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Herndon v. Wilson

Court of Appeals of Kentucky

May 19, 2017

HUGH HERNDON; AND JEANNIE CASTLEBERRY HERNDON APPELLANTS
v.
JAMES WILSON; AND JANE WILSON APPELLEES

         APPEAL FROM GRANT CIRCUIT COURT HONORABLE STEPHEN L. BATES, JUDGE ACTION NO. 10-CI-00263

          BRIEFS FOR APPELLANTS: Julie Scott Jernigan Williamstown, Kentucky.

          BRIEF FOR APPELLEES: Jack S. Gatlin Ft. Mitchell, Kentucky.

          BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE.

         Hugh Herndon and Jeannie Castleberry Herndon, his wife (Herndons) bring this appeal from an Order Granting Defendants' Motion For Summary Judgment entered July 28, 2014, by the Grant Circuit Court in favor of appellees, James Wilson and Jane Wilson, his wife (Wilsons). The dispute below looks to alleged violations of a zoning setback variance by the Wilsons in the construction of a new house on a lot adjacent to the Herndons' on Williamstown Lake, near Williamstown, Kentucky, in Grant County and alleged damages suffered by the Herndons as a result thereof. For the reasons that follow, we affirm in part, reverse in part, and remand.

         BACKGROUND

         In 1995, the Wilsons purchased Lot 409 on Williamstown Lake in Grant County. In 2006, the Herndons purchased Lots 407 and 408 on Williamstown Lake which adjoins the property of the Wilsons. Both properties had houses located thereon. In February of 2008, the Wilsons applied to the Grant County Board of Adjustment for a variance permit to build a new house on their property. The normal side yard setback for a new building under the Grant County Zoning Ordinance is 20 feet (Zoning Ordinance). The Wilsons sought and obtained a variance to reduce the side yard setback to 10 feet in March 2008. The Grant County Planning Commission thereupon issued the Wilsons a zoning permit, approving the construction of a single-family home on the lot. The Wilsons constructed the house on their property and the Grant County Building Inspector issued an occupancy permit in December 2009.

         In April 2010, the Herndons initiated this action against the Wilsons in the Grant Circuit Court, alleging that the Wilsons' house was constructed inside the 10-foot side yard setback line adjacent to their property in violation of the variance. The Herndons allege that they suffered damages based on various legal theories including trespass and inverse trespass, and that further construction within the 10-foot setback line as it adjoins the Herndons' property has damaged the value of their property as well as the peaceful enjoyment of their property as landowners.

         On September 23, 2010, the Wilsons filed a lengthy motion to dismiss the complaint. By order entered October 29, 2010, the court entered an interlocutory order overruling the motion to dismiss, the court stating therein:

The Defendants built a home within three (3) feet of the property line, and there is now an issue of fact to be decided; that of damages.

         The court further noted in the order that the violation of the Zoning Ordinance constituted negligence, per se, which did not preclude civil remedies as asserted by the Herndons.[1]

         Upon dismissal of the Wilsons' interlocutory appeal by this Court, by order entered February 14, 2011, the parties then unsuccessfully engaged in court ordered mediation and thereafter conducted limited discovery.[2] Some three years later, on April 25, 2014, the Wilsons filed a motion for summary judgment which the Herndons timely responded in opposition thereto. The circuit court took the matter under submission without a hearing and on July 28, 2014, rendered a one- page order granting the Wilsons' summary judgment motion, stating only that there existed "no genuine issue as to any material fact." This appeal follows.

         STANDARD ...


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