A group of residents against a planned housing development in Alexandria filed a civil complaint in June, asking for construction to be halted and for compensatory and punitive damages against the commissioners who approved a zoning change to allow the development to move forward.
The 22 residents say the planned 98-home Maronda Homes subdivision’s lot sizes are too small for that number of houses, and the governing bodies that approved the plans and zone change “were not following their own guidelines.”
The Campbell County Planning and Zoning Commission and the Campbell County Fiscal Court approved the zoning change and development plans on April 12 and June 1, respectively.
This allowed Maronda Homes to purchase 47 acres of land at the development at 10743 S. Licking Pike from the Burns family to begin building the subdivision.
Steve and Angela Siry have lived in their home on S. Licking Pike for 20 years. They have attended all of the public meetings concerning the development and Steve Siry was selected as the spokesperson of the group that opposes the development throughout the process.
If the subdivision takes shape, the Sirys said the property line would be approximately 75 feet from their home and they will have a direct view of it.
They bought their land from Angela Siry’s mother and live next door to her.
“From our perspective, we’re looking at it, but have a barn blocking it if we scoot, but where my mom sits, she’s just going to look into this whole thing,” Angela Siry said. “It’s just disheartening to know that.”
The Sirys say they live there for a country lifestyle and that they enjoy being surrounded by “rolling hills and cattle.” If the development goes in, they said they fear losing their “peace and quiet.”
The appeal claims residents were not granted the opportunity to cross-examine the planning staff or applicant at two planning commission public hearings.
“It was just a very disheartening process to see our political people in action,” Angela Siry said. “I was like, ‘Wow, this is a disaster.’ Nobody’s listening. They already knew what they were going to do. I didn’t have a voice, and the people here don’t have a voice.”
The complaint alleges that the planning commission’s initial hearings on the project on March 8 and April 12 “denied procedural due process by satisfying the requirement for a ‘trial-like’ hearing,” meaning that the opponents say they weren’t given the opportunity to cross-examine Maronda Homes.
“Chairman Peters failed to advise those gathered at either hearing that under the planning commission’s bylaws, opponents would have an opportunity to ‘cross-examine’ the applicant,” the appeal reads.
Representation for the Campbell County Fiscal Court and Campbell County Planning and Zoning Commission Attorney Jeff Mando said the public hearings at the planning and zoning meetings complied with what Kentucky law and due process require.
He said notice was published for the meeting so that people could come and speak in favor or opposition to the proposed zone change. Then, he said people had the opportunity to speak for or against the zone change and give their reasoning at the meeting.
Residents who signed up to speak at the planning and zoning meetings had three minutes each to state their reasoning for or against the development.
Mando said the planning commission made its recommendation based on the public comments from the meeting, the evidence submitted at the meetings, and the staff report.
“The planning staff report made a recommendation that is entirely consistent with the type of public hearing that Kentucky law would recognize,” Mando said.
The Sirys disagree.
“We’re not against development,” Steve Siry said. “All we’re trying to do is get them to follow the county’s comprehensive plan. They’re not following it at all, and Mr. (Campbell Co. Judge/Executive Steve) Pendery refused to give us a hearing on it.”
The comprehensive plan is adopted by the Campbell County Fiscal Court (the most recent was in 2008) and is used as a guideline for recommended future land use.
The fiscal court voted to deliberate based on the planning commission’s recommendation at the May 18 Campbell County Fiscal Court meeting.
Steve Megerle, the attorney who is representing the 22 residents, asked the court to consider an “argument-style” hearing during that meeting. The hearing would have one representative from each side make arguments based on facts from the record from the planning and zoning meetings to persuade the fiscal court to rely on or not to rely on the recommendation from the planning commission.
At the meeting, Judge Pendery and Commissioners Brian Painter and Geoff Besecker voted to rely on the existing record by the planning and zoning commission. This means the court would follow the facts in the record from planning and zoning meetings held on March 8 and April 12 when they voted for or against the zone change. There would be no argument-style hearing.
Pendery said that the court was following the law with its decision.
Mando noted that in planning and zoning in Kentucky regarding a zone change, the final say comes down to the legislative body. In this case, it is the fiscal court.
“The planning commission merely makes recommendations based on the evidence presented before them,” Mando said.
At their second reading for the development, Pendery motioned to approve the zone change, and Commissioner Tom Lampe seconded. Commissioner Besecker voted against the zone change.
“My understanding is that when a request like this is in conformity with the comprehensive plan, we’re pretty much duty-bound to approve it with the recommendation of the planning and zoning body,” Judge/Executive Steve Pendery said at the meeting.
The appeal also alleges that the public wasn’t adequately notified about the zone change, and that that the plaintiffs were “injured” and “aggrieved” by the incorrect notice due to the actual zone change request that allows for denser lot sizes than ¼ of an acre.
The legal notice was posted in the Campbell County recorder on Feb. 9. The notice stated the applicant’s request for a zone change was a “zone map amendment R-1A to R1A, RCD overlay.” The actual zone change request was for “R-1A and R-RE(P) to R-1C with a residential cluster overlay.”
The next error alleged in the appeal states that the planning commission approved the stage one development plans as “woefully deficient” from the requirements of the comprehensive plan, meaning the development plans do not follow county regulations for development.
