GAYLE PILLE APPELLANT v. SANITATION DISTRICT NO AND UNION SAVINGS BANK APPELLEES (2026)

OPINION AFFIRMING

Gayle Pille (“Pille”) appeals from the Boone Circuit Court's interlocutory judgment finding that Sanitation District No.1 (“SD1”) has the right to condemn a portion of her property to install sewer lines. Finding no error, we affirm.

SD1 is a Northern Kentucky public sewer utility responsible for managing, collecting, transmitting, and treating sanitary wastewater in Boone, Campbell, and Kenton Counties. Pille owns forty-five acres of rural land in Boone County along Woolper Creek. One of SD1's current projects, the Central Boone County Master Sewer Plan (“CBC”), involves installing conveyance sewer lines on Pille's property to divert flow to its Western Regional Reclamation Facility in Petersburg. After an unsuccessful attempt to purchase the required easements from Pille, SD1 filed this condemnation action.

At a hearing on SD1's right to condemn, Lydia Watkins (“Watkins”), SD1's Senior Director of Engineering, testified that the CBC is a five-phase project to eliminate the Bullittsville pump station and divert its flow to the Western Regional Reclamation Facility via gravity conveyance piping. This will eliminate sanitary sewer overflows in the area and provide increased access to sanitary sewers, bringing economic vitality to the community. Specifically, once the project is complete, growth potential and sanitary sewer service will be available to Williams Road, Bullittsville Road, Graves Road, Peale Road, Woolper Road, Easton Lane, and the Petersburg exit off of Interstate 275, which is the only exit on the I-275 loop (in all three states: Ohio, Indiana, and Kentucky) that does not currently have sanitary sewer service. Additionally, the project will allow SD1 to meet requirements imposed by a Federal Consent Decree and its updated watershed plan.

Watkins testified that other routes were considered for the project, but SD1 ultimately chose the most constructible and cost-effective location for the gravity sewer, which is along Woolper Creek, since gravity sewers flow downstream. She further testified that SD1, knowing Pille was against the sewer line, tried to stay off her property as much as possible by using the other side of the creek, where Pille did not own the land. In total, SD1 sought seven easements (three permanent and four temporary) on Pille's property to construct and maintain the sewer line.

On cross-examination, Watkins was extensively questioned about a 2017 study conducted by the environmental engineering firm Hazen and Sawyer (“Hazen report”), which identified several alternative sewer line routes to what essentially became the route in the CBC. One of these alternatives, “B3” (which does not affect Pille's property), involved constructing a new Bullittsville pump station and force main to push the flow to the east of alternative “B2” (a route that resembles the CBC route), where it would turn into a gravity sewer and eventually converge into the same alignment and have the same ending point as B2. When asked why B3 was not chosen over B2, Watkins said B3 limits the growth potential of the county compared to B2. However, when pressed, Watkins conceded that the only growth potential made possible by B2 but not B3 is the development of Pille's land. Watkins testified that one benefit of B2 (and by extension, the CBC) over B3 is that B2 allows the Petersburg area to be served via gravity sewers, while B3 would require the construction of a pump station which is more costly. Ultimately, Watkins said, SD1 chose the CBC because it allowed them to meet two metrics instead of one: eliminate sanitary sewer overflows and support the economic vitality of the community—which are two of their missions at SD1.

Following the evidence, the trial court granted SD1's condemnation petition, finding that pursuant to KRS ¹ 220.310(1), SD1 had the authority to condemn Pille's property, and that condemnation of her property to construct a sanitary sewer main was in furtherance of SD1's statutory and public purposes. This appeal followed.

STANDARD OF REVIEW

Since this case was tried without a jury, we review the trial court's factual findings for clear error and its legal conclusions de novo. God's Center Foundation, Inc. v. Lexington Fayette Urban Cnty. Government, 125 S.W.3d 295, 300 (Ky. App. 2002); CR ² 52.01. Factual findings are not clearly erroneous if supported by substantial evidence. Id. “Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.” Bowling v. Natural Resources & Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citations omitted). Questions concerning the credibility of witnesses, or the weight of the evidence are within the exclusive province of the trial court. God's Center, 125 S.W.3d at 300.

