Answers In Genesis of Kentucky, Inc.APPELLANTS/PLAINTIFFS

vs.

Boone County, Kentucky; Boone

County Fiscal Court; Larry S.

Burcham, in his official capacity

as County Judge Executive and a

Member of the Boone County

Fiscal Court; Irene Patrick, Shirley

Meihaus and Harold L. Campbell, in

their official capacities as Boone

County Commissioners and Members

of the Boone County Fiscal Court;

And Appeal and Complaint

The Boone County Planning Com-

Mission; and Bob Millay, Arnold Caddell,

Barry Neltner, Earl White, Phil Damstrom,

William R. Viox, Judy Arnett, Michael

McKinney, Bob Newman, Ralph Rush,

Linda Schaffer, Carol Smith, Donald McMillan,

Mark Hicks and Robert Ries, in their official

capacities as Members of the Boone County

Planning Commission

And

Fred D. Riedinger Company

Serve:Joseph E. Kathman, President

50 Park Road

Fort Wright, Kentucky 41011

And

JEROME B. HOFFMAN and

BARBARA HOFFMAN, his wife

Serve:1706 Fort Henry Drive

Fort Wright, Kentucky 41011

And

JOSEPH E. KATHMAN and

MARY CAROL KATHMAN, his wife

Serve: 447 General Drive

Fort Wright, Kentucky 41011

Post, Buckley, Schuh And

Jernigan, Inc.

Serve: Managing Officer

1895 Airport Exchange Blvd.

Suite 234

Erlanger, Kentucky 41018APPELLEES/DEFENDANTS

Comes now Answers in Genesis of Kentucky, Inc, a Kentucky non-profit corporation (“AiG”), the Appellant/Plaintiff herein, and for their Appeal and Complaint from the action of the Boone County Fiscal Court regarding a zoning map amendment application, states as follows:

