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COMMONWEALTH OF KENTUCKY
BOONE CIRCUIT COURT
CASE NO. 99-U-638
FILED JUNE 2, 1999

DAVID MERRELL and
SHEILA MERRELL
2829 Jordan Lane
Burlington, Kentucky 41005

AND

JENNIFER WARNER and
DAVID KISOR
2510 Stevens Road
Burlington, Kentucky 41005

AND

ETHICS IN GOVERNMENT,
an unincorporated association,
2510 Stevens Road
Burlington, Kentucky 41005

PLAINTIFFS-APPELLANTS

 

vs.

 

ANSWERS IN GENESIS OF KENTUCKY,
a Kentucky corporation
7080 Industrial Road
Florence, Kentucky 41042

 

SERVE: Statutory Agent:
Michael D. Zovath
7080 Industrial Road
Florence, Kentucky 41042

 

AND

 

BOONE COUNTY FISCAL COURT
Boone County Courthouse
Burlington, Kentucky 41005

 

SERVE: Judge-Executive Gary Moore
Boone County Judge-Executive's Office
Boone County Courthouse
Burlington, Kentucky 41005.

 

AND

 

ROBERT HAY,
individually and in his official capacity,
14 Shenandoah Drive
Florence, Kentucky 41042

 

AND,

 

FRED D. RIEDINGER COMPANY,
a Kentucky corporation,
50 Park Road
Fort Wright, Kentucky 41011

 

SERVE: Statutory Agent
Robert W. Carran
314 Greenup Street
Covington, Kentucky 41011

 

AND

 

JEROME B. HOFFMAN and
BARBARA A- HOFFMAN
1706 Fort Henry Drive
Fort Wright, Kentucky 41011

 

AND

 

JOSEPH E. KATHMAN and
M. CAROL KATHMAN
447 General Drive
Fort Wright, Kentucky 4 1011 DEFENDANTS-APPELLEES

 

 

NOTICE OF APPEAL
FROM FINAL ACTION OF BOONE COUNTY FISCAL COURT
AND COMPLAINT FOR DECLARATORY JUDGMENT

 

Come now plaintiffs-appellants, David and Sheila Merrell, Jennifer Warner, and Ethics in Government, and for their appeal and complaint in this action state as follows:

1. Plaintiff-appellant, David and Sheila Merrell, are the owners of a single-family residence and real property located at 2829 Jordan Lane, Burlington, Kentucky 41005, and they have been injured and aggrieved by the final action of the Boone County Fiscal Court in granting a map amendment to Answers in Genesis of Kentucky, Inc. for 47.215 acres along the east side of Deck Lane and Bullittsburg Church Road and along the south side of 1-275 in Boone County, Kentucky ("the subject property") from Rural Suburban Estates (RSE) to Public Facilities (PF) ("the zone change request" or "rezoning request').

2. Plaintiff-appellants, David Kisor and Jennifer Warner, husband and wife, own and operate First Farm Inn, a bed and breakfast located at 25 10 Stevens Road, Burlington, Kentucky 41005, and they have been injured and aggrieved by the final action of the Boone County Fiscal Court in granting the zone change request.

3. Plaintiff-appellant, Ethics in Government ("EIG"), is an unincorporated association of Boone County property owners, many of whom live near the subject property, who were and are opposed to the rezoning request and who seek to promote ethical conduct by government officials.

4. Defendant-appellee, Answers in Genesis of Kentucky, Inc. ("AIG"), at all times relevant to this action, is and was a Kentucky corporation with its principal office at 7080 Industrial Road, Florence, Kentucky 41042, and was the applicant who initiated the zone change request at the subject property.

5. Defendant-appellee, Boone County Fiscal Court ("Fiscal Court"), is the legislative body of Boone County, Kentucky, which has authority to regulate the zoning within the unincorporated area of the county, pursuant to Chapter 100 of the Kentucky Revised Statutes.

6. Defendant-appellee, Robert Hay, individually and in his official capacity, is and was a member of the Boone County Fiscal Court.

