Local planning commission had jurisdiction over siting of cell towers: KENTUCKY PUBLIC SERVICE COMM. v. SHADOAN (COA 6/20/2008)

KENTUCKY PUBLIC SERVICE COMM. v. SHADOAN
ZONING and PLANNING:  Local planning commission jurisdiction over siting of cell towers

2007-CA-000697
TO BE PUBLISHED: AFFIRMING IN PART & REVERSING IN PART
PANEL: MOORE PRESIDING; ACREE, STUMBO CONCUR
FRANKLIN COUNTY
DATE RENDERED: 6/20/2008

Bluegrass Wireless (“Bluegrass”) filed an application with the Kentucky Public Service Commission (“PSC”) to build a cellular tower. The Shadoans, neighboring landowners, were allowed to intervene. After learning that a local planning commission had been established, Bluegrass requested dismissal of its application action because it believed the planning commission had jurisdiction under KRS 100.987(1). The PSC dismissed. The Shadoans filed a complaint with the circuit court, attaching only the order from which they were appealing. Bluegrass and the PSC moved to dismiss the petition for failure to designate the record. The circuit court denied the motion and granted the Shadoans summary judgment, ruling that the PSC was required under KRS 278.650 to hold a hearing regarding the proposed cellular tower because the planning commission had not adopted regulations dealing specifically with cell towers. Bluegrass and PSC appealed.

Bluegrass and PSC argued that the Shadoans’ failure to designate the record deprived the circuit court of jurisdiction. The court disagreed. It stated that although strict compliance is the law in Kentucky when the right to appeal is a “matter of legislative grace,” the order attached to the complaint was sufficient to meet the requirements for designation of the record.

However, the Court reversed the circuit court’s summary judgment motion on other grounds. It found that KRS 100.987 conferred jurisdiction over siting cell phone towers to local planning commissions and that an application may only be filed with the PSC if the proposed tower is outside of the geographical jurisdiction of the planning commission. The Court held that the only discretion of the planning commission was whether to adopt regulations specifically regarding the siting of cell towers; it did not have the discretion to deny jurisdiction.

Digested by Sam Hinkle

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