Parties and Jurisdiction

  1. AiG is a business entity duly authorized and licensed to do business in the Commonwealth of Kentucky with its principle place of business being located at 7080 Industrial Road, Florence, Kentucky 41042. AiG is a non-profit tax-exempt 501(c)(3) evangelical ministry organization that seeks to educate Christians to defend the authority and literal accuracy of the Bible from the very first verse in Genesis.
  2. The Defendants/Appellees, Boone County, Kentucky; and Boone County Fiscal Court; and Larry S. Burcham, Irene Patrick, Shirley Meihaus and Harold L. Campbell, the individual members thereof, is the legislative body of Boone County, Kentucky and is made a party of this Appeal pursuant to KRS 100.347(3), as the legislative body from whose final action the Plaintiffs/Appellants claim to be injured or aggrieved. (All references herein to the “Fiscal Court” shall collectively include the Fiscal Court of Boone County, its individual members, and the County of Boone, Kentucky.)
  3. The Boone County Planning Commission, and Bob Millay, Arnold Caddell, Barry Neltner, Earl White, Phil Damstrom, William R. Viox, Judy Arnett, Michael McKinney, Bob Newman, Ralph Rush, Linda Schaffer, Carol Smith, Donald McMillan, Mark Hicks and Robert Ries (hereinafter collectively the “Planning Commission”) are a joint planning unit which conducts combined planning operations pursuant to KRS 100.121 for Boone County and the cities of Florence, Union and Walton.
  4. Fred D. Riedinger Company, a Kentucky corporation, Jerome B. Hoffman and Barbara Hoffman, and Joseph E. Kathman and Mary Carol Kathman, (hereinafter collectively referred to as the “Owners”) are the current legal title owner of the subject property. The Owners are made a party to this action pursuant to KRS 100.347(4) in that it is the fee simple titleholder to the real estate, which is the subject matter of this Appeal and Complaint.
  5. Post, Buckley, Schuh and Jernigan, Inc. (hereafter “PBS&J”) is an engineering firm operating at 1895 Airport Exchange Boulevard, Suite 234, Erlanger, Kentucky 41018. PJS&J represented AiG throughout the zone change process, and identified throughout as the “Applicant” for AiG; therefore, PBS&J is made a party to this action pursuant to KRS 100.347(4).
  6. AiG filed with the Planning Commission a zoning map amendment application wherein AiG requested a zoning map amendment from Rural Suburban Estates (RSE) to Industrial-One (I-1) for approximately 47.215 acres of real estate (the “Subject Property”) lying and being generally along I-275 near the Petersburg/Route 8 exit, accessed via Bullitsburg Church Road off Kentucky Highway 8 at Deck Lane, within the unincorporated areas of Boone County, Kentucky, and owned by the Owners.
  7. Pursuant to formal action of the Planning Commission, a recommendation of disapproval of AiG’s application was submitted to the Fiscal Court. The Planning Commission voted 9 to 5 to recommend denial of AiG’s zone change request upon the basis of findings contained in a minority report of its Zone Change Committee entitled “Committee Report”, but approved by only one member of the Committee, dated September 16, 1998 (hereinafter the “Minority Report”), a copy of which is attached hereto as Exhibit A.
  8. The Fiscal Court took final action on AiG’s application on or about November 10, 1998 adopting a resolution approving the recommendation of the Planning Commission (hereinafter the “Resolution”). The Fiscal Court adopted the findings of the Planning Commission as its basis for its denial of the zone change application.
  9. It is the adverse action by the Fiscal Court on the application of AiG from which this Appeal is made.
  10. This Appeal is made pursuant to KRS 100.347.
  11. In this Appeal and Complaint, AiG seeks the following relief from this Court:
    1. An Order and Judgment overturning the Resolution of the Fiscal Court, which denies AiG’s zone change application, and the basis that the Resolution is contrary to law as follows:
      1. The Resolution is based upon the Minority Report which is contradictory to, and not in compliance with, the criteria of the 1995 Boone County Comprehensive Plan: A Vision for the Year 2020 (hereinafter the “Comprehensive Plan”);
      2. The Resolution infringes upon the free exercise of religion rights of AiG afforded by the First Amendment;
      3. The Resolution is based upon the Minority Report, which is contradictory to and not supported by substantial evidence submitted to the Planning Commission;
      4. The Resolution is based upon arbitrary and capricious decision-making and thus violates the due process rights of AiG;
      5. The Resolution is based upon a defective judicial process tainted with violations of standards dictated by the procedural due process rights of AiG, as the party seeking a zone change;
      6. The Resolution infringes upon the free speech rights of AiG afforded by the First Amendment.
    2. A Judgment awarding to AiG sums necessary to compensate for losses, expenses and damages suffered as a result of the unlawful acts of the Fiscal Court and the Planning Commission, including loss of use of the subject property, losses suffered by AiG as a result of the restraints on its constitutionally protected freedoms, expenses incurred throughout the zoning and appeal process, and attorneys fees as provided in law.

