Kuhnhein v. Northern Kentucky Area Planning Commission

495 S.W.3d 152, 2015 Ky. App. LEXIS 136, 2015 WL 5300389
CourtCourt of Appeals of Kentucky
DecidedSeptember 11, 2015
DocketNO. 2014-CA-000468-MR
StatusPublished

This text of 495 S.W.3d 152 (Kuhnhein v. Northern Kentucky Area 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
Kuhnhein v. Northern Kentucky Area Planning Commission, 495 S.W.3d 152, 2015 Ky. App. LEXIS 136, 2015 WL 5300389 (Ky. Ct. App. 2015).

Opinions

OPINION

THOMPSON, JUDGE:

Garth Kuhnhein, a resident of Kenton County, filed a class action complaint for a declaratory judgment declaring the assessment and collection of ad valorem taxes by the Northern Kentucky Area Planning Commission and the Northern Kentucky Area Planning Council (collectively NKAPC) is invalid because it no longer meets the requirements of an area planning commission as defined in Kentucky Revised Statutes (KRS) 147.610 and alleging the conversion of funds collected by the NKAPC. The Kenton Circuit Court granted summary judgment to the NKAPC ruling that the NKAPC is a viable legal political subdivision. After considering the parties’ arguments and the applicable law, we affirm because the NKAPC has not been dissolved pursuant to statute.

In 1960, the General Assembly enacted legislation permitting the creation of an area planning commission “[i]n any two (2) or more adjacent counties, one (1) of which has a city having a population of more than 50,000 and not more than 200,000 inhabitants as declared.by the last federal census[.]” KRS 147.610. Pursuant to statutory authority, a validly created area planning commission is a political subdivision “in perpetual existence, with power to.... levy an annual tax” for the purpose of defraying necessary and incidental expenses of the area planning commission. KRS 147.660(1). ’

The statutory scheme also provides the means for dissolving an area planning commission. KRS 147.620(3)' sets forth a process initiated by petition and voted on by the fiscal court and KRS 147.620(4) permits for dissolution of an area planning commission by referendum. Subsection (4)(i) provides: “Each member county of an area planning commission must follow the procedures defined herein, before such dissolution may take effect.”

The statute further states:

Any member county of an area planning'commission'may withdraw its membership after following the procedures defined herein. The commission shall continue to function after such withdrawals,, with its boundaries consisting of the remaining county members. No ■ county may withdraw from any commission unless, it satisfies its part of all contractual obligations assumed by the [154]*154commission prior to the passage of its resolution.

KRS 147.620(4)0).

Pursuant to the newly enacted legislation, the NKAPC was formed in 1961 by adjoining Kenton and Campbell Counties. The City of Covington located in Kenton County with a population of more than 50,000 and several other Kenton County cities joined in the creation of the NKAPC.

Through the referendum process provided for in KRS 147.620(4), Campbell County withdrew from the NKAPC in 1984. Since Campbell County’s withdrawal, the NKAPC continues to operate as an area planning commission comprised of Kenton County and various cities within its territory and continues to assess and collect ad valorem taxes to fund its operations.

In 2011, a petition was circulated to dissolve the NKAPC and tendered to the Kenton Circuit Court Clerk. The clerk determined the petition did not meet the criteria set forth in KRS 147.620(4) for the question to be placed on the ballot. An action challenging the clerk’s rejection of the petition was filed in the Kenton Circuit Court. The circuit court agreed with the clerk’s decision to reject the petition. In an unpublished opinion, Metzger v. Summe, No. 2012-CA-001622-MR, 2013 WL 5045948 (Ky.App. Sept. 13, 2013), this Court affirmed.

During the pendency of the Metzger appeal, this action was filed. After cross-motions for summary judgment were filed, the Kenton Circuit Court issued a summary judgment ruling as a matter of law that the NKAPC currently .exists as a valid entity and dismissed the complaint with prejudice. This appeal followed.

The parties do not dispute the underlying facts. Therefore, our review of the issues presented is de novo. Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d 107, 111 (Ky.App.2014). “Under de novo review, we owe no deference to the trial court’s application of the law to the established facts.” Id.

When conducting de novo review of a lower court’s construction of a statute, we are required to apply certain rules. “[T]he most commonly stated rule in statutory interpretation is that the ‘plain meaning’ of the statute controls. Moreover, Kentucky courts have steadfastly adhered to the plain-meaning rule ‘unless to do. so would constitute an absurd result.’ ” Alliance for Kentucky’s Future, Inc. v. Environmental and Public Protection Cabinet, 310 S.W.3d 681, 687 (Ky.App.2008) (quoting Executive Branch Ethics Commission v. Stephens, 92 S.W.3d 69, 73 (Ky.2002)).

Although presented in various sub-parts, the argument advanced by Kuhn-hein is readily summarized. He contends that although the NKAPC was validly formed in 1961, after Campbell County withdrew from the NKAPC and the City of Covington’s population dropped below 50,000 according the 2008 federal census, the NKAPC ceased to exist as a legally valid area planning commission and, therefore, lacked the power to assess and collect ad valorem taxes.

Kuhnhein points out planning units may consist of a city or county, acting independently in accordance with KRS 100.117; cities and them county, jointly, in accordance with KRS 100.121; or groups of counties and their cities, regionally, in accordance with KRS 100.123. He contends that the current NKAPC consisting only of Kenton County and various cities within its boundaries is not an area planning commission and cannot coexist with the Chapter 100 Kenton County Planning Commission.

There is no dispute that Kenton County alone could not form a valid area planning [155]*155commission. However, the question is whether the existing NKAPC is a viable area planning commission with the power to assess and collect ad valorem taxes. The plain and unambiguous language contained in KRS 147.620 compels this Court to conclude that the NKAPC is a valid existing area planning commission.

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Related

Executive Branch Ethics Commission v. Stephens
92 S.W.3d 69 (Kentucky Supreme Court, 2002)
Legislative Research Commission Ex Rel. Prather v. Brown
664 S.W.2d 907 (Kentucky Supreme Court, 1984)
Interactive Gaming Council v. Commonwealth ex rel. Brown
425 S.W.3d 107 (Court of Appeals of Kentucky, 2014)
Boone County v. Town of Verona
227 S.W. 804 (Court of Appeals of Kentucky, 1921)

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Bluebook (online)
495 S.W.3d 152, 2015 Ky. App. LEXIS 136, 2015 WL 5300389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuhnhein-v-northern-kentucky-area-planning-commission-kyctapp-2015.