Owner of crash site sues airport

HERALD-LEADER STAFF WRITERDecember 8, 2006 

The owner of the property where Comair Flight 5191 crashed in August has sued the Lexington-Fayette Urban County Airport board in a dispute over the value of that land, which the airport would need in order to relocate and lengthen the runway used in the fatal crash.

Elkhorn Bend, a limited-liability company that owns the 115.1 acres at 4478-4480 Versailles Road, claims in the suit, filed Nov. 28 in Fayette Circuit Court, that the airport board is trying to buy the property for a lot less than it's worth.

Elkhorn Bend wants $30,000 an acre, or more than $3.45 million. Elkhorn Bend bought the property for about $748,000 in January 2005, through an option agreement in existence for years, said Robert E. Maclin III, the lawyer for Elkhorn Bend, which is owned by Nick Bentley.

The E. Clark Toleman real estate appraisal firm in Lexington, which was hired by the airport board to appraise the property, set the value at $1.725 million in May 2006.

According to the Fayette County property valuation administrator's office, the property, as of the first of this year, had a fair cash value of $747,200.

The property, according to the airport's master plan, would be used for relocating the 3,500-foot general-aviation runway that Comair Flight 5191 accidentally took off from just before it crashed on the farm on Aug. 27, killing 49 passengers and crew members. The airport is also considering extending the runway to 5,000 feet.

"That's a long-range plan; it doesn't necessarily mean that we're going to construct it or we're not going to construct it. It lays out a plan for development," Blue Grass Airport executive director Mike Gobb said yesterday.

Flight 5191 crashed after its pilots mistakenly used the general-aviation runway, known as Runway 26, instead of the main 7,000-foot runway. Runway 26 was too short for the commercial plane to take off from.

Elkhorn Bend, in the lawsuit, says that the airport board has the power to acquire the property through condemnation.

And the company contends that the board is intent on acquiring the property one way or another, and has been trying to force the company to accept far less for the property than what it's worth, through "unacceptable delays" and "a lack of good faith" when the company has attempted to negotiate a sale with the board.

Gobb said that Elkhorn Bend approached the airport board about buying the property, and the board agreed to have a certified appraisal done. Bentley was dissatisfied with Toleman's $1.725 million figure, Gobb said.

The airport is interested in acquiring the property, but only at its fair market value, he said.

"The lawsuit is an inverse condemnation lawsuit," Maclin said. "Basically, they're refusing to pay a fair price for the property. Hopefully, fair-minded Fayette County citizens will determine what the appropriate value is."

But Gobb said that the airport board has not taken any action in the matter, other than to respond to Elkhorn Bend's inquiries.

"He's (Bentley) a willing seller because he approached us. We've not initiated any condemnation," Gobb said. "Our appraisal does not match with his asking price."

Gobb said the Toleman appraisal is a certified appraisal.

"We understand that his (Bentley's) is not."

The airport board's conduct is preventing Elkhorn Bend from using the property for its "highest and best use" and from selling it at its fair market value to others, the lawsuit says.

"There are a lot of uses for that piece of property, other than for the airport," Maclin said. "It's a great proximity. It's on a main thoroughfare heading into Lexington, (it's) across from Keeneland. There are a lot of acceptable uses for that piece of property, even within its current zoning."

Maclin said the airport board is, in effect, telling his client to continue to maintain the property, pay taxes on it, make mortgage payments and "when we want it, we'll take it."

Elkhorn Bend is asking the circuit court to award it damages "at the rate of no less than $30,000 an acre" for each acre of the Versailles Road property.

Maclin said talks with the airport board started long before the plane crash.

"I would not want anybody to think this was brought about because of the crash."

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