COMMONWEALTH OF KENTUCKY CAMPB) CIRCUIT COURT DIVISIO} caSENOT AO CCAS BEVERLY HILLS SUPPER CLUB, RESPECT THE DEAD, LLC A KENTUCKY NON-PROFIT LIMITED LIABILITY COMPANY AND LESLIE DISCHAR HENRY AND ROBIN THORNHILL AND TRACY BECKELHYMER PLAINTIFFS/APPELLANTS ve CAMPBELL COUNTY AND MUNICIPAL PLANNING AND ZONING. COMMISISON AND ITS MEMBERS, LARRY BARROW, ROGER MASON, C.J. PETERS. MARK TURNER, MICHAEL WILLIAMS, SHARON, HAYNES, DENNIS BASS, EDWARD STUBBS, AND JUSTIN VERST IN THEIR OFFICIAL CAPACITIES AND CITY OF SOUTHGATE, KENTUCKY AND JAMES HAMBERG MAYOR, CITY OF SOUTHGATE IN HIS OFFICIAL AND PERSONAL CAPACITY AND CITY OF SOUTHGATE CITY COUNCIL AND ITS MEMBERS, LEANNA MARIE HOMANDBERG, JOSEPH ANDERSON, PATRICIA HAYLEY, Page 1 of 40,PAUL MELVILLE, CHRIS ROBISCH, AND DANIEL SPELER IN THEIR OFFICIAL AND PERSONAL CAPACITIES AND ASHLEY COMMERCIAL GROUP, LLC 3005 DIXIE HIGHWAY EDGEWOOD, KENTUCKY 41017 SERVE: FBT LLC, REGISTERED AGENT 400 WEST MARKET STREET 32ND FLOOR LOUISVILLE, KY 40202 BY: CERTIFIED UNITED STATES MAIL AND ‘TWIN TOWERS, DEFENDANTS/APPELLEES AN OHIO NON-PROFIT CORPORATION 5343 HAMILTON AVENUE CINCINNATI, OHTO 45224 SERVE: GH & R BUSINESS SERVICES, INC. 312 WALNUT STREET, SUITE 1800 CINCINNATI, OHIO 45202 BY: KENTUCKY SECRETARY OF STATE VERIFIED CIVIL COMPLAINT, ZONING MAP AMENDMENT, AND CONDITIONAL USE APPEAL ‘The Plaintiffs Appellants Beverly Hills Supper Club, Respect, the Dead, LLC, Leslie Dischar Henry, Robin Thornhill, and Tracy Beckelhymer for their civil complaint and appeal, by counsel, state as follows: JURISDICTION AND VENUE 1. This proceeding involves final action by the Defendant/ Appellees, Page 2 of 40Campbell County Planning and Zoning Commission and its members, Larry Barrow, Roger Mason, CJ Peters, Mark Turner, Michael Williams, Sharon Haynes, Dennis Bass, Edward Stubbs, and Justin Verst (hereinafter “planning commission”) who adopted a conditional use permit for the subject property. And this action involves action by the ‘Southgate City Council and its members, LeAnna Marie Homandberg, Joseph Anderson, Patricia Hayley, Paul Melville, Chris Robisch, and Daniel Speier, (hereinafter “city council”) on August 19, 2020 approved the application of Ashley Development and the City of Southgate to amend the City of Southgate’s zoning ordinance (hereinafter “zoning map”) for certain parcels located within the jurisdictional boundaries of the City of Southgate and commonly known as the “Beverly Hills Supper Club” site located at PIDNs: 999-99-11-021.00 and 999-99-10-976.00. This Appeal is brought under Ky. Rev. Stat. § 100.347(1),(2),(3) authorizing an appeal by an aggrieved person from “a final action of a planning commission or legislative body” in “any court of competent jurisdiction.” Ky. Rev. Stat. § 100.347(1) authorizes an appeal from a board of adjustment for an application for a conditional use permit such as the one applied for herein by Defendant/Appellee Ashley Commercial Group, LLC. Ky. Rev. Stat. § 100.347(2) authorizes an appeal from a planning commission recommendation for an application for a zoning map amendment such as the one applied for herein by Defendant/AppelleeCity of Southgate. Finally, Ky. Rev. Stat. § 100.347(3) authorizes an appeal from final action of a legislative body of a city for adopting a recommendation from a planning commission. adjustment for an application for a conditional use permit such as the one applied for herein by Defendant/Appellee Ashley Commercial Group, LLC. _ Ky. Rev. Stat. § 100.347(2),(3) provides that, generally appeals of ‘planning commission decisions or the legislative body is taken in the “Circuit Court of the county Page 3 of 40in which the property lies.” Furthermore, Ky. Rev. Stat. § 452.400(4) and Ky Rev. Stat. § 452.460 provide actions for injury to real property are brought in the county in which the property lies. This proceeding is an action for declaration of rights brought under the Kentucky Declaratory Judgment Act, Ky. Rev. Stat. § 418.040 et seq. and other ‘common law actions for damages. Venue is proper as the land subject to the map amendment is located in Campbell County. 1D} F THE, 1) Plaintiff, Beverly Hills Supper Club, Respect the Dead, LLC, is a non-profit Kentucky limited liability company that was organized for the benefit and support of victims, family members of victims, first responders, fire fighters and other stakeholders with an interest in the preservation of the memory of the Beverly Hills Supper Club fire and disaster, one of the largest fire disasters in the history of the United States. Its members appeared and opposed the map amendment and conditional use permit at both the Campbell County and Municipal Planning and Zoning Commission and before the City of Southgate City Council. Its principal address is 520 LaFayette Avenue, Bellevue, Campbell County, Kentucky. Plaintiff has standing to bring this action as its members have been aggrieved and injured by the final action of the planning commission and the city council in approving the application. 2) Plaintiff, Leslie Dischar Henry, is a natural person and a citizen of Campbell County, Kentucky. Her mother, Rose Dischar, was an employee of the Beverly Hills Supper Club and died in the fire. Ms. Henry and her siblings only received a portion of her mother’s remains after the fire. Her mother’s remains that were unaccounted are Page 4 of 40interred at the subject property known as the Beverly Hills Supper Club Site. She is a member of the Beverly Hill Supper Club, Respect the Dead non-profit. She spoke in opposition to the application for a map amendment without specific conditions placed on the developer. She has been aggrieved by the final action of the planning commission and city council in approving the application. 3) Plaintiff, Robin Thornhill, is a natural person and is a citizen of Hamilton County, Ohio. Her immediate family members visited the Beverly Supper Club and died in the fire. She is a member of the Beverly Hills Supper Club, Respect the Dead on- Profit. She spoke in opposition to the application for a map amendment without specific conditions placed on the development. She has been aggrieved by the final action of the planning commission and city council in approving the application. 4) Plaintiff, Tracy Beckelhymer, is a natural person and a citizen of Southgate, Campbell County, Kentucky. She is a member of the Beverly Hills Supper Club, Respect the Dead non-profit. She spoke in opposition to the application for a map amendment without specific conditions placed on the development. She has been aggrieved and injured by the final action of the planning commission and city council in approving the application. 