RENDERED: MAY 5, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0221-MR
CITY OF CORBIN, KENTUCKY; CITY UTILITIES COMMISSION OF CORBIN, KENTUCKY; AND MPI KY, LLC APPELLANTS
APPEAL FROM LAUREL CIRCUIT COURT v. HONORABLE GREGORY A. LAY, JUDGE ACTION NO. 20-CI-00662
CITY OF LONDON, KENTUCKY APPELLEE
AND
NO. 2022-CA-0334-MR
CITY OF LONDON, KENTUCKY CROSS-APPELLANT
CROSS-APPEAL FROM LAUREL CIRCUIT COURT v. HONORABLE GREGORY A. LAY, JUDGE ACTION NO. 20-CI-00662
CITY OF CORBIN, KENTUCKY; CITY UTILITIES COMMISSION OF CORBIN, KENTUCKY; AND MPI KY, LLC CROSS-APPELLEES
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
COMBS, JUDGE: The City of Corbin, Kentucky, (Corbin); the City Utilities
Commission of Corbin, Kentucky, (the Utilities Commission); and MPI KY, LLC
(MPI), a private company, appeal from the summary judgment of the Laurel
Circuit Court entered in favor of the City of London, Kentucky, (London). London
cross-appeals. After carefully reviewing the record in light of the arguments of
counsel, we conclude that the existence of a genuine issue of material fact
precludes entry of summary judgment in London’s favor and that London’s cross-
appeal is without merit. Consequently, we affirm in part and vacate in part, and we
remand for additional proceedings.
Pursuant to the provisions of KRS1 81A.420, London proposed to
annex two unincorporated areas in Laurel County. Tract 1 encompasses a portion
of Interstate Highway 75 and its right-of-way for approximately nine miles. It
1 Kentucky Revised Statutes.
-2- borders London’s southern city limits. Tract 2, located at the intersection of
Interstate Highway 75 and West Cumberland Gap Parkway, is adjacent to Tract 1
and is owned by G & M Oil Company. G & M Oil Company requested the
annexation. Together, the tracts total 639 acres.
On August 12, 2020, Ordinance 2020-10 received its first reading.
The ordinance defined the boundaries of the unincorporated territory proposed to
be annexed and stated the intention of London to annex it. The ordinance directed
that written notice of London’s intention to annex the properties be mailed to the
property owners of Tract 1 and Tract 2 as required by the provisions of KRS
81A.425.
On September 10, 2020, Corbin’s counsel sent correspondence by
email to London’s City Attorney advising that Corbin owned utility infrastructure
within Tract 1. Counsel noted that London had failed to provide notice of the
proposed annexation to Corbin’s mayor no later than fourteen (14) days prior to the
meeting at which the ordinance would receive its second reading as required by the
provisions of KRS 81A.427(3). Corbin lodged an informal objection to the
annexation of Tract 1 and requested that London’s city council postpone its
meeting. However, London did not postpone the meeting, and on the evening of
September 10, 2020, the ordinance received its second reading. Corbin’s mayor
appeared at the meeting to oppose the proposed annexation. The ordinance passed
-3- unanimously. Thereafter, London provided public notice of the ordinance in
September, October, and December 2020.
On September 11, 2020, the day after London’s city council meeting,
Corbin filed a petition for declaration of rights in Laurel Circuit Court. Corbin
alleged that two controversies existed. First, Corbin challenged the legality of the
ordinance proposing the annexation of Tract 1 and Tract 2 “on the basis that
neither territory is suitable for annexation pursuant to the terms of KRS 81A.410.”
In part, it alleged that the annexation of Tract 1 constitutes prohibited “corridor
annexation” and fails to serve a municipal purpose. It alleged that without
annexation of Tract 1, Tract 2 is not contiguous or adjacent to London as required
for its annexation. Second, it challenged London’s failure to notify its mayor of
the proposed annexation of Tract 1, “which houses utility infrastructure for water
and sewer services, which is owned by Corbin, pursuant to KRS 81A.427.” Citing
the remedy provisions of KRS 81A.427(7), Corbin requested the court to declare
the ordinance void.
