RENDERED: JANUARY 3, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0214-MR
RICHARD M. BREEN AND ANN W. BREEN APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 22-CI-003759
NOLAN LEUTHAUSER; AMANDA S. DAVENPORT, M.D.; C. BARRET BIRNSTEEL; CITY OF GLENVIEW; HELEN T. SIMON LIVING TRUST; LOURIE BIRNSTEEL; NORA C. SUTHERLAND; ROBERT E. SUTHERLAND, JR.; RYAN A. BURSON; SARAH LEIGHT; THE SARAMMA CHERIAN RESTATED TRUST; AND WESTENHOFER FAMILY REVOCABLE LIVING TRUST APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, EASTON, AND TAYLOR, JUDGES. EASTON, JUDGE: The Appellants, Richard M. Breen and Ann W. Breen
(collectively “the Breens”), filed a Complaint and Declaratory Judgment Action
against the owners of all properties in their Glen Arden Road neighborhood,
including Appellees Nolan Leuthauser (“Leuthauser”) and Sarah Leight (“Leight”).
The Breens also named the City of Glenview (“the City”) as a party. All the
properties involved are located in the City.
The Breens filed their case in response to a permit application filed by
Leuthauser and Leight to use their property as a short-term rental home or Airbnb.1
The Complaint sought to enjoin such use of the property. The Breens specifically
sought a declaration that Glen Arden Road is a private road. The Breens argue that
the joint easement which comprises a private road may not be overly burdened by
increased Airbnb traffic. The Breens also contend that use as an Airbnb would
violate zoning regulations and subdivision restrictions.
Having at least temporarily abandoned the seeking of a permit,
Leuthauser and Leight filed a Motion to Dismiss the Complaint. The circuit court
dismissed the Complaint in its entirety. We conclude that the circuit court could
1 An abbreviation for “Air Bed and Breakfast.” Less than twenty years ago, the concept of the Airbnb arose in cities with limited or expensive hotel space. The choice of the name is because originally homeowners or apartment renters offered to place an air mattress on the floor and provide access to breakfast foods for a set price. Part of the so-called “sharing economy,” this type of accommodation has become a popular option to replace traditional hotels or similar places to stay for short terms. Why Is It Called Airbnb? The Origin Story and Its Impact Today, AIRDNA, https://www.airdna.co/blog/why-is-it-called-airbnb (last visited Dec. 10, 2024).
-2- not proceed with a moot, unripe controversy and give an advisory opinion. Even if
a proper and present controversy existed, the circuit court did not abuse its
discretion in declining to proceed with the declaratory judgment action. The
Complaint otherwise did not state a cause of action. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Glen Arden Road is a narrow, basically one-lane road with five homes
having access from it. Leight’s grandparents, Dr. Leonard Leight and Adele
Leight, owned the home at 6 Glen Arden Road (the “Leight Property”). After the
death of her grandparents, Leight and her husband Leuthauser purchased the home
in March of 2022.
While Leight’s grandparents owned the property, it had been used as
an exhibition space for contemporary glass art.2 Not needing the home as a
residence for themselves, Leuthauser and Leight considered renting it to small
groups for limited periods. They filed a Short-Term Rental Conditional Use
Permit Pre-Application with Louisville Metro Planning and Design Services. Part
of the process for such permits is to conduct a neighborhood meeting about the
proposed use.
2 This arguably non-residential use apparently was not a problem for the Breens or the other Glen Arden Road neighbors. The details of this use and whether this presents any question of estoppel or waiver as to non-residential use of the Leight property is premature.
-3- Leuthauser and Leight conducted two neighborhood meetings, one in
April and another in June of 2022. After such meetings, an applicant has a limited
period to proceed further with the application process. During this stage of the
process, the Breens filed this suit. Leuthauser and Leight ultimately declined to
file a formal permit application with the Louisville Metro Board of Zoning
Adjustment (“BOZA”) within the 90-day deadline. Thus, that permit application
died.
Clearly, the Breens do not want the issue to arise again. They seek
permanent injunctive relief. The Breens present the Glen Arden Road area as an
historic and exclusive neighborhood, and they want to keep it that way.