ANALYSIS

Pille first argues the trial court erred in denying her request to continue the hearing on SD1's right to take so that she could depose Watkins (SD1's Senior Director of Engineering) and Adam Chaney (SD1's Executive Director) in an attempt “to prove that taking her property was not needed for SD1 purposes but was a political and arbitrary action.” She contends she was denied due process by only having thirty-six days to prepare for the taking hearing.³ Pille cites God's Center in support, where a panel of this Court reversed a trial court's interlocutory judgment on a condemnation petition and remanded for an evidentiary hearing.

SD1 responds that Pille was not denied the opportunity to take discovery. It argues she never requested deposition dates or filed a notice of deposition but instead waited three months after being served to file a motion to continue the taking hearing. SD1 further contends that Pille's claim that she only had thirty-six days to prepare for the hearing is misleading. In truth, she had 108 days from the time the petition was filed and the taking hearing to conduct discovery but waited six weeks after filing her answer to send her first discovery requests. SD1 argues that Pille's right to discovery must be balanced against its right to an immediate hearing. It also disputes her reliance on God's Center since that case turned on the trial court's failure to hold an evidentiary hearing not the denial of a motion to continue. Finally, SD1 urges that Pille has not demonstrated how she has suffered prejudice by her inability to complete discovery.

A trial court's decision to deny a request for a continuance is reviewed for abuse of discretion. Slone v. Commonwealth, 382 S.W.3d 851, 856 (Ky. 2012) (citations omitted). Under KRS 416.610(4), when an owner challenges a petitioner's right to take her property, “the court shall, without intervention of jury, proceed forthwith to hear and determine whether or not the petitioner has such right.” (Emphasis added.) Our Supreme Court has interpreted this language to mean that “the trial court must immediately determine the matter.” Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 38 (Ky. 1981). Thus, a property owner's right to discovery must be balanced against a condemnor's right to an expedited hearing. While four months from petition to hearing is on the short side of the condemnation cases we have surveyed,⁴ considering the above competing interests, we cannot say the trial court abused its discretion in denying the motion to continue.

Regardless, any error would be harmless. Pille has not shown how she was prejudiced by her inability to complete discovery. She says that she wants to depose Watkins and Chaney but has not identified what information she seeks or how that information would have affected the outcome of the hearing.⁵ Pille was allowed to cross-examine Watkins thoroughly during the hearing, mitigating any harm. And Pille could have subpoenaed Chaney to testify at the hearing, but apparently chose not to.

As for due process, “[t]he essential requirements of due process ․ are notice and an opportunity to respond.” Dep't of Revenue, Fin. & Admin. Cabinet v. Wade, 379 S.W.3d 134, 138 (Ky. 2012) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). Here, Pille was given ample opportunity to respond to the condemnation petition at the taking hearing, which lasted over 3.5 hours. She has not shown how her inability to complete discovery denied her of a meaningful opportunity to be heard.

Pille's next three arguments concern SD1's right to condemn her property. Before addressing her claims, however, we set forth the law relevant to our review. “It has long been held that in every case in which the power of eminent domain is invoked, it must appear that the property is desired for a public use and will be reasonably necessary for that use.” Proffitt v. Louisville and Jefferson Cnty. Metropolitan Sewer Dist., 850 S.W.2d 852, 854 (Ky. 1993) (internal quotation marks and citation omitted). “Nor can the taking be done arbitrarily.” Id. (citing KY. CONST. § 2).

“Generally, the condemning body has broad discretion in exercising its eminent domain authority including the amount of land to be taken.” God's Center, 125 S.W.3d at 299 (citations omitted). “A determination by the condemnor that the taking is a necessity is ordinarily conclusive[.]” Id. (citations omitted). However, “courts will review the condemning body's exercise of discretion for arbitrariness or action in excess of its authority.” Id. at 299-300 (citations omitted). “[J]udicial review of necessity is extremely limited and the condemnor's determination of necessity will be respected unless the use is ‘palpably private’ or ‘plainly without reasonable foundation.’ ” Id. at 303 (citations omitted). “The party challenging the condemnation, however, bears the burden of establishing the lack of necessity or public use and abuse of discretion.” Id. at 300 (citations omitted). “Although the factors of necessity and public use associated with condemnation are ultimately legal issues, resolution of those issues encompasses factual matters subject to deferential review on appeal.” Id.

