| PUBLISHED
DECISIONS - COURT OF APPEALS - 9/30/2005 |
2004-CA-001965
PUBLISHED
Date: 9/30/2005
MILLER - PJ
VACATING AND REMANDING |
KROGER
LIMITED PARTNERSHIP I V.
CABINET FOR HEALTH SERVICES
ADMINISTRATIVE LAW - WIC PROGRAM
If the suspension of a store will
result in an undue adverse impact upon WIC
participants, the Cabinet is authorized to
impose sanctions other than suspension.
902 KAR 4:040 § 13(6). Because of the
nature of this case and the potential
devastating consequences to the affected
neighborhoods if the only full-service WIC
outlet in the area were to be closed, the
realities compel that we recognize the
change in circumstances which has occurred
subsequent to the administrative hearings
in this case. See City of Tulsa v.
Chamblee, 106 P.2d 796 (Okla.
1940)(Generally, in exercising appellate
jurisdiction a Court confines its
investigation of facts to record before it
as presented when appeal was perfected,
but it may in proper cases take cognizance
of facts arising during pendency of appeal
where such facts bear directly on question
presented on appeal.)
"While we recognize that a reviewing
court should recognize changes occurring
subsequent to trial proceedings only in
the rarest of circumstances, we believe
that the case before us presents such a
circumstance. In our view, the real
parties in interest in this case are the
pregnant, nursing, and postpartum women,
and the infants and children in the
affected neighborhoods. We take judicial
notice that West Louisville, the area at
issue, is an economically depressed area
and that many citizens of the area must
rely upon walking as a primary means of
transportation. Under these circumstances,
a local full-service WIC grocery outlet is
crucial to the success of the
program."
|
2004-CA-001201
PUBLISHED
Date: 9/30/2005
HUDDLESTON - PJ
AFFIRMING
|
ROBERTS
V. FAYETTE COUNTY BOARD OF EDUCATION
EMPLOYMENT LAW- Summary Judgment
William Roberts appeals from
a summary judgment granted to the Fayette
County Board of Education. Roberts had
filed suit alleging that the Board
violated Kentucky Revised Statutes (KRS)
161.100 when it failed to employ him, a
qualified special education teacher, and
instead hired emergency certified
teachers. COA found that Roberts had
failed to provide any material facts to
support his contention that the Board
violated KRS 161.100 when it hired the
uncertified teacher.
In its opinion and order granting summary
judgment, the circuit court held that
Roberts had failed to state a claim under
KRS 161.100 because there was sufficient
documentation for the superintendent to
determine that Roberts was “unsuitable
for appointment” pursuant to 16 KAR
2:120 and therefore not a qualified
teacher pursuant to KRS 161.100.
Alternatively, the court also found that
the board was immune from claims such as
Roberts’ under the doctrine of
governmental immunity. This appeal
followed. We are hampered in our review of
this case by the incompleteness of the
record. Both parties make references to
exhibits that were attached to Roberts’
deposition, but these exhibits are not in
the record provided to this Court. It is
the duty of the appellant to see that the
record is complete on appeal. To the
extent that the record is incomplete, the
reviewing court must presume that the
omitted portions support the summary
judgment.
We turn first to the question of whether
the Board is protected by the doctrine of
governmental immunity. Although we agree
with the circuit court that the Board
enjoys immunity for its governmental
functions under the holding in Yanero v.
Davis, we note that the Supreme Court was
careful in that case to discuss
governmental immunity specifically in the
context of “limiting the imposition of
tort liability on a government agency.”
Roberts has aptly pointed out that his
claim for injunctive relief, directing the
Board to comply with the statute, sounds
in equity rather than in tort. We note
also that the doctrine of governmental
immunity was not invoked in a recent,
factually-similar case from the Supreme
Court.
Roberts argues that the genuine issue of
material fact which should have barred the
grant of the motion for summary judgment
is whether he was unsuitable for
employment in the District. Roberts
acknowledges that the superintendent may
determine that a certified teacher is not
“qualified” pursuant to 16 KAR 2:120.
