The Murner-led Fiscal Court is over for all intent and practical purposes. The court held its last meeting on December 21, 2010. Each Magistrate took the opportunity to express his/her gratitude for having been elected by their constituents. There was an unusual appearance of harmony among the Magistrates - probably more than since their first meeting four years ago.
Personally, I am very glad to see the end of the Murner-lead Fiscal Court. Judge Murner demonstrated a total disregard for the law - especially where open government was concerned. Many people were glad to see him reined in by a court of law over his illegal acts of secrecy. Murner has constantly bragged about achieving a balanced budget and ending his term with a major surplus. I never heard him say that he balanced that budget by raising taxes, which he significantly increased on Oldham County families. He always claimed that the balanced budget was due to cuts in personnel and other cuts in the budget; an example of misleading the public that was the trademark of the Murner administration. However, in the end the escalation of taxes and fees proved to be fatal to Murner’s hope of having his hand-picked successor be elected as County Judge/Executive. Still further, the escalation of taxes and fees also served to cause several Magistrates to fail in their endeavor to be re-elected. Some of them may not realize this or want to accept it, but any non-biased person can easily see it. That is what blind loyalty can do for you.
Now the obvious question is: will the incoming Magistrates be as blind as some of those whom they are replacing? They will get their first test at the first meeting on January 3, 2011. At that first meeting, the new County Judge/Executive, David Voegele, will present to the court/new Magistrates the names of several people that he will be hiring for their approval.
Of the names of the people Judge Voegele will present will be John Black, his brother-in-law. Judge Voegele has selected Black to be his deputy. The fact is that Voegele does not need the approval of the Fiscal Court for the position of Deputy County Judge/Executive. However, Voegele has stated that he would present Black to the court along with the names of his other new-hires. By doing this Voegele will be asking the Magistrates to violate the county administrative code - or at least condone his questionable selection. That is simply being insensitive to the members of the court. Seems like another County Judge we’ve seen over the past four years doesn’t it?
The present Oldham County code of ethics is part of the county administrative code. Section 4.3 (Nepotism) of the code states: “Members of any County government officer’s or employee’s immediate family are ineligible for employment by the Fiscal Court.”
The selection of John Black by David Voegele is clearly nepotism and should not be tolerated. Moreover, by Voegele asking the court to approve or condone the selection of Black he is showing disrespect for them and asking them to do something that that they may be criticized for doing by their constituents. He is also taking advantage of the fact that some of the members are new to the court and may not feel comfortable opposing him in the very first meeting. Although this may be a good tactical move by Voegele, it is unethical. The people of Oldham County will get a very good sense of the direction that this court will follow for the next four years. David Voegele can be assured that the people will not forget what he is doing.
Judge Voegele may say that he is selecting Black because he is very qualified by virtue of the fact that he was the County Judge before. That argument has several holes in it. First, the people of Oldham County no longer wanted Democrat John Black as County Judge as he was defeated in his bid for a third term by Mary Ellen Kinser. Second, surely Voegele had someone else in mind to be his deputy should John Black have been elected to the Kentucky State Senate seat that he sought, though he was soundly defeated by Republican Ernie Harris. Then there is the fact that the “end does not justify the means”, especially when the “means” result in a violation of the law; a law that John Black instituted when he was the County Judge. How ironic is that now? When John Black sought the change in the administrative code did he believe that the change should only be applicable to others and not him? In other words, do as I say, not as I do.
David Voegele still has time to correct his mistake but does he have the desire to do what is right or will it be full speed ahead, the law be dammed?
Sunday, December 26, 2010
Sunday, November 28, 2010
WILL POLITICS AND BAD HABITS EVER CHANGE IN OLDHAM COUNTY
Does every elected County Judge-Executive believe that he has to help an old friend, relative, supporter, or someone who needs to enhance their state retirement benefits? First, Duane Murner hired Bill Tucker shortly after being elected County Judge-Executive and Tucker remains on the county payroll to this day. Tucker has been on social security for years and should have opted to allow a younger person who was in need of a job to be employed. However, he received a substantial increase in pay from his previous magisterial salary, after he was removed from office by the voters. Thus, his retirement will be increased significantly. Likewise, Judge Murner hired former magistrate Paula Gish to be his Deputy Judge-Executive and gave her a huge increase in salary. Again, her retirement will increase significantly due to this increase in pay. What is worse is that one of her duties has been to supervise the county payroll clerk and the state auditor said in an annual report that she was not qualified to do that. The payroll clerk was recently fired by County Judge Murner but Gish remains on the job making over $70K per year.