Factual Allegations

  1. AiG is an evangelical Christian organization propounding a belief that the Creation and Flood accounts contained in Genesis should be taken literally, (i.e., world created in six days, the great flood and Noah’s ark, etc.), and that scientists and others who profess the theory of evolution are contrary to Christian beliefs and to scientific and historical records. To carry on its educational and evangelical mission, AiG has developed and collected a large body of literature, audio and videotapes, and other educational and promotional materials, and distributes them all over the world. AiG has developed or collected a large collection of museum-quality display pieces designed to further AiG’s educational mission.
  2. AiG currently operates out of various facilities in Northern Kentucky. AiG is desirous of constructing a headquarters facility in Boone County in which it will operate. The headquarters will contain its warehouse/distribution center for publications, its offices, and a museum/educational facility to display the dinosaurs and other mammals and conduct educational programs in classrooms and an outdoor amphitheater and trails.
  3. In 1996, AiG filed an application to change the zoning on a tract of land along U.S. 42 in Boone County, Kentucky, upon which it desired to construct its headquarters.
  4. The Planning Commission conducted a public hearing. At the public hearing, many individuals spoke in opposition.
  5. AiG has been the subject of much criticism and hostility as a result of its philosophical and theological position because:
    1. The AiG organization propounds a belief and philosophy that is viewed as offensive by members of certain religious organizations and others based on their specific belief systems.
    2. The principles of AiG were considered by some contrary and incompatible with the world-renowned archaeological findings from the Big Bone Lick State Park facility located in Boone County, Kentucky.
  6. The Planning Commission recommended approval of the 1996 zone change application filed by AiG.
  7. The Fiscal Court overrode the recommendation of the Planning Commission and voted to deny the zone change request.
  8. After the denial of AiG’s 1996 zone change request, but still desiring to locate its headquarters into Boone County, Kentucky, AiG communicated with various county governmental and zoning officials about the zoning requirements for its headquarters.
  9. Through a series of correspondence, the Planning Commission staff determined that the appropriate uses proposed by AiG required land within the Industrial One (I-1) zoning district contained in the Boone County Zoning Regulations.
  10. The I-1 zoning district principally permits education institutions, printing operations and offices. In addition, the I-1 zone allows accessory uses, incidental to principal use, as follows: monuments and other exhibits available public viewing, auditoriums, exhibition halls, other public and miscellaneous assembly, and recreation uses, including trails.
  11. The I-1 zoning district of the Boone County Zoning Regulations is the appropriate zone within which the intended uses of AiG exist, including the following:
    1. Their office headquarters, employing approximately fifty individuals in an office setting;
    2. A warehouse to store and distribute materials and publications;
    3. A museum display area for the models of dinosaurs and other mammals;
    4. Classrooms and other educational facilities;
  12. In light of the foregoing, AiG proceeded to canvass Boone County for land that was appropriate for I-1 uses and activities.
  13. In May, 1995, the Planning Commission adopted the Comprehensive Plan, providing for the statutorily-required comprehensive planning for Boone County to serve as the underlying basis and purpose for its Boone County Zoning Regulations.
  14. The Comprehensive Plan identifies an area along I-275 near the Petersburg exit to be an industrial zone, which area includes the 47.215-acre tract, which is the subject of this appeal.
  15. The 47.215-acre tract uniquely suits the needs and desires of AiG as a location to establish its headquarters.
  16. AiG entered into an option contract to purchase the subject parcel from the Owners.
  17. Thereupon, AiG filed its application with the Planning Commission to change the zoning on the site to I-1 pursuant to the terms of the Comprehensive Plan. The Planning Commission conducted a public hearing in which it sought input from the applicant and others. Thereafter, the Planning Commission referred the matter to its Zone Change Committee.
  18. The professional staff of the Planning Commission recommended the approval of the zone change request for which AiG applied.
  19. The Zone Change Committee of the Boone County Planning Commission recommended approval of the zone change request for which AiG applied. See Committee Report attached hereto as Exhibit B.
  20. The Zone Change Committee’s favorable recommendation contained, however, several conditions upon which it would recommend that the Commission place before granting the zone change. Certain of these conditions are excessive, unfair, arbitrary and capricious, and constitute an unconstitutional taking without just compensation.
  21. Notwithstanding the favorable recommendations of both the staff of the Planning Commission and the Zone Change Committee of the Planning Commission, the Planning Commission itself rejected both recommendations and voted by a vote of 9 to 5 to recommend denial of the zone change request and adoption of the Minority Report.
  22. Upon information and belief, certain members of the Planning Commission received inappropriate and ex parte information outside the public hearing process upon which they relied in making their votes.
  23. The Fiscal Court failed or refused to conduct its own independent public hearing to do fact finding on the issue.
  24. On or about November 10, 1998, the Fiscal Court voted to adopt a resolution adopting the recommendation of the Planning Commission, thus denying AiG the zone change for which it had applied.
  25. The Fiscal Court received and considered certain information outside the public hearing process upon which their votes were based.

