Lincoln Trail Grain Growers Association v. Meade County Fiscal Court

• Court: Court of Appeals of Kentucky
• Decided: August 5, 2021
• Docket: 2020 CA 000892
• Status: Unknown

Opinion

RENDERED: AUGUST 6, 2021; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0892-MR

LINCOLN TRAIL GRAIN GROWERS ASSOCIATION, INC.; NICHOLAS HARDESTY; DON BEWLEY; EDELEN FARMS, LLC; RYAN HAGER; BEN SHEERAN; AND DAVID PADGETT APPELLANTS

APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 20-CI-00001

MEADE COUNTY FISCAL COURT; CITY OF BRANDENBURG; MEADE COUNTY RIVERPORT AUTHORITY; MEADE COUNTY-BRANDENBURG INDUSTRIAL DEVELOPMENT AUTHORITY; BILL CORUM; BRYAN CLAYCOMB; CONSOLIDATED GRAIN & BARGE CO.; GREENLAND ACQUISITION COMPANY, INC.; AND NUCOR CORPORATION APPELLEES

OPINION VACATING AND REMANDING

** ** ** ** ** BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.

MAZE, JUDGE: Lincoln Trail Grain Growers Association, Inc. and individual

members (collectively Lincoln Trail), along with Nicholas Hardesty and Don

Bewley, appeal from an order of the Meade Circuit Court dismissing their claims

alleging violations of the Open Meetings Act. The trial court dismissed their

complaint, concluding that none of the appellants had established constitutional

standing to bring the claims. We conclude that all of the appellants have alleged

personal injuries fairly traceable to the defendants’ allegedly unlawful conduct and

likely to be redressed by the requested relief. Therefore, the trial court erred by

dismissing the complaint for lack of standing. Hence, we vacate the order

dismissing and remand for additional proceedings on the merits of those claims.

For purposes of this appeal, the following facts are relevant: The

Meade County Riverport Authority (the Riverport Authority) is a public board

established under KRS1 65.510, et seq. The Meade County-Brandenburg Industrial

Development Authority (the Industrial Authority) is a public board established

pursuant to KRS 154.50-301, et seq. The Meade County Fiscal Court (Fiscal

Court) serves as the legislative body for Meade County and is established pursuant

to Kentucky Constitution, Section 144 and KRS 67.040, et seq.

1 Kentucky Revised Statutes.

-2- In 2003, the Riverport Authority leased 50 acres (the Riverport

Property) along the Ohio River in Brandenburg, Kentucky. In 2010, the Industrial

Authority purchased a 550-acre tract from Arch Chemical, Inc., which included the

Riverport Property leased by the Riverport Authority. An amended ground lease

established the Industrial Authority as the lessor of the Riverport Property, and the

Riverport Authority as the lessee.

Shortly thereafter, the Riverport Authority entered into a lease with

Consolidated Grain & Barge Co. (CGB). Under the agreement, CGB agreed to

construct and operate a grain elevator on a 15-acre portion of the Riverport

Property. The lease provided for a ten-year term from completion of the grain

elevator. In late 2014, the grain elevator was completed and opened for business.

Beginning in early 2019, the Fiscal Court and the Industrial Authority

engaged in negotiations with Nucor Corporation (Nucor) to build a steel mill on

the Riverport Property. As part of these negotiations, Greenland Acquisition

Company, Inc. (Greenland) entered into an option to purchase most of the former

Arch Chemical property from the Industrial Authority. Nucor took the position

that the operation of its steel mill would be incompatible with the continued

operation of the grain elevator. By September 2019, Nucor, CGB, the Fiscal

Court, and the Industrial Authority drafted a lease termination agreement. The

agreement required Nucor to pay CGB the sum of $12,000,000 in exchange for

-3- termination of its lease agreement and cessation of operation of the grain elevator

by March 31, 2020.

However, the termination agreement required the approval of the

Riverport Authority, which was a party to the lease with CGB. The Fiscal Court

held a special meeting on October 1, 2019. The agenda for the meeting included

the general item, “Riverport,” with no other detail about the action to be taken.