He nonetheless argues that the Board never
informed him he was “unsuitable” and
that this term was only used after he made
his allegation that the Board had acted in
violation of KRS 161.100. Roberts contends
that the evidence establishes that there
is a genuine issue of material fact
regarding his qualifications. He points
out that the investigation into the
student complaints did not lead to
disciplinary action against him. He warns
that if complaints by students were
sufficient to disqualify certified
teachers from further employment, every
teacher in the district could be subject
to dismissal. In his view, a jury should
have been permitted to determine whether
he was unsuitable for appointment.
Roberts has provided no evidence, however,
to suggest that the superintendent abused
her discretion in determining that he was
not a qualified candidate, nor that the
Board violated KRS 161.100 by implementing
her recommendations. “[A] party opposing
a properly supported summary judgment
motion cannot defeat that motion without
presenting at least some affirmative
evidence demonstrating that there is a
genuine issue of material fact requiring
trial.”
Because Roberts has failed to provide any
material facts to support his contention
that the Board violated KRS 161.100, and
because his status in relation to the
Board does not implicate any
constitutional concerns, or entitle him to
any statutory relief, the judgment is
affirmed.
|
2004-CA-000988
PUBLISHED
Date: 9/30/2005
BUCKINGHAM - PJ
AFFIRMING
|
SHOWN
V. SHOWN
FAMILY LAW - Marital Property (Retirement
Accounts)
Teresa Gail Shown appeals from orders
of the Ohio Circuit Court in a divorce
action determining that Robert Todd
Shown’s Kentucky Teachers’ Retirement
System (KTRS) account is exempt from
division as marital property pursuant to
KRS 161.700. She argueD that the exemption
provided in that statute is limited
pursuant to the 1996 amendment of KRS
403.190(4). COA disagreed and thus
affirmed.
Robert’s KTRS account was valued as of
June 30, 2003, at $81,410.27. Teresa had a
Fidelity SEP-IRA valued as of December 31,
2003, at $1,895.97. Robert argued to the
circuit court that his KTRS account was
exempt pursuant to KRS 161.700. Teresa
argued that only the portion of Robert’s
account up to the amount of her IRA was
excepted from division as marital
property. Teresa relied on the 1996
amendment to KRS 403.190(4), but the court
concluded that KRS 161.700 controlled.
Thus, the court determined that Robert’s
KTRS account was exempt from division as
marital property, and it awarded the value
of the entire account to him. It is also
awarded Teresa’s SEP-IRA account to her
as her separate property.
In response to the inequitable result in
the Turner case, in 1996 the legislature
amended KRS 403.190(4). In pertinent part,
the amendment stated, “[h]owever, the
level of exception provided to the spouse
with the greater retirement benefit shall
not exceed the level of exception provided
to the other spouse.” The fact situation
before this court is opposite from that in
the Turner case. Here, the value of the
teachers’ retirement fund is much
greater than that of the party with the
nonexempt fund. There is no published
opinion in this state addressing this fact
situation. Thus, this is a case of first
impression for Kentucky courts.
There is a conflict between KRS 161.700(2)
and KRS 403.190(4). The former statute
deals specifically with the treatment of
retirement funds accrued under the KTRS
during divorce proceedings. The latter
statute deals generally with the treatment
of retirement funds in divorce proceedings
when one spouse’s fund is exempted.
There is a conflict between KRS 161.700(2)
and KRS 403.190(4). The former statute
deals specifically with the treatment of
retirement funds accrued under the KTRS
during divorce proceedings. The latter
statute deals generally with the treatment
of retirement funds in divorce proceedings
when one spouse’s fund is exempted.
Under the plain meaning of KRS 161.700(2),
benefits accrued under the KTRS “shall
not be classified as marital property
pursuant to KRS 403.190(1).” In other
words, such benefits are exempt from
division as marital property in divorce
proceedings. See Waggoner v. Waggoner, 846
S.W.2d 704, 708 (Ky. 1992). However, under
KRS 403.190(4) “the level of exception
provided to the spouse with the greater
retirement benefit shall not exceed the
level of exception provided to the other
spouse.”