7. Defendant-appellee, Fred D. Riedinger Company, at all times relevant to this action, is and was a Kentucky corporation with its principal office at 50 Park Road, Fort Wright, Kentucky 4 1011, and is and was a legal title owner of the subject property.

8. Defendants-appellees, Jerome B. Hoffman and Barbara A- Hoffman, husband and wife, and M. Carol Kathman and Joseph E. Kathman, husband and wife, at all times relevant to this action, are and were legal title owners of the subject property.

9. Prior to the zone change request at issue in this appeal and complaint, AIG had attempted to rezone real estate in unincorporated Boone County, Kentucky, on two prior occasions in an effort to develop a multi-use development that would be used to promote its organization and its beliefs, including the concept of creationism. On November 11, 1998, the Fiscal Court denied AIG's application for a map amendment from Rural Suburban Estates (RSE) to Industrial One (1- 1) at the subject property, and AIG subsequently appealed this action to the Boone Circuit Court. Previously, in 1996, the Fiscal Court rejected a zone change for a similar project at US. 42 and Ky. 338 in Union, Kentucky.

10. Upon information and belief, after AIG's second zoning defeat on November 11, 1998, and prior to February 1, 1999, members of the current Boone County Fiscal Court, either after they were elected to office and before they actually took office or after they took office, met with representatives of AIG regarding its rezoning efforts and the lawsuit that AIG had filed against the Fiscal Court.

11. Upon information and belief, at the above-referenced meeting, member(s) of the Fiscal Court suggested that AIG refile its application for a map amendment at the subject property but that it seek a zone change to Public Facilities (PF) rather than Industrial One (1-1).

12. Thereafter, on February 1, 1999, AIG filed an application with the Boone County Planning Commission ("planning commission") seeking a zone change at the subject property to a Public Facilities (PF) zoning designation.

13. AIG sought this zone change request to allow it to develop a 95,000-square-foot facility on the subject property for the following uses: museum, religious assembly, office, mail order operation, picnic areas, trails, ornamental monuments, storage, and a loading dock.

14. On March 3, 1999, the Boone County Planning Commission held a public hearing on AIG's rezoning request.

15. On March 17, 1999, the planning commission voted to recommend denial of the zone change request to the Fiscal Court.

16. The planning commission issued a Committee/Commission Report in conjunction with its vote to recommend denial of the rezoning request in which the planning commission set forth findings of fact in support of its recommendation. A copy of this Report is attached hereto as Exhibit "A" and made by reference a part hereof. In this Report, the planning commission concluded that the requested zoning map amendment and concept development plan submitted by AIG were not in agreement with the 1995 Boone County Comprehensive Plan for the following reasons:

A. The Goals and Objectives (Overall Objective #4, pg. 4) states that "future growth shall be accompanied by adequate infrastructure and services. Existing infrastructure and services shall be maintained or improved as needed." The Committee/Commission has concluded that the zone change request is not in agreement with this objective because the proposal involves a 95,000 square foot multi-use building that will rely exclusively on private, on-site domestic water and wastewater treatment systems. Due to the fact that the proposed use is a public facility, a regional and national attraction capable of attracting thousands of visitors annually and employs over 50 employees, access to a public water supply is critical to assure appropriate water capacity for fire protection purposes and water quality for drinking purposes. The applicant is not willing to pursue and commit to extending public water to serve this site.

In addition, the applicant has not documented that the proposed sanitary sewage treatment plant will be owned and maintained by the Sanitation District No. I to assure public health and safety in the area. It is the conclusion of the Committee/Commission that such private on-site systems proposed by the applicant should not be endorsed or encouraged for large, intensive facilities in comparison with others in the area, such as the one proposed based on the Comprehensive Plan. The Public Facilities Element of the Comprehensive Plan discourages the use of individual package sewer treatment plants on individual tracts of land. The proposed use could be located on property in another area of Boone County with existing supporting infrastructure.

