Boone Circuit Court
CASE NO. 98-CI-_____________
Answers In Genesis of Kentucky, Inc.APPELLANTS/PLAINTIFFS
Boone County, Kentucky; Boone
County Fiscal Court; Larry S.
Burcham, in his official capacity
as County Judge Executive and a
Member of the Boone County
Fiscal Court; Irene Patrick, Shirley
Meihaus and Harold L. Campbell, in
their official capacities as Boone
County Commissioners and Members
of the Boone County Fiscal Court;
And Appeal and Complaint
The Boone County Planning Com-
Mission; and Bob Millay, Arnold Caddell,
Barry Neltner, Earl White, Phil Damstrom,
William R. Viox, Judy Arnett, Michael
McKinney, Bob Newman, Ralph Rush,
Linda Schaffer, Carol Smith, Donald McMillan,
Mark Hicks and Robert Ries, in their official
capacities as Members of the Boone County
Fred D. Riedinger Company
Serve:Joseph E. Kathman, President
50 Park Road
Fort Wright, Kentucky 41011
JEROME B. HOFFMAN and
BARBARA HOFFMAN, his wife
Serve:1706 Fort Henry Drive
Fort Wright, Kentucky 41011
JOSEPH E. KATHMAN and
MARY CAROL KATHMAN, his wife
Serve: 447 General Drive
Fort Wright, Kentucky 41011
Post, Buckley, Schuh And
Serve: Managing Officer
1895 Airport Exchange Blvd.
Erlanger, Kentucky 41018APPELLEES/DEFENDANTS
Comes now Answers in Genesis of Kentucky, Inc, a Kentucky non-profit corporation (“AiG”), the Appellant/Plaintiff herein, and for their Appeal and Complaint from the action of the Boone County Fiscal Court regarding a zoning map amendment application, states as follows:
Parties and Jurisdiction
- AiG is a business entity duly authorized and licensed to do business in
the Commonwealth of Kentucky with its principle place of business being located
at 7080 Industrial Road, Florence, Kentucky 41042. AiG is a non-profit tax-exempt
501(c)(3) evangelical ministry organization that seeks to educate Christians
to defend the authority and literal accuracy of the Bible from the very first
verse in Genesis.
- The Defendants/Appellees, Boone County, Kentucky; and Boone County Fiscal
Court; and Larry S. Burcham, Irene Patrick, Shirley Meihaus and Harold L.
Campbell, the individual members thereof, is the legislative body of Boone
County, Kentucky and is made a party of this Appeal pursuant to KRS 100.347(3),
as the legislative body from whose final action the Plaintiffs/Appellants
claim to be injured or aggrieved. (All references herein to the “Fiscal Court” shall collectively include
the Fiscal Court of Boone County, its individual members, and the County
of Boone, Kentucky.)
- The Boone County Planning Commission, and Bob Millay, Arnold Caddell,
Barry Neltner, Earl White, Phil Damstrom, William R. Viox, Judy Arnett, Michael
McKinney, Bob Newman, Ralph Rush, Linda Schaffer, Carol Smith, Donald McMillan,
Mark Hicks and Robert Ries (hereinafter collectively the “Planning Commission”)
are a joint planning unit which conducts combined planning operations pursuant
to KRS 100.121 for Boone County and the cities of Florence, Union and Walton.
- Fred D. Riedinger Company, a Kentucky corporation, Jerome B. Hoffman
and Barbara Hoffman, and Joseph E. Kathman and Mary Carol Kathman, (hereinafter
collectively referred to as the “Owners”) are the current legal title owner
of the subject property. The Owners are made a party to this action pursuant
to KRS 100.347(4) in that it is the fee simple titleholder to the real estate,
which is the subject matter of this Appeal and Complaint.
- Post, Buckley, Schuh and Jernigan, Inc. (hereafter “PBS&J”) is an engineering firm operating at 1895 Airport Exchange Boulevard, Suite 234, Erlanger, Kentucky 41018. PJS&J represented AiG throughout the zone change process, and identified throughout as the “Applicant” for AiG; therefore, PBS&J
is made a party to this action pursuant to KRS 100.347(4).