During the meeting, the Fiscal Court voted to replace two members of the

Riverport Authority, Nicholas Hardesty and Don Bewley, on the stated grounds

that their terms had expired. The Fiscal Court appointed two new members, Bill

Corum and Bryan Claycomb, to those positions on the Riverport Authority.2

Immediately following the Fiscal Court meeting, the Riverport

Authority, including the two newly-appointed members, met and voted to approve

the lease termination agreement. On December 13, 2019, the lease termination

agreement was formally executed by all parties, namely: the Riverport Authority,

the Industrial Authority, the Fiscal Court, CGB, and Greenland on behalf of Nucor.

On June 1, 2020, Lincoln Trail filed this action on behalf of grain

farmers in Meade County who were affected by the closure of the grain elevator.

Edelen Farms, LLC, Ryan Hager, Ben Sheeran, and David Padget are members of

2 The minutes of the specially-called meeting of the Fiscal Court reflect that the only Riverport item discussed was the appointment of the two new members to the Riverport Authority.

-4- Lincoln Trail. Lincoln Trail and its members alleged that the votes by the Fiscal

Court and the Riverport Authority were conducted in violation of the Open

Meetings Act, KRS 61.800 et. seq., and that the vote of the Riverport Authority

was conducted without a quorum of proper members. Finally, Lincoln Trail

alleges that the Riverport Property is held in trust for the public and that the Meade

County defendants lacked legal authority to sell the property. Consequently,

Lincoln Trail sought declaratory relief holding the lease termination agreement

void, and injunctive relief preventing CGB from ceasing operation of the grain

elevator.

Hardesty and Bewley joined the action through an amended

complaint, which challenged their removal from the Riverport Authority. In

addition to the Open Meetings Act violations, Hardesty and Bewley allege that

their prior terms had automatically renewed and that they were not subject to

replacement by the Fiscal Court. In the alternative, Hardesty and Bewley allege

the terms of the other members of the Riverport Authority had also expired but

those members were not replaced. Hardesty and Bewley allege that the Fiscal

Court arbitrarily removed them from the Riverport Authority based on their stated

opposition to the lease termination agreement. Hardesty and Bewley sought

declaratory relief setting aside their removal and replacement as members of the

Riverport Authority.

-5- In lieu of an answer, the Meade County defendants and Nucor filed a

motion to dismiss pursuant to CR3 12.02. They argued that Lincoln Trail and its

members lack constitutional standing to assert the claims. Following briefing and

arguments of counsel, the trial court granted the motion. The court concluded that

none of the plaintiffs, including Hardesty and Bewley, had asserted any concrete

interest in the subject matter of the actions by the Fiscal Court or the Riverport

Authority. Consequently, the trial court dismissed the complaints. This appeal

followed. Additional facts will be set forth below as necessary.

CR 12.02 sets out defenses which may be asserted without filing a

responsive pleading, including “(f) failure to state a claim upon which relief can be

granted[.]” A motion to dismiss for failure to state a claim upon which relief may

be granted “admits as true the material facts of the complaint.” Upchurch v.

Clinton County, 330 S.W.2d 428, 429-30 (Ky. 1959). A trial court should not

grant such a motion “unless it appears the pleading party would not be entitled to

relief under any set of facts which could be proved . . . .” Pari-Mutuel Clerks’

Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551

S.W.2d 801, 803 (Ky. 1977). Whether a court should dismiss an action pursuant to

CR 12.02 is a question of law. James v. Wilson, 95 S.W.3d 875, 884 (Ky. App.

3 Kentucky Rules of Civil Procedure.

-6- 2002). Consequently, we conduct a de novo review of the trial court’s order

dismissing the action. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009).

The sole question on appeal concerns the application of the doctrine

of “constitutional standing,” as adopted by the Kentucky Supreme Court in

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 (Ky. 2018). The facts in Sexton involved a Medicaid patient

who was admitted to the hospital for observation, but her Medicaid provider denied

her request for additional hospitalization and a cardiology consultation. Despite

the denial, the hospital provided the services. Thereafter, the patient and the

hospital sought a hearing with the Cabinet for Health and Human Services to

challenge the denial. The Cabinet dismissed the proceeding, concluding that

neither the patient nor the hospital had standing because neither would be entitled

to recover even if the denial were improper. Id. at 188.