The appeal alleges conflicting language of lot size requirements between the county’s comprehensive plan and residential cluster development. The comprehensive plan recommends a minimum lot size of 12,500 square feet or ¼ of an acre. The appeal states that the stage one development plan by Maronda Homes has a lot size of 7,500 square feet because the residential cluster development does not define a minimum lot size.
“We did figure eventually, someday we’re going to lose our beautiful view out the front, with the cattle and rolling hills,” Steve Siry said. “But, one acre, two-acre, five-acre lots would be a lot better to look at than houses sitting on top of each other.”
Some of the errors alleged in the appeal regarding Maronda Home’s stage one development plans include:
- The site plan was drawn smaller than the required scale
- The lot size is smaller than the minimum size allowed
- Not including zoning designation of adjacent properties
- Lack of typography detail
- No final sidewalk locations included
- No location of water or sewer line
- Doesn’t provide specifics of a buffer for neighboring residences
- Lacks identification of sign placement at the entrances of the subdivision,
- Does not include any schedule for common areas for the dog park, two-tot lots, or other common recreational areas.
The appeal states that because the stage one development plans failed to comply with requirements from the zoning ordinance, the zone change should have never been approved since the two don’t coincide.
Mando said the fiscal court and planning commission took the correct steps throughout the process of approving the zone change and stage one development plans.
“The proposed development is consistent with the future land use component of the county’s comprehensive plan,” Mando said. “So, I feel that the fiscal court’s decision was justified in that respect.”
The appeal then alleges conflicting language regarding the zoning ordinance and subdivision regulations; the residential cluster development overlay zone requires at least 20% of an entire site to be open or have recreational areas. In contrast, the cluster residential subdivision requires at least 40%.
“There is no way to rationally synthesize the zoning code and subdivision regulations without picking to apply one but not the other, which is an arbitrary application on its face,” the appeal states.
The next error alleges that the planning commission recommended a stage one development plan that did not comply with open space requirements without requesting waivers.
A developer can request a waiver from the planning commission if their stage one development plans do not meet regulations. The appeal alleges that the stage one development plans only have one type of open space, and subdivision regulations require two different types. Maronda Homes would have needed to request a waiver from the planning commission to only include one type, which the appeal alleges they did not.
The subdivision regulations stated in the appeal require open space to be visible from the inside of the development and easily accessible. The plans for the subdivision show most of the open space behind the houses in the development.
The next error alleged in the complaint is that the planning commission did not find any facts or reasoning for Maronda’s zone change and stage one development plan approval.
The appeal claims the only findings of fact that were documented by the planning commission to support their recommendation at the April 12 meeting were from commissioner Justin Verst. Verst said he based his decision on the staff report, the evidence presented at the public hearing, and the applicant being consistent with the comprehensive plan.
The last error alleged in the appeal states that co-trustee Lynn Chilleli of the Burns family didn’t have the authority to execute the zoning application with Maronda Homes.
The zone change and stage one development plans required a signature from the landowner accepting the zone change, since Maronda Homes does not own the land yet.
According to the appeal, A 2005 amendment to the two Burns family trusts revoked Lynn Chilleli’s powers as a primary trustee, and she could no longer act on behalf of the co-trustees.
The appeal states that the zoning procedures require all landowners to sign on the zone change when the applicant is not the property owner. Because all landowners did not sign the zoning map amendment application, the planning commission lacks the authority to act upon the zone application by Maronda Homes.
The appeal then asks for a “request for injunctive relief.” This action asks the court for an injunction to stop the zone change and stage one development plans from going into effect. This would halt any construction until after the final decision on the appeal.
The appeal requests a “claim for damages by Campbell County and Municipal Planning and Zoning Commission.” The request alleges that the “planning commission members in their official capacities violated the due process rights of the plaintiffs.
“The burden, in this case, would be the burden of the plaintiffs to establish by a preponderance of the evidence that they were deprived due process, notice, and an opportunity to be heard,” Mando said. “I don’t think they’re going to be able to beat that burden at all based upon what I saw from the public hearings and the documents.”
After the June 1 Campbell County Fiscal Court meeting ruling, Megerle said his clients want to take the case as far as it needs to go.
“Whether or not this is an issue that ends up at the Kentucky Court of Appeals, or the Kentucky Supreme Court, which could add two or three or four years to this situation,” Megerle said at the meeting. “My clients are absolutely against this, and they will take it to every possible level in order to prevent the change of their rural lifestyle.”
The Sirys said if this development comes to fruition, at least they know they did everything possible to stop it.
“If I have to sit on my back porch and look at all of these houses, I can say, ‘Well, at least I tried to fight it. I didn’t just sit back and let it happen,'” Steve Siry said.
So what’s next?
The Campbell County Planning and Zoning Commission and the Campbell County Fiscal Court must submit a response to the appeal (the Burns family and Maronda Homes are also defendants in the case but have different representations.)
Then, with zone changes, the body of evidence is filed with the circuit court clerk. A briefing is then scheduled and agreed upon by the parties involved or ordered by the court.
The circuit court will then decide the appeal based upon the underlying evidence in the record, the briefs of the parties, and possible oral arguments. The circuit court judge will make their decision based upon those things.