The most important word in the Complaint is a short one – if. This
word begins multiple paragraphs3 of the Complaint. The Complaint states a clear
claim only with respect to if the Airbnb permit were to be allowed. While the
Complaint demands damages, it does not say what for. There is no stated claim
that extra expenses for the maintenance of the road have been sustained due to use
as an Airbnb, which has not been permitted. The Complaint does not state any
other damages actually incurred from any other cause.
The Complaint mentions deed restrictions for property on Glen Arden
Road. The Declaration of Restrictions states: “No lot shall be used except for
3 See Complaint, Paragraphs 20, 43, and 45.
-4- private single-family residential purposes.” The same document states: “No trade
or business of any kind . . . shall be conducted on any lot, nor shall anything be
done thereon which may become an annoyance or nuisance to the owner or owners
of other lots.”
The Complaint also mentions the “Glenview Area Neighborhood
Plan” ordinances passed by the Louisville Metro Government. The Glenview Area
Neighborhood Plan limits all multi-family housing to areas already zoned for such
development, limits all non-residential uses to those already in existence, and
limits Glen Arden Road to single-family residences.
The City timely filed its Answer and responded to the Breens’
discovery requests. The City admitted it has not spent any funds to repair, repave,
or maintain Glen Arden Road. The City admitted that its 2022 budget did not
allocate any funds for the maintenance of Glen Arden Road and that it did not
presently maintain Glen Arden Road. The City acknowledged that it had not
“taken any action to dedicate Glen Arden Road to the City of Glenview as a public
road or easement.” A City ordinance4 recognizes the existence of private roads in
the City and creates a process to make them public roads. Nothing in the record
suggests that Glen Arden Road has gone through this process.
4 Ordinance 3, Series 2010, was enacted when Richard Breen was mayor of Glenview.
-5- After abandoning their permit application, Leuthauser and Leight
moved to dismiss the Complaint under CR5 12.02 for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. Their
motion asserted that no case or controversy was ripe for adjudication because
BOZA had not issued a permit allowing short-term rentals of the Leight Property.
They argued that, since a formal application was not filed with BOZA within the
required 90-day timeframe, there was no present controversy, and the Breens were
asking the circuit court for an improper advisory opinion about potential, future
situations.
While this dispositive motion was pending, the Breens tendered
Agreed Judgments with the defendants other than Leuthauser, Leight, and the City.
These documents consist of copied form orders. The form recognizes Glen Arden
Road as a private road, claims commercial use would overburden the easement,
and then parrots the contents of applicable restrictions. The circuit court
subsequently entered most of these Agreed Judgments. The Breens offered these
Agreed Judgments showing that all the other neighbors agreed with them.
The circuit court entered an Opinion and Order Granting Defendants’
Motion to Dismiss. The circuit court held it did “not have jurisdiction over this
matter since there is no justiciable controversy.” The court noted Leuthauser and
5 Kentucky Rules of Civil Procedure.
-6- Leight never applied for the formal permit application with BOZA, and thus ruling
on the merits of the Breens’ Complaint “would be merely an advisory opinion for a
hypothetical event that may never happen[.]” The Order and Opinion did not
explicitly rule on the public/private status of Glen Arden Road, whether the
contemplated use of the Leight Property is an actionable violation of deed
restrictions, or whether the easement on Glen Arden Road would be overburdened
by using the Leight Property as an Airbnb.
The Breens subsequently moved the circuit court to alter, amend, or
vacate its Opinion and Order. The Breens also moved the circuit court to make
findings of fact and conclusions of law on all issues. The Breens argued the
court’s entry of the Agreed Judgments concerning the dismissed defendants
established jurisdiction over the matter. They further argued that the circuit court’s
later dismissal of the entire action was inconsistent with its earlier entry of the
Agreed Judgments. The circuit court denied the Breens’ motion. This appeal
followed.
STANDARD OF REVIEW
When reviewing motions to dismiss under CR 12.02, the circuit court
must accept any factual statements in the Complaint as true. Fox v. Grayson, 317
S.W.3d 1, 7 (Ky. 2010). Dismissal should be granted only if the Plaintiff could not
-7- succeed on the Complaint under any set of facts provable. Id. We review the
granting of a motion to dismiss de novo. Id.
