Riddle v. Louisville Metro Planning

No. __08-CI-06956___________ JEFFERSON CIRCUIT COURT

DIVISION _TWO_________


LAWRENCE R. RIDDLE PLAINTIFFS
5904 Cabin Way
Louisville, KY 40222

RUTH S. SAMS
5900 Cabin Way
Louisville, KY 40222

ROBERT F. MCGONNELL
2908 Lime Kiln Lane
Louisville, KY 40222

ALBERT R. HAEBERLIN
GENEVA J. HAEBERLIN
3413 Glenview Avenue
Louisville, KY 40222

MARGARET G. LANIER
5901 Cabin Way
Louisville, KY, 40222

JERALD J. GOB
6313 Lime Road
Louisville, KY 40222

GEORGE WILLIAM MCBRIDE
3404 Glenview Ave.
Louisville, KY 40222

GEORGE E. FISCHER
5907 Cabin Way
Louisville, KY 40222

NORVIN F. GREEN
5905 Cabin Way
Louisville, KY 40222


5.

COMPLAINT


LOUISVILLE/JEFFERSON COUNTY METRO

PLANNING COMMISSION DEFENDANTS

444 South Fifth Street, Suite 100

Louisville, KY 40202

Serve: Sue Ernst, Chairman

444 South Fifth Street, Suite 100

Louisville, KY 40202


FINCASTLE GROUP, LLC

11800 Brinley Avenue, Suite 201

Louisville, KY 40243

Serve: Anthony A. Waits, Registered Agent

11800 Brinley Avenue, Suite 201

Louisville, KY 40243


EUGENIA F. FALLS

3204 Woodside Drive

Louisville, KY 40222







* * * * * * * *


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


PARTIES


1.

Lawrence R. Riddle, Ruth S. Sams, Robert F. McGonnell, Albert R. Haeberlin,


Geneva J. Haeberlin, Margaret G. Lanier, Jerald J. Gob, George William McBride, George E.


Fischer, and Norvin F. Green (Plaintiffs) are all residents of Louisville/Jefferson County Metro


Government, Kentucky, and residents and property owners adjacent to or nearby the real


property which is the subject of this Complaint and which is owned by the Defendants Fincastle


Group, LLC and Eugenia F. Falls.


2.

The Louisville/Jefferson County Metro Planning Commission (Planning


Commission) is the designated planning commission for Louisville/Jefferson County Metro


Government under KRS Chapter 100. Ms. Sue Ernst is the Chairman of the Planning


Commission.


3.

Fincastle Group, LLC (Fincastle Group) and Eugenia E. Falls are the owners of the


property in question in this major subdivision case which property is more particularly described


later in this Complaint in paragraph 7.


4.

Fincastle Group, LLC is the applicant who initiated the major subdivision


application.



JURISDICTION


4.

This Court has jurisdiction over this matter pursuant to KRS 100.347(2)


because the Plaintiffs are claiming to be injured and aggrieved by a final action of the


Louisville Metro Planning Commission in this matter relating to a major subdivision application


in Louisville/Jefferson County, Kentucky.


4.

Venue is proper in Jefferson Circuit Court, pursuant to KRS 100.347(2),


because the property which is the subject of the major subdivision application lies in Jefferson


County, Kentucky,


SUBJECT PROPERTY


4.

The property in Jefferson County, Kentucky which is the subject of the


major subdivision application discussed in this Complaint is listed as three unidentified parcels


on Woodside Avenue, 3200, 3104, 3200 ½, 3202, and 3204 Woodside Road and 5813 Cabin


Way. The property is further described as Tax Block 11, Lots 229, 241, 360, 202, 361, 253, and


135, and Tax Block 1709, Lots 9 and 6. Said property consists of approximately 35.4 acres.



CAUSE OF ACTION


4.

On or about February 4, 2008, the Defendant Fincastle Group filed, in behalf of


itself and Eugenia F. Falls, a major subdivision application with the Louisville Metro Planning &


Design Services, the staff department for the Louisville Metro Planning Commission. This


application was designated Case No. 10547. This application sought approval of a


major subdivision for most of the property which is the subject of this Complaint. The


subdivision was originally named “Glenview Woods” but is now called “Glenview Park”.


. 9. After preliminary meetings on this application before the Pre-Technical Review


Committee on March 11, 2008, and before the Development Review Committee on March 19,


2008, the case was deferred “indefinitely so a determination can be made on whether or not this


is a public or private road” (referring to a strip of Glenview Avenue which is proposed to provide


access to the subdivision).


10.