5) Defendant, Larry Barrow, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County. He is named in his official capacity. 6) Defendant, Roger Mason, is a natural person and an appointed member of the Page 5 of 40Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County, He is named in his official capacity. 7) Defendant, C.J. Peters, is a natural person and an appointed chairman of the Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County. He is named in his official capacity. 8) Defendant, Mark Turner, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County. He is named in his official capacity. 9) Defendant, Michael Williams, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County. He is named in his official capacity. 10)Defendant, Sharon Haynes, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. She is a citizen of Campbell County. She is named in her official capacity. 11) Defendant, Dennis Bass, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He isa citizen of Campbell County. He is named in his official capacity. 12) Defendant, Edward Stubbs, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He is a citizen of Campbell County. He is named in his official capacity. Page 6 of 40,13) Defendant, Justin Verst, is a natural person and an appointed member of the Campbell County and Municipal Planning and Zoning Commission. He is citizen of Campbell County. He is named in his official capacity. 14) Defendant, City of Southgate, Kentucky is a body politic, a municipal corporation, and a home rule city who was the applicant for the zoning map amendment that is the subject matter of this action. 15) Defendant, James Hamberg, is a natural person and is the duly elected Mayor of the City of Southgate. His principal place of business is 150 Walnut Street, Southgate, Campbell County, Kentucky. As the chief executive officer of the city he is charged with ensuring the city complies with Kentucky laws and duties placed upon it by the General Assembly. He is named in his official and personal capacity. 16) Defendant, LeAnna Marie Homandberg, is a natural person and a duly elected member of the Southgate City Council, She is a citizen of Southgate. She is a member of the legislative body that adopted the map amendment ordinance that is the subject matter of this appeal and civil complaint. She is named in her official and personal capacity. 17) Defendant, Joseph Anderson is a natural person and a duly elected member of the Southgate City Council. He is a citizen of Southgate. He is a member of the legislative body that adopted the map amendment ordinance that is the subject matter of this appeal and civil complaint. He is named in his official and personal capacity. 18) Defendant, Patricia Hayley is a natural person and a duly elected member of Page 7 of 40,the Southgate City Council. She is a citizen of Southgate. She is a member of the legislative body that adopted the map amendment ordinance that is subject matter of this appeal and civil complaint. She is named in her official and personal capacity. 19) Defendant, Paul Melville is a natural person and was appointed as a member of the Southgate City Council to an unexpired term. He is a citizen of Southgate. He isa member of the legislative body that adopted the map amendment ordinance that is the subject matter of this appeal and civil complaint. He is named in his official and personal capacity. 20) Defendant, Chris Robisch is a natural person and is a duly elected member of the Southgate City Council. He is a citizen of Southgate. He is a member of the legislative body that adopted the map amendment and ordinance that is the subject matter of this appeal and civil complaint. He is named in his official and personal capacity. 21) Defendant, Daniel Speier is a natural person and is the duly elected member of the Southgate City Council. He is a citizen of Southgate. He is a member of the legislative body that adopted the map amendment and ordinance that is the subject matter of this appeal and civil complaint, He is named in his official and personal capacity. 22)Defendant/Appellee, Ashley Commercial Group, LLC (hereinafter “Ashley”) is a Kentucky limited liability company with a principal address of 3005 Dixie Highway, Edgewood, Kenton County, Kentucky. It entered into a development Page 8 of 40agreement with the City of Southgate for the development of the Beverly Hills Supper Club site. Upon information and belief, Ashley has an option to purchase the land that encompasses the former Beverly Hills Supper Club. 23)Defendant/Appellee, Twin Towers, is an Ohio non-profit corporation that owns real property in Southgate, Campbell County, Kentucky located and described as PIDN 999-99-11-021.00 and 999-99-10-976.00 and encompasses approximately 122 acres of land that makes up the entirety of the former Beverly Hill Supper Club. It is named as a party to this action as the owner of the subject property of this appeal. Itis a required and indispensable party under Ky. Rev. Stat. § 100.3474). ZAC’ UN" 24) On May 28, 1977 the Beverly Hills Supper Club caught fire and burned to ground causing the death of 165 people. It remains one of the largest night club fires in the history of the United States. 25) Leslie Dischar Henry's mother, Rose Dischar, worked at the Supper Club and died in the fire. Leslie Dischar Henry and her siblings only received a torso from the coroner. The remaining parts of her body remain interred at the Beverly Hill Supper Club site. 26)While the fire raged, looters ascended the hill where Interstate 471 was under construction. Fire fighters, police, paramedics and others witnessed looters mutilate corpses by cutting off fingers and other body parts to obtain rings and other jewelry from the victims. Page 9 of 4027)The heat from the fire was so intense many victims’ bodies were melted and so badly burned complete remains were not returned to the next of kin and family members, 28) The day after the fire, Governor Julian Carroll ordered the Kentucky State Police to take control of the fire site and demolition commenced on the property while recovery efforts by the local coroner, first responders and others continued. 29)The last victims of the fire were not discovered until days after the fire. 30) A full archaeological survey after the demolition of the supper club to find and remove any human remains has never occurred. 