Southpointe-Commons.Pdf

NO. ______JEFFERSON CIRCUIT COURT DIVISION ______JUDGE ______

SOUTHPOINTE PARTNERS, LLC

AND

9402 BARTLEY HOMESTEAD, LLC PLAINTIFFS v.

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT

Serve: Mayor Greg Fischer Metro Hall, Fourth Floor 527 West Jefferson Street Louisville, Kentucky 40202

AND

LOUISVILLE AND METRO PLANNING COMMISSION

Serve: Vince Jarboe, Chair 444 South Fifth Street, Third Floor Louisville, Kentucky 40202

AND

LEGISLATIVE BODY OF THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, a/k/a METRO COUNCIL

Serve: President David James Presiding Judge: HON. AUDRA J. ECKERLE (630291) 601 West Jefferson Street, Suite 101 Louisville, Kentucky 40202

AND

000001 of 000031 COM : 000001 of 000031

EVANSVILLE TEACHERS FEDERAL CREDIT UNION, d/b/a LIBERTY FINANCIAL

Serve: Kentucky Secretary of State 700 Capital Avenue, Suite 86 Frankfort, Kentucky 40601

Serve: Bill Schirmer, President and CEO Evansville Teachers Federal Credit Union 4401 Theater Drive Evansville, Indiana 47715

AND

SUSANNE W. JENKENS REVOCABLE TRUST

Serve: Susanne W. Jenkens, Trustee 17008 Shelbyville Road Fisherville, Kentucky 40023

AND

SUSANNE W. JENKENS REVOCABLE TRUST DATED MAY 5, 1999

Serve: Susanne W. Jenkens, Trustee 17008 Shelbyville Road Fisherville, Kentucky 40023

AND

SUSANNE W. JENKENS, IN HER CAPACITY AS TRUSTEE OF THE SUSANNE W. JENKENS REVOCABLE TRUST, IN HER CAPACITY AS TRUSTEE OF THE SUSANNE W. JENKENS REVOCABLE TRUST DATED MAY 5, 1999, Presiding Judge: HON. AUDRA J. ECKERLE (630291) AND IN HER INDIVIDUAL CAPACITY

Serve: Susanne W. Jenkens 17008 Shelbyville Road Fisherville, Kentucky 40023

AND

000002 of 000031 COM : 000002 of 000031

GARY W. JENKENS REVOCABLE TRUST

Serve: Gary W. Jenkens, Trustee 17008 Shelbyville Road Fisherville, Kentucky 40023

AND

GARY W. JENKENS REVOCABLE TRUST DATED MAY 6, 1999

Serve: Gary W. Jenkens, Trustee 17008 Shelbyville Road Fisherville, Kentucky 40023

GARY W. JENKENS, IN HIS CAPACITY AS TRUSTEE OF THE GARY W. JENKENS REVOCABLE TRUST, IN HIS CAPACITY AS THE TRUSTEE OF THE GARY W. JENKENS REVOCABLE TRUST DATED MAY 6, 1999, AND IN HIS INDIVIDUAL CAPACITY

Serve: Gary W. Jenkens 17008 Shelbyville Road Fisherville, Kentucky 40023

AND

HEATHER J. AYERS

Serve: Kentucky Secretary of State 700 Capital Avenue, Suite 86 Frankfort, Kentucky 40601

Serve: Heather J. Ayers Presiding Judge: HON. AUDRA J. ECKERLE (630291) 7640 Ponte Verde Way Naples, Florida 34109-7121

AND

DERRICK AYERS

Serve: Kentucky Secretary of State 700 Capital Avenue, Suite 86 Frankfort, Kentucky 40601 000003 of 000031 COM : 000003 of 000031

Serve: Derrick Ayers 7640 Ponte Verde Way Naples, Florida 34109-7121

AND

CHRISTIAN B. JENKENS

Serve: Kentucky Secretary of State 700 Capital Avenue, Suite 86 Frankfort, Kentucky 40601

Serve: Christian B. Jenkens 314 Sedgefield Drive Raeford, North Carolina 28376

AND

COURTNEY E. JENKENS

Serve: Kentucky Secretary of State 700 Capital Avenue, Suite 86 Frankfort, Kentucky 40601

Serve: Courtney E. Jenkens 314 Sedgefield Drive Raeford, North Carolina 28376

AND

BRITTNEY J. BOLYARD

Serve: Brittney J. Bolyard 520 Locust Creek Blvd. Louisville, Kentucky 40245 Presiding Judge: HON. AUDRA J. ECKERLE (630291)

AND

ANDREW BOLYARD

Serve: Andrew Bolyard 520 Locust Creek Blvd. Louisville, Kentucky 40245

AND 000004 of 000031 COM : 000004 of 000031

AARON JENKENS

Serve: Aaron Jenkens 14903 Huntridge Circle Louisville, Kentucky 40245

AND

SUZANNE JENKENS

Serve: Suzanne Jenkens 14903 Huntridge Circle Louisville, Kentucky 40245 DEFENDANTS

COMPLAINT

SouthPointe Partners, LLC (“SouthPointe Partners”) and 9402 Bartley Homestead, LLC

(“Bartley Homestead”), for their Complaint against Louisville Metro/Jefferson County

Government, Louisville and Metro Planning Commission, and the Legislative Body of the

Louisville/Jefferson County Metro Government, a/k/a Metro Council (collectively “Metro”);

Evansville Teachers Federal Credit Union, d/b/a Liberty Financial (“Liberty Financial”); Susanne

W. Jenkens Revocable Trust, Susanne W. Jenkens Revocable Trust dated May 5, 1999, Susanne

W. Jenkens, in her capacity as Trustee of the Susanne W. Jenkens Revocable Trust, in her capacity as Trustee of the Susanne W. Jenkens Revocable Trust dated May 5, 1999, and in her individual capacity, Gary W. Jenkens Revocable Trust, Gary W. Jenkens Revocable Trust dated May 6, 1999, Presiding Judge: HON. AUDRA J. ECKERLE (630291)

Gary W. Jenkens, in his capacity as the Trustee of the Gary W. Jenkens Revocable Trust, in his capacity as the Trustee of the Gary W. Jenkens Revocable Trust dated May 6, 1999, and in his individual capacity, Heather Ayers, Derrick Ayers, Christian B. Jenkens, Courtney E. Jenkens,

