Efforts in Clark County to rezone agricultural land faces opposition

gkocher1@herald-leader.comJuly 6, 2014 

  • Clark County board meets on rezoning

    The rezoning proposal will be discussed at a meeting of the Clark County Fiscal Court at 9:30 a.m. Wednesday at the Clark County Courthouse, 34 South Main Street, Winchester.

— A proposal to rezone agricultural land for heavy industry has galvanized opponents, who are expected to pack Wednesday's meeting of the Clark County Fiscal Court.

Residents say the development proposal, which would clear the way for an underground limestone mine on the Clark County side of the Kentucky River, also might open the door to other unwanted industrial operations in the rural area.

"If they can do this, then who's the next one that's going to come along?" asked Clare Sipple, manager of a nature sanctuary next to the land proposed for rezoning.

A second reading and a vote on a rezoning ordinance are scheduled for Wednesday in Winchester. Fiscal Court approved the first reading of the ordinance by a 3-1 vote on June 25.

That action shocked Sipple and others because in a 6-1 vote in May, the Winchester-Clark County Planning and Zoning Commission recommended denial of the rezoning.

"We've just been flabbergasted ever since," said Deborah Garrison, a member of the Southwest Clark Neighborhood Association.

The vote also was surprising because the fiscal court passed a resolution in May encouraging members of the planning commission to "recognize the importance" of the Ford community and the Kentucky River corridor when considering land-use issues. Residents say the resolution seems at odds with the court's support for the rezoning.

Even if the fiscal court gives final approval to the rezoning, members of the neighborhood association are talking about filing suit in Clark Circuit Court to overturn it.

"We have no quarry ordinance on the books for Clark County that would govern where, when or how this particular business could be regulated," said Sipple, a former member of the planning commission.

The rezoning has been sought by the Allen Co., which operates a quarry in Madison County across the Kentucky River from Clark County. The same Clark County site sought for rezoning had an underground limestone quarry from the 1930s until 1959. (There were no zoning regulations at that time.)

In 2013, the Allen Co. filed an application for an open-pit mine on the land. That rezoning request died for lack of a second at fiscal court.

In the meantime, the planning commission amended its bylaws so a zoning map amendment could not be reheard for two years from the time the commission had made a recommendation, unless there was an update in the comprehensive plan or there had been major economic, physical or social changes that had altered the character of an area.

Nevertheless, in April, the Allen Co. filed a new application for a zone map amendment. This time, the company had added 62 acres of farmland and residential property to its original request for 103 acres.

Hank Graddy, a lawyer for the Southwest Clark Neighborhood Association, argued that the planning commission should have declined to consider the new application because it violated the amended bylaws. The whole point of the amended bylaws was to provide a rest or moratorium from repeated zoning requests.

However, Henry Rosenthal Jr., the planning commission's attorney, determined that the new application was "significantly different" from the previous application and could be heard by the commission.

Graddy also cried foul on other ways in which the planning commission had handled the Allen Co.'s applications.

For example, Graddy said, the planning commission first should have made a recommendation on the rezoning and excluded all testimony on the details of the quarry, whether it was the open pit proposed in last year's application or the underground mine in this year's application. But the commission allowed testimony about the development plan in each of its two hearings.

For its part, the Allen Co. said it offered details about the development plan in its new application this year to eliminate complaints from residents about dust and noise that were heard last year.

Under the new plan, Allen Co. executive vice president Jeff Monohan testified in May, tunnels would be blasted; rock would be crushed underground on the Clark County side and then transported by conveyor belt over Athens-Boonesboro Road and over the Kentucky River to the existing crushing yard on the Madison County side. The conveyor is supposed to lessen the use of big trucks traveling roads in the area.

Even if the Allen Co. received local approval, it would need approval from state and federal agencies — including the Army Corps of Engineers — to put a conveyor over the Kentucky River.

Second, Graddy said, the Allen Co. included "binding conditions" that aren't authorized in Clark County and that weren't relevant to the rezoning application.

Those binding conditions are supposed to limit uses of the surface land. Company affidavits said that there would be no open pit, so the surface view of the property would remain the same, and that the only access to the property would be the existing openings on Athens-Boonesboro Road.

In addition, the binding conditions say there would be a detention pond, parking spaces for employees, and some air vents for safety.

"That way, there's no confusion about the future intent for the surface of the property," Monohan testified before the May hearing of the planning commission.

But Graddy has said such binding conditions are illegal under Kentucky law except for Louisville and Lexington.

"The binding element is void, unenforceable; you have no method to enforce it, and you're not authorized to consider binding elements as part of a zone change," Graddy told the planning commission in May.

Graddy also has argued that there have been no significant changes to the land since the 2012 comprehensive plan was adopted or since the planning commission and fiscal court considered the issue last year.

And that brings up the last argument that Sipple has about the process.

"Why the rush?" she asked. "Why are our (fiscal court) commissioners not going to take the time to study this and properly vet this?"

Greg Kocher: (859) 231-3305. Twitter: @HLpublicsafety.

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