On further appeal, the Kentucky Supreme Court affirmed the

dismissal based on the doctrine of constitutional standing. The Court adopted the

analysis for the doctrine from the United States Supreme Court analysis in Lujan v

Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d

351 (1992). The doctrine establishes standing as a prerequisite to the existence of

a justiciable cause of action. “In essence the question of standing is whether the

-7- litigant is entitled to have the court decide the merits of the dispute or of particular

issues.” Sexton, 566 S.W.3d at 193 (quoting Warth v. Seldin, 422 U.S. 490, 498,

95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). In the absence of a showing of such

standing, a court lacks original jurisdiction over a case to decide its merits because

the case is nonjusticiable due to the plaintiff’s failure to satisfy the constitutional

standing requirement. Id. at 196-97.

The Court in Sexton recognized that Lujan and its line of cases deal

with standing requirements in the context of the limit on federal judicial power, not

state judicial power. Id. at 193. Furthermore, Kentucky typically recognizes the

issue of standing as an affirmative defense which may be waived unless properly

pleaded. Id. at 191 (citing Harrison v. Leach, 323 S.W.3d 702, 703 (Ky. 2010)).

Nevertheless, the Court formally adopted the Lujan test as an integral component

of the “‘justiciable cause” requirement in Kentucky Constitution, Section 112(5)

underlying the trial court’s jurisdiction. Id. at 195-96.

So, at bottom, for a party to sue in Kentucky, the initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, and (3) redressability. In other words, “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” “[A] litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent . . . .” “The injury must be . . . ‘distinct and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’” “The injury must be ‘fairly’ traceable to the challenged

-8- action, and relief from the injury must be ‘likely’ to follow from a favorable decision.”

Id. at 196 (footnotes omitted).

The Court in Sexton went on to explain that, while the legislature may

create a statutory cause of action, a court cannot entertain original jurisdiction over

such action unless the plaintiff satisfies the constitutional standing requirement. Id.

Consequently, the existence of statutory standing does not necessarily confer

constitutional standing upon a plaintiff. Rather, a court exercising original

jurisdiction must always conduct the constitutional standing analysis. Id.

Pursuant to this analysis, the Court recognized that the legislature had

created a statutory right to challenge the provider’s denial of service under KRS

Chapter 13B. However, the Court concluded that the legislature could not grant

standing to a party who had no direct interest in the outcome of the proceeding. Id.

at 198. The Medicaid rules prevented the patient from being held liable for the

costs of the services. Furthermore, at the time of the appeal in Sexton, the hospital

had no right to reimbursement of the services which it provided. Id. Therefore,

the Court concluded that neither the patient nor the hospital had suffered a

redressable injury. Id. at 198-99.

The Kentucky Supreme Court again addressed constitutional standing

in Overstreet v. Mayberry, 603 S.W.3d 244 (Ky. 2020). In that case, eight

members of the Kentucky Retirement System’s defined-benefit retirement plan

-9- brought an action against eleven Retirement Systems trustees and officers and

against third parties who did business with the Retirement Systems. The members

alleged that the trustees and officers engaged in a pattern of reckless investment

which jeopardized the retirement plans. They also alleged that the third parties

sold high-risk investments to the Retirement Systems in exchange for excessive

fees. Id. at 250-51.

After discussing the elements set out in Sexton, the Court concluded

that the plaintiffs failed to establish constitutional standing. The Court focused on

the plaintiffs’ failure to allege an injury-in-fact. Id. at 252-53. The Court noted

that the plaintiffs had not alleged that their benefits or right to receive benefits had

been affected by the alleged misconduct by the Retirement Systems trustees or the

third parties. The Court also noted that the state is required to cover any pension

shortfalls for vested beneficiaries. Id. at 253-54. Consequently, the Court held that

the plaintiffs’ allegation of an increased risk of not receiving pension benefits in

the future was too speculative to show an actual injury. Id. at 254-56.