The conflict between the two statutes is
obvious. KRS 161.700(2) is more specific
than KRS 403.190(4). Therefore, under the
general rule of statutory construction
that requires that the specific provision
take precedence over the general
provision, KRS 161.700(2) controls. See
Phon, 17 S.W.3d at 107. In short, the
circuit court did not err in determining
that Robert’s teachers’ retirement
account is fully exempt from division as
marital property.
|
2005-CA-000529
PUBLISHED
Date: 9/30/2005
BUCKINGHAM - PJ
AFFIRMING |
RANCK
V. GRAY
WORKERS COMP - Independent Contract;
Burden of Proof and Risk
David Ranck filed a workers
compensation claim for injuries sustained
as a painter when he fell of the roof.
The two issues in this case are whether
Ranck was an employee or an independent
contractor of Brian Gray and whether
the ALJ’s decision must be vacated and
the matter remanded for a new hearing or
proceedings because the ALJ that rendered
the initial decision was not available to
rule on Ranck’s petition for
reconsideration. COA decided both issues
adversely to Ranck, and thus affirmed.
Ranck filed a claim for benefits against
Gray, but because Gray did not have
workers’ compensation insurance
coverage, the Uninsured Employers’ Fund
was made a party to the
case. The Fund claimed that Ranck was
employed by Sulier, not Gray, and Sulier
was made a party. Sulier likewise did not
have workers’ compensation insurance
coverage.
In Ratliff v. Redmon, 396 S.W.2d 320 (Ky.
1965), the court noted factors that must
be considered before determining whether
one acted as an employee or an independent
contractor.
Those factors are: (1) the extent of
control which, by the agreement, the
master may exercise over the details of
the work; (2) whether or not the one
employed is engaged in a distinct
occupation or business; (3) the kind of
occupation, with reference to whether, in
the locality, the work is usually done
under the direction of the employer or by
a specialist without supervision; (4) the
skill required in the particular
occupation; (5) whether the employer or
the workman supplies the
instrumentalities, tools, and the place of
work for the person doing the work; (6)
the length of time for which the person is
employed; (7) the method of payment,
whether by the time or by the job; (8)
whether or not the work is a part of the
regular business of the employer; and (9)
whether or not the parties believe they
are creating the relationship of master
and servant. Id. at 324-25.
In Chambers v. Wooten’s IGA Foodliner,
436 S.W.2d 265 (Ky. 1969), the court
stated that the predominant factors from
those listed above concern “the nature
of the work as related to the business
generally carried on by the alleged
employer, the extent of control exercised
by the alleged employer, the professional
skill of the alleged employee, and the
true intentions of the parties.” Id. at
266.
Ultimately, the ALJ determined that Ranck
was an independent contractor based on the
minimal control exercised by Gray over
Ranck, the fact that the relationship
between Ranck and Gray was to last for
only the length of this particular job,
and the intention of the parties
concerning their relationship.
Concerning the extent of Gray’s control
over Ranck, the ALJ noted that Ranck
painted according to his own schedule
rather than a schedule imposed by Gray.
Further, the ALJ noted Ranck’s testimony
that Gray was not always on the job site
and that he was glad Gray would not be
around over the weekend so that he could
get the job finished without Gray’s
interference. Concerning the length of
time for which Ranck was employed, both
Gray and Ranck testified that Ranck would
be working only until he finished staining
the roof. While it was true that Gray and
Ranck had discussed Ranck becoming an
employee of a business Gray worked for as
a crew leader painting new construction
houses, that enterprise was separate from
this project.
Concerning the intent of the parties as to
whether their relationship was one of
employer/employee or independent
contractor, the ALJ stated that
“Ranck’s belief that he was an
employee was unrealistic” in the absence
of an indication of an ongoing
relationship or an indication from Gray
that Ranck needed to provide information
for tax withholding purposes.