Pille first contends the trial court erred in holding SD1 has the authority to condemn her property to “sustain economic vitality.” The court found that

SD1's request to condemn easements on Ms. Pille's property for the purpose of constructing a sanitary sewer main is in furtherance of its statutory and public purposes. These include that the proposed sewer serves public purposes to eliminate raw sanitary sewer overflows in Boone County and to sustain economic vitality, including providing sewer access to additional geographic areas in Boone County.

Pille concedes that SD1 has the authority under KRS 220.310 and 220.030 to condemn property to address the sanitary sewer overflows at the Bullittsville pump station. However, she asserts SD1 is not statutorily authorized to use its condemnation power to open areas of Boone County for development.

At the hearing, Watkins testified that in addition to eliminating the sanitary sewer overflows at the Bullittsville pump station, the CBC would also “bring[ ] economic vitality to community by creating more areas that can be serviced by sanitary sewers[.]” Pille seems to argue that even though SD1 is authorized to take her land to address sanitary sewer overflows under KRS 220.310 and 220.030, because the CBC will also promote economic vitality, SD1 exceeded its statutory authority. We disagree.

As Pille acknowledges, KRS 220.310 grants SD1 the right to condemn property for the construction of any structure authorized by KRS 220.010 to 220.520. One of SD1's express purposes is to “provide for the collection and disposal of sewage ․ and incident to those purposes ․ to construct, with all appurtenances, laterals, trunk sewers, intercepting sewers, siphons, pumping stations, treatment and disposal works ․and do all other things necessary for the fulfillment of the purposes of KRS 220.010 to 220.520.” KRS 220.030(4). Watkins testified that SD1 needs three permanent and four temporary easements on Pille's land for the public purpose of constructing a sewer trunk line as part of Phase 4 of the CBC. Once completed, the CBC will eliminate sanitary sewer overflows that are a public health hazard.

As the trial court found, and as Pille admits, SD1's condemnation of land for the purpose of constructing a sewer line to eliminate sanitary sewer overflows is clearly within the scope of its authority. SD1's valid exercise of its condemnation power is not nullified simply because that exercise has additional benefits. Just because the CBC will also provide sanitary sewer access to other areas of Boone County (providing opportunities for economic growth) does not negate SD1's authority to condemn land for a public use—to eliminate sanitary sewer overflows.

Pille cites several cases, including City of Owensboro v. McCormick, 581 S.W.2d 3 (Ky. 1979) and Prestonia Area Neighborhood Association v. Abramson, 797 S.W.2d 708 (Ky. 1990), to argue that SD1 cannot use its condemnation power to promote economic development. But she reads these cases too narrowly. These cases simply recognized (and condemned) the tyranny of “taking private property, then transferring it to private persons under the guise of a public use or purpose.” Decker v. City of Somerset, 838 S.W.2d 417, 422 (Ky. App. 1992); see City of Owensboro, 581 S.W.2d at 7 (“We concur in the Court of Appeal's observation that ‘government cannot use the power of eminent domain in order to act as land broker for private interests.’ ”); Prestonia, 797 S.W.2d at 711 (“Kentucky law does not permit the taking of private property for the purpose of transfer to another private enterprise.”). But here, SD1 is not taking Pille's land for private interests or to convey it to any private person. In fact, Watkins testified that the CBC would allow Pille to develop her undeveloped land if she so chose. Thus, Pille's reliance on City of Owensboro and Prestonia is unavailing because the opportunities for economic growth resulting from the condemnation of Pille's land belong to Pille alone, not some other private person or entity.

Pille next argues the trial court erred in its finding of necessity. She cites a conversation she had with SD1 Executive Director Adam Chaney (as testified to in her affidavit) where he allegedly told her that the idea for a sewer along Woolper Creek (and consequently through Pille's property) came from the Boone County Fiscal Court and that SD1's original plan was to rebuild a Hebron pump station. She argues that this is evidence that SD1 does not need her land to address sanitary sewer overflows, and that the CBC was the result of political influence.