31) The Beverly Hills Supper Club site has remained private property since the fire. Survivors, victim’s of family members, first responders, and other stakeholders have only had access to the site over the last 40 years by acts of grace of the property owners. 32)Defendant/ Appellee, Twin Towers took ownership of the subject property in 2001. The property it owns encompasses 122 acres of land and has parcel identification numbers of 999-99-11-021.00 and 999-99-10-976.00. 33)All 78 acres of the parcel 999-99-11-021.00 and 999-99-10-976.00 is currently zoned “Professional Office” under the Southgate Code of Ordinances and its zoning map. 34)The applicant, City of Southgate sought to re-zone 44 acres of the site from Page 10 of 40“Professional Office” to Residential 1-E with a residential cluster overlay “R-1E/RCD” and 29 acres from “Professional Office” to “Residential 3° to allow for the assisted living facility and apartments, and finally 5 acres from “Professional Office” to “General Commercial” to accommodate a memorial along the side of U.S. 27. 35)The notice, staff report, and meeting agenda, and minutes from the Campbell County and Munieipal Planning and Zoning Commission reference an applicant, Ashley Development Group, LLC seeking a site development plan and conditional use permit for Memorial Point Residential Community. The conditional use permit was for the construction and operation of an assisted living facility in the R-3 zone and for certain subdivision waivers. 36)Ashley Development Group, LLC does not exist. It is unknown why planning staff notified the public and the planning commission of the application for an entity that does not exist. 37) Ashley Commercial Group, LLC entered into a development agreement with the City of Southgate. 38) Defendant/Appellees, council member defendants at their January 15, 2020 council meeting entered into executive session under Ky. Rev. § 61.810(1)(g) “discussion between a public agency and a representative of a business entity and discussions concerning a specifie proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business.” Upon information and belief this executive session was called to negotiate the terms of the development Page 11 of 40agreement with the Ashley Commercial Group. Allegedly no action was taken in executive session. 39)Defendant/Appellees, council members at their February 5, 2020 council meeting entered into executive session under Ky. Rev. 61.810(1)(g) “discussion between @ public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business.” Upon information and belief this executive session was called to continue to negotiate the terms of the development agreement with the Ashley Commercial Group. Allegedly no action was taken in executive session. 40) Electronic mail communications between the mayor, city staff, and Campbell County and Municipal Zoning Commission staff show discussions were well already well underway and the mayor and city had already approved the map amendment and conditional use permits well in advance of any formal submission to the city council or planning commission. 41) Defendant/Appellees, council member defendants at their February 19, 2020 council meeting entered into executive session under Ky. Rev. 61.810(4)(g) “discussion between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business. Upon information and belief this executive session was called to negotiate the terms of the development agreement with the Ashley Commercial Group. Allegedly no action was taken in executive session, 42)The city council’s meeting on April 1, 2020 meeting commenced via Page 12 of 40Facebook Live. At this online meeting, a representative of Ashley Construction (sic) publicly discussed a potential development of the Beverly Hills Supper Club site for the first time. Discussion and drawings were tendered. 43)Though no action had been publicly taken prior to the April Fool's Day, 2020 city council meeting (April 1), the city attorney presented a first reading of Ordinance 20-04 to approve a development agreement with Ashley Commercial Group, authorize the mayor to execute the instrument, and to forward an application to the Campbell County and Municipal Planning and Zoning Commission, 44) At the Defendant/Appellees, city council members held their regular May 6, 2020 meeting again via Facebook Live. At this meeting, there were limited public comments read by Councilmember Homandberg who was also the moderator of the city’s Facebook account. 45)Upon information and belief, the mayor and city councilmembers took advantage of COVID-19 allowances to permit virtual and non-traditional meetings to occur purposely and capriciously limit transpareney and opportunities for the public and citizens of Southgate to be informed of imminency of the largest development in Southgate since the construction of the Beverly Hills Supper Club itself, 46) The Defendant/Appellees voted 6-0 with a voice vote adopted the Ordinance to direct the mayor to execute the development agreement and to take the steps outlined in the development agreement to apply for a map amendment to the Southgate, Kentucky zoning ordinance. Page 13 of 4047) Under Ky. Rev. Stat § 100.213, the city is not required to submit an application for a map amendment to the planning commission, 48) The planning commission received an application from the City of Southgate dated June 5, 2020, less than a month after execution of the development agreement. 49) The planning commission received an application for a conditional use permit from Defendant, Ashley Commercial Group, LLC, not Ashley Development Group dated June 4, 2020. 50) The Campbell County and Municipal Planning & Zoning Commission scheduled a special meeting for July 15, 2020 at the Southgate Civic Center to conduct a public hearing for a map amendment and a conditional use permit application the “Memorial Point” project located at the Beverly Hills Supper Club site. 51) The legal notice of the special meeting was advertised in the Campbell County Recorder on July 2, 2020 and July 9, 2020. The legal notice failed to notify the publie or opponents of the opportunity to question the applicants. ‘The legal notices only advised the public the public hearing for the “purpose of obtaining testimony for the following cases which relate to the development of land including the former Beverly Hills Supper Club site.” And the legal notice names Ashley Development Group as an applicant and that entity does not exist. 52)The July 14, 2020 public hearing was called to order by Chairman C.J. Peters, ‘The meeting was videotaped by the Campbell County public access staff. 