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BOONE CIRCUIT COURT
CASE NO. 99-CI-638


DAVID MERRELL, ET AL. PLAINTIFFS

VS.

ANSWERS IN GENESIS of KENTUCKY, INC., ET AL. DEFENDANTS


ANSWER & COUNTERCLAIM of ANSWERS IN GENESIS

Comes now the Defendant, Answers In Genesis of Kentucky, Inc. (hereinafter referred to as "AiG"), by and through counsel, and for its Answer to the Plaintiffs' "Notice of Appeal from Final Action of Boone County Fiscal Court and Complaint for Declaratory Judgment", states as follows:

ANSWER

1. The Plaintiffs' appeal and complaint should be dismissed for insufficiency of process.

2. The Plaintiffs' appeal and complaint should be dismissed for insufficiency of service of process.

3. The Plaintiffs' appeal and complaint should be dismissed for failure to state a claim upon which relief can be granted.

4. The portion of this action purporting to be a complaint is collateral to the appeal brought pursuant to KRS 100 and seeks the same or similar relief as the appeal, based on the same allegations, and such a collateral attack is not permissible under Kentucky law and must be dismissed.

5. AiG admits those allegations contained in paragraphs 4, 5, 7 and 8 of the Plaintiffs' appeal and complaint and denies all remaining allegations therein.

6. The Plaintiffs' appeal and complaint should be dismissed for lack of standing.

7. AiG denies that any unlawful meetings took place between representatives of AiG and members of the Boone County Fiscal Court; in the alternative, upon information and belief, meetings occurred between the Plaintiffs and other parties opposing the AiG development with members of the Boone County Fiscal Court, and thus, the Plaintiffs are estopped from interposing any appeal or objection to such meetings.

8. The zone change decision made by the Boone County Fiscal Court is supported by substantial, reliable and probative evidence, and is in compliance with the Boone County Comprehensive Plan.

9. The AiG development is served by adequate infrastructure and services.

10. AiG's proposed use is consistent with the industrial designation set forth in the Future Land Use Map of the Boone County Comprehensive Plan.

11. Plaintiffs have no interest in the subject real estate, and therefore, are not entitled to obtain a Declaration of Rights pursuant to KRS 418.045.

12. No actual controversy exists with respect to ownership of the subject property, and thus, the Plaintiffs are not entitled to maintain an action under KRS 418.045; a declaratory judgment suit is not a proper action to challenge a zoning request.

13. The Boone County Fiscal Court passed the ordinance granting the AiG zone change employing due and proper procedure, and the final vote of the Fiscal Court on the zone change was in compliance with all applicable laws.

14. The Public Facilities Zoning District of the Boone County Zoning Regulations is an appropriate classification for the AiG proposed uses.

15. The due process rights of the Plaintiffs were not violated in the manner in which the AiG application was approved by the Boone County Fiscal Court.

16. The Plaintiffs' appeal fails to allege any facts or circumstances that justify overturning the action of the Boone County Fiscal Court in granting the AiG zone change.

17. The zoning application of AiG was properly based and supported by the record and represents reasonable exercises of the zoning authority granted by the Boone County Fiscal Court as a matter of law.

18. The Plaintiffs' appeal fails to present a justiciable issue, case or controversey.

19. The action of the Boone County Fiscal Court in granting the AiG zone change complies with all applicable Kentucky and federal law, both statutory and constitutional, leaving Plaintiffs to no entitlement to any relief.

20. The Boone County Fiscal Court engaged in discretionary governmental authority which was properly exercised and performed.

21. The ordinance of the Boone County Fiscal Court granting the AiG zone change request properly implements the Boone County Comprehensive Plan.

22. To grant the relief sought by the Plaintiffs in this appeal, a Court would exceed and violate the separation of powers doctrine and the Kentucky Constitution.


COUNTERCLAIM

Comes now the Defendant, Answers In Genesis of Kentucky, Inc. (hereinafter referred to as "AiG"), by and through counsel, and makes the following Counterclaim against the Plaintiff, Jennifer Warner, personally and individually:

23. The appeal and Complaint of Plaintiff, Jennifer Warner, constitute an abuse of process, a misuse of civil proceedings and a tortious interference with the contract between AiG and the landowners.

24. The Plaintiff, Jennifer Warner, is motivated by an ulterior purpose in filing the appeal, and her appeal is a willful action in use of process not proper in the regular conduct of such a proceeding.

