West End Walmart lawsuit

No

No. __14-CI-01942___________

JEFFERSON CIRCUIT COURT

DIVISION EIGHT (8)

TUCKER STATION NEIGHBORHOOD ASSOCIATION, INC.PLAINTIFFS

2406 Tucker Station Road

Louisville, KY 40299

EILEEN and DAVID KAELIN



CYNTHIA J. and DOUGLAS A. WEAVER



FRANCES APRILE

15404 Taylorsville Road

Fisherville, KY 40023

MIKE FARMER

15100 Old Taylorsville Road

Fisherville, KY 40023

LEAGUE OF WOMEN VOTERS OF LOUISVILLE

AND JEFFERSON COUNTY, INC.

115 South Ewing Avenue


FLOYDS FORK ENVIRONMENTAL ASSOCIATION INC.

P.O. Box 91041


WOLF PEN PRESERVATION ASSOCIATION, INC.

P.O. Box 45

Harrods Creek, KY 40027

ARNOLD ZEGART

7800 Wolf Pen Branch Road

Prospect, KY 40059

CRESCENT HILL COMMUNITY COUNCIL, INC.

301 South Peterson Ave.


BARBARA SINAI

60 Eastover Court


OPEN LOUISVILLE, INC.



NEIGHBORHOOD PLANNING AND PRESERVATION, INC.

129 Bellaire Avenue


MARTINA KUNNECKE

3754 Illinois Avenue

Louisville, KY 40213APPLE VALLEY SUBDIVISION

PROPERTY OWNERS ASSOCIATION, INC.

8012 Northern Spy Drive


JONATHAN ERIC BINGHAM

8003 Cortland Drive


v. REVISED AND AMENDED COMPLAINT AND PETITION FOR A DECLARATION OF RIGHTS

LOUISVILLE/JEFFERSON COUNTY

DEFENDANTS

METRO GOVERNMENT

527 West Jefferson Street


Serve:Greg Fischer, Mayor



MAYOR GREG FISCHER

Mayor, Louisville/Jefferson County

Metro Government



THE LEGISLATIVE COUNCIL OF LOUISVILLE/JEFFERSON COUNTY

METRO GOVERNMENT



Serve:Jim King, President



LOUISVILLE AND METRO PLANNING COMMISSION

444 South Fifth Street, Suite 300


Serve:Donnie Blake, Chair

444 South Fifth Street, Suite 300


* * * * * * *

Come the Plaintiffs by counsel, and, for their Revised and Amended Complaint, replacing the entire original Complaint previously filed in this action, state as follows:

PARTIES

1. The Tucker Station Neighborhood Association, Inc. (hereinafter TSNA) is an organization of residents and property owners who live and/or own property in the

area known as the Tucker Station neighborhood of Louisville Metro, a neighborhood

that is quickly being developed and where past and future decisions of the Louisville

and Metro Planning Commission are important to its residents.

2. Eileen and David Kaelin are Louisville Metro residents and property

owners who live at 2421 Tucker Station Road in the Tucker Station neighborhood and are members of the Tucker Station Neighborhood Association..

3. Cynthia J. and Douglas A. Weaver are Louisville Metro residents and

property owners who live at 2208 Tucker Station Road in the Tucker Station

neighborhood and are members of the Tucker Station Neighborhood Association.

4. Frances Aprile is a Louisville Metro resident and property owner who

lives at 15404 Taylorsville Road in the Fisherville neighborhood and is a member of the

Floyds Fork Environmental Association, Inc.5. Mike Farmer is a Louisville Metro resident and property

owner who lives at 15100 Old Taylorsville Road in the Fisherville neighborhood and is a

member of OPEN Louisville, Inc.6. The League of Women Voters of Louisville and Jefferson County, Inc.

(hereinafter LWV) is a non-profit Kentucky corporation whose purpose is to promote

political responsibility through informed and active participation of citizens in

government. It is concerned about responsible, legitimate planning and zoning

decisions.

7.The Floyds Fork Environmental Association Inc. (hereinafter FFEA) is a

Kentucky non-profit corporation dedicated to protecting and preserving Floyds Fork and

its watershed and to responsible, legitimate planning and zoning decisions. FFEA worked

for passage of the original legislation which limited development interests to four

members of the Planning Commission, leading to the current KRS 100.137(2).

8. Wolf Pen Preservation Association, Inc. (hereinafter WPPA) is a

Kentucky non-profit corporation dedicated to preserving the Wolf Pen Branch

neighborhood and other similar neighborhoods and to responsible, legitimate planning

and zoning decisions.