B. The future Land Use Map designates the area of the site where the building is proposed to be "Industrial." This classification is a 25 year projection for industrial uses on the subject site. It also suggests that at the appropriate time, industrial uses are appropriate along with commercial and residential uses and zoning at the I-275 Petersburg Idlewild interchange and not Public Facilities uses and zoning. The Comprehensive Plan describes the industrial land use classification as "manufacturing wholesale, warehousing, distribution, assembly, mining and terminal uses. The proposed uses on the site are not consistent with this classification as described above.

C. The Committee/Commission has not found that the existing zoning classification is inappropriate and that the proposed zoning classification is appropriate since the only development activity in the immediate area has been residential in the past ten years. There have been no 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.

17. Despite the above-referenced recommendation of the planning commission that the rezoning request be denied, the Boone County Fiscal Court voted, 3-1, on May 6, 1999, to grant the zone change request.

FIRST CLAIM FOR RELIEF

(Appeal from Final Action of Boone County Fiscal Court)

18. Plaintiffs-appellants restate paragraphs I through 17 and incorporate the allegations therein as if fully rewritten herein.

19. By voting to approve the rezoning request, the Boone County Fiscal Court took final action on the AIG's rezoning request on May 6, 1999, pursuant to Ky. Rev. Stat. § 100.211 (1).

20. Pursuant to Ky. Rev. Stat.' § 100.347(3), plaintiffs-appellants hereby give notice of appeal of the final action of the Boone County Fiscal Court.

21. The decision of the planning commission to recommend denial of the zone change request and the findings of fact in support of this decision was based upon substantial, reliable, and probative evidence presented at the public hearing.

22. The final action of the Boone County Fiscal Court to grant the rezoning request, in contravention of the recommendation of the planning commission and its findings of fact, was contrary to the substantial evidence presented at the public hearing before the planning commission.

23. In reaching its decision to approve the zone change request, the Fiscal Court considered and relied upon evidence that was not presented at the public hearing before the planning commission or made a part of the record submitted to that administrative body. Because plaintiffs appellants were not made aware of this evidence at the time of the public hearing before the planning commission, they were not given an opportunity to cross-examine AIG representatives regarding this evidence and were not afforded due process.

24. The final action of the Boone County Fiscal Court approving the zone change request was unreasonable, arbitrary, and capricious, and therefore, unconstitutional.

SECOND CLAIM FOR RELIEF

(Declaration of Rights for Due Process Violations)

25. Plaintiffs-appellants restate paragraphs 1 through 24 and incorporate the allegations therein as if fully rewritten herein.

26. AlG's proposed development of the subject property is not a reasonable and proper use of the subject property. As set forth more fully in the planning commission's Committee/Commission Report, the proposed development is unreasonable and improper and not supported by the evidence presented before the planning commission for the following reasons:

A. The infrastructure and services, including but not limited to sanitary sewers and roads, at or near the subject property are not sufficient to serve the uses proposed by AIG; and

B. The uses proposed by AIG at the subject property are not, consistent with the "Industrial" designation set forth on the future Land Use Map; and

C. The existing zoning classification at the subject property, Rural Suburban Estates (RSE), is appropriate and the zoning classification proposed by AIG, Public Facilities (PF), is inappropriate since the only development activity in the immediate nity of the subject property has been residential in the past ten years, and there have been no major changes of an economic, physical, or social nature that substantially alters the area's character as contemplated in the 1995 Boone County Comprehensive Plan.

27. Of the uses proposed by AIG for the subject property, the industrial and distribution uses are not permitted, accessory, or conditional uses permitted under the Public Facilities (PF) zone, and therefore, any zone change allowing these uses in this zoning classification is improper, illegal, and unconstitutional.

28. The Boone County Fiscal Court considered and relied upon evidence submitted to it by AIG that was not presented at the public hearing before the planning commission or made a part of the record before that body. Because plaintiffs-appellants were not made aware of this evidence at the time of the public hearing before the planning commission, they were not given an opportunity to cross-examine AIG representatives regarding this evidence, and therefore, were not afforded due process by the Fiscal Court.

