Bretagne, LLC v. Multi-Cnty. Recreational Bd., Inc.
| Decision Date | 17 June 2020 |
| Docket Number | Civil Action No. 5: 19-206-DCR |
| Citation | 467 F.Supp.3d 501 |
| Parties | BRETAGNE, LLC, Plaintiff, v. The MULTI-COUNTY RECREATIONAL BOARD, INC., d/b/a Hollerwood Offroad Adventure, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Barry D. Hunter, Medrith Lee Norman, Frost Brown Todd LLC, Lexington, KY, for Plaintiff.
Lyndol Scott Miller, Morgan Todd Osterloh, Sturgill, Turner, Barker & Moloney PLLC, Lexington, KY, for Defendants.
This dispute centers around whether certain roads on private property are public or private. [Record Nos. 57, 58] Plaintiff Bretagne, LLC, has filed a motion for summary judgment seeking a permanent injunction against Defendants Powell County and the Multi-County Recreational Board, Inc. ("MCRB") to keep them off Bretagne's property and to declare that the roads in issue are not county or public roads. The plaintiff seeks the same declaratory judgment against Defendant Estill County. [Record No. 57] MCRB and Powell County filed a cross-motion for summary judgment, asserting that they are protected from injunctive relief by sovereign immunity. [Record No. 58]
The Court will grant the plaintiff's motion for summary judgment, in part, because the roads on its property are not county or public roads. A corresponding declaratory judgment will be entered in the plaintiff's favor. However, the defendants are immune from injunctive relief. As a result, the defendants' motion for summary judgment will be granted and the plaintiff's motion for summary judgment will be denied on its injunctive relief claim.
Bretagne owns 1,000 acres of real property in Powell and Estill Counties. The property originally was utilized for oil production, with the property in Powell County still operating for that purpose. The Estill County property was leased to Boneyard Hollow, LLC, to operate an off-road vehicle recreation park, but it could return to oil-production at any time.
Powell, Estill, Lee, and Wolfe Counties entered into an interlocal cooperation agreement in May 2013 to create a recreational board, known as the "Multi-County Recreational Board." [Record No. 57-7] The MCRB, doing business as Hollerwood, began operating an off-road vehicle recreation park near the plaintiff's properties in October 2018. It gave customers maps that included roads across the plaintiff's property and encouraged customers to enter that property to utilize the roads. In response, the plaintiff and its lessee erected barriers, posted no trespassing and permit only signs throughout the properties. It further circulated no trespassing notices. [Record No. 57-2, pp. 2-3] However, Hollerwood's customers continued to drive off-road vehicles onto and across the plaintiff's land.
The parties dispute came to a head when the Powell Fiscal Court notified the plaintiff that it could not prohibit Hollerwood's customers from entering its property. It held a hearing on March 12, 2019, to re-adopt the 1937 and 1954 Department of Transportation ("DOT") maps showing that county roads lie on the property. [Record No. 61-2, p. 7] The Powell Fiscal Court sent bulldozers to clear away barriers erected by the plaintiff. The plaintiff responded by filing suit in the Powell Circuit Court. That matter, however, was voluntarily dismissed before the present action was filed with this Court.
The Court granted injunctive relief, enjoining the defendants from accessing or entering the properties described in the Complaint or otherwise altering or interfering with the properties. [Record No. 23] The Court further enjoined the defendants from asserting that they had authority to access Bretagne's properties.
The plaintiff filed an Amended Complaint seeking injunctive relief against the MCRB and the Powell Fiscal Court to prevent them from entering the subject property and from representing to Hollerwood's customers that they have the right to grant access to the areas in dispute. [Record No. 39] Additionally, the plaintiff requested entry of a declaratory judgment which would prevent the defendants from declaring that the roads on the properties are county or public roads.
