atty tsna v loumetro 2014 complaint

No. __________________________ JEFFERSON CIRCUIT COURT

DIVISION _________________

TUCKER STATION NEIGHBORHOOD ASSOCIATION, INC. PLAINTIFFS2406 Tucker Station RoadLouisville, KY 40299

EILEEN and DAVID KAELIN2421 Tucker Station RoadLouisville, KY 40299

PATTIE B. and THOMAS M. READ12903 Rehl RoadLouisville, KY 402099

JANET A. and WALLACE WAYNE BACKMAN12901 Rehl RoadLouisville, KY 40299

RITA and JOHN HAYES12905 Rehl RoadLouisville, KY 40299

SYLVIA F. and GREGG A. ROGERS13003 Rehl RoadLouisville, KY 40299

JANICE and PAUL SMITH13004 Rehl RoadLouisville, KY 40299

DORIS A. and JOHN R. FOSTER13010 Rehl RoadLouisville, KY 40299

MARTHA and CHESLEY F. WHEELER12904 Rehl RoadLouisville, KY 40299

CYNTHIA J. and DOUGLAS A. WEAVER2208 Tucker Station RoadLouisville, KY 40299

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FRANCES APRILE15404 Taylorsville RoadFisherville, KY 40023

CATHY and MIKE FARMER15100 Old Taylorsville RoadFisherville, KY 40023

FLOYDS FORK ENVIRONMENTAL ASSOCIATION INC.P.O. Box 91041Louisville, KY 40291

WOLF PEN PRESERVATION ASSOCIATION, INC.P.O. Box 45Harrods Creek, KY 40027

OPEN LOUISVILLE, INC.2406 Tucker Station RoadLouisville, KY 40299

NEIGHBORHOOD PLANNING AND PRESERVATION, INC.129 Bellaire AvenueLouisville, KY 40206

v. COMPLAINT

LOUISVILLE/JEFFERSON COUNTY DEFENDANTSMETRO GOVERNMENT 527 West Jefferson StreetLouisville, KY 40202

Serve: Greg Fischer, Mayor527 West Jefferson StreetLouisville, KY 40202

MAYOR GREG FISCHERMayor, Louisville/Jefferson CountyMetro Government527 West Jefferson StreetLouisville, KY 40202

THE LEGISLATIVE COUNCIL OF LOUISVILLE/JEFFERSON COUNTYMETRO GOVERNMENT601 West Jefferson StreetLouisville, KY 40202

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Serve: Jim King, President601 West Jefferson StreetLouisville, KY 40202

LOUISVILLE AND METRO PLANNING COMMISSION444 South Fifth Street, Suite 300Louisville, KY 40202

Serve: Donnie Blake, Chair444 South Fifth Street, Suite 300Louisville, KY 40202

HOSTS DEVELOPMENT, LLCP.O. Box 7368Louisville, KY 40257

Serve: John P. Hollenbach11001 Bluegrass Parkway, Suite 270Louisville, KY 40299

GREGORY OAKLEYP.O. Box 7368Louisville, KY 40257

GREG OAKLEY / JOHN HOLLENBACHP.O. Box 7368 Louisville, KY 40259

SETZER PROPERTIES ZELO, LLC858 Contract St.Lexington, KY 40505

Serve: Brett T. Setzer858 Contract St.Lexington, KY 40505

BRETT SETZER858 Contract StreetLexington, KY 40505

* * * * * * *

Come the Plaintiffs by counsel, and, for their Complaint, state as follows:

PARTIES

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1. The Tucker Station Neighborhood Association, Inc. (hereinafter TSNA) is

an organization of residents and property owners who live and/or own property in the

area known as the Tucker Station neighborhood of Louisville Metro.

2. Eileen and David Kaelin are Louisville Metro residents and property

owners who live at 2421 Tucker Station Road in the Tucker Station neighborhood.

3. Pattie B. and Thomas M. Read are Louisville Metro residents and

property owners who live at 12903 Rehl Road in the Tucker Station neighborhood.

4. Janet A. and Wallace Wayne Backman are Louisville Metro residents and


5. Rita and John Hayes are Louisville Metro residents and property owners

who live at 12905 Rehl Road in the Tucker Station neighborhood.

6. Sylvia F. and Gregg A. Rogers are Louisville Metro residents and property

owners who live at 13003 Rehl Road in the Tucker Station neighborhood.

7. Janice and Paul Smith are Louisville Metro residents and


8. Doris A. and John R. Foster are Louisville Metro residents and property

owners who live at 13010 Rehl Road in the Tucker Station neighborhood.