Brittney J. Bolyard, Andrew L. Bolyard, Aaron Jenkens, and Suzanne Jenkens (collectively

“Jenkens Defendants”), and hereby state as follows: 000005 of 000031 COM : 000005 of 000031

NATURE OF ACTION

SouthPointe Partners is currently constructing the $80+ million SouthPointe Commons commercial development in Fern Creek just south of the Gene Snyder Freeway and east of

Bardstown Road. SouthPointe Commons will bring badly needed jobs, commerce, restaurants, and tax revenues to that underserved area. At the groundbreaking of this exciting project, Mayor

Fischer commended SouthPointe Partners’ persistence, recognizing that it had to fend off numerous delays and fulfill rigorous regulatory requirements to invest in an underserved area of this City. Specifically, Mayor Fischer complimented SouthPointe Partners’ cooperative approach and willingness to work with all interested parties to get a “sorely needed” project done:

Most people would have been out of here a long long time ago. And at first when I saw this event on my schedule, I said “are we getting together to talk about another delay to the project?” Because there have been so many obstacles to get this thing done, as [SouthPointe Partners’ member] Frank [Csapo] just outlined there. And the persistence of Mike, Frank, the whole team to say “the vision of this project is worth doing. We’re going to get this done.” It is really a fantastic way to see how everybody has come together. This is much more than what is going to be a great retail experience and restaurant experience here. It is really a case study on how to work with our local school system, public safety, the state, the council, the city, to get a really complicated project done that is sorely, sorely needed for the community.

[See also https://www.youtube.com/watch?v=g7gnqyDz2Uc (7:00 mark)(emphasis added)].

Mayor Fischer could not have said it better. One of the most expensive and rigorous regulatory requirements Metro required SouthPointe Partners to fulfill related to traffic.1 Namely, Presiding Judge: HON. AUDRA J. ECKERLE (630291) Bardstown Road and the Gene Snyder Freeway are extremely busy, often-congested highways in the vicinity of SouthPointe Commons. Accordingly, before Metro would allow SouthPointe

Commons to even file a formal application for a zoning change from residential to commercial, it

1 SouthPointe Partners’ predecessor in interest was Bardstown Capital Corporation, and it was Bardstown Capital Corporation who technically pursued the rezoning giving rise to SouthPointe Commons. For simplicity’s sake SouthPointe Partners collectively refers to itself and its 000006 of 000031 predecessors in interest as “SouthPointe Partners” throughout this Complaint. COM : 000006 of 000031

required SouthPointe Partners to pay for an extensive traffic analysis of the entire area. Moreover,

Metro required that SouthPointe Partners obtain the Kentucky Transportation Cabinet’s

(“KYTC’s”) and Metro Public Works’ (“MPW’s”) approvals of any recommended changes to the roadways before SouthPointe Partners could file its formal zoning change application:

Extensive traffic analysis completion is required for this proposal prior to formal filing. It is our understanding that traffic studies are currently underway. Review and approval by KTYC and MPW will be required once completed and prior to any docketing of the case to [the Land Design and Traffic Committee]. Traffic is a major concern regarding this site and not only its impact on Bardstown Rd. but the surrounding neighborhood roads and internal to the site.

[Exhibit A, 9/24/2008 Agency Comments on SouthPointe Partners’ Zoning Change Application].

Metro’s requirement of (a) extensive, area-wide traffic studies, and (b) KYTC’s pre- approval of any changes to traffic patterns and plans, was prudent and critical given that traffic is a major concern in this area. What is more, SouthPointe Commons needs traffic to flow well in this area for its substantial investment in Fern Creek to succeed.

The extensive traffic study showed that SouthPointe Partners would need to connect its new private road that would service its development—Southpointe Boulevard—with Bardstown

Road through a new, signalized, three-leg “T” intersection south of the Gene Snyder Freeway (“the

Intersection”). The evidence showed that a “T” intersection was necessary to provide an efficient and effective traffic flow on Bardstown Road, as well as into and out of SouthPointe Commons.

So that is exactly what Metro required that SouthPointe Partners construct at a cost of more than Presiding Judge: HON. AUDRA J. ECKERLE (630291)

$2 million.

In fact, one of the Planning Commissioners at the time was traffic engineer Tom Stockton.

After reviewing the evidence, Commissioner Stockton stated on the record that if the Intersection were a four-leg intersection, as opposed to a three-leg “T” intersection, it would “fail” from

congestion. [Exhibit B; Minutes from 5/20/2010 LMPC Hearing in Case 11640]. 000007 of 000031 COM : 000007 of 000031

This critical intersection cannot be allowed to fail from congestion. Not only is a steady flow of traffic necessary to protect the safety of all drivers who use Bardstown Road and the Gene

Snyder Freeway, it is also required by Metro’s Comprehensive Plan. It is also absolutely necessary for the $80 million SouthPointe Commons development to succeed. Put bluntly, if traffic does not flow properly in the area, SouthPointe Partners will not be able to attract new businesses to its

“sorely needed” development in Fern Creek. Metro understood that years ago, which is why it required the thorough vetting of the Intersection, and a traffic impact study of the Bardstown Road corridor and surrounding areas. From that critical information Metro reached its ultimate conclusion that the Intersection must be a three-leg “T” intersection.

Unfortunately Metro has seemingly forgotten that background, as it recently approved a rezoning application by Liberty Financial that calls for the addition of a fourth leg to the

Intersection. In doing so Metro did not require Liberty Financial to demonstrate that the proposed change to the critical Intersection would not cause it to “fail” as a Metro official previously declared would happen. Metro also did not require Liberty Financial to demonstrate the impact of the change on traffic in the surrounding corridor and neighborhood as required by Metro’s

Comprehensive Plan. Nor did Metro require Liberty Financial to obtain KYTC’s review and preapproval of any changes to traffic patterns prior to docketing the rezoning case for consideration—which is exactly what it did when SouthPointe Partners applied to rezone the Presiding Judge: HON. AUDRA J. ECKERLE (630291) property just across the street.

