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

Opening Brief In Case Challenging Constitutionality of Cell Tower Secrecy Statute Is Filed  Posted: July 17, 2013


COMMONWEALTH OF KENTUCKY
HOPKINS CIRCUIT COURT
CIVIL ACTION NO. 11-CI-1179

WINOLA MIMMS PLAINTIFF/APPELLANT

v.

HOPKINS COUNTY JOINT PLANNING
COMMISSION, ET AL.
DEFENDANTS/APPELLEES

* * * *

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

* * * *

Comes the Plaintiff/Appellant Winola Mimms(hereinafter “Plaintiff”), by and through counsel, and for the reasons stated in the attached Memorandum, respectfully moves this Court to enter an Order granting Summary Judgment for Plaintiff. Plaintiff, by counsel, states that there are no material facts in dispute and that she is entitled to judgment as a matter of law.

Wherefore, Plaintiff respectfully requests that this Court enter an Order Granting Summary Judgment on behalf of Plaintiff, and for any and all other relief to which she may appear entitled.

COMMONWEALTH OF KENTUCKY
HOPKINS CIRCUIT COURT
CIVIL ACTION NO. 11-CI-1179

WINOLA MIMMS PLAINTIFF/APPELLANT

v.

HOPKINS COUNTY JOINT PLANNING
COMMISSION, ET AL.
DEFENDANTS/APPELLEES


* * * *

PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Comes the Plaintiff Winola Mimms, by counsel, and provides this memorandum in support of her motion for summary judgment.

INTRODUCTION

This action arises under the provisions of KRS 100.347, which vests the Circuit Court for the county in which the subject property is located, with jurisdiction over appeals from any final action taken by a planning commission. Here, Winola Mimms has challenged the final action of the Hopkins County Planning Commission (Commission) granting approval to New Cingular Wireless PCS, LLC, d/b/a AT&T Mobility PCS (AT&T) to site and erect a 75-foot monopole cellular antenna tower on property located at 425 East Center Street, Madisonville, Kentucky 42431 that is owned by Thomas and Donna Edwards. This action was also filed pursuant to KRS 100.987(10) which provides in full that “[a] party aggrieved by a final action of a planning commission under the provisions of KRS 100.9855 to 100.987 may bring an action for review in any court of competent jurisdiction.” The approval of the cell tower siting was a final action within the meaning of that statute.

Plaintiff also seeks a declaration of rights as between Plaintiff and the Defendants/Appellees (hereinafter “Defendants”) that the confidentiality provision of KRS 100.987(3) violates of Section 2 of the Kentucky Constitution as an arbitrary and thus unconstitutional exercise of legislative power in derogation of the procedural due process rights and equal protection rights of Plaintiff, and is special legislation in violation of Sections 59 and 60 of the Kentucky Constitution, and as such should be declared to be void by this Court.

Finally, this action was filed pursuant to Kentucky Constitution Section 1, 2, 3, 59 and 60. This Court has jurisdiction to hear cases involving infringement of rights guaranteed by the Kentucky Constitution, including freedom from arbitrary agency action, equal protection under law, procedural due process, and freedom from special legislation.

STATEMENT OF MATERIAL FACTS

Winola Mimms owns and lives on property located adjacent to the site of the proposed cellular antenna tower. Upon learning of the cellular tower proposal, on November 9, 2011, Ms. Mimms filed an Open Records Request pursuant to state law, with the office of the Hopkins County Joint Planning Commission, seeking “[a] complete copy of the application filed by AT&T to construct a cellular antenna known as the Arch Street Tower Project and proposed to be located at 425 East Center Street, Madisonville, KY 42431. For any documents not disclosed, I request a letter explaining why the document(s) was withheld.”

By letter dated November 10, 2011, Hon. Thomas E. Springer III, as attorney for the Hopkins Joint Planning Commission, released “all maps and other information that specifically identifies the proposed location of the cellular tower” but denied access to the other information contained in the uniform application, stating that:
The Hopkins County Joint Planning Commission respectfully denies your
request for any additional information as the provisions of KRS 100.987(3)specifically prevents such disclosure. A copy of that letter was annexed to the Complaint as Appendix B.