Well, David Voegele also has decided to help an old friend and relative increase his retirement. He decided to hire his brother-in-law, John Black, to be his deputy at a salary of over $55K per year. John Black has been driving a school bus in order to enhance his retirement. It is a great promotion when you go from school bus driver to Deputy County Judge. I once heard Voegele remark that it would be a great promotion for a person to go from janitor to county treasurer. He also remarked that it would make a great title for a story. I guess that he forgot that, or believes that it does not apply to him. I’m sorry David, but you can’t have it both ways.
David Voegele promised change throughout his campaign this past spring. As a matter of fact, he told me that he would make a lot of changes if the people would just give him a chance. He knows, or at least he should know, that many people voted for him because they felt that he was the lesser of two evils. Voegele has gotten his chance but so far I have not seen the change. Hiring his brother-in-law is not a change in practice from the past administration. To make matters worse, John Black is a staunch democrat who has been defeated in his last two attempts to achieve elective office. He was just recently soundly defeated by Ernie Harris in a bid for the Kentucky State Senate. Black ran on a democratic agenda which supported expanded gambling in Kentucky. Did that not tell David Voegele that the people of Oldham County have rejected John Black?
While we are on the issue of change, there are two more items that need to be addressed. Voegele railed against the huge debt that the county has amassed and the huge increase in the insurance premium tax rate. The first two items of business Voegele should have on his agenda are the reduction of the insurance premium tax by fifty percent and the retirement of some of the county debt. The county has a huge surplus at the present time (over $8 million) and can afford to accomplish both of these feats. If Voegele does not do this quickly, the county should not expect him to do anything that he promised. As a matter of fact, the people had better be on the defensive.
Since the primary election, Voegele has went against several of his campaign messages and disappointed many in the public. He voted to once again increase sewer rates by 25% and to add additional debt to the Fiscal Court budget through accepting debt taken on by the sewer district to finance their ongoing abysmal operations. The court voted to approve the measure by one vote, meaning Voegele’s vote in the opposite direction would have prevented the increase from becoming a reality.
Voegele also needs to make some personnel changes in his administration as soon as he takes office. He was also opposed by nearly all of the county government employees working in Judge-Executive Duane Murner’s office in addition to most of the department heads in county government. In fact, many of them worked extensively to support the candidacy of Paula Gish in the primary election. This includes employees making financial contributions to Gish, displaying yard signs, wearing campaign clothing at events, and openly supporting Gish whenever possible. He still has time to make those changes before he takes office, however it is questionable whether he has the stomach to make the tough decisions needed in this area.
I still believe that Voegele was the better choice for County Judge but my belief is fading fast.
Well, David Voegele also has decided to help an old friend and relative increase his retirement. He decided to hire his brother-in-law, John Black, to be his deputy at a salary of over $55K per year. John Black has been driving a school bus in order to enhance his retirement. It is a great promotion when you go from school bus driver to Deputy County Judge. I once heard Voegele remark that it would be a great promotion for a person to go from janitor to county treasurer. He also remarked that it would make a great title for a story. I guess that he forgot that, or believes that it does not apply to him. I’m sorry David, but you can’t have it both ways.
David Voegele promised change throughout his campaign this past spring. As a matter of fact, he told me that he would make a lot of changes if the people would just give him a chance. He knows, or at least he should know, that many people voted for him because they felt that he was the lesser of two evils. Voegele has gotten his chance but so far I have not seen the change. Hiring his brother-in-law is not a change in practice from the past administration. To make matters worse, John Black is a staunch democrat who has been defeated in his last two attempts to achieve elective office. He was just recently soundly defeated by Ernie Harris in a bid for the Kentucky State Senate. Black ran on a democratic agenda which supported expanded gambling in Kentucky. Did that not tell David Voegele that the people of Oldham County have rejected John Black?
While we are on the issue of change, there are two more items that need to be addressed. Voegele railed against the huge debt that the county has amassed and the huge increase in the insurance premium tax rate. The first two items of business Voegele should have on his agenda are the reduction of the insurance premium tax by fifty percent and the retirement of some of the county debt. The county has a huge surplus at the present time (over $8 million) and can afford to accomplish both of these feats. If Voegele does not do this quickly, the county should not expect him to do anything that he promised. As a matter of fact, the people had better be on the defensive.
