Neighborhood groups are concerned that a bill stalled in the state legislature will come back to haunt them and make it too costly to seek appeals on planning and zoning matters.
House Bill 240 would allow a circuit judge to impose an "appeal bond" as a condition for a non-governmental party appealing a rezoning decision from the circuit court to the Kentucky Court of Appeals.
That means a neighborhood association or individual property owner seeking judicial review of a circuit court decision on a rezoning matter could be required to prepay all potential damages, attorney fees and costs.
That possibility is particularly disturbing to members of the Southwest Clark Neighborhood Association, which filed suit last year against the Allen Company's plans to reopen a closed underground limestone quarry near Boonesborough. The suit is still pending in Clark Circuit Court, said Deborah Garrison, a member of the neighborhood association.
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"If this were to pass, it would probably stop our ability to stop the Allen Company," Garrison said. "If we have to turn around and post a bond, ... I don't know where that money would come from."
Most neighborhood associations don't have money to post bonds, said Emma Tibbs, president of the Fayette County Neighorhood Council, an umbrella group of more than 100 associations. "They barely have the money to pay the attorney's fees," Tibbs said.
The neighborhood council might ask the Urban County Council to adopt a resolution expressing opposition to the bill, she said.
The bill passed 88-7 in a March 3 vote in the state House. It then stalled this week in a 4-4 vote in the state Senate's Licensing, Occupations and Administrative Regulations Committee.
But Tom FitzGerald, a lawyer with the Kentucky Resources Council, said it's "quite possible" that the bill's language might be tacked onto other legislation in the waning days of the General Assembly.
The bill's primary sponsor is Rep. Kevin Sinnette, D-Ashland. He did not return messages left for him this week.
In his testimony against the bill before the Senate committee, FitzGerald said its language indicates it is "intended to affect appeals that have already been filed, and I believe, one appeal in particular."
FitzGerald said in an interview that he suspects that appeal is the Clark County case against Allen Company.
He noted in his testimony that the legislature has resisted taking action "that would affect or alter the outcome of pending appeals, and I would ask that you do so in this case...."
In the interview, FitzGerald said, "When you have a bill that has language that makes it apply to pending cases, the first thing to look for is who is behind the bill that has a pending case.
"And this case is pending before a circuit court, and (if it passed) the bill would become effective before the appeal goes to the Court of Appeals," FitzGerald said.
FitzGerald is familiar with the Clark County case because he will assist in writing a brief on behalf of the neighborhood association. The lead counsel for the Southwest Clark Neighborhood Association is Hank Graddy Jr. of Woodford County.
John Rompf Jr., a Winchester lawyer who represents the Allen Company in the Clark County case, said he has not heard of the bill and didn't know what it is about.
In any case, the bill would dissuade private citizens and neighborhood associations from seeking judicial review as provided by the Kentucky Constitution, FitzGerald said.
"It would have a demonstrative chilling effect on the right of neighbors who are seeking judicial review of development decisions that, in many cases, are problematic for the quality of their lives," he said.
The bill is also unnecessary, FitzGerald said, because the Court of Appeals can already impose damages if it finds that an appeal has been brought frivolously or in bad faith.
In the meantime, Garrison waits to see if the bill has indeed died or if it will be resurrected in some 11th-hour legislation. "We have to stay vigilant," she said.