The matter is currently pending for consideration of the plaintiff's motion for summary judgment regarding all claims. [Record No. 57] Additionally, Powell County and the MCRB have filed a cross-motion for summary judgment, asserting that the defendants are immune from injunctive relief. [Record No. 58]
Entry of summary judgment is appropriate if there are no genuine disputes regarding any material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Chao v. Hall Holding Co. , 285 F.3d 415, 424 (6th Cir. 2002). The determination must be "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party carries an initial burden to produce evidence to present a prima facie case that the movant is entitled to judgment as a matter of law. Celotex , 477 U.S. at 317, 106 S.Ct. 2548. Once the moving party has met its burden of production, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Keeneland Ass'n, Inc. v. Earnes , 830 F. Supp. 974, 984 (E.D. Ky. 1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn from the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. , 475 U.S. at 586, 106 S.Ct. 1348.
"A county road, pursuant to Kentucky Revised Statutes ("KRS") 178.010 is a public road which has been formally accepted by the fiscal court of the county as a part of the county road system, or private roads, streets, or highways which have been acquired by the county ..." Ellington v. Becraft , 534 S.W.3d 785, 790 (Ky. 2017) (internal quotations omitted). A formal order is required to establish that a road is a county. Ky. Props. Holding LLC v. Sproul , 507 S.W.3d 563, 569 (Ky. 2016). The defendants must also demonstrate that public notice was given before the issuance of such an order. KRS § 178.050.
While there is a presumption of regularity for the procedure for adopting a county road, "the Fiscal Court's ultimate decision to adopt a given road as a county road—and thus assert control and possession of it—must be evidenced by proof consisting of an official order, resolution or ordinance of the fiscal court that appears of record." Cary v. Pulaski County Fiscal Court , 420 S.W.3d 500, 507-08 (Ky. Ct. App. 2013). The Cary Court noted that if the fiscal court failed to produce a formal order it was unnecessary to delve into the particulars of the procedures for establishing a county road or any presumption of regularity. Id.
The plaintiff argues that the defendants cannot establish the existence of a county road on its property because they have failed to present an official order, resolution, or ordinance of the fiscal court and advance notice of any order. The defendants argue in response that the 1937 and 1954 DOT maps were adopted on March 12, 2019, by the Powell Fiscal Court and that the minute entry of the hearing constitutes an official order. [Record No. 57-10] But the plaintiff asserts that it did not receive adequate notice before the issuance of the order and that the action failed to sufficiently describe the county roads established. The plaintiff also believes that relying on the 1937 and 1954 DOT maps is insufficient to establish the existence of county roads on the properties.
While the defendants concede that there is no evidence that Estill County formally accepted the roads at issue, they argue that Powell County did formally accept the roads as county roads. They contend that there was a formal order of the Powell Fiscal Court because a meeting on March 12, 2019, adopted the 1937 and 1954 maps which show county roads lie on the property. The notes from the March 12, 2019 meeting before the Powell Fiscal Court explain that "the spurs of Lick Road to KY 1036 have seen unimpeded use and are shown on either the 1937 Powell County Map or the 1954 Powell County Map." [Record No. 57-10, p. 2] Additionally, the notes state:
A motion was made by Judge Anderson seconded Magistrate Tipton that we acknowledge the highlighted maps (a copy of these will follow minutes) so long as there is no legal records that these roads have been removed and the motion to include to re-affirm Kentucky Transportation Cabinet 1954 and 1937 maps to their entirely.
[Id. at 3] But the 1998 DOT map establish that there were no county roads on the property and this map was formally adopted by the Powell Fiscal Court on March 13, 1998. [Record No. 63-4]
KRS 178.050 explicitly states that "[n]o county road shall be established or discounted, or the location thereof changed unless due notice thereof has been given ..." See also Potter v. Matney , 165 Ky. 266, 268, 176 S.W. 987 (1915) ; Robinson v. Whitley , 2016 Ky. App. Unpub. 2016 WL 315679 (Ky. Ct. App. Jan. 22, 2016) (). However, "the presumption of regularity has operated to shield a judgment relating to the establishment of a county road from a collateral attack in the face of an allegation that it was void for failing to follow statutory provisions relating to public notice in county road proceedings." Cary , 420 S.W.3d at 507 (citing Tarter v....
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