Boone Development, LLC v. Nicholasville Board of Adjustment

• Court: Court of Appeals of Kentucky
• Decided: September 29, 2022
• Docket: 2021 CA 000099
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 30, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0099-MR

BOONE DEVELOPMENT, LLC AND VIA VITAE DEVELOPMENT, LLC, D/B/A JAMES MONROE HOMES APPELLANTS

APPEAL FROM JESSAMINE CIRCUIT COURT v. HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 20-CI-00494

NICHOLASVILLE BOARD OF ADJUSTMENT; ALEX LYTTLE, MEMBER; COMMONWEALTH OF KENTUCKY, EX REL. DANIEL CAMERON, ATTORNEY GENERAL; HAROLD E. SMITH, ACTING CHAIRMAN; JENNIFER CARPENTER, MEMBER; JIM PARSONS, MEMBER; JIMMY WELLS, MEMBER; MICHAEL EAKINS, IN HIS OFFICIAL CAPACITY AS INTERIM/ACTING PLANNING DIRECTOR/ADMINISTRATIVE OFFICER FOR THE CITY OF NICHOLASVILLE PLANNING COMMISSION; PAULA ELDER, MEMBER; TANYA BOLTON, MEMBER; THE CITY OF NICHOLASVILLE PLANNING COMMISSION; TIM CROSS, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS ENGINEER FOR THE CITY OF NICHOLASVILLE PLANNING COMMISSION; AND WM. WAYNE HADEN, MEMBER APPELLEES

AND NO. 2021-CA-0150-MR

HAROLD SMITH (AKA HAROLD E. SMITH), IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; ALEX LYTTLE, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; JENNIFER CARPENTER, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; JIM PARSONS, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; JIMMY WELLS, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; MICHAEL EAKINS, IN HIS OFFICIAL CAPACITY; NICHOLASVILLE BOARD OF ADJUSTMENT; PAULA ELDER, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; TANYA BOLTON, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT; THE CITY OF NICHOLASVILLE PLANNING COMMISSION; TIM CROSS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; AND WM. WAYNE HADEN, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE BOARD OF ADJUSTMENT CROSS-APPELLANTS

CROSS-APPEAL FROM JESSAMINE CIRCUIT COURT v. HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 20-CI-00494

-2- BOONE DEVELOPMENT, LLC AND VIA VITAE DEVELOPMENT, LLC, D/B/A JAMES MONROE HOMES CROSS-APPELLEES

OPINION AND ORDER REMANDING APPEAL AND CROSS-APPEAL

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.

CLAYTON, CHIEF JUDGE: Appellants appeal from the Jessamine Circuit

Court’s opinion and judgment affirming the Nicholasville Board of Adjustment’s

decision to uphold the Nicholasville Planning Commission’s (the “Planning

Commission”) decision to require Boone Development, LLC (“Boone”) to

construct and pay for a stream crossing between two parcels of land located in

Nicholasville, Kentucky.

Additionally, Appellees have filed a cross-appeal, arguing primarily

that the circuit court lacked jurisdiction over the appeal because Appellants failed

to properly issue summons in good faith within the thirty-day appeal time outlined

in Kentucky Revised Statute (“KRS”) 100.347(1).

For the following reasons, we ORDER this case to be remanded with

instructions to the circuit court to conduct a hearing as described in KRS

100.3471(3) and our Opinion in appeal No. 2021-CA-0411-MR.

-3- FACTUAL AND PROCEDURAL BACKGROUND

The underlying dispute in this appeal is a land-use issue between a

property developer – Boone – and the Nicholasville Board of Adjustment (“the

Board”). After the Jessamine Circuit Court issued a final decision in favor of the

Board, Boone appealed to this Court under KRS 100.347, and the Board cross-

appealed.

Boone filed its notice of appeal with this Court on the merits of the

underlying land-use dispute on January 15, 2021. Thereafter, the Board filed a

motion on February 4, 2021, under KRS 100.3471, asking the circuit court to

require an appeal bond from Boone. Boone opposed that motion via a motion filed

on February 9, 2021, arguing that KRS 100.3471 was unconstitutional. The

Attorney General intervened on behalf of the Commonwealth to defend the

statute’s constitutionality. Ultimately, the Jessamine Circuit Court agreed with

Boone and declared the statute unconstitutional in an order entered on April 2,

2021. The Court consolidated this appeal with several other appeals challenging

the constitutionality of KRS 100.3471.

We will discuss further facts as they become relevant to this Opinion

and Order.

-4- ANALYSIS

While none of the briefs in this appeal and cross-appeal addressed the

constitutionality of KRS 100.3471, the issue was before us in the other

consolidated appeals and is determinative in this action. In planning and zoning

matters, KRS 100.347 provides for appeals to the circuit court from the final

actions of the board of adjustment, the planning commission, or the legislative

body of any city, county, or consolidated local government. However, KRS

100.3471 seeks to limit the subsequent appeals of such cases to the Court of

Appeals by requiring an appellant to post a bond if the appellee requests.

For reasons discussed in our Opinion in appeal No. 2021-CA-0411-

MR, we find the statute constitutional. Particularly, we found that, in enacting

KRS 100.3471, the General Assembly utilized its authority to prescribe this

Court’s appellate jurisdiction. By stating that an “appeal shall be dismissed” if the

appellant fails to post the necessary bond within the appropriate time, KRS

100.3471 removes such an appeal from the Court of Appeals’ jurisdiction. Stated

another way, KRS 100.3471 provides that the Court of Appeals’ jurisdiction only

encompasses appeals in which the appellant timely posts the required bond.

However, as stated by our Supreme Court, “[s]ubject matter

jurisdiction issues are different than other issues because they may be raised at any

time, even by the court itself. . . . They are all the more important when

-5- established so clearly by statute.” Kentucky Employers Mut. Ins. v. Coleman, 236

S.W.3d 9, 15 (Ky. 2007) (emphasis added) (citing Commonwealth Health Corp. v.

Croslin, 920 S.W.2d 46, 48 (Ky. 1996) (discussing the Court’s “inherent power” to

raise sua sponte the issue of subject matter jurisdiction)).

If a court does not have subject matter jurisdiction, it has “not been

given any power to do anything at all in such a case[.]” Duncan v. O’Nan, 451

S.W.2d 626, 631 (Ky. 1970) (citation omitted). Therefore, “[u]tilizing our inherent

power to do so,” we may review for lack of subject matter jurisdiction even if

Appellees failed to appeal from the circuit court’s order regarding the statute’s

constitutionality. Croslin, 920 S.W.2d at 48 (citation omitted).

CONCLUSION

We hereby ORDER that this appeal and cross-appeal be

REMANDED with instructions to the circuit court to conduct a hearing as

described in KRS 100.3471(3) and our Opinion in appeal No. 2021-CA-0411-MR.

ALL CONCUR.

ENTERED: September 30, 2022___ _________________________________ CHIEF JUDGE, COURT OF APPEALS

-6- BRIEFS FOR BRIEFS FOR APPELLEES/CROSS- APPELLANTS/CROSS- APPELLANTS: APPELLEES: Bruce E. Smith Carroll M. Redford, III Nicholasville, Kentucky Elizabeth C. Woodford Lexington, Kentucky

ORAL ARGUMENT FOR ORAL ARGUMENT FOR APPELLEES/ APPELLANTS/CROSS- CROSS-APPELLANTS: APPELLEES: Bruce E. Smith Carroll M. Redford, III Darren T. Sammons Lexington, Kentucky Nicholasville, Kentucky

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