9. Arnold Zegart is a Louisville Metro resident and property owner who

lives at 7800 Wolf Pen branch Road in Prospect, KY, in the Wolf Pen Branch

neighborhood. He is a long-time member and officer in the Wolf Pen Preservation

Association, Inc.

10. Crescent Hill Community Council, Inc. (hereinafter Crescent Hill) is a

Kentucky non-profit corporation with purposes to create a feeling of community in the

Crescent Hill area through objective planning and preservation.

11. Barbara Sinai is a Louisville Metro resident and property owner who

lives at 60 Eastover Court in the Crescent Hill neighborhood and is a member of and past

president of the Crescent Hill Community Council, Inc.

12. OPEN Louisville, Inc. (hereinafter OPEN) is a Kentucky non-profit

corporation dedicated to open government, historic preservation, protection of the

environment and neighborhood preservation and to responsible, legitimate planning and

zoning decisions.

13. Neighborhood Planning and Preservation, Inc. (hereinafter NPP) is a

Kentucky non-profit corporation dedicated to preserving neighborhoods and to

responsible, legitimate planning and zoning decisions.

14. Martina Kunnecke is a Louisville Metro resident who lives at 3754

Illinois Ave. and is a member of and president of Neighborhood Planning and Preservation, Inc.

15. Apple Valley Subdivision Property Owners Association, Inc.

(hereinafter Apple Valley) is the homeowners association for the Apple Valley

Subdivision dedicated to preserving the Apple Valley Subdivision neighborhood and

similar neighborhoods and to responsible and legitimate planning and zoning decisions.

16. Jonathan Eric Bingham is a Louisville Metro resident and property

owner at 8003 Cortland Drive in the Apple Valley Subdivision and is a member of the

Apple Valley Subdivision Property Owners Association, Inc.

17. Louisville/Jefferson County Metro Government (hereinafter Louisville

Metro) is the consolidated local government agency for all of Jefferson County,

Kentucky.

18. Mayor Greg Fischer is the mayor and chief executive officer of

Louisville/Jefferson County Metro Government and has the authority by statute to appoint eight citizen members and two governmental members to the Louisville and Metro Planning Commission.19. The Legislative Council of Louisville/Jefferson County Metro

Government (hereinafter Metro Council) is the legislative body for Louisville/Jefferson

County Metro Government and has the responsibility to approve the mayoral

appointments of citizen members to the Louisville and Metro Planning Commission.20. Louisville and Metro Planning Commission (hereinafter Planning

Commission) is the designated planning commission for Louisville Metro under KRS

Chapter 100 and Louisville Metro Ordinance 32.840.

.

JURSIDICTION AND VENUE

21. This Court has proper jurisdiction and venue of Plaintiffs claims, which

involve the composition of the Planning Commission and the conduct of Defendants Louisville Metro, Mayor Greg Fischer and the Metro Council in Jefferson County, which

Plaintiffs believe to be in violation of Kentucky law and Louisville Metro ordinances, all of which occurred in Jefferson County, Kentucky.22. This Court has proper jurisdiction and venue of Plaintiffs claims which Plaintiffs believe to be in violation of Article 2 of the Kentucky Constitution which prohibits arbitrary government power.23. This Court has jurisdiction under KRS 418.040 to make a binding

declaration of rights.CAUSE OF ACTION

24. Paragraphs 1-23 are incorporated herein by reference as if fully set forth below.25. KRS 100.137(2) provides that Louisville Metro shall have a planning

commission which shall include eight (8) members who are residents of the planning

unit, approved by the mayor. In addition, the Mayor or his designee and either the

director of public works or the county engineer shall be members.

26. KRS 100.137(2) further provides that: The mayor shall ensure that four

(4) of the appointees are citizens who have no direct financial interest in the land

development and construction industry.

27. Louisville Ordinance 32.840 provides that the eight appointed citizen

members of the Planning Commission shall be appointed by the mayor and shall be subject to the approval of the Metro Council.

28. KRS 67C.139(1) provides that: Appointments made by the mayor should reflect the diversity of the population within the jurisdiction of the consolidated local government.

29. KRS 67C.117 (2) provides that for Louisville Metro: The percentage

of minority citizens who shall be appointed to each of its boards and commissions shall

be no less than the percentage of minority citizens in the community, or the percentage of

minority representatives on the consolidated local governments legislative body,

whichever is greater.