If those inconsistent actions were not arbitrary enough, it gets worse. Liberty Financial proposed creating the fourth leg of the Intersection by relocating the entire eastern end of Bartley

Drive—an existing east/west residential street on the west side of Bardstown Road—southward from its current junction with Bardstown Road to the Intersection of Southpointe Boulevard and 000008 of 000031 COM : 000008 of 000031

Bardstown Road, where it would tie in as the fourth leg of the signalized intersection. In presenting this plan, Liberty Financial incorrectly represented to Metro that Bartley Drive is a public street that can be closed and rerouted pursuant to Metro’s street closure process. Metro obviously accepted Liberty Financial’s incorrect declaration as true, and approved the resulting rezoning.

But Bartley Drive is not public. It is instead a private road that is jointly owned and maintained by all of the property owners along it. Metro cannot claim that it was unaware of this fact, as the street sign Metro placed at the far eastern end of Bartley Drive correctly declares

Bartley Drive to be private. What is more, Metro’s on-line LOJIC database identifies all of Bartley

Drive as “non-metro” and not State owned, meaning that it is all private. SouthPointe Partners informed Metro of this fundamental, fatal flaw in Liberty Financial’s application during the review process, but Metro did not seem to care. It approved the rezoning as though Bartley Drive is a public street that can and will be closed and rerouted pursuant to Metro’s street closure process— despite the fact that Metro’s own street sign correctly declares Bartley Drive to be private.

Metro’s approval of Liberty Financial’s rezoning application provides a textbook example of arbitrary government action. The rezoning not only lacks substantial evidentiary support, it exceeds Metro’s powers, and violates the procedural due process rights of the owners of Bartley

Drive, including Bartley Homestead. Accordingly, the rezoning should be overturned and vacated.

To be clear, SouthPointe Partners does not oppose commercial development on the west Presiding Judge: HON. AUDRA J. ECKERLE (630291) side of Bardstown Road. In fact, it welcomes such development. Nor does SouthPointe Partners oppose the concept of Bartley Drive being “plugged in” as the fourth leg of the Intersection.

SouthPointe Partners does, however, firmly oppose any such action unless and until it is supported by sufficient evidence showing that the action will not put the Intersection—and thus SouthPointe

Partners’ $80 million investment in Fern Creek that depends entirely on it—at risk of failure, which 000009 of 000031 COM : 000009 of 000031

Metro officials previously said would be the result. Metro properly required SouthPointe Partners to (a) demonstrate the impact of its development on traffic at the Intersection, the corridor, and the community as a whole, and (b) pay for the traffic improvements needed to ensure that traffic would move efficiently and effectively through the corridor. Metro must now likewise require anyone seeking to plug in as a “fourth leg” to this critical Intersection to do the same, and its failure to require that of Liberty Financial requires the reversal of the rezoning at issue.

PARTIES AND JURISDICTION

1. SouthPointe Partners is a limited liability company organized under the laws of

Kentucky with its principal place of business at 3810 Springhurst Boulevard, Suite 120, Louisville,

Kentucky 40241.

2. SouthPointe Partners is the owner of certain property located in the Fern Creek neighborhood, southeast of the Bardstown Road interchange with the Gene Snyder Freeway in

Louisville, Kentucky, with an address of 7301-8505 Bardstown Road, a/k/a 9803 Wingfield Road.

3. Bartley Homestead owns property underlying, abutting and/or adjacent to Bartley

Drive, a private road located in southeastern Jefferson County, Kentucky.

4. Bartley Homestead owns Bartley Drive along with the other landowners who own property underlying, abutting, and/or adjacent to Bartley Drive.

5. SouthPointe Partners is currently developing an $80+ million commercial Presiding Judge: HON. AUDRA J. ECKERLE (630291) development known as SouthPointe Commons on the land described in Paragraph 2.

6. Defendant Louisville/Jefferson County Metro Government is a consolidated local government, incorporated and operating in the Commonwealth of Kentucky pursuant to authority granted by the Kentucky General Assembly at KRS § 67C.101, et seq., and the voters of Jefferson

County, Kentucky. Louisville Metro is operated by a Mayor and a Legislative Body, a/k/a Metro 000010 of 000031 COM : 000010 of 000031

Council, who appoint and approve, respectively, the members of Louisville and Metro Planning

Commission (“LMPC”). Further, Louisville Metro has adopted the Louisville Metro Code of

Ordinances and the Louisville-Jefferson County Land Development Code, which are applied and

enforced by the LMPC.

7. Defendant LMPC is, and at all relevant times hereto was, the duly created, appointed, and acting authority within Louisville, Jefferson County, Kentucky, to hear evidence on, and make recommendations to, Metro Council on zoning matters and map amendments under KRS

Chapter 100.

8. Defendant the Legislative Body of Louisville/Jefferson County Metro Government, a/k/a Metro Council, is, and at all relevant times hereto was, the duly created, appointed, and acting legislative body within Louisville, Jefferson County, Kentucky. Louisville Metro Council takes final actions relating to map amendments and zoning changes within its jurisdiction under KRS

Chapter 100.

9. Defendant Evansville Federal Teachers’ Credit Union, d/b/a Liberty Financial

(“Liberty Financial”), is a federal credit union who is the applicant in Metro Planning and Design

Case 20-ZONE-0041, wherein Liberty Financial applied for the rezoning of land on the west side of Bardstown Road, south of the Gene Snyder Freeway, in order to develop a credit union on the land. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

10. Defendants Susanne W. Jenkens Revocable Trust, Susanne W. Jenkens Revocable

Trust dated May 5, 1999, Susanne W. Jenkens, in her capacity as the Trustee of the Susanne W.

Jenkens Revocable Trust, in her capacity as the Trustee of the Susanne W. Jenkens Revocable

Trust dated May 5, 1999, and in her individual capacity, Gary W. Jenkens Revocable Trust, Gary

W. Jenkens Revocable Trust dated May 6, 1999, Gary W. Jenkens, in his capacity as the Trustee 000011 of 000031 COM : 000011 of 000031

of the Gary W. Jenkens Revocable Trust, in his capacity as the Trustee of the Gary W. Jenkens

Revocable Trust dated May 6, 1999, and in his individual capacity, Heather Ayers, Derrick Ayers,

Christian B. Jenkens, Courtney E. Jenkens, Brittney J. Bolyard, Andrew L. Bolyard, Aaron

Jenkens, and Suzanne Jenkens are the current owners of the property that Metro approved for rezoning in Case No. 20-ZONE-0041 (“the Subject Property”).

