FROM KENTON CIRCUIT COURT HONORABLE GREGORY M. BARTLETT,
JUDGE ACTION NO. 15-CI-01264
FOR APPELLANT: Jacqueline S. Sawyers Bryan N. Bishop Ft.
FOR APPELLEE: Richard H. Deters Covington, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES.
Commonwealth of Kentucky, Transportation Cabinet, Department
of Highways (Transportation Cabinet) sought to acquire a
portion of property owned by Kuchle Realty Company, LLC, to
construct a right turn lane road improvement at the
intersection of Dixie Highway and Kyles Lane (the
intersection project) in Kenton County. Kuchle filed an
objection to the Transportation Cabinet's petition for
condemnation on the basis that the Transportation Cabinet
failed to comply with federal and state laws and the
Transportation Cabinet's policy manual during the
condemnation process. The circuit court conducted a hearing
and granted the Transportation Cabinet's petition.
early as 1986, plans were discussed to improve the
intersection of Kyles Lane and Dixie Highway. A drawing
depicting a turn lane at the intersection was generated by
the Northern Kentucky Area Planning Commission (NKAPC) in
1986 and was part of a broader planning study by the OKI
Regional Council of Government,  referred to as the
email submitted as an exhibit at the hearing, Roger Kuchle,
an owner of Kuchle, acknowledged he attended planning
meetings at OKI in 2007 and knew some of Kuchle's
property would be involved in the Dixie Fix, whatever design
the knowledge that a portion of Kuchle's property would
be involved in the intersection project, in 2009-2010 Kuchle
sought and obtained zoning approval for the construction of a
Walgreens store on Kuchle's property. The approval
required that Kuchle design the Walgreens store to comport
with the intersection project plan.
subleased the property for a period of seventy-five years
from Anchor Kentucky Partners, LLC, which has a ground lease
for the property from Kuchle. Under the terms of the lease,
if any property is taken by condemnation, the lease can be
terminated at Walgreens' discretion upon sixty days'
2009, the design money for the intersection project was
allocated and design began. In January 2014, a set of plans
was completed and compensation for condemnation of part of
Kuchle's property to facilitate the intersection project
was calculated. There was evidence that a Transportation
Cabinet representative met with Mr. Kuchle on June 2, 2014,
and discussed the plans and that the property to be taken had
been valued by the Transportation Cabinet at $23, 950 using a
Minor Acquisition Review (MAR). The Transportation Cabinet
offered that amount and Kuchle rejected the Transportation
Kuchle's request, the Transportation Cabinet arranged an
appraisal by a certified licensed appraiser, Brian Davis, who
appraised the property at $41, 500 and the Transportation
Cabinet offered that amount. Kuchle did not believe the
appraisal was an accurate valuation of the property and
rejected the Transportation Cabinet's offer. The
Transportation Cabinet's record of contacts indicates
that in January 2015, the Transportation Cabinet again
offered $41, 500 and Kuchle counteroffered $66, 900. After
fourteen months of negotiations failed, on July 7, 2015, the
Transportation Cabinet filed a condemnation petition. Kuchle
filed an objection to the petition.
August 2015, Mr. Kuchle sent a list to the Federal Highway
Administration alleging twelve instances where the
Transportation Cabinet violated federal law in the
condemnation process. However, federal funding for the
intersection project was not withdrawn.
the hearing, the circuit court found there was no evidence
that the Transportation Cabinet acted fraudulently, with bad
faith or that it abused its discretion. It also found that
the Transportation Cabinet substantially complied with state
and federal laws regarding the condemnation of Kuchle's
property. This appeal followed.
Transportation Cabinet sought to condemn Kuchle's
property pursuant to the Eminent Domain Act of Kentucky,
Kentucky Revised Statutes (KRS) 416.540 et seq. KRS
416.550 provides, in relevant part:
Whenever any condemnor cannot, by agreement with the owner
thereof, acquire the property right, privileges or easements
needed for any of the uses or purposes for which the
condemnor is authorized by law, to exercise its right of
eminent domain, the condemnor may condemn such property,
property rights, ...