9. Martha and Chesley F. Wheeler are Louisville Metro residents and


10. Cynthia J. and Douglas A. Weaver are Louisville Metro residents and

property owners who live at 2208 Tucker Station Road in the Tucker Station

neighborhood.

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11. Frances Aprile is a Louisville Metro resident and property owner who

lives at 15404 Taylorsville Road in the Fisherville neighborhood.

12. Cathy and Mike Farmer are Louisville Metro residents and property

owners who live at 15100 Old Taylorsville Road in the Fisherville neighborhood.

13. The Floyds Fork Environmental Association Inc. (hereinafter FFEA) is a

Kentucky non-profit corporation dedicated to protecting and preserving Floyds Fork and

its watershed and to responsible, legitimate planning and zoning decisions. FFEA worked

for passage of the original legislation which limited development interests to four

members of the Planning Commission, leading to the current KRS 100.137(2).

14. Wolf Pen Preservation Association, Inc. (hereinafter WPPA) is a

Kentucky non-profit corporation dedicated to preserving the Wolf Pen branch

neighborhood and other similar neighborhoods and to responsible, legitimate planning

and zoning decisions.

15. OPEN Louisville, Inc. (hereinafter OPEN) is a Kentucky non-profit

corporation dedicated to open government, historic preservation, protection of the

environment and neighborhood preservation and to responsible, legitimate planning and

zoning decisions.

16. Neighborhood Planning and Preservation, Inc. (hereinafter NPP) is a

Kentucky non-profit corporation dedicated to preserving neighborhoods and to

responsible, legitimate planning and zoning decisions.

17. Louisville/Jefferson County Metro Government (hereinafter Louisville

Metro) is the consolidated local government agency for all of Jefferson County,

Kentucky.

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18. Mayor Greg Fischer is the mayor and chief executive officer of

Louisville/Jefferson County Metro Government.

19. The Legislative Council of Louisville/Jefferson County Metro

Government (hereinafter Metro Council) is the legislative body for Louisville/Jefferson

County Metro Government.

20. Louisville and Metro Planning Commission (hereinafter Planning

Commission) is the designated planning commission for Louisville Metro under KRS

Chapter 100 and Louisville Metro Ordinance 32.840.

21. HOSTS Development, LLC is the owner of real property which is the

subject of two detailed district development plan applications to the Planning

Commission in Case Number 14DevPlan1000 and Case Number 14DevPlan1004. It is

also the applicant company in Case Number 14DevPlan1004.

22. Gregory Oakley is listed as the Owner and Applicant for Case Number

14DevPlan1004 to the Planning Commission.

23. Greg Oakley/John Hollenbach are listed as the Owner for Case Number

14DevPlan1000 to the Planning Commission.

24. Setzer Properties ZELO, LLC is listed as the Applicant Company for Case

Number 14DevPlan1000 to the Planning Commission.

25. Brett Setzer is listed as the Applicant for Case Number 14DevPlan1000 to

the Planning Commission.

JURSIDICTION AND VENUE

26. This Court has proper jurisdiction and venue of Plaintiffs’ claims, which

involve the following:

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a. The conduct of Defendants Louisville Metro, Mayor Greg Fischer and

the Metro Council in Jefferson County in violation of Kentucky law

and Louisville Metro ordinances,

b. Pursuant to KRS 100.347(2) because the Plaintiffs are claiming to be

injured and aggrieved by a final action of the Planning Commission in

Application for Detailed District Development Plan Case Number

14DevPlan1000, and

c. Pursuant to KRS 100.347(2) because the Plaintiffs are claiming to be

injured and aggrieved by a final action of the Planning Commission in

Application for Detailed District Development Plan Case Number

14DevPlan1004.

CAUSES OF ACTION

COUNT ONE

27. KRS 100.137(2) provides that Louisville Metro “shall have a planning

commission which shall include eight (8) members who are residents of the planning

unit, approved by the mayor.” In addition, the Mayor or his designee and either the

director of public works or the county engineer shall be members.

28. KRS 100.137(2) further provides that: “The mayor shall ensure that four

(4) of the appointees are citizens who have no direct financial interest in the land

development and construction industry.”

29. Louisville Ordinance 32.840 provides that the eight members of the

Planning Commission shall be appointed by the mayor and shall be “subject to the

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approval of the Metro Council”.

30. KRS 67C.139(1) provides that: “Appointments made by the mayor should

reflect the diversity of the population within the jurisdiction of the consolidated local

government.”