Since the primary election, Voegele has went against several of his campaign messages and disappointed many in the public. He voted to once again increase sewer rates by 25% and to add additional debt to the Fiscal Court budget through accepting debt taken on by the sewer district to finance their ongoing abysmal operations. The court voted to approve the measure by one vote, meaning Voegele’s vote in the opposite direction would have prevented the increase from becoming a reality.
Voegele also needs to make some personnel changes in his administration as soon as he takes office. He was also opposed by nearly all of the county government employees working in Judge-Executive Duane Murner’s office in addition to most of the department heads in county government. In fact, many of them worked extensively to support the candidacy of Paula Gish in the primary election. This includes employees making financial contributions to Gish, displaying yard signs, wearing campaign clothing at events, and openly supporting Gish whenever possible. He still has time to make those changes before he takes office, however it is questionable whether he has the stomach to make the tough decisions needed in this area.
I still believe that Voegele was the better choice for County Judge but my belief is fading fast.
Tuesday, November 16, 2010
HOW A LAME DUCK FISCAL COURT CONFRONTS ISSUES
The November 16, 2010 meeting of the Oldham County fiscal court proved to be interesting. The court had several people in attendance from the Briar Hill and Spring Hill subdivisions.
Recently the Oldham Circuit Court ruled that there was not a valid approved subdivision plan for the Brentwood subdivision. This was the result of a lawsuit filed by residents of the Briar Hill and Spring Hill subdivisions. However, in spite of the decision of the Circuit Court there has been a road approved by the Oldham County Panning and Development Commission. According to residents who appeared at the fiscal court meeting, work on the subdivision continues even though there is no approved subdivision plan. Residents voiced concern for the safety of residents, especially children, due to excessive speed of drivers who use the new road as a means of bypassing Crestwood.
The residents had previously asked the court to close the road and have all work on the subdivision stopped. Judge Murner said that fiscal court has no jurisdiction in the matter since the court was not a defendant in the lawsuit. I doubt that this issue will go away.
In an unrelated matter Magistrate Bob Deibel made a motion that the court approve a new fifteen year contract with Insight cable company. Insight provides cable service for the majority of the citizens of Oldham County. However, Magistrate David Voegele, the Judge-Elect made a motion to table the issue. Voegele stated that he would like to consult with legal counsel in order that the county might gain further concessions from the cable company. Magistrate Scott Davis seconded the motion and the motion passed by a 7-2 vote. Magistrate Deibel and Judge Murner voted against Voegele’s motion. The current contract with Insight does not expire until August of 2011. Therefore, there should be no danger of the county being without cable service. What struck me as being odd about the vote was that the majority of the magistrates voted opposite of Judge Murner. I do not believe that would have happened a year ago. Perhaps Judge Murner has lost the rigid control that he appeared to have over the court until now. It is possible that some of the magistrates who were defeated now realize that their blind loyalty to Judge Murner contributed to their demise as magistrates.
Finally, Magistrate Steve Church stated that the finance committee had met to discuss the matter of retiring part of the county debt-specifically the part that relates to the community center. He stated that the finance committee decided to not recommend that the debt be retired but rather to allow the incoming court to make that decision. It is believed that Magistrate Rick Rash was the driving force behind retiring part of the county debt. Had the debt been retired it would have amounted to a savings of approximately one thousand dollars per week in interest payments. Magistrates David Voegele, Steve Greenwell and Steve Church make up the finance committee.
Recently the Oldham Circuit Court ruled that there was not a valid approved subdivision plan for the Brentwood subdivision. This was the result of a lawsuit filed by residents of the Briar Hill and Spring Hill subdivisions. However, in spite of the decision of the Circuit Court there has been a road approved by the Oldham County Panning and Development Commission. According to residents who appeared at the fiscal court meeting, work on the subdivision continues even though there is no approved subdivision plan. Residents voiced concern for the safety of residents, especially children, due to excessive speed of drivers who use the new road as a means of bypassing Crestwood.
The residents had previously asked the court to close the road and have all work on the subdivision stopped. Judge Murner said that fiscal court has no jurisdiction in the matter since the court was not a defendant in the lawsuit. I doubt that this issue will go away.