The Boone County Comprehensive Plan

  1. The “future land use map” of the Comprehensive Plan designates the overall site proposed for “industrial” purposes. AiG’s zone change request employs the “industrial” designation.
  2. The land use element of the Comprehensive Plan (Area B-2 “Idlewild Area”, page 215) states: “Development in this area should not be accompanied by major sanitary sewer facilities that could commit the Idlewild area to develop.” AiG will fulfill the elements of the Comprehensive Plan.AiG proposes to use an on-site sanitary disposal system, thus the construction of a sanitary sewer system that would commit the Idlewild area at large to development is not part of this proposal, in conformance with the Comprehensive Plan.
  3. The goals and objectives of the Boone County Comprehensive Plan state that “Industrial development shall be encouraged to locate near railroad lines, highways, the Ohio river, the airport and on airport-owned land…” (business activity, industrial objective 1).
  4. The AiG proposed I-1 development is located near the Petersburg/I-275 interchange and is physically adjacent to, and visible from I-275, all of which is in compliance with the Comprehensive Plan.
  5. The land use element of the Comprehensive Plan (Area B-2 “Idlewild Area”, page 215) states that the Idlewild interchange of I-275 should see “slow, highway related, commercial growth” on the southern half of the interchange, which may support some level of commercial highway service establishments if casino gambling comes to Lawrenceburg, Indiana, and to serve the potential western Boone County tourism area.
  6. The proposed AiG development is highway-related growth at the Idlewild interchange as envisioned by the Comprehensive Plan. The AiG development is on the southern half of the interchange. The AiG development includes a museum/educational facility that will provide some tourism to this western Boone County area, all in compliance with the language in the Comprehensive Plan.
  7. The foregoing statements indicating that the proposed AiG development is in compliance with the Comprehensive Plan are supported by the Committee Report of the Zone Change Committee of the Planning Commission, who issued their report on or about September 16, 1998, a copy of which is attached hereto as Exhibit B.
  8. The foregoing statements concluding that the AiG development is in compliance with the Comprehensive Plan are also in compliance with the Staff Report issued by the staff of the Planning Commission.
  9. In an effort to seek justification for denying the AiG application, certain members of the Planning Commission demanded that the Planning Commission staff draft a proposed report that would justify a denial of the AiG zone change request despite the fact that the staff and the Zone Change Committee had already recommended in favor thereof.
  10. Pursuant thereto, the staff of the Planning Commission drafted a document entitled a “Committee Report” (previously referred to as the “Minority Report”), a copy of which is attached hereto as Exhibit A; however, this “Committee Report” is not truly such because it was not adopted by any committee of the Planning Commission. Rather, the information in the report was used solely as a basis for making a motion to deny the zone change.
  11. The “Minority Report” misinterprets the Comprehensive Plan, is violative of the Comprehensive Plan and the Boone County Zoning Regulations, and is the result of unconstitutional and unlawful proceedings by the Planning Commission.
  12. The Minority Report is clear evidence of the arbitrary nature of the action taken by the Planning Commission and Fiscal Court, in that it takes plain language from the Comprehensive Plan and warps the interpretation thereof to justify a finding contrary to the true nature and intent of the Comprehensive Plan.
  13. The Minority Report (Exhibit A) and the actual Committee Report (Exhibit B) take diametrically opposing views of the same language in the Comprehensive Plan. If the Comprehensive Plan is so vague as to allow diametrically opposed interpretations, then it is unconstitutionally vague, and thus arbitrary.
  14. The Minority Report suggests that the zone change denial could be justified because of lack of adequate infrastructure, as follows:

    “A.”The Goals and Objectives (“Overall” Objective #4, pg. 4) state that “future growth shall be accompanied by adequate infrastructure and services. Existing infrastructure and services shall be maintained or improved as needed.” The Committee has concluded that the zone change request is not in agreement with this objective because the proposal involves a 95,000 square foot, office and educational multi-use facility that is capable of generating up to approximately 2,600 vehicular trips a day according to the applicant’s traffic study, and that will rely exclusively on private, on-site domestic water and waste water treatment systems. It is the conclusion of the Committee that such private, on-site systems should not be endorsed or encouraged for large, intensive facilities such as the one proposed based on the Comprehensive Plan.