29. By voting to approve the rezoning request despite the recommendation of the planning commission to deny the zone change request, without substantial evidence to support its decision, and by considering additional evidence that was not first presented at the public hearing before the planning commission, the Fiscal Court failed and/or refused to provide plaintiffs-appellants with procedural and substantive due process.

30. Defendant-appellee, Boone County Fiscal Court, failed and/or refused to take and properly weigh the evidence offered by plaintiffs-appellants or others opposing the zone change at the public hearing make findings of fact based upon a consideration of the record made at the public hearing, or make conclusions supported by substantial evidence.

31. In granting the rezoning request of AIG, the Fiscal Court acted in excess of its statutorily granted powers, without procedural due process, and without substantial evidence in the record to support its decision and findings of fact in support thereof.

32. Plaintiffs-appellants have exhausted all available and reasonable administrative remedies and/or appeals, and/or any other remedies and/or appeals would be unduly burdensome and unreasonable on plaintiffs-appellants.

33. Plaintiffs-appellants bring the within action for a declaratory judgment pursuant to Chapter 418 of the Kentucky Revised Code, and specifically, Ky. Rev. Stat. § 418.045, through which plaintiffs-appellants seek to obtain a declaration of its rights that the final action of the Boone County Fiscal Court granting AIG's rezoning request was unreasonable, arbitrary, and unconstitutional.

THIRD CLAIM FOR RELIEF

(Robert Hay: Conflict of Interest and Due Process Violations)

34. Plaintiffs-appellants restate paragraphs 1 through 33 and incorporate the allegations therein as if fully rewritten herein.

35. A legislative body, in deciding a rezoning case, acts in an adjudicatory capacity, and while not exercising judicial power in a constitutional sense, this body does nevertheless adjudicate the issue of whether a zone change request is proper and lawful. In making such an adjudication, members of the legislative body must act in an impartial and unbiased manner and without any conflict of interest.

36. In voting to approve AIG's rezoning request on May 6, 1999, the Boone County Fiscal Court was acting in an adjudicatory capacity and the county judge-executive and the county commissioners were required to act as impartial and unbiased arbiters and without any conflicts of interest.

37. Upon information and belief, defendant-appellee, Robert Hay, prior to and at the time of the Fiscal Court vote on May 6, 1999, had been actively involved in the Answers in Genesis organization and its mission and even allowed his photograph to be used in the organization's promotional materials. A copy of the back cover of a promotional booklet for AIG is attached here to as Exhibit "B" and made by reference a part hereof.

38. Upon information and belief defendant-appellee, Robert Hay, met with representatives of AIG regarding their efforts to rezone the subject property and discussed with them strategies and methods by which to achieve the zone change, and tried to persuade property owners who live near the subject property to support the zone change request.

39. At a meeting of the Fiscal Court on May 6, 1999, shortly before the legislative body voted on the rezoning request, a representative of plaintiff-appellants requested that Mr. Hay recuse himself from voting on the zone change request because of his obvious bias and conflict of interest arising out of his relationship with AIG, but Mr. Hay refused to do so.

40. Despite this bias and conflict of interest, defendant-appellee, Robert Hay, voted for the zone change request, and in so doing, violated the due process rights of plaintiffs-appellants.

41. Plaintiffs-appellants bring the within action for a declaratory judgment pursuant to Chapter 418 of the Kentucky Revised Code, and specifically, Ky. Rev. Stat. § 418.045, through, which plaintiffs-appellants seek to obtain a declaration of their rights that the individual vote of defendant-appellee, Robert Hay, in approving the rezoning request was improper, illegal, and unconstitutional, and further holding that Mr. Hay's vote is void and thereby rendering the final vote of Fiscal Court on the zone change request as 2-1 in favor of granting the request.

 

WHEREFORE, plaintiffs-appellants demand:

 

A. The Court declare the final action of the defendant-appellee, the Boone County Fiscal Court, in granting the zone change request was unreasonable, arbitrary, and not supported by substantial evidence, and therefore, unconstitutional and invalid;

B. The Court declare the individual vote of defendant-appellee, Robert Hay, to approve the zone change request as unreasonable, arbitrary, improper, and illegal, and therefore, unconstitutional, invalid and void, and declaring that the Fiscal Court vote on the zone change request was 2-1 in favor of the request.