25. Jennifer Warner has repeatedly expressed publicly her strong hatred and dislike for the AiG organization and its employees and representatives. Jennifer Warner has made false and defamatory fabrications and allegations against AiG. Jennifer Warner has falsely accused AiG of being a cult. Jennifer Warner has falsely stated that AiG plans to install a package sewage treatment plant designed for only sixty (60) people. She has falsely accused AiG of repeatedly lying. She has falsely accused AiG of being dishonest. She falsely accuses this Christian organization of doing "non-Christ-like" things. She falsely alleged that AiG violated Australian law about investing contributors' funds. She has falsely stated that AiG breached a contract to purchase property of a friend of hers. She has compared AiG and its leaders to Adolph Hitler and Jim Jones. She alleges AiG to be dishonest and unethical. A primary purpose for the filing of this appeal by Plaintiff, Jennifer Warner, is her distaste and hatred for AiG.

26. Jennifer Warner has stated that a primary purpose of her opposition to AiG is her fear that in the event the AiG zone change is granted that it will lead to the zoning approval of a limestone mine in the vicinity of her property and the AiG property. The true purpose of this appeal is not to appeal the decision of the AiG development. The ulterior motive is to stop the limestone mine rezoning, and to litigate and publicize her opposition to the AiG organization.

27. AiG holds an option to acquire the subject property, and the exercise of the option is dependent upon the ultimate approval of its zoning. In the event that an appeal can be pursued long enough until the expiration of the option period, AiG could be prevented from acquiring the subject property.

28. Jennifer Warner is strongly opposing the development of limestone mining in the area of Boone County near her property. Jennifer Warner has stated that her opposition to the AiG development is geared towards her opposition to the limestone mining applications that have been filed with the Boone County Planning Commission.

29. Jennifer Warner has filed the appeal in this matter so that the AiG zone change is not final during the period when the limestone mining applications are considered by the Boone County Planning Commission and the Boone County Fiscal Court.

30. In filing this appeal, Jennifer Warner has an ulterior motive and purpose and is misusing these legal proceedings to pursue those purposes.

31. AiG has and will continue to incur additional expenses and costs as a result of the appeal by Jennifer Warner.

32. AiG will lose additional option fees in order to extend option periods during the defense of the appeal by Jennifer Warner.

33. AiG should be awarded punitive damages against Jennifer Warner for her intentional misuse of these legal proceedings.

34. The appeal by Jennifer Warner intentionally and improperly interferes with the performance of the contract between AiG and the current landowners of the subject property, preventing the closing on the sale of the subject property, due to the lack of finality to its zone change application. The appeal by Jennifer Warner intentionally and improperly interferes with the closing of the contract, causing AiG to incur additional expenses and burdens, including the cost of attorney's fees incurred in defending this action, for all of which AiG seeks compensation for its losses from the Plaintiff, Jennifer Warner.

35. AiG reserves the right to file counterclaims against the other Plaintiffs herein after it conducts discoveries into the related activities of said remaining Plaintiffs.


Wherefore, the Defendant, Answers in Genesis of Kentucky, Inc., demands as follows:

A. Dismissal of the Plaintiffs' appeal;

B. Dismissal of the Plaintiffs' declaratory judgment action;

C. Judgment against the Plaintiff, Jennifer Warner, for an amount in excess of the minimal jurisdictional amount of this Court, for compensatory and punitive suffered by Answers in Genesis of Kentucky, Inc. as a result of the wrongful use of the appeal proceedings by Jennifer Warner and for her intentional interference with the contract between Answers in Genesis of Kentucky, Inc. and the landowners of the subject property;

D. For recovery from the Plaintiffs of all costs and attorney's fees incurred by Answers In Genesis of Kentucky, Inc. in these proceedings;

E. For accelerated docket consideration of this zoning matter;

F. For all other 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 DEFENDANT/
APPELLEE, ANSWERS IN GENESIS
OF KENTUCKY, INC.

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served upon John Jay Fossett, Esq., Cors & Bassett, 1883 Dixie Highway, Suite 350, Fort Wright, Kentucky 41011; Larry J. Crigler, Esq., Boone County Attorney, 6024 Rogers Lane, P.O. Box 169, Burlington, Kentucky 41005; Thomas R. Nienaber, Esq., Busald, Funk & Zevely, P.S.C., 226 Main Street, P.O. Box 6910, Florence, Kentucky 41022-6910; Robert W. Carran, Esq., Taliaferro & Mehling, 1005 Madison Avenue, P.O. Box 468, Covington, Kentucky 41012-0468, by ordinary U.S. mail, this 8th day of July, 1999.

 

TIMOTHY B. THEISSEN

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