ENTERED | OCT 2 9 2010 COMMONWEALTH OF KENTUCKY Lonam cvneusr ns mot OLDHAM CIRCUIT COURT NO. 08-C1-00797 By STEVE HAROLD, ET. AL PLAINTIFFS/APPELLANTS ORDER vs. OLDHAM COUNTY PLANNING DEFENDANTS/APPELLEES COMMISSION, OLDHAM FARMS DEVELOPMENT, LLC, ET. AL. This matter is before the Court pursuant to Defendant Planning Commission’ ‘Motion for Partial Summary Judgment and Motion for Protective Order to stay Depositions, Plaintiffs’ Motion for Summary Judgment, Motion to release each Commissioner from being individually liable, ete, The Court has reviewed all the submitted briefs, affidavits, maps, Planning Commission meeting minutes, applicable notice requirements, relevant case law, etc., and finds as follows: On June 24, 2008, a motion to deny an application made by Oldham Farms for approval of Brentwood Subdivision plan was made by Commissioner McIntyre, and approved by the Planning Commission. According to the minutes of that hearing, Commissioner McIntyre stated that there was insufficient evidence that the mitigation fees offered by the applicant to pay for the widening of existing public roadways wouldbe used for such purposes. ‘This widening is essential in order for the proposed subdivision plat to comply with the Oldham County Subdivision regulations. Oldham Farms, LLC then appealed the denial to Circuit Court; and an Agreed Order was thereafter entered dismissing the suit. Under the terms of this agreed order, the matter was retumed to Planning and Zoning; which went into closed session on September 1, 2008, followed by an open meeting at which a vote was taken resulting in approval of the Brentwood Subdivision jon’s earlier denial. This lawsuit followed, plan, thereby overtuiming the Commis alleging various legal violations including KRS 100.171, 61.823 and § 3.2 of the Oldham County Subdivision Regulations. Plaintiffs contend that the Oldham Planning ‘Commission abused its authority by approving the subdivision plan because of the fear of the threat of liti ion, the Court does not an impending unfavorable lawsuit. Even automatically strike down the Commission’s July 25, 2008 decision to accept the Brentwood subdivision plan. A vote by a Commissioner is not patently invalid or improper just because of the possible threat of litigation.’ The Court finds that in regards to the threat of litigation issue only, the threat does not automatically make the decision invalid here However, in its November 2009 Order, the Court addressed that ii holds certain concems regarding possible Due Process violations from the special meeting- notably two factors of the special meeting are at issue with the Court here. First, the Notice requirement, pursuant to KRS 61.823 and the Oldham County Subdivision Regulation 3.2, may not have been met. Second, the Court calls into question the manner in which a closed session meeting took place immediately prior to the Special Meeting vote. * City Planning Commission of Warren County, KY v, Jackson, etal, 610 S.W. 2d 930 (Ky. App. 1981). Order-Brentwood subdivision I.docAdditionally, another possible procedural error has been brought to light by Honorable Stuart Ulferts, in that Plaintiffs/Appellants failed to submit the required notice/written complaint to the Planning Commission with regard to alleged violations of Open Meetings Law KRS 61.846, prior to invoking judicial relief by filing this Appeal.” In light of the above, as the case has now been fully briefed and is ready for submission, the Court rules as follows: With regards to the Planning Commission’s Motion for Partial Summary Judgment, the Court SUSTAINS the motion, in part, due to Plaintiff's failure to comply with written notice requirements set forth in KRS 61.846. Plaintiffs argued that the Planning Commission violated the Open Meetings Act, however Plaintiffs failed to request remedial action directly to the Planning Commission prior to filing suit, a requirement under KRS 61.846 (1), 61.848 (2). Any claims of possible Open Meetings Act violations fall under the purview of KRS 61.805-850, Additionally, close reading of the unpublished Klenjan v, Spencer County Board of Education’ case, reveals that failure to make Open Meetings Act complaint to Board’s presiding officer precluded movant from asserting the violation of Act. Although the Open Meetings Act does not demand complete exhaustion of remedies before filing civil suit, it does require the “submission of a written Open Meetings Act complaint to the presiding officer of the Board as a prerequisite to judicial relief.” The Court SUSTAINS the Motion to Dismiss * KRS 61.846 (I). 