City of Worthington v. Worthington Fire, No. 2002-CA-002266-MR.

• Decision Date: 11 June 2004
• Docket Number: No. 2002-CA-002266-MR.
• Parties: CITY OF WORTHINGTON HILLS, Kentucky, Appellant, v. WORTHINGTON FIRE PROTECTION DISTRICT; Worthington Community Association; Louisville and Jefferson County Planning Commission; and Jefferson County, Kentucky, Appellees.
• Court: Kentucky Court of Appeals

140 S.W.3d 584

CITY OF WORTHINGTON HILLS, Kentucky, Appellant, v. WORTHINGTON FIRE PROTECTION DISTRICT; Worthington Community Association; Louisville and Jefferson County Planning Commission; and Jefferson County, Kentucky, Appellees.

No. 2002-CA-002266-MR.

Court of Appeals of Kentucky.

June 11, 2004.

Rehearing Denied July 20, 2004.

Appeal from the Circuit Court, Jefferson County, Barry Willett, J Stephen A. Schwager, Kyle T. Hubbard, Louisville, KY, for appellant.

J. Bissell Roberts, Stites & Harbison, PLLC, Louisville, KY, for appellees, Worthington Hills Fire Protection District and Worthington Community Association.

Before MINTON, SCHRODER and TAYLOR, Judges.

OPINION

TAYLOR, Judge.

The City of Worthington Hills (also referred to as Worthington Hills or as the City) brings this appeal from a September 6, 2002, opinion and order of the Jefferson Circuit Court. We vacate and remand with directions.

The present controversy surrounds Worthington Hills' erection of a gate across a public right of way known as Halifax Drive. Worthington Hills is a sixth class city located within Jefferson County, Kentucky. Originally, Halifax Drive was located totally within the city limits; in 1998, Halifax Drive was extended into Oakhurst Subdivision (Oakhurst). Oakhurst is located outside of the City and within an unincorporated portion of Jefferson County. Within the city limits, Halifax Drive is a city street dedicated to public use.

Worthington Hills was concerned about the volume of vehicular traffic that utilized Halifax Drive as a "shortcut to Murphy Lane, KY 22, Westport Road, and Oldham County, and the excessive speeds these vehicles reached...." Appellant's Brief at 1. Soon after Halifax Drive in Oakhurst was completed and open to vehicular traffic, the City passed Ordinance No. 5, Series 1998. Therein, the City sought to "close" Halifax Drive pursuant to Kentucky Revised Statutes (KRS) 82.405(1) and (2) "at the juncture of Halifax Drive where the boundary of the City meets the boundary of Oakhurst Subdivision." In accordance therewith, the City erected a single gate across Halifax Drive at the City's boundary with the County.

Sometime thereafter, the Jefferson County Attorney contacted the City and requested it to file an application to close with the Louisville and Jefferson County Planning Commission pursuant to § 14.2 of the Development Code of Jefferson County. The City complied with the request and filed an application to close Halifax Drive at its boundary with the County. The planning commission adopted a resolution recommending that the City's application for closure of Halifax Drive be denied by the Jefferson County Fiscal Court. The fiscal court ultimately concluded that the application to close should be remanded to the planning commission to dismiss in view of KRS 82.405. The land development and transportation committee of the planning commission dismissed the application in compliance with the fiscal court mandate. It does not appear that the planning commission, as a whole, considered the application after remand from the fiscal court.

Concerned that Ordinance No. 5, Series 1998 did not comply with the mandates of KRS 82.405(2), the City subsequently enacted Ordinance No. 1, Series 2000, on April 18, 2000. Its language mirrored the language of Ordinance No. 5, Series 1998, and closed Halifax Drive pursuant to KRS 82.405(1) and (2) "at the juncture of Halifax Drive where the boundary of the City meets the boundary of Oakhurst Subdivision."

On June 9, 2000, the Worthington Fire Protection District and the Worthington Community Association¹ (collectively referred to as the Worthington Fire Department) filed a "Complaint" in the Jefferson Circuit Court seeking a declaration of rights under KRS 418.040. The Worthington Fire Department named as defendants Worthington Hills, Jefferson County, Louisville and Jefferson County Planning Commission, Jeremy Schell, Mary Gayle Schell, Walter Hunt, and Jimmie L. Hunt.² The Worthington Fire Department requested the circuit court to declare City Ordinance No. 5, Series 1998 and City Ordinance No. 1, Series 2000 void. Specifically, the Worthington Fire Department alleged that the ordinances failed to comply with KRS 82.405 and that the City had no independent authority to close Halifax Drive without complying with applicable planning and zoning regulations. The circuit court ultimately concluded that the City's closure of Halifax Drive at its boundary with Jefferson County was improper. This appeal follows.

