Quarry opponents sue Clark Fiscal Court, planning commission over rezoning vote

gkocher1@herald-leader.comJuly 28, 2014 

Clare Sipple is a plaintiff opposing the quarry. "We're fighting to save our quality of life down there," she said.

GREG KOCHER | STAFF — Lexington Herald-Leader Buy Photo

WINCHESTER — Opponents of a proposed limestone quarry filed suit Monday in Clark Circuit Court to overturn the controversial rezoning of 165 acres of agricultural land for use by heavy industry.

The plaintiffs, Southwest Clark Neighborhood Association Inc. and 30 of its members, sued Clark County Fiscal Court and its members, the Winchester-Clark County Planning Commission and its members, and the Allen Co. Inc. The defendants have 20 days to respond to the suit.

The suit asks Judge William Clouse Jr. to reverse and remand the fiscal court's July 9 vote approving the Allen Co.'s rezoning request. Allen Co. plans to reopen a closed underground limestone quarry near Boonesborough.

Heavy industry is an incompatible use for an area known for its history and tourism, said Clare Sipple, a plaintiff and former member of the planning commission.

"The citizens of southwest Clark ... would not have moved there if they thought heavy industry would go in right next door," Sipple said. "We're fighting to save our quality of life down there."

Clark County Judge-Executive Henry Branham — fiscal court's lone vote against the rezoning — had no comment on the suit. Neither did Rhonda Cromer, director of planning and community development.

John Rompf, a Winchester lawyer who represents the Allen Co., was not available for comment Monday.

The Allen Co. operates a quarry in Madison County across the Kentucky River from the Clark County site that was rezoned. An underground limestone quarry operated on the Clark County site from the 1930s until 1959, before current planning and zoning regulations went into effect.

Under the company's plan, 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 crushing yard in Madison County. The conveyor is intended to reduce the use of big trucks on narrow rural roads in the area.

The suit alleges that fiscal court acted arbitrarily and in a manner inconsistent with state zoning law "by failing to make necessary findings of fact in support of their decision to grant the zoning map amendment. ..."

"Binding elements," or language in the rezoning ordinance passed by fiscal court, would keep agricultural uses on the surface — although a future fiscal court could change that language.

The suit maintains that such binding elements are illegal under Kentucky law except for Louisville and Lexington. The suit also says fiscal court "had no lawful basis to consider binding conditions as part of the zoning decision."

The suit also says that zoning "does not apply to subsurface activities."

Fiscal court's decision constitutes "illegal contract zoning" in which the county rezones the property if the company agrees to limit its heavy industrial uses, the suit says.

The suit also asks a judge to conclude that fiscal court's action "is contrary" to the county's comprehensive plan, which is a guideline for land use in the county. The suit also asks a judge to conclude that "fiscal court lacked substantial evidentiary basis to find the current zoning designation of agriculture to be inappropriate."

Opponents have argued there have been no significant changes to the land since Clark County adopted a 2012 comprehensive plan or since the planning commission and fiscal court had considered an open-pit quarry for the site last year.

The suit also notes that the Allen Co.'s 2014 application was barred by a rule adopted by the planning commission precluding a second application for the same zoning map amendment where the first application was denied within the past two years.

The three fiscal court commissioners — who are not seeking re-election — found that the company's plan for an underground quarry was less intrusive than the open-pit quarry proposed last year.

The suit was filed by Hank Graddy Jr., a Versailles lawyer who has taken up numerous environmental and land-use issues since 1977. Assisting in the suit is Tom FitzGerald, a lawyer for the Kentucky Resources Council who has expertise in dealing with mining issues and land-use issues.

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

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