On September 30, 2020, Corbin amended its petition to include MPI
as a party-plaintiff and to add allegations concerning an additional controversy
between the opposing parties. MPI owns property adjacent to Tract 1, and it also
objected to London’s decision to annex the area.
-4- London answered and denied many of the substantive allegations of
the petition. However, it acknowledged that it did not provide written notice of the
proposed annexation to Corbin’s mayor. It alleged that it was not required to do so
under the circumstances and noted that Corbin’s mayor unquestionably received
actual notice of the ordinance as she appeared at the city council meeting.
London also challenged the jurisdiction of the court. It argued that the
court was not empowered by the provisions of KRS 81A.427(7) to declare its
ordinance void because Corbin had not formally objected to the proposed
annexation by timely forwarding a certified copy of a municipal order as required
by the provisions of KRS 81A.427(5). It also contended that no actual controversy
existed between the party opponents; that Corbin and MPI had no rights or
interests with respect to London’s “intent to annex ordinance”; that both Corbin
and MPI lacked standing; and that neither could show that either had been
aggrieved, harmed, or damaged by the ordinance.
On November 6, 2020, the Utilities Commission filed a motion to
intervene in the action and tendered an intervening complaint for declaration of
rights. Although Corbin owns the utility infrastructure, the Utilities Commission
claimed that it acts as a trustee operating and managing the utility services. It
alleged that its interests were not adequately represented by Corbin. London
challenged the motion to intervene. It noted that all rights of utilities providing
-5- utility services in any area annexed by a city prior to the annexation are expressly
preserved by the provisions of KRS 81A.490; therefore, no interests of the Utilities
Commission were at stake.
The trial court granted the motion to intervene, and the Utilities
Commission’s tendered complaint was filed in the record. London filed its answer,
and a period of intense discovery began. On January 6, 2021, London’s city
council adopted an ordinance finally annexing the disputed areas.
On March 8, 2021, Corbin, the Utilities Commission, and MPI filed a
motion for summary judgment. London fled a cross-motion for summary
judgment. Oral arguments were conducted before the trial court on July 22, 2021.
By its order entered on February 9, 2022, the court granted London’s motion for
summary judgment. Without addressing the substantive contentions, the circuit
court concluded that Corbin, the Utilities Commission, and MPI each lacked
standing to maintain the action. Corbin, the Utilities Commission, and MPI filed
this appeal; London filed a cross-appeal.
On appeal, Corbin contends that the trial court erred by concluding
that it lacked standing as a matter of law. We agree.
Constitutional standing is prerequisite to establishing the existence of
a justiciable cause. Lincoln Trail Grain Growers Association, Inc. v. Meade Cnty.
Fiscal Court, 632 S.W.3d 766 (Ky. App. 2021). The “justiciable cause”
-6- requirement in Kentucky Constitution, Section 112(5) is the basis of the trial
court’s jurisdiction. “To invoke the court’s jurisdiction, the plaintiff must allege an
injury caused by the defendant of a sort the court is able to redress.” Lawson v.
Office of the Attorney General, 415 S.W.3d 59, 67 (Ky. 2013).
So-called “statutory standing” is conferred where “a statute creating a
private right of action authorizes a particular plaintiff to avail herself of that right
of action.” Id. (citing Small v. Federal National Mortgage Association, 286 Va.
119, 747 S.E.2d 817 (2013) (quoting CGM, LLC v. BellSouth Telecomm., Inc., 664
F.3d 46, 52 (4th Cir. 2011))).
The first issue we address is whether the trial court erred by
concluding that Corbin is not authorized by statute to pursue its litigation against
London.