In an unrelated matter Magistrate Bob Deibel made a motion that the court approve a new fifteen year contract with Insight cable company. Insight provides cable service for the majority of the citizens of Oldham County. However, Magistrate David Voegele, the Judge-Elect made a motion to table the issue. Voegele stated that he would like to consult with legal counsel in order that the county might gain further concessions from the cable company. Magistrate Scott Davis seconded the motion and the motion passed by a 7-2 vote. Magistrate Deibel and Judge Murner voted against Voegele’s motion. The current contract with Insight does not expire until August of 2011. Therefore, there should be no danger of the county being without cable service. What struck me as being odd about the vote was that the majority of the magistrates voted opposite of Judge Murner. I do not believe that would have happened a year ago. Perhaps Judge Murner has lost the rigid control that he appeared to have over the court until now. It is possible that some of the magistrates who were defeated now realize that their blind loyalty to Judge Murner contributed to their demise as magistrates.
Finally, Magistrate Steve Church stated that the finance committee had met to discuss the matter of retiring part of the county debt-specifically the part that relates to the community center. He stated that the finance committee decided to not recommend that the debt be retired but rather to allow the incoming court to make that decision. It is believed that Magistrate Rick Rash was the driving force behind retiring part of the county debt. Had the debt been retired it would have amounted to a savings of approximately one thousand dollars per week in interest payments. Magistrates David Voegele, Steve Greenwell and Steve Church make up the finance committee.
Monday, November 15, 2010
OLDHAM COUNTY JUDGE ELECT DAVID VOEGELE ANNOUNCES TWO APPOINTMENTS
Oldham County Judge-Executive Elect David Voegele has released the names of two individuals he intends to recommend to Fiscal Court as part of the new administration in January.
Greg Smith, former Chief of the Louisville Division of Police, will be recommended to Oldham Fiscal Court as the replacement for former Chief Michael Griffin, who retired at the end of August. Voegele said he would like Smith’s title to be Director of Public Safety, rather than chief of police.
“The position will manage all police work but also additional responsibilities I would like to come under the supervision of the director of public safety,” Voegele indicated.
“Greg Smith is an outstanding police administrator, recognized widely in the law enforcement community as a consummate professional. I could not find anyone who did not have the highest respect for him,” Voegele said.
Judge-Executive Elect David Voegele said he interviewed 12 candidates to lead the Oldham County Police Department. “I felt each of the candidates was an excellent police officer, but Greg Smith brought more to the table in terms of being able to move Oldham County forward on a variety of issues.”
Chief Smith was a member of the Louisville Division of Police from 1974 through January 2003, when he joined the staff of Senator Jim Bunning. He will end his work for Senator Bunning when Bunning retires at the end of the year.
Chief Smith began his career path as a patrol officer in the First and Sixth Districts. Promotions through the years included detective, sergeant, lieutenant, assistant chief, deputy chief and chief. He has supervised all aspects of police services, including training, community development, narcotics, sex crimes, homicide and robbery units.
Smith is a graduate of Bellarmine University, and holds a Master’s Degree in Community Development from the University of Louisville. He also teaches law enforcement at Bellarmine. He will take over January first from Acting Chief Billy Way, who has accepted a position in business and will retire at the end of December.
Another appointment planned for the new administration includes a former director of Oldham County Planning and Zoning. Jim Urban, who was part of the administration of former Judge-Executive, John Black, will be recommended as the new director of Planning and Development, replacing Louise Allen who retired earlier this fall. Urban left Oldham County government in 2003.
“Jim’s prior experience in Oldham County, along with his knowledge of the development in the county, his management skills and abilities in economic development and land use planning, will bring a superior level of performance and service in planning and development,” Voegele said. “Our quality of life is not for sale, and I will be holding Planning and Development to the highest standard in maintaining that pledge to our community.”
Since leaving Oldham County in 2003, Mr. Urban worked in the private sector and was director of planning for the City of Jeffersonville, Indiana. He is a graduate of the University of Massachusetts and has a Master’s Degree from the University of Massachusetts in Land Use Planning and Landscape Design.
