No.

__________________________

JEFFERSON CIRCUIT COURT

DIVISION _____________

OPEN LOUISVILLE, INC.

2406 Tucker Station Road
Louisville, KY 40299

PLAINTIFFS

NEIGHBORHOOD PLANNING AND PRESERVATION.

2727 Northwestern Parkway
Louisville, KY 40212
MARTINA KUNNECKE
313 Northwestern Parkway
Louisville, KY 40212
CONCERNED ASSOCIATION OF RUSSELL RESIDENTS
3950 Westport Road
Louisville, KY 40207
HAVEN HARRINGTON
528 S. 18th St.
Louisville, KY 40203
HOWARD BEDFORD
903 S. 32nd St.
Louisville, KY 40211
CASSIA HERRON
335 East St. Catherine St.
Louisville, KY 4023
WOMEN IN TRANSITION, INC.
3208 W. Broadway
Louisville, KY 40211
CHANELLE HELM
2238 Farnsley Rd.
Louisville, KY 40213
JOHN OWEN
620 North 28th St.
Louisville, KY 40212

WEST LOUISVILLE TALKS

528 S. 18th St.
Louisville, KY 40203
JOHN CARTER
1270 Morgan Ave.
Louisville, KY 40213

v.

COMPLAINT

WAL-MART REAL ESTATE BUSINESS TRUST

702 SW 8th St.
Bentonville, AR 72716
Serve: CT Corporation System
KY Home Life Bld.
Louisville, KY 40202
NEWBRIDGE DEVELOPMENT LLC
2350 New Millenium Drive
Louisville, KY 40216
Serve: Teresa L. Bridgewaters
2350 New Millenium Drive
Louisville, KY 40216
WILLIE DENNIS BROWN
4213 Norbourne Blvd., Apt. 4
Louisville, KY 40207
LINDA J. BROWN
4213 Norbourne Blvd., Apt. 4
Louisville, KY 40207
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT
527 West Jefferson Street
Louisville, KY 40202
Serve: Greg Fischer, Mayor
527 West Jefferson Street
Louisville, KY 40202

DEFENDANTS

MAYOR GREG FISCHER

Mayor, Louisville/Jefferson County
Metro Government
527 West Jefferson Street
Louisville, KY 40202
THE LEGISLATIVE COUNCIL OF LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT
601 West Jefferson Street
Louisville, KY 40202
Serve: David Tandy, President
601 West Jefferson Street
Louisville, KY 40202
LOUISVILLE AND METRO PLANNING COMMISSION
444 South Fifth Street, Suite 300
Louisville, KY 40202
Serve: Donnie Blake, Chair
444 South Fifth Street, Suite 300
Louisville, KY 40202
*

Come the Plaintiffs by counsel, and, for their Complaint, state as follows:
PARTIES

1. OPEN Louisville, Inc. (hereinafter OPEN) is a Kentucky non-profit

corporation dedicated to open government, historic preservation, protection of the
environment and neighborhood preservation and to responsible, legitimate planning and
zoning decisions.
2.

Neighborhood Planning and Preservation. (hereinafter NPP) is a

Kentucky non-profit association dedicated to preserving neighborhoods and to

responsible, legitimate planning and zoning decisions.

3. Martina Kunnecke is a Louisville Metro resident who lives at 3754

Illinois Ave is a member of and president of Neighborhood Planning and
Preservation, and is an African-American female.
4, Concerned Association of Russell Residents is an association of
residents of West Louisville who are concerned about preserving the urban and historic
nature of West Louisville in general and West Broadway in particular.
5. Haven Harrington is a resident of the Russell neighborhood of West
Louisville in Louisville Metro.
6. Howard Bedford is a resident of the Russell neighborhood of West
Louisville in Louisville Metro.
7. Cassia Herron is a resident of Louisville Metro and is an urban planner
by profession.
8. Women In Transition, Inc is a Kentucky non-profit corporation
concerned especially about the welfare of low-income women and their neighborhood
environment.
9. Chanelle Helm is a resident of Louisville Metro and a member of the
Board of Directors of Women In Transition, Inc.
10. John Owen is a resident and civic activist in the Portland area of West
Louisville in Louisville Metro.
11. West Louisville Talks is a relatively new association of West Louisville
residents interested in providing rational methods of improving the area.
12. John Carter is a resident of Louisville Metro.

