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Thomas R. Yocum Appellant v. the Legislative Body of the

February 1, 2013

THOMAS R. YOCUM APPELLANT
v.
THE LEGISLATIVE BODY OF THE CITY OF FORT THOMAS, A/K/A THE CITY COUNCIL OF THE CITY OF FORT THOMAS, A/K/A THE FORT THOMAS BOARD OF COUNCIL; PLANNING COMMISSION OF THE CITY OF FT. THOMAS; CITY OF FT. THOMAS; SANITATION DISTRICT NO. 1; JAMES A. DOEPKER, II; AND CANDACE DOEPKER APPELLEES



APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 10-CI-01419

The opinion of the court was delivered by: Clayton, Judge:

RENDERED: FEBRUARY 1, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES.

This is an appeal from the Campbell Circuit Court's order denying the Appellant, Thomas R. Yocum's, zoning appeal and the granting of partial summary judgment on the issue of the constitutionality of Kentucky Revised Statute ("KRS") 100.212 and Zoning Ordinance Section 17.2 ("Ordinance 17.2") of the City of Fort Thomas.

Based upon the following, we will affirm the decision of the circuit court.

DISCUSSION

This case began with James and Candace Doepker's action to have property they owned at 40 Walden Lane in Fort Thomas, Kentucky ("Lot 9") rezoned. Lot 9 was originally zoned Residential 1-AA, and they petitioned the Fort Thomas Planning Commission ("Commission") to rezone it to Residential 1-A, which would allow them to subdivide their property and build a second residence on it.

Fort Thomas City Attorney Jann Seidenfaden conducted an investigation of the ownership records of the property and, although Yocum's name was not included in the records of the Property Valuation Administrator to receive notice, Seidenfaden added Yocum to the list of persons who were entitled to receive notice about the action. In June of 2010, Yocum received notice that the Commission would hold a public hearing on the issue of the rezoning of Lot 9 on June 16, 2010.

Yocum's property was wooded and contained a pond that was used for fishing, and he was concerned that the building of a second residence on the Doepkers' property would have an adverse affect on his use of his property. Consequently, he objected both orally and through written communications to the rezoning of the property.

The Commission unanimously approved recommending the zoning change and the City Council of Fort Thomas ("City Council") took up the matter at their regular meeting in August of 2010. Yocum requested that he be allowed to attend the meeting; however, he was not permitted to present evidence.

KRS 100.212 allows for a fourteen- (14) day notice requirement prior to a hearing. Ordinance 17.2 provides the same. Yocum contends that it would have taken him two full months to prepare his case against the zoning change and that, consequently, he was not afforded due process in being allowed only thirteen-

(13) days' notice. The circuit court granted the Appellees' partial summary judgment on Yocum's request for a declaratory judgment that Ordinance 17.2 and KRS 100.212 are ...


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