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

Floodplain Variance Allowing Beargrass Creek Relocation Is Challenged  Posted: October 24, 2007
TEXT OF COMPLAINT FILED OCTOBER 23 CHALLENGING APPROVAL OF FLOODPLAIN VARIANCE REQUEST FOR PROPERTIES AT 1371-1373 LEXINGTON ROAD, LOUISVILLE KENTUCKY


This complaint, appeal and petition for declaration of rights is filed pursuant to Metro Ordinance Chapter 157, Section 157.04(C), K.R.S. 418.040, and pursuant to this Court’s inherent authority to review arbitrary agency action under the Kentucky Constitution, seeking review of the September 25, 2007 written decision of the Metropolitan Sewer District Floodplain Board to grant conditional approval to co-applicants Crossing at Irish Hill, LLC, River Metals Recycling, LLC, and PFC Property Holdings, Inc. for a variance from the Louisville Metro Floodplain Management Ordinance, Chapter 157, in order to allow relocation of a portion of Beargrass Creek located on properties at 1371-1373 Lexington Road in Metro Louisville.

Plaintiffs seek review of the Floodplain Board action pursuant to Metro Ordinance Section 157.04(C), and a determination pursuant to the Ky. Constitution Sections 2 and 14 and a declaration pursuant to K.R.S. 418.040 that the action of the Floodplain Board was arbitrary, in violation of Plaintiffs’ procedural due process rights, and was otherwise inconsistent with law.

PARTIES

1. Plaintiff Irish Hill Neighborhood Association (IHNA) is a non-profit Kentucky corporation organized pursuant to K.R.S. Chapter 273 whose principal office is located at 1305 Lexington Road, Louisville, Kentucky 40204, and who represents the interests of the neighborhood wherein the property for which the flood plain ordinance variance was sought and conditionally approved. Among the members of the IHNA is Lisa Dettlinger, whose property is a “first tier” property adjacent to that property for which the floodplain variance was approved.

2. The interests of IHNA members include property and aesthetic interests in the proper administration and application of the floodplain ordinance. IHNA is aggrieved as its interests in protecting the property and aesthetic interests are and have been adversely affected by the Floodplain Board decision conditionally approving the requested variance to allow relocation of Beargrass Creek, and a decision reversing and remanding that decision will redress the property and aesthetic injuries that have been suffered by the unlawful action of the Floodplain Board.

3. IHNA is aggrieved in its own right and has representational standing to represent the interests of IHNA members in this matter, including Ms. Dettlinger.

4. Plaintiff Lisa Dettlinger is an owner of property located at 1305 Lexington Road, Louisville, Kentucky 40204 and is a resident of the Irish Hill Neighborhood. The Dettlinger property, located on Lexington Road in the Irish Hill Neighborhood, is adjacent to the properties at 1371 and 1373 Lexington Road for which the floodplain ordinance variance was conditionally approved. Ms. Dettlinger and her husband David are listed in the Notice mailed by counsel for the Floodplain Board as being property owners whose property is in the “first tier” of the properties subject to the variance request. Ms. Dettlinger has property and aesthetic interests in the lawful application of the floodplain ordinance, and has been aggrieved and has suffered injury to those interests and to constitutional rights that have been infringed upon due to the manner in which the flood plain hearing was held, including a lack of adequate notice of the hearing, a failure to allow cross-examination of applicant’s witnesses, and a failure to provide adequate findings to support the decision conditionally approving the requested variance.

5. The IHNA and Ms. Dettlinger participated in the Floodplain Variance Hearing that was conducted by the Floodplain Board on September 24, 2007, and both objected to the granting of the variance.

6. The Louisville and Jefferson County Metropolitan Sewer District was designated by the Louisville Metro Floodplain Management Ordinance, Ordinance No. 125, Series 2005, approved August 29, 2005, (and codified as Chapter 157) as the administering agency for that chapter. The Board of the Louisville and Jefferson County Metropolitan Sewer District is designated by Section 157.02 of that ordinance as the “Floodplain Board” and is authorized under Section 157.04(B) to grant specific variance from the individual provisions of Section 157.03 upon application and after hearing, based on certain enumerated conditions.

7. On September 24, 2007, the Floodplain Board met and verbally approved a variance application, with conditions, allowing the relocation (and abridgment by some 400 feet) of a portion of Beargrass Creek flowing through the properties at 1371 and 1373 Lexington Road in the Irish Hill Neighborhood in Metro Louisville. A written decision was entered on September 25, 2007.

8. The Floodplain Board is a proper party-defendant in this action seeking review of the decision to conditionally approve that variance. Metro Ordinance Chapter 157.04(C) provides that any person aggrieved by a final written decision of the administering agency under this chapter may appeal that decision to the Jefferson Circuit Court. According to that ordinance, the appeal is to be taken “within 30 days after the final action or decision of the administering agency and all decisions which have not been appealed within 30 days shall become final. Ms. Wheatley is the Floodplain Board Chair.