Regardless of facts alleged, the Kentucky Constitution limits circuit
courts to decide only “justiciable” cases. KY CONST. § 112(5). If such a case is
not present, the circuit court lacks subject matter jurisdiction to proceed. Even if a
justiciable case exists for declaratory judgment, which is separately required by
KRS6 418.040, then KRS 418.065 gives the circuit court discretion to decline to
proceed with declaratory judgment. We review the circuit court’s decision under
KRS 418.065 for an abuse of discretion. An abuse of discretion occurs if the trial
court’s ruling is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
The circuit court dismissed the Breens’ Complaint for lack of subject
matter jurisdiction because there was no justiciable controversy. Our first question
is whether the circuit court correctly determined there was no case or controversy
to adjudicate.
The Kentucky Declaratory Judgment Act is found in KRS Chapter
418. The Act “is intended to be remedial in nature, and its purpose is to make
courts more serviceable to the people by way of settling controversies and
6 Kentucky Revised Statutes.
-8- affording relief from uncertainty and insecurity with respect to rights, duties and
relations.” Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 209 (Ky. 2008)
(citing KRS 418.080).
KRS 418.040 states:
In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.
(Emphasis added.)
The circuit court may also refuse to declare rights under certain circumstances.
KRS 418.065 states:
The court may refuse to exercise the power to declare rights, duties or other legal relations in any case where a decision under it would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary or proper at the time under all the circumstances. The appellate court in its consideration of the case, shall not be confined to errors alleged or apparent in the record. When, in its opinion, further pleadings or proof is necessary to a final and correct decision of the matters involved, or that should be involved, it shall remand the case for that purpose; or if in its opinion the action is prematurely brought, or where a ruling in the appellate court is not considered necessary or proper at the time under all the circumstances, it may direct a dismissal without prejudice in the lower court.
-9- When a party moves the court to dismiss a declaratory judgment
action, “the question presented to the court is not whether the plaintiff will
ultimately prevail.” Bank One Kentucky NA v. Woodfield Fin. Consortium LP, 957
S.W.2d 276, 278 (Ky. App. 1997). Instead, the trial court’s job is to “determine
whether the complaint states a cause of action for declaratory relief.” Id. at 278.
“One reason for dismissing a complaint for declaratory relief . . . is
that no justiciable controversy exists for the court to resolve.” Id. at 279 (citation
omitted). The five justiciability doctrines are: (1) the prohibition against advisory
opinions, (2) standing, (3) ripeness, (4) mootness, and (5) the political-question
doctrine. Commonwealth Cabinet for Health & Fam. Servs., Dep’t for Medicaid
Servs. v. Sexton by & through Appalachian Reg’l Healthcare, Inc., 566 S.W.3d
185, 193 (Ky. 2018).
“An actual controversy for purposes of the declaratory judgment
statute requires a controversy over present rights, duties and liabilities; it does not
involve a question which is merely hypothetical or an answer which is no more
than an advisory opinion.” Barrett v. Reynolds, 817 S.W.2d 439, 441 (Ky. 1991)
(citation omitted).
In its Opinion and Order, the circuit court noted that the deadline to
submit a formal permit application with BOZA had expired and there were no
concrete plans going forward regarding short-term rentals at the Leight Property.
-10- The court noted Leuthauser and Leight may never seek such a permit, and if they
do, the permit will first go through BOZA. The permit may be denied. The circuit
court concluded a ruling on the merits of the Complaint “would merely be an
advisory opinion for a hypothetical event that may never happen[.]”
Regardless of the permit status, the Breens insist that the circuit court
erred when it dismissed its cause of action regarding the public/private status of
Glen Arden Road. The Breens’ related argument is that future commercialization
of the Leight Property would overburden the easement on Glen Arden Road. They
see a current controversy on that issue.