11. The Court has personal jurisdiction over Defendants as the acts and omissions giving rise to this litigation occurred in Jefferson County, Kentucky, the land at issue in this litigation is located in Jefferson County, Kentucky, and the rezoning at issue took place in Jefferson

County, Kentucky.

12. The Court has personal jurisdiction over all of the parties to this case, and subject matter jurisdiction over this action, pursuant to KRS 100.347.

13. Venue is proper in this Court pursuant to KRS 100.347, and because the actions that are the subject of this case occurred in Jefferson County, Kentucky, and the injuries at issue in this lawsuit took place in Jefferson County, Kentucky.

BACKGROUND

The SouthPointe Commons Development.

14. SouthPointe Commons is a commercial development currently under construction just southeast of the Bardstown Road and Gene Snyder Freeway (I-265) interchange. Presiding Judge: HON. AUDRA J. ECKERLE (630291) 15. SouthPointe Commons represents an $80+ million investment in the Fern Creek neighborhood.

16. SouthPointe Commons is anticipated to include well-known and needed retailers and national establishments that are currently not servicing the area, such as Panera Bread, which is the first business in SouthPointe Commons. 000012 of 000031 COM : 000012 of 000031

17. The construction of SouthPointe Commons will result in approximately 1,000 construction jobs, and when built out and absorbed, the retail activity will support 560 permanent jobs, with part-time employment to area youth. There is an anticipated annual payroll of $10.9 million from those jobs.

18. Using reasonable assumptions on taxable value per square foot, by type of building,

Dr. Paul Coomes, professor emeritus of economics at the University of Louisville, estimates an increase in property taxes to state and local government of about $193,000 annually, with the bulk of that going to the Jefferson County Public Schools.

19. Local governments will receive approximately $220,000 annually in occupational tax receipts. This includes revenues to the Louisville-Jefferson County Metro Government,

TARC, and Jefferson County Public Schools.

20. In total, Kentucky governments will receive approximately $6.5 million annually in sales, income, and property tax receipts, from the SouthPointe Commons development.

21. It is absolutely critical to the economic well-being of Fern Creek, as well as

SouthPointe Partners, that SouthPointe Commons succeed, and not be choked by traffic gridlock.

What Metro Required From SouthPointe Commons In Its Rezoning To Ensure The Intersection At Issue Would Work.

22. SouthPointe Partners filed a petition to rezone the property that is now SouthPointe

Commons in 2008. One of the biggest regulatory requirements that Metro required SouthPointe Presiding Judge: HON. AUDRA J. ECKERLE (630291)

Partners to fulfill—if not the biggest—was to take actions ensuring that traffic and mobility would be maintained, if not improved, in the already highly congested Bardstown Road corridor.

23. Specifically, Metro required SouthPointe Partners to commission and pay for an

“extensive traffic analysis” of the entire corridor and surrounding area, which included, but was 000013 of 000031 COM : 000013 of 000031

not limited to, the impacts SouthPointe Commons would have upon the nearby interchange of

Bardstown Road and the Gene Snyder Freeway. See Exhibit A.

24. Metro also required SouthPointe Partners to obtain pre-approval from KYTC of any changes to traffic patterns and plans resulting from SouthPointe Commons before allowing

SouthPointe Partners to even submit a formal rezoning application. See Exhibit A.

25. Specifically, Metro said the following: “Extensive traffic analysis completion is required for this proposal prior to formal filing. It is our understanding that traffic studies are currently underway. Review and approval by KTYC and MPW will be required once completed and prior to any docketing of the case to [the Land Design and Traffic Committee]. Traffic is a major concern regarding this site and not only its impact on Bardstown Rd. but the surrounding neighborhood roads and internal to the site.” See Exhibit A.

26. Metro’s requirement that SouthPointe Partners (a) perform extensive, area-wide traffic studies, and (b) obtain KYTC pre-approval of any changes to traffic patterns and plans, was necessary given that traffic is a major concern in this area.

27. Metro required that SouthPointe Partners (a) perform extensive, area-wide traffic studies, and (b) obtain KYTC pre-approval of any changes to traffic patterns and plans, so as to ensure that the project complied with Metro’s Comprehensive Plan.

28. Metro required KYTC’s pre-approval of any changes to traffic patterns and plans Presiding Judge: HON. AUDRA J. ECKERLE (630291) so that if KYTC required any changes, those changes could be reviewed for compliance with

Metro’s Comprehensive Plan.

29. Metro’s Comprehensive Plan, which prior to January 1, 2019 was titled

Cornerstone 2020, and thereafter was updated and is now titled “Plan 2040” (collectively, the 000014 of 000031 COM : 000014 of 000031

“Comprehensive Plan”), has numerous requirements that a proposed development must fulfill with respect to traffic and mobility.

30. The Comprehensive Plan requires Metro to “evaluate developments for their impact on the transportation network (including the street, pedestrian, transit, freight movement and bike facilities and services) and air quality.”

31. The Comprehensive Plan also requires Metro to “ensure that necessary improvements occur in accordance with long-range transportation plans and level of mobility criteria for all modes of travel.”

32. The Comprehensive Plan also requires Metro to “expand the traffic signal coordination program to limit idling and protect public health while increasing the safety and capacity of the current road network.”

33. The Comprehensive Plan also requires Metro to “ensure that those who propose new developments bear or share in rough proportionality the costs of transportation facilities and services made necessary by development.”

34. Metro fulfilled these Comprehensive Plan requirements in connection with its evaluation and approval of the rezoning for SouthPointe Commons.

35. The extensive traffic analysis that Metro required SouthPointe Partners to perform included, but was not limited to, a detailed study of the development’s impact on numerous traffic Presiding Judge: HON. AUDRA J. ECKERLE (630291) signals and intersections to both the north and south of Bardstown Road, including the critical, coordinated, signalized intersections to both the north and south of the Gene Snyder Freeway.

36. The result of the extensive traffic analysis that Metro required SouthPointe Partners to perform, and KYTC reviewed and approved, was a requirement that SouthPointe Partners 000015 of 000031 COM : 000015 of 000031

construct a signalized, three-way intersection between SouthPointe Boulevard and Bardstown

Road, with SouthPointe Boulevard to the east of Bardstown Road (“the Intersection”).