Turning to the current case, we must first point out that there are two

distinct groups of plaintiffs: Hardesty and Bewley, who are challenging their

removal and replacement as members of the Riverport Authority; and the Lincoln

Trail parties, who are challenging the actions of the Riverport Authority and the

Fiscal Court approving the lease termination agreement. In the case of the first

-10- group, we conclude that the trial court clearly erred in finding that Hardesty and

Bewley lack constitutional standing to bring this action.

As previously mentioned, Hardesty and Bewley allege that the Fiscal

Court violated the Open Meetings Act by conducting a vote to replace them

without notice of the action to be taken provided on the agenda prior to the

meeting. KRS 61.823.4 Hardesty and Bewley further allege that their terms of

4 In pertinent part, KRS 61.823 sets out the following requirements for notice of a special meeting by a public agency:

(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.

(4) (a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.

(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.

-11- office as members of the Riverport Authority automatically renewed because the

Fiscal Court failed to appoint successors within 60 days from the expiration of

their prior terms. KRS 65.008(2).5 Finally, Hardesty and Bewley contend that the

Fiscal Court’s action was arbitrary because the terms of the other members of the

Riverport Authority had also expired but those members were not subject to either

replacement or reappointment.

For purposes of this appeal, we do not consider the merits of the

claims brought by Hardesty and Bewley or any available defenses. However, we

are required to consider their well-pleaded allegations in the complaint as true.

City of Pioneer Vill. v. Bullitt Cty. ex rel. Bullitt Fiscal Ct., 104 S.W.3d 757, 759

(Ky. 2003). Under these circumstances, they have clearly asserted a direct injury

caused by the allegedly illegal actions of the Fiscal Court. Indeed, it is well

(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting. 5 KRS 65.008(2) provides:

Unless otherwise provided by law, appointed members of district governing bodies shall serve until their successors are appointed and qualified. The failure of an appointing authority to appoint a successor or, if the appointing authority’s appointment is subject to the approval of a legislative body, to nominate a successor within sixty (60) days of the expiration of the term of office of a member of a district governing body shall constitute the reappointment of that member for another term of office.

-12- established that a public officer has standing to challenge the improper usurpation

of his or her office. See Jenkins v. Congleton, 242 Ky. 46, 45 S.W.2d 456, 456

(1932). See also KRS 415.030. Furthermore, any action taken by the Fiscal Court

in violation of the Open Meetings Act is voidable pursuant to KRS 61.848(5).

In their separate briefs, CGB and the Meade County public entities

argue that Hardesty and Bewley failed to object to their removal from the

Riverport Authority at the time of the Fiscal Court meeting. They also argue that

the automatic re-appointment provisions of KRS 65.008(2) do not apply because

the Riverport Authority failed to notify the Fiscal Court of the impending

expiration of terms, as required by KRS 65.008(1). And finally, they contend that

Hardesty and Bewley do not have standing to challenge the adoption of the lease

termination agreement. But these are issues which go to the merits of their claims,

not the issue of constitutional standing.

We conclude that Hardesty and Bewley have constitutional standing

to raise the violations of the Open Meetings Act with respect to the Fiscal Court’s

action in removing them as members of the Riverport Authority and the

subsequent action by the Riverport Authority approving the lease termination

agreement. Hardesty and Bewley have clearly alleged distinct and palpable

injuries caused by the actions of the Fiscal Court and the Riverport Authority for

which they would be entitled to a remedy under the Open Meetings Act. Indeed,

-13- they were directly affected by the actions of the Fiscal Court which are alleged to

be in violation of the Open Meetings Act. Consequently, the courts have the

authority to redress the allegedly improper action by voiding the actions taken in

violation of the Open Meetings Act. If proven, the remedy for the illegal actions

by the Fiscal Court would include reinstatement to their positions on the Riverport

Authority. Of course, Hardesty and Bewley bear the burden of proof on these

claims as well as the appropriate remedies.

The Lincoln Trail plaintiffs are in a somewhat different position, but

the same analysis applies. The trial court concluded that Lincoln Trail and its

members

do not have the right to force a private business to stay in business. The Plaintiffs have no legally protected interest in the grain elevator, the real estate on which it stands, or the contractual agreements applicable thereto. The Plaintiffs are neither party to, nor intended third-party beneficiaries, of the CGB lease and, thus have no legally protectable interest in the CGB lease.