Greg Smith, former Chief of the Louisville Division of Police, will be recommended to Oldham Fiscal Court as the replacement for former Chief Michael Griffin, who retired at the end of August. Voegele said he would like Smith’s title to be Director of Public Safety, rather than chief of police.
“The position will manage all police work but also additional responsibilities I would like to come under the supervision of the director of public safety,” Voegele indicated.
“Greg Smith is an outstanding police administrator, recognized widely in the law enforcement community as a consummate professional. I could not find anyone who did not have the highest respect for him,” Voegele said.
Judge-Executive Elect David Voegele said he interviewed 12 candidates to lead the Oldham County Police Department. “I felt each of the candidates was an excellent police officer, but Greg Smith brought more to the table in terms of being able to move Oldham County forward on a variety of issues.”
Chief Smith was a member of the Louisville Division of Police from 1974 through January 2003, when he joined the staff of Senator Jim Bunning. He will end his work for Senator Bunning when Bunning retires at the end of the year.
Chief Smith began his career path as a patrol officer in the First and Sixth Districts. Promotions through the years included detective, sergeant, lieutenant, assistant chief, deputy chief and chief. He has supervised all aspects of police services, including training, community development, narcotics, sex crimes, homicide and robbery units.
Smith is a graduate of Bellarmine University, and holds a Master’s Degree in Community Development from the University of Louisville. He also teaches law enforcement at Bellarmine. He will take over January first from Acting Chief Billy Way, who has accepted a position in business and will retire at the end of December.
Another appointment planned for the new administration includes a former director of Oldham County Planning and Zoning. Jim Urban, who was part of the administration of former Judge-Executive, John Black, will be recommended as the new director of Planning and Development, replacing Louise Allen who retired earlier this fall. Urban left Oldham County government in 2003.
“Jim’s prior experience in Oldham County, along with his knowledge of the development in the county, his management skills and abilities in economic development and land use planning, will bring a superior level of performance and service in planning and development,” Voegele said. “Our quality of life is not for sale, and I will be holding Planning and Development to the highest standard in maintaining that pledge to our community.”
Since leaving Oldham County in 2003, Mr. Urban worked in the private sector and was director of planning for the City of Jeffersonville, Indiana. He is a graduate of the University of Massachusetts and has a Master’s Degree from the University of Massachusetts in Land Use Planning and Landscape Design.
Thursday, November 4, 2010
OLDHAM CIRCUIT COURT ISSUES DECISION OF BRENTWOOD SUBDIVISION
On June 24, 2008 the Oldham Planning and Development Commission (PDC) denied an application made by Oldham Farms Development, LLC for approval of Brentwood Subdivision. Oldham Farms Development, LLC then appealed that decision to the Oldham Circuit Court. An Agreed Order was thereafter entered that dismissed the lawsuit.
As a result of the Agreed Order the PDC held meetings on July 25, 2008 and on September 1, 2008 to discuss the subdivision plan again. The meeting on September 1, 2008 was conducted in a closed session which means that the public was not allowed to view the proceedings. After coming out of the closed session the PDC voted to approve the Brentwood subdivision plans, thereby, overturning the original denial of the plans by that same body. Subsequent to that decision Steve Harold, ET. Al (Other private individuals) filed a lawsuit alleging that the Commission abused its authority by approving the subdivision plans because it feared that it would be sued. Apparently someone had threatened to sue the PDC if they did not approve the subdivision plans. The plaintiffs alleged that it was a violation of law to approve the subdivision plans on the basis that the Commission feared a lawsuit. Judge Conrad found that the approval of the subdivision plans because of fear of litigation does not invalidate the approval.
Personally, I find that the approval of subdivision plans because the PDC feared litigation to be abhorrent even though it might not be illegal. If the Commission were to continue making decisions on that basis, a person would simply just have to threaten the Commission with litigation and the Commission would capitulate. That would result in a totally ineffective Commission. Nonetheless, the court ruled that the fear of litigation did not negate the decision of the Commission.
However, the Circuit Court did find that the Plaintiffs’ (Steve Harold, ET.AL) due process rights were violated when the PDC failed to properly advertise the PDC meeting on July 25, 2008 during which the subdivision plans were discussed prior to the September 1, 2008 decision to approve the subdivision plans. As a result of finding that the meeting was not properly advertised any business conducted at the meeting is null and void. The court then ordered and adjudged that the PDC final approval of the Brentwood Subdivision plans be set aside and the matter remanded for further proceedings before the PDC. The decision of the Circuit Court contains other legal discussions but as stated essentially it is back to the drawing board for the subdivision plans and back to the PDC.
