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.