ROTH APPELLANT v. COUNTY OF CAMPBELL APPELLEE

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Court of Appeals of Kentucky.

J.R. ROTH APPELLANT v. COUNTY OF CAMPBELL APPELLEE

NO. 2010–CA–001986–MR

Decided: March 9, 2012

BEFORE:  CLAYTON, STUMBO AND THOMPSON, JUDGES. BRIEF FOR APPELLANT:  Brandon N. Voelker Cold Spring, Kentucky BRIEF FOR APPELLEE:  Jeffrey C. Mando Jennifer H. Langen Covington, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

J.R. Roth appeals from the September 28, 2010 order of the Campbell Circuit Court, which dismissed his action against Campbell County.   Because we find no error with the trial court's dismissal, we affirm.

In 2009, Campbell County, Kentucky [“County”] sought to ratify ordinance no.   O–08–09, which would implement an ad valorem property tax, pursuant to KRS  Double 68.245.   The County held two meetings with respect to the ordinance, on August 19, 2009, and September 2, 2009.   The ordinance was subsequently enacted.   It was Roth's belief that the two meetings were not properly publicized pursuant to the mandates of the Open Meetings Act, KRS 61.800 et seq.   Roth addressed a complaint to Campbell County Judge Executive Steven E. Pendry, voicing his concerns and concluding that the ordinance should be declared null and void.   County Administrator Robert Horine responded to Roth's complaint and informed him that the issue had been reviewed and the allegations were without merit.   Roth then sought an opinion from the Office of the Attorney General, again alleging violations of the Open Meetings Act. On October 19, 2009, the Attorney General issued an opinion finding that no violation had occurred.

On November 19, 2009, Roth filed an appeal of the Attorney General's decision with the Campbell Circuit Court and again alleged violations of the Open Meetings Act. Roth further alleged that because the County had sought to set a tax rate in excess of the compensating tax rate, it had also violated KRS 68.245 by failing to advertise the meetings in accordance therewith.   In response, the County filed a motion to dismiss Roth's complaint, alleging that it was filed outside the statutory period of limitations.   The trial court dismissed Roth's action in an order entered on September 28, 2010.   In support of its dismissal, the trial court indicated that Roth's appeal of the Attorney General opinion had been filed outside the statutory period of time, giving the Attorney General's opinion the force and effect of law.   The trial court further opined that Roth's challenge to the ordinance under KRS 68.245 was also untimely.   This appeal followed.

On appeal, Roth challenges only the trial court's dismissal of his KRS 68.245 claim and not its dismissal of the claim brought under the Open Meetings Act. In essence, he argues that the trial court was incorrect in dismissing his KRS 68.245 claim under the statutory limitations set forth in the administrative procedure of the Open Meetings Act, because it was a separate and distinct argument.   Although we agree with Roth that the trial court improperly analyzed his KRS 68.245 claim under the statutory limitations period applicable to the Open Meetings Act, we also note that the trial court gave additional, applicable reasoning as to why the KRS 68.245 claim was not timely filed, and its dismissal is therefore sound.

Under the instruction of KRS 132.017, any objection to tax rates levied under an ordinance enacted pursuant to KRS 68.245 must be initiated by means of petition proceedings through the county clerk's office.  KRS 132.017(2)(b).  Otherwise, the unchallenged ordinance goes into effect 45 days after its passage.  KRS 132.017(1).   Roth failed to originate a petition proceeding under the mandates of KRS 132.017, and his statutory period of time within which to challenge the ordinance has therefore passed.   It is true, as Roth argues, that the trial court incorrectly found that Roth's complaint failed to assert that the tax rate imposed by the ordinance was in excess of the compensating tax rate, an assertion which would thus trigger the requirements of KRS 68.245.   Nonetheless, even if the trial court had observed this assertion in his pleading, it would not have altered the fact that Roth's process of challenging the ordinance failed to comply with the requirements of KRS 132.017.

For the foregoing reasons, the September 28, 2010 order of the Campbell Circuit Court is affirmed.

all concur.

STUMBO, JUDGE:

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