CITY OF WORTHINGTON HILLS, KENTUCKY v. WORTHINGTON FIRE PROTECTION DISTRICT; WORTHINGTON COMMUNITY ASSOCIATION; LOUISVILLE AND JEFFERSON COUNTY PLANNING COMMISSION; and JEFFERSON COUNTY, KENTUCKY
Annotate this Case
Download PDF
RENDERED:
JUNE 11, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002266-MR
CITY OF WORTHINGTON HILLS, KENTUCKY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 00-CI-003741
v.
WORTHINGTON FIRE PROTECTION DISTRICT;
WORTHINGTON COMMUNITY ASSOCIATION;
LOUISVILLE AND JEFFERSON COUNTY
PLANNING COMMISSION; and
JEFFERSON COUNTY, KENTUCKY
APPELLEES
OPINION
VACATING AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE:
MINTON, SCHRODER AND TAYLOR, JUDGES.
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. . . .”
Brief at 1.
Appellant’s
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
-2-
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
1
As observed by the circuit court, “[t]he Worthington Fire Protection
District, a KRS Chapter 75 taxing district, is the sole member of the
Worthington Community Association, a Kentucky non-profit corporation, d/b/a
The Worthington Fire Department. The Worthington Fire Department provides
fire protection services to all property located within the Worthington Fire
Protection District.” The Worthington Fire Protection District includes
property located within Worthington Hills.
-3-
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.
2
The Schells and the Hunts are owners of property located on Halifax Drive
within the City limits.
-4-
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
-5-
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
-6-
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 written
notice of the proposed closing to all
property owners in or abutting that
section of Halifax Drive to be closed,
including LWC [Louisville Water
Company]and MSD [Metropolitan Sewer
District];
(c) The City enacted both those Ordinances
prior to receiving written notarized
consents approving the closing from all
property owners in or abutting the
public way or portion thereof to be
closed, including LWC and MSD; and
(d) The City’s notices to property owners
were “misleading” because they
represented the City would file an
application to close the street with
-7-
the Commission, which would make a
recommendation for closing to the
legislative body having jurisdiction
over the street. When the City enacted
Ordinance No. 1, Series 2000, Halifax
Drive had already been physically
closed and the City had no intention of
filing an application to close the
street with the Planning Commission.
The circuit court’s decision is essentially premised
upon three grounds: (1) Worthington Hills must follow the
applicable planning and zoning statute (KRS 100.324(4) and
regulation (§ 14.2 of the Jefferson County Development Code) to
properly effectuate a closure of Halifax Drive; (2) the City
must obtain Jefferson County Fiscal Court approval under KRS
Chapter 178 to properly effectuate a closure of Halifax Drive;
and (3) the City failed to comply with the requirements of KRS
82.405(1) and (2).
We shall analyze these grounds seriatim.
The planning and zoning scheme of this Commonwealth is
codified in KRS Chapter 100.
In construing KRS Chapter 100, we
are aided by KRS 100.361(2) which reads:
Nothing in this chapter shall impair the
sovereignty of the Commonwealth of Kentucky
over its political subdivisions. Any
proposal affecting land use by any
department, commission, board, authority,
agency, or instrumentality of state
government shall not require approval of the
local planning unit. However, adequate
information concerning the proposals shall
be furnished to the planning commission by
the department, commission, board,
authority, agency, or instrumentality of
state government.
-8-
Under this statute, the legislature has expressly exempted an
“instrumentality of state government” from complying with
planning and zoning.
A sixth class city clearly constitutes an
instrumentality of state government under KRS 100.361(2) and,
thus, is immune from complying with planning and zoning
regulations.
See City of Louisville Bd. of Zoning Adjustment v.
Gailor, Ky. App., 920 S.W.2d 887 (1996); Edelen v. Nelson
County, Ky. App., 723 S.W.2d 887 (1987).
Therefore, we must
conclude that the City is not bound by § 14.2 of the Jefferson
County Development Code.
As to whether the City must follow the mandates of KRS
100.324(4),3 we view Hopkinsville-Christian County Planning
Commission v. Christian County Board of Education, Ky. App., 903
S.W.2d 531 (1995) as dispositive.
In that case, the Court of
Appeals was presented with the issue of whether a county board
3
KRS 100.324(4) reads:
Any proposal for acquisition or disposition of land for
public facilities, or changes in the character, location, or
extent of structures or land for public facilities, excluding
state and federal highways and public utilities and common
carriers by rail mentioned in this section, shall be referred to
the commission to be reviewed in light of its agreement with the
comprehensive plan, and the commission shall, within sixty (60)
days from the date of its receipt, review the project and advise
the referring body whether the project is in accordance with the
comprehensive plan. If it disapproves of the project, it shall
state the reasons for disapproval in writing and make suggestions
for changes which will, in its opinion, better accomplish the
objectives of the comprehensive plan. No permit required for
construction or occupancy of such public facilities shall be
issued until the expiration of the sixty (60) day period or until
the planning commission issues its report, whichever occurs
first.
-9-
of education must obtain approval of the local planning
commission before building an athletic field on school property.
