LOCAL GOV’T REVENUE BONDS: BEAR CREEK CAPITAL, LLC V. TOEBBEN, LTC (COA 5/4/2007)

BEAR CREEK CAPITAL, LLC V. TOEBBEN, LTC
REVENUE AND TAXATION:  INDUSTRIAL REVENUE BONDS (required notice)
2005-CA-000957
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART (ABRAMSON)
DATE RENDERED: 5/4/2007

Bear Creek Capital, LLC (Bear Creek), a real estate developer and property manager, and the Kentucky Private Activity Bond Allocation Committee (KPABAC or the Bond Allocation Committee), a state agency responsible for approving certain industrial revenue bonds, appeal summary judgment vacating the Bond Allocation Committee’s approval of bonds proposed by Crescent Springs (the City), to finance a Bear Creek development in the City. Bear Creek and KPABAC contend that the circuit court exceeded the proper scope of review by disturbing a final administrative determination and by substituting its judgment for that of the Bond Allocation Committee.

Although Judge Abramson writing for the COA agreed the circuit court’s proffered reasons do not justify setting aside the Bond Allocation Committee’s decision, the Court of Appeals was compelled to note a mandatory basis for such action: namely, the City’s failure to give the statutorily required notice of the public hearing on its bond proposal. That failure prevented the Bond Allocation Committee’s jurisdiction from attaching and renders its approval of the City’s proposal void. Accordingly, the COA affirmed on different grounds the circuit court’s invalidation of KPABAC’s approval, but reverse the circuit court’s order of remand.

Digested by Michael Stevens

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