    Although the Land Use Element (“Area B-2, Idlewild Area,” pg. 215) states “development in this area should not be accompanied by major sanitary sewer facilities that could commit the Idlewild area to development,” this statement does not indicate that public water and sanitary sewer services should not be provided for the Petersburg interchange area itself, but rather that sanitary sewer facilities should not be “major.” This interchange area is largely planned for Commercial uses, with some peripheral Industrial uses, which could be served with public water and sanitary sewer services that would link to the area on the north side of I-275 that is anticipated to experience residential growth; this future infrastructure could be extended to serve the planned Commercial and Industrial uses at the interchange area itself without committing the Idlewild area at large to development with major sanitary sewer improvements. Based on these provisions of the Comprehensive Plan, the Committee has concluded that the area is not yet ready for the planned Industrial uses because the necessary infrastructure is not in place and will not be in place in the immediate future.

    The projected Industrial land use classification is a twenty five year projection and is appropriate when the necessary public infrastructure is available. This conclusion is supported by the fact that there has been only a small amount of residential development which has occurred near the Petersburg interchange during the last decade.”

  15. However, the Minority Report is fallacious for the following reasons:

    1. The Minority Report cites to a general provision in the Goals and Objectives section of the Comprehensive Plan which is directly contrary to a more specific language in the Land Use Element of the Comprehensive Plan wherein the Plan provides for this specific area that development should not be accompanied by major sanitary sewer facilities because it could promote a growth of development in the area in excess of what is anticipated and planned by the County;
    2. The clear language of the Comprehensive Plan proscribes development in the area that does not accompany major infrastructure improvements;
    3. Private, on-site waste water treatment systems are permitted by local ordinance and are employed by many users, including large community public schools, that are larger than AiG.
    4. Kentucky Highway 8 and Bullittsburg Church Road are both underutilized and are categorized as Level A roads capable of handling traffic generated by AiG;
    5. “Domestic” (or city) water supply is not required by local ordinance and AiG supplied information to assure that more than adequate water is available to the site through use of lake water, wells and cisterns, supplemented by water haulers, as necessary.
    6. While infrastructure may be needed for other proposed uses at the Petersburg/I-275 interchange, no infrastructure is required for the AiG development.
    7. While the Comprehensive Plan envisions growth over 25 years, nothing prevents the current development of the subject property as AiG proposed to fulfill the terms of the Comprehensive Plan for the area in the present time.
  16. The Minority Report suggests that the zone change request could be denied because the proposed uses represent a “leap-frogging” of development across the vacant commercial land immediately adjacent thereto, as follows:
  17. “B.The Goals and Objectives (“Business Activity” Industrial Objective #1, pg. 7) state that “industrial development shall be encouraged to locate near railroad lines, highways, the Ohio River, the Airport and on Airport owned land. Industrial districts shall be properly located in advance and thereby lessen any detrimental impact on future adjacent development.” The Committee has concluded that the proposed zone change is not in agreement with this object because the proposed industrial uses represent a “leap frogging” across vacant Commercial land (zoned C-3, planned on the Future Land Use Map as “Commercial”) from the Petersburg interchange itself. The proposal would create an isolated “island” of relatively intensive development which is separated from the Petersburg interchange itself, and would be surrounded by low intensity, low impact, land uses.”

    The Comprehensive Plan does not support such a conclusion. Rather, the site in question has a half mile of visible immediate adjacency to I-275, and access from I-275 is achieved by less than one mile of highway that is already adequate for a development of this kind, and already passes existing industrial uses that exist only a few hundred feet from the proposed AiG development.

  18. The Minority Report finds that the Petersburg/I-275 interchange is not likely to experience commercial growth in the near future, as follows:
  19. “C.The Business Activity Element (“Areas of Future Commercial Activity,” pg. 83) states, in part, “the Petersburg/Idlewild Interchange area at KY 8 and I-275 is not likely to experience significant commercial growth in the near future. Eventually, it may support some commercial highway service establishments, especially if casino gambling occurs in Lawrenceburg, Indiana.” This provision reinforces the conclusions noted under sections 1.A and 1.B above regarding the timing of development in the Petersburg interchange area and the “leap frogging” of development away from the interchange itself.”