9. The written decision of the Floodplain Board was entered on September 25, 2007, and provided that “[a]ll appeals are to be taken within thirty (30) days of the date herein entered.”

10. Crossings at Irish Hill, LLC, a Kentucky Limited Liability Company, (hereinafter collectively referred to as “co-applicants”) was one of the three listed “Co-Applicants” on whose behalf the Floodplain Variance Application was submitted on July 27, 2007, and whose application was conditionally approved. Crossings at Irish Hill, LLC is listed as a party defendant to this action as one of the holders of the challenged conditional variance and party who has an interest adverse to that of Plaintiffs.

11. River Metals Recycling, LLC, a Kentucky Limited Liability Company, (hereinafter collectively referred to as “co-applicants”) was the second of the three listed “Co-Applicants” on whose behalf the Floodplain Variance Application was submitted on July 27, 2007, and whose application was conditionally approved. River Metals Recycling, LLC is also the property owner of the tract at 1371 Lexington Road, and is listed as a party defendant to this action as one of the holders of the challenged conditional variance and party who has an interest adverse to that of Plaintiffs.

12. PFC Property Holdings Inc. a corporation whose address in the variance application is listed in Raleigh, North Carolina, (hereinafter collectively referred to as “co-applicants”) was the third of the three listed “Co-Applicants” on whose behalf the Floodplain Variance Application was submitted on July 27, 2007, and whose application was conditionally approved. PFC Property Holdings, Inc. is also the property owner of the tract at 1373 Lexington Road, and is listed as a party defendant to this action as one of the holders of the challenged conditional variance and party who has an interest adverse to that of Plaintiffs.

JURISDICTION

13. This complaint seeks judicial review of the September 25, 2007 written decision of the “Floodplain Board” under Metro Ordinance Section 157.04(B) to grant a variance application, with conditions, allowing the relocation (and shortening by some 400 feet) of a portion of Beargrass Creek flowing through the properties at 1371 and 1373 Lexington Road in the Irish Hill Neighborhood in Metro Louisville.

14. The Louisville and Jefferson County Metropolitan Sewer District was designated by the Louisville Metro Floodplain Management Ordinance, Ordinance No. 125, Series 2005, approved August 29, 2005, (and codified as Chapter 157) as the administering agency for that chapter. The Board of the Louisville and Jefferson County Metropolitan Sewer District is designated by Section 157.02 of that ordinance as the “Floodplain Board” and is authorized under Section 157.04(B) to grant specific variance from the individual provisions of Section 157.03 upon application and after hearing, based on certain enumerated conditions.

15. Metro Ordinance Section 157.04(C) provides that any person aggrieved by a final written decision of the administering agency under this chapter may appeal that decision to the Jefferson Circuit Court. According to that ordinance, the appeal is to be taken “within 30 days after the final action or decision of the administering agency and all decisions which have not been appealed within 30 days shall become final.”

16. The written decision of the Floodplain Board was entered on September 25, 2007, and provided that “[a]ll appeals are to be taken within thirty (30) days of the date herein entered.” A copy of that decision is annexed hereto as Appendix A.

17. To the extent that the Metro Council is empowered to vest this Court with jurisdiction by ordinance to hear an appeal of the action of the Floodplain Board, this appeal is timely filed since it is filed within the thirty (30) days period following entry of the written decision on September 25, 2007.

18. K.R.S. 23A.010 vests general jurisdiction in Circuit Court, and provides that the Circuit Court “may be authorized by law to review the actions or decisions of administrative agencies, special districts or boards. Such review shall not constitute an appeal but an original action.”

19. This complaint also seeks a declaration of rights pursuant to K.R.S. 418.040, that the action of the Floodplain Board was arbitrary, capricious and otherwise inconsistent with law. K.R.S. 418.040 provides for a declaration of rights, either alone or in conjunction with other relief, where an actual controversy exists. Such a controversy does exist in this case, as is demonstrated by the allegations in this Complaint, appeal and request for declaration of rights.

20. There is an inherent right of judicial review from orders of legislative boards and agencies pursuant to the Kentucky Constitution, which at Section 2 prohibits arbitrary action by agencies and legislative bodies.

21. A decision that fails to provide procedural due process is arbitrary and prohibited under Kentucky Constitution Section 2.

22. The September 25, 2007 written decision is properly reviewed under this Court’s inherent authority since, in failing to provide meaningful notice, a right to cross-examination, specific factual findings to support the decision, and in rendering a decision not based on substantial evidence, the Floodplain Board acted in a manner that was arbitrary and in violation of Kentucky Constitution Section 2.

