Garriga v. Sanitation District No. 1, No. 2001-CA-002593-MR (Ky. App. 12/5/2003)
| Decision Date | 05 December 2003 |
| Docket Number | No. 2001-CA-002593-MR.,No. 2002-CA-001192-MR.,2001-CA-002593-MR.,2002-CA-001192-MR. |
| Parties | MARIA C. GARRIGA Appellant v. SANITATION DISTRICT NO. 1 Appellee. AND DONALD AND MARION STITES FORMDROPDOWN v. SANITATION DISTRICT NO. 1 FORMDROPDOWN |
| Court | Kentucky Court of Appeals |
Appeal from Kenton Circuit Court, Honorable Gregory M. Bartlett, Judge, Action No. 00-CI-002364.
Appeal from Boone Circuit Court Honorable Joseph F. Bamberger, Judge Action Nos. 99-CI-00860 AND 01-CI-00510.
Todd V. McMurtry, Robert E. Manley, Matthew W. Fellerhoff, Rhonda S. Frey, Cincinatti, Ohio, Briefs for Appellants.
Robert E. Manley, Cincinatti, Ohio, Oral Argument for Appellants.
William T. Robinson, III, Gerald F. Dusing, Luann Devine, Covington, Kentucky, Briefs for Appellee.
Gerald F. Dusing, Luann Devine, Covington, Kentucky, Oral Argument for Appellee.
BEFORE: JOHNSON AND PAISLEY,[1] JUDGES; AND JOHN D. MILLER, SENIOR JUDGE.[2]
AFFIRMING
Maria Garriga has appealed from an order of the Kenton Circuit Court entered on November 2, 2001, which dismissed her complaint for declaratory judgment and injunctive relief. Having concluded that Garriga lacks standing to challenge the constitutionality of KRS3 220.035, and that her complaint for declaratory judgment and injunctive relief fails to state a claim upon which relief can be granted, we affirm the order of the Kenton Circuit Court. Donald and Marion Stites have appealed from an interlocutory order and judgment of the Boone Circuit Court entered on May 16, 2002, authorizing Sanitation District No. 1 (SD1) to condemn approximately 144 acres of their property for the purpose of constructing a wastewater treatment plant and related facilities. Having concluded that SD1 is authorized to condemn the property in question, that the Stiteses lack standing to challenge the constitutionality of KRS 220.035, and that the Stiteses were provided with a fair and impartial trial on the issue, we affirm the interlocutory order and judgment of the Boone Circuit Court.
SD1 is a political subdivision of the Commonwealth of Kentucky, organized pursuant to KRS Chapter 220. KRS 220.020 vests the Secretary of the Natural Resources and Environmental Protection Cabinet (NREPC) with the authority "to establish sanitation districts within any county of the Commonwealth[,]" so as to address several concerns relating to sewage disposal and water pollution, all of which are enumerated in KRS 220.030. A sanitation district is governed by a board of directors which is empowered to "control and manage the affairs of the district" and which is charged with devising a plan "for the improvements for which the district was created."4 SD1 is a multi-county sanitation district formed pursuant to KRS 220.135. SD1 provides sanitation services to Boone, Campbell, and Kenton counties.
The Stiteses own approximately 476 acres of land along the Ohio River in Boone County, Kentucky. In 1995 SD1 engaged the services of Woolpert LLP, a professional services engineering firm, for the purpose of establishing a plan to construct a regional wastewater treatment plant. In 1999 after an extensive review process, SD1's board of directors concluded that approximately 144 of the 476 acres owned by the Stiteses provided the best location for the wastewater treatment plant. Thereafter, SD1 attempted to negotiate with the Stiteses for the purchase of the 144 acres needed for the facility. The negotiation process culminated with SD1 offering the Stiteses $6,000.00 per acre for the land needed to construct the wastewater treatment plant. The Stiteses declined SD1's offer and indicated that they were only willing to sell their entire 476-acre tract.
On or about June 27, 2000, the board of directors of SD1 passed a resolution to acquire, by eminent domain, the land owned by the Stiteses for the purpose of constructing a wastewater treatment plant and related facilities. Shortly thereafter, SD1 requested the judge/executives of Boone, Kenton, and Campbell counties to review its proposed land acquisition pursuant to KRS 220.035.5 On July 31, 2000, a special meeting of the judge/executives of Boone, Kenton, and Campbell counties was held concerning SD1's proposed land acquisition. The meeting provided members of the public an opportunity to comment upon SD1's plan to construct a wastewater treatment plant on the Stiteses' property.6 The committee of judge/executives heard extensive arguments from several interested parties, after which they passed a resolution approving SD1's request to condemn the Stiteses' property.
