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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Re: Fiscal Court Votes Without Objection To Weaken Erosion Ordinance  Posted: September 26, 2001
September 25, 2001

To: Louisville Contacts

From: Tom FitzGerald

Re: Fiscal Court Votes Without Objection To Weaken Erosion Ordinance

Despite significant community opposition, Fiscal Court voted unanimously to weaken the erosion and sediment ordinance adopted in January, 2001.

My testimony is reprinted below.

Perhaps the most troubling aspect of this action, beyond the negative impact it will have on the streams of this community, is that it became obvious from Chuck Kavanaugh's testimony that the homebuilders, MSD and the County Attorney's office have been discussing these changes for some time, yet none of our elected officials - neither the County Judge, nor any Commissioner, nor the County Attorney's office, nor MSD, which convened the "consensus process" in the first place, thought it important that community and environmental advocates be at the table or in any way involved in these discussions leading to this weakened ordinance.

Days like today reflect clearly how much work remains to be done to reform the way in which the public's business is conducted in this community. ______________________ ORAL COMMENTS OF TOM FITZGERALD CONCERNING WEAKENING AMENDMENTS TO EROSION PREVENTION AND SEDIMENT CONTROL ORDINANCE September 25, 2001

Judge Jackson, Members of Fiscal Court:

I mentioned to Kathy Matheny a moment ago that I liked her blue Jefferson County shirt. Chuck Kavanaugh offered that he would give me a Homebuilders of Louisville shirt. I asked him in response that if he agreed to give me a shirt today, would he want it back in six months.

Each of you has received a copy of my analysis of the effects of the repeal of the existing ordinance and adoption of this weaker replacement ordinance. Letâ??s be clear about these changes:

They are not the result of administrative problems. There have been no appeals, and very few fines. Commissioner Maple wanted the appeals moved to the Planning Commission since before this ordinance was enacted and the move has nothing to do with how the ordinance has been implemented. Moving enforcement appeals to the Planning Commission at the same time as you have removed the ordinance goals of protecting sensitive features because it smacked of planning, is irrational.

They are not minor changes. After 21 years of environmental law practice and 15 years as a Professor teaching environmental law, and as one of the people that labored over each word of this ordinance for two years, I can tell you with a certainty - these are not minor changes.

The language weakens the 80% goal by eliminating and weakening obligations to modify sediment controls if they prove inadequate. The removal of sensitive features protections will increase damage to these resources, particularly since the land development code environmental performance standards will not be adopted for at least another year and were put on a slower track on the assumption that those features would be protected by this ordinance in the interim.

With the elimination of enhanced scrutiny and protection of sensitive features from erosion and sedimentation, you have also removed public notice and involvement concerning such plans.

* By broadening exemptions from the protections of the ordinance, and restricting the application of the ordinance in cases that don't require zoning changes, and by removing upper limits on "site preparation" disturbances, you have created new attractive loopholes through which tons of soil will wash into the already troubled streams of this county.

* By repealing and readopting the ordinance, rather than amending it, you grandfather in again a number of projects that will not be required to comply with rules that have been in effect for over nine months.

Don't kid yourselves that these are 'minor' changes. And don't kid yourselves that this ordinance costs $9,000 an acre. I got a call from a retired contractor who did development work in this community for many years for the federal government as well as for private developers. He said that based on his many years of work the costs don't exceed $100 an acre, even for the federal projects where the standards are more rigorous.

Well I have had my three minutes to address you before you vote on whether to unravel two years of hard work and compromise. Don't adopt these changes, which go far beyond addressing complaints about MSD's enforcement of the ordinance. If you do adopt this new ordinance and repeal existing Chapter 159, you will send a clear message to the public: come, participate and devote years of effort negotiating and making significant concessions in order to craft a consensus ordinance, but remember that there is a back door open always to any special interest who agreed up front but doesnâ??t like the product after the fact. Years of detailed, careful construction of an ordinance can be altered with little notice, meager opportunity to be heard, and precious little thought.

From encouraging VET text exemptions for motorcycles to inviting floodplain ordinance exemptions (over my objection and Commissioner Owens') for mansions that want the public to pay to rebuild them again and again, and now to eroding this ordinance's protections - this Fiscal Court is continuing a trend of undercutting environmental ordinances to satisfy special interests.

Rationalize it any way you want, kid yourself if you can, but we deserve better, and the land and water resources of this community deserve better than this.



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