31. The eight appointed members of the Planning Commission on March 6,

2014, were: a) Donnie Blake, b) Tawana Hughes, c) Vincent Jarboe, d) Robert Peterson,

Jr., e) David Proffitt, f) David R. Tomes, g) Clifford Turner, and h) Lloyd “Chip” White.

32. All appointed members were appointed by Mayor Greg Fischer and

approved by the Metro Council.

33. Seven of the appointed members are male, all except Tawana Hughes.

34. Donnie Blake has a direct financial interest in the land development and

construction industry. Donnie Blake is President of Okolona Pest Control, Inc., which is a

member of the Building Industry Association of Greater Louisville (hereinafter

BIALouisville). Mr. Blake is also a part owner, a director, the registered agent, and past

president of OPC Construction & Repair, Inc. a corporation owned by Mr. Blake and

members of his family. OPC Construction & Repair, Inc. is essentially a subsidiary of

Okolona Pest Control, Inc., advertises remodeling, room additions, finishing basements,

kitchens and bathrooms and more construction items, and is also a member of the

BIALouisville.

35. Tawana Hughes has a direct financial interest in the land development and

construction industry. Tawana Hughes lists herself as a “residential contractor” and is the

sole member, organizer and registered agent of Tawana Hughes Builder, LLC, which

does new home construction and remodeling. She is also a member of BIALouisville.

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36. Robert Peterson, Jr. has a direct financial interest in the land development

and construction industry. Robert Peterson, Jr. has been a homebuilder and remodeler for

39 years. He is owner and president of Robert A. Peterson, Jr. Co., Inc., and is a

registered builder/remodeler with BIALouisville. He was the 1991 president of

Homebuilders Association of Louisville, the predecessor of BIALouisville.

37. David Proffitt has a direct financial interest in the land development and

construction industry. David Proffitt is a Senior Architect, employed by the University of

Louisville Planning Design and Construction Department. In such employment, he

manages and coordinates the construction and renovation of the University of

Louisville’s capital construction and renovation projects.

38. David R. Tomes has a direct financial interest in the land development and

construction industry. David R. Tomes is engaged in land development management for

Traditional Town, LLC, a real estate development company which manages Norton

Commons, LLC. He is involved at times in other real estate development activities and is

a registered builder with BIALouisville.

39. Clifford Turner has a direct financial interest in the land development and

construction industry. Clifford Turner is owner and president of Land Development

Services, Inc. and owner and president of Turner Realty and Management, Inc. Clifford

Turner has his present home in Oldham County.

40. Lloyd “Chip” White has a direct financial interest in the land development

and construction industry. Mr. White is employed as a staff representative and contract

administrator for the Indiana/Kentucky/Ohio Regional Council of Carpenters, an affiliate

of the United Brotherhood of Carpenters, which has a “century-plus tradition of

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representing the best of the building trades.”

41. Vincent Jarboe may or may not have a direct financial interest in the land

development and construction industry. Mr. Jarboe is the owner of Vince Jarboe

Insurance Agency, Inc., an affiliate of State Farm Insurance. His business may or may not

receive income from the land development and construction industry. He is also a

member and registered agent for Jarboe Properties, LLC, which may or may not be

involved in the land development and construction industry.

42. At least seven of the eight appointed members of the Planning

Commission, appointed by Mayor Greg Fischer and approved by the Metro Council, have

a direct financial interest in the land development and construction industry, which is a

direct violation of KRS 100.137(2).

43. Planning Commission member Clifford Turner presently resides in

Oldham County, not in Jefferson County, which is a direct violation of KRS 100.137(2).

44. Only one of the eight appointed members of the Planning Commission is a

female, a direct violation of KRS 67C.139(1).

45. The Planning Commission is illegally constituted according to Kentucky

law and was illegally constituted on March 6, 2014. Therefore, it is and was unable to

perform its statutory duties as provided by law.

46. All actions taken by the Planning Commission on March 6, 2014, are null

and void.

47. Because of the illegal constitution of the Planning Commission caused by

Mayor Greg Fischer and the Metro Council, all of the Plaintiffs have been injured and

aggrieved in the following ways:

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a. The illegal constitution of the Planning Commission causes the

Commission to have a bias, overt or subconscious, in favor of any

proposed action by an applicant or developer, resulting in decisions

not made with the unbiased attitude intended by Kentucky law and

intended by any good planning process,

b. The Plaintiffs have been denied due process before the Planning

Commission, which is quasi-judicial in nature and which requires due

process in all its proceedings, and

c. The Plaintiffs who own and reside in property which is nearby or on a

traffic route for ingress and egress to the property, could sustain

permanent injury to their property and property values if the

development approval is allowed to remain.