37. Interestingly, the original schematics for the Intersection produced by SouthPointe

Partners allowed for a “fourth leg” on the western side of the Intersection now at issue:

38. KYTC and Metro, however, required SouthPointe Partners to revise its plans and eliminate the “fourth leg” due to the serious traffic problems and congestion that a “fourth leg” would create for the corridor and neighborhood: Presiding Judge: HON. AUDRA J. ECKERLE (630291)

000016 of 000031 COM : 000016 of 000031

39. Specifically, KYTC and Metro found that allowing a fourth leg to be added to the

Intersection would cause traffic to dangerously stack up on both Bardstown Road and the Gene

Snyder Freeway, particularly during the evening rush hour.

40. In fact, Commissioner Tom Stockton, who is a traffic engineer, explicitly stated that the Intersection would “fail” if a fourth leg is added thereto:

Commissioner Stockton commented that adding a fourth leg to the proposed intersection (if the property across Bardstown Road were to develop) would fail.

[Exhibit B].

41. SouthPointe Partners was told that a in order for a fourth leg to be added to the

Intersection without causing failure, a third southbound traffic lane would need to be added to

Bardstown Road between the Gene Snyder Freeway’s eastbound ramp to Bardstown Road past the intersection of Bardstown Road and Brentlinger Lane.

42. In accordance with these declarations and requirements, SouthPointe Partners paid to construct the “T” intersection that was required by Metro and KYTC, and supported by the extensive traffic studies those entities required of the corridor and surrounding neighborhoods.

43. In 2018-2019, SouthPointe Partners paid over $2 million to build the three-legged

“T” intersection and the supporting infrastructure, which currently works, and will continue to work, in its current status.

44. SouthPointe Partners also voluntarily made improvements worth over $800,000.00 Presiding Judge: HON. AUDRA J. ECKERLE (630291) to provide an entirely new access to Bates Elementary School so that buses can use SouthPointe

Boulevard, and the signalized Intersection, to safely access and exit Bardstown Road. Just as the

Mayor recognized, SouthPointe Partners appreciates and cooperates with its neighbors whenever it possibly can. 000017 of 000031 COM : 000017 of 000031

Metro Did Not Require, And Liberty Financial Did Not Provide, Sufficient Evidence Showing The Impact The Proposed Addition Of A Fourth Leg To The Intersection Will Have On The Intersection, The Corridor, and The Area.

45. SouthPointe Commons is immediately across Bardstown Road from the Subject

Property in rezoning Case No. 20-ZONE-0041, which underlies this KRS 100.347 appeal.

46. Traffic remains a major concern regarding this site, and not only its impact on

Bardstown Road, but the surrounding neighborhood roads, including SouthPointe Boulevard.

47. Despite the critical importance of traffic in this area, Metro did not require Liberty

Financial to perform any traffic study—much less the “extensive” traffic study it required

SouthPointe Partners to perform—to demonstrate the impact its proposed development would have on traffic in this area. In fact, Metro docketed the case with its Land Development and

Transportation Committee (“LD&T”), which is a critical step in the public review and approval process, with no traffic information at all.

48. Metro also did not require Liberty Financial to obtain KYTC’s pre-approval of any changes to traffic patterns and plans prior to docketing the case with LD&T—something it required of SouthPointe Partners for the prior rezoning of land immediately across the street.

49. At the first LD&T meeting on Case No. 20-ZONE-0041, which was held on June

25, 2019, SouthPointe Partners appeared and objected to the rezoning based upon the proposed fourth leg of the Intersection. SouthPointe Partners reminded Metro of the reason the Intersection Presiding Judge: HON. AUDRA J. ECKERLE (630291) is a three-leg “T” intersection. SouthPointe Partners also reminded Metro of its prior concern that the addition of a fourth leg to the Intersection would have a disastrous impact on traffic.

SouthPointe also pointed out that approval of the fourth leg without any traffic data whatsoever would arbitrarily and capriciously violate the requirements of the Comprehensive Plan’s requirements on mobility. 000018 of 000031 COM : 000018 of 000031

50. The LD&T Committee continued the case until July 9, 2020. At that meeting,

Liberty Financial presented a traffic impact study prepared by Diane Zimmerman just three days earlier.

51. Ms. Zimmerman’s study, however, was very limited in nature. She testified “the purpose of this study was to almost solely determine whether or not left turn protection would be able to be provided on Bardstown Road to Bartley. That was the intent of this study and not a major look at Bardstown Road.” [Emphasis added].

52. At the July 9, 2020 LD&T meeting, Ms. Zimmerman testified that if Liberty

Financial’s project is completed, the level of service on southbound Bardstown Road will degrade during the critically important afternoon rush hour from a grade of “A” to a grade of “D” “due to allowing the fourth leg. The SouthPointe Commons [stoplight] will function as—we call that a split cycle. SouthPointe will go, then Bartley will go, and just dividing up that almost four minutes and carving out another 20 seconds to let Bartley exit has a significant impact on southbound

Bardstown Road.”

53. The degradation of traffic at the Intersection from a grade of “A” to a grade of “D” due to the proposed fourth leg is a reason for serious concern, further study, and further remedial measures.

54. Ms. Zimmerman’s limited traffic study did not consider anything other than traffic Presiding Judge: HON. AUDRA J. ECKERLE (630291) forecasted counts at the Intersection. There was no consideration given whatsoever to the impact of “upstream” and “downstream” intersections, including, but not limited to, the intersections at the interchange between Bardstown Road and the Gene Snyder Freeway, which Metro demanded and required in connection with SouthPointe Partners’ rezoning application, and which is 000019 of 000031 COM : 000019 of 000031

necessary under the Comprehensive Plan. Such a study is also necessary and critical given that the stoplights in this section of the Bardstown Road corridor are coordinated in their timing.

55. Ms. Zimmerman also confirmed that her limited traffic study only included projections on the traffic impact by the credit union proposed for Tract 1 and the residential drivers from Bartley Drive. It did not include any projections on the traffic impact of the eventual development of Tract 2 of the Subject Property, even though Tract 2 is being rezoned as part of this rezoning, and will eventually be developed for commercial purposes.

