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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Rehearing Sought In Condemnation Action  Posted: May 22, 2009

COMMONWEALTH OF KENTUCKY
COURT OF APPEALS
NO. 2008-CA-001126-MR

CLIFF WILBURN AND JUDY WILBURN
APPELLANTS

APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 06-CI-0062

v.

CITY OF FLATWOODS, KENTUCKY
APPELLEE


APPELLANT’S PETITION FOR REHEARING


INTRODUCTION

Kentucky Civil Rule 76.32 provides in pertinent part that, “(1)(a) A party adversely affected by an opinion of the . . . Court of Appeals in an appealed case may petition the Court for (i) a rehearing[.]” Cliff and Judy Wilburn (“Wilburns”) are parties “adversely affected” within the meaning of the phrase, by the May 1, 2009 Opinion of this Court affirming the decision by the Greenup Circuit Court to grant the City of Flatwoods an easement across the Wilburn property. This Court’s decision allows the taking of an unnecessary easement on the Wilburn property in order to allow an unlawfully-installed private sewer line to remain on the Wilburn property, despite the lack of pleading and a judicial finding of a “public use,” despite the lack of necessity in light of the availability of a lawful, state-approved easement some eighty (80) feet away, and without the requisite good faith that must underpin a constitutional exercise of the power of eminent domain.

Rehearing is authorized in this case because this Court issued an “opinion” in an “appealed case” as those terms are used in CR 76.32. This Petition for Rehearing is timely filed, since it is filed within the twenty (20) day window provided by CR 76.32(2) after the rendering of an opinion. The Opinion in this case was rendered May 1, 2009, so that the time for requesting rehearing expires on May 21, 2009. A document is timely filed, according to CR 76.40, when it is transmitted by express mail within the time allowed for filing. CR 76.40(2).

Rehearing should be granted when “it appears that the court has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on the appeal or the law applicable thereto.” CR 76.32(1)(b).

ARGUMENT

The Wilburns raised four issues of law in this appeal: that the Interlocutory Judgment and final Order of the trial court failed to make the required finding of a “public use” to support the exercise of eminent domain power by the City of Flatwoods; that there was no necessity for the city to condemn the Wilburn property since the developer possessed a lawful, state-approved easement for the sewer line; that the taking was in violation of Kentucky Constitution Article 2 and constituted a gross abuse of power; and that the after-the-fact condemnation of unlawfully seized property did not constitute a “public use”.

Respectfully, this appeal should be reheard since this Court’s Opinion did not address the first issue, misconceived the other arguments and the law applicable thereto, and relied upon “facts” not in the record and misconceived the law applicable thereto in rejecting the constitutional claim.

I. Rehearing Should Be Granted Because this Court Overlooked Controlling Statutes And A Controlling Decision And Misconceived the Issue Presented In Affirming The Trial Court’s Use Of The Insufficient “Public Purpose” Standard In Granting An Easement By Eminent Domain

In affirming the trial court decision, this Court did not address the Appellants’ argument, found at Section IA in the Brief of Appellants, that the Greenup Circuit Court applied the legally insufficient “public purpose” test rather than the required “public use” standard in granting the easement. Both Section 13 of the Kentucky Constitution and KRS 416.675 require a finding of a “public use” in order to justify a taking by eminent domain. The Court in City of Owensboro v. McCormick specifically rejected a finding of “public purpose” as being legally sufficient, stating that “the constitutional provisions involved clearly require that finding of “public purpose” does not satisfy the requirement of a finding of “public use.” City of Owensboro v. McCormick, 581 S.W.2d 3, 11 (Ky. 1979). In this case, both the Interlocutory Judgment and the final Order issued by the trial court utilized the insufficient standard of “public purpose” rather than the required “public use” standard.

The failure of the City of Flatwoods to plead and of the Greenup Circuit Court to make the requisite finding of “public use” in the Interlocutory Judgment and final Order requires that the trial court’s action be overturned and the Interlocutory Judgment and Order be vacated. By failing to address the Greenup Circuit Court’s written finding that premised the City’s power of condemnation on a public purpose, rather than the proper public use standard, this Court misconstrued Ky. Const. Section 13 and KRS 416.675, and overlooked controlling Kentucky case law specifically stating that a finding of “public purpose” does not satisfy the “public use” requirement. City of Owensboro v. McCormick, 581 S.W.2d 3, 11 (Ky. 1979).