COUNT TWO

48. On January 6, 2014, an application for a detailed district development plan

for a FedEx distribution center on 45.922 acres of land on Plantside Drive in

Blankenbaker Station II was made to the Planning Commission by applicant Brett Setzer

of Setzer Properties ZELO LLC, which land is owned by HOSTS Development LLC,

represented by Greg Oakley and John Hollenbach. This application was designated as

Case Number 14DevPlan1000.

49. There are six residentially zoned and used properties which abut this

property. Those properties are owned by the Plaintiffs Eileen and David Kaelin, Pattie B.

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and Thomas M. Read, Janet A. and Wallace Wayne Backman, Rita and John Hayes and

Sylvia F. and Gregg A. Rogers, and by Julie and David Meredith.

50. On March 6, 2014, the Planning Commission held a public hearing on

Case Number 14DevPlan1000.

51. This hearing was held by and in front of an illegitimate Planning

Commission.

52. Any decision or final action made by the illegitimate Planning

Commission is null and void.

53. The public is entitled to a public hearing before a legally constituted

Planning Commission. Because of the illegal constitution of the Planning Commission on

March 6, 2014, Plaintiffs were denied due process at the hearing.

54. This plan violates Goal G2, Community Form Strategy, of the Cornerstone

2020 Comprehensive Plan for Louisville and Jefferson County (hereinafter Cornerstone

2020).

55. This plan violates Objective G2.2, Community Form Strategy, of

Cornerstone 2020.


Cornerstone 2020.


Cornerstone 2020.


Cornerstone 2020.

59. This Plan violates Objective D.2.1, Marketplace Strategy, of Cornerstone

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2020.

60. This plan violates Goal B.2, Livability Strategy, of Cornerstone 2020.


62. This plan violates Goal F.1, Livability Strategy, of Cornerstone 2020.


64. This plan violates Objective H.2.1, Livability Strategy, of Cornerstone

2020.


2020.

66. This plan violates Guideline 1 of Plan Element A of Cornerstone 2020.

67. This plan violates Guideline 1.B.10 of Plan Element A of Cornerstone

2020.

68. This plan violates Guideline 3.A of Plan Element A of Cornerstone 2020,

especially, but not limited to, Numbers 1, 6, 7, 8, 9, 24 and 29.

69. This plan violates Guideline 7 of Plan Element C of Cornerstone 2020.

70. This plan violates Guideline 8.A.3 of Plan Element C of Cornerstone

2020.

71. This plan violates Guideline 10 of Plan Element D of Cornerstone 2020,

especially, but not limited to, Guideline 10.A.1 and Guideline 10.A.12.

72. This plan violates Guideline 13 of Plan Element D of Cornerstone 2020,

especially, but not limited to, 13.A.3, 13.A.5 and 13.A.7.

73. This plan violates Section 2.6.3 of the Land Development Code for all of

Louisville-Jefferson County Kentucky (hereinafter LDC).

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74. This plan violates Section 4.1.6 of the LDC.

75. This plan violates Section 5.5.2.B.2 of the LDC.

76. This plan violates Section 5.5.2.A.1 of the LDC.

77. This plan violates other provisions of Cornerstone 2020 and the LDC.

78. At the March 6, 2014 hearing, the Planning Commission approved the

plan in Case Number 14DevPlan1000 by a vote of six in favor to one opposed.

79. The March 6, 2014 decision and vote by the Planning Commission was

erroneous, arbitrary and capricious for at least the following reasons:

a. Due process was denied because the Planning Commission was

illegally constituted, and

b. The Planning Commission disregarded and failed to enforce the

provisions of Cornerstone 2020 and the LDC in making its decision, as

required by law.

80. Because of the illegal constitution of the Planning Commission caused by

Mayor Greg Fischer and the Metro Council, and because of the erroneous, arbitrary and

capricious decision made by the Planning Commission without adequate evidence from

the public hearing, all of the Plaintiffs have been injured and aggrieved in the following

ways:



proposed action by an applicant or developer, resulting in decisions

not made with the unbiased attitude intended by Kentucky law and

intended by any good planning process,

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c. The Plaintiffs who own and reside in property which is nearby or on a

traffic route for ingress and egress to the property, could sustain

permanent injury to their property and property values if the

development approval is allowed to remain.