“[J]udicial review of necessity is extremely limited and the condemnor's determination of necessity will be respected unless the use is ‘palpably private’ or ‘plainly without reasonable foundation.’ ” God's Center, 125 S.W.3d at 303 (citations omitted). Watkins testified that SD1 chose the CBC over the original Bullittsville pump equalization project to address sanitary sewer overflows because it had the additional benefit of providing other areas of Boone County with sanitary sewer service and growth potential. She further testified that alternative routes were considered for the Phase 4 sewer but SD1 ultimately selected the most constructible and cost-effective location for the gravity sewer (which flows downstream): following Woolper Creek. While other routes, such as the proposed B3 in the Hazen Report, were possible, the selected route allowed the Petersburg area to have sewers service via gravity sewer, which is less costly than having to install a pump station. The trial court found that SD1 had “properly exercised its authority and discretion in determining that a reasonable solution to eliminating the raw sanitary sewer overflows and providing sewer access to additional areas in Boone County requires the sewer line that crosses the properties of [Pille.]” Similarly, we cannot say SD1's determination of necessity was “plainly without reasonable foundation.”

Further, it makes no difference if the original idea for the sewer route came from the Boone County Fiscal Court and not SD1. In fact, the evidence from the hearing supports this. Watkins testified that the CBC was born out of conversations with the fiscal courts about their growth priorities as it relates to sanitary sewers in their counties. Boone County wanted to prioritize Northern Boone County and come up with a plan to get flow away from the Dry Creek treatment plant in the east and flip flow towards Western Regional Reclamation Facility in the west. The CBC meets this goal. But the simple fact that the CBC was developed in conjunction with the Boone County Fiscal Court does not make the decision for the route arbitrary. Accordingly, we find no error.

Relatedly, Pille argues that no substantial evidence supports SD1's decision to select the existing route (through her property) rather than an alternative route. This is like her lack of necessity argument above. She suggests other routes were available which avoid her property, address the sanitary sewer overflows, and were more environmentally friendly. She thus contends SD1's selection of the CBC route was arbitrary.

Courts may not question the determination of a condemning body as to “what particular property is needed in connection with a valid public project, unless there has been such a clear and gross abuse of discretion as to violate Section 2 of the Constitution of Kentucky, which section is a guaranty against the exercise of arbitrary power.” Commonwealth, Dep't of Highways v. Vandertoll, 388 S.W.2d 358, 360 (Ky. 1964). Further, it is not an abuse of discretion simply because the condemnor could have selected an alternative route. Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 266 (Ky. 1963). As set forth above, Watkins testified as to the reasons why the CBC was chosen over other alternatives and SD1's decision was not a clear and gross abuse of discretion. While Pille again takes issue with SD1's decision to select a route that, in addition to eliminating sanitary sewer overflows, also provides sanitary sewer access to other areas of Boone County (and consequently development opportunities), “provid[ing] for the collection and disposal of sewage and other liquid wastes produced within the district” is an explicit purpose for which SD1 is authorized to exercise its condemnation power under statute. KRS 220.030(4); KRS 220.310.

Finally, Pille argues the trial court erred in finding that SD1 negotiated in good faith to purchase the required easements. She points to several facts in support: (1) the commissioners’ award ($80,000) was over three times the amount offered by SD1 ($22,100); (2) SD1 initiated condemnation proceedings just one month after extending their offer; and (3) SD1 filed objected to the commissioners’ award, despite Pille's evidence that her trees alone are worth more.

As an initial matter, it is unclear if this claim is even preserved for our review. We cannot find where Pille made this argument to the trial court. Assuming it is preserved, however, we find no error. Whether a condemnor acts in good faith is a question of fact for the trial court which we review for clear error. Lexington-Fayette Urban Cnty. Government v. Moore, 559 S.W.3d 374, 379 (Ky. 2018) (citations omitted).

“Kentucky courts have also imposed a duty on the condemnor to negotiate in good faith the acquisition of the property prior to seeking condemnation.” God's Center, 125 S.W.3d at 300. “The real inquiry ․ is whether the condemnor made a reasonable effort in good faith to acquire the land by private sale at a reasonable price.” Usher & Gardner, Inc. v. Mayfield Independent Board of Education, 461 S.W.2d 560, 562 (Ky. 1970). “A single take-it-or-leave-it offer of a manifestly inadequate amount could well evidence a failure to make a reasonable effort to acquire the land by contract of private sale.” Id. at 562-63. However, “the condemnor is not required to haggle in order to satisfy its obligation to negotiate in good faith the purchase of property[.]” God's Center, 125 S.W.3d at 304.

