United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE.
a civil rights action, in which Plaintiffs bring claims under
42 U.S.C.A. § 1983 to vindicate alleged violations of
the Takings Clause of the Fifth Amendment and Due Process
Clause of the Fourteenth Amendment. Plaintiffs' complaint
also includes state law claims for relief under Ky. Rev.
Stat. Ann. §§ 82.405, 92.330 and 92.340, as well as
a claim for declaratory relief.
matter now comes before the Court on Motions for Summary
Judgment by the Plaintiffs (Doc. 31), Defendants the City of
Highland Heights and Greg Meyers (Doc. 32), and Defendant
JAYSAC Company, LLC (Doc. 37).
previously heard the parties, the Court now issues this
Memorandum Opinion and Order.
Factual and Procedural Background
entirety of this case involves a 100-foot stretch of land at
the end of a currently dead-end street just south of Northern
Kentucky University in Highland Heights, Ky. The street is in
a subdivision called University Estates, which was platted
and mostly constructed in approximately 1993. (Deed, Doc.
31-4, PageID# 142; Plat Map, Doc. 32-1, PageID# 206; Whitacre
Depo., Doc. 33, PageID# 247).
the streets in University Estates end in cul-de-sacs. Jillian
Court, the subject of this case, is an exception. When
planning the subdivision, the City of Highland Heights and
the subdivision planners intentionally left the end of
Jillian Court unpaved to allow access to undeveloped land in
the future. (Whitacre Depo., Doc. 33, PageID# 243-45). Thus,
the final 100 feet of Jillian Court was unpaved, even though
it was platted as a City street. (See Plat Map, Doc.
32-1, PageID# 206).
Plaintiffs, Gary and Jennifer Hunter, own the property
abutting the 100-foot undeveloped stretch of Jillian Court on
the north. (Plat Map, Doc. 32-1, PageID# 206; Hunter Depo.,
Doc. 34, PageID# 250, 252). To the west of the Hunters'
property is 13 acres of undeveloped land which Defendant
JAYSAC Company, LLC purchased in 2014. (Crawford Depo., Doc.
36, PageID# 296).
to that purchase, the City of Highland Heights Planning and
Zoning Committee voted 7-0 to allow the 100-foot unpaved
grass portion of Jillian Court “to be treated as a
driveway unless there are more than two lots
developed, [in which case] it would have to be developed as a
public right-of-way according to the City's subdivision
regulations.” (Jan. 14, 2014 Minutes, Doc. 31-5,
PageID# 146; Crawford Depo., Doc. 36, PageID# 295)(emphasis
of the term “driveway” is an erroneous
characterization. The area in question remained an unpaved
(or “paper”) street. Yet, other City employees
eventually adopted this erroneous designation. (Whitacre
Depo., Doc. 33, PageID# 232, 233, 235, 238, 239; Meyers
Depo., Doc. 35, PageID# 275).
following months, Plaintiffs and their neighbors became upset
with JAYSAC accessing its 13 acres by crossing the 100-foot
unpaved section of Jillian Court. They filed open records
requests and drafted a signed petition asking City officials
to either create a cul-de-sac or other turnaround at the end
of Jillian Court or leave it in its current grass form.
(See Petition, Doc. 32-4, PageID# 209; Hunter Depo.,
Doc. 34, PageID# 256).
the City expended $9, 369.69 and JAYSAC spent some of its own
money to extend the paved portion of Jillian Court by 10
feet, add a drainage area at the end of the street, remove
bushes and trees, add dirt and level the unpaved portion of
the street, plant grass, and place a temporary block at the
end of the paved portion to prevent vehicles from driving on
the freshly planted grass. (Whitacre letter, Doc. 31-8,
PageID# 159-60; Expenses, Doc. 32-5, PageID# 231; Whitacre
Depo., Doc. 33, PageID# 245-46).
with this resolution, Plaintiffs filed this action under 42
U.S.C.A. § 1983 alleging violations of the Fifth and
Fourteenth Amendments, along with two Kentucky state law
claims and a claim for declaratory relief. (Doc. 1).