The provisions of KRS 81A.427(3) require a city proposing to annex
an unincorporated area under the provisions of KRS 81A.420 to send notice of the
proposed annexation “to the mayor of each city government owning utility
infrastructure within the area proposed to be annexed.” The timing and content of
the notice are expressly prescribed by statute. KRS 81A.427(3)(a), (b), (c).
A city owning utility infrastructure as described which receives such a
notice “shall have the right to object and prevent the annexation by sending a
certified copy of a municipal order enacted pursuant to KRS 83A.060.” KRS
-7- 81A.427(5) (emphasis added). The contents of the municipal order and the
methods by which it can be delivered are carefully prescribed. Id. The certified
copy of the municipal order “shall be received by the city acting [to annex
property] at any time before or at the meeting where the ordinance is scheduled to
receive its second reading.” Id.
The provisions of KRS 81A.427(6) direct that a city shall not annex
any area that includes utility infrastructure owned by a city objecting under
subsection (5) of the statute unless the cities in interest agree through an interlocal
agreement. If a city proposing to annex does not receive a municipal order from an
affected city prior to or at the meeting, the annexing city may proceed to enact its
ordinance. Id. In that event, “the city owning utility infrastructure shall forfeit its
right to object and shall be deemed to have consented to the annexation.” Id.
Where a city annexes property without following the express statutory
requirements, the provisions of KRS 81A.427(7) provide a remedy: the affected
city may commence an action in circuit court to void the final annexation
ordinance. Relief is afforded where the circuit court “determines that the annexing
city failed to substantially comply with the requirements of this section and the
failure resulted in material prejudice to the substantial rights of the affected city.”
Id.
-8- Corbin contends that the trial court erred by concluding that it did not
establish statutory standing because it failed to prove that it owns the utility
infrastructure within the area annexed by London. We agree.
The Kentucky Rules of Civil Procedure (CR) provide that summary
judgment will be granted where the pleadings, depositions, answers to
interrogatories, stipulations, admissions and/or affidavits show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. CR 56.03. Because summary judgment involves
only questions of law and not the resolution of disputed facts, we may not defer to
the trial court’s decision. Goldsmith v. Allied Building Components, Inc., 833
S.W.2d 378 (Ky. 1992). Instead, we must review the decision de novo.
Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644 (Ky.
2007).
Corbin asserts that its evidence confirms that it owns the utility
infrastructure. In the alternative, it argues that the conflicting evidence of record
creates a genuine dispute as to whether it owns utility infrastructure in the area
annexed by London and that this factual dispute precludes summary judgment.
As the trial court observed, Corbin’s claim of ownership is based, in
part, upon: financial documents; minutes from city council meetings; and
affidavits and emails authored by city officials, the Utility Commission
-9- representatives, and others. London disputes Corbin’s claim of ownership and
argues that the evidence indicates that the utility infrastructure is owned by the
Utility Commission instead. It relies, in part, on language included in: an
easement; contracts; resolutions of the Utility Commission; and an audit filed with
the Kentucky Department of Local Government.
Faced with conflicting evidence concerning ownership of the utility
infrastructure, the trial court questioned whether Corbin and the Utility
Commission are considered separate and distinct bodies. Examining relevant
statutes, the court concluded that the Utility Commission and Corbin are indeed
separate legal entities and “considering the totality of the circumstances, it
therefore follows, that the utility infrastructure . . . is owned by the [Utility
Commission].” Having determined that the Utility Commission, and not Corbin,
owned the utility infrastructure, the court reasoned that the notice requirements of
KRS 81A.427 were never triggered. Therefore, no statutory remedy was available,
and Corbin could not establish statutory standing sufficient to maintain the action.
We do not agree with the court’s reasoning.
The Utility Commission is a special purpose governmental entity.