On October 27, 2011, the Hopkins Joint Planning Commission met to consider the application of AT&T to site a cellular antenna tower on property located at 425 East Center Street, Madisonville, Kentucky, 42431. The Hopkins County Joint Planning Commission reviewed the application pursuant to KRS 100.987, which provides in part that:

(1) A planning unit as defined in KRS 100.111 and legislative body or fiscal court that has adopted planning and zoning regulations may plan for and regulate the siting of cellular antenna towers in accordance with locally adopted planning or zoning regulations in this chapter.

The Commission received three letters in opposition to the proposed siting; one from Winola Mimms, Wesley Mimms, Terrence Mimms and Lori Mimms, the second from Wesley Mimms, and the third, a letter from Mayor Jackson in opposition to the cellular tower siting. The Mayor’s letter was read into the record. Copies of the other letters were attached to the Complaint as Appendix A. Among the letters was an October 27, 2011 letter to the Commission from Winola Mimms and others, objecting to the denial of access to those records.
The Commission continued the hearing after taking testimony for and against the proposed cellular antenna tower siting, reconvening on November 14, 2011. On November 29, 2011, the Planning Commission approved, on a 7-2 vote, the application for the cellular antenna tower.

This appeal and complaint followed.

I THE DECISION TO APPROVE THE REQUESTED CELLULAR ANTENNA TOWER SITING WAS ARBITRARY GOVERNMENT ACTION IN THAT THE PROCEDURAL DUE PROCESS RIGHTS OF PLAINTIFF WERTE ABRIDGED

KRS 100.987 governs review by a planning unit of the siting of cellular antenna towers. The applicant seeking approval for the siting of a cellular antenna tower is required to file a “uniform application” meeting the requirements of KRS 100.9865.
KRS 100.9865 requires the application to include the following information:

(1) The full name and address of the applicant;
(2) The applicant's articles of incorporation, if applicable;
(3) A geotechnical investigation report, signed and sealed by a professional engineer registered in Kentucky, that includes boring logs and foundation design recommendations;
(4) A written report, prepared by a professional engineer or land surveyor, of findings as to the proximity of the proposed site to flood hazard areas;
(5) Clear directions from the county seat to the proposed site, including highway numbers and street names, if applicable, with the telephone number of the person who prepared the directions;
(6) The lease or sale agreement for the property on which the tower is proposed to be located, except that, if the agreement has been filed in abbreviated form with the county clerk, an applicant may file a copy of the agreement as recorded by the county clerk and, if applicable, the portion of the agreement demonstrating compliance with KRS 100.987(2);
(7) The identity and qualifications of each person directly responsible for the design and construction of the proposed tower;
(8) A site development plan or survey, signed and sealed by a professional engineer registered in Kentucky, that shows the proposed location of the tower and all easements and existing structures within five hundred (500) feet of the proposed site on the property on which the tower will be located, and all easements and existing structures within two hundred (200) feet of the access drive, including the intersection with the public street system;
(9) A vertical profile sketch of the tower, signed and sealed by a professional engineer registered in Kentucky, indicating the height of the tower and the placement of all antennas;
(10) The tower and foundation design plans and a description of the standard according to which the tower was designed, signed, and sealed by a professional engineer registered in Kentucky;
(11) A map, drawn to a scale no less than one (1) inch equals two hundred (200) feet, that identifies every structure and every owner of real estate within five hundred (500) feet of the proposed tower;
(12) A statement that every person who, according to the records of the property valuation administrator, owns property within five hundred (500) feet of the proposed tower or property contiguous to the site upon which the tower is proposed to be constructed, has been:

(a) Notified by certified mail, return receipt requested, of the proposed construction, which notice shall include a map of the location of the proposed construction;

(b) Given the telephone number and address of the local planning commission; and

(c) Informed of his or her right to participate in the planning commission's proceedings on the application;

