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Whaley v. City of Burgin

United States District Court, E.D. Kentucky, Central Division, Lexington

June 12, 2017




         Defendant City of Burgin, acting through the Burgin Water Department, and defendant George Hensley filed a motion for summary judgment (DE 27). Having been fully briefed, the matter is now ripe for review. For the reasons state herein, the Court will GRANT IN PART the defendants' motion as it relates to plaintiffs' federal due process claims and remand the remaining state-law claims back to the Mercer Circuit Court.


         A small town in Mercer County, Kentucky, the City of Burgin owns and operates its own water distribution system. This case, originally filed in Mercer Circuit Court, involves a water-service dispute between plaintiffs Louis, Lillie, and Mark Whaley and the City. Louis and Lillie Whaley, a married couple, purchased real property located at 440 Burgin-Danville Road in May 2000. Their son, Mark, operates an online business, A2Z Books, on the property and leases the building from his parents.

         Back in the summer of 2007, the City hoped to develop a new residential subdivision. Like all subdivisions, this one needed a water supply. At the time, the City's water lines in that area were too small to properly supply what the City hoped to be a burgeoning development. As part of the construction plan, the City needed to upgrade a 2-inch water line to a 6-inch line to accommodate the increased need for water in the residential subdivision. A portion of that water line crossed through the Whaleys' property. George Hensley, then the water operator for the City, approached the Whaleys requesting permission for an easement to replace the portion of the old pipe located on the Whaleys' property to allow the City to connect the larger line to the new housing development. The Whaleys refused to allow the construction project on their property. Undeterred, the City obtained an encroachment permit from the Kentucky Transportation Cabinet, receiving permission to lay the water line in the state right of way. In January 2008, the City completed the project. As it turns out, the City did not perform the work in accordance with the specifications of the permit. It dug the trench for the water line in the wrong place on the Whaleys' property (DE 28, Ex. 5).

         The construction mistake notwithstanding, the City also hoped that the residential area would help alleviate what it perceived to be a chlorine dissipation issue in the area. Chorine dissipation occurs when water sits stagnant inside a water distribution system for an extended period of time, and it requires a water operator to flush the system. With the new residential subdivision, the City thought, there would be less stagnant water and less chlorine dissipation. The concern over the stagnant water eventually led the City to consider removing the water meter feeding the Whaleys' property. Removing the water meter meant that the water supply to the property would be shut off for a period of time to allow the City to fix the potential chlorine issue. The Whaleys contend the City's concern about chlorine was pretext, mere retribution for the trouble the family caused during the water-line project.

         The issue was discussed at the October 2009 and May 2010 City Council meeting. Following the second meeting, the City Council determined pulling the water meter from the Whaleys' property and disconnecting the water supply was the best course of action to alleviate the chlorine dissipation and other issues related to the water supply. The City sent Louis Whaley a letter on May 11, 2010, which explained the City's decision to pull the water meter and informed him that he could expect the City to act on May 20, 2010. Louis Whaley sent the City back his own letter citing his concerns on May 18, 2010. There is no evidence the City pulled the water meter in May 2010. Instead, the City continued to debate how to best handle the issue throughout that summer.

         On June 1, 2010, the City Council met again and discussed a recent inspection by the State Fire Marshall's Office of the Whaleys' property. The Fire Marshall determined that the sprinkler system on the property was noncompliant. The City opted to allow the Whaleys time to fix the issues with the property. Weeks later on June 22, 2010, the City Council met again to discuss the issue.

         In a letter dated September 9, 2010, the City informed the Whaleys that it voted two days earlier and, after seeking "additional input from the State Fire Marshall and Mercer County Building Code Administrator, " and after it had determined that the "sewage treatment plant and sprinkler systems [were] not up to code, " "the legislative body of Burgin [had] decided to remove [the] water meter" (DE 27, Ex. 15). The decision was unanimous. The letter further stated that the water meter was to be removed on September 13, 2010. Id. There is no official record documenting when the water meter was actually removed, but the Whaleys confirmed that the meter was removed by the City in September 2010, specifically on September 16, 2010. See Louis Whaley Dep. 66: 17-19, 111: 9-15 (DE 29-1); Mark Whaley Dep. 76:11-14 (DE 29-2). Also, records showed that the Whaleys were not issued water bills in October 2010 (DE 29-3). The Whaleys contend that the City's debate over their property and subsequent decision to turn the water off were less concerned with the water supply and more concerned with harming the family's interest in the property.

         Based on this belief, the Whaleys brought suit in Mercer Circuit Court on October 21, 2011, more than a year after the City shut off the water to the property, alleging state law claims of inverse condemnation and negligence (DE 1-2). After amending again the complaint in 2012 (DE 1-6) to assert that the inverse condemnation occurred in 2008 not 2010, the Whaleys amended their complaint one more time on January 15, 2014 (DE 1-13). Therein, the Whaleys alleged for the first time a violation of due process. The complaint, now-twice amended, included five other claims: trespass and unlawful taking; negligence; tortious interference with contractual and business relations; defamation and slander; and a violation of the Kentucky Consumer Protection Act, KRS 367.110. The 2014 version of the complaint also added Mark Whaley as a plaintiff and George Hensley as a defendant.


         All of this-after seven years-is now in front of the Court on the defendants' motion for summary judgment. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute exists when the evidence shows "that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When the defendant is the moving party, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. The moving party has the initial burden of identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding, 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477U.S. 317, 325 (1986). Once the movant has satisfied this burden, "the nonmoving party must go beyond the pleadings and come forward with specific facts to show there is a genuine issue for trial." Chao, 285 F.3d at 424 (citing Celotex, 477 U.S. at 324). The nonmoving party, however, "must do more than show there is some metaphysical doubt as to the material fact. It must present significant probative evidence in support of its opposition to the motion for summary judgment." Chao, 285 F.3d at 424 (internal citations omitted).


         Federal claims come first. The Whaleys argue that their constitutional right to due process of law was violated when the defendants removed the water meter from their property. This due process claim-Count III, titled "Violation of Due Process"-was added for the first time in the third ...

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