Kentucky Public Service Commission v. Shadoan

325 S.W.3d 360, 51 Communications Reg. (P&F) 1287, 2010 Ky. LEXIS 278, 2010 WL 4679513
CourtKentucky Supreme Court
DecidedNovember 18, 2010
Docket2009-SC-000053-DG
StatusPublished
Cited by1 cases

This text of 325 S.W.3d 360 (Kentucky Public Service Commission v. Shadoan) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky Public Service Commission v. Shadoan, 325 S.W.3d 360, 51 Communications Reg. (P&F) 1287, 2010 Ky. LEXIS 278, 2010 WL 4679513 (Ky. 2010).

Opinions

Opinion of the Court by

Justice SCHRODER.

This appeal is from an opinion of the Court of Appeals concluding that the Public Service Commission (“PSC”) had jurisdiction over the siting and construction of a proposed cellular antenna tower adjacent to the Appellees’ property. We adjudge that under the language of KRS 100.987, the local planning commission had jurisdiction over the placement and construction of the proposed cellular tower. Accordingly, we reverse the decision of the Court of Appeals and remand for further proceedings consistent with this opinion.

In September 2005, Bluegrass Wireless filed an application with the PSC to secure a certificate of public convenience and necessity for the construction of a proposed cellular tower on property located in London, Kentucky. As adjacent property owners, Glenn and Sue Shadoan sought to intervene in the application process, and in October 2005, the PSC granted their request. After the Shadoans intervened, Bluegrass Wireless requested by letter that the PSC dismiss the application proceedings for lack of jurisdiction. The PSC determined that it did not have jurisdiction over the application because, pursuant to KRS 100.987(1), the London/Laurel County Joint Planning Commission had jurisdiction over the matter. The PSC entered an order dismissing the application proceedings on June 27, 2006, and subsequently denied the Shadoans’ motion for rehearing on August 8, 2006.

[362]*362On September 1, 2006, the Shadoans filed a complaint and petition for review in the Franklin Circuit Court, naming the PSC and Bluegrass Wireless as respondents. The sole issue raised in the complaint and petition for review was whether the PSC had jurisdiction over the proposed cell tower siting and construction. The Shadoans did not thereafter file a separate and specific designation of the record as required by KRS 278.420. However, the Shadoans did attach a copy of the August 8, 2006 PSC order denying their motion for rehearing.

The PSC and Bluegrass Wireless filed a motion to dismiss the Shadoans’ complaint for failure to designate the record. The circuit court ultimately denied the motion to dismiss and entered an opinion and order granting summary judgment to the Shadoans. The circuit court concluded that the provisions of KRS 278.650 required the PSC to exercise jurisdiction over the matter where the local planning body had formally declined to do so by failing to adopt regulations dealing specifically with construction of cell phone towers.

On appeal to the Court of Appeals, the PSC and Bluegrass Wireless argued that the Franklin Circuit Court did not have jurisdiction over the action because of the Shadoans’ failure to designate the record as required under KRS 278.420(2). In the alternative, they argued that the circuit court erred in concluding that the local planning commission lacked jurisdiction to consider the proposed construction of the cell phone tower. The Court of Appeals adjudged that the Shadoans had complied with the statutory requirements of KRS 278.420(2) because the only issue in the case was an issue of law (whether the PSC or local planning commission had jurisdiction), there was no evidentiary record compiled by the agency, and the Shadoans had attached the PSC order with their complaint. Thus, the court held that the Franklin Circuit Court properly had jurisdiction on review of the PSC order. The Court of Appeals additionally agreed with the circuit court that the PSC had jurisdiction over the substantive issue of the application for construction of the cell tower because the London/Laurel County Joint Planning Commission had not exercised their discretionary authority to regulate construction of cell phone towers by adopting regulations pertaining thereto. We accepted discretionary review to decide whether the circuit court had jurisdiction over review of the PSC order, and, if so, whether the PSC or local planning commission had original jurisdiction over the placement and construction of the cell phone tower.

COMPLIANCE WITH KRS 278.420(2)

The PSC and Bluegrass Wireless argue that the Court of Appeals erred in determining that the Shadoans had complied with the statutory requirements of KRS 278.420(2) for designation of the record. They maintain that, because the Sha-doans did not timely file a formal designation of the record in the Franklin Circuit Court, that court did not have jurisdiction over the petition for review and thus should have dismissed the case.

KRS 278.420(2) provides:

Unless an agreed statement of the record is filed with the court, the filing party shall designate, within ten (10) days after an action is filed, the portions of the record necessary to determine the issues raised in the action. Within ten (10) days after the service of the designation or within ten (10) days after the court enters an order permitting any other party to intervene in the action, whichever occurs last, any other party to the action may designate additional por[363]*363tions for filing. The court may enlarge the ten (10) day period where cause is shown. Additionally, the court may require or permit subsequent corrections or additions to the record.

This Court has recently addressed the issue of compliance with KRS 278.420(2) in Louisville Gas and Electric Company v. Hardin and Meade County Property Owners for Co-Location, 319 S.W.3d 397 (Ky.2010), wherein we reaffirmed the doctrine of strict compliance with regard to administrative appeals. In Louisville Gas and Electric Company, the petitioners failed to designate the record or file a motion for enlargement of time within the ten-day period in KRS 278.420(2). We held that the failure to timely designate the record was jurisdictional, and thus fatal to the petition for review, reasoning:

Under the statutory scheme of KRS Chapter 278, the legislature requires two things to invoke the jurisdiction of the circuit court over appeals of public service commission orders — the timely filing of the action in the Franklin Circuit Court and the timely filing of the designation of the record. KRS 278.410; KRS 278.420....

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Related

Kentucky Public Service Commission v. Shadoan
325 S.W.3d 360 (Kentucky Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
325 S.W.3d 360, 51 Communications Reg. (P&F) 1287, 2010 Ky. LEXIS 278, 2010 WL 4679513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-public-service-commission-v-shadoan-ky-2010.