Warren County Citizens v. Board of Com'Rs, No. 2004-CA-002251-MR.

Decision Date26 May 2006
Docket NumberNo. 2005-CA-000287-MR.,No. 2004-CA-002320-MR.,No. 2004-CA-002251-MR.,No. 2005-CA-000345-MR.
Citation207 S.W.3d 7
PartiesWARREN COUNTY CITIZENS FOR MANAGED GROWTH, INC.; Jim Duffer, as Chairman and Individually; Robert A. Hill, as Vice-chairman and Individually; and Gayla Cissell, as Secretary and Individually, Appellants/Cross-Appellees, v. BOARD OF COMMISSIONERS OF CITY OF BOWLING GREEN, Kentucky; City-County Planning Commission of Warren County, Kentucky; Inter-Modal Transportation Authority, Inc.; South-Central Kentucky Regional Development Authority; and Helen Marie Wallace Stahl, Appellees/Cross-Appellants, and Warren County Citizens for Managed Growth, Inc.; Jim Duffer, as Chairman and Individually; Gayla Cissell, as Secretary and Individually; and Rita Rudloff, as Board Member and Individually, Appellants/Cross-Appellees, v. Board of Commissioners of City of Bowling Green, Kentucky; City-County Planning Commission of Warren County, Kentucky; Inter-Modal Transportation Authority, Inc.; South-Central Kentucky Regional Development Authority; David and Shirley Herrington; Estate of Mabel I. Herring; and Danny and Margie Duvall, Appellees/Cross-Appellants.
CourtKentucky Court of Appeals

W. Henry Graddy, IV, W.H. Grady & Associates, Midway, KY, Benjamin D. Crocker, Travelstead & Crocker, Bowling Green, KY, for appellants/cross-appellees.

H. Eugene Harmon, City of Bowling Green, Department of Law Bowling Green Kentucky, Frank Hampton Moore, Jr., Matthew P. Cook, Cole & Moore, & Baker, Bowling Green, KY, Sheryl Snyder, Louisville, KY, for appellees/cross-appellants Board of Commissioners of City of Bowling Green and City County Planning Commission of Warren County.

L. Jude Clark, Jr., Griffin Terry Sumner, Sheryl Snyder, Frost Brown Todd, LLC, Louisville, KY, Whayne C. Priest, Jr. English, Lucas, Priest & Owsley, LLP, Bowling Green, KY, for appellee/cross-appellants Inter-Modal Transportation Authority, Inc., South Central Kentucky Regional Development Authority and Helen Marie Wallace Stahl.

Before KNOPF and TACKETT, Judges, and HUDDLESTON, Senior Judge.1

OPINION

KNOPF, Judge.

Warren County Citizens for Managed Growth, Inc. (WCCMG) appeals from summary judgment orders of the Warren Circuit Court affirming two Bowling Green city ordinances re-zoning tracts of property from agricultural to industrial. WCCMG also appeals from the circuit court's dismissal of its declaratory judgment actions relating to those re-zonings. The appellees cross-appeal from the circuit court's findings that WCCMG and its named members have standing to pursue a statutory appeal of the zoning ordinances. Given the related subject matter and issues presented, this Court ordered the appeals consolidated. We find that WCCMG and its named members have standing to pursue these appeals. However, we agree with the circuit court that the ordinances granting the map amendment were not arbitrary. Hence, we affirm in the appeals and in the cross-appeals.

The properties at issue are owned by the Intermodal Transportation Authority, Inc., South Central Kentucky Regional Development Authority, and various other individual landowners (collectively, the landowners). The landowners sought the rezoning of the properties to industrial as part of a larger development of the Kentucky Intermodal Transpark—a proposed regional industrial park development with air, rail and highway links. The re-zonings at issue in these appeals are the second and third actions, respectively, of four re-zonings related to the development of the Transpark.2

The subject property of the 2003 action is comprised of seven adjoining tracts consisting of a total of 236.13 acres. The property is bounded on the north by U.S. Highway 68/Kentucky Highway 80; on the east by Sunnyside-Gott Road; on the west by Hays-Martin Road; and on the south by the CSX Railroad tracks. The subject property of the 2004 action is comprised of three non-contiguous tracts consisting of a total of approximately 330 acres. Two of these tracts are located on the north side of U.S. Highway 68/Kentucky Highway 80. The easternmost tract (273.88 acres) is bounded by Mizaph Road, and the middle tract (40.41 acres) is located 2,482.62 feet from the intersection of U.S. 68/Ky. 80 and U.S. Highway 31-W. The westernmost tract (14.98 acres) fronts the south side of U.S. 31-W, 1,773.92 feet from the intersection with U.S. 68/Ky. 80.

