GS scores huge win for cell tower company

Goldberg Simpson attorneys Paul Whitty and Aaron Silletto have scored a big victory in the Kentucky Court of Appeals for our client, Pegasus Tower Company, LLC.

In Masonic Homes of Ky., Inc. v. Louisville Metro Planning Commission (rendered Feb. 8, 2013, and designated “To Be Published”), the Court of Appeals affirmed a decision of the Jefferson Circuit Court, which had upheld the decision of the Louisville Metro Planning Commission to approve Pegasus’s application to construct a 152.5-foot cell tower adjacent the Masonic Homes property on Frankfort Avenue. The hearing before the Planning Commission drew substantial opposition from area residents, and especially Masonic Homes. In a lengthy public hearing, Whitty presented exhaustive expert testimony regarding the need for the tower at that location, its visual impact, and its effect on area property values.

In appealing the Planning Commission’s approval to the Jefferson Circuit Court, Masonic Homes argued for the first time that the Planning Commission lost jurisdiction over Pegasus’s application to build the tower because Pegasus had reorganized from a corporation to a limited liability company under Virginia law and thus, it argued, no longer had standing as an entity actively engaged in the business of constructing cell phone towers to seek the Commission’s approval. Masonic Homes also argued that the Commission did not base its approval of Pegasus’s application on “substantial evidence.” The circuit court rejected these arguments and upheld the Planning Commission’s approval of Pegasus’s application.

The Court of Appeals affirmed the Jefferson Circuit Court, rejecting the appellant’s substantial evidence argument and holding that Masonic Homes had waived its standing/jurisdiction argument when it failed to raise the issue for the first time before the Planning Commission. The Court of Appeals designated its opinion for publication, meaning it can be used in future cases in the Kentucky courts as binding precedent, because it addressed this precise standing issue for the first time in an administrative hearing context. This same issue had previously been litigated extensively in Kentucky courts in the context of civil actions. The Court held that the same civil litigation rules requiring presentation of standing arguments to the trial court in a civil case also required presentation of such arguments before the administrative tribunal in an administrative law case.

The decision of the Court of Appeals now clears the way for construction of the cell tower, which will enhance cell phone reception in the Frankfort Avenue corridor in Louisville.

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