53) Atno time during the hearing, did the chair advise the opponents or Page 14 of 40applicants of the opportunity to cross examine each other and that the hearing would proceed as a “trial-like” hearing as required by Chapter 100 and Kentucky common law. 54)The map amendment and conditional use permit were adopted unanimously Recommended and approved by the planning commission. 55) The planning commission transmitted the record to the Southgate City Council. 56)At the Southgate City Council meeting on August 5, 2020, the planning commission’s recommendation was “laid upon the table” along with a first reading of an ordinance to amend the city’s zoning code in accordance with the application for a zoning amendment and site development plan and conditional use permit for Memorial Point Residential Community. 57) At the meeting, the city attorney advised the city council of the council's options relative to the zoning amendment. She advised the city council that it could conduct its own public hearing as there was opposition to the map amendment, rely on the public hearing record from planning commission and conduct an “argument-style” where the applicants and opponent's counsel would have an opportunity to make arguments in support or against the map amendment, or conduct a hybrid public hearing and argument style. 58)The city attorney after inquiry from members of the city council advised the city council to conduct an “argument-style hearing,” 59)A motion was made to conduct an “argument-style” hearing and it passed by a voice vote. The “argument-style” hearing was set for August 19, 2020 at the city council’s regularly scheduled council meeting. Page 15 of 4060) At the time, the city council had only received the transmittal of the planning commission’s record earlier that day and was unaware of the procedural deficiencies at the planning commission public hearing. 61)Prior to the August 19, 2020 meeting, the city attorney and applicant were put on notice in writing of the deficiencies of the planning commission's public hearing. 62)The August 19, 2020 city council was convened. 63)After the mayor opened the public hearing, Plaintiffs/Appellants’ counsel was permitted to lodge a formal objection to the hearing before the city council to proceed as an “argument-style” hearing based on the deficiencies at the planning commission, notably the failure of an opportunity of opponents to cross examine the application in a ial-like” hearing as required by Louisville v. McDonald. ‘The applicant's counsel requested the hearing proceed and that no due process violation had occurred, 64) Public testimony and additional evidence was entered into the record during an “argument-style” hearing in contradiction to Kentucky law. 65)Despite knowing additional evidence was not permitted to be introduced or reviewed or heard by the city council, the city attorney and mayor allowed for various items to be introduced by members of the local volunteer fire department, Ashley's counsel, but not the opponents. The city’s attorney was well aware of this prohibition as this same issue was raised in another contentions zoning matter involving Ashley and evidence in that appeal show the same city attorney advised the opponent's counsel there was a total prohibition to entry of any additional evidence during an “argument- style” hearing under Kentucky law. 66) Again, councilmembers sought counsel from the city attorney who advised Page 16 of 40them she had reviewed the written record and that she believed the due process had been afforded at meeting. 67)The mayor polled the council and the consensus was to proceed with the argument-style hearing. 68) _ Atno time prior to the commencement of arguments were the Plaintifis/Appellants’ counsel advised of the amount of time for his argument. He was told at the beginning of his argument by the mayor as presiding officer he would have 6 minutes that was extended to 8 minutes at the request of counsel. 69) The city council after taking a short recess after arguments adopted the map amendment unanimously by a roll call vote. 70) Additional findings of fact were read into the record along with a motion to approve the map amendment by Councilmember Anderson. ‘Those findings of fact include statements and averments made in Ashley's letter that was not part of the planning commission record. 71) Plaintiffs/Appellant were injured and aggrieved by the violation of their due process rights. 72)This timely appeal follows, iT OF iON ZONING MAP AMENDMENT APPEAL AND CONDITIONAL USE PERMIT APPEAL EIRST ASSIGNMENT OF ERROR THE CAMPBELL COUNTY PLANNING COMMISSION'S SPECIAL PUBLIC HEARING ON JULY 14, 2020 CONSTITUTED A DENIAL OF PROCEDURAL DUE PROCESS 73) The above numbered paragraphs are incorporated by reference as if re-stated Page 17 of 40in their entirety herein. 74) The City of Southgate does not conduct its own zoning administration. It has contracted as allowed by Chapter 100 participates with other municipalities that make up the Campbell County and Municipal Planning and Zoning Commission to administer zoning issues for it. 75)The Campbell County Planning and Zoning Commission is governed by its bylaws as allowed under Ky. Rev. Stat-§ 100.167. A copy of the Bylaws of the Campbell County and Municipal Planning and Zoning Commission, as revised October 14, 2014, 76)Under Article 7, Meetings and Hearings the governing bylaws of the planning commission provide the following rules governing all public hearings, “Public hearing testimony by the applicant shall be limited to a total of thirty (30) minutes; for the ‘opposition shall be limited to a total of thirty (30) minutes; and for those in favor or neutral to the application shall be limited to a total of fifteen (15) minutes unless additional time is granted by the Chair fe 1d the start of the hearing. This of cross exami mn. 77) The Campbell County and Municipal Planning & Zoning Commission scheduled a special meeting for July 15, 2020 at the Southgate Civie Center to conduct a public hearing for a map amendment and a conditional use permit application the “Memorial Point” project located at the Beverly Hills Supper Club site. 78)The legal notice of the special meeting was advertised in the Campbell County Page 18 of 40Recorder on July 2, 2020 and July 9, 2020. The legal notice failed to notify the public or opponents of the opportunity to question the applicants. ‘The legal notices only advised the public the public hearing for the “purpose of obtaining testimony for the following cases which relate to the development of land including the former Beverly Hills Supper Club site...” And the legal notice names Ashley Development Group as an applicant and that entity does not exist. 