Short v. City of Olive Hill

414 S.W.3d 433, 2013 WL 3835834, 2013 Ky. App. LEXIS 115
CourtCourt of Appeals of Kentucky
DecidedJuly 26, 2013
DocketNos. 2012-CA-000873-MR, 2012-CA-000939-MR
StatusPublished
Cited by4 cases

This text of 414 S.W.3d 433 (Short v. City of Olive Hill) 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
Short v. City of Olive Hill, 414 S.W.3d 433, 2013 WL 3835834, 2013 Ky. App. LEXIS 115 (Ky. Ct. App. 2013).

Opinion

OPINION

CAPERTON, Judge:

The Pro-Se Appellants/Cross-Appellees, Jim and Madonna Short, appeal the November 22, 2011, order granting defendant’s motion to alter, amend, or vacate (in part) its previous order of February 18, 2010, and granting summary judgment in favor of Appellee/Cross-Appellant, City of Olive Hill, on issues of a lien assessed as a result of enforcement of a code violation prohibiting weed growth which Olive Hill asserts was committed by the Shorts. On appeal, the Shorts argue that Olive Hill violated their due process rights and filed the lien against them illegally. Olive Hill disagrees, asserting that it provided the Shorts with due process in the course of filing what it asserts was a valid and legal lien. On cross-appeal, Olive Hill requests [436]*436reversal of that portion of the court’s ruling that it was required to provide “enhanced delivery” of its Enforcement Order against the Shorts. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.

Since December 23, 1997, the Shorts have been owners of an old school building located in Olive Hill, Kentucky, (hereinafter the “Property”). On March 15, 2006, Olive Hill’s Code Enforcement Officer mailed a Notice of Code Violation for violations of a city nuisance ordinance pertaining to the accumulation of debris and the growth of weeds and brush. The Shorts were informed that a citation would be issued if the violations were not corrected by March 24, 2006. The Code Enforcement Officer subsequently mailed a Uniform Code Enforcement Citation for the nuisance violations, on March 29, 2006, because the violations were not corrected. This citation informed the Shorts that a fine could be paid or a hearing requested to contest the citation.

Thereafter, on April 4, 2006, the Shorts requested a hearing before the Olive Hill Code Enforcement Board to contest the citation, asserting that it was vague and without clarity. According to the Shorts, it was determined that a meeting with the Code Enforcement Officer was supposed to take place to help clarify issues. At the Shorts’ request, the administrative hearing initially scheduled for June 13, 2006, was rescheduled to September 5, 2006. Jim Short attended and participated in the hearing during which the entire Board unanimously found that the Property was in violation of the nuisance ordinance and ordered the debris removed and the weeds cut within one week, with a $25.00 per-day penalty to be imposed for each day that this was not accomplished.1 On September 6, 2006, the Board’s decision was reduced to a written order (the “Enforcement Order”) and was mailed to the Shorts via standard U.S. Mail, postage prepaid. The Enforcement Order was never returned as undeliverable, although the Shorts deny receiving it.

Within a week of the hearing during which the Board’s decision was announced,2 the Code Enforcement Officer, at Jim Short’s request, met with Jim Short at the Property to discuss the remedial actions which had to be taken to abate the nuisances.3 The Shorts still failed to abate the nuisances, however, and on April 9, 2007, Olive Hill mailed a letter to the Shorts which expressly informed them that the Enforcement Order had been entered on September 6, 2006, and which also expressly informed them of the filing of the Notice of Lien which was, at that time, in the amount of $5,250. On May 21, 2007, Olive Hill sent the Shorts an additional letter containing both a copy of the Notice [437]*437of Lien and a copy of the Enforcement Order as an attachment.4

The Shorts did not file an appeal of the Enforcement Order with the Carter District Court. Rather, on May 24, 2007, the Shorts filed their Complaint initiating the instant lawsuit in the Carter Circuit Court. In the Complaint, the Shorts requested that the Carter Circuit Court release the statutory lien against the Property; impose an injunction prohibiting Olive Hill from imposing any further claims, fines, or demands against the Property; and to award the Shorts monetary damages. In support of such relief, the Shorts alleged that: (1) The Nuisance Ordinance (Ordinance No. 2003-03) and notices of violations thereof are unconstitutionally vague and complex; (2) The ordinance establishing the Olive Hill Code Enforcement Board (Ordinance No. 2003-05A) is invalid as improperly published; (3) The Board violated procedural due process by failing to follow certain “Rules of Procedure”; (4) The Board was not properly constituted and its Enforcement Order was signed by an unauthorized person (during summary judgment proceedings, the Shorts explained that it was their contention that a Board member who served as Secretary had not been properly reappointed or sworn in to act as a member of the Board); and (5) The fine imposed by the Enforcement Order was excessive.

Subsequently, on June 13, 2007, Olive Hill filed an answer with a counterclaim for fines and enforcement of its statutory lien. Following written discovery, both parties filed motions for summary judgment which were briefed and submitted by January 30, 2009. On February 18, 2010, the circuit court entered an “Order Addressing Cross-Motions for Summary Judgment.” Therein, the circuit court held that: (1) The Nuisance Ordinance was not unconstitutionally vague or complex with respect to the identification of weeds and vegetation as would constitute a nuisance; (2) The Board’s action was not invalid for failure to include an indispensable party and both of the Shorts had notice and an opportunity to be heard in the administrative proceeding; (3) The fine imposed by the Enforcement Order was not excessive; (4) the Board’s action was not invalid because the Board’s Secretary, Alberta McCoy, was properly reappointed to the Board; and (5) The Shorts’ claims were not barred for their failure to timely appeal to the Carter District Court, pursuant to Kentucky Revised Statutes (KRS) 65.8831, because Olive Hill had failed to provide “enhanced service” of the Enforcement Order by either certified mail, personal delivery, or delivery to the Shorts’ home in the custody of an adult residing therein. The Court further reserved ruling as to whether the Board’s action was invalid for failure of the Board’s Secretary to have retaken the oath of office upon her reappointment, pending the submission of proof as to whether or not such an oath was readministered.

Olive Hill filed a motion for partial reconsideration, seeking the circuit court to reconsider its ruling that “enhanced service” was required, and seeking a ruling that the Shorts had sufficient notice of the Board’s decision such that they could not complain of a lack of receipt of the Enforcement Order as an excuse for failing to file a timely appeal. Further, by its motion, Olive Hill affirmatively advised the court that the Board’s Secretary, Alberta McCoy, had not been readministered the oath of office upon her reappointment to a [438]*438second consecutive term, and sought the circuit court to nonetheless rule that Ms. McCoy was lawfully empowered to act as Board member or, alternatively, that the Board’s action was valid as taken by a majority of a quorum of the Board.

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Cite This Page — Counsel Stack

Bluebook (online)
414 S.W.3d 433, 2013 WL 3835834, 2013 Ky. App. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/short-v-city-of-olive-hill-kyctapp-2013.