Opinion
NO. 2014-CA-001362-MR
03-11-2016
STEPHEN D. PRICE d/b/a NO-NOISE GARDENS APPELLANT v. CAREY SHIREY and GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION APPELLEES
BRIEF FOR APPELLANT: Stephen D. Price, Pro Se Georgetown, Kentucky BRIEF FOR APPELLEE, CAREY SHIREY: Jon A. Woodall Brendan R. Yates Lexington, Kentucky BRIEF FOR APPELLEE, GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION: Charles M. Perkins Georgetown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 14-CI-00175 OPINION
AFFIRMING BEFORE: COMBS, KRAMER, AND NICKELL, JUDGES. KRAMER, JUDGE: Carey Shirey applied with the Georgetown-Scott County Planning Commission for approval of a site plan regarding property Shirey and his wife, Lisa, jointly owned at 313 and 333 Porter Road in Sadieville. On February 13, 2014, the Commission decided to approve Shirey's site plan. On March 17, 2014, appellant Price filed a complaint in Scott Circuit Court appealing the Commission's decision. He named the Commission and Shirey as parties. Shortly thereafter, Shirey moved to dismiss Price's action on the ground that Price had failed to name Lisa as a party; had thus violated Kentucky Revised Statute (KRS) 100.347(4); and had thereby deprived the circuit court of jurisdiction. The circuit court ultimately dismissed Price's action on this basis, and this appeal followed. Upon review, we affirm.
On appeal, Price argues he demonstrated good faith in attempting to ascertain the owners of the property at issue in this matter; he justifiably relied upon Shirey's application to the Commission, which only listed Shirey as the owner; and that these factors, along with the doctrine of substantial compliance, should have operated to confer jurisdiction upon the circuit court in spite of his failure to name Lisa as a party to his action.
We disagree. As to why, we adopt the well-reasoned opinion of the circuit court in relevant part as follows:
The court in Spencer County Preservation, Inc., v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007), states:
Section 115 of the Kentucky Constitution provides for appeals as a matter of right in all cases originating in our court system. However, the Kentucky Constitution does not contemplate that an administrative agency and its decisions are the equivalent of a court and the rulings therefrom. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795 (Ky. 1990). There is no
question that the appeal of a planning and zoning decision is an appeal of an administrative decision made by an administrative body. Taylor v. Duke, 896 S.W.2d 618 (Ky. App. 1995).
Where an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute. See Ky. Unemployment Ins. Comm'n v. Providian Agency Group, Inc., 981 S.W.2d 138 (Ky. App. 1998). An appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal. Taylor, 896 S.W.2d 618.
That court expressly states that in order to perfect an appeal from an administrative agency to a circuit court the appellant must strictly follow the requirements of the statute granting the right to appeal. [Price] argues that it was unnecessary to name Lisa Shirey as a defendant in this action because he substantially complied with the dictates of the statute. According to the Kentucky Court of Appeals decision cited above, substantial compliance is insufficient. A circuit court is without jurisdiction to hear any substantive merits of an appeal unless the appellant follows the procedures to perfect the appeal completely. Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978).
KRS 100.347(4) states, "The owner of the subject property and applicants who initiated the proceeding shall be made parties to the appeal. Other persons speaking at the public hearing are not required to be made parties to such appeal." The only possible reading of this statute is that the owners of the property at issue in an appeal to a planning and zoning action must be named as defendants. This Court is without jurisdiction to proceed any further in this case as [Price] failed to properly perfect his appeal by failing to name all the necessary parties.
Additionally, Price argues that he was not required to name Lisa Shirey as a defendant below because she was not named as a property owner in the application initiating the ultimate decision by the Commission. KRS 100.347(4) includes no such exception to its requirements and as a general matter jurisdiction cannot be acquired by consent, waiver, or estoppel. Nordike v. Nordike, 231 S.W.3d 733, 739-39 (Ky. 2007).
For these reasons, the decision of the Scott Circuit Court to dismiss the underlying action is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen D. Price, Pro Se
Georgetown, Kentucky BRIEF FOR APPELLEE, CAREY
SHIREY: Jon A. Woodall
Brendan R. Yates
Lexington, Kentucky BRIEF FOR APPELLEE,
GEORGETOWN-SCOTT COUNTY
PLANNING COMMISSION: Charles M. Perkins
Georgetown, Kentucky