To resolve the issue, this Court was required to construe two
seemingly conflicting statutes -- KRS 100.361(2), which exempted
instrumentalities of state government from planning and zoning,
and KRS 100.324(4), which required planning commission review of
proposals relating to public facilities.4
In an effort to
harmonize the two statues, this Court held:
Recognizing these rules we construe the two
statutes as mandating that the school board
furnish adequate information concerning
proposed public facilities to the planning
commission for its review and opinion.
Following the clear wording of KRS
100.361(2), we are not inclined to believe
the legislature in enacting KRS 100.324(4)
intended to mandate that a school board--an
obvious agency of the state--be required to
obtain approval of a local planning unit
before erecting a public facility. In the
final analysis, the school board may
disregard the opinion of the planning
commission. We, therefore, harmonize these
statutes by construing them as requiring
“mandatory review” by the planning
commission (KRS 100.324(4)), but “voluntary
compliance” by the school board. KRS
100.361(2).
903 S.W.2d at 532-533.
Based upon our reading of Hopkinsville-Christian
County Planning Commission, we conclude that Worthington Hills,
4
Public facility is defined by KRS 100.111(19) as meaning “any use of land
whether publicly or privately owned for transportation, utilities, or
communications, or for the benefit of the general public, including but not
limited to libraries, streets . . . .”
-10-
as an instrumentality of the state, must seek a “mandatory
review” by the planning commission under KRS 100.324(4) but is
not required to comply with the planning commission’s ultimate
decision.
The City filed an application to close Halifax Drive
with the planning commission in 1999.
The planning commission
recommended the application be denied based upon several
factors, including that closure would violate the comprehensive
plan.
We view the planning commission’s review of the City’s
application to close as tantamount to a review under KRS
100.324(4).
Thus, we believe that the City has, in fact, sought
review of the planning commission under KRS 100.324(4).
We shall now address whether Worthington Hills must
obtain the approval of the Jefferson County Fiscal Court
pursuant to KRS Chapter 178, to close a portion of a public way
located within its boundaries.
In support of its position that
fiscal court approval is necessary, the circuit court
specifically cited to KRS 178.070, KRS 178.115, and KRS 178.116.
We think the plain language of KRS 178.070, KRS
178.115, and KRS 178.116 clearly limit their application to
“county roads.”
In this case, the gate was erected across a
portion of Halifax Drive located within the city limits and,
thus, was erected across a city street.
Accordingly, we
conclude that KRS 178.070, KRS 178.115, and KRS 178.116 are
inapplicable to closure of a city street and that Worthington
-11-
Hills need not obtain fiscal court approval for its closure of a
portion of Halifax Drive under these statutes.
On the contrary, we hold that the City possesses the
unquestionable authority to close Halifax Drive under KRS
82.405(1) and (2):
(1)
(2)
If a legislative body of a city
determines that a public way located
within the city should be closed in
whole or in part, and that all property
owners in or abutting the public way or
portion thereof agree to the closing of
the public way, the legislative body
may proceed to close the public way or
portion thereof as provided in
subsection (2) of this section. If
that determination is not made, a
public way or portion thereof may be
closed only as provided in subsections
(3) and (4) of this section.
The legislative body of a city may
close a public way, in whole or in
part, as provided in this subsection,
if it makes the following findings of
fact:
(a) Identification of all property
owners in or abutting the public
way or portion thereof to be
closed;
(b) Written notice of the proposed
closing was given to all property
owners in or abutting the public
way or portion thereof being
closed; and
(c) All property owners in or abutting
the public way or portion thereof
being closed have given their
written notarized consent to the
closing, and copies of the consent
shall be attached thereto.
-12-
Under subsection (2), the legislative body of a city
must make findings of fact that identification of, written
notice to, and written consent of “all property owners in or
abutting the public way or portion thereof” to be closed was
given and received.
We believe the City complied with its duty
to make such findings of fact through passage of Ordinance No.
1, Series 2000.
Therein, the legislative body of the City found
that identification of, written notice to, and written consent
of the appropriate property owners had been effectuated.
Under
KRS 82.405(2), we believe these findings may be made
contemporaneously with the passage of the ordinance effectuating
road closure.
It appears the City actually gave written notice to
and received written consent from some fifty (50) property
owners in an attempt to comply with KRS 82.405(2).
It is,
however, unclear how the City identified the owners of the
property “in” or “abutting” the closed portion of Halifax Drive.5
The City’s confusion evidently stems from the ambiguity
contained in the above statutory language.
The interpretation of a statute is a matter of law for
the court.
White v. McAllister, Ky. 443 S.W.2d 541 (1969).
5
We are cognizant that “owners of property” and “property owners” cannot
technically abut or be located in a public way. Rather, it is the “property”
that “abuts” or is located “in” a public way. We utilize the terms “owners
of property” and “property owners” so as to be consistent with the statutory
language of KRS 82.405.
-13-
When interpreting a statute, the court is bound to give it a
reasonable interpretation and to accomplish the legislative
purpose.