- AiG filed with the Planning Commission a zoning map amendment application
wherein AiG requested a zoning map amendment from Rural Suburban Estates
(RSE) to Industrial-One (I-1) for approximately 47.215 acres of real estate
(the “Subject Property”) lying and being generally along I-275 near the Petersburg/Route
8 exit, accessed via Bullitsburg Church Road off Kentucky Highway 8 at Deck
Lane, within the unincorporated areas of Boone County, Kentucky, and owned
by the Owners.
- Pursuant to formal action of the Planning Commission, a recommendation
of disapproval of AiG’s application was submitted to the Fiscal Court. The
Planning Commission voted 9 to 5 to recommend denial of AiG’s zone change
request upon the basis of findings contained in a minority report of its
Zone Change Committee entitled “Committee Report”, but approved by only one member of the Committee, dated September 16, 1998 (hereinafter the “Minority Report”),
a copy of which is attached hereto as Exhibit A.
- The Fiscal Court took final action on AiG’s application on or about November
10, 1998 adopting a resolution approving the recommendation of the Planning
Commission (hereinafter the “Resolution”). The Fiscal Court adopted the
findings of the Planning Commission as its basis for its denial of the zone
- It is the adverse action by the Fiscal Court on the application of AiG
from which this Appeal is made.
- This Appeal is made pursuant to KRS 100.347.
- In this Appeal and Complaint, AiG seeks the following relief from this
- An Order and Judgment overturning the Resolution of the Fiscal Court,
which denies AiG’s zone change application, and the basis that the Resolution
is contrary to law as follows:
- The Resolution is based upon the Minority Report which is contradictory
to, and not in compliance with, the criteria of the 1995 Boone County
Comprehensive Plan: A Vision for the Year 2020 (hereinafter the “Comprehensive Plan”);
- The Resolution infringes upon the free exercise of religion
rights of AiG afforded by the First Amendment;
- The Resolution is based upon the Minority Report, which is
contradictory to and not supported by substantial evidence submitted
to the Planning
- The Resolution is based upon arbitrary and capricious decision-making
and thus violates the due process rights of AiG;
- The Resolution is based upon a defective judicial process tainted
with violations of standards dictated by the procedural due process
AiG, as the party seeking a zone change;
- The Resolution infringes upon the free speech rights of AiG
afforded by the First Amendment.
- A Judgment awarding to AiG sums
necessary to compensate for losses, expenses and damages suffered
as a result of the unlawful acts of the Fiscal Court and
the Planning Commission, including loss of use of the subject property, losses
suffered by AiG as a result of the restraints on its constitutionally protected
freedoms, expenses incurred throughout the zoning and appeal process, and
attorneys fees as provided in law.
- AiG is an evangelical Christian organization propounding a belief that
the Creation and Flood accounts contained in Genesis should be taken literally,
(i.e., world created in six days, the great flood and Noah’s ark, etc.),
and that scientists and others who profess the theory of evolution are contrary
to Christian beliefs and to scientific and historical records. To carry
its educational and evangelical mission, AiG has developed and collected
a large body of literature, audio and videotapes, and other educational and
materials, and distributes them all over the world. AiG has developed or
collected a large collection of museum-quality display pieces designed to
- AiG currently operates out of various facilities in Northern Kentucky.
AiG is desirous of constructing a headquarters facility in Boone County
in which it will operate. The headquarters will contain its warehouse/distribution
center for publications, its offices, and a museum/educational facility
display the dinosaurs and other mammals and conduct educational programs
in classrooms and an outdoor amphitheater and trails.
- In 1996, AiG filed an application to change the zoning on a tract of
land along U.S. 42 in Boone County, Kentucky, upon which it desired to construct
- The Planning Commission conducted a public hearing. At the public
hearing, many individuals spoke in opposition.
- AiG has been the subject of much criticism and hostility as a result
of its philosophical and theological position because:
- The AiG organization
propounds a belief and philosophy that is viewed as offensive by members
of certain religious organizations and others based on
their specific belief systems.
- The principles of AiG were considered
by some contrary and incompatible with the world-renowned archaeological
findings from the Big Bone Lick State
Park facility located in Boone County, Kentucky.
- The Planning Commission recommended approval of the 1996 zone change
application filed by AiG.
- The Fiscal Court overrode the recommendation
of the Planning Commission
and voted to deny the zone change request.