56. Ms. Zimmerman’s limited traffic study also does not include projections of the impact that eventual development of land surrounding the Subject Property will have on traffic in the Intersection and neighborhood. Such surrounding tracts, however, will almost certainly be developed if Liberty Financial’s project is completed, as evidenced by the fact that the Applicant’s petition includes curb cuts to other properties. Moreover, Liberty Financial’s application was explicitly supported by its prospective neighbor to the north, who testified that the fourth leg is essential to the orderly development of the west side of Bardstown Road.

57. Ms. Zimmerman’s limited traffic impact study does not provide sufficient analysis of the impact the fourth leg will have on SouthPointe Boulevard, and the impact it will have on the businesses and entities that are, and will be, located on that private street.

58. The entities that will be using the first driveway to the right off of SouthPointe Presiding Judge: HON. AUDRA J. ECKERLE (630291)

Boulevard near the Intersection is Bates Elementary. Ms. Zimmerman’s traffic impact study does not provide any analysis of the impact the fourth leg will have on Bates Elementary, and the buses that will be using the Intersection.

59. Neither Ms. Zimmerman’s limited traffic study, nor any of the other proof offered by Liberty Financial, shows the economic impact that the admitted negative impact, such as the 000020 of 000031 COM : 000020 of 000031

admitted degradation from a grade of “A” to a grade of “D” caused by the fourth leg, will have on the viability of the SouthPointe Commons development that Mayor Fischer correctly proclaimed to be “sorely, sorely needed” in Fern Creek.

60. Ms. Zimmerman’s limited traffic study also did not study or consider the impacts of the fourth leg on the surrounding neighborhoods.

61. SouthPointe Partners again opposed the application at the July 9, 2020 meeting, pointing out that insufficient data had been provided to demonstrate that adding the fourth leg to the Intersection as proposed would not result in the gridlock and failure that Metro officials previously declared would occur if the Intersection has four legs. SouthPointe Partners observed that if Liberty Financial’s rezoning is approved upon the limited traffic study provided, the approval would arbitrarily and capriciously violate the requirements of the Comprehensive Plan.

62. Despite SouthPointe Partners’ opposition, the LD&T committee forwarded the entire Case No. 20-ZONE-0041 to the LMPC for consideration on August 20, 2020.

63. Liberty Financial’s case-in-chief. Planning Commissioner Mims asked Ms.

Zimmerman “I’m surprised by the traffic study and just how bad things are. Is that SouthPointe’s contribution, or is something else going on here? Ms. Zimmerman responded, “I hesitate to say that it’s SouthPointe’s only. It’s a unique situation where SouthPointe’s approval was based on it being a three-legged intersection. To accommodate the pedestrian movements that are Presiding Judge: HON. AUDRA J. ECKERLE (630291) needed to allow for the fourth leg it creates more delay that might appear on the surface than would be expected.” [Emphasis added.].

64. SouthPointe Partners, through counsel, attended the August 20, 2020 LMPC hearing, at which it again opposed the rezoning application on grounds that the requirements of 000021 of 000031 COM : 000021 of 000031

the Comprehensive Plan had not been satisfied, and approval of the rezoning application would therefore be arbitrary, capricious, and unreasonable.

65. At the August 20, 2020 hearing SouthPointe Partners also presented the testimony of traffic engineer Jeff Weller to demonstrate just how inadequate Ms. Zimmerman’s traffic impact study was when trying to determine the impact that adding a fourth leg to the Intersection would have on the Intersection, the area, and the interconnected lights through that corridor.

66. In rebuttal to Mr. Weller’s testimony, Ms. Zimmerman made a truly remarkable statement. Specifically, she declared that Metro is under no duty to determine the impact the proposed “fourth leg” to the Intersection would have on the entire corridor, or what changes to

Bardstown Road would be necessary to keep the corridor fluid in order to serve the needs of those in the immediate community, because KYTC would have an opportunity to do that when it considers Liberty Financial’s construction permit after the rezoning is granted:

What I want this commission to understand is that the Kentucky Transportation Cabinet will require a permit for the construction of this intersection. And until it meets all of their requirements it won’t get a permit. So if the cabinet wants more offset on the Bardstown Road left turn lanes, they will require it. If the Cabinet wants a southbound right turn lane on Bardstown Road, they will require it. And they are the last word, they get the final say on how this intersection gets designed and whether or not they can live with the delays created by realigning Bartley Drive and creating a four-legged intersection. . . . If they want a traffic impact study with the entire corridor in it, they will ask for it at the time the permit is requested.

67. Ms. Zimmerman is wrong. As evidenced by the prior SouthPointe Partners Presiding Judge: HON. AUDRA J. ECKERLE (630291) rezoning, Metro is under a duty to ensure, and usually does ensure, that critical intersections in

Louisville do not fail. Metro cannot abdicate its duties under the Comprehensive Plan to the KYTC and its construction permitting process as Ms. Zimmerman suggests. In other words, Metro cannot approve an intersection that might cause it to fail upon the mere hope and prayer that at some later date, KYTC will do a thorough analysis of the corridor and require unknown changes to keep the 000022 of 000031 COM : 000022 of 000031

traffic moving. But that is exactly what Ms. Zimmerman said that Metro could do, with members of LMPC indicating that they agreed.

68. Metro has every bit as much power and responsibility as KYTC to ensure that important intersections work properly and therefore do not harm Metro residents and businesses.

That is, after all, exactly what Metro did during the SouthPointe Commons rezoning, when it required KYTC review and approval of SouthPointe Partners’ extensive traffic analysis “prior to any docketing of the case to LD&T.” When SouthPointe Partners was the rezoning applicant

Metro made sure it had the last word—not KYTC.

69. Despite the absence of sufficient evidence of the fourth leg will have on the

Intersection, the Bardstown Road corridor, and the surrounding community, LMPC voted on

August 20, 2020, to recommend that Louisville Metro Council approve Liberty Financial’s requested change in zoning from R-4, single family residential to C-1, Commercial on the Subject

Property described in the legal description attached to the application.