C. The Court award plaintiffs-appellants their reasonable attorney fees.

D. The Court award plaintiffs-appellants the costs of this litigation;

E. The Court award plaintiffs-appellants all further relief, legal and equitable, to which they are entitled.

 

John Jay Fosset No. 823.97

 

CORS & BASSETT
Attorney or Plaintiffs-Appellants
1881 Dixie Highway, Suite 350
Ft. Wright, Kentucky 41011
(859) 331-6440

 

 

REPORT AND FINDINGS PRESENTED TO THE FULL PLANNING COMMISSION AT THE MARCH 17; 1999 BUSINESS MEETING. REPORT AND FINDINGS APPROVED BY A VOTE OF 8-6.

 

COMMITTEE/COMMISSION REPORT

 

TO: Boone County Planning Commission

FROM: Phil Damstrom, Chairman

DATE: March 17, 1999

 

RE: Request of Answers-in Genesis (agent authorized by owner) to consider a Zoning Map Amendment from Rural Suburban Estates (RSE) to Public Facilities (PF) for an approximate 47 acre tract located along the east side of Deck Lane and Bullitsburg Church Road and along the south side of 1-275, Boone County, Kentucky. The request is for a zone change to permit a museum, religious assembly, office, mail order operation, picnic areas, ornamental monuments, storage and a small loading dock.

 

REMARKS:

 

We, the Committee/Commission, recommend denial of this request based on the following findings of fact.

 

FINDINGS OF FACT

 

1. The Committee/Commission has. concluded that the Zoning Map Amendment and Concept Development Plan are not in agreement with the 1995 Boone County Comprehensive Plan due to the following reasons:

A. The Goals and Objective (Overall Objective #4, pg. 4) states that "future growth shall be accompanied by adequate infrastructure and services. Existing infrastructure and services shall be maintained or improved as needed." The Committee/Commission has concluded that the zone change request is not in agreement with this objective because the proposal involves a 95,000 square foot multi-use building that will rely exclusively on private, on-site domestic water and wastewater treatment systems. Due to the fact that the proposed use is a public facility, a regional and national attraction capable of attracting thousands of visitors annually and employs over 50 employees, access to a public water supply is critical to assure appropriate water capacity for fire protection purposes and water quality for drinking purposes. The applicant is not willing to pursue and commit to extending public water to serve this site.

In addition, the applicant has not documented that the proposed sanitary sewage treatment plant will be owned and maintained by the Sanitation District No. I to assure public health and safety in the area. It is the conclusion of the Committee/Commission that such private on-site systems proposed by the applicant should not be endorsed or encouraged for large, intensive facilities in comparison with others in the area, such as the one proposed based on the Comprehensive Plan. The Public Facilities Element of the Comprehensive Plan discourages the use of individual package sewage treatment plants on individual tracts of land. The proposed use could be located on property in another area-of Boone County with existing supporting infrastructure.

B. The future Land Use Map designates the area of the site where the building is proposed to be "Industrial". This classification is a 25 year projection for industrial uses on the subject site. It also suggests that at-the appropriate time, industrial uses are appropriate along with commercial and residential uses and zoning at the 1-275/Petersburg Idlewild interchange and not Public Facilities uses and zoning. The Comprehensive Plan describes the industrial land use classification as "manufacturing wholesale, warehousing, distribution, assembly, mining and terminal uses." The proposed uses on the site are not consistent with this classification as described above.

C. The Committee/Commission has not found that the existing zoning classification is inappropriate and that the proposed zoning classification is appropriate since the only development activity in the immediate area has been residential in the past ten years. There have been no major changes of an economic, physical, or social in 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.

A copy of the Public Hearing minutes accompanies the findings and recommendation serving as a summary of the evidence and testimony presented by the proponents and opponents of this request.

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