The Breens cite Kircheimer v. Carrier, 446 S.W.3d 224 (Ky. 2014), in
support. In Kircheimer, lot owners in the Sandy Beach Subdivision in Grayson
County filed a petition for a declaration of rights seeking a judgment that a certain
road, Sandy Beach Lane, was a private road. The lot owners sought to enjoin the
developers of Sandy Beach Subdivision from developing the road on behalf of two
adjacent subdivisions, Sandy Beach II and Taylor’s Landing. Id. at 226. A one-
foot strip of land referenced in the Sandy Beach Subdivision plat and its deed of
restrictions physically separated Taylor’s Landing and Sandy Beach II from Sandy
Beach Lane. Id. The developers were allowing certain lot owners in Taylor’s
Landing and Sandy Beach II to build driveways over the one-foot strip of land to
access Sandy Beach Lane. Id. at 227.
-11- The Kentucky Supreme Court held Sandy Beach Lane was a private
roadway for the sole use and benefit of the Sandy Beach Subdivision lot owners.
Id. at 233. The court also held that neither the developers nor the lot owners in
Taylor’s Landing and Sandy Beach II could enlarge or extend the easement on
Sandy Beach Lane by installing driveways that cross the one-foot strip and open
onto the road. Id. at 232.
“It is well established that ‘an easement for the benefit of a particular
piece of land cannot be enlarged and extended to other parcels of land, whether
adjoining or distinct tracts to which the right is not attached.’” Id. (citing Cleve v.
Nairin, 264 S.W. 741, 742 (Ky. 1924)). The court stated the purpose of the rule
against the enlargement of an easement is to “prevent an increase of the burden
upon the servient estate.” Id. “Just as an easement holder may not expand the use
of the easement, a grantor is likewise prohibited from interfering with the dominant
estate’s use of the easement.” Id. (citing Sawyers v. Beller, 384 S.W.3d 107, 111
(Ky. 2012)).
We find the present case distinguishable from Kircheimer. The
developers of the Sandy Beach Subdivision had built and were building houses and
allowing lot owners in Sandy Beach II and Taylor’s Landing to build driveways
over the one-foot strip of land to access Sandy Beach Lane. Id. at 226. Unlike the
present case where there is no permit and thus no Airbnb operating, the Kircheimer
-12- case involved a real and present use of the property and thus a justiciable
controversy.
Similarly, the Breens’ reliance on Hensley v. Gadd, 560 S.W.3d 516
(Ky. 2018), is misplaced. In Hensley, a developer of a subdivision (“Hensley”)
filed a complaint against a property owner (“Gadd”) in the subdivision, alleging
Gadd violated deed restrictions by using his properties for short-term rentals.
Hensley asserted short-term rentals violated the restriction of using single-family
residential properties for business purposes. Id. at 519. The Kentucky Supreme
Court held a short-term rental home is not a single-family residence, but a type of
hotel – therefore, Gadd’s use of his properties violated the deed restrictions of the
subdivision. Id. at 524.
The Breens assert the Hensley case authorizes adjudication of whether
short-term rentals violate the Declaration of Restrictions. But, again, Hensley
illustrates by contrast why the Breens cannot proceed with their present Complaint.
In Hensley, Gadd actively rented and advertised his properties as short-term
rentals. Since Leuthauser and Leight have not sought a permit with BOZA, a
ruling on whether short-term rentals at the Leight Property would violate the
Declaration of Restrictions would be a hypothetical advisory opinion, unlike the
real and ongoing problem presented in Hensley.
-13- The case actually pled (a pending permit) by the Breens has become
moot. The controversy is not now ripe for a decision and would be an advisory
opinion. The reference in briefs to other activities at the Leight Property does not
alter this.
In briefs (but not in the Complaint), the Breens argue that other
current commercialization of the Leight Property is an actionable violation of
restrictions and an added burden to the private road. The Breens say that
Leuthauser and Leight are currently renting the Leight Property as a “dormitory” to
“five unrelated males in their twenties.” The Breens did not plead this issue in
their Complaint, and they did not amend their Complaint. No filed affidavit details
this supposed use. What attorneys say in briefs is not the equivalent of properly
pleaded facts.
The circuit court and this Court will not rule on unpled claims.
Nothing will prohibit the Breens from filing another complaint properly pleading
whether the use of the Leight Property as a “dormitory” violates restrictions or
overburdens the easement.