Marcinek v. Commonwealth ex rel. Marcum, Ky. App., 999
S.W.2d 721 (1999).
as follows:
The ambiguous statutory language at issue is
“all property owners in or abutting the public way
or portion thereof to be closed.”
When interpreting the above statutory language, we
initially point out that “to be closed” should be read as
modifying both “public way” and “portion thereof.”
Simply
stated, we interpret subsection (2) as referring to owners of
property that are in or abutting the public way to be closed or
the portion of the public way to be closed.
Under our
interpretation, it would be unnecessary to give written
notification to all property owners along a public way when only
a portion thereof is to be closed; only those property owners
that abut or are in the portion of the public way to be closed
must receive notice.
We also view the terms “in” and “abutting” as
ambiguous.
It is a well established rule of statutory
interpretation that words which have acquired a technical legal
meaning should be accorded that meaning, while words which have
not should be given their common meaning.
Commonwealth v.
Wombles, Ky. 346 S.W.2d 299 (1961); Payton v. Norris, 240 Ky.
555, 42 S.W.2d 723 (1931).
Relative to public roads, the term
-14-
“abutting” has acquired a technical legal meaning that denotes
property which directly touches at a single point upon the
public way.
39 Am. Jur. 2d Highways, Streets, and Bridges § 202
(1999); see also Riedling v. Harrod, 298 Ky. 232, 182 S.W.2d 770
(1944); Wessels Constr. and Dev. Co. v. Commonwealth, 560 F.
Supp. 25 (E.D.Ky. 1983).
Under KRS 82.405(2), the term
“abutting” refers to property owners that directly touch upon a
single point of the public way to be closed.
These property
owners are commonly located on either side of the public way to
be closed or the portion thereof to be closed.
Unlike the term “abutting”, the term “in” has not
acquired such a technical legal meaning.
use its common meaning:
We shall, therefore,
“located inside or within.”
Heritage Dictionary 663 (New College ed. 1981).
American
Within the
context of subsection (2), we interpret the term “in” as
signifying owners of property that are located inside or within
the public way to be closed or portion thereof to be closed.
These property owners would generally be those holding utility
easements located “within” the public way to be closed or
portion thereof to be closed.6
In view of the forgoing, we interpret KRS 82.405(2) as
requiring identification of, written notification to, and
6
It has been observed that an easement is “a property right or interest in
land.” Illinois Central R.R. Co. v. Roberts, Ky. App., 928 S.W.2d 822, 826
(1996); see also 25 Am. Jur. 2d Easements and Licenses § 2 (1996).
-15-
written consent of property owners that either:
(I) directly
touch upon a single point of the public way to be closed; (II)
directly touch upon a single point of the portion of the public
way to be closed; (III) are located within the public way to be
closed; or (IV) are located within the portion of the public way
to be closed.
Here, it is clear that only a portion of Halifax Drive
was closed.
This portion has been more particularly identified
as a 15 x 80 foot strip upon which the gate was erected.
Under
these facts, only owners whose property directly touches upon a
single point of the 15 x 80 foot closed portion of Halifax Drive
or whose property is located within the 15 x 80 foot closed
portion are entitled to written notice under KRS 82.405(2).
We
are, however, unable to discern from the record the identities
of such property owners.
As such, we must remand this action
with directions that the circuit court identify these property
owners and determine whether they received proper written notice
and gave written consent under the terms of KRS 82.405(2).
If
the appropriate property owners received proper written notice
and gave written consent, the circuit court should dismiss
Worthington Fire Department’s complaint.
In sum, we hold the City is not bound by § 14.2 of the
Jefferson County Development Code nor is it bound by the
decision of the Jefferson County Planning Commission under KRS
-16-
100.324(4).
We also do not believe the City is required to
obtain approval of the Jefferson County Fiscal Court pursuant to
KRS 178.070, KRS 178.115, or KRS 178.116, to close a public way.
Rather, we are of the opinion the City possesses the singular
authority to effectuate a closure of Halifax Drive under KRS
82.405(1) and (2) and the City’s legislative body made the
required findings of fact thereunder.
We, however, remand this
action for a determination of the identity of the property
owners under KRS 82.405(2) and whether such owners received
proper written notice and gave written consent under KRS
82.405(2).
If proper written notice was given and written
consent was received, the circuit court thereupon should dismiss
the complaint.
For the foregoing reasons, the opinion and order of
the Jefferson Circuit Court is vacated, and this cause remanded
with directions that the circuit court identify the owners of
property that are in or abutting the closed portion of Halifax
Drive and determine whether such owners received proper written
notice and gave written consent under the terms of KRS
82.405(2).
ALL CONCUR.
-17-
BRIEFS FOR APPELLANT:
Stephen A. Schwager
Louisville, Kentucky
Kyle T. Hubbard
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEES, WORTHINGTON HILLS
FIRE PROTECTION DISTRICT AND
WORTHINGTON COMMUNITY
ASSOCIATION:
J. Bissell Roberts
STITES & HARBISON, PLLC
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Kyle T. Hubbard
Louisville, Kentucky
-18-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.