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Lexington-Fayette Urban County Government v. Moore

Supreme Court of Kentucky

November 1, 2018



          COUNSEL FOR APPELLANT: Michael Keith Horn Charles Edwards III Lexington-Fayette Urban County Government Department of Law

          COUNSEL FOR APPELLEE: Katherine Yunker Jon Allen Woodall Brendan Reynolds Yates McBrayer McGinnis Leslie & Kirkland PLLC



         The Fayette Circuit Court entered an interlocutory judgment pursuant to KRS 416.610 concluding that Appellant, Lexington-Fayette Urban County Government ("LFUCG"), properly exercised its power of eminent domain in the taking of a permanent easement on the land of Appellee Justin Moore for the public purpose of constructing a storm water culvert and drainage system. Moore appealed.[1] Moore's appeal acknowledged LFUCG's power to condemn, but he argued that by taking only an easement on the 4, 518.6 sq. ft. area, rather than a fee simple, LFUCG was not acting in good faith.

         The Court of Appeals agreed with Moore that under the circumstances presented here, where the condemned land was left essentially valueless to the landowner following the taking, LFUCG's duty as a condemning authority to act in good faith obligated it to take possession of the land by fee simple rather than by easement.

         We granted discretionary review, and for the reasons set forth below, we reverse the Court of Appeals and reinstate the interlocutory judgment of the Fayette Circuit Court.


         This case concerns LFUCG's taking, pursuant to Kentucky's Eminent Domain Act (KRS 416.540-416.680), of an interest in a portion of Moore's 2.68-acre residential tract located on Deer Haven Lane in Fayette County. Along the western boundary of Moore's property runs a section of Polo Club Boulevard that terminates before it reaches Deer Haven Lane, which runs along the northern boundary of Moore's property. LFUCG's project will extend Polo Club Boulevard to meet Deer Haven Lane, but it requires the construction of a 16-foot by 4-foot box culvert and a drainage system extending sixty feet on to Moore's property to a pond located on Moore's tract. The area of the land needed for the culvert and drainage system is 4, 518.6 sq. ft., a little less than the size of a basketball court, at a corner of Moore's 2.68 acres.

         Before the condemnation action began, an appraisal report prepared for LFUCG in connection with the project estimated that Moore's after-taking utility of the section to be occupied by the 4, 518-square foot permanent easement would be 5%. No benefit to the property from the easement was identified.

         Based upon the appraisal, LFUCG made an offer to pay Moore for a permanent easement on the 4, 518.6-sq.ft. section, and the temporary construction easement on a larger area of 26, 504.18 square feet. In response to the offer, Moore questioned why LFUCG would merely take a permanent easement instead of fee simple ownership since the taking would reduce the utility of this section to 5% of its former utility. LFUCG Acquisition Agent, Paul Willard, responded that the permanent easement was "to provide the government access to maintain the culvert for maintenance purposes" and that this was "the same treatment . . . generally on any building project using state or federal funds." Willard did not identify any state or federal authorities requiring that an easement be taken in situations such as this, where the landowner's after-taking utility is minimal. Through his attorney, Moore expressed concern that if he remained the title owner of the area, he could be liable for injuries or accidents caused in connection with the culvert and drainage system. LFUCG argued that the policy is reasonable to avoid the burden of the government owning fee-simple title to hundreds of miniscule plots of land throughout its boundaries. Negotiations produced no settlement, and the condemnation action ensued.

         LFUCG filed the action seeking a temporary construction easement and permanent drainage easement on Moore's property. The appointed commissioners found that the proposed permanent easement would diminish the fair market value of Moore's 2.68-acre tract by the sum of $1, 287 and that a fair rental value for the area required for the temporary construction easement was $8, 000. Moore's answer to the complaint contested LFUCG's right to take the property, a position he later abandoned, and further argued that LFUCG was acting in bad faith or abusing its discretion by seeking to take a permanent easement rather than a fee simple interest.

         LFUCG eventually filed a motion for interlocutory judgment pursuant to KRS 416.610[2] requesting that the government be allowed to take the property. At the hearing held pursuant to KRS 416.610(4), Moore did not dispute that the proposed taking was for a public purpose. He continued to assert that LFUCG should be required to take the property by fee simple since its taking as an easement left him with no useful purpose for the property.

         LFUCG acknowledged that the remaining utility of this section of Moore's property, after being subjected to the permanent easement, would be 5% and that Moore would not be able to use it because of the box culvert located on it. LFUCG's witness, Willard, testified that he was not aware of any similar-sized culvert which LFUCG had taken as an easement rather than a fee simple interest. Willard testified that LFUCG followed the Kentucky Transportation Cabinet's "standard practice," which required the taking of an easement under these circumstances and that LFUCG must comply with ...

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