On May 20, 2008, the case was brought back to the Pre-Technical Review


Committee, where it was scheduled for a full review by the full Planning Commission to be held


on May 29, 2008.


10.

On May 29, 2008, the Louisville Metro Planning Commission held a hearing on


the proposed subdivision plan and approved the Glenview Park subdivision plan, Case No.


10547.


10.

The May 29, 2008 decision by the Planning Commission was arbitrary and


capricious for at least the following reasons:


1.

Due process was denied the Plaintiffs during the hearing.


2.

The Planning Commission acted contrary to the advice given to it by the Louisville Metro Department of Public Works, through the County Engineer.


3.

The Planning Commission acted without listening to the advice of its own counsel, the assistant Jefferson County Attorney.


4.

The Planning Commission never made a direct determination as to the status of Glenview Avenue as a public or private road, as it said it was going to.


5.

Even if the Planning Commission made an indirect determination of the status of Glenview Avenue, it did not have the power to do so.


6.

The Planning Commission failed to specify how proper access over an adequate public street would be provided to the subdivision.


7.

The Planning Commission failed to require the Defendant Fincastle Group to provide access to the subdivision for Woodside Road, a public or private street which stubs into the subject property.


8.

The Planning Commission disregarded the Land Development Code for All of Jefferson County, Kentucky as adopted by the Planning Commission and the Louisville Metro Council, specifically Sections 6.2.5.B., 6.2.5.E., 7.3.10.A. and 7.3.10.B., and possibly others.


13. The Planning Commission has no legal authority to declare a private road to be


public, which it seems to have done in its approval of this subdivision. Only a court of proper


jurisdiction or possibly the Louisville Metro Government has that authority.


14.

The Planning Commission, when faced with an issue of whether an access


easement exists for the property, disregarded the advice of its own legal counsel, failed to specify


whether it found such an easement, and arbitrarily approved the subdivision without proper


evidence or findings.


14.

The history of the deeds relating to the alleged access easement is so legally


complicated that the Planning Commission is not competent or qualified or empowered to


interpret them or to reach a valid conclusion as to their effect. Only a court of competent


jurisdiction could interpret these deeds.


14.

The Planning Commission arbitrarily failed to enforce the provisions of the Land


Development Code for All of Jefferson County, Kentucky which require that “Subdivisions shall


be designed to ensure that existing public and private streets, which stub into the subject property


must be extended through the subject property.”


14.

Woodside Road is a private or public street which stubs into the subject property


that forms the subdivision which is the subject of this Complaint.


18. The final action of the Commission in approving the subdivision application was


erroneous, arbitrary and capricious, and was in violation of Kentucky and United States case law,


as enumerated in a litany of cases regarding due process.


19. Because of this illegal and unconstitutional process followed by the


Commission, the Plaintiffs have been injured and aggrieved in the following ways:


1.

The Plaintiffs have been denied due process before the Planning Commission, which is quasi-judicial in nature and requires due process in all its proceedings.


2.

The Plaintiffs, some of whom own property immediately adjacent to

the subject property, and others who own and/or reside in property which is nearby and/or on a traffic route for ingress and egress to the property, could sustain permanent injury to their property and property values if the subdivision approval is allowed to remain, and


3.

The Plaintiffs were denied their due process right to cross-examine three

expert witnesses whose expert reports were submitted to and relied upon by the

staff and the members of the Planning Commission,



WHEREFORE, Plaintiffs request the following relief:


1.

That the Court set aside the Planning Commission approval of Glenview Park


Subdivision, Case No. 10547, and declare same to be null, void, and of no force and effect.


2.

That the Court remand this matter to the Planning Commission with instructions to


conduct a public hearing where all interested parties are afforded procedural due process,


including the right to cross-examine any expert who has submitted an expert opinion in the case.


3. That the Court instruct the Planning Commission to follow this set of procedures in all


cases that come before it in the future.


4. That the Court instruct the Planning Commission to enforce its own requirements that


abutting public and private streets be extended through any adjoining new subdivision.


5.

That the Court instruct the Planning Commission that the Planning Commission has


no authority to declare a private street to be public and no jurisdiction to interpret the deeds


regarding the access easement question.


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


expended herein beginning with the time the Plaintiffs began asking the Commission for


the right to cross-examine all expert witnesses whose reports were submitted to the


Commission.


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



Respectfully Submitted,

___________________________________

Stephen T. Porter
Counsel for Plaintiffs
2406 Tucker Station Road
Louisville, KY 40299-4529
502-297-9991
stpinlou at aol.com