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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 2 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 3 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 4 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 5 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 6 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.
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