KRS 65A.010. It has independent authority to generate public funds and may
expend public funds, grants, awards, and appropriations from the city. Id. KRS
96.530 provides that it is “a public body politic and corporate, with perpetual
-10- succession” and that it may “contract and be contracted with, sue and be sued, in
and by its corporate name, and have and use a corporate seal.” However, these
qualities have little bearing on the issue of whether the Utility Commission owns
the disputed utility infrastructure.
The determination of a party’s standing requires consideration of the
facts of each individual case. Rose v. Council for Better Education, Inc., 790
S.W.2d 186, 202 (Ky. 1989). Here, the issue of ownership -- critical to
establishing Corbin’s standing to pursue this litigation -- remains in controversy.
At this point, neither London nor Corbin has offered sufficient evidence to prove
conclusively whether Corbin or the Utilities Commission owns the disputed
infrastructure. This genuine issue of material fact is appropriately addressed to a
fact finder for resolution; it simply cannot be determined as a matter of law at this
time.
Nevertheless, London argues that it is entitled to judgment as a matter
of law. Assuming that Corbin owns the disputed utility infrastructure and that the
notice requirement of KRS 81A.427(3) was triggered, London contends that
Corbin waived its statutory right to prevent the annexation by failing to provide
London with a timely, certified copy of a municipal order as a means of objecting
to the proposed annexation pursuant to the provisions of KRS 81A.427(5). Thus,
London argues that the court could provide no redress.
-11- However, Corbin was not obligated by language of the statute to
provide a municipal order to preserve its right to object to the annexation where
London did not first provide notice of the proposed annexation to Corbin’s mayor
as required by the provisions of KRS 81A.427(3). Consequently, Corbin did not
waive its statutory right to try to prevent the annexation. London failed to establish
that there are no genuine issues of material fact in dispute or that it is entitled to
judgment as a matter of law. Thus, summary judgment was erroneously granted.
We vacate on this issue and remand for additional proceedings.
Next, we consider whether the trial court erred by concluding that
MPI lacked statutory standing. It is uncontroverted that MPI owns property
directly adjoining Tract 1. Again, Tract 1 encompasses a portion of Interstate
Highway 75 and its right-of-way for approximately nine miles.
Where a city annexes or proposes to annex territory in which no
person is resident, an individual has standing to pursue a claim if he owns property
directly adjoining a parcel of land that contains either in whole or in part any
territory proposed to be annexed or annexed by the city. KRS 81A.482. For
purposes of the statute, “parcel” is defined as “a tract of real property that is
assessed as a single unit for purposes of determining ad valorem tax liability.” Id.
Because Tract 1 is a right-of-way, the parties agree that it is not subject to
assessment for taxation.
-12- While the trial court acknowledged that the legislative intent behind
the statute was to broaden the basis for standing to challenge annexation
proceedings, it concluded that the language of the statute is clear. It held that MPI
does not own property directly adjoining a “a tract of real property that is assessed
as a single unit for purposes of determining ad valorem tax liability.”
Where provisions of a statute are plain and unambiguous, the
language is to be given effect as written. Kincaid v. Johnson, True & Guarnieri,
LLP, 538 S.W.3d 901 (Ky. App. 2017). It is true that the statute was enacted to
provide standing to contest annexation to adjoining property owners. However, in
light of its specific definition of “parcel,” MPI is excluded from its application.
MPI’s ownership of property adjoining the right-of-way is not sufficient to
establish its statutory standing. Consequently, the trial court did not err by
granting summary judgment against MPI.
Next, we consider whether the trial court erred by concluding that the
Utilities Commission lacked constitutional standing. To invoke the trial court’s
jurisdiction, a litigant “must have the requisite constitutional standing to do so,
defined by three requirements: (1) injury, (2) causation, and (3) redressability.”
Commonwealth Cabinet for Health and Family Services, Department for Medicaid
Services v. Sexton by and through Appalachian Regional Healthcare, Inc., 566
S.W.3d 185, 196 (Ky. 2018).