3 KRS 76.28 (4)-dictates that “unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the Court if there is no published opinion that would adequately address the issue before the Court.” * Klenjan v, Spencer County Board of Education, 2006 WL 3460812 (Ky. App.) 5 id. at 4, citing KRS 61.848 (2). Order-Brentwood subdivision 1 .doc 3as to Count I, violation of Open Meetings Act, due to failure to comply with the proper procedural process, Oldham Farms has also submitted a Motion for Summary Judgment, arguing that no violations of due process occurred and that the appeal of the Brentwood subdivi ims. The approval should be dismissed as there is no evidence to support appellants” cl Court disagrees. ‘The Court tums to the appropriate review standard when de appeals of an Administrative Board’s decision. In American Beauty Homes Corp. v. Louisville Jefferson County Planning and Zoning Commission, the central question is whether or not the Board’s decision was arbitrary.° Three issues are addressed in determining the question of arbitrariness. First, the administrative agency must not have acted in excess of its statutory powers. Second, the parties affected by an administrative order are entitled to due process. And third, the action taken by an administrative agency must be supported by substantial evidence.” Oldham Farms contends that the approval was a ministerial act, and the Planning Commission was compelled to approve by the evidence submitted. They argue that no violations of due process took place, because appellants did not have the right to voice their objections as the approval was compulsory. However, the Court disagrees with this argument, as it does not categorize the Planning Commission’s approval as “ministerial” or compulsory here. It appears that the second prong of the American Beauty standard has not been met Due process rights cannot be waived, and certainly applied to the Plaintiffs here. Further, the Court disagrees that proper notice was given when the Courier Journal printed a news article on August 13, 2008 following the Planning © American Beauty Homes Corp. v. Louisville Jefferson County Planning and Zoning Commission, 379 S.W. 24.450, 457 (Ky. 1964). "hd, at 456. Order-Brentwood subdivision 1.docCommission’s July 25, 2008 closed meeting. There was no proper legal notice of the meeting,® such as notice in the Oldham Era alerting to the upcoming Planning Commission’s reconsideration of the earlier vote regarding Brentwood subdivision. As such, the Court DENIES Oldham Farms’ Motion for Summary Judgment, and the remaining element of the Planning and Zoning Commission’s Motion for Partial ‘Summary Judgment as to due process, as there does appear to be violation of due process rights in the record, The Court now tums to Plaintiffs’ motion for Summary Judgment, where it argues that the approval decision was not supported by substantial evidence, and that there were patently unconstitutional due process rights violations. Specifically, Plaintiff's contend that the subdivision plan violates Oldham County Subdivision Regulations 5.3 A; 5.3 B.3; 5.3.B.4; 5.3.C; 5.3.C.3.(a); 5.3.C.3.(c);7.1.C; 7.2.D.4; 7.2.F. They argue that the decision to approve is void on its face as a matter of law. However, this argument becomes moot here, as the Court finds due process rights violations which ultimately void the decision in this case. ‘As stated above, there was no proper legal notice pursuant to KRS 61.823 prior to conducting the “Special Meeting” on July 25, 2008, This proves to be a fatal flaw for the Planning Commission’s final decision to approve, as they failed to comply with the proper notice requirements. Due process rights cannot be waived, and Piaintiffs, along with all interested Oldham County citizens, had the right to be on notice that this special meeting was to take place. Therefore, IT IS HEREBY ORDERED AND ADJUDGED that the Planning Commission’s Final Approval of the Brentwood Subdivision is SET ASIDE AND THE MATTER IS REMANDED for further proceedings. ® KRS 61.823. Order-Brentwood subdivision 1.doc 5