As a result of the decision Michael Tigue, Attorney for the plaintiffs sent an email to all of the Oldham County magistrates, the county Judge/Executive, Courtney Baxter, the County Attorney and Stuart Ulferts, the Attorney for the PDC. The body of that email follows:
Dear Judge Executive Murner and Magistrates:
Attached is a copy of J. Conrad’s decision in the Brentwood subdivision appeal.
J. Conrad has determined that the Planning Commission’s second decision purportedly approving the Brentwood plan is void because it violated my clients’ rights to due process of law.
As you know the only decision that remains of record is the original decision denying the plan which is also not appealable as it was dismissed quite some time ago. Which means, all the work that has been completed on the site as of today has been performed in clear violation of the law.
As such, I have previously requested that orders issue immediately closing all roadways within the property to prevent them from being used by the public as well as stopping all work activity on the site which continues to this day despite J. Conrad’s Order. I have also requested that the developer be directed to take immediate action to physically prevent the roadways from being used by the public. My prior communications were sent to Ms. Beth Stuber, Mr. Brian Davis and their counsel Stuart Ulferts, Esq. At present, the public is using the roadways to cut through my clients neighborhoods often at high rates of speed. When blockades have been put up, people are simply moving them as well which means the developers need to be directed to put up barricades that cannot be moved and to erect signs that warn the public the roadways are not open to ensure their safety.
I also understand the roadways have been dedicated as county public roads. That dedication was awfully short-sighted as it is now apparent that the dedication is invalid as a matter of law well. The simple fact is that public roads are required by statute to be created by record plat. In this instance, they were dedicated pursuant to a plat that was denied. The subsequent approval of that plat has now been thrown out. In short, the dedication of the property’s roadways is void.
This situation is an unmitigated disaster brought on by an arrogant refusal of the development group to comply with, or at least respect the law. Had they simply waited (at a minimum out of respect) for the judicial system to resolve this dispute all of this could have avoided. It is truly unfortunate that this development group has placed Oldham County and my clients in general in this position. Obviously, some very difficult decisions are going to have to be made. Nevertheless, the illegal site development now has to be addressed and my clients expect it to be addressed promptly.
Moreover, the Brentwood Plan is not subject to further review as last proposed. That Plan was denied. That decision is not subject to further review as it was dismissed by prior Court Order. The only option Oldham County has is to direct the developer to resubmit a subdivision plan application for a substantially different proposal provided the requisite period to resubmit has elapsed.
Further, even if the same plan is resubmitted it directly violates the following regulations Sections 5.3A; 5.3.B.3; 5.3.B.4; 5.3.C; 5.3.3(a); 5.3.C.3(c); 7.1.C; 7.2.D.4; 7.2.F. In short, there are no circumstance by which the plan can be approved.
Regardless, what’s on the ground today is illegal and your assistance in remedying the problems it creates is greatly appreciated.
Regards,
Michael Tigue
I do not know what the final result of all of this litigation will be but I believe that all work should be stopped until a final decision can be reached. However, I have seen Judge Murner be slow to follow the orders of Judge Karen Conrad before and I have heard him say that he would go to jail if he thought that the court was wrong before he would obey an order of the court. I would believe that failure of the county to stop the work on the subdivision would result in more litigation for the county and we already have enough liability in pending court actions. We certainly do not need more.
As a result of the Agreed Order the PDC held meetings on July 25, 2008 and on September 1, 2008 to discuss the subdivision plan again. The meeting on September 1, 2008 was conducted in a closed session which means that the public was not allowed to view the proceedings. After coming out of the closed session the PDC voted to approve the Brentwood subdivision plans, thereby, overturning the original denial of the plans by that same body. Subsequent to that decision Steve Harold, ET. Al (Other private individuals) filed a lawsuit alleging that the Commission abused its authority by approving the subdivision plans because it feared that it would be sued. Apparently someone had threatened to sue the PDC if they did not approve the subdivision plans. The plaintiffs alleged that it was a violation of law to approve the subdivision plans on the basis that the Commission feared a lawsuit. Judge Conrad found that the approval of the subdivision plans because of fear of litigation does not invalidate the approval.