79) The July 14, 2020 public hearing was called to order by Chairman C.J. Peters. ‘The meeting was videotaped by the Campbell County public access staff. 80) _ After opening the public hearing, Chairman Peters made the following colloquy to the audience to explain how the public hearing would proceed, Staff will present the case. The applicant will then have a brief presentation. The commissioners may have questions for staff, the applicant, or its representatives. After that, we will then open the floor for public input, for those for, those opposed, and those neutral. The public should address their comments to the planning commission. If a response is needed I will direct staff or the applicant to provide additional information. ‘The commission may ask questions of those commenting to better understand... 81) Chairman Peters failed to advise those gathered at the hearing that under the planning commission's bylaws, opponents would have an opportunity to “cross examine” the applicant. 82) The videotape of the meeting shows on at least one occasion where an attendee raised their hand to question the applicant but the chair refused to given the floor. 83) _ Plaintiffs/Appellants were in attendance at the planning and zoning commission. 84) The chair’s actions and conduct of the meeting violate the planning Page 19 of 40commission's bylaws as to the legal procedure for the conduct of public hearings before the Campbell County and Municipal Planning and Zoning Commission, 85)Plaintiffs/Appellants were never given adequate notice in the legal meeting notice or by the chair at the beginning of the meeting during his colloquy that opponents or those neutral would have an opportunity to cross examine the applicants, 86) Procedural due process requires notice prior to the hearing of this nature. In-order to satisfy notice, the applicant or the commission cannot be materially misleading such that a person in opposition has no opportunity to provide a meaningful rebuttal or cross examination. 87)Procedural due process requires notice and a meaningful opportunity to be heard in a “trial-like” public hearing before the planning commission. Louisville v. MeDonald, 470 S.W.34 173 (Ky. 1971). Plaintiffs did not have requisite notice of the trial-like requirement of the public hearing or the opportunity to cross-examine the applicants as required by the planning commission's bylaws. 88) The planning commission recommended the map amendment to the Southgate zoning ordinance and transmitted the record to the Southgate City Council. 89) At the Southgate City Council meeting on August 5, 2020, the planning commission's recommendation was “laid upon the table” along with a first reading of an ordinance to amend the city’s zoning code in accordance with the application for a zoning amendment and site development plan and conditional use permit for Memorial Point Residential Community. 90) At the meeting, the city attorney advised the city council of the council's options relative to the zoning amendment. She advised the city council that it could conduct it's own public hearing as there was opposition to the map amendment, rely on Page 20 of 40the public hearing record from planning commission and conduct an “argument-style” where the applicants and opponent's counsel would have an opportunity to make arguments in support or against the map amendment, or conduct a hybrid public hearing and argument style. 91) The city attorney after inquiry from members of the city council advised the city council to conduct an “argument-style hearing.” 92)A motion was made to conduct an “argument-style” hearing and it passed by a voice vote, The “argument-style” hearing was set for August 19, 2020 at the city council's regularly scheduled council meeting. 93)At the time, the city council had only received the transmittal of the planning commission's record earlier that day. 94) Prior to the August 19, 2020 meeting, the city attorney and applicant were ut on notice in writing of the deficiencies of the planning commission's public hearing. 95)The August 19, 2020 city council was convened. 96) After the mayor opened the public hearing, Plaintiffs/Appellants’ counsel was permitted to lodge a formal objection to the hearing before the city council to proceed as an “argument-style” hearing based on the deficiencies at the planning commission, notably the failure of an opportunity of opponents to cross examine the application in a “trial-like” hearing as required by Louisville v. McDonald. The applicant's counsel requested the hearing proceed and that no due process violation had occurred. 97)Public testimony and additional evidence was entered into the record during an “argument-style” hearing in contradiction to Kentucky law. 98) Again, councilmembers sought counsel from the city attorney who advised Page 21 of 40them she had reviewed the written record and that she believed the due process had been afforded at meeting. 99) The mayor polled the council and the consensus was to proceed with the argument-style hearing 100) At no time prior to the commencement of arguments were the Plaintiffs/Appellants’ counsel advised of the amount of time for his argument, He was told at the beginning of his argument by the mayor as presiding officer he would have 6 minutes that was extended to 8 minutes at the request of counsel. 101) The city council after taking a short recess after arguments adopted the map amendment unanimously by a roll call vote. 102) Plaintiffs/Appellant were injured and aggrieved by the violation of their due process rights. \COND ASSIGN] R THE 2008 COMPREHENSIVE PLAN UPDATE RELIED UPON BY THE PLANNING COMMISSION AND CITY COUNCIL WAS NEVER ADOPTED BY THE CITY OF SOUTHGATE AS ITS OFFICIAL LAND USE PLAN 103) The above numbered paragraphs are incorporated by reference as if re- stated in their entirety herein. 104) The Code of Ordinances for the City of Southgate, Kentucky, Title XV, Section 155.01 states as follows: “The city hereby adopts that portion of the updated area-wide Comprehensive Plan, as updated by the County and Municipal Planning and Zoning Commission in the calendar year 1988, as it applies to the city, as the Comprehensive Plan of the City.” Page 22 of 40,105) This section of the City’s Code of Ordinances has not been updated since 2006. 