70. The recommendation was then forwarded to Metro Council for consideration and final action.

71. On November 19, 2020, the Metro Council voted to uphold the LMPC’s recommendation to rezone the Subject Property, which constituted a map amendment and the final action in Case No. 20-ZONE-0041. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

72. By doing so, Metro failed to fulfill the Comprehensive Plan requirement to evaluate the development underlying Case No. 20-ZONE-00041 for its impact on the transportation network (including the street, pedestrian, transit, freight movement and bike facilities and services) and air quality. 000023 of 000031 COM : 000023 of 000031

73. By doing so, Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying 20-ZONE-00041 to ensure that necessary improvements occur in accordance with long-range transportation plans and level of mobility criteria for all modes of travel.

74. By doing so, Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying 20-ZONE-00041 for its traffic signal coordination program to limit idling and protect public health while increasing the safety and capacity of the current road network.

75. By doing so, Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying 20-ZONE-0041 to “ensure that those who propose new developments bear or share in rough proportionality the costs of transportation facilities and services made necessary by development.”

76. At bottom, the rezoning cannot be allowed to stand. It was arbitrary, capricious, unreasonable, improper, and unfair for Metro to (a) require SouthPointe Partners to pay to demonstrate through traffic studies of the entire area what impact the Intersection would have on the entire Bardstown Road corridor and surrounding community, (b) require SouthPointe Partners to spend over $2 million building the three-leg “T” Intersection because Metro and KYTC found that a four-leg intersection will not work, (c) allow SouthPointe Partners to thereafter continue to Presiding Judge: HON. AUDRA J. ECKERLE (630291) spend millions of dollars constructing SouthPointe Commons in reliance on the Intersection working, only to (d) allow Liberty Financial to come in and add a fourth leg to the Intersection without determining the impact that such a significant change will have on the Intersection, the corridor, and the area—a change that a Metro Planning Commissioner, who is also a traffic engineer, predicted would cause the Intersection to “fail.” 000024 of 000031 COM : 000024 of 000031

77. Metro did not perform the required comprehensive planning when considering and approving Liberty Financial’s rezoning application. It instead engaged in ad hoc, piecemeal planning—the very kind of short-sighted planning that results in harmful traffic gridlock.

The Rezoning Is Premised Entirely On The Flawed Premise That Bartley Drive Is A Public Street That Can Be Closed And Realigned.

78. From the outset, Liberty Financial has represented to Metro that the portion of

Bartley Drive that it wants to close and relocate to become the fourth leg of the Intersection is a public street subject to Metro’s street closure process. In fact, Liberty Financial filed a Street

Closure Application, 20-STRCLOSURE-2010, in connection with its rezoning application.

79. Only public streets, however, are subject to Metro’s street closure process. Private roads are not. Under Kentucky law, in order to close or realign a private road, all of the owners of that private road must explicitly consent to any change in their property rights.

80. Contrary to Liberty Financial’s incorrect representations, all of Bartley Drive is a private road—including the parts that Liberty Financial seeks to close and relocate.

81. Liberty Financial did not obtain—and did not even attempt to obtain—consent from

Bartley Drive’s landowners to make these changes to their private road. Liberty Financial has only submitted the consent of the owners of the Subject Property it sought to have rezoned.

82. In fact, Liberty Financial did not even provide notice of its planned development and the related rezoning to all landowners along Bartley Drive. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

83. Metro approved the proposed rezoning in total reliance on Liberty Financial’s incorrect representation that Bartley Drive is a public street that can be closed and relocated pursuant to Metro’s street closure process. 000025 of 000031 COM : 000025 of 000031

84. In fact, Metro imposed a binding element upon the rezoning entitled “Bartley Drive

Realignment,” which requires, in part, “a road closure for existing Bartley Drive shall be recorded following the recordation of the major subdivision plat to realign Bartley Drive.”

85. Metro should not have taken this action because it already knew, or at least should have known, that Liberty Financial’s characterization of Bartley Drive as “public” was incorrect.

86. Metro’s knowledge that Bartley Drive is a private road is firmly evidenced by the fact that Metro installed a street sign at the intersection of Bartley Drive and Bardstown Road—a place that Liberty Financial contends that Bartley Drive is public—correctly labeling the entire street as “PVT” for “Private.” See Exhibit C.

87. Moreover, Metro maintains and publishes a mapping database known as “LOJIC.”

One of the things that a LOJIC maps shows is the “maintenance responsibility” for all of the streets and roads within Jefferson County. Metro’s LOJIC map shows that the maintenance responsibility for all of Bartley Drive is “non-metro,” and not owned by the State, which means that it is private.

If the portion of Bartley Drive that Liberty Financial proclaims to be public were actually public,

Metro’s LOJIC map would show the maintenance responsibility as “metro.” It does not. See

Exhibit D.

88. SouthPointe Partners specifically flagged this foundational flaw underlying all of

Liberty Financial’s applications at the August 20, 2020 LMPC meeting, even going so far as to Presiding Judge: HON. AUDRA J. ECKERLE (630291) point out to the LMPC that Metro’s own signage and database show that all of Bartley Drive is a private street.

89. Metro, however, chose to disregard its own, correct determination of Bartley

Drive’s status—which it literally published on its street sign and its on-line LOJIC database—and 000026 of 000031 COM : 000026 of 000031

instead approved the rezoning upon the incorrect premise that Bartley Drive is a public street subject to the street closure process.

90. By approving the rezoning Metro also took actions affecting the property rights of

FIRST CLAIM FOR RELIEF (KRS 100.347 APPEAL)

91. SouthPointe Partners and Bartley Homestead repeat and re-allege each and every preceding paragraph of this Complaint as if incorporated herein.

92. SouthPointe Partners and Bartley Homestead were injured by the November 18,

2020 final action of Metro Council approving the rezoning in Case No. 20-ZONE-0041.

93. Metro’s approval of the rezoning was erroneous, arbitrary, capricious, unreasonable, biased, an abuse of its powers, and done in excess of its authority.

94. Metro’s approval of the rezoning was arbitrary, capricious, and unreasonable as

Metro failed to fulfill the Comprehensive Plan requirement to evaluate the development underlying

Case No. 20-ZONE-00041 for its impact on the transportation network (including the street, Presiding Judge: HON. AUDRA J. ECKERLE (630291) pedestrian, transit, freight movement and bike facilities and services) and air quality.