13. Wal-Mart Real Estate Business Trust is the applicant to the Louisville
and Metro Planning Commission in Case 14DEVPLAN1036, an application for approval
of a development plan at 1800 West Broadway, Louisville, KY, including a waiver of
Land Development Code Section 5.5.1.A.3.a to allow a parking lot to be located in front
of the building along W. Broadway and Dixie Highway.
14. Newbridge Development LLC is the owner of a portion of the property
which is the subject of application 14DEVPLAN1036.
15. Willie Dennis Brown is, or was at the time of application, the owner of a
portion of the property which is the subject of application 14DEVPLAN1036.
16. Linda J. Brown is, or was at the time of application, the owner of a
portion of the property which is the subject of application 14DEVPLAN1036.
17. Louisville/Jefferson County Metro Government (hereinafter Louisville
Metro) is the consolidated local government agency for all of Jefferson County,
Kentucky.
18. Mayor Greg Fischer is the mayor and chief executive officer of
Louisville/Jefferson County Metro Government and has the authority by statute to
appoint eight citizen members and to determine two additional members to the Louisville
and Metro Planning Commission.
19. The Legislative Council of Louisville/Jefferson County Metro
Government (hereinafter Metro Council) is the legislative body for Louisville/Jefferson
County Metro Government and has the responsibility to approve the mayoral
appointments of the eight citizen members to the Louisville and Metro Planning
Commission.

20. Louisville and Metro Planning Commission (hereinafter Planning

Commission) is the designated planning commission for Louisville Metro under KRS
Chapter 100 and Louisville Metro Ordinance 32.840.

JURSIDICTION AND VENUE

21. This Court has proper jurisdiction and venue of Plaintiffs claims, which
involve the following:
a. The composition of the Planning Commission and the conduct of Defendants
Louisville Metro, Mayor Greg Fischer and the Metro Council, which Plaintiffs believe to
be in violation of Kentucky law and Louisville Metro ordinances, all of which occurred
in Jefferson County, Kentucky,
b. The actions of the Defendants which Plaintiffs believe to be in violation of
Article 2 of the Kentucky Constitution which prohibits arbitrary government power,
c. The jurisdiction this Court has under KRS 418.040 to make a binding
declaration of rights, and
d. The final action of the Planning Commission in application
14DEVPLAN1036, which, pursuant to KRS 100.347(2), has caused the Plaintiffs to be
injured and aggrieved.
CAUSE OF ACTION
COUNT ONE
22. Paragraphs 1-21 are incorporated herein by reference as if fully set
forth below.

23. KRS 100.137(2) provides that Louisville Metro shall have a planning
commission which shall include eight (8) members who are residents of the planning
unit, approved by the mayor and the director of public works of the consolidated local
government, or his or her designee, or the county engineer as determined by the mayor.
24. KRS 100.137(2) further provides that: The mayor shall ensure that four
(4) of the eight (8) appointees are citizens who have no direct financial interest in the land
development and construction industry.
25. Louisville Ordinance 32.840 provides that the eight appointed citizen
members of the Planning Commission shall be appointed by the mayor and shall be
subject to the approval of the Metro Council.
26. KRS 67C.139(1) provides that: Appointments made by the mayor
should reflect the diversity of the population within the jurisdiction of the consolidated
local government.
27. KRS 67C.117 (2) provides that for Louisville Metro: The percentage
of minority citizens who shall be appointed to each of its boards and commissions shall
be no less than the percentage of minority citizens in the community, or the percentage of
minority representatives on the consolidated local governments legislative body,
whichever is greater.
28. There are six African-American minority representatives on the Metro
Council out of a total of twenty-six members. That percentage of minority representatives
is twenty-three per cent (23%). Those numbers and percentages are true for all of 2014
and 2015 to date.
29. The eight appointed citizen members of the Planning Commission