II. Rehearing Should be Granted Since this Court Has Misconstrued The Appellants’ Argument Concerning The Lack Of Necessity For The Condemnation Of the Easement

The Wilburns argued that there was no necessity for the condemnation due to the existence nearby of a state-approved, lawful easement on which the sewer line could be located. This Court found that the easement in this case was necessary because the “Wilburns presented no evidence that the location of the easement on their property is unreasonable or arbitrary” so that the Court was not “at liberty to disturb the City’s discretion in choosing the location for the sewer line.” Opinion at p. 5.

The Opinion ignores several material facts at issue. The City did not exercise any discretion in “choosing the location for the sewer line” - it was the private developer that chose the location, since prior to the City’s commencement of the condemnation action, the private sewer line had already been illegally installed on the Wilburn property by a private developer, who had a lawful easement and required state permit to install the line on an adjacent property. While this Court is correct that the condemning authority has discretion as to what property to take, here that discretion was not exercised by the City of Flatwoods, since it was the private developer, who unlawfully trespassed and installed the private sewer line, who determined the “amount of land to be condemned” and the location of the easement.

The Court misapprehends the legal standard for “necessity,” and the Wilburns’ argument, wherein it states that “the Wilburns presented no evidence that the location of the easement on their property is unreasonable or arbitrary.” The Wilburns provided documentary evidence, in the form of the Division of Water enforcement order and inspection report, that at the time of the trespass and installation of the line on the Wilburn property, the private developer already possessed a voluntary easement and a permit for installation of a sewer line in that easement, to serve the proposed development. It is the existence of that easement, (which the Court mistakenly notes on page 5 of the Opinion as the City’s easement rather than the developers’), that is conclusive evidence of the lack of any “reasonable necessity” for the City’s belated condemnation action. The test of “reasonable necessity” in Davidson v. Commonwealth ex rel. State Highway Commission, 249 Ky. 568, 61 S.W.2d 34, 36 (1933) presupposes that there is benefit to the public from the condemnor’s action, and requires a balancing of the greatest benefit with the least inconvenience to those affected consistent with that benefit. Here there is no evidence of record of any benefit to the public, since if the City had refrained from suit, the private developer would have been required to provide sewer service through the lawful easement and in accordance with state permit. Instead, the benefit accrues only to the private developer, by getting him off the hook for the unlawfully located sewer line and saving him the cost of relocation of the line, and at great inconvenience to the Wilburns, whose property was first trespassed upon and later taken by force of law notwithstanding the existence of a lawful, voluntary easement nearby. It is the unlawful nature of the private sewer line on the Wilburn property and the existence of a lawful easement and state-issued permit, that make the City’s post-hoc and unnecessary invocation of the power of eminent domain so “unreasonable and arbitrary.” The private developer “chose” the location of the line, and there was no necessity for the City to deprive the Wilburns of their property rights when a lawful easement and state-approved location existed nearby that could serve the same development.

III. Rehearing Is Appropriate On The Constitutional Issue Since This Court Assumed And Relied Upon “Facts” Not Contained In The Record, Appears To Have Overlooked Material Facts Contained In The Record, And Has Misconceived The Issues And Law Applicable Thereto.

The fourth issue of law raised by the Wilburns questioned the constitutionality of the taking of the Wilburn property under Section 2 of the Kentucky Constitution. This Court’s Opinion at pp. 5-6 characterizes the Appellants’ argument as a claim that the City has not acted in “good faith,” and states that the “only basis for challenging the taking for this reason would be for the Wilburns to show that the City has acted in bad faith.” Opinion at p. 6.

Rehearing is appropriate on this issue because the Court has both relied on facts not in the record, and has misconceived the issue presented and the law applicable thereto.

In the discussion of the underlying background of this appeal and in rejecting the Wilburns’ argument that the condemnation action was unconstitutional, this Court concluded that the sewer line was built on the Wilburn property rather than in the proper location “due to a surveyor’s error[.]” See: Opinion at pp. 2, 6. The Court states that “[t]he only evidence of record is that the trespass was caused by a surveyor’s error”, yet there is nothing in the record supporting any conclusion that the trespass was unintentional or was due to a surveyor’s error.

