Cunningham v. Whalen
Cunningham v. Whalen
Opinion of the Court
Opinion of the Court by
We granted discretionary review in this case to decide whether the City of Florence, Kentucky, violated the Open Meetings Act (KRS 61.800 et seq.) when it agreed in private discussions to settle a pending lawsuit in a zoning matter, when the settlement itself was voted on in an open meeting. Because the Open Meetings Act specifically allows for private discussions of pending (or proposed) litigation (KRS 61.810(l)(c)), the City did not violate the Open Meetings Act, where the final (binding) vote on the settlement was conducted at a public meeting. Therefore, we affirm the Court of Appeals, which affirmed the trial court’s summary judgment in favor of the City.
The Appellants/Cross Appellees are residents (the Residents) of a subdivision in the City of Florence, Boone County/Kentucky (the City). Lots 17, 18, and 19 in the subdivision front on the southeast corner of U.S. 42 and Mall Road, which is a major intersection providing access to the Florence Mall.
The owners of the above lots fronting on U.S. 42 (the Property Owners) applied for a zone change from residential to commercial in order to construct two office buildings.
The City, through its city council, decided at a public meeting that it would make its decision based on the record from the Planning Commission’s public hearing.
While the appeal was pending, the Property Owners’ attorney discussed a possible settlement of the lawsuit with the City. Private communications went back and forth between the parties and their attorneys until the Property Owners agreed to make the traffic pattern changes the City demanded. With a viable settlement in sight, the parties, including a quorum of the city council, and their attorneys held a private meeting to work out a settlement agreement. The City agreed with the Property Owners that, if the Property Owners would agree to the changes in the application that the City had originally requested, the City would approve the zone change request. A settlement agreement was drafted to that effect.
On August 22, 2006, at a public city council meeting, the settlement agreement was announced and adopted by municipal order
The Residents filed suit against the City (and others) raising a number of issues with the ordinance passing the zone change. However, for purposes of discretionary review, the only argument that survived to this Court is that the City violated the Open Meetings Act when the city council decided in a private meeting to settle the pending litigation with the Property Owners.
In adopting the Open Meetings Act, the General Assembly decided as a matter of public policy that “the formation of public policy is public business and shall not be conducted in secret....”
(1) All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:
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(c) Discussions of proposed or pending litigation against or on behalf of the public agency;
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There is no question that the Florence City Council is a “[pjublic agency”
The Residents’ argument that the settlement conference violated the Open Meetings Act, and violated their due process rights, is without merit;
Finally, the Appellees/Cross-Appellants argue that the circuit court erred in failing to dismiss the Residents’ claims, because the Residents failed to intervene during the pendency of the Property Owners’ initial appeal to circuit court. Because we have concluded that the circuit court properly granted summary judgment in favor of the Appellees/Cross-Appellants, we need not address this issue.
For the foregoing reasons, the opinion of the Court of Appeals affirming the trial
. See KRS 100.211 (establishing procedures for zoning map amendments).
. "If the ... commission conducts a trial-type due process hearing and based thereon makes factual findings and a recommendation, the legislative body may follow the commission's recommendation without a hearing or only an argument-type of hearing." City of Louisville v. McDonald, 470 S.W.2d 173, 179 (Ky. 1971). "The fundamental requirement of procedural
. Boone Circuit Court No. 04-CI-00595.
. Florence Municipal Order M-8-06.
. Florence Ordinance 0-23-06.
. Per KRS 83A.060(4), non-emergency ordinances require two readings.
. KRS 61.800.
. See KRS 61.805(2)(c) ("public agency” includes "[e]very county and city governing body, council, ... and municipal corporation”).
. See KRS 61.805(3) (" 'Action taken’ means a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body.... ”).
. Due process does not require a new public hearing be held evety time there is a revision to the application for a zone change. See Minton v. Fiscal Court of Jefferson County, 850 S.W.2d 52, 56 (Ky.App. 1992).. Appellants' due process arguments are dependent upon a violation of the Open Meetings Act, which we opine did not occur. The Court of Appeals briefly discussed and dismissed Appellants’ due process arguments. The out-of-state cases cited in Appellants’ brief do not apply in Kentucky for amendments to city or county zoning maps. See supra, note 1.
. See KRS 61.810(1 )(a)-(m).
. KRS 61.815(2) also exempts the litigation exception from the requirements of announcement of a closed session and a public vote on holding a closed session, as well as the requirement that no final action be taken.
. The binding, final vote in this case as to the acceptance of the settlement agreement was the passage of Municipal Order M-8-06. In zoning matters, the final action is the passage of the ordinance granting the zone change request. The City adopted both the order and the ordinance at public meetings. See KRS 100.347(3).
. See Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 749 (Ky. 2004) ("[P]oli-cy questions are completely within the province of the local legislative body_Any dissatisfaction can be raised at the ballot box.”).
Reference
- Full Case Name
- Harold Gene CUNNINGHAM, Appellants/Cross-Appellees v. Diane WHALEN, Appellees/Cross-Appellants
- Status
- Published