The trial court’s analysis overlooks the fact that Lincoln Trail

challenges the legality of the actions by the Riverport Authority and the Fiscal

Court under the Open Meetings Act. As previously discussed, the mere existence

of a statutory right to bring an action does not confer constitutional standing.

However, the existence of a statutory cause of action is clearly relevant to a

determination of such standing.

-14- Contrary to the argument by CGB, the holding in Sexton did not

abolish the concept of statutory standing. The Court held that the legislature

cannot erase constitutional standing requirements by statutorily granting the right

to sue to a plaintiff who would not otherwise have standing. Sexton, 566 S.W.3d at

198 (citing Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S. Ct. 1142,

1151, 173 L. Ed. 2d 1 (2009)). In the case of a statutory cause of action, such as

the Open Meetings Act, the legislature must define a concrete interest that is

affected by the deprivation of a statutory right – the deprivation of a mere

procedural right in vacuo is not sufficient. Id.

The trial court cited to Summers, supra, for the proposition that

deprivation of a procedural right under the Open Meetings Act is not actionable

without some concrete interest affected by that deprivation. But in Summers, the

petitioners claimed that they were deprived of their rights under the Forest Service

Decisionmaking and Appeals Reform Act. While that Act permits the public to

file comments on the proposed action by the Forest Service, 16 U.S.C.6 § 1612, the

standards and procedures adopted under the Act govern only the conduct of Forest

Service officials engaged in project planning. Summers, 555 U.S. at 493, 129 S.

Ct. at 1149. Consequently, the United States Supreme Court held that the

petitioners had no separate standing to assert an injury for alleged violations of

6 United States Code.

-15- those procedures. As a result, the plaintiffs in Summers had to show that they had

some individualized interest in the subject matter of the agency action. Id. at 493-

94, 129 S. Ct. at 1149.

In contrast, the General Assembly has explicitly declared that

“formation of public policy is public business and shall not be conducted in

secret[.]” KRS 61.800. To that end, KRS 61.810(1) provides that “[a]ll meetings

of a quorum of the members of any public agency at which any public business is

discussed or at which any action is taken by the agency, shall be public meetings,

open to the public at all times[.]” “The Circuit Court of the county where the

public agency has its principal place of business or where the alleged violation

occurred shall have jurisdiction to enforce the provisions of KRS 61.805 to 61.850,

as they pertain to that public agency, by injunction or other appropriate order on

application of any person.” KRS 61.848(1) (emphasis added). Although

exceptions to the open meeting requirements are provided by the provisions of

KRS 61.810, the Act provides that the exceptions are to be “strictly construed.”

KRS 61.800.

In essence, the General Assembly declared that all citizens have a

direct interest in public agencies’ compliance with the requirements of the Open

Meetings Act. The particularized injury arises from the agency’s violation of the

Act itself, not specifically from the action taken. By its express terms, the Act

-16- accords standing regardless of whether the person bringing the action has an

interest in the subject matter of the action taken. See Taylor v. Barlow, 378

S.W.3d 322, 325 (Ky. App. 2012) (addressing standing based on similar language

in the Open Records Act). Unlike in Summers, the rights accorded under the Act

are not merely procedural but also grant the public at large a direct interest in its

enforcement. In other words, the violation of the Act itself constitutes the direct

and personal injury. To hold otherwise would mean that no member of the public

would have standing to challenge a violation of the Open Meetings Act without a

showing of direct injury caused by the agency’s unlawful action. That result is at

odds with the plain language of the Act.

The trial court also found that Lincoln Trail’s claims fail for lack of

redressability because the court “does not have the power to order a privately-

owned grain elevator to halt its de-construction and to continue operations.” The

trial court focused narrowly on the result of the actions of the Fiscal Court and the

Riverport Authority, rather than their alleged violations of the Open Meetings Act.

As previously noted, “[a]ny rule, resolution, regulation, ordinance, or other formal

action of a public agency without substantial compliance with the requirements of

[the Act] shall be voidable by a court of competent jurisdiction.” KRS 61.848(5).