- After the denial of AiG’s 1996
zone change request, but still desiring to locate its headquarters into
Boone County, Kentucky, AiG communicated with
various county governmental and zoning officials about the zoning requirements
for its headquarters.
- Through a series of correspondence, the Planning
Commission staff determined that the appropriate uses proposed by AiG required
land within the Industrial
One (I-1) zoning district contained in the Boone County Zoning Regulations.
- The I-1 zoning district principally permits education institutions,
printing operations and offices. In addition, the I-1 zone allows accessory
incidental to principal use, as follows: monuments and other exhibits available
public viewing, auditoriums, exhibition halls, other public and miscellaneous
assembly, and recreation uses, including trails.
- The I-1 zoning district
of the Boone County Zoning Regulations is the appropriate zone within which
the intended uses of AiG exist, including the
- Their office headquarters, employing approximately fifty individuals
in an office setting;
- A warehouse to store and distribute materials and publications;
- A museum display area for the models of dinosaurs and other mammals;
- Classrooms and other educational facilities;
- In light of the foregoing, AiG proceeded to canvass Boone County for
land that was appropriate for I-1 uses and activities.
- In May, 1995, the
Planning Commission adopted the Comprehensive Plan, providing for the statutorily-required
comprehensive planning for Boone County to serve as the underlying basis
and purpose for its Boone County Zoning Regulations.
- The Comprehensive
Plan identifies an area along I-275 near the Petersburg exit to be an industrial
zone, which area includes the 47.215-acre tract, which is the subject of
- The 47.215-acre tract uniquely suits the needs and desires
of AiG as a location to establish its headquarters.
- AiG entered into
an option contract to purchase the subject parcel from the Owners.
AiG filed its application with the Planning Commission to change the zoning
on the site to I-1 pursuant to the terms of the Comprehensive Plan. The
Planning Commission conducted a public hearing in which it sought input from
and others. Thereafter, the Planning Commission referred the matter to
its Zone Change Committee.
- The professional staff of the Planning Commission
recommended the approval of the zone change request for which AiG applied.
- The Zone Change Committee of the Boone County Planning Commission recommended
approval of the zone change request for which AiG applied. See Committee
Report attached hereto as Exhibit B.
- The Zone Change Committee’s
favorable recommendation contained, however, several conditions upon
which it would recommend that the Commission place before granting the zone
Certain of these conditions are excessive, unfair, arbitrary and capricious,
and constitute an unconstitutional taking without just compensation.
the favorable recommendations of both the staff of the Planning Commission
and the Zone Change Committee of the Planning Commission, the Planning
Commission itself rejected both recommendations and voted by a vote of 9
to 5 to recommend
denial of the zone change request and adoption of the Minority Report.
information and belief, certain members of the Planning Commission received
inappropriate and ex parte information outside the public hearing
process upon which they relied in making their votes.
- The Fiscal Court
failed or refused to conduct its own independent public hearing to do
fact finding on the issue.
- On or about November 10, 1998, the Fiscal Court
voted to adopt a resolution adopting the recommendation of the Planning
Commission, thus denying AiG the zone change for which it had applied.
Fiscal Court received and considered certain information outside the public
hearing process upon which their votes were based.
The Boone County Comprehensive Plan
- The “future land use map” of the Comprehensive Plan designates the overall
site proposed for “industrial” purposes. AiG’s zone change request employs the “industrial” designation.
land use element of the Comprehensive Plan (Area B-2 “Idlewild Area”, page
215) states: “Development in this area should not be accompanied by major
sanitary sewer facilities that could commit the Idlewild area to develop.” AiG
will fulfill the elements of the Comprehensive Plan.AiG proposes to use an
on-site sanitary disposal system, thus the construction of a sanitary sewer
system that would commit the Idlewild area at large to development is not
part of this proposal, in conformance with the Comprehensive Plan.
goals and objectives of the Boone County Comprehensive Plan state that “Industrial
development shall be encouraged to locate near railroad lines, highways,
the Ohio river, the airport and on airport-owned land...” (business
activity, industrial objective 1).