In addition, the claimant bears the burden
of proof and risk in a claim.
|
| NOT-PUBLISHED
DECISIONS - COURT OF APPEALS - 9/30/2005 |
2004-CA-001765
NOT PUBLISHED
Date: 9/30/2005
|
McLENDON
V. MORGAN
APPEALS - Preserving appeal and affording
lower court opportunity to rule |
2004-CA-000937
NOT PUBLISHED
Date: 9/30/2005
|
HARROD
V. BUTLER & ASSOCIATES, P.S.C.
CIVIL PROCEDURE - Evidence (Error using
affidavits as substantive evidence) |
2003-CA-001446
NOT PUBLISHED
Date: 9/30/2005
|
EMERY
WORLDWIDE V. AAF-MCQUAY, INC.
CONTRACTS - Interpretation
Court of Appeals rejected Emery's
argument that federal law and not state
law controlled the interpretation of the
Waybill by operation of the Airline
Deregulation Act (ADA - 49 U.S.C.
41713(b)(4)(A)). ADA did not preempt
the breach of contract claim and it must
be interpreted per state law.
|
2004-CA-001737
NOT PUBLISHED
Date: 9/30/2005
|
COOPER V. COM.
CRIMINAL - Burglary 3rd Degree
CA affirmed Defendant's
conviction and 6 year probated sentence
for Burglary - 3rd Degree in Jefferson
Circuit Court. Appellant argues
that he did not "enter or remain
unlawfully in" the Gymboree as
required under KRS 511.040(1).
Appellant claims that KRS 511.090(3)
does not apply because the store room
was open to the public.
Kentucky Revised Statute
511.040(a) states that "A person is
guilty of burglary in the third degree
when, with the intent to commit a crime,
he knowingly enters or remains
unlawfully in a building." We
believe the courts which have found that
an individual can burglarize a portion
of a public building are more in sync
with Kentucky’s statutes. We believe
the General Assembly specifically
enacted KRS 511.090(3) to deal with this
exact situation. Therefore, we believe
Appellant was properly charged with
burglary in the third degree. The
moment Appellant took items not
belonging to him from the rear storage
room, his license to be at the premises
would have terminated. Therefore,
Appellant could have properly been
charged with burglary in the third
degree even if we designated the
rear store room as being open to the
public.
|
2005-CA-000374
NOT PUBLISHED
Date: 9/30/2005
|
BARNARD V. COM.
CRIMINAL - CR 60.02
CA affirmed Jefferson
Circuit Judge Martin McDonald's order
denying pro se Defendant's CR
60.02(f) motion asking that his
nearly seventeen year-old judgment and
sentence be vacated and remanded for
discharge, resentencing, or a new trial. Defendant
alleged that testimonial
inconsistencies amounted to perjury
which ultimately affected the
introduction of evidence and statements
obtained while he was detained. Barnard
has failed to meet the dual burden under
CR 60.02(f) of establishing 1) that
perjured testimony was introduced
against him, and 2) that without the
perjured testimony the outcome would
have been different. CA found no
abuse of discretion by the circuit court
in denying the motion as 1) an improper
attempt to relitigate; 2) not affecting
the outcome; and 3) not brought within a
reasonable time. Furthermore, there was
no abuse of discretion in failing to
hold an evidentiary hearing or
appointing counsel.
|
2005-CA-000389
NOT PUBLISHED
Date: 9/30/2005
|
HOWELL V. COM.
CRIMINAL - Post-conviction Discovery
Following the Defendant's
sex offense convictions and the
denial of his post-trial motions for
relief, CA affirmed Circuit Court's
order denying Defendant's motion for a
free copy of emergency room records and
DNA tests performed on him and the
children. Discovery in connection with a
postconviction proceeding is not
required by either the state or federal
Constitution. Sanders v.