The Act also allows a plaintiff to recover costs, including reasonable attorney fees,

incurred while enforcing an agency’s willful violation. KRS 61.848(6). Because

-17- the Act creates a concrete remedy, we conclude that Lincoln Trail has asserted a

redressable injury.

As discussed with the claims brought by Hardesty and Bewley, we do

not need to reach the merits of the underlying claim at this juncture. However,

Lincoln Trail alleges that the vote by the Fiscal Court to appoint new members to

the Riverport Authority and the subsequent vote by the Riverport Authority to join

in the lease termination agreement were conducted in violation of the Act. The

enforcement of a public contract, the appointment of individuals to public office,

and most significantly, the sale of publicly-owned property to private entities, are

clearly matters which must be conducted publicly and with prior notice unless a

specific exception is shown.

If the Appellants show that they are entitled to relief, the trial court

may require the Fiscal Court and the Riverport Authority to recommence their

approval of the lease termination agreement at the point when the illegal conduct

occurred. Reed v. City of Richmond, 602 S.W.2d 183, 184 (Ky. App. 1980). We

recognize that the procedural posture of this case presents some issues with the

remedies available to Lincoln Trail. When an agency takes action that is not in

“substantial compliance” with the Act, that action “shall be voidable by a court.”

KRS 61.848(5). “A ‘voidable’ action is an action that is valid until it is annulled.”

-18- Carter v. Smith, 366 S.W.3d 414, 424 (Ky. 2012) (citing BLACK’S LAW

DICTIONARY 1709 (9th ed. 2009)).

Because actions taken in violation of the Open Meetings Act are not

void ab initio, third parties who were not involved in the allegedly unlawful

conduct may be entitled to rely on the validity of the agreement executed by the

Fiscal Court and the Riverport Authority. Thus, CGB would not be required to

rebuild the grain elevator, nor would Nucor be required to vacate the premises

formerly leased to CGB. However, it is for the trial court to determine the

appropriate remedies available to Lincoln Trail and the equities among the various

parties. Even if no other remedies are available, the Act permits Lincoln Trail to

recover its attorney fees and costs incurred in bringing the action. KRS 61.848(6).

The availability of this remedy meets the redressability requirement for

constitutional standing. Therefore, we conclude that Lincoln Trail and its members

have constitutional standing to bring this action.

Finally, Nucor contends that the Appellants’ claims are moot because

CGB has removed the grain elevator. “A ‘moot case’ is one which seeks to get a

judgment . . . upon some matter which, when rendered, for any reason, cannot have

any practical legal effect upon a then existing controversy.” Morgan v. Getter, 441

S.W.3d 94, 98-99 (Ky. 2014) (quoting Benton v. Clay, 192 Ky. 497, 233 S.W.

1041, 1042 (1921)). The removal of the grain elevator may affect the remedies

-19- available on remand. But as discussed above, the Act provides for other remedies

which may be appropriate. Therefore, this matter is not moot.

Accordingly, we vacate the order of the Meade Circuit Court and

remand this matter for further proceedings on the merits of the Appellants’

complaint.

ALL CONCUR.

-20- BRIEFS FOR APPELLANTS: BRIEF AND ORAL ARGUMENT FOR APPELLEES MEADE Michael C. Merrick COUNTY FISCAL COURT; MEADE Charity S. Bird COUNTY RIVERPORT Louisville, Kentucky AUTHORITY; MEADE COUNTY- BRANDENBURG INDUSTRIAL ORAL ARGUMENT FOR DEVELOPMENT AUTHORITY: APPELLANTS: R. Keith Bond Michael C. Merrick Elizabethtown, Kentucky Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE CONSOLIDATED GRAIN & BARGE CO.:

Anthony G. Raluy Louisville, Kentucky

BRIEF FOR APPELLEES NUCOR CORPORATION AND GREENLAND ACQUISITION COMPANY, INC.:

Douglas C. Ballentine Christopher E. Schaefer Lindsey L. Howard Louisville, Kentucky

ORAL ARGUMENT FOR APPELLEE NUCOR CORPORATION:

Douglas C. Ballentine Louisville, Kentucky

-21-