    AiG responds that the quoted language of the Comprehensive Plan does not support the conclusion made, and does not apply to the subject property specifically. The subject property is in the industrial area of the map, not the commercial area. This industrial site can develop ahead of later commercial growth and fulfill the Plan by not bringing major infrastructure to cause faster commercial growth than planned.

  20. The Minority Report suggests that the AiG zone change request can be denied because the proposal contains office uses, which the report indicates to be contrary to the industrial designation on the Comprehensive Plan land use map, as follows:
  21. “D.The Future Land Use Map designates the area of the site proposed for active land uses as “Industrial.” The Comprehensive Plan describes the Industrial land use classification as “manufacturing, wholesale, warehousing, distribution, assembly, mining, and terminal uses.” This classification does not include office land uses and the request includes a substantive office component, as the proposed development would house an office headquarters. Various types of office land uses are specifically mentioned in the Comprehensive Plan for the Commercial and Business Park designations, including corporate and professional office, office warehouse, and “office” uses.”

    However, such a conclusion is directly contradictory to the Comprehensive Plan and the Boone County Zoning Regulations. Virtually all industrial development contains some element of office uses. Moreover, the Boone County Zoning Regulations provide that office uses are a “principally permitted use” within the Industrial-1 Zone. No rational interpretation of the Comprehensive Plan can logically exclude an element of office use from a proposed industrial development. To conclude such a finding is arbitrary and capricious.

  22. The Minority Report concludes that the proposed industrial use is not in conformance with the Comprehensive Plan, and that the current residential zoning classification is the appropriate use for this particular site, as follows:
  23. “2.The Committee has not found that the existing zoning classification is inappropriate and that the proposed zoning classification is appropriate, or that there have been major changes of an economic, physical, or social nature not anticipated in the 1995 Boone County Comprehensive Plan that substantially alter the area’s character, and the applicant has offered no facts to support either of these alternate findings.

    To the contrary, however, the land use map contained in the 1995 Boone County Comprehensive Plan clearly identifies the AiG parcel for industrial development, not residential development. Further, the proposed AiG development site has a half mile of visibility from I-275, is immediately adjacent to I-275, and contains a 250’ cell tower and access easement, rendering it inappropriate for residential development and growth.

  24. This Court should find that the Fiscal Court’s resolution adopting the Minority Report is an arbitrary and capricious act of misinterpretation and misuse of the Comprehensive Plan and unconstitutional exercise of the police power to implement zoning.

Count I-Appeal

  1. The decision of the Fiscal Court is contrary to the laws and provisions of the Kentucky Revised Statutes, Chapter 100, and the Boone County Zoning Ordinance and Comprehensive Plan.
  2. The decision of the Fiscal Court in denying AiG’s zone change application is arbitrary and as such constitutes an abuse of the Fiscal Court’s delegated powers.
  3. The action of the Fiscal Court in denying AiG’s zone change application bears no reasonable relation to the promotion of the public health, safety and general welfare of the residents of Boone County, Kentucky.
  4. The decision of the Fiscal Court in denying the zone change request of AiG was not based upon substantial evidence presented and/or addressed at any public hearing. At the public hearing before the Planning Commission, AiG submitted extensive proof, all of which was admitted in the record of the public hearing, which clearly and convincingly demonstrated that:
    1. The application and requested zone change amendment was consistent with and in agreement with the currently adopted Comprehensive Plan;
    2. that the AiG use is compatible with the “industrial” land use classification dictated by the Comprehensive Plan;
    3. That AiG’s development can occur without bringing major infrastructure to an area that could spurn excessive growth.
    4. That the existing zoning classification given to the property was inappropriate and that the proposed zoning amendment classification was appropriate; and
    5. That the decision of the Fiscal Court in denying the AiG zone change request was based upon conjecture, speculation and subjective criteria rather than factual and valid zoning elements and objective criteria as required by the Comprehensive Plan, the Boone County Zoning Ordinance, Kentucky Revised Statutes, the Kentucky Constitution, and the United States Constitution. Consequently, the actions of the Fiscal Court constitute an unconstitutional denial of due process and an unconstitutional denial of property rights of AiG.

