No. __________________________ JEFFERSON CIRCUIT COURT

DIVISION _____________

OPEN LOUISVILLE, INC. PLAINTIFFS2406 Tucker Station RoadLouisville, KY 40299

NEIGHBORHOOD PLANNING AND PRESERVATION.2727 Northwestern ParkwayLouisville, KY 40212

MARTINA KUNNECKE313 Northwestern ParkwayLouisville, KY 40212

CONCERNED ASSOCIATION OF RUSSELL RESIDENTS3950 Westport RoadLouisville, KY 40207

HAVEN HARRINGTON528 S. 18th St.Louisville, KY 40203

HOWARD BEDFORD903 S. 32nd St.Louisville, KY 40211

CASSIA HERRON335 East St. Catherine St.Louisville, KY 4023

WOMEN IN TRANSITION, INC.3208 W. BroadwayLouisville, KY 40211

CHANELLE HELM2238 Farnsley Rd.Louisville, KY 40213

JOHN OWEN620 North 28th St.Louisville, KY 40212

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WEST LOUISVILLE TALKS528 S. 18th St.Louisville, KY 40203

JOHN CARTER1270 Morgan Ave.Louisville, KY 40213

v. COMPLAINT

WAL-MART REAL ESTATE BUSINESS TRUST DEFENDANTS702 SW 8th St.Bentonville, AR 72716

Serve: CT Corporation SystemKY Home Life Bld.Louisville, KY 40202

NEWBRIDGE DEVELOPMENT LLC2350 New Millenium DriveLouisville, KY 40216

Serve: Teresa L. Bridgewaters2350 New Millenium DriveLouisville, KY 40216

WILLIE DENNIS BROWN 4213 Norbourne Blvd., Apt. 4Louisville, KY 40207

LINDA J. BROWN4213 Norbourne Blvd., Apt. 4Louisville, KY 40207

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT 527 West Jefferson StreetLouisville, KY 40202

Serve: Greg Fischer, Mayor527 West Jefferson StreetLouisville, KY 40202

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MAYOR GREG FISCHERMayor, Louisville/Jefferson CountyMetro Government527 West Jefferson StreetLouisville, KY 40202

THE LEGISLATIVE COUNCIL OF LOUISVILLE/JEFFERSON COUNTYMETRO GOVERNMENT601 West Jefferson StreetLouisville, KY 40202

Serve: David Tandy, President601 West Jefferson StreetLouisville, KY 40202

LOUISVILLE AND METRO PLANNING COMMISSION444 South Fifth Street, Suite 300Louisville, KY 40202

Serve: Donnie Blake, Chair444 South Fifth Street, Suite 300Louisville, 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.

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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.

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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.

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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.

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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 government’s 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

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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

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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 Louisville’s 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

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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 “century-

plus 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 attorney’s 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. PorterCounsel for Plaintiffs, KBA #552902406 Tucker Station RoadLouisville, KY 40299-4529502-297-9991stpinlou@aol.com

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