currently are: a) Donnie Blake, b) Carrie Butler, c) Vincent Jarboe, d) Robert

Peterson, Jr., e) David Proffitt, f) David R. Tomes, g) Clifford Turner, and h) Lloyd
Chip White.
30. All eight appointed citizen members were appointed by Mayor Greg
Fischer and approved by the Metro Council.
31. Seven of the eight appointed citizen members are male, all except
Carrie
Butler. Both appointed government members are male.
32. Seven of the eight appointed citizen members are Caucasian (the
majority race in Louisville Metro), all except Clifford Turner. Both appointed
government members are also Caucasian.
33. By statute KRS 100.137(2), Mayor Fischer is a member of the
Planning Commission, but, as permitted by statute, he has appointed Robert Kirchdorfer
as his designee. Robert Kirchdorfer is a Caucasian male.
34. By statute KRS 100.137(2), another member of the Planning
Commission is either the director of public works of the consolidated local government,
or his or her designee, or the county engineer as determined by the mayor. Currently,
the director of public works has chosen to appoint Jeff Brown to the Planning
Commission. Jeff Brown is a Caucasian male.
35. Donnie Blake has a direct financial interest in the land development
and construction industry. Donnie Blake is President of Okolona Pest Control, Inc.,
which is a member of the Building Industry Association of Greater Louisville (hereinafter
BIALouisville). Mr. Blake is also a part owner, a director, the registered agent, and past
president of OPC Construction & Repair, Inc. a corporation owned by Mr. Blake and

members of his family. OPC Construction & Repair, Inc. is essentially a subsidiary of
Okolona Pest Control, Inc.; advertises remodeling, room additions, finishing basements,
kitchens and bathrooms and more construction items; and is also a member of the
BIALouisville.
36. Carrie Butler may or may not have a direct financial interest in the land
development and construction industry. Carrie Butler lists herself as founder and
principal of Civic+Connect where she states: my work involves connecting people and
their communities with transportation innovations, technology solutions and a strong
built environment.
37. Robert Peterson, Jr. has a direct financial interest in the land
development and construction industry. Robert Peterson, Jr. has been a homebuilder and
remodeler for 39 years. He is owner and president of Robert A. Peterson, Jr. Co., Inc.,
and is a registered builder/remodeler with BIALouisville. He was the 1991 president of
Homebuilders Association of Louisville, the predecessor of BIALouisville.
38. David Proffitt has a direct financial interest in the land development
and construction industry. David Proffitt is a Senior Architect, employed by and paid by
the University of Louisville Planning Design and Construction Department. In such
employment, he manages and coordinates the construction and renovation of the
University of Louisvilles capital construction and renovation projects.
39. David R. Tomes has a direct financial interest in the land development
and construction industry. David R. Tomes is engaged in land development management
for Traditional Town, LLC, a real estate development company which developed and
manages Norton Commons, LLC. He is involved at times in other real estate

development activities and is a registered builder with BIALouisville.

40. Clifford Turner has a direct financial interest in the land development
and construction industry. Clifford Turner is owner and president of Land Development
Services, Inc. and owner and president of Turner Realty and Management, Inc. Clifford
Turner has his present residence in Oldham County.
41. Lloyd Chip White has a direct financial interest in the land
development and construction industry. Mr. White is employed as a staff representative
and contract administrator for and paid by the Indiana/Kentucky/Ohio Regional Council
of Carpenters, an affiliate of the United Brotherhood of Carpenters, which has a centuryplus tradition of representing the best of the building trades.
42. Vincent Jarboe may or may not have a direct financial interest in the
land development and construction industry. Mr. Jarboe is the owner of Vince Jarboe
Insurance Agency, Inc., an affiliate of State Farm Insurance. His business may or may not
receive income from the land development and construction industry. He is also a
member and registered agent for Jarboe Properties, LLC, which may or may not be
involved in the land development and construction industry.
43. At least six, and maybe more, of the eight appointed citizen members
of the Planning Commission, appointed by Mayor Greg Fischer and approved by the
Metro Council, have a direct financial interest in the land development and construction
industry, which is a direct violation of KRS 100.137(2).
44. Planning Commission member Clifford Turner may presently reside in
Oldham County, not in Jefferson County, which, if true, would be a direct violation of
KRS 100.137(2).