The subject properties of the 2003 and the 2004 actions are all located within the city limits of Bowling Green. At the time of the applications, the properties were zoned agricultural and were used for that purpose. The adjoining properties to the north, east and south were also zoned and used for agriculture. The adjacent property to the west is zoned industrial, a use that pre-dated Warren County's adoption of zoning.

The landowners filed an application for a zoning map amendment in the 2003 action on July 28, 2003, and in the 2004 action on April 4, 2004.3 The separate applications proceeded in a similar manner. In both actions, the City-County Planning Commission of Warren County, Kentucky (the Planning Commission) referred the matters to its staff for initial review. After reviewing the applications and supporting studies, the Planning Commission staff issued reports recommending that the map amendments be granted, subject to certain binding elements relating to matters which concerned the staff.

In the 2003 action, the Planning Commission held a public hearing on August 21 and August 23, 2003. The landowners and the opponents of the re-zoning were each represented by counsel and were afforded the opportunity to call and cross-examine witnesses. In addition, the staff report was read into the record, and the Planning Commission Executive Director testified concerning the studies which went into the report and the binding elements which came out of the report. Other witnesses also testified for both sides. And at the conclusion of proof, individuals were allowed to make statements to the Planning Commission concerning their views on the proposed re-zoning. After hearing the evidence, the Planning Commission voted 10-2 to recommend approval of the proposed map amendment.

The matter then proceeded to the Board of Commissioners of the City of Bowling Green (the City Commission) for consideration on September 9, 2003. The City Commission received the Planning Commission's report and recommendation, and heard arguments from proponents and opponents of the re-zoning. The City Commission then conducted the first reading of the ordinance granting the map amendment,4 which was approved by unanimous vote. On October 7, 2003, the City Commission conducted its second reading of the ordinance, where it was enacted by unanimous vote.

Likewise in the 2004 action, the Planning Commission held a public hearing on May 6, 2004. As with the 2003 action, the staff report was read into the record, and individuals were allowed to make statements concerning their views on the proposed re-zoning. After hearing the evidence, the Planning Commission voted 9-1 to recommend approval of the proposed map amendment. The matter then proceeded to the City Commission on May 18, 2004. The City Commission adopted the Planning Commission's findings and conducted the first reading of the ordinance granting the map amendment.5 On June 1, 2004, the City Commission conducted its second reading of the ordinance, where it was enacted by unanimous vote.

On November 6, 2003, within thirty days from the City Commission's enactment of Ordinance No BG2003-52, WCCMG filed an appeal pursuant to KRS 100.347 seeking judicial review of the ordinance. WCCMG filed a separate count alleging that members of the Planning Commission and the City Commission were predisposed in favor of the map amendment application. The matter was submitted to the court on cross-motions for summary judgment. In an opinion and order rendered on July 7, 2004, the trial court granted summary judgment for the Planning Commission and the City Commission and the landowners. The trial court entered a separate order on October 1, 2004, making corrections to the July 7 order. The court also dismissed WCCMG's claim for declaratory relief, finding that the issue of prejudgment bias was outside of the scope of review and had not been properly preserved.

Similarly, on July 2, 2004, WCCMG filed a timely appeal from the enactment of Ordinance No. BG2004-24. As in the 2003 action, WCCMG challenged the ordinance under KRS 100.347, and filed a separate claim for declaratory relief alleging bias by members of the Planning Commission and City Commission. On December 10, 2004, the trial court granted summary judgment for the City Commission, the Planning Commission, and the landowners. In a separate order entered on January 10 2005, the trial court dismissed WCCMG's claim for declaratory relief.

WCCMG filed timely notices of appeal after each judgment, and the appellees responded with cross-appeals from the trial courts rulings in both actions finding that WCCMG had standing to pursue the appeals. Although the re-zonings were considered in separate applications and at different times, the re-zonings all took place as part of the Transpark project, and the properties are all within a close distance of each other. Furthermore, the respective circuit court judgments upheld the ordinances on substantially similar grounds. Likewise, the issues presented in the appeals and cross-appeals to this Court are identical. Consequently, this Court will consider the appeals together.

In their cross-appeals, the Planning Commission, the City Commission and the landowners argue that WCCMG and its named members lack standing to appeal from a re-zoning decision. WCCMG is a non-profit corporation which advocates against the Transpark project. There is no...

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