106) Under Kentucky law, before any map amendment is granted, the planning commission or the legislative body or fiscal court must find that the map amendment is in agreement with the adopted comprehensive plan. 107) There was a substantial update to the Campbell County Comprehensive Plan by the Campbell County and Municipal Planning and Zoning Commission in 2000. 108) The City of Southgate by affirmative legislative action, Ordinance No. o6- 08, passed on December 20, 2006, opted out of that comprehensive plan, retaining the comprehensive plan for the city from 1988. 109) The Campbell County Comprehensive Plan was most recently updated in 2008, 110) The City of Southgate never adopted by ordinance or conducted public hearings to adopt the updated land use plan changes and update to the county comprehensive plan adopted by the Campbell County and Municipal Planning and Zoning Commission. 111) The City Of Southgate continues to operate under the 1988 county comprehensive plan as its primary plan for land use and development. u2) The planning and zoning staff in their report and recommendation to the Page 23 of 40planning commission referenced the 2008 comprehensive plan’s certain “goals and objectives” relative to “land use,” “residential development,” “cultural resources,” and “public utility services” and “residential development” for the conditional use permit. 113) _ The City of Southgate never adopted the goals for land use in the 2008 update to the comprehensive plan as its land use plan. 114) _As Southgate still operates under the 1998 comprehensive plan as legislatively affirmed in Ordinance 06-08, the updated land use changes referenced in the staff report are not applicable to the map amendment presented to the planning commission or city of Southgate. 115) _ Presentation of the map amendment and conditional use permits recommendations conforming with a comprehensive plans and land use recommendations that are not applicable to the City of Southgate was clearly erroneous and does not conform with the requirements of Kentucky law governing either map amendments or Kentucky law. 116) And even if the 2008 Update to the Comprehensive Plan was effective, it calls for effective fire service to include a ladder fire apparatus to be accessible to every property in Southgate within 2.5 minutes. 117) _ The City of Southgate or its volunteer does not have a ladder fire apparatus and no means to pay for it. The staff report related to the conditional use permit Prohibits the developer or subsequent owner from utilizing the floors of any apartments Page 24 of 40or assisted living facility until said time as Southgate has adequate fire protection in conformance with the comprehensive plan update. 118) _Plaintiffs/ Appellants also reserve the right to bring additional appellate issues related to non-conformance with the Comprehensive Plan that may be discovered during discovery of this action 119) _Plaintiffs/Appellants were injured and aggrieved by the violation of their due process rights when the planning commission recommended land use changes based on a comprehensive plan update not adopted by the City of Southgate. THIRD ASSIGNMENT OF ERROR THE SOUTHGATE CITY COUNCIL DURING AN ARGUMENT-STYLE HEARING ACCEPTED ADDITIONAL EVIDENCE NOT PROVIDED TO ‘THE PLANNING COMMISSION 120) During the public hearing, the Mayor as presiding officer, allowed for additional public comment during an “argument-style” hearing. 121) Members of the Southgate volunteer fire department in three minute increments read a letter to the city council relative to concerns regarding their lack of fire apparatus to serve the development. 122) The letter was tendered to the mayor and city clerk and was entered into evidence at the proceedings 123) The City Attorney failed to advise council that they could not as a matter of law accept additional evidence or take the additional public comment into consideration during an “argument-style hearing.” Page 25 of 40,124) Likewise, the Ashley's counsel tendered a letter from settlement discussions, in violation of Ky.R.Evid. 408 relating to restrictions to be placed on the developer. This evidence too beyond the scope of the review and violated governing law for “argument-style hearings.” 125) In argument-style hearing, the city council’s adjudicative role is limited to the evidence presented at the planning commission. See McKinstry v. Wells, 548 S.W.2d 169, 173 (Ky. App. 1977). 126) The councils acceptance of the fire department's letter and Ashley’s counsel's letter was beyond the scope of review allowed by the city council. 127) Councilmember Anderson in his motion to adopt the map amendment he made factual findings from portions of the developer's letter in support of his motion. His motion, in relevant part stated, Based on the argument tonight, I also add the following factual findings in support of the zone change: Ashley Development has agreed as part of the zone change, that if any human remains are found during construction, all work will cease in the area until those remains can be properly interred in accordance with state laws. Ashley has also agreed to continue to work collaboratively with the community members on the design of the memorial at the base of the hill. Developer agrees to grant access to the HOA common greenspace the park through a license that will allow members of the public, in particular, family members of the deceased, survivors, and first responders to go to the site of the marker on occasions, including, the anniversary of the Beverly Hills Supper Club fire this zone change is in the best interest of the community...Some would prefer that the memorial be located up on the hill, which the location will not be as open and accessible to the public as it is at the proposed location by Ashley. Page 26 of 40128) None of those factual findings related to the Ashley letter were part of the planning commission's record. 129) And none of those recitations have become official restrictions on the developer as they were not included in the ordinance adopting the zoning map amendment. 130) Inclusion of them in the findings adopting the map amendment were clearly erroneous. 131) _Plaintiffs/Appellants were injured and aggrieved by the city council's actions to receive evidence in an “argument-style” hearing that was not presented to the planning commission and not adopted into the map amendment ordinance as a restricting condition. TH ASSIGNMENT OF THE SOUTHGATE CITY COUNCIL MEMBERS WERE NOT UNBIASED. ADJUDICATORS BECAUSE OF THEIR REQUIREMENT TO APPLY FOR THE MAP AMENDMENT UNDER THE DEVELOPMENT. AGREEMENT ON BEHALF OF ASHLEY 132) The above numbered paragraphs are incorporated by reference as if re- stated in their entirety herein. 