Commonwealth, 89 S.W.3d 380, 394
(Ky. 2002). As such, the
expenditure of public funds for the
discovery requested by Howell is not
proper.
|
2004-CA-002623
NOT PUBLISHED
Date: 9/30/2005
|
MOOR
V. KENTUCKY UNEMPLOYMENT COMM.
EMPLOYMENT - Unemployment Benefits |
2004-CA-000276
NOT PUBLISHED
Date: 9/30/2005
|
WILSON
V. WILSON
FAMILY LAW - Military Retirement
(Maintenance; Property; Modification)
This opinion addressed the parties
agreement to divide military pay under the
Poe formula but contained a provision in
the agreement to adjust maintenance upon
the soldier's retirement and receipt of
veteran's disability benefits. The
court held that Mansell did not prohibit
the parties from agreeing divide the
property so long as it was not
unconscionable.
The COA also considered the father's
objection to the commissioner's report
that his maintenance should be reduced
since his income was less now that he
retired should have been considered as a
motion to reduce child support based upon
change in circumstances.
Comment. Might want to consider
publishing this one.
|
2004-CA-001239
NOT PUBLISHED
Date: 9/30/2005
|
ENGLE
V. LENINGTON
FAMILY LAW - Separation Agreement not
ambiguous
Held family court erroneously categorized
separation agreement with term of
"net present value" and
reversed. Error to admit parol
evidence.
|
2004-CA-001370
NOT PUBLISHED
Date: 9/30/2005
|
HATTON
V. HATTON
FAMILY LAW -
Maintenance Award Reviewed
Maintenance
award is matter of judge's discretion and
will not be reversed unless abuse of
discretion.
|
2004-CA-001450
NOT PUBLISHED
Date: 9/30/2005
|
LANE
V. LANE
FAMILY LAW - Support Guidelines
(in excess of guidelines)
Judge's
discretion as to amount of child support
to award amount when
combined parents' income exceeds uppermost
guidelines.
|
2004-CA-002144
NOT PUBLISHED
Date: 9/30/2005
|
YOUNG
V. YOUNG
FAMILY LAW - Failure to make findings of
fact
|
2005-CA-000235
NOT PUBLISHED
Date: 9/30/2005
|
STRATTON
V. STRATTON
FAMILY LAW - Child Support (In Prison)
Suspension of child support solely for
incarceration is improper.
|
2004-CA-002541
NOT PUBLISHED
Date: 9/30/2005
|
HILLS
V. RICHEY
FAMILY LAW - Paternity
Man claimed to be father of child born
to mother while married to another.
In fact, this was his third
petition. Lost again. Affirmed
trial court. Evidence shown from the
date of birth etc. that it was not
possible for Hills to have been the
father. In addition, KRS 406.011 provides a presumption of legitimacy for a child born during lawful wedlock, or within ten months thereafter, as this child unquestionably was.
The burden to overcome that presumption is extremely high.
|
2005-CA-000641
NOT PUBLISHED
Date: 9/30/2005
|
COM.
V. M.R.
FAMILY LAW - Appellate Review of
Findings of Trial Court
As stated in R.C.R. v. Commonwealth Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky.App. 1998), "when the testimony is conflicting we may not substitute our decision for the judgment of the trial court," citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967).
|
2004-CA-001011
NOT PUBLISHED
Date: 9/30/2005
|
BUSH
V. MERRILL LYNCH
RES JUDICATA - Mutuality of obligation not
required; Non-mutual collateral estoppel |
2004-CA-002304
NOT PUBLISHED
Date: 9/30/2005
|
THE
NORMAN CLAY MARTIN PRESENT INTEREST TRUST
V. STOCK YARDS BANK
WILL, TRUSTS & PROBATE - Trust
Administration of Assets
Affirmed summary judgment in favor of
bank dismissing trusts claims for breach
of fiduciary duty and wrongful conversions
of assets. Trust agreement provided
for banks administration of trust assets
when corpus dropped below a certain
level.
|
2004-CA-001363
NOT PUBLISHED
Date: 9/30/2005
|
BAKER
V. SHAMROCK COAL CO.
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power.