Count II-First Amendment-Free Exercise of Religion

  1. The following Counts constitute a civil rights action brought pursuant to the First, Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. ÛÛ1983 and 1988. This action challenges the constitutionality of the denial of AiG’s zone change request by the Fiscal Court and Planning Commission.
  2. AiG is entitled to First Amendment protection as a religious institution, entitled to free exercise of its practices and beliefs. AiG intends to use the proposed development for the purpose of furthering their First Amendment rights of free exercise of religion.
  3. The decision of the Planning Commission and the Fiscal Court to deny the zone change request were based substantially or significantly upon hostility to the religious message which AiG espouses in an attempt to suppress, hinder or interfere with the free expression of that message.
  4. In denying the zone change, the Planning Commission and the Fiscal Court violated the First Amendment rights of AiG and its members under color of state law, and therefore constitute actions of the state within the meaning of the Fourteenth Amendment to the United States Constitution.
  5. AiG’s free exercise rights outweigh the public considerations propounded by the Fiscal Court and the Planning Commission.
  6. That AiG is entitled to reversal of the Resolution of the Fiscal Court and compensation for the losses, expenses and damages suffered by it as a result of the unconstitutional denial of the requested zone change, as violative of the First Amendment free exercise rights of AiG.

Count III-First Amendment-Projected Speech

  1. AiG incorporates by reference all of the foregoing statements and allegations as if fully rewritten herein.
  2. AiG seeks to acquire the subject property to use for activities in furtherance of its purpose to publish and communicate its teachings and ideas.
  3. AiG is limited and restricted in its ability to propagate its message unless it has proper facilities adequate to house its staff, warehouse its products and conduct its educational activities.
  4. AiG has been denied the opportunity to acquire and construct the necessary facilities because of the denial by the Fiscal Court of zoning for a site to which it is rightfully entitled to zoning for its use.
  5. Propagation of its message is an activity protected by the First Amendment right of free speech.
  6. AiG’s right of free speech has been unreasonably, arbitrarily and unconstitutionally hindered and restricted by the Fiscal Court’s refusal to grant a zone change on the subject property, such as to allow AiG to construct the facilities necessary to conduct its protected rights.
  7. The Fiscal Court’s actions violated the rights of AiG as protected by the First Amendment of the United States Constitution under color of state law, and therefore constitute actions of the state within the meaning of the Fourteenth Amendment to the United States Constitution.
  8. AiG is entitled to reversal of the Resolution of the Fiscal Court and compensation for the losses, expenses and damages suffered by it as a result of the unconstitutional denial of the requested zone change, as violative of the First Amendment free speech rights of AiG.