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45. Only one of the ten appointed members (including only one of the
eight citizen members) of the Planning Commission is a female, a direct violation of KRS
67C.139(1).
46. Only one of the ten appointed members (including only one of the
eight citizen members) of the Planning Commission is an African-American, a direct
violation of KRS 67C.117(2).
47. The Planning Commission is illegally constituted according to
Kentucky Law, and is, therefore, unable to perform its statutory duties as required by law.
48. Because of the illegal constitution of the Planning Commission, the
Planning Commission, an arm of Louisville Metro Government, exercises arbitrary
power over the lives, liberty and property of the citizens of Louisville Metro, in violation
of Article 2 of the Kentucky Constitution.
49. Because of the illegal constitution of the Planning Commission caused
by Mayor Greg Fischer and the Metro Council, all of the Plaintiffs, as well as all citizens
of Louisville Metro, have been injured and aggrieved in the following ways:
a. The illegal constitution of the Planning Commission in regards
to the financial interests of the members, in violation of state law,
causes the Commission to have a bias, overt or subconscious, in
favor of any proposed action by an applicant or developer, resulting
in decisions not made with the unbiased attitude intended by
Kentucky law and intended by any good planning process. As
individuals, the planning Commission members are fine people, but
most seem to have the same view of planning and zoning and that is

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a development industry-centric view. Therefore, the Planning

Commission becomes just an echo chamber rather than a venue for
true debate, compromise and consideration of the public perspective.
b. The illegal constitution of the Planning Commission in regards
to its under-representation of minority and female members and in
regards to its under-representation of citizens without a direct
financial interest in the land development and construction industry,
in violation of state law, causes the Commission to have a more
narrow and biased view, overt or subconscious, when it comes to
planning for the entire community and for all of its citizens, a view
which may result in decisions that do not account for the diversity of
Louisville Metro.
c. The Plaintiffs, and any citizen of Louisville Metro who would
appear before the Planning Commission, have been denied due
process before the Planning Commission, which is quasi-judicial in
nature and which requires due process in all its proceedings, because
the illegal constitution of the Commission results in a body which is
in violation of state law and, therefore, unable to fulfill the duties of
the Planning Commission, and
d. The illegal constitution of the Planning Commission puts in
doubt any decisions made by that commission in the past and/or in
the future. That doubt needs to be resolved so that planning and
zoning decisions in Louisville Metro can proceed without the sword

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of Damocles hanging over every decision.

e. The above violations of Kentucky state law and the resulting lack
of due process have caused the Planning Commission to make a
decision which is arbitrary and capricious.
50. Plaintiffs Cassia Herron, Chanelle Helm and Martina Kunnecke, as
females, are especially denied equal treatment, access, consideration and due process
before the Planning Commission due to its lack of female members in violation of KRS
67C.139(1).
51. Plaintiffs Martina Kunnecke, Haven Harrington, Howard Bedford,
Cassia Herron, John Carter and Chanelle Helm, as African-Americans, are especially
denied equal treatment, access, consideration and due process before the Planning
Commission due to its lack of African-American members in violation of KRS
67C.117(2)
COUNT TWO
52. Paragraphs 1 - 51 are incorporated herein by reference as if fully set
forth below.
53. On or about March 24, 2014, an application was made by Wal-Mart
Real Estate Business Trust on property owned by Newbridge Development LLC, Willie
Dennis Brown and Linda J. Brown for a revised detailed district development plan (Case
# 14DEVPLAN1036) which included a waiver of Louisville Metro Land Development
Code (LDC) Section 5.5.1.A.3.a to allow a parking lot to be located in front of the
building along W. Broadway and Dixie Highway.
54. The property is located in the Traditional Form District.

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55. The Traditional Form District Design Standards regarding general site
design standards and parking location are stated in Section 5.5.1.A.3.a which states:
Parking location and Design. Parking lots shall not be permitted in front of
buildings and shall be located and designed to reduce or eliminate visual or
operational impacts to surrounding properties. Parking lots at or within the
maximum setback shall not be closer to the right-of-way line than the
principal structure(s). Side parking that exceeds 40 percent of the total linear
lot frontage adjacent to right-of-way shall provide a minimum 3 foot
masonry, stone or concrete wall that makes reference to a similar design
within the surrounding area extending from the principal structure across the
front of the parking area.
56. The Staff Report of the staff of the Louisville Metro Department of
Planning and Design Services concluded that the proposed site design, including
building and parking location, does not meet the intent of the Traditional Workplace form
district. In addition, staff concluded: It appears that a more creative site design is
possible that could more closely accomplish the goals of the form district, while
providing for the parking needs of the development.
57. In addition, the Planning and Design Services staff concluded:
Regarding the waiver of section 5.5.1.A.3.a to allow a parking lot to be
located in front of the building along W. Broadway and Dixie Highway, staff
finds that the waiver violates Guidelines 1, 3, 7 and 9 of the Comprehensive
Plan; that the waiver is not the minimum necessary to afford relief to the
applicant; that the applicant has not incorporated other design measures that
exceed the minimums of the district and compensate for non-compliance
with the requirements to be waived; and that strict application of the
provisions of the regulation would not deprive the applicant of the
reasonable use of the land or create an unnecessary hardship on the
applicant.
58. On December 18, 2014 and on January 29, 2915, the Planning
Commission held public hearings on Case # 14DEVPLAN1036.
59. On January 29, 2015, the Planning Commission approved the plan in