(13) A list of the property owners who received the notice, together with copies of the certified letters sent to the listed property owners;

(14) A statement that the chief executive officer of the affected local governments and their legislative bodies have been notified, in writing, of the proposed construction;

(15) A copy of the notice sent to the chief executive officer of the affected local governments and their legislative bodies;

(16) A statement that:
(a) A written notice, of durable material at least two (2) feet by four (4) feet in size, stating that "[Name of applicant] proposes to construct a telecommunications tower on this site" and including the addresses and telephone numbers of the applicant and the planning commission, has been posted and shall remain in a visible location on the proposed site until final disposition of the application; and
(b) A written notice, at least two (2) feet by four (4) feet in size, stating that "[Name of applicant] proposes to construct a telecommunications tower near this site" and including the addresses and telephone numbers of the applicant and the planning commission, has been posted on the public road nearest the site;

(17) A statement that notice of the location of the proposed construction has been published in a newspaper of general circulation in the county in which the construction is proposed;

(18) A brief description of the character of the general area in which the tower is proposed to be constructed, which includes the existing land use for the specific property involved;

(19) A statement that the applicant has considered the likely effects of the installation on nearby land uses and values and has concluded that there is no more suitable location reasonably available from which adequate service to the area can be provided, and that there is no reasonably available opportunity to locate its antennas and related facilities on an existing structure, including documentation of attempts to locate its antennas and related facilities on an existing structure, if any, with supporting radio frequency analysis, where applicable, and a statement indicating that the applicant attempted to locate its antennas and related facilities on a tower designed to host multiple wireless service providers' facilities or on an existing structure, such as a telecommunications tower or other suitable structure capable of supporting the applicant's antennas and related facilities; and

(20) A map of the area in which the tower is proposed to be located, that is drawn to scale, and that clearly depicts the necessary search area within which an antenna tower should, pursuant to radio frequency requirements, be located.

Pursuant to KRS 100.987(3), all of this information “except for any map or other information that specifically identifies the proposed location of the cellular antenna tower then being reviewed,” is deemed “confidential and proprietary within the meaning of KRS 61.878.” The planning commission is directed by this statute, under threat of prosecution for a Class B misdemeanor, to “deny any public request for inspection of this information, whether submitted under Kentucky’s Open Records Act or otherwise, except when ordered to release the information by a court of competent jurisdiction.”

The Planning Commission is authorized to plan for and regulate the siting of cellular antenna towers pursuant to KRS 100.987(1), and is tasked by KRS 100.9897(4) with reviewing the uniform application information and making a determination to approve or disapprove the application “in light of its agreement with the comprehensive plan and locally adopted zoning regulations[.]” The Commission may require an applicant to make reasonable attempts to co-locate equipment, and may deny an application based on an unwillingness of the applicant to co-locate on new or existing towers or other structures. KRS 100.987(6), (7).

In this case, Plaintiff was denied access to virtually all of the information that was filed by the applicant, including information essential to Plaintiff’s ability to participate meaningfully in the Commission’s review process and hearing. That statutorily-mandated lack of access to the application materials effected a deprivation of Plaintiff’s right to procedural due process under Kentucky’s Constitution.

In reviewing the actions of a planning commission, this Court applies that standard of review generally applicable to review of agency actions, and asks whether the body acted “arbitrarily.” American Beauty Homes Corp. v. Louisville, Ky., 379 SW2d 450, 456 (1964). In determining arbitrariness, three factors are considered: 1) did the administrative agency act within its statutory powers; 2) was due process afforded; and 3) was the decision reached supported by substantial evidence. Id.

In this case, the final action of the Commission in approving the application for a cellular antenna tower was arbitrary, inasmuch as the statutorily-mandated denial of disclosure of the uniform application contents by the Commission prevented the Plaintiff from being able to effectively participate in the review process, including the inability to adequately prepare for cross-examination of the applicant’s witnesses. The statutory prohibition of disclosure of the application contents deprived the Plaintiff of adequate notice, and made the opportunity to be heard a hollow one.
Procedural due process by an administrative body includes: "a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence, and, where the party's constitutional rights are involved, a judicial review of the administrative action." Morris v. Catlettsburg, 437 S.W.2d 753, 755 (Ky. 1969). Procedural due process is required to be afforded in proceedings such as this undertaken by the Planning Commission. Id.