KRS 418.065 contemplates such situations when a properly stated
Complaint could present a justiciable case. The statute allows us to remand the
case for dismissal of the present case without prejudice, allowing a new Complaint
to present an actual and present controversy. We conclude that a decision on this
-14- case as presented in the Complaint is “not necessary or proper at the time under all
the circumstances.” KRS 418.065.
The Breens next argue the circuit court’s entry of the Agreed
Judgments with the other defendants while the motion to dismiss was pending
established jurisdiction over the matter. They claim the later dismissal of the entire
action created an inconsistency in rulings regarding jurisdiction. We disagree.
As we have said, a circuit court has no subject matter jurisdiction over
a non-justiciable claim. Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270
(Ky. App. 2005). “[D]efects in subject matter jurisdiction may be raised by the
parties or the court at any time and cannot be waived.” Commonwealth Health
Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky. 1996) (citation omitted). There was no
error for the circuit court to initially enter the Agreed Judgments and then later
dismiss the Complaint in its entirety because of the lack of subject matter
jurisdiction.
The Agreed Judgments did not resolve any dispute. The Breens
gathered these statements from neighbors who were in sympathy with them. None
of these people question the status of Glen Arden Road as a private road. The
Agreed Judgments, having been entered in an overall case which is moot, unripe,
and advisory, have no effect other than to serve as formal judicial admissions by
the people who signed them.
-15- The Breens’ final argument is that the circuit court erred by not
making certain findings of facts or conclusions of law in the court’s Order Denying
Motion to Alter, Amend, or Vacate. As previously mentioned, the circuit court’s
Order and Opinion did not rule on the public/private status of Glen Arden Road,
whether commercialization of the Leight Property is an actionable violation of
deed restrictions, or whether the easement on Glen Arden Road would be
overburdened by using the Leight Property as a short-term rental property.
Part of the Breens’ Motion to Alter, Amend, or Vacate asked the
circuit court to make findings of fact and conclusions of law regarding the
remaining issues pursuant to CR 52.04. The circuit court properly held that the
Breens did not establish the presence of any circumstances articulated in Gullion v.
Gullion, 163 S.W.3d 888 (Ky. 2005), which would allow granting their Motion to
Alter, Amend, or Vacate.
The Breens further assert the circuit court must make findings of fact
and conclusions of law under CR 52.01. The Breens contend that CR 52.01
requires findings of fact and conclusions of law when ruling on an injunction. The
Breens’ argument is inapposite. CR 52.01 and CR 52.04 apply to “all actions tried
upon the facts without a jury or with an advisory jury[.]” (Emphasis added.) The
Breens’ Complaint was never tried; it was dismissed via a CR 12.02 motion. With
such a motion, the circuit court must accept any factual statements in the
-16- Complaint as true, and thus fact-finding is unnecessary in the analysis for
dismissal.
The final Order and Opinion addressed the relevant facts and
concluded the Breens’ Complaint (including all injunctive relief sought) to be non-
justiciable at this time. The issues of the public/private status of Glen Arden Road,
whether commercialization of the Leight Property is an actionable violation of
deed restrictions, or whether the easement on Glen Arden Road would be
overburdened by using the Leight Property as an Airbnb related only to the
injunction they sought. That injunction would have concerned the permit sought
for an Airbnb. The circuit court correctly determined that the Breens failed to
establish circumstances that would necessitate amending or altering the dismissal.
CONCLUSION
Because the Breens’ Complaint specifically alleged only the problems
presented by an abandoned permit initially seeking to operate an Airbnb, the circuit
court correctly determined the Breens’ Complaint did not present a justiciable
claim. The withdrawal of the permit application rendered the controversy moot.
In the absence of a new permit or some other pleading of a violation, no ripe claim
has been made. The circuit court properly recognized its duty not to provide an
advisory opinion. The circuit court did not err in dismissing the Breens’
Complaint which is without prejudice to a future pleading in which ripe claims of
-17- actual controversy may be stated. The judgment of the Jefferson Circuit Court is
AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES NOLAN LEUTHAUSER AND G. Adam Redden SARAH LEIGHT: Louisville, Kentucky Michael B. Marks Louisville, Kentucky
BRIEF FOR APPELLEE CITY OF GLENVIEW:
Grover C. Potts, Jr. Matthew L. Bunnell Louisville, Kentucky
-18-