FROM GRANT CIRCUIT COURT HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 10-CI-00263
FOR APPELLANTS: Julie Scott Jernigan Williamstown, Kentucky.
FOR APPELLEES: Jack S. Gatlin Ft. Mitchell, Kentucky.
BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES.
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.
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.
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.
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.
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
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. 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.