- The AiG proposed I-1 development is
located near the Petersburg/I-275 interchange and is physically adjacent
to, and visible from I-275, all of which is in compliance with the Comprehensive
- The land use element of the Comprehensive Plan (Area B-2 “Idlewild Area”,
page 215) states that the Idlewild interchange of I-275 should see “slow,
highway related, commercial growth” on the southern half of the interchange,
which may support some level of commercial highway service establishments
if casino gambling comes to Lawrenceburg, Indiana, and to serve the potential
western Boone County tourism area.
- The proposed AiG development is
highway-related growth at the Idlewild interchange as envisioned by
the Comprehensive Plan. The AiG development is on the southern half of the
interchange. The AiG development includes a museum/educational facility
that will provide some tourism to this western Boone County area, all
in compliance with the language in the Comprehensive Plan.
- The foregoing
statements indicating that the proposed AiG development is in compliance
with the Comprehensive Plan are supported by the Committee Report of the
Zone Change Committee of the Planning Commission, who issued their report
on or about September 16, 1998, a copy of which is attached hereto as Exhibit B.
foregoing statements concluding that the AiG development is in compliance
with the Comprehensive Plan are also in compliance with the Staff Report
issued by the staff of the Planning Commission.
- In an effort to seek
justification for denying the AiG application, certain members of the Planning
Commission demanded that the Planning Commission staff draft a proposed
report that would justify a denial of the AiG zone change request despite
that the staff and the Zone Change Committee had already recommended in
- Pursuant thereto, the staff of the Planning Commission drafted
a document entitled a “Committee Report” (previously referred to as the “Minority Report”),
a copy of which is attached hereto as Exhibit A; however, this “Committee Report” is
not truly such because it was not adopted by any committee of the Planning
Commission. Rather, the information in the report was used solely as a basis
for making a motion to deny the zone change.
- The “Minority Report” misinterprets
the Comprehensive Plan, is violative of the Comprehensive Plan and the Boone
County Zoning Regulations, and is the result of unconstitutional and unlawful
proceedings by the Planning Commission.
- The Minority Report is clear evidence
of the arbitrary nature of the action taken by the Planning Commission
and Fiscal Court, in that it takes plain language from the Comprehensive
and warps the interpretation thereof to justify a finding contrary to the
true nature and intent of the Comprehensive Plan.
- The Minority Report
(Exhibit A) and the actual Committee Report (Exhibit B) take
diametrically opposing views of the same language in the Comprehensive
Plan. If the Comprehensive Plan is so vague as to allow diametrically opposed
interpretations, then it is unconstitutionally vague, and thus arbitrary.
- The Minority Report suggests that the zone change denial could be justified
because of lack of adequate infrastructure, as follows:
“A.”The Goals and Objectives (“Overall” Objective #4, pg. 4) state that “future growth shall be accompanied by adequate infrastructure and services. Existing infrastructure and services shall be maintained or improved as needed.” The
Committee has concluded that the zone change request is not in agreement
with this objective because the proposal involves a 95,000 square foot,
office and educational multi-use facility that is capable of generating
up to approximately 2,600 vehicular trips a day according to the applicant’s
traffic study, and that will rely exclusively on private, on-site domestic
water and waste water treatment systems. It is the conclusion of the
Committee that such private, on-site systems should not be endorsed or
encouraged for large, intensive facilities such as the one proposed based
on the Comprehensive Plan.
Although the Land Use Element (“Area B-2, Idlewild Area,” pg. 215) states
“development in this area should not be accompanied by major sanitary
sewer facilities that could commit the Idlewild area to development,”
this statement does not indicate that public water and sanitary sewer
services should not be provided for the Petersburg interchange area itself,
but rather that sanitary sewer facilities should not be “major.” This
interchange area is largely planned for Commercial uses, with some peripheral
Industrial uses, which could be served with public water and sanitary
sewer services that would link to the area on the north side of I-275
that is anticipated to experience residential growth; this future infrastructure
could be extended to serve the planned Commercial and Industrial uses
at the interchange area itself without committing the Idlewild area at
large to development with major sanitary sewer improvements. Based on
these provisions of the Comprehensive Plan, the Committee has concluded
that the area is not yet ready for the planned Industrial uses because
the necessary infrastructure is not in place and will not be in place
in the immediate future.
The projected Industrial land use classification is a twenty five year
projection and is appropriate when the necessary public infrastructure
is available. This conclusion is supported by the fact that there has
been only a small amount of residential development which has occurred
near the Petersburg interchange during the last decade.”