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Case # 14DEVPLAN 1036 by a vote of eight to one.

60. These hearings were held by and in front of an illegitimate Planning
Commission, thus denying the Plaintiffs due process in the proceedings.
61. Any decision or final action made by an illegitimate Planning
Commission is null and void.
62. The Plaintiffs and the public are entitled to a public hearing before a
legally constituted Planning Commission.
63 The approved plan violates Section 5.5.1.A.3.a of the Louisville
Metro Land Development Code which does not allow parking lots to be located in front
of buildings.
64. The Applicant presented no significant evidence that there is a pattern
of violation of LDC 5.5.1.A.3.a in the neighborhood of the property.
65. In contrast, the plaintiffs presented overwhelming evidence that
approximately seventy to seventy-seven percent of developed properties in the area
comply with the requirements of LDC 5.5.1.A.3.a.
66. In addition, the Plaintiffs suggested a compromise design solution to
the Land Development Code violation which would have eliminated any parking in front
of buildings to be constructed along W. Broadway and would have allowed Wal-Mart to
construct its main building in the very same location as it proposed, with all delivery
access in the same position as Wal-Mart originally proposed. At the hearings (and at
meetings prior to the hearing), Wal-Mart rejected such a compromise.
67. The approved plan violates Guidelines 1, 3, 7 and 9 of the Louisville
Metro Comprehensive Plan, known as Cornerstone 2020.

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68. The January 29, 2015, decision and vote by the Planning Commission
on 14DEVPLAN1036 was erroneous, arbitrary and capricious for at least the following
reasons:
a. Due process was denied because the Planning Commission was
illegally constituted, and
b. The Planning Commission disregarded and failed to enforce the
provisions of Cornerstone 2020 and the Louisville Metro Land
Development Code, without sufficient justification or evidence, in making
its decision, as required by law, thus resulting in an arbitrary and
capricious decision.
69. Because of the illegal constitution of the Planning Commission caused
by Mayor Greg Fischer and the Metro Council, and because of the arbitrary and
capricious decision made by the Planning Commission without adequate evidence from
the public hearings, all of the Plaintiffs have been injured and aggrieved in the following
ways:
a. The illegal constitution of the Planning Commission causes the Commission
to have a bias, overt or subconscious, in favor of any proposed action by an
applicant or developer, resulting in decisions not made with the unbiased and
diverse attitude intended by Kentucky law and intended by any good planning
process,
b. The Plaintiffs have been denied due process before the Planning Commission,
which is quasi-judicial in nature and which requires due process in all its
proceedings, and

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c. The Plaintiffs have been injured and aggrieved because an illegally constituted
Planning Commission and a Planning Commission which disregards local law and
regulations could have future negative impact on planning decisions in Louisville
Metro.

RELIEF
WHEREFORE, Plaintiffs respectfully demand the following relief:
1. That the Court declare the current composition of the Planning Commission
as illegal under Kentucky state law,
2. That the Court order Mayor Greg Fischer and the Metro Council to change the
membership of the Planning Commission so that it complies with Kentucky state law,
3. That the Court declare the decision of the Planning Commission on January
28, 2015, in Case Number 14DEVPLAN1036, null and void.
3. That the Court grant Plaintiffs a reasonable attorneys fee and all costs
expended herein to be paid by the Defendants, and
4. All other proper relief to which the Plaintiffs may be entitled.
Respectfully Submitted,

Stephen T. Porter
Counsel for Plaintiffs, KBA #55290
2406 Tucker Station Road
Louisville, KY 40299-4529
502-297-9991
stpinlou@aol.com

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