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Masonic Homes of Kentucky, Inc. Appellant v. Louisville Metro Planning Commission

February 8, 2013

MASONIC HOMES OF KENTUCKY, INC. APPELLANT
v.
LOUISVILLE METRO PLANNING COMMISSION; PEGASUS TOWER COMPANY, LLC; AND VILLAGE MANOR PARTNERS, LTD APPELLEES



APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 11-CI-000009

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

RENDERED: FEBRUARY 8, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES.

The Louisville Metro Planning Commission ("the Commission") approved the application of Pegasus Tower Company, Ltd. ("Pegasus Ltd."), to construct a cellular communications tower on a tract of land adjacent to property owned by Appellant, Masonic Homes of Kentucky, Inc. ("Masonic"). Masonic sought judicial review in Jefferson Circuit Court, and the court affirmed the Commission's decision and dismissed the appeal. Masonic now appeals the order of the Jefferson Circuit Court. Finding no error, we affirm.

In August 2010, Pegasus Ltd. (the predecessor in interest to Appellee Pegasus Tower Company, LLC ("Pegasus LLC")) initiated the application process with the Commission for approval to construct a 152.5-foot monopole cellular tower at 105 Fenley Avenue in Louisville, Kentucky. Pegasus Ltd. planned to build the tower on a tract of land leased from Appellee, Village Manor Partners, Ltd. The Masonic property is located on the eastern border of the tract.

Kentucky Revised Statutes (KRS) 100.987 vests the Commission with the authority to plan for and regulate the placement of cellular antenna towers within the geographic boundaries of the Louisville Metro government. The statute provides, in relevant part:

(2) Every utility or a company that is engaged in the business of providing the required infrastructure to a utility that proposes to construct an antenna tower for cellular telecommunications services or personal communications services within the jurisdiction of a planning unit that has adopted planning and zoning regulations in accordance with this chapter shall:

(a) Submit a copy of the applicant's completed uniform application to the planning commission of the affected planning unit to construct an antenna tower for cellular or personal telecommunications services. The uniform application shall include a grid map that shows the location of all existing cellular antenna towers and that indicates the general position of proposed construction sites for new cellular antenna towers within an area that includes:

1. All of the planning unit's jurisdiction; and

2. A one-half (1/2) mile area outside of the boundaries of the planning unit's jurisdiction, if that area contains either existing or proposed construction sites for cellular antenna towers;

(b) Include in any contract with an owner of property upon which a cellular antenna tower is to be constructed, a provision that specifies, in the case of abandonment, a method that the utility will follow in dismantling and removing a ...


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