In Kaelin v. City of Louisville, Ky., 643 SW2d 590 (1982), the Court expounded on what was required in the “trial-type” hearing that had been identified in the City of Louisville v. McDonald, Ky. App., 470 SW2d 172 (1971) as being demanded by procedural due process for zoning cases:

The purpose of a "trial-type hearing," as was stated in McDonald, supra, is to permit the development of all relevant evidence that will assist the administrative body in reaching its decision. In such a hearing, as we view it, the parties must have the opportunity to subject all evidence to close scrutiny so as to determine its trustworthiness. A trial-type hearing implies the opportunity for full rebuttal, and the opportunity to impeach witnesses. Cross-examination is a time-tested and unique method of assisting in the quest for truth. Under the rules of the Commission, there is no opportunity to demonstrate the incompleteness, the untruth, the partiality or any other weakness or defect in the testimony of a witness. Without such opportunity, the search for truth may very well be impeded and restricted. In a hearing to terminate welfare benefits, the United States Supreme Court declared that the recipient must have an effective opportunity to defend by confronting any adverse witnesses which includes the right to "cross-examine the witnesses relied on by the defendant." (who sought to terminate benefits). Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). The principle enunciated there applies with equal force to the situation in the present case.

Kaelin, supra, at 591-2 (Italics added).

Where the contents of the application for approval of the cellular antenna tower are held in confidence and a neighboring landowner cannot gain access to the various reports that are identified by the statute as being germane to a decision by the Commission as to the consistency of a proposal with the comprehensive plan for the county, the Plaintiff is deprived of “the opportunity to subject all evidence to close scrutiny so as to determine its trustworthiness,” and is precluded from demonstrating the possible “incompleteness” of that evidence. The preclusion of access to the uniform application prevented Winola Mimms from being able to participate meaningfully in the review process. Ms. Mimms was deprived of the opportunity to determine whether the uniform application requirements were satisfied.

The opportunity to cross-examine witnesses for the applicant, a right that the Kaelin Court recognized as an essential component of procedural due process, is effectively foreclosed because the opportunity to review the application in order to prepare for such examination, which is essential to exercising that right, is abridged by statute.

The mandated non-disclosure of the application information under KRS 100.987(3) is an unconstitutional deprivation of the procedural due process rights of Plaintiff, and forces the Commission to act in an arbitrary manner by conducting hearings that do not comport with constitutional requirements. Plaintiff asks that KRS 100.987(3) be found to be unconstitutional and thus, void.

II. KRS 100.987(3) VIOLATES THE PLAINTIFF’S RIGHT TO EQUAL PROTECTION UNDER LAW

Citizens of Kentucky enjoy equal protection of the law under the 14th Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003). As explained by the Codell Court:

Citizens of Kentucky are entitled to equal protection of the law under the 14th Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution. Commonwealth v. Howard, Ky., 969 S.W.2d 700, 702, 45 7 Ky. L. Summary 10 (1998). The Equal Protection Clause applies to all governmental activity, whether legislative, executive, or judicial and not only protects groups of persons, but also applies to individuals who have not alleged membership in a particular class. Willowbrook v. Olech, 528 U.S. 562, 120S. Ct. 1073, 145 L. Ed. 2d 1060 (2000). This is consistent with the simple goal of the Equal Protection Clause to "keep[] governmental decision makers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 2331, 120 L. Ed. 2d 1 (1992).

