Scenic Ky., Inc. v. Commonwealth
| Decision Date | 18 May 2018 |
| Docket Number | NO. 2016-CA-001052-MR,2016-CA-001052-MR |
| Parties | SCENIC KENTUCKY, INC. AND STEPHEN PORTER APPELLANTS v. COMMONWEALTH OF KENTUCKY, KENTUCKY TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS; AND OUTDOOR ADVERTISING ASSOCIATION OF KENTUCKY APPELLEES |
| Court | Court of Appeals of Kentucky |
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
Scenic Kentucky, Inc. and Stephen Porter appeal from an order of the Franklin Circuit Court dismissing their declaratory judgment action seeking a declaration of rights as to the legality and constitutionality of two Kentucky Administrative Regulations (KAR) promulgated by the Kentucky Transportation Cabinet. The circuit court ruled that neither Scenic nor Porter has standing to pursue the action. We agree with the circuit court that Porter does not have individual standing because he failed to show he has suffered or will suffer a specific injury distinct to him from that suffered by the public generally and, because Scenic does not have a member who has individual standing, Scenic cannot establish associational standing.
Scenic is a non-profit corporation under the laws of Kentucky, with a principal office in Louisville. Its stated mission is to "to preserve, protect, and enhance the scenic and aesthetic character of Kentucky's communities and roadsides." Porter is a Louisville resident and a Scenic board member.
In late 2015, the Kentucky legislature approved 603 KAR 10:021, which provides a regulatory framework for the use of electronic advertising devices. It also approved 603 KAR 5:155 allowing pruning and removal of trees and other vegetation located on public rights-of-way along Kentucky roadways obstructing visibility of those devices.
Shortly after the passage of the regulations, Scenic filed this declaratory judgment action pursuant to Kentucky Revised Statutes (KRS) 418.040 challenging the legality and constitutionality of 603 KAR 10:021 and 603 KAR 5:155. The complaint was accompanied by Porter's affidavit. In addition tostating that he is a Louisville resident and a current board member of Scenic, Porter stated he had driven past electronic advertising devices and was distracted by the changing messages putting his safety at risk. He also stated he personally enjoys trees and vegetation along Kentucky's rights-of-way. Finally, he stated that as a taxpayer, he has standing to challenge the constitutionality of granting a privilege to destroy public property for private purposes without compensation in violation of Section 3 and Section 177 of the Kentucky Constitution.1
The Cabinet filed a motion to dismiss the complaint on numerous grounds, including lack of standing by either Scenic or Porter. On the same date, the Outdoor Advertising Association of Kentucky (OAAK) filed a motion to intervene and to dismiss. By agreement of the parties, OAAK was permitted to intervene. Shortly after the motions to dismiss were filed, Scenic and Porter filedan amended complaint and petition for declaration of rights to clarify that Porter was a board member of Scenic and to add him, individually, as a plaintiff.
The circuit court concluded that Porter, individually, lacked standing and that Scenic lacked associational standing and dismissed the action. Scenic and Porter appealed.
The concept of standing and its relationship to justiciability, a separate but interrelated concept was explained in Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d 107, 112 (Ky.App. 2014) (internal quotations and citations omitted):
To meet the "real and substantial interest" requirement, the plaintiff must show that the injury he suffered or will suffer is Kemper v. Cooke, 576 S.W.2d 263, 266 (Ky.App. 1979).
A trial court's ultimate determination as to whether a party has standing is a matter of law that we review de novo. Interactive Gaming Council, 425 S.W.3d at 111. However, any factual findings necessary to that determination are entitled to deference and those findings based on substantial evidence will not be reversed. Id. "Substantial evidence" is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable people." Abbott Lab. v. Smith, 205 S.W.3d 249, 253 (Ky.App. 2006).
The declaratory judgment statute does not circumvent the standing requirement. As stated in HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 948 (Ky. 1985), "Chapter 418, the Declaratory Judgment Chapter, confers standing on a party only where there is a specific right involved."
Porter contends that he has standing to challenge the regulations because he has suffered and will suffer the specific injury required for standing because of his aesthetic interest in preserving the scenic views along Kentucky roadways and his own safety interest in traveling those roadways. Although thereare some distinctions between this case and Bailey v. Preserve Rural Roads of Madison County, Inc., 394 S.W.3d 350 (Ky. 2011), the facts are analogous.
In Bailey, the Court addressed whether Curtis Tate had standing to enjoin a private citizen from blocking a county road upon which the Madison Fiscal Court voted to discontinue maintenance. Tate did not own, lease or reside on the property accessed by the road but argued he had standing because the road met "a public need, [provided] a shortcut for him, and [gave] him access to many sites important to his family history." Id. at 355. The Court rejected his argument reasoning as follows:
Tate argues that Appellant's blocking of Dunbar Branch Road forces him to take a longer route when he travels between certain locations. Yet, Tate does not and cannot argue that the blocking of Dunbar Branch Road has obstructed his access to his own property. He still has "reasonable access" to the county road system despite the potentially longer route he must take to certain locations. Additionally, while the closure of Dunbar Branch Road may prevent Tate from visiting sites connected with his family's heritage and history, he personally possesses no easement or right to have access to those locations. Therefore, Tate has failed to show that he has a specific injury different than any other member of the public and he does not possess standing to individually bring suit against Appellant.
Id. at 356 ().
Like Tate, Porter does not allege any damage distinct to him that would not be suffered by the public generally. Porter does not own property thatwill be affected by the regulations nor does he assert that he will apply for a permit under the regulations. Moreover, he does not allege that any electronic advertising device will prevent his use of a public roadway. Porter's assertion that his aesthetic interests and his safety will be adversely affected by a hypothetical billboard located in a yet unknown location is nothing more than speculation at this point and not the real and substantial type of injury required for standing.
Porter also asserts standing based on his status as a taxpayer....
To continue reading
Request your trial