Rehearing is also appropriate on this constitutional question because the Court appears to have misapprehended the legal standard as being one of “good faith” alone. While the Court is correct that among the constitutional constraints to the exercise of eminent domain is a duty to negotiate in good faith prior to seeking condemnation, Opinion at p. 6, the state constitution also constrains exercises of condemnation power that constitute manifest fraud or a gross abuse of power, Commonwealth v. Cooksey, 948 S.W.2d 122, 123 (Ky. App. 1997), and prohibits arbitrary exercises of government power over the property of citizens. Com. Transp. Cabinet v, Taub, 766 S.W.2d 610, 612 (Ky. App. 1987). Against these standards, the use of governmental power to resolve a private property dispute by seizing the lands of one of the disputants, and the innocent one at that, is arbitrary and a gross abuse of that power. The use of eminent domain to create a post hoc approval for the unlawful invasion of private land by an adjoining private landowner by seizing the land so invaded, is against public policy as expressed in 401 KAR 5:005 (since a lawful and state-approved easement existed), and by upholding this type of municipal action, this Court invites similarly situated developers to build first, to ignore the constraints of the state permit, and to use the instrumentality of city condemnation power to justify later.

IV. Rehearing Is Appropriate Because Mr. Wilburn Did Not Admit That The Exercise Of Condemnation Power In This Case Was For A Public Use

The Wilburns’ final argument was that the use of condemnation powers to cure a private developer’s trespass and unlawful installation of a private sewer line on private land did not constitute a public use. Mr. Wilburn, a pro se litigant in a complex area of law, repeatedly addressed the lack of public use and necessity, making the point that no public interest was served by condemning the property in order to allow an illegally-installed sewer line to remain since there was a lawful easement and state-approved permit to install it on adjoining land. This Court states that the Wilburns “conceded the sewer line is a valid public use.” Opinion, page 4, yet as Appellants discussed in the opening brief at pp. 4-6, Mr. Wilburn made no such admission and instead repeatedly argued that the taking was not for a public use and would not benefit the public since an easement for the sewer line already existed. In arriving at the conclusion that Mr. Wilburn made such a concession, this Court overlooks material facts regarding the March 23 hearing.

As noted in the Brief of Appellants, review of the videotape of the March 23, 2007 hearing reflects that Mr. Wilburn repeatedly argued that the taking of the property would not meet the public use standard. Mr. Wilburn asked the Court to dismiss the Complaint because the taking did not meet the public use requirement, since whether it was on his property or where it was supposed to be constructed, there was no benefit to the city or the public. March 23, 2007 Hearing, 9:51:06 a.m. After introducing the Notice of Violation issued to the Developer by the Division of Water into evidence , Mr. Wilburn again argued to the Court that there was no public use in this situation since the developer had a permit and an easement to install the line on an adjacent piece of property:
Whether its on me or on my neighbor it would not benefit the city or the public in any way to leave it on me instead of moving it like the Kentucky Department of Water has ordered it to be done.

March 23, 2007 Hearing, 9:58:08 a.m.

In response to the Court’s question as to whether the sewer was for a “public purpose” because it would serve residents of the subdivision, Mr. Wilburn responded that:

It would serve them if it was in the original location which they have a permit and an easement. It would serve the same amount, so there’s no increase, there’s no benefit to the city to leave it on me.

March 23, 2007 Hearing, 9:59:01.

Despite Answers filed to both the initial Complaint and Amended Complaint, and Mr. Wilburn’s repeated argument at the March 23, 2007 hearing that the taking of an easement on his property was not a public use, the trial court construed the above statement as an admission, stating,

"You’ve admitted that its for a public use – you said it would benefit the public just as much on your property as off your property. So you’ve admitted that it’s for a public use – you just don’t want it on you.”

March 23, 2007 Hearing, 9:59:50 a.m.

Mr. Wilburn’s response was “yeah and it’s illegally on me.” March 23, 2007 Hearing, 10:00:01. Mr. Wilburn had not, despite the trial court’s characterization, conceded that the City’s condemnation of the illegal easement was for a “public use,” and in fact had disputed it because of the lack of public benefit from condemning his land in light of the availability of a voluntary, state-permitted easement. It was not Mr. Wilburn who conceded that the taking was for a public use, but the trial court that construed an ambiguous answer by Mr. Wilburn to a compound question as such a concession. Mr. Wilburn’s argument was consistent throughout that there was no “public use” because there was no greater public benefit from having an illegal easement condemned than having a lawful easement used. In concluding that Mr. Wilburn “conceded” that the taking was for a public use, and relying upon this “admission” in dismissing the Wilburns’ challenge to the taking for lack of a public use, this Court misconstrues the material facts.

Conclusion

For the reasons outlined above, the Wilburns respectfully request that this Court rehear this matter, withdraw the opinion affirming the judgment of the Greenup Circuit Court, and enter a new Opinion overturning and vacating the Interlocutory Judgment and final Order of the Greenup Circuit Court.

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