133) Defendant city council members adopted an ordinance and resolution directing the mayor to execute a development agreement prior to the map amendment and passage, 134) The development agreement was conditioned upon the city couneil being mandated to perform certain administrative and legislative tasks to support the developer. Those included, “city shall use reasonable efforts and good faith to forward to the Campbell County (sic) Municipal Planning and Zoning Commission for their Page 27 of 40consideration under KRS 100.211, any application or request by the Developer for a zoning map amendment necessary to support the proposed Development Plan (Exhibit A)..-City shall facilitate the Developer's applications to the Planning Commission for all necessary approvals, including, subdivision of the Property, mandatory set backs, density requirements, ete.” 135) The city council in becoming the sole applicant for the map amendment and change and becoming the developer's sole agent and facilitating “all necessary approvals” effective became an interested party losing all of independent adjudicatory nature in being the final authority to overrule the planning commission’s recommendation. 136) This arbitrary and capricious conduct is of the fashion prohibited by state law. 137) Plaintiffs/Appellants were injured and aggrieved by the city and city council's capricious and arbitrary acts to take all responsibility for a map amendment for which they would sit as final adjudicators. EIETH ASSIGNMENT OF ERROR ‘THE PLANNING COMMISSION’S LEGAL PUBLIC NOTICE WAS DEFECTIVE AS IT NAMED AN ENTITY THAT DOESN’T EXIST AS THE APPLICANT 138) The above numbered paragraphs are incorporated by reference as if re-stated in their entirety herein. 139) _ Kentucky law requires legal notice to be published notifying adjacent Page 28 of 40Property owners of an application for a map amendment or conditional use permit. 140) Ashley Commercial Group, LLC is a party to the development agreement with the City of Southgate. 141) Only Ashley Commercial Group, LLC is named as the applicant for the conditional use permit application. 142) Southgate was the sole applicant for the zoning map amendment. 143) The legal notice published and sent under governing law named “Ashley Development Group, LLC.” This was clearly incorrect and fatally defective. 144) Ashley Development Group, LLC does not exist. 145) The staff report to the planning commission also referenced “Ashley Development Group, LLC” as the applicant. This too is incorrect and fatally defective. 146) These errors are substantial, clear, and did not place the public or the planning commissioners on notice of the actual applicant for the conditional use permit. 147) ‘These errors constitute procedural due process violations and require reversal of the zoning map amendment and conditional use permit issuance. 148) | Plaintiffs/Appellants were injured and aggrieved by the planning commission's defective notice constituting a procedural due process violations. SECOND CAUSE OF ACTION PETITION FOR DECLARATION OF RIGHTS Page 29 of 40,149) The above numbered paragraphs are incorporated by reference as if re-stated in their entirety herein. 150) Plaintiffs seek a declaration of rights the actions of the Campbell County and Municipal Planning and Zoning Commission and the City of Southgate and its council were arbitrary, capricious, and against the substantial evidence and have injured and aggrieved the Plaintiffs. 151) To the extent the above facts and applicable law will require discovery to prove and submit to determination, or the extent such claims are not within a normal zoning appeal as provided by Ky. Rev. Stat. § 100.347, plaintiffs bring such claims under the Kentucky Declaratory Judgment Act, Ky. Rev. Stat. § 418.040 and request the opportunity to take discovery. AUSE OF ACTI PETITION FOR DECLARATION OF RIGHTS xc the Beverly Hi lub Site (PIDNS: 999-99-11-021.00 and 999-99- 10-976.00 Is a “Burial Ground” Under Ky. Rev. Stat, § 381. 690 and itso whether the City of Southgate City Council Violated their Duty to Protect a “Burial Ground” by ing int ith Ashley D teri; lopment Agreement Dat And Ifthe Beverly Hills Supper Club site is a “Burial Ground” Under Ky. Rev. Stat. § ‘381.690 whether the land encompassing the site can be developed in the future under the terms of the development agreement? 152) The above numbered paragraphs are incorporated by reference as if re-stated in their entirety herein. 153) On the May 28, 1977 the Beverly Hills Supper Club caught fire in one of Page 30 of 40the largest nightclub fires in the history of the United States. 154) That night, 165 people lost their lives. 155) _ Before the fire was under control, dozens of corpses were laid and stacked in the area of the chapel next to the supper club's main building. 156) _Looters transcended the hill where below Interstate 471 was under construction and began to tamper, mutilate, and rob the corpses by inter alia, cutting off fingers and other victim’s body parts to steal jewelry and personal items. 157) Media reports and the coroner reported the fire was so hot that bodies burned and melted to ashes. 158) Several family members, including Plaintiff/Appellant, Leslie Dischar Henry, only received portions of the body parts. 159) Plaintiff/Appellant, Leslie Dischar Henry, and her siblings only received a torso of their mother. The torso lacked arms, legs, and a head. Her other body parts remain buried on the supper club site as an archaeological survey has never been completed at the supper club site. 160) Plaintiff/Appellant, Leslie Dischar Henry, believes the supper club site is the burial ground for her mother’s remains that were not recovered. An affidavit in support is attached hereto and incorporated by reference. 161) _ Plaintiff/Appellant, Robin Thornhill, lost several immediate members of Page 31 of 40her family at the fire. Upon information and belief she and her family received positions of her immediate family member's body parts. 162) The next day at the behest of Governor Julian Carroll, the Kentucky State Police took control of the supper club site and ordered the demolition of buildings. 163) _ Ky. Rev. Stat. § 381.690 Protection Of burial grounds by cities, states as Follows: Whenever any burial grounds lie within the corporate limits of a city the governing authorities of the city shall protect the burial grounds from being used for dumping grounds, building sites, playgrounds, places of entertainment and amusement, public parks, athletic fields or parking grounds. 