However, the Minority Report is fallacious for the following reasons:
The Minority Report suggests that the zone change request could be denied
because the proposed uses represent a “leap-frogging” of development across
the vacant commercial land immediately adjacent thereto, as follows:
- The Minority Report cites to a general provision in the Goals and Objectives
section of the Comprehensive Plan which is directly contrary to a more
specific language in the Land Use Element of the Comprehensive Plan wherein
the Plan provides for this specific area that development should
not be accompanied by major sanitary sewer facilities because it could
promote a growth of development in the area in excess of what is anticipated
and planned by the County;
- The clear language of the Comprehensive Plan
proscribes development in the area that does not accompany major infrastructure
- Private, on-site waste water treatment systems are permitted
by local ordinance and are employed by many users, including large
community public schools, that are larger than AiG.
- Kentucky Highway 8
and Bullittsburg Church Road are both underutilized and are categorized
as Level A roads capable of handling traffic generated by AiG;
- “Domestic” (or
city) water supply is not required by local ordinance and AiG supplied
information to assure that more than adequate water is available to the
site through use of lake water, wells and cisterns, supplemented by water
haulers, as necessary.
- While infrastructure may be needed for other
proposed uses at the Petersburg/I-275 interchange, no infrastructure
is required for the AiG development.
- While the Comprehensive Plan envisions
growth over 25 years, nothing prevents the current development of the
subject property as AiG proposed to fulfill the terms of the Comprehensive
for the area in the present time.
“B.The Goals and Objectives (“Business Activity” Industrial Objective #1, pg. 7) state that “industrial development shall be encouraged to locate near railroad lines, highways, the Ohio River, the Airport and on Airport owned land. Industrial districts shall be properly located in advance and thereby lessen any detrimental impact on future adjacent development.” The Committee has concluded that the proposed zone change is not in agreement with this object because the proposed industrial uses represent a “leap frogging” across vacant Commercial land (zoned C-3, planned on the Future Land Use Map as “Commercial”) from the Petersburg interchange itself. The proposal would create an isolated “island” of relatively intensive development which is separated from the Petersburg interchange itself, and would be surrounded by low intensity, low impact, land uses.”
The Comprehensive Plan does not support such a conclusion. Rather, the site in question has a half mile of visible immediate adjacency to I-275, and access from I-275 is achieved by less than one mile of highway that is already adequate for a development of this kind, and already passes existing industrial uses that exist only a few hundred feet from the proposed AiG development.
The Minority Report finds that the Petersburg/I-275 interchange is not
likely to experience commercial growth in the near future, as follows:
“C.The Business Activity Element (“Areas of Future Commercial Activity,” pg. 83) states, in part, “the Petersburg/Idlewild Interchange area at KY 8 and I-275 is not likely to experience significant commercial growth in the near future. Eventually, it may support some commercial highway service establishments, especially if casino gambling occurs in Lawrenceburg, Indiana.” This provision reinforces the conclusions noted under sections 1.A and 1.B above regarding the timing of development in the Petersburg interchange area and the “leap frogging” of development away from the interchange itself.”
AiG responds that the quoted language of the Comprehensive Plan does not support the conclusion made, and does not apply to the subject property specifically. The subject property is in the industrial area of the map, not the commercial area. This industrial site can develop ahead of later commercial growth and fulfill the Plan by not bringing major infrastructure to cause faster commercial growth than planned.
The Minority Report suggests that the AiG zone change request can be
denied because the proposal contains office uses, which the report indicates
to be contrary to the industrial designation on the Comprehensive Plan land
use map, as follows:
“D.The Future Land Use Map designates the area of the site proposed for active land uses as “Industrial.” The Comprehensive Plan describes the Industrial land use classification as “manufacturing, wholesale, warehousing, distribution, assembly, mining, and terminal uses.” This classification does not include office land uses and the request includes a substantive office component, as the proposed development would house an office headquarters. Various types of office land uses are specifically mentioned in the Comprehensive Plan for the Commercial and Business Park designations, including corporate and professional office, office warehouse, and “office” uses.”