Here, the trial court's finding that SD1 negotiated in good faith was supported by substantial evidence. SD1's offer of $22,100, while substantially less than the commissioners’ award, was based upon an independent appraisal. Therefore, we cannot say it was unreasonable or evidence of bad faith. Other courts have held that good faith is satisfied when the offer is an amount based on an independent appraisal. See Wagler v. West Boggs Sewer Dist., Inc., 898 N.E.2d 815, 819 (Ind. 2008); Urban Renewal Agency of City of Salem, By and Through City of Salem v. Caughell, 581 P.2d 98, 99-100 (Or. Ct. App. 1978).

Further, SD1's efforts to negotiate were reasonable, considering the circumstances. Although SD1 only made a single offer before initiating condemnation proceedings, Pille testified at the hearing that she would never grant SD1 the voluntary easements they are currently seeking. Thus, continuing to try to negotiate would have been futile. See God's Center, 125 S.W.3d at 304 (affirming a trial court's finding of good faith where owner rejected offer based on independent appraisals, stating it would not consider sale of the property “for any amount,” suggesting further negotiations would be unproductive). We cannot say the trial court's finding of good faith was clearly erroneous.

Finally, Pille contends the trial court erred when it found that SD1 did not improperly segment the project to avoid complying with the National Environmental Policy Act, 42 U.S.C.⁶ § 4321 et seq. (“NEPA”). Below, Pille challenged SD1's right to take by arguing that it had failed to comply with NEPA. She claimed that it sought to avoid compliance by improperly segmenting the project so it could assert that no federal funds will be used for that portion of the sewer line crossing her property (Phase 4).

The trial court found that SD1's segmentation of the project was based upon reasonable considerations such as each phase's respective costs and timing requirements. Further, it found that SD1 had substantively complied with NEPA, “including with respect to Phase 4 by virtue of SD1's United States Army Corps of Engineers 404 Permit and Water Quality Certification.” While Pille seeks to challenge SD1's right to take based upon its alleged noncompliance with NEPA, failure to follow federal statutes and regulations “does not affect the power of eminent domain under state law.” Kuchle Realty Company, LLC v. Commonwealth, 571 S.W.3d 95, 102 (Ky. App. 2018); see also United States v. 0.95 Acres of Land, 994 F.2d 696, 699 (9th Cir. 1993) (“NEPA cannot be used as a defense to the condemnation action.”).

Further, the trial court found that SD1 complied with NEPA, and that finding is supported by substantial evidence. Watkins testified that Phase 4 of the project (the part that affects Pille's property) does not have to comply with NEPA because it is funded with SD1 cash reserves and not federal funding; nevertheless, SD1 obtained a 404 permit from the Army Corps of Engineers, which must comply with NEPA to issue the permit. Therefore, in her opinion the project is compliant. We find no error.

CONCLUSION

Based upon the foregoing, the Boone Circuit Court's interlocutory judgment determining that SD1 has the right to condemn Pille's property is affirmed.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   Kentucky Rules of Civil Procedure.

3.   On December 3, 2024, the trial court entered an order setting the motion for an evidentiary hearing on January 9, 2025. December 3 to January 9 is thirty-six days.

4.   Compare Barone v. Sanitation District No. 1, No. 2016-CA-001711-MR, 2020 WL 260666, at *15 (Ky. App. Jan. 17, 2020) (affirming a trial court's denial of a motion to continue where owner had seven months from the filing of the condemnation petition to the right-to-take hearing to conduct discovery) with Bowling v. Transportation Cabinet, Department of Highways, No. 2024-CA-1361-MR, 2025 WL 3558691, at *9 (Ky. App. Dec. 12, 2025) (eight months from filing of condemnation petition to right-to-take hearing held sufficient time to complete discovery).

5.   In fairness, Pille's brief does reference a conversation with Chaney where he allegedly told her that the original idea for a sewer line along Woolper Creek came from the Boone County Fiscal Court, not SD1, although this information is in her statement of the case not her argument section. Pille suggests that this is somehow evidence of bad faith. However, the simple fact that the idea for the CBC might have come from someone other than SD1 is not, by itself, evidence of bad faith. In fact, this is consistent with Watkins’ testimony that SD1 sought input from Boone County Fiscal Court about where their growth priorities were as it relates to sanitary sewers which led to the development of the CBC.

6.   United States Code.

McNEILL, JUDGE:

ALL CONCUR.