Anyone who believes government shouldn’t pick winners and losers in the economy should oppose House Bill 72.
And anyone who believes ordinary citizens should have the same right to contest real estate developments as developers have to propose them should oppose HB 72.
Finally, anyone who believes that citizens should have full, free access to the courts to resolve disputes should oppose HB 72.
HB 72, which passed out of committee Thursday, is the latest version of bills that have been kicking around the General Assembly for years to discourage people from contesting development plans they fear will harm them and their communities. The Kentucky Resources Council, a public advocacy group that tracks legislation, calls it “a dream for developers and nightmare for neighbors.”
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Despite developers’ hefty campaign contributions, past bills have died bipartisan deaths and that is what should happen to HB 72, sponsored by Reps. Jerry Miller, R-Louisville, and Robert Benvenuti, R-Lexington. Under the bill, those who challenge a development but lose at the circuit court level could be required to post a bond of up to $250,000 to carry their case to the Kentucky Court of Appeals.
The circuit judge could levy the big bond if he or she thought the appeal was, in the words of the bill, “presumptively frivolous.” But even if the judge found it had merit, the bond could be as high as $100,000. That bond could be forfeited if the party appealing loses.
So, anyone challenging a development plan who gets turned back by the first court would have to make a high-stakes bet on their chance of succeeding at the next level.
The rationale for this odd courtroom roulette is that developers should be reimbursed for costs incurred while their projects are held up in the courts.
There are a lot of problems with that rationale, not the least being that it singles out developers as a special class that needs protection.
In addition, it makes no sense. As Wikipedia explains, “Developers usually take the greatest risk in the creation or renovation of real estate — and receive the greatest rewards.”
It’s straight up Business 101: They take the risks, which include getting final zoning approval, even if that includes appeals through the courts, and they get the rewards. But HB 72 thinks some of those risks should be off-loaded onto anyone with the temerity to pursue a challenge after losing one round in court.
Often neighborhood associations bear the burden of challenging proposed developments that could damage both their quality of life and property values. They struggle to raise money for lawyers to plead their case before zoning boards, city councils and sometimes in court.
That’s the point of this bill, to make it more expensive, so the neighborhood groups will run out of money and energy and give up.
It’s a disturbing, cynical and probably unconstitutional effort to reduce risk for developers so they can gain even greater rewards. Voters should urge their representatives to turn it aside again this year.