By Kelly McKinney
February 20, 2013
The conflict over the Westgate subdivision has made it to a federal courthouse with the filing of a lawsuit by R. J. Corman Real Estate alleging the city of Nicholasville has violated the federal “Clean Water Act” in allowing storm water discharge from the development to enter Jessamine Creek.
The lawsuit, filed Jan. 30 in U.S. District Court, alleges that the city failed to comply with mandatory application procedures in approving the building permits for the development, and that the design plans approved fail to meet requirements set forth in the city’s storm water ordinance.
“This is a suit about protecting the water quality in Jessamine Creek,” Blaine Early, one of the attorney’s for R.J. Corman, said.
The permit that allowed the city to discharge storm water in the creek mandates that certain processes are done to ensure water quality, and the city hasn’t done those things, he said.
R.J. Corman Real Estate’s property adjacent to Westgate, of which 65 acres have been placed on the Kentucky Registry of Natural Areas, includes a portion of Jessamine Creek and is downstream from the planned subdivision.
A mini-plat for Unit 1A of the development, which is located between R.J. Corman’s property and Rosenwald-Dunbar Elementary off Wilmore Road (Ky. 29), was approved by the planning commission in March 2012. Applications for land disturbance and a final plat of that unit, as well as two building permits for homes in that unit, have since been approved. A discussion of a sketch plat of Unit 1B is on the agenda for the next meeting of the Nicholasville Planning Commission, scheduled for Feb. 25 at 7 p.m.
Storm water from the two units, which will consist of 64 residential lots on about 21 acres of land, will cause damage to the natural areas in R.J. Corman’s property, according to the lawsuit.
The federal lawsuit is the latest in a long string of litigation. At least seven lawsuits surround Westgate.
Most recently, an appeal was filed in Jessamine Circuit Court asking that court overrule a December 2012 decision by the Nicholasville Board of Adjustments to allow construction on the subdivision to continue.
The appeal, filed Jan. 9 by attorneys for R.J. Corman Real Estate, comes after the board of adjustments denied appeals by Corman to halt the building of homes at 101 and 104 Alley Run within Westgate subdivision.
The appeals brought before the board of adjustments asserted that the building permits for the two lots lacked a storm-water management plan, a landscaping agreement and a maintenance plan. The board of adjustments at its Dec. 10 meeting unanimously upheld the building permits, which were given to former Nicholasville planning commissioner and builder Shawn Murphy.
The appeal states that the board of adjustments was incorrect in its decision to allow building on the two lots, stating the board was told at that meeting that although applicable laws concerning storm-water management have changed significantly in recent years, the board, the administrative official who issues permits, and applicants for permits have “justified actions on the building permits at issue because, in essence, that is the way it has always been done in Nicholasville.”
Also, the board’s actions in upholding the permits violated Nicholasville city ordinances and zoning ordinances, violated Kentucky law, denied due process to R.J. Corman, and were “arbitrary and capricious,” according to the appeal.
Further, the appeal states that Nicholasville zoning ordinance requires that construction allowed by building permits be halted if those permits are appealed, and the board failed to do so.
Other lawsuits involve increased traffic problems, decreasing property values and alleged damage to the protected wetlands.
Judge Hunter Daugherty, who presides over the multiple local lawsuits, has already denied a motion to halt construction, which began in September. That ruling also is in appeal.
The federal lawsuit asks the court to stop the construction that violates the Clean Water Act and order the city to correct its violations, assess civil penalties against the city for the violations, and award R.J. Corman Real Estate costs of litigation.
The city stopping the alleged violations would go a long way toward resolving the suit, Early said.
“We’d like to see the city fully complying,” he said.
The case is in the discovery process. The city has yet to file an answer to the suit, and has requested the deadline to file its answer be extended from Feb. 21, 2013, to March 20, 2013.
“The plaintiff has chosen to engage the city in litigation in the United States District Court, so that is where the City will respond at the appropriate time,” David Royse, the attorney representing the city in the suit, said.