16-OMD-201

16-OMD-201

September 7, 2016

In re: Charles E. Moore and Jana P. Moore Revocable Living Trust/City of Corbin Board of Adjustment

Summary:  The City of Corbin Board of Adjustment did not violate the Open Meetings Act in conducting public business in open session, but violated the Open Meetings Act in failing to respond to a written complaint.

Open Meetings Decision

        The questions presented in this appeal are whether the City of Corbin Board of Adjustment (“Board of Adjustment”) violated the Open Meetings Act in failing to respond to a written complaint, and in conducting public business in closed session. We find that the Board of Adjustment violated the Open Meetings Act in failing to respond to a written complaint, but did not violate the Open Meetings Act in conducting public business in open session.

        The events giving rise to this appeal, as described by the attorney for the Charles E. Moore and Jana P. Moore Revocable Living Trust’s (“Trust”) attorney, are as follows:

        My client owns a residence next door to James D. Norvell, Jr. and Melinda S. Norvell. Mrs. and Mrs. Norvell added onto their residence and encroached upon the ten foot (10’) side yard building setback restriction existing in the City of Corbin. An action was filed by my clients in the Whitley Circuit Court to abate the setback violation which was followed by an application by Mr. and Mrs. Norvell seeking a variance from the ten foot building setback restriction. A public hearing was held on March 17, 2016 and the determination of the Board of Adjustments was signed March 22, 2016 . . . . The determination . . . nowhere indicates upon what date a vote was taken or even if a vote was taken. . . .

The trust attached a copy of the Board of Adjustment’s decision dated Mar. 17, 2016, which stated that it “held a public hearing on Thursday, March 17, 2016,” and that “in accordance with the action taken by the Board of Adjustment at its Regular meeting on Thursday March 17, 2016 and at the direction of the Board, I advise you that the recommendation of the Board is that this Request be APPROVED AS REQUESTED.” The decision was signed on Mar. 22, 2016. The trust also attached a partial transcript of the hearing on Mar. 17, 2016, in which the Board of Adjustment chair stated, “but anyway that’s just something to kind of liven it up a little bit, but we will consider it all and we will make a decision, but we would make a decision without everybody being present.” The Trust’s attorney then stated, “and if it’s okay, we’ll be excused . . . and you all can keep on with your meeting.”

        The Trust sent a written complaint to the Board of Adjustment on July 21, 2016. The complaint stated that “a hearing was held on April 17, 2016 and you have implied, if not expressed, that a vote of the Board of Adjustment was taken on the day of the hearing.” The Trust argued that “by your express direction, deliberations and the actual vote to grant the variance, whether taken on April 17, 2016 or some day thereafter but before April 22, 2016, occurred in a closed session in violation of KRS 61.810(1).”¹ The Trust requested that “to cure the violation, the determination granting the variance should be vacated and another hearing held which complies with the Open Meetings Act.” The Board of Adjustment did not respond to the complaint.

        The Trust initiated this appeal on Aug. 18, 2016. The Trust argued that the “Board of Adjustment did not favor us with a reply and many more than three days has [sic] expired,” and that “the Board of Adjustments made its decision without anybody being present, therefore in a closed session.” Regarding the language in the decision stating that the action was taken in regular meeting on Mar. 17, 2016, the trust argued that “it cannot be reasonably construed that this language provides with certainty that a vote was taken on March 17, 2016.”

        The Board of Adjustment responded to the appeal on Aug. 29, 2016, stating:

        Pursuant to KRS Chapter 100, the Board of Zoning Adjustment of Corbin, Kentucky held a public hearing on Thursday, March 17, 2016 . . . concerning a Variance request from James and Melinda Norvell.

        . . . .

        Immediately following the closing of the Public Hearing, the Regular Session of the Board of Adjustment was called to order.

        . . . .

        Following, the discussion of the variance request as presented during the Public Hearing was conducted. At no time was a closed or executive session called to discuss any part of that request. Following the open discussion and review of the evidence as presented by the parties involved, a vote was taken which approved the request unanimously. All occurring consecutively on March 17, 2016.

        The official decision was prepared and signed . . . on March 22, 2016.

The Board of Adjustment argued that the Trust’s attorney’s comment, “and you all can keep on with your meeting,” indicated “awareness of the continuance of the Regular Session.”

        KRS 61.846(1) provides that upon receipt of a complaint, “the public agency shall determine within three (3) days . . . after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.” It is not disputed that the Board of Adjustment did not respond to the initial complaint. Accordingly, in failing to respond to a written complaint, the Board of Adjustment violated the Open Meetings Act.

        KRS 61.810(1) provides that “all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times,” and then lists the exceptions. The Board of Adjustment states that the vote to affirm the recommendation concerning the variance request was held in open session. The Trust alleges that there must have been a closed session, apparently on the grounds that “the Board of Adjustment made its decision without everybody being present, therefore in a closed session.” Assuming no other members of the public were present at that meeting, that does not automatically render the meeting a closed session.  The trust argues that “the determination . . . nowhere indicates upon what date a vote was taken.” However, the decision itself stated that it was “in accordance with the action taken by the Board of Adjustment at its Regular meeting on Thursday March 17, 2016.” The Trust argues that “it cannot be reasonably construed that this language provides with certainty that a vote was taken on March 17, 2016.” While we agree with the Trust that such language does not provide anything with certainty, we find it reasonable to construe such language as providing that a vote was taken on Mar. 17, 2016. Based on the record before us, we do not find that the Board of Adjustment violated the Open Meetings Act in conducting public business in open session.

        A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

                                                Andy Beshear

                                                Attorney General

                                                Matt James

                                                Assistant Attorney General

#350

Distributed to:

Darrell L. Saunders

Mack Jones

Robert Hammons