COUNT I

23. Numerical Paragraphs 1-22 are incorporated herein by reference as if fully set out below.

24. The right to cross-examination of witnesses is a procedural due process right required by law to be provided in a trial-type adjudicatory hearing.

25. The floodplain variance hearing held on September 24, 2007 was an adjudicative decision in which three co-applicants sought relief from a decision of the Metropolitan Sewer District staff denying their request to relocate Beargrass Creek on property located at 1371-1373 Lexington Road, by seeking a variance from the Floodplain Board from specific requirements of the floodplain ordinance.

26. Those wishing to testify before the Board at the September 24, 2007 hearing were sworn prior to giving testimony, and material sought to be introduced for evaluation by the Board was marked and introduced as evidence.

27. Specific request was made by counsel for Irish Hill Neighborhood Association to be allowed to cross-examine witnesses for the applicant, and that opportunity was refused by counsel for the Floodplain Board. That portion of the transcript reflecting the denial of opportunity for cross-examination is attached as Appendix B.

28. The failure to allow for cross-examination of witnesses violates the procedural due process rights of Plaintiffs, and renders the Floodplain Board decision arbitrary as a matter of law under Kentucky Constitution Section 2.

COUNT II

29. Numerical paragraphs 1-28 are incorporated herein by reference as if fully set out below.

30. The written decision of the Floodplain Board dated September 25, 2007 consists of two pages, with the second page containing only two sentences and the signature of the Floodplain Board Chair.

31. The criteria for granting a floodplain variance are set forth in Section 157.04(B).

32. The entitlement of the co-applicants to the variance was disputed by testimony of opponents, including IHNA and Ms. Dettlinger, during the hearing before the Floodplain Board.

33. The written decision of the Floodplain Board contained no individual findings of fact and instead merely paraphrased and repeated the legal requirements for a granting of a variance from the floodplain ordinance.

34. The failure to provide adequate findings of fact deprives this Court of the ability to conduct meaningful review of the proceeding to determine whether the Board’s action was arbitrary, violates the procedural due process rights of Plaintiffs, and is inconsistent with Kentucky Constitution Section 2.

COUNT III

35. Numerical paragraphs 1-34 are incorporated herein by reference as if fully set out below.

36. Notice of the request for variance was mailed to “First Tier” and “Second Tier” property owners by letter dated September 17, 2007 for a hearing to be held on September 24, 2007.

37. The provision of six (6) days notice is arbitrary as a matter of law since it fails to provide adequate and meaningful notice and deprives interested persons of the opportunity to fully prepare for the hearing, and thus violates the procedural due process rights of Plaintiffs.

COUNT IV

38. Numerical paragraphs 1-37 are incorporated herein by reference as if fully set out below.

39. Specific variance from the individual provisions of Section 157.03 of the Floodplain Ordinance is authorized only where such specific variance “will not cause detriment to the public good, safety or welfare nor be contrary to the spirit, purposes or intent of this chapter where by reason of unique and exceptional physical circumstances or condition of the particular property owned by the applicant” the literal enforcement of the requirements of the ordinance “will result in an unreasonable hardship on the owner of the property[.]” Additional prerequisites are provided in Section 157.04(B)(1)(a) – (d) for granting a variance.

40. Metro Ordinance Chapter 157 provides no definition to guide the discretion of the Floodplain Board in determining what circumstances constitute an “unreasonable hardship.” The delegation of authority under the ordinance is suspect for want of a standard against which to measure compliant or arbitrary action.

41. The record before the Floodplain Board does not demonstrate that the literal enforcement of the requirements of the floodplain ordinance would constitute an unreasonable hardship on the owner of the property; rather the record reflects that economically viable uses have been made of the property for more than a century and that, at best, the relocation of Beargrass Creek is a matter of convenience for a particular development plan rather than hardship to the land owner.

42. The decision was not based on substantial evidence in the record taken as a whole and is therefore arbitrary, capricious and otherwise inconsistent with law.

PRAYER FOR RELIEF

WHERFORE, for the reasons stated herein, Plaintiffs respectfully request that this Court:

1. Accept jurisdiction over this matter pursuant to K.R.S. 418.040, Article 2 of the Kentucky Constitution, and Metro Ordinance 157.04(C);

2. Determine and declare that the September 25, 2007 decision of the Floodplain Board conditionally approving the requested variance from the Metro Floodplain Ordinance was arbitrary, capricious and otherwise inconsistent with law;

3. Enter an Order vacating the Floodplain Board decision for want of compliance with the requirements of Metro Ordinance Section 157.04 and the Kentucky Constitution; and

4. For any and all other relief to which Plaintiffs may appear entitled.
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