30. There are six African-American minority representatives on the Metro

Council out of a total of twenty-six members. That percentage of minority representatives

is twenty-three per cent (23%).

31. The eight appointed citizen members of the Planning Commission

currently are: a) Donnie Blake, b) Carrie Butler, c) Vincent Jarboe, d) Robert Peterson, Jr., e) David Proffitt, f) David R. Tomes, g) Clifford Turner, and h) Lloyd Chip White.

32. All eight appointed citizen members were appointed by Mayor Greg Fischer and approved by the Metro Council.

33. Seven of the eight appointed citizen members are male, all except Carrie Butler. Both appointed government members are male.34. Seven of the eight appointed citizen members are Caucasian (the majority race in Louisville Metro), all except Clifford Turner. Both appointed

government members are also Caucasian.35. By statute [KRS 100.137(2)], Mayor Fischer is a member of the

Planning Commission, but, as permitted by statute, he has appointed Robert Kirchdorfer

as his designee. Robert Kirchdorfer is a Caucasian male.

36. By statute [KRS 100.137(2)], another member of the Planning

Commission is either the director of public works of the consolidated local government,

or his or her designee, or the county engineer as determined by the mayor. Currently,

Mayor Fischer has chosen to appoint the county engineer, Jeff Brown, to the Planning

Commission. Jeff Brown is a Caucasian male.37. Donnie Blake has a direct financial interest in the land development and construction industry. Donnie Blake is President of Okolona Pest Control, Inc., which is a member of the Building Industry Association of Greater Louisville (hereinafter

BIALouisville). Mr. Blake is also a part owner, a director, the registered agent, and past

president of OPC Construction & Repair, Inc. a corporation owned by Mr. Blake and

members of his family. OPC Construction & Repair, Inc. is essentially a subsidiary of

Okolona Pest Control, Inc.; advertises remodeling, room additions, finishing basements,

kitchens and bathrooms and more construction items; and is also a member of the

BIALouisville.

38. Carrie Butler may or may not have a direct financial interest in the land

development and construction industry. Carrie Butler lists herself as founder and principal of Civic+Connect where she states: my work involves connecting people and their communities with transportation innovations, technology solutions and a strong built environment. 39. Robert Peterson, Jr. has a direct financial interest in the land development and construction industry. Robert Peterson, Jr. has been a homebuilder and remodeler for 39 years. He is owner and president of Robert A. Peterson, Jr. Co., Inc., and is a registered builder/remodeler with BIALouisville. He was the 1991 president of

Homebuilders Association of Louisville, the predecessor of BIALouisville.

40. David Proffitt has a direct financial interest in the land development and

construction industry. David Proffitt is a Senior Architect, employed by and paid by the University of Louisville Planning Design and Construction Department. In such employment, he manages and coordinates the construction and renovation of the University of Louisvilles capital construction and renovation projects.

41. David R. Tomes has a direct financial interest in the land development and construction industry. David R. Tomes is engaged in land development management for Traditional Town, LLC, a real estate development company which developed and

manages Norton Commons, LLC. He is involved at times in other real estate development activities and is a registered builder with BIALouisville.

42. Clifford Turner has a direct financial interest in the land development and construction industry. Clifford Turner is owner and president of Land Development

Services, Inc. and owner and president of Turner Realty and Management, Inc. Clifford

Turner has his present residence in Oldham County.

43. Lloyd Chip White has a direct financial interest in the land development and construction industry. Mr. White is employed as a staff representative and contract administrator for and paid by the Indiana/Kentucky/Ohio Regional Council of Carpenters, an affiliate of the United Brotherhood of Carpenters, which has a century-plus tradition of representing the best of the building trades.

44. Vincent Jarboe may or may not have a direct financial interest in the land development and construction industry. Mr. Jarboe is the owner of Vince Jarboe

Insurance Agency, Inc., an affiliate of State Farm Insurance. His business may or may not

receive income from the land development and construction industry. He is also a

member and registered agent for Jarboe Properties, LLC, which may or may not be

involved in the land development and construction industry.

45. At least six, and maybe more, of the eight appointed citizen members of the Planning Commission, appointed by Mayor Greg Fischer and approved by the Metro Council, have a direct financial interest in the land development and construction industry, which is a direct violation of KRS 100.137(2).

46. Planning Commission member Clifford Turner may presently reside in

Oldham County, not in Jefferson County, which, if true, would be a direct violation of KRS 100.137(2).

