAR 5:001 Section 4(11)(b) which provides two alternative bases for intervention, that the person "has a special interest in the case that is not otherwise adequately represented" or that the person's "intervention is likely to present issues or to develop facts that assist the commission in fully considering the matter without unduly complicating or disrupting the proceedings." Despite quoting the regulation, the Commission simply found: "Mr. Biddle and Mr. Potts are unlikely to present issues or develop facts that will assist the Commission in fully considering this matter." It then discussed that the COW was a temporary solution to bolster cell phone coverage and coverage would be inadequate if the COW were to be removed and the permanent cell tower was not approved to replace it, opining that intervention was not warranted because Biddle and Potts only offered unsupported lay opinion that other sites were feasible.

Biddle filed a motion for rehearing, purportedly on behalf of himself and Potts. The Commission denied the motion for rehearing.

In the Commission's final order granting the CPCN to RSA #3, it noted that Biddle and Potts had filed requests to intervene, stated they opposed the location of the cell tower due to concerns about a potential decrease in property value and "offer[ed] to provide competing expert testimony that the proposed cell tower would be inconsistent with the community image"; "question[ed] whether Kentucky RSA #3 adequately researched options for collocation and alternative sites"; "argue[d] that a more discr[ete] location for a cell phone tower would be more appropriate"; and "dispute[d] that placing the tower at the proposed site would remedy gaps in coverage." The Commission explained that it denied their motion for intervention because "[t]he Commission found that Mr. Biddle and Mr. Potts failed to provide sufficient evidence to support their assertions, and were, therefore, unlikely to present issues or develop facts that would assist the Commission in considering this matter."

Biddle and Potts, who were now represented by counsel, then filed a complaint before the Franklin Circuit Court to vacate or set aside the orders of the Commission on the basis that the Commission erred by: failing to properly consider their motion to intervene where they should have been allowed to intervene as a matter of right or the Commission should have at least been required to make a finding on whether they had a "special interest" warranting intervention; denying the motion for a rehearing; approving the CPCN despite the evidence they presented; and not informing them, as pro se individuals, of the process for obtaining a public hearing.

The circuit court denied that the Commission committed any error, explaining Biddle and Potts had no right to intervene under KRS 278.665(2), but had an opportunity to request intervention pursuant to 807 KAR 5:001 Section 4(11)(a). It concluded the order denying intervention was lawful and reasonable based on the Commission's finding that Biddle and Potts did not present issues or facts that would assist the Commission in deciding the matter as they solely presented lay opinion and general concerns that were unsupported. The circuit court further found that Biddle and Potts did not demonstrate that they had a special interest in the matter, explaining that determining if a person has a "special interest" is in the discretion of the Commission and "[t]o demonstrate that they have a 'special interest,' Plaintiffs showed only that they are neighboring landowners and proposed other locations for the cell tower that consisted of lay opinion, which the Commission did not believe constituted enough of a 'special interest' to allow intervention."

As to the request for rehearing, the circuit court noted that only Biddle requested a rehearing and as he was pro se, Biddle could not represent Potts. The circuit court agreed that because Potts was not a party to the request for the rehearing, Potts could not argue this issue on appeal and thus was "dismissed from the portion of the appeal relating to [this order]."

As to the substance of the motion for rehearing, the circuit court determined there was no need for a rehearing as Biddle did not establish that he met the standard for permissive intervention, noting that Biddle and Potts did not "demonstrate how their interest in the case and subsequent intervention would assist the Commission in considering the matter and not complicate or disrupt the proceedings" and in his motion Biddle "did not produce any new evidence or information that would assist the Commission in considering the matter" as he only "submitted lay opinion."

Regarding the grant of the CPCN to RSA #3 and Biddle's and Potts's reasons for vacating it, which included that they were unlawfully excluded from intervening, and seven other reasons, the circuit court found that none of their arguments was "compelling or necessary" as they were "never made parties . . . [and] therefore they do not have standing to challenge the Order on appeal." It declined to address the final order and their specific arguments on the merits, stating Biddle and Potts failed to demonstrate that the Commission did not follow the statutory guidelines in granting the CPCN or the order was unlawful or unreasonable.

Finally, the circuit court determined that the Commission had no duty to inform Biddle and Potts about what was needed to convene a public hearing, or how to request one just because they were pro se. It stated the Commission acted appropriately in advising them to obtain counsel rather than offering them legal advice.

Biddle and Potts appealed. While the matter was pending on appeal, Kentucky RSA #3 Cellular General Partnership (RSA #3) was subsequently sold to Cellco Partnership D/B/A Verizon Wireless (Verizon), which was substituted as a party.3

On appeal, Biddle and Potts argue: (1) the Commission and the circuit court erred as a matter of law in not granting their motion to intervene because: (a) they have an absolute right to intervene as adjoining property owners pursuant to KRS 278.665(2); (b) the Commission acted arbitrarily in failing to grant...

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