Personally, I find that the approval of subdivision plans because the PDC feared litigation to be abhorrent even though it might not be illegal. If the Commission were to continue making decisions on that basis, a person would simply just have to threaten the Commission with litigation and the Commission would capitulate. That would result in a totally ineffective Commission. Nonetheless, the court ruled that the fear of litigation did not negate the decision of the Commission.
However, the Circuit Court did find that the Plaintiffs’ (Steve Harold, ET.AL) due process rights were violated when the PDC failed to properly advertise the PDC meeting on July 25, 2008 during which the subdivision plans were discussed prior to the September 1, 2008 decision to approve the subdivision plans. As a result of finding that the meeting was not properly advertised any business conducted at the meeting is null and void. The court then ordered and adjudged that the PDC final approval of the Brentwood Subdivision plans be set aside and the matter remanded for further proceedings before the PDC. The decision of the Circuit Court contains other legal discussions but as stated essentially it is back to the drawing board for the subdivision plans and back to the PDC.
As a result of the decision Michael Tigue, Attorney for the plaintiffs sent an email to all of the Oldham County magistrates, the county Judge/Executive, Courtney Baxter, the County Attorney and Stuart Ulferts, the Attorney for the PDC. The body of that email follows:
Dear Judge Executive Murner and Magistrates:
Attached is a copy of J. Conrad’s decision in the Brentwood subdivision appeal.
J. Conrad has determined that the Planning Commission’s second decision purportedly approving the Brentwood plan is void because it violated my clients’ rights to due process of law.
As you know the only decision that remains of record is the original decision denying the plan which is also not appealable as it was dismissed quite some time ago. Which means, all the work that has been completed on the site as of today has been performed in clear violation of the law.
As such, I have previously requested that orders issue immediately closing all roadways within the property to prevent them from being used by the public as well as stopping all work activity on the site which continues to this day despite J. Conrad’s Order. I have also requested that the developer be directed to take immediate action to physically prevent the roadways from being used by the public. My prior communications were sent to Ms. Beth Stuber, Mr. Brian Davis and their counsel Stuart Ulferts, Esq. At present, the public is using the roadways to cut through my clients neighborhoods often at high rates of speed. When blockades have been put up, people are simply moving them as well which means the developers need to be directed to put up barricades that cannot be moved and to erect signs that warn the public the roadways are not open to ensure their safety.
I also understand the roadways have been dedicated as county public roads. That dedication was awfully short-sighted as it is now apparent that the dedication is invalid as a matter of law well. The simple fact is that public roads are required by statute to be created by record plat. In this instance, they were dedicated pursuant to a plat that was denied. The subsequent approval of that plat has now been thrown out. In short, the dedication of the property’s roadways is void.
This situation is an unmitigated disaster brought on by an arrogant refusal of the development group to comply with, or at least respect the law. Had they simply waited (at a minimum out of respect) for the judicial system to resolve this dispute all of this could have avoided. It is truly unfortunate that this development group has placed Oldham County and my clients in general in this position. Obviously, some very difficult decisions are going to have to be made. Nevertheless, the illegal site development now has to be addressed and my clients expect it to be addressed promptly.
Moreover, the Brentwood Plan is not subject to further review as last proposed. That Plan was denied. That decision is not subject to further review as it was dismissed by prior Court Order. The only option Oldham County has is to direct the developer to resubmit a subdivision plan application for a substantially different proposal provided the requisite period to resubmit has elapsed.
Further, even if the same plan is resubmitted it directly violates the following regulations Sections 5.3A; 5.3.B.3; 5.3.B.4; 5.3.C; 5.3.3(a); 5.3.C.3(c); 7.1.C; 7.2.D.4; 7.2.F. In short, there are no circumstance by which the plan can be approved.
Regardless, what’s on the ground today is illegal and your assistance in remedying the problems it creates is greatly appreciated.
Regards,
Michael Tigue
I do not know what the final result of all of this litigation will be but I believe that all work should be stopped until a final decision can be reached. However, I have seen Judge Murner be slow to follow the orders of Judge Karen Conrad before and I have heard him say that he would go to jail if he thought that the court was wrong before he would obey an order of the court. I would believe that failure of the county to stop the work on the subdivision would result in more litigation for the county and we already have enough liability in pending court actions. We certainly do not need more.
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