Hampson v. Boone County Planning Commission

460 S.W.3d 912, 2014 WL 3734106, 2014 Ky. App. LEXIS 130
CourtCourt of Appeals of Kentucky
DecidedJuly 25, 2014
DocketNo. 2011-CA-001559-MR
StatusPublished
Cited by5 cases

This text of 460 S.W.3d 912 (Hampson v. Boone County Planning Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hampson v. Boone County Planning Commission, 460 S.W.3d 912, 2014 WL 3734106, 2014 Ky. App. LEXIS 130 (Ky. Ct. App. 2014).

Opinions

OPINION

MAZE, Judge:

Appellants, Raymond K. Hampson, Ste-phania Wagner, and Eugene Wagner, appeal from the order of the Boone Circuit Court affirming the decision of the Appel-lee, Boone County Planning Commission (hereinafter “BCPC”) approving the application by Appellee, New Par, D/B/A Verizon Wireless (“Verizon”) for the construction of a 305 foot cellular antenna tower in Boone County. Finding no reversible error, we affirm.

On October 5, 2010, Verizon applied to BCPC for approval of the placement of a 305 foot, self-supporting, lattice-style cellular antenna tower on a 10,000 square foot section of Eloise Warnke’s farm (the Warnke farm). Appellants’ parcels of land border the Warnke farm. The proposed tower was to sit 391 feet from the Wag-ners’ residence and 56 feet from the Warnke/Hampson property line. The proposed tower did not fit the BCPC design guidelines for cellular antenna towers and so Verizon’s uniform application requested several waivers. The BCPC had previously approved two similar towers proposed by Verizon to be built on East Bend Road and Burlington Pike (referred to by Verizon as Possum Path and Waterloo) that required similar height, structure, and landscape waivers.

Verizon sent letters to neighboring property owners giving notice of their application to the BCPC for the tower on the Warnke farm. A public hearing was held on December 1, 2010. Todd Morgan, a BCPC staffer, presented his report which addressed how Verizon’s request satisfied the guidelines, expressed possible concerns with the request, and conveyed that he had requested and received additional information from Verizon. Following Morgan’s report, Verizon presented its plan with testimony from several experts, which included health and environmental effects, structural issues, and effects on property values. Verizon also discussed the need for the proposed tower to bring coverage to the western part of Boone County, that co-location was unavailable, and that the State Historic Preservation Officer indicated that the addition of the proposed tower would not adversely affect the area.

The public then had the ability to comment at the hearing. The attorney for Hampson expressed concern about the height of the tower, the economic impact on Hampson’s property, and the proximity of the tower to the property. Morgan noted that the Wagners had sent three letters to BCPC expressing concerns about the proposed tower, including such concerns as health issues, property values, setbacks, waivers, tower lighting, visibility of the tower, and lightning strikes.

The BCPC discussed the concerns about the proximity of the tower to the surrounding residences and asked Verizon about the possibility of moving the tower to another location on the Warnke farm. The BCPC also asked Verizon to provide additional information including, but not limited to, plots depicting construction of [915]*915the tower on different parts of the Warnke farm. The public hearing was then closed with the BCPC stating it would act on the request on January 5, 2011.

Verizon supplemented their application on December 23, 2010, including an assessment of different locations to show how coverage would be affected. The BCPC Technical/Design Review Committee discussed a location seventy-five feet northeast of the originally proposed location that would satisfy coverage; it recommended approval of the originally proposed location with waivers for tower type, height, and setback from the closest residence.

The BCPC then met on January 5, 2011, with Morgan reporting that the Technical/Design Committee’s recommendation and findings indicated that the proposed tower was in general agreement with the 2005 Boone County Comprehensive Plan and zoning regulations, but that several conditions would need to be waived. The BCPC opened the floor for public comment. Verizon presented an alternate site for the tower that was seventy-five feet northeast of the originally proposed site that would meet coverage objectives, but would also require additional variances and new approvals from the Federal Aviation Administration, the Kentucky Airport Zoning Commission, and the State Historic Preservation Officer. Hampson’s attorney again spoke concerning the height of the tower and the need to follow the county’s regulations. The BCPC discussed the height of the tower and its proximity to neighboring property lines and structures.

A motion to approve the tower at its original proposed location was made and ultimately failed. Dale Wilson, legal counsel for BCPC, stated that a motion could be made to move the location seventy-five feet to the northeast or a motion could be made to deny the request on written reasons. Following-a motion to approve the application on the condition that the tower be moved seventy-five feet to the northeast of the original site proposed, the BCPC unanimously approved the application.

The Appellants appealed to the circuit court on the grounds that (1) Verizon was not registered with the Kentucky Secretary of State;1 (2) the BCPC’s reconsideration. of the application with additional conditions after having denied it was invalid, arbitrary, and capricious; and (3) the BCPC’s disregard for the comprehensive-plan and zoning regulations was also invalid, arbitrary, and capricious.

After reviewing the applicable law, the court concluded that BCPC’s approval of Verizon’s application was not arbitrary and did not violate Appellants’ right to due process. The trial court was satisfied that the BCPC conducted a public hearing on Verizon’s application, requested additional information to satisfy the concerns of both the BCPC and the public, and then approved the application on the condition that the tower be moved to a different location that was a compromise between coverage objectives and proximity to neighboring property lines. Counsel for Hampson spoke at both the public meetings held by the BCPC. The court concluded that the BCPC did not violate procedural due process as the Appellants’ concerns were heard and considered by BCPC; and the Appellants had actual notice of these meetings. The court also concluded that the Appellants were not prejudiced by the final decision of the [916]*916BCPC moving the tower location further from the Appellants’ property. The court concluded that the BCPC’s decision was supported by the evidence, and was not arbitrary; and thus, affirmed the BCPC’s decision. It is from this order that the Appellants now appeal.

On appeal the Appellants raise six issues regarding due process, namely, (1) the BCPC’s denial of the original site and three alternative sites, and then approving another alternative location violated Appellants’ right to due process; (2) the BCPC’s legal counsel denied due process to Appellants by his unsolicited suggestion of a different location for the tower without providing additional alternatives proposed by Verizon or considered by the Technical Review committee; (3) the BCPC denied Appellants due process by considering one component of a network of towers without giving notice to all persons affected by the network of towers; (4) the BCPC failed to make appropriate findings concerning all factors permitting deviation from the comprehensive plan and subsequently denied Appellants’ due process; (5) the BCPC denied due process to the Appellants by its substantial disregard of the 2005 comprehensive plan; and (6) the cumulative effect of the procedural errors and irregularities during the proceedings denied them due process.

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460 S.W.3d 912, 2014 WL 3734106, 2014 Ky. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hampson-v-boone-county-planning-commission-kyctapp-2014.