164) Defendants/Appellee, mayor and council members are the “governing authorities” of the City of Southgate. 165) _ After months of private negotiations in executive sessions and hidden from public input, between the mayor, Ashley, and city council, they were presented by the Ashley Development and the Mayor a development agreement for the supper club site to be known as Memorial Point. 166) The Defendant/Appellants adopted the development agreement by a unanimous vote on May 6, 2020. 167) The development agreement is devoid of any language or directives to Defendant/Appellee, Ashley Development Group, as to how to treat the supper club site as a burial ground under Kentucky law. 168) Further, the development agreement as adopted by the Page 32 of 40Defendants/Appellees, city council members, permits Ashley Development to use a burial site as a building site for over 90 homes, dozens of apartment units, and an assisted living facility. This approval constitutes a violation of Ky. Rev. Stat. § 981.690 by the city council of their duty to protect a burial ground. 169) Further, the development agreement as adopted by the Defendants/ Appellees, city council members, permits Ashley Development to construct & public park on the site of the former cabaret room where over 100 people died including Leslie Dischar Henry's mother, Rose. This approval constitutes a violation of Ky. Rev. Stat. § 381.690 by the city council of their duty to protect a burial ground. 170) Further, the development agreement as adopted by the Defendants/Appellees city council members, permits Ashley Development to construct Parking grounds on the site of the supper club. This approval constitutes a violation of Ky. Rev. Stat. § 381.690 by the city council of their duty to protect a burial ground. 171) Upon information and belief, Ashley and Twin Towers have already commenced clearly of the site despite multiple requests from Plaintiffs/Appellants to engage in heightened sensitivity during initial site development at the subject property. 172) As there is a case and controversy surrounding whether the Beverly Hills Supper Club is a “burial ground” as defined by Ky. Rev. Stat. § 381.690 and common law of this Commonwealth, the Plaintiffs/ Appellants seek a declaration of law from this Court to answer the following inquiry or other similar inquiries: Whether the Beverly Hills Supper Club Site (PIDNS: 999-99- 2 conan 0 999-99- 10-976.00 Is a “Burial Ground” Under Ky. Rev. Stat, § dif s Page 33 of 40the City of Southgate City Council Violated their Duty to Protect a “Burial Ground” SS eA TENA eet a Ch sh Ge a \d encor be de ler the if reli ieee reement? FOURTH CAUSE OF ACTION REQUEST FOR INJUNCTIVE RELIEF 173) The above numbered paragraphs are incorporated by reference as if re-stated in their entirety herein. 174) As described above, Plaintiffs are entitled to further relief in the form of injunctive relief, both temporary and permanent, restraining and enjoining the defendants, and all their agents, attorneys and any other persons in active concert or participation with them, from enforcing and implementing zoning map amendment ordinance and the conditional use permit that are subject matter of this complaint, 175) By reason of the actions and violations described above, the Plaintiffs have suffered immediate and irreparable injury and will continue to so suffer unless Defendants are immediately restrained and permanently enjoined from such activity by Order of this Court. 176) This includes the city council's adoption of a development agreement that violates Ky. Rev, Stat. § 381.690. 177) Plaintiffs have no adequate remedy at law or otherwise to address this injury, save in a court of equity. 178) Upon information and belief, Ashley and Twin Towers have already Page 34 of 40commenced clearly of the site despite multiple requests from Plaintifis/Appellants to engage in heightened sensitivity during initial site development at the subject property. 179) No previous application for a restraining order or an injunction has been refused by this court. 180) Plaintiffs are entitled to further relief as may be shown by the evidence and legal authority that may be presented in this proceeding. Plaintiffs reserve their right to amend this Complaint, as necessary, to request any further relief that they are entitled to seek. FIFTH CAUSE OF ACTION VIOLATIONS OF KY. REV. STAT. § YT crry COUNCILMEMBERS OF HE Cli of SOGENG Ne ID U! IR. D. Ky. Rev. Stat. § 446.070 Action for Damages 181) _ Plaintiff incorporates by reference the allegations in Paragraphs 1-180 of this Complaint as if fully re-written herein, 182) Ky. Rev. Stat. § 381.690 creates a statutory duty for city officials including but not limited to the mayor and councilmembers to Protect burial grounds from development. 183) _ Ky. Rev. Stat. § 446.070 allows for a private cause of action when a Bovernment or private actors acting under the color of state law violate the rights created in a state statute. 184) The councilmembers and mayor have violated their legal duty under Ky, Page 35 of 40Rey, Stat. § 381.690 to allow for non-vertical construction of a parking lot at the site of the cabaret room where 165 individuals lost their lives on the night of the fire. 185) That area remains a burial ground for the plaintiffs who only received a Portion of the their family members bodies after the fire. 186) Asa proximate result of the city councilmembers and mayor's breach of their duty, the plaintiffs have suffered damages including emotional distress and other compensatory damages. 187) Plaintiff and others similarly situated will continue to suffer monetary and other compensatory damages as a result of the actions pled herein, 188) Plaintiffs seek punitive damages against the council members and mayor for their actions that violate a clear duty to protect burial grounds from development outlined in the proposed Memorial Point Development outlined in the development plan and agreement approved by the ity council constructs a parking lot where 165 People lost their lives and where human remains are alleged upon information and belief are still interred. ‘SIXTH CAUSE OF ACTTO) SECTION 42 U.S.C. 1983 CLAIM FOR DAMAGES FAILURE TO PROVIDE PROCEDURAL DUE PROCESS BY CAMPBELL COUNTY AND MUNICIPAL PLANNING AND ZONING COMMISSION AND MEMBERS OF THE SOUTHGATE CITY COUNCIL. 189) Plaintiff incorporates by reference the allegations in Paragraphs 1-188 of this Complaint as if fully re-written herein, 190) The Due Process Clause of the Fourteenth Amendment to the United Page 36 of a0