On November 16, 2000, Garriga, who is a resident of Kenton County and a ratepayer of SD1, filed a complaint for declaratory judgment and injunctive relief in the Kenton Circuit Court, requesting, inter alia, "[a] declaration that condemnation of the Stiteses' property by SD1 for construction of a wastewater treatment plant was unconstitutional." Garriga contended that KRS 220.035 was unconstitutional and that SD1 had made several material misrepresentations regarding the cost projections for its wastewater treatment facility to the committee of judge/executives. On January 19, 2001, SD1 filed a motion to dismiss Garriga's complaint. In particular, SD1 claimed that Garriga lacked standing to challenge the constitutionality of KRS 220.035. On February 15, 2001, Garriga filed an amended complaint for declaratory judgment and injunctive relief.7 SD1 filed a motion to dismiss Garriga's amended complaint on March 2, 2001. For whatever reason, SD1 elected not to challenge Garriga's standing to contest the constitutionality of KRS 220.035 on the grounds asserted in her amended complaint, with one notable exception.8
On May 2, 2001, SD1 filed a petition in the Boone Circuit Court to condemn approximately 144 of the 476 acres owned by the Stiteses.9 The petition alleged that acquisition of the Stiteses' property was necessary "in order to effect the proper collection, treatment and disposal of sewage and other wastes produced within [the area served by SD1.]" On May 9, 2001, the Boone Circuit Court entered an order appointing three commissioners, who subsequently assessed the reduction in the fair market value of the Stiteses' property by reason of the taking at $518,000.00.
On July 2, 2001, the Stiteses filed a motion in the Boone Circuit Court to dismiss the condemnation petition filed by SD1.10 The Stiteses claimed that SD1 had failed to comply with several statutory requirements prior to initiating the condemnation proceedings. On September 6, 2001, the Stiteses filed an answer to the condemnation petition and a statement of exceptions to the award of the commissioners, in which they averred, inter alia, that SD1 had failed to comply with several statutory requirements prior to filing the condemnation petition, and that KRS 220.035 was unconstitutional. Pursuant to KRS 416.620, the Stiteses requested a jury trial concerning the commissioners' award. On September 17, 2001, SD1 filed a motion for an interlocutory order and judgment.
On November 2, 2001, the Kenton Circuit Court entered an order granting SD1's motion to dismiss Garriga's complaint. The court concluded that Garriga's complaint failed to state a claim upon which relief could be granted. More specifically, the court concluded that KRS 220.035 was constitutional. As for Garriga's contention that SD1 misrepresented the cost projections for its wastewater treatment facility to the committee of judge/executives, the court concluded that she had failed to "state a claim that is cognizable by this court or upon which relief may be granted." Garriga's appeal followed.
On November 14, 2001, the Stiteses filed a motion to disqualify Boone Circuit Judge Joseph F. Bamberger from hearing their case. In support of their motion, the Stiteses produced a copy of an interlocutory order and judgment signed by Judge Bamberger that was file-stamped September 25, 2001. On November 15, 2001, the court entered an order denying the Stiteses' motion. In its order, the court noted that the interlocutory order and judgment complained of was not authorized, entered of record, or circulated. The court explained that it was standard procedure for copies of a tendered order to be stamped and dated prior to a decision being made in the matter. The court further explained that ordinarily a proposed order is held until a decision is rendered, at which time the order is entered and circulated. On January 10, 2002, the Stiteses filed a motion for designation of a special judge pursuant to KRS 26A.020. On February 4, 2002, the Supreme Court of Kentucky entered an order denying the Stiteses' request for a special judge.11
On May 15, 2002, the Boone Circuit Court entered an order denying the Stiteses' various motions to dismiss that had been filed throughout the course of the litigation. On May 16, 2002, the court entered an interlocutory order and judgment, authorizing SD1 to condemn approximately 144 acres of the Stiteses' property for the purpose of constructing a wastewater treatment plant and related facilities.12 The Stiteses' appeal followed.
On appeal, Garriga and the Stiteses both contend that KRS 220.035 violates §§ 2, 3, 27, 28, 29, 59 and 60 of the Kentucky Constitution. More specifically, the appellants claim that: (1) KRS 220.035(4) arbitrarily delegates authority to executive officers in violation of § 2 of the Kentucky Constitution; (2) KRS 220.035(4) delegates legislative powers to executive officers in violation of §§ 27, 28, and 29 of the Kentucky Constitution; (3) KRS 220.035 creates discriminatory classifications among counties without a reasonable basis in violation of §§ 2, 59 and 60 of the Kentucky Constitution; and (4) KRS 220.035(4) violates the Equal Protection Clauses of § 3 of the Kentucky Constitution and the Fourteenth Amendment to the United States Constitution.
Garriga additionally contends that: (1) the committee of judge/executives designated to represent SD1 acted...
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