Under KRS 100.987(3), Plaintiff was denied access to virtually all information submitted by the applicant for review by the Commission. Among the informational items to which access was denied were the articles of incorporation; the geotechnical investigation report showing the suitability of the site; the professional engineer or land surveyor report regarding proximity to flood hazard areas; directions to the county seat from the site; the lease or other agreement for the tower site; the identity and qualifications of the persons responsible for design and construction of the tower; copies of notifications provided; a statement that the site has been posted; a statement that newspaper notice has been provided; a “brief description of the character of the general area in which the tower is proposed, including the existing land use of the proposed site;” and a statement that the applicant has “considered the likely effects of the installation on nearby land uses and values and has concluded that there is no more suitable location reasonably available from which adequate service to the area can be provided, and that there is no reasonably available opportunity to locate its antennas and related facilities on an existing structure, including documentation “ of efforts to co-locate on existing towers or structures.

Plaintiff was denied access to this information under KRS 100.987(3), which applies only in those instances in which a proposed cellular antenna tower is to be constructed within a “planning unit” that has adopted planning and zoning regulations. KRS 100.987(1).

For those proposals to site a construct cellular antenna towers in areas that are not subject to planning and zoning regulations, the General Assembly has vested jurisdiction with the Public Service Commission under KRS 278.650. KRS 278.665 empowers and obligates the Public Service Commission to promulgate administrative regulations detailing the content of applications for a certificate of public convenience and necessity for an antenna tower, and provides no restriction on public access to the application information. 807 KAR 5:063, adopted by the Public Service Commission, contains those requirements, which track the informational requirements of KRS 100.9865. None of the information that is required for a cellular tower application in areas outside of a planning unit jurisdiction is made privileged either by KRS 278.665 or 807 KAR 5:063.

The disparate access of the public to applications for cellular antenna tower siting and construction is the result of 2002 changes adopted by the General Assembly in the procedures for review of cell tower siting. The statutes at issue in KRS Chapters 100 and 278 were altered in 2002 from the framework that had been adopted in 1998. House Bill 168 (1998), providing for review of cell tower siting by communities with planning and zoning, subject to Public Service Commission oversight and appeal. At that time, both the Commission and local planning units were bound by KRS 100.987(3) and KRS 278.660 (for the PSC) to keep confidential the contents of the cellular tower applications. When the statutes were amended again in 2002 by House Bill 270, the confidentiality provisions of KRS 100.987(3) and 278.660, which bound the Public Service Commission to hold the application contents in confidence , were repealed, and the relationship of the Public Service Commission to local planning units regarding review of cell towers changed, so that those towers planned in communities with planning and zoning would be reviewed by local planning commissions and any appeals would go directly to court under KRS 100.987(10), and the Public Service Commission was tasked with reviewing applications in the other counties.

Thus, because of the General Assembly’s action in 2002 to repeal KRS 278.660 and to amend KRS 100.987(3) to remove reference to the Public Service Commission, a distinction was drawn regarding public access to cellular tower applications in counties with, and without, zoning. Plaintiff, by virtue of her residing in a county with planning and zoning, is treated in a disparate manner from similarly-situated resident in any county in the Commonwealth that has not adopted planning and zoning, since she is denied access to information that would otherwise be available but for the existence of planning and zoning within Hopkins County. This distinction, embodied in KRS 100.987(3), is without rational basis and is a denial of equal protection, since it treats similarly situated neighbors of properties where a cellular antenna tower is proposed, differently; denying procedural due process to those like Plaintiff that live in communities with planning and zoning.

As noted by the Codell Court, the level of judicial scrutiny of claims of unequal protection of law varies, depending on the nature of the classification made and interests affected. Here, Plaintiff’s interest is in the use and enjoyment of her property and in her ability to rely on guaranteed procedural due process rights in order to be able to participate in a decisionmaking process that may affect her property.

The Kentucky Constitution, at Section 2, grants a fundamental right to all citizens to be free of arbitrary government action, i.e., action violative of procedural due process rights in this instance. Strict scrutiny is appropriate where a fundamental right is infringed upon, as is the case here.