47. Only one of the ten appointed members (including only one of the eight

citizen members) of the Planning Commission is a female, a direct violation of KRS 67C.139(1).

48. Only one of the ten appointed members (including only one of the eight

citizen members) of the Planning Commission is an African-American, a direct violation of KRS 67C.117(2).

49. The Planning Commission is illegally constituted according to Kentucky

Law, and is, therefore, unable to perform its statutory duties as required by law.

50. Because of the illegal constitution of the Planning Commission, the

Planning Commission, an arm of Louisville Metro Government, exercises arbitrary

power over the lives, liberty and property of the citizens of Louisville Metro, in violation

of Article 2 of the Kentucky Constitution..

51. Because of the illegal constitution of the Planning Commission caused by Mayor Greg Fischer and the Metro Council, all of the Plaintiffs, as well as all citizens of Louisville Metro, have been injured and aggrieved in the following ways:

a. The illegal constitution of the Planning Commission in regards to the financial interests of the members, in violation of state law, causes the Commission to have a bias, overt or subconscious, in favor of any proposed action by an applicant or developer, resulting in decisions not made with the unbiased attitude intended by Kentucky law and intended by any good planning process. As

individuals, the planning Commission members are fine people, but

most seem to have the same view of planning and zoning and that is

a development industry-centric view. Therefore, the Planning

Commission becomes just an echo chamber rather than a venue for

true debate, compromise and consideration of the public perspective.b. The illegal constitution of the Planning Commission in regards to its under-representation of minority and female members and in

regards to its under-representation of citizens without a direct

financial interest in the land development and construction industry, in violation of state law, causes the Commission to have a more

narrow and biased view, overt or subconscious, when it comes to planning for the entire community and for all of its citizens, a view which may result in decisions that do not account for the diversity of Louisville Metro.c. The Plaintiffs, and any citizen of Louisville Metro who would appear before the Planning Commission, would be denied due process before the Planning Commission, which is quasi-judicial in nature and which requires due process in all its proceedings, because the illegal constitution of the Commission results in a body which is

in violation of state law and, therefore, unable to fulfill the duties of

the Planning Commission, and

d. The illegal constitution of the Planning Commission puts in doubt any decisions made by that commission in the past and/or in the future. That doubt needs to be resolved so that planning and

zoning decisions in Louisville Metro can proceed without the sword of Damocles hanging over every decision.52. Plaintiffs Eileen Kaelin, Cynthia Weaver, Frances Aprile, Barbara

Sinai, League of Women Voters of Louisville and Jefferson County, Inc. and Martina

Kunnecke, as females or representatives of female citizens, are especially denied equal treatment, access, consideration and due process before the Planning Commission due to its lack of female members in violation of KRS 67C.139(1).

53. Plaintiff Martina Kunnecke, as an African-American, is especially denied equal treatment, access, consideration and due process before the Planning Commission due to its lack of African-American members in violation of KRS

67C.117(2)RELIEF

WHEREFORE, Plaintiffs respectfully demand the following relief:

1. That the Court declare the current composition of the Planning Commission

as illegal under Kentucky state law,

2. That the Court order Mayor Greg Fischer and the Metro Council to change the

membership of the Planning Commission so that it complies with state law,

3. That the Court grant Plaintiffs a reasonable attorneys fee and all costs

expended herein to be paid by the Defendants, and

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

Respectfully Submitted,

Stephen T. Porter

Counsel for Plaintiffs, KBA #552902406 Tucker Station Road

Louisville, KY 40299-4529

502-297-9991

[email protected] OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was served by first class U.S. Mail, postage prepaid, and by electronic mail, to counsel for the parties at the addresses listed below on this 16th day of January, 2015. Service to attorneys Bardenwerper, Pregliasco, Moorman and Price is done simply to inform them that the new Complaint contains no allegations against their clients.

William B. Bardenwerper

Nicholas R. Pregliasco

Building Industry Association of Greater Louisville Building

1000 N. Hurstbourne Parkway, 2d Floor


[email protected]@bardlaw.netJonathan Baker

John G. Carroll

Assistant Jefferson County Attorneys

531 Court Place, Suite 900


[email protected]@louisvilleky.govKeith MoormanFROST BROWN TODD LLC

250 West Main Street, Suite 2800

Lexington, KY 40507

[email protected] Price

FROST BROWN TODD LLC

400 West Market Street, 32d Floor


[email protected]______________________________________

Stephen T. PorterPAGE 1

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West End Walmart lawsuit