Triad Development/Alta Glyne, Inc. v. Gellhaus

Dissenting opinion by

Justice KELLER.

Rita C. Gellhaus, Winston Shelton, and Laura Hall (“Homeowners”) want to challenge by appeal to the circuit court the soil and sedimentation control plan for the Bill-town Farms subdivision in Jefferson County as finally approved by the Louisville and Jefferson County Planning Commission (“Planning Commission” or “Commission”). KRS 100.347(2) requires that this challenge be made within thirty days of the Planning Commission’s “final action.” The majority opinion believes that the “final action” from which the Homeowners should have appealed occurred on August 19, 1999 when the Planning Commission approved the standard subdivision plan, subject to fifteen conditions. Because one of those conditions was that the Louisville and Jefferson County Metropolitan Sewer District (“MSD”) devise a soil and sedimentation control plan (“Soil Plan”) for the Commission’s approval and because MSD’s Soil Plan was later approved by the Director of the Louisville and Jefferson County Department of Public Works (“Director”) on behalf of the Commission, I dissent for the reason that I believe the appropriate “final action” from which this appeal should have been taken occurred on May 18, 2000, when the Director, on behalf of the Commission, approved MSD’s Soil Plan — to hold otherwise denies the Homeowners due process of law.

The majority opinion creates a catch-22 for the Homeowners by denying them the right to appeal the actions by MSD and the Director (when the contents of the Soil Plan are known and the Homeowners have a claim) and by requiring them instead to appeal from the Commission’s first approval of the subdivision plan (when the Soil Plan does not exist and the claim is not ripe). In effect, the majority prevents judicial review of the Soil Plan.

The majority relies on the 1988 amendment to KRS 100.347 where the words “final action” were defined as the “date when the vote is taken to approve or disapprove the matter before the body.”1 In using the words “final action,” the Legislature was primarily concerned with preventing premature challenges that would or could be extinguished by subsequent changes or actions by the body.2 But the majority rejects the characterization of the Director’s approval as a “final action” because it is not a “vote.”

In adopting this strict interpretation, the majority is in effect insulating the Planning Commission’s decisions from judicial review by preventing the Homeowners *49from challenging any delegable action, regardless of the impact or magnitude, which occurred after the approval of the initial plan on August 19, 1999. Time and again, this Court and its predecessor have refused to adopt a strict literal construction of a statute if it would lead to an unreasonable or absurd result.3 Requiring a party to appeal before the matter is final is unreasonable, absurd, and clearly contrary to KRS 100.347(2) whose primary purpose is to prevent premature appeals of the Planning Commission’s interlocutory decisions.

One point where I do agree with the majority is that “there cannot be two final actions for the purpose of KRS 100.347.”4 But I believe the “final action” depends on the particular matter being appealed. In this situation, I had hoped the members of this Court would have recognized the problem created by requiring appeals from the Planning Commission’s August 19, 1999 approval — one could appeal from this approval of the initial plan, only to find the matter had been satisfactorily resolved after MSD and the Director became involved. And since the subdivision plan approved in August contained fifteen conditions (items that were not final or even developed at that time), the opposite also holds true — one who did not appeal the initial plan would find that the final plan contained objectionable items but that the time to appeal had run before the appeal-able matter had become part of the subdivision plan. The majority’s interpretation works if all “subordinate ministerial decisions” are made within thirty days of the Commission’s initial approval, thus theoretically allowing time for appeal. But in this case, the “subordinate ministerial decisions” from which the Homeowners appeal occurred almost a year later.

I would also point out that neither the initial plan nor the final plan has been filed in the record, despite the Homeowners’ request to the Planning Commission. And I am hesitant to join the majority without comparing the specifications on soil and sedimentation control in the initial subdivision plan approved on August 19, 1999 with the final subdivision/construction plan approved on May 18, 2000. Without the benefit of the “before” and “after” subdivision plans and because the case is before us on an appeal of a motion to dismiss, I believe that the appropriate appellate review requires the Court to make an evaluation that assumes the allegations in the Homeowners’ complaint are true.5

According to the complaint, the initial plan approved by the Planning Commission on August 19, 1999 did not describe a soil and sedimentation control plan, but assigned the task to MSD through conditions nine and fourteen:

9. A soil erosion and sedimentation control plan shall be developed and implemented in accordance with the Metropolitan Sewer District and the USDA Soil Conservation Service recommendations. Documentation of the Metropolitan Sewer District’s approval of the plan shall be submitted to the Planning Commission prior to grading and construction activities.
*5014. The Woolpert Report entitled “Erosion Prevention and Sediment Control for the Alta Glyne Development, Jeffersontown, Kentucky” dated August 1998 and originally submitted for Docket 10-46-92 and resubmitted for 10-20-99 shall be updated to reflect the current approved plan and executed according to its recommendations. A copy of the revised report shall be submitted to MSD prior to construction plan approval.

In accordance with condition nine, MSD devised (by out-sourcing the job to PDR Engineers, Inc.) and approved a soil and sedimentation control plan, which the Director approved on behalf of the Planning Commission through his delegated power — the Metropolitan Subdivision Regulations provide that once MSD approves the plan, “the Director of Works shall take action on behalf of the Commission” to approve or disapprove the plan. I believe that the Director’s approval6 was the “final action” by the Planning Commission and that the Homeowners filed a timely appeal; thus I would reverse the Court of Appeals and remand the case to the circuit court for resolution on the merits.

. KRS 100.347(5).

. Leslie v. City of Henderson, Ky.App., 797 S.W.2d 718, 720 (1990) ("Accordingly, we hold that the ‘final action' in the present case was on October 11, 1988, when the ordinance was given its second reading and final passage. Hence appellant's appeal to the circuit court was timely. With regard to judicial economy, interpreting the statute otherwise could lead to an unsound result. It is possible that one could appeal from the initial zoning change decision and have the matter heard, only to find that the ordinance effecting the change did not pass, rendering the circuit court's action for naught. We do not believe the legislature intended such a result.”).

.See, e.g., Commonwealth v. White, Ky., 3 S.W.3d 353 (1999); McElroy v. Taylor, Ky., 977 S.W.2d 929 (1998); Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984); Ky. Mountain Coal Co. v. Witt, Ky., 358 S.W.2d 517 (1962); Dept, of Revenue v. Greyhound, Ky., 321 S.W.2d 60 (1959).

. Triad Development/Alta Glyne, Inc. v. Gellhaus, Ky., 150 S.W.3d 43, 46, 2004 WL 2127277 (2004).

. La Vielle v. Seay, Ky., 412 S.W.2d 587 (1966); James v. Wilson, Ky.App., 95 S.W.3d 875 (2002).

. Although it is questionable whether the Planning Commission may properly delegate to the Director such unrestricted authority, this issue is not before us. If such delegation is not proper, then after MSD and the Director recommended or approved a soil erosion and sedimentation control plan, the plan would properly go back before the Planning Commission for its final approval and vote.