-13- The trial court concluded that the Utilities Commission could not
pursue its grievances against London’s annexation because the provisions of KRS
81A.490 expressly preserve “all right of the utilities providing utility services in
any area annexed by a city prior to the annexation.” Where its rights are expressly
preserved despite annexation, the court determined that the Utility Commission
cannot show that it suffered a concrete or particularized injury. We agree.
The Utilities Commission cannot assert a direct injury caused by
London’s allegedly improper annexation of the territory described in its ordinance.
Regardless of whether the annexation was proper, its interests are unaffected, and
there is no redress to be had. Consequently, the trial court did not err by granting
summary judgment against the Utilities Commission.
Finally, we address London’s argument on cross-appeal. London
contends that the appeal must be dismissed because Corbin, the Utilities
Commission, and MPI failed to comply with the procedural requirements of KRS
100.347 governing zoning litigation. It explains that London’s challenged
ordinance was adopted pursuant to a procedure outlined in the provisions of KRS
100.209. Pursuant to this provision, when a city which has adopted zoning
regulations proposes to annex unincorporated territory, it may amend its
comprehensive plan and official zoning map to incorporate zoning regulations for
the property proposed for annexation prior to adoption of the ordinance of
-14- annexation. KRS 100.209. Where a city elects to follow this procedure, the
planning commission holds a public hearing (after the adoption of the ordinance
stating the city’s intention to annex and prior to final action upon the ordinance of
annexation) for the purpose of adopting a comprehensive plan amendment and
making its recommendations as to the zoning regulations which will become
effective for the property upon its annexation. Id. The city council takes final
action upon the planning commission's recommendations prior to adoption of the
ordinance of annexation.
London explains that the zone classification for the disputed tracts
was assigned by its city council just before the annexation was approved at its
December 30, 2020, meeting. It argues that the hybrid nature of the proceeding
means that the annexation and zone classification are so intertwined as to be
inseparable, and, as a consequence, Corbin, the Utilities Commission, and MPI are
bound by the requirements of KRS 100.347 concerning appeals from a final action
of its city council relating to a map amendment.
The provisions of KRS 100.347(3) require that an aggrieved party
must appeal from the city council’s final action within thirty (30) days after the
final action of the legislative body. The statute provides that the legislative body
and owners of the subject property “who initiated the proceeding shall be made
parties” to the appeal to circuit court. KRS 100.347(3), (4). It provides that all
-15- final actions which have not been appealed within thirty (30) days shall not be
subject to judicial review. KRS 100.347(3). London argues that the failure of the
appellants to name its city council and the owners of the disputed property in a
timely appeal to the circuit court deprives the court of jurisdiction. We disagree.
Through this litigation, Corbin sought to challenge London’s
annexation of two unincorporated areas in Laurel County. It did not challenge the
zoning of the tracts or any map amendment. KRS 81A.427(7) provides a specific
remedy to a specific class of entities -- cities owning utility infrastructure within an
area proposed to be annexed. The statute creates a specific, private right of action
in these cities and a specific remedy. Because the basis of the trial court’s
jurisdiction is found in the provisions of KRS 81A.427, Corbin is not required to
pursue its challenge to the annexation pursuant to the requirements of KRS
100.347 governing zoning litigation. The trial court did not err by refusing to grant
summary judgment to London on this basis.
Based upon the foregoing, the judgment of the Laurel Circuit Court is
affirmed in part, vacated in part, and remanded for further proceedings consistent
with this Opinion.
-16- ALL CONCUR.
BRIEFS FOR BRIEFS FOR APPELLEE/CROSS- APPELLANTS/CROSS- APPELLANT CITY OF LONDON APPELLEES: KENTUCKY:
Patrick R. Hughes Larry G. Bryson Christopher B. Markus London, Kentucky Joseph M. Kramer Covington, Kentucky David A. Pike F. Keith Brown Shepherdsville, Kentucky
-17-