|
2004-CA-000040
NOT PUBLISHED
Date: 9/30/2005
|
TURLEY
V. PEABODY COAL CO.
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power.
|
2004-CA-000041
NOT PUBLISHED
Date: 9/30/2005
|
STEVENS
V. PEABODY COAL CO.
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power.
|
2004-CA-000105
NOT PUBLISHED
Date: 9/30/2005
|
GORDON
V. PEABODY COAL CO.
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power.
|
2004-CA-000141
NOT PUBLISHED
Date: 9/30/2005
|
SMITH
V. PRESSLEY TRUCKING CO.
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power.
|
2005-CA-000720
NOT PUBLISHED
Date: 9/30/2005
|
SMITH
V. LEXINGTON FAYETTE URBAN COUNTY
GOVERNMENT
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power. |
2005-CA-001076
NOT PUBLISHED
Date: 9/30/2005
|
SOLIS
V. MONTGOMERY AUTOMOTIVE DEALERSHIP
WORKERS COMP - Post-Hunter V. Bartrum
and Xray Readings
The Board put into
effect regulations that implemented the
Hunter Excavating v. Bartrum decision,
which held that the limitations on numbers
of x-ray readings allowed to rebut a
consensus decision by a panel of experts
were invalid as. These are being
remanded for implementation of those
regulations, if the actions taken in the
case followed the regulations which were
held to be beyond the commissioner's
power. |
2004-CA-001780
NOT PUBLISHED
Date: 9/30/2005
|
WEBB
V. CITY OF NEWPORT
ZONING - Blighted Neighborhood (KRS
99.340(2))
Webb and others (“Appellants”) filed suit in federal court against the City of Newport, its mayor and members of the City Council challenging a city ordinance that declared the Cote Brilliante neighborhood as “blighted” pursuant to KRS 99.340(2). A determination that Cote Brilliante was blighted allowed the city to exercise eminent domain over the neighborhood and purchase Appellants’ homes. The federal court granted summary judgment to the defendants on the federal claims and dismissed the state law claims without prejudice. The Appellants refiled the state and federal claims in Campbell Circuit Court. The Campbell Circuit Court granted summary judgment to the defendants.
On appeal, the Appellants argued that Newport failed to provide sufficient evidence for declaring the area blighted. The evidence used to prove blighting included testimony from homeowners in the neighborhood that their properties suffered from flooding, land slippage, broken sewer lines, cracked walls and other structural damages. There was also evidence of e. coli bacteria in a local creek. Appellants claimed that this evidence did not meet all the requirements for declaring an area blighted. The court disagreed, holding that the plain language of KRS 99.340(2) allowed a finding of blight to be based on “any combination” of the conditions set forth in the statute. Any decision declaring an area blighted is legislative and thus cannot be overturned without a finding that the City Council acted arbitrarily, which Appellants did not prove.
Appellants also claimed that Newport failed to comply with certain conditions set forth in KRS 99.370 when adopting a development plan. They claimed that they did not receive notice of the meeting on the city’s proposed action or where maps and plats would be located for public inspection. The court first noted that KRS 99.370(3) specifically states that proceedings are not invalid because of lack of notice to any owner. The court also stated that Appellants attended at least two meetings where they and their counsel were heard, and the maps and plats were available to Appellants at Newport’s city offices and were reviewed by Appellants.
Appellants also claimed that Newport put forth insufficient evidence to support a finding that the neighborhood had a shortage of sound housing. They argued that evidence of structural defects and “problematic” housing was vague. The court disagreed, finding that the testimony of the homeowners and the results of a study by a planning firm supported the City Council’s decision.
Finally, Appellants claimed that the finding by Newport that the blight in the neighborhood contributed to increased crime and disease was unsupported by the evidence. The court stated that the testimony that broken sewer lines allowed sewage to seep into creeks and that over 150 calls were made to the police in the last eighteen months supported Newport’s finding, and the fact that there was no study showing an increase in crime rate did not make the decision arbitrary.
|
