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RENDERED: FEBRUARY 20, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2006-CA-002220-MR THE ESTATE OF LUCY MARSHALL ELLIOTT PRICHARD

APPELLANT

v.

APPEAL FROM WOODFORD CIRCUIT COURT HONORABLE ROBERT G. JOHNSON, JUDGE ACTION NO. 03-CI-00165

CITY OF VERSAILLES

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; GRAVES,1 SENIOR JUDGE. GRAVES, SENIOR JUDGE: The Estate of Lucy Marshall Elliott Prichard appeals from an interlocutory judgment which determined the right of the City of Versailles to condemn a portion of the Estate's real property. The Estate argues
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Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

that the trial court erred by failing to find a public need for condemnation and asserts various procedural errors. We affirm. Versailles is a fourth class city located in Woodford County, Kentucky. In 2001, Versailles hired GRW Engineers to conduct a study of its wastewater treatment and collection facilities and to prepare a plan to update these facilities over the next twenty years. Versailles created a plan to construct a sewer interceptor and pump station system around the south side of the community for the purpose of expanding its wastewater transport capacity. Following approval of the plan, GRW designed construction plans for the new sewer interceptor system. The proposed sewer interceptor line would traverse real property owned by Lucy Prichard before it connected to the wastewater treatment plant on property owned by Versailles. Versailles contacted Prichard about its desire to locate the sewer interceptor lines on her property and Prichard refused. Subsequently, Versailles filed a petition seeking a declaration of rights and eminent domain in Woodford Circuit Court. After Prichard failed to respond to the petition, the trial court entered an order granting Versailles the authority to access Prichard's land for the purpose of conducting surveys and construction plans. The trial court granted summary judgment on the issue of the right to condemn the property and held a bench trial on whether Versailles had acted in bad faith or abused its discretion.

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The trial court entered an interlocutory judgment finding Versailles had neither acted in bad faith nor abused its discretion. This appeal followed. The Estate argues that the trial court erred by allowing Versailles to condemn its property without making a finding of public need. Under eminent domain law, the questions of necessity and public purpose are distinct concepts. City of Bowling Green v. Cooksey, 858 S.W.2d 190, 192 (Ky. App. 1993). The question of necessity is almost exclusively within the province of the legislative branch and the question of whether a proposed taking is for a public purpose is within the province of the judiciary. Id. "[T]he condemnor's decision as to the necessity for taking the property will not be disturbed in the absence of fraud, bad faith, or abuse of discretion." Department of Highways v. Burchett, 367 S.W.2d 262, 264 (Ky. 1963). Further, it is not an abuse of discretion simply because the condemnor could have located an alternative route. Id. The improvement of wastewater collection services is clearly for a public purpose. Although the Estate presented evidence that it was possible for Versailles to route the sewer interceptor system using its own property, the possibility of an alternative route alone does not constitute bad faith or an abuse of discretion. The route chosen by Versailles was based on standard engineering principles. Versailles followed the proper procedural guidelines during the planning phase of the project. There was testimony that Versailles did consider an alternative route using its own property, but that route was not feasible. -3-

Additionally, there was testimony that the alternative route proposed by the Estate would not have produced the suggested results. In fact, there were several factors against such a route including its close proximity to a gas line. Based upon our review of the record, we find that the Estate did not meet its burden of demonstrating bad faith or an abuse of discretion on the part of Versailles. The Estate next argues that it was error for Versailles to construct a sewer line outside of its city limits without the approval of the Woodford County Fiscal Court. The Estate cites Kentucky Revised Statutes (KRS) 76.620 in support of its argument. KRS 76.620 states: In undertaking wastewater collection projects under KRS Chapters 76 and 107, metropolitan sewer districts are vested with exclusive authority to plan, design, initiate, finance, and carry out construction of the projects solely according to the requirements and procedures of KRS Chapters 76 and 107. However, no project may be financed, no bonds may be issued, nor benefited property assessed for benefits conferred until the project has been approved by the fiscal court of the county of the affected district. In the event any benefited property is situated within a city of the first class encompassed by the district, the project shall also be approved by ordinance enacted by the governing body of that city. This provision is inapplicable to the present case because KRS 76.620 concerns metropolitan sewer districts. Metropolitan sewer districts are comprised of the areas in a county containing a city of the first class. KRS 76.005(3). Any opinion asserted by an employee of Versailles regarding the necessity of fiscal court approval under the present circumstances is not supported by law. -4-

Next, the Estate argues that the trial court erred by failing to dismiss the condemnation action because the construction permit issued to Versailles by the Division of Water had expired. It is clear from the record that the permit was extended. There was no error. The Estate argues that the trial court erred by failing to require Versailles to comply with the hearing requirements of KRS 262.850. This Court explained the statute as follows: The only thing KRS 262.850(16) provides is that once the owner of property located in an agricultural district receives a summons of condemnation proceedings, he may ask the local conservation district board of supervisors "to hold a public hearing on the proposed taking of land." There is nothing in the statute which authorizes the local board of supervisors to do anything other than hold a public hearing, let alone to issue some sort of binding resolution as to whether the condemnation of the property is proper. Kipling v. City of White Plains, 80 S.W.3d 776, 785 (Ky. App. 2001). The burden is on the property owner to request a hearing. Such request was not made in this case. Accordingly, the judgment of the Woodford Circuit Court is affirmed. ALL CONCUR.

BRIEFS FOR APPELLANT: W. Henry Graddy, IV Elizabeth R. Bennett Midway, Kentucky

BRIEF FOR APPELLEE: William K. Moore Versailles, Kentucky

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