95. Metro’s approval of the rezoning was arbitrary, capricious, and unreasonable as

Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying Case No. 20-ZONE-00041 to ensure that necessary improvements occur in accordance with long-range transportation plans and level of mobility criteria for all modes of travel. 000027 of 000031 COM : 000027 of 000031

96. Metro’s approval of the rezoning was arbitrary, capricious, and unreasonable as

Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying Case No. 20-ZONE-00041 for its traffic signal coordination program to limit idling and protect public health while increasing the safety and capacity of the current road network.

97. Metro’s approval of the rezoning was arbitrary, capricious, and unreasonable as

Metro failed to fulfill the Comprehensive Plan requirement that it evaluate the development underlying Case No. 20-ZONE-0041 to “ensure that those who propose new developments bear or share in rough proportionality the costs of transportation facilities and services made necessary by development.”

98. It was wholly arbitrary, capricious, unreasonable, and improper for Metro to (a) require SouthPointe Partners to pay to demonstrate through traffic studies that the incredibly important Intersection would work, (b) require SouthPointe Partners to design it as a three-leg “T” intersection because a four-leg intersection will “fail,” (c) require SouthPointe to spend over $2 million to construct an intersection that works, (d) allow SouthPointe to thereafter spend millions of dollars to build the Intersection serving as the critical entry to its $80 million investment, that it demonstrated to work, only to (e) allow Liberty Financial to come along and add a fourth leg to the Intersection in without demonstrating that it will not cause the critical intersection to “fail” as previously predicted by a Metro official. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

99. Metro’s approval of the rezoning was also arbitrary, capricious, and unreasonable because it is premised entirely upon Bartley Drive being a public street subject to the street closure process, which it is not. In fact, Metro approved of the rezoning despite proclaiming to the entire world that Bartley Drive is a private street on a Metro-owned street sign and it the Metro-owned 000028 of 000031 COM : 000028 of 000031

LOJIC database. Metro thereby approved the rezoning without substantial evidentiary support, and in direct contradiction to its prior published determination of the status of Bartley Drive.

100. By approving the rezoning Metro also took actions affecting the property rights of

Bartley Drive’s owners without providing them with notice of what is actually happening, and without providing them with any opportunity to be heard on what is actually happening. To the extent Bartley Drive landowners even received notice of Liberty Financial’s applications—and not all of them did—the owners were only provided notice of a potential rezoning and potential closure of a public street—which Bartley Drive is not. Metro has therefore violated the procedural due process rights of the landowners along Bartley Drive who own the private street, and has thereby acted arbitrarily, capriciously, and unreasonably.

101. By approving the rezoning Metro also acted in excess of its granted powers. Metro had no authority to approve a rezoning premised upon the closure and rerouting of a private street when the developer has not obtained the consent to the closure and rerouting from all of the landowners who jointly own the private road.

102. Metro also acted in excess of its granted powers by demanding, through a binding element, the closure of a private street through Metro’s public street closure process, which can only be used in connection with public streets.

103. As a result, the rezoning and all related approvals provided by Metro in Case No. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

20-ZONE-0041, as well as all binding elements, should be overturned, set aside, and vacated.

SECOND CLAIM FOR RELIEF (DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF)

104. SouthPointe Partners and Bartley Homestead repeat and re-allege each and every preceding paragraph of this Complaint as if incorporated herein.

105. There is presently a dispute between the parties as to the issues set forth above. 000029 of 000031 COM : 000029 of 000031

106. Based upon the foregoing allegations, this Court should enter a declaration and injunction prohibiting Metro from arbitrarily approving any rezoning or related development plans allowing the addition of a fourth leg to the Intersection. This injunction should include, but not be limited to, a requirement that any applicant seeking to add a fourth leg to the Intersection must perform an extensive traffic analysis that includes, but is not limited to, the nearby Bardstown

Road corridor, surrounding neighborhoods, SouthPointe Boulevard, and Bates Elementary School so that Metro can determine what, if any, improvements to the Intersection or related roadways it will need to require of the developer to ensure that the Intersection does not fail, and to ensure that mobility and air pollution in the area are adequately addressed in compliance with the

Comprehensive Plan—just as SouthPointe Commons was required to do when it applied to rezone the land across the street.

107. Based upon the foregoing allegations, this Court should enter a declaration and injunction prohibiting Metro from approving any zoning, development plan, street closure, or any other development application premised upon the rerouting of, closure of, or development on any portion of Bartley Drive unless all landowners who own Bartley Drive have first unanimously consented to the proposed rerouting, closure, or development.

108. Based upon the foregoing, the Court should declare Liberty Financial’s pending

Street Closure Application, 20-STRCLOSURE-0010, to be null and void as a matter of law. Presiding Judge: HON. AUDRA J. ECKERLE (630291)

WHEREFORE, Plaintiffs respectfully request a Judgment against Defendants that:

A. Overturns and vacates the rezoning, the binding elements, and all related approvals provided by Metro in connection with Case No. 20-ZONE-0041;

B. Enjoins and prohibits Metro from arbitrarily approving any rezoning, related development plans, or street closure plans allowing the addition of a fourth leg to the Intersection. 000030 of 000031 COM : 000030 of 000031

This injunction should include, but not be limited to, requiring the applicant to perform an extensive traffic analysis of the entire Bardstown Road corridor, surrounding neighborhoods, and traffic from Bates Elementary school and SouthPointe Boulevard that will show what, if any, improvements to the intersection or related roadways are necessary to ensure that the intersection does not fail—just as SouthPointe Commons was required to do;

C. Enjoins Metro from approving any zoning, or related development plan, premised upon the rerouting of, closure of, or development on any portion of Bartley Drive unless all landowners who own Bartley Drive have first unanimously consented to the proposed rerouting of, closure of, or development of Bartley Drive;

D. Declares Liberty Financial’s pending Street Closure Application, 20-

STRCLOSURE-0010, to be null and void as a matter of law; and

E. That grants Plaintiffs any other relief to which they may be entitled.

Respectfully submitted,

/s/ Christopher W. Brooker Christopher W. Brooker [email protected] Jonathan L. Baker [email protected] Jordan M. White [email protected] WYATT, TARRANT & COMBS, LLP 400 West Market Street, Suite 2000 Louisville, Kentucky 40202-2898 Presiding Judge: HON. AUDRA J. ECKERLE (630291) 502.589.5235

Counsel for Plaintiffs

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