COUNT THREE

81. On January 13, 2014, an application for a detailed district development

plan for a distribution building and office/warehouse on 19.75 acres of land on Rehl Road

in Blankenbaker Station II was made to the Planning Commission by applicant and land

owner HOSTS Development LLC, represented by Gregory Oakley. This application was

designated as Case Number 14DevPlan1004.

82. There are numerous residentially zoned and used properties which abut

this property or are within one hundred feet of the property line of this property.

82. On March 6, 2014, the Planning Commission held a public hearing on Case

Number 14DevPlan1004.

83. This hearing was held by and in front of an illegitimate Planning

Commission.

84. Any decision or final action made by the illegitimate Planning

Commission is null and void.

85. The public is entitled to a public hearing before a legally constituted

Planning Commission. Because of the illegal constitution of the Planning Commission on

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March 6, 2014, Plaintiffs were denied due process at the hearing.

86. This plan violates Goal G2, Community Form Strategy, of the Cornerstone

2020 Comprehensive Plan for Louisville and Jefferson County (hereinafter Cornerstone

2020).


Cornerstone 2020.


Cornerstone 2020.


Cornerstone 2020.


Cornerstone 2020.

91. This Plan violates Objective D.2.1, Marketplace Strategy, of Cornerstone

2020.






2020.


2020.

98. This plan violates Guideline 1 of Plan Element A of Cornerstone 2020.

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99. This plan violates Guideline 1.B.10 of Plan Element A of Cornerstone

2020.

100. This plan violates Guideline 3.A of Plan Element A of Cornerstone

2020, especially, but not limited to, Numbers 1, 6, 7, 8, 9, 24 and 29.

101. This plan violates Guideline 7 of Plan Element C of Cornerstone

2020.

102. This plan violates Guideline 8.A.3 of Plan Element C of

Cornerstone 2020.

103. This plan violates Guideline 10 of Plan Element D of Cornerstone

2020, especially, but not limited to, Guideline 10.A.1 and Guideline 10.A.12.

104. This plan violates Guideline 13 of Plan Element D of Cornerstone

2020, especially, but not limited to, 13.A.3, 13.A.5 and 13.A.7.

105. This plan violates Section 2.6.3 of the Land Development Code for

all of Louisville-Jefferson County Kentucky (hereinafter LDC).

106. This plan violates Section 4.1.6 of the LDC.

107. This plan violates Section 5.5.2.B.2 of the LDC.

108. This plan violates Section 5.5.2.A.1 of the LDC.

109. This plan violates other provisions of Cornerstone 2020 and the

LDC.

110. At the March 6, 2014 hearing, the Planning Commission approved

the plan in Case Number 14DevPlan1004 by a vote of seven in favor to none opposed.

111. The March 6, 2014 decision and vote by the Planning Commission

was erroneous, arbitrary and capricious for at least the following reasons:

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a. Due process was denied because the Planning Commission was

illegally constituted, and

b. The Planning Commission disregarded and failed to enforce the

provisions of Cornerstone 2020 and the LDC in making its decision,

as required by law.

112. Because of the illegal constitution of the Planning Commission

caused by Mayor Greg Fischer and the Metro Council, and because of the erroneous,

arbitrary and capricious decision made by the Planning Commission without adequate

evidence from the public hearing, all of the Plaintiffs have been injured and aggrieved in

the following ways:



proposed action by an applicant or developer, resulting in decisions not

made with the unbiased attitude intended by Kentucky law and intended

by any good planning process,




c. The Plaintiffs who own and reside in property which is nearby or

on a traffic route for ingress and egress to the property, could sustain

permanent injury to their property and property values if the development

approval is allowed to remain.

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RELIEF

WHEREFORE, Plaintiffs respectfully demand the following relief:

1. That the Court declare the current composition of the Planning Commission

and the composition on March 6, 2014, as illegal under Kentucky state law,

2. That the Court order Mayor Greg Fischer and the Metro Council to change the

membership of the Planning Commission so that it complies with state law,

3. That the Court declare the decision of the Planning Commission on March 6,

2014, in Case Number 14DevPlan1000, null and void,

4. That the Court declare the decision of the Planning Commission on March 6,

2014, in Case Number 14DevPlan1004, null and void,

5. That the Court grant Plaintiffs a reasonable attorney’s fee and all costs

expended herein to be paid by the Defendants, and

6. All other proper relief to which the Plaintiffs may be entitled.

Respectfully Submitted,

Stephen T. PorterCounsel for Plaintiffs2406 Tucker Station RoadLouisville, KY [email protected]

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mailto:[email protected]

atty tsna v loumetro 2014 complaint

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