Yet whether reviewed under a “strict scrutiny” or a “rational basis” standard, KRS 100.987(3) is patently irrational, and violates the entitlement of Plaintiff to equal protection under law, since by virtue of the existence of a planning unit (the Hopkins County Joint Planning Commission) and of the county having adopted planning and zoning, and by virtue of her residency in Hopkins County, she has been denied access to information that is available to any citizen of a county in the Commonwealth that has not adopted planning and zoning under KRS Chapter 100. The distinction is arbitrary and denial of access to information violative of her right to equal protection under law.

In Vision Mining v. Gardner, Ky., 364 SW3d 455 (2011) the Court rejected a requirement that held claimants of coal workers’ pneumoconiosis to a different standard of proof than others with pneumoconiosis, employing a rational basis standard that likewise requires that the different standard for access to the information in cell tower siting applications that was created in KRS 100.987(3) be rejected:

Because we consider the classification of coal workers' pneumoconiosis claimants to be arbitrary in regard to the more stringent proof or procedures required and believe that the disparate treatment afforded such workers lacks a rational basis or substantial justification, we hold that the consensus procedure and the clear and convincing evidentiary standard are unconstitutional.

* * *
In considering an equal protection challenge… the court must examine whether similarly situated individuals have been treated differently in that instance and, if so, whether or not such treatment is rationally related to a legitimate state interest.

There is no legitimate state interest in the distinction drawn between the availability of cellular antenna tower application information in counties with planning and zoning, and those without; nor between those applications reviewed by a planning commission and those reviewed (in the absence of local zoning) by the Public Service Commission. By virtue of Hopkins County having adopted planning and zoning regulations, Ms. Mimms has been denied access to information in the cellular tower application that would otherwise be disclosed under the Kentucky Open Records Act, based on an mandate from the General Assembly in KRS 100.987(3) that distinguishes in an irrational manner between similarly situated persons based on what body (a Planning Commission or the Public Service Commission) is reviewing the application.

III. THE PROVISIONS OF KRS 100.987(3) CONSTITUTE SPECIAL LEGISLATION IN VIOLATION OF KENTUCKY CONSTITUTION SECTIONS 59 AND 60

Kentucky Constitution Sections 59 and 60 prohibit special and local legislation. Kentucky Constitution Section 59 provides that “[t]he General Assembly shall not pass local or special acts” concerning any of the 28 subjects which are specifically named. After the enumeration of these subjects, the concluding paragraph of the Section contains the all-inclusive provision that “[i]n all other cases where a general law can be made applicable, no special law shall be enacted.”

As the Court noted in Schoo v. Rose, 270 SW2d 940 (1954),

It is generally established in this and other jurisdictions to which our investigation has extended that in order for a law to be general in its constitutional sense it must meet the following requirements: (1) It must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification. (citations omitted).

The second requirement is as essential as the first. The Legislature can not take what may be termed a natural class of persons, split that class in two and then arbitrarily designate the dissevered factions of the original unit as two classes and thereupon enact different rules for the government of each. It is equally well established that the classification must be based upon some reasonable and substantial difference in kind, situation or circumstance which bears a proper relation to the purpose of the Statute.

Schoo, supra, at 941.

The purpose of Section 59 of the Kentucky Constitution is to prevent special privileges, favoritism, and discrimination and to ensure equality under the law. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others.

KRS 100.987(3) is quintessentially “special” legislation, granting to cellular antenna tower applicants in counties with planning and zoning, a protection against disclosure of information to the public not available to other applicants for Planning Commission approvals pursuant to KRS Chapter 100 (nor to other cell tower applicants in counties with no zoning), and providing a sweeping exemption from the procedures and provisions regarding disclosure of information pursuant to Kentucky’s Open Records Act. An application submitted by any other applicant seeking Planning Commission approval for a rezoning, subdivision, or for other approvals required under KRS Chapter 100, is subject to disclosure by that agency pursuant to the Kentucky Open Records Act, KRS 61.870-884.