The City contends that the circuit court committed error by concluding that its closure of Halifax Drive was improper. In reaching such decision, the circuit court reasoned as follows:

2. The City of Worthington Hills is a sixth class city in Jefferson County, which has no zoning powers. KRS 100.137. That Fiscal Court adopted the Development Code, which applies to all fifth and sixth class cities in Jefferson County, as well as all unincorporated areas of Jefferson County. Fiscal Court is the legislative body empowered by statute to decide all zoning matters in all unincorporated areas of Jefferson County, and in all cities of the fifth and sixth class, including the City.

3. Halifax Drive is a public street and a "public facility" in accordance with Kentucky zoning laws (KRS 100.111(20)). Once dedicated and placed into use, Halifax Drive could not be closed until the Commission had first reviewed a proposed closure in light of its agreement with Jefferson County's "Comprehensive Plan" and acted within 60 days to make its recommendation to the appropriate legislative body pursuant to KRS 100.324(4), regarding the proposed street closing. This has never been done.

4. Jefferson County's Development Code, § 14.2(A) states that it "shall apply to all requests for closing/abandonment of a public right-of-way ... dedicated to the use of the public." This is a mandatory provision. This section of the Development Code was intended to apply to all street and alley closures anywhere in Jefferson County. There is no provision in the Development Code exempting cities of the fifth and sixth class from its provisions. § 14.2(F) of the present Development Code concerning Commission action does not address what action the Commission should take if a fifth or sixth class city proposes to construct a gate to physically close a publicly dedicated street, a portion of which is located in the City and a portion which is located in Jefferson County.

5. Kentucky's Binding Elements Act, KRS 100.401 et seq., requires all Binding Elements to be enforced by the Commission. When the development of Oakhurst Subdivision was approved by Fiscal Court, the Binding Elements imposed required that Halifax Drive be constructed between the City and Murphy Lane, and dedicated to the public use as a public street. The City claims that pursuant to KRS 82.405, it was authorized to close Halifax Drive at the City limits without any consideration by the Commission or any approval by Fiscal Court. If the City's position is sustained, it would create a chaotic situation where Jefferson County's fifth and sixth class cities (Jefferson County has 90 such cities) could close dedicated public streets at the city's boundary with other cities or the unincorporated county without consideration by the Commission and without approval by an adjacent City or Fiscal Court. Such street closings by fifth and sixth class cities in Jefferson County were not intended by the General Assembly when it enacted KRS 82.405 and KRS Chapter 100.

6. The Court concludes to the extent there are conflicts between requirements of Development Code, the Binding Elements Act, and KRS, [sic] Chapter 100, the City's legal position concerning its attempted closures of Halifax Drive, and statutes pertaining to road closures by cities (KRS 82.405), and counties (KRS 178.050 et seq.), it is the responsibility of the Court to harmonize those conflicts and give effect to the Development Code and these statutes. Combs v. Hubb Coal Corp., Ky., 934 S.W.2d 250 (1996); Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1993). Therefore, the Court concludes as a matter of law it was mandatory that an "Application To Close" be first filed by the City with the Commission for the Commission's recommendation regarding the City's proposed closure of Halifax Drive as a "public facility", pursuant to the Development Code and KRS 100.324(4). The process for a street closure set forth in Development Code § 14.2 must be followed for all street closings. The considerations that the Commission should make in deciding whether to recommend a street closure to a legislative body are those set forth in Development Code § 14.2(H). Since the section of Halifax Drive which the City proposed to close impacts Halifax Drive in both the unincorporated Jefferson County and in the City, the Court concludes that the section of Halifax Drive located in the City can be lawfully closed only after an application is filed with the Commission to close the road pursuant to Section 14.2 of the Development Code, KRS 100.324(4) and only if the Fiscal Court approves the road closing both in the City and in the county, pursuant to the provisions of KRS Chapter 178. Any application for street closure should also include a request by the applicant for a "public facility" review by the Commission, and the Commission must complete that review pursuant to KRS 100.324(4) as part of the street closing application process. (footnote omitted).

....

11. The City's attempts to enact Ordinance No. 5, Series 1998 and Ordinance No. 1, Series 2000 in accordance with the requirements of KRS 82.405(2) were legally deficient for the reasons given above and for the following reasons:

(a) The City failed to make Findings of Fact identifying all property owners in or abutting the public way to be closed prior to the passage of either Ordinance (KRS 82.405(2));

(b) The City failed to give proper...