Count IV-Fifth Amendment Taking

  1. AiG incorporates by reference all of the foregoing statements and allegations as if fully rewritten herein.
  2. In the process of considering the zone change requested by AiG, the Planning Commission sought to subject AiG to certain conditions in the event that the zone change request was approved.
  3. The conditions at issue upon which the Planning Commission sought to impose upon the zone change are as follows:
    1. AiG was required to limit its industrial zone change request to a 25.167-acre industrial area of the Subject Property consisting of 47.215 acres, such as provide a buffer from adjacent residential uses consisting of the remaining 22.048 acre residential area.
    2. AiG was prohibited from using its industrial property for outdoor nature classrooms and trail facilities.
    3. AiG was prohibited from using the remaining 22.048-acre residential area for uses that would be accessory to, related to, or an expansion of, the uses permitted in the I-1 zone, such as outdoor recreational uses, assembly areas, parking, etc.
    4. In the 22.048-acre residential area, the current zoning (Rural Suburban Estates-RSE) was to remain, but AiG was to prohibited from using that land for uses otherwise permitted by other owners of land zoned RSE as follows: “Recreation defined in this district to be playgrounds, open space parks, hiking areas and trails, bikeway systems, and picnicking areas.”
    5. Further prohibited in the residential area were to be the following permitted accessory uses otherwise permitted by other owners of land zones RSE as follows: “2. Signage (according to Article 34); 3. Parking (according to Article 33); 4. Temporary buildings incidental to construction; 5. Accessory dwelling unit; 6. Family day care.”
    6. AiG was to be prohibited from the following conditional uses otherwise available to be requested by owners of land zoned RSE as follows: “1. Country clubs, clubhouses, lodges and similar places of assembly or entertainment-including the operation of eating and drinking establishments with alcoholic beverages (Site Plan Review required); 3. Nursery and day care centers (Site Plan Review required); 4. Churches, synagogues, temples and other places of religious assembly for worship (Site Plan Review required); 6. Duplex dwelling units; 7. Unlighted athletic fields.”
  4. By intent and design, the Planning Commission imposed conditions calculated to prevent AiG from using the 22.048-acre portion of the subject property for all uses that are of the type that AiG would employ.
  5. The conditions imposed by the Planning Commission render the 22.048-ccre parcel unusable and valueless.
  6. The conditions imposed by the Planning Commission are unreasonable restrictions on AiG’s use of the 22.048-acre residential area.
  7. The Planning Commission appropriated no funds to compensate AiG for the denial of the uses of the land to which it was imposing upon AiG.
  8. The Fifth Amendment of the United States Constitution prohibits the taking of private property rights without just compensation.
  9. The zoning conditions imposed by the Planning Commission represent an unconstitutional taking of private property rights without just compensation, done under color of state law, and therefore constitute actions of the state within the meaning of the Fourteenth Amendment to the United States Constitution
  10. AiG demands the elimination or nullification of the unconstitutional conditions, or compensation to justly provide for the losses, expenses and damages suffered by AiG as a result of the taking represented by the unconstitutional conditions.

Count V-Procedural Due Process

  1. AiG incorporates by reference all of the foregoing statements and allegations as if fully rewritten herein.
  2. The zone change process employed by both the Planning Commission and the Fiscal Court is a judicial or quasi-judicial function and activity.
  3. Judicial functions dictate a fairness requirement that prohibits the commissioners from engaging in ex parte communications outside the hearing room, and from considering any evidence not introduced into the record.
  4. Upon information and belief, the Planning Commission members and Fiscal Court members engaged in prohibited communications, and received “evidence” outside of the formal hearing process.
  5. The ex parte communication was considered by the individuals involved, and impacted upon the decision-making process, tainting the process, and rendering the consideration of the AiG application an unlawful proceeding.
  6. Wherefore, AiG demands as follows:

    1. An Order and Judgment reversing the Resolution of the Fiscal Court and order the change of the zoning on the subject property to the Industrial One zoning classification;
    2. An Order and Judgment eliminating and nullifying the unconstitutional conditions imposed upon AiG by the Planning Commission;
    3. A Judgment against the Fiscal Court and Planning Commission in an amount in excess of the minimal jurisdiction amounts for this Court to compensate AiG for the losses, expenses and damages suffered as a result of the unconstitutional denial of the requested zone change and unconstitutional taking of property with just compensation;
    4. A Judgment pursuant to 42 U.S.C. Û1988 in an amount to be proven at trial for attorneys fees, interest and court costs incurred by AiG in this action;
    5. Expedited docket consideration such as to minimize and abbreviate the damaging effects of the zone change denial;
    6. Trial by Jury on all issues so triable;
    7. For all other just and legal relief to which it may appear entitled.

Respectfully submitted,

TIMOTHY B. THEISSEN

Strauss & Troy, L.P.A.

Suite 1400

50 East RiverCenter Boulevard

Covington, Kentucky 41011

(513) 621-8900

and

CHRISTOPHER P. FINNEY

Finney, Bacon & Stagnaro Co., LPA

2623 Erie Avenue, P.O. Box 8804

Cincinnati, Ohio 45208

(513) 533-2996

CO-COUNSEL FOR THE PLAINTIFF/

APPELLANT, ANSWERS IN GENESIS

OF KENTUCKY, INC.

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