By enacting KRS 100.987(3), the Kentucky General Assembly created a special class of applicants requesting approval under KRS Chapter 100, limited to proponents of cellular antenna towers in counties that have adopted zoning regulations, and shielded those applications from public scrutiny under threat of misdemeanor prosecution for any person disclosing the filed application information. By mandating non-disclosure of the application information, the General Assembly created an arbitrary distinction and discriminated against similarly situated persons in counties with planning and zoning, arbitrarily favoring cell tower applicants in those counties over other applicants for governmental approvals, and even against cellular tower applicants in counties that have not adopted planning and zoning, whose applications are subject to the disclosure rules of KRS 61.878.

The distinction created by KRS 100.987(3) between cellular tower applications filed in counties with and without zoning, is wholly unrelated to the contents of the application, but is instead based on the existence of zoning regulations. As in the case of Miles v. Shauntee, Ky., 644 S.W.2d 512 (1983), (where the Court struck the Uniform Residential Landlord and Tenant Act because the limitation of the applicability of that law to counties with cities of the first class and urban-county governments), the limitation of the applicability of the non-disclosure provision of KRS 100.987(3) to counties with zoning, and the disparate disclosure rules for applications for the same type of facility in counties with or without zoning, is a classification bearing no relation to the purpose of the statute:

Section 59 of the Constitution of Kentucky, provides that the General Assembly shall not pass local or special acts in any case where a general law can be made applicable. Section 60 of the Constitution of Kentucky provides that the General Assembly shall not indirectly enact any special or local act by exempting from the operations of a general act any city, town, district or county.

"Special" or "local" legislation as defined in Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496 (1971) at 498 is as follows:

A local act is one confined to territorial limits, other than that of the whole state or is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others." (Emphasis provided.)

Just as the Shauntee Court noted that classification made in that statute based of class of cities ran afoul of Section 59 and 60 of the Constitution because it did not pertain to the government or organization of the cities and because the classification lacked a “reasonable relation to the purpose of the Act,” the distinction in public access to the contents of a cellular tower application based on the presence or absence of zoning regulations, and whether the application would be reviewed by a local Planning Commission rather than the Public Service Commission, is a distinction that has no reasonable relation to the purpose of the Act and does not pertain to the status of counties with, as opposed to those without, zoning regulations.

CONCLUSION

The only indication of “legislative purpose” for the 2002 changes in KRS 278.660 and 100.987(3) that created the distinction between citizen access to cellular tower applications in counties with and without planning and zoning, is found in the “emergency” clause adopted by the General Assembly in order to make House Bill 270 effective upon the Governor’s signature:

Section 9. Whereas there is rapid growth in the cellular communication industry and there is a serious need for increased local participation in this area, an emergency is declared to exist and this Act shall take effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

The distinction drawn in Kentucky law between counties with zoning regulation, where denial of access to all information in the cellular tower application other than a map, under KRS 100.987(3), and the access to information for applications filed in counties without zoning regulation, pursuant to KRS 278.650 and 665, is wholly unrelated to the stated purpose of “increased local participation,” and instead inhibits local participation. KRS 100.987(3) abridges procedural due process protections, and creates a special entitlement to applicants and special burden to concerned neighbors in counties with zoning that are not shared by similarly-situated tower applicants, nor suffered by similarly-situated neighbors, in other counties. KRS 100.987(3) is repugnant to the Kentucky Constitution, and should for these reasons be held unconstitutional and void.

PRAYER FOR RELIEF

WHEREFORE, for the reasons stated herein, Plaintiff respectfully requests that this Court:

(1) Accept jurisdiction over this complaint and appeal;

(2) Enter an Order setting aside the November 29, 2011 action of the Hopkins County Joint Planning Commission approving the siting of a cellular antenna tower on property located at 425 East Center Street, Madisonville, Kentucky, as being arbitrary, in violation of Kentucky Constitution Section 2;

(3) Determining and declaring that KRS 100.987(3)is unconstitutional as violating Plaintiff’s right to equal protection and to procedural due process under law, and constitutes prohibited special legislation; and

(4) For any and all other relief to which the Plaintiff may appear entitled, including all costs and expenses incurred herein.

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