However, such a conclusion is directly contradictory to the Comprehensive Plan and the Boone County Zoning Regulations. Virtually all industrial development contains some element of office uses. Moreover, the Boone County Zoning Regulations provide that office uses are a “principally permitted use” within the Industrial-1 Zone. No rational interpretation of the Comprehensive Plan can logically exclude an element of office use from a proposed industrial development. To conclude such a finding is arbitrary and capricious.
The Minority Report concludes that the proposed industrial use is not in
conformance with the Comprehensive Plan, and that the current residential zoning
classification is the appropriate use for this particular site, as follows:
“2.The Committee has not found that the existing zoning classification is inappropriate and that the proposed zoning classification is appropriate, or that there have been major changes of an economic, physical, or social nature not anticipated in the 1995 Boone County Comprehensive Plan that substantially alter the area’s character, and the applicant has offered no facts to support either of these alternate findings.
To the contrary, however, the land use map contained in the 1995 Boone County Comprehensive Plan clearly identifies the AiG parcel for industrial development, not residential development. Further, the proposed AiG development site has a half mile of visibility from I-275, is immediately adjacent to I-275, and contains a 250’ cell tower and access easement, rendering it inappropriate for residential development and growth.
This Court should find that the Fiscal Court’s resolution adopting the
Minority Report is an arbitrary and capricious act of misinterpretation and
misuse of the Comprehensive Plan and unconstitutional exercise of the police
power to implement zoning.
- The decision of the Fiscal Court is contrary to the laws and provisions
of the Kentucky Revised Statutes, Chapter 100, and the Boone County Zoning
Ordinance and Comprehensive Plan.
- The decision of the Fiscal Court in denying AiG’s zone change application
is arbitrary and as such constitutes an abuse of the Fiscal Court’s delegated
- The action of the Fiscal Court in denying AiG’s zone change application
bears no reasonable relation to the promotion of the public health, safety
and general welfare of the residents of Boone County, Kentucky.
- The decision of the Fiscal Court in denying the zone change request
of AiG was not based upon substantial evidence presented and/or addressed
at any public hearing. At the public hearing before the Planning Commission,
AiG submitted extensive proof, all of which was admitted in the record of
the public hearing, which clearly and convincingly demonstrated that:
- The application and requested zone change amendment was consistent
with and in agreement with the currently adopted Comprehensive Plan;
- that the AiG use is compatible with the “industrial” land use classification
dictated by the Comprehensive Plan;
- That AiG’s development can occur without bringing major infrastructure
to an area that could spurn excessive growth.
- That the existing zoning classification given to the property was
inappropriate and that the proposed zoning amendment classification was
- That the decision of the Fiscal Court in denying the AiG zone change
request was based upon conjecture, speculation and subjective criteria
rather than factual and valid zoning elements and objective criteria
by the Comprehensive Plan, the Boone County Zoning Ordinance, Kentucky
Revised Statutes, the Kentucky Constitution, and the United States Constitution.
Consequently, the actions of the Fiscal Court constitute an unconstitutional
denial of due process and an unconstitutional denial of property rights
Count II-First Amendment-Free Exercise of Religion
- The following Counts constitute a civil rights action brought pursuant
to the First, Fifth and Fourteenth Amendments of the United States Constitution
and 42 U.S.C. §§1983 and 1988. This action challenges the constitutionality
of the denial of AiG’s zone change request by the Fiscal Court and Planning
- AiG is entitled to First Amendment protection as a religious institution,
entitled to free exercise of its practices and beliefs. AiG intends to use
the proposed development for the purpose of furthering their First Amendment
rights of free exercise of religion.
- The decision of the Planning Commission and the Fiscal Court to deny
the zone change request were based substantially or significantly upon hostility
to the religious message which AiG espouses in an attempt to suppress, hinder
or interfere with the free expression of that message.
- In denying the zone change, the Planning Commission and the Fiscal Court
violated the First Amendment rights of AiG and its members under color of
state law, and therefore constitute actions of the state within the meaning
of the Fourteenth Amendment to the United States Constitution.
- AiG’s free exercise rights outweigh the public considerations propounded
by the Fiscal Court and the Planning Commission.
- That AiG is entitled to reversal of the Resolution of the Fiscal Court
and compensation for the losses, expenses and damages suffered by it as a
result of the unconstitutional denial of the requested zone change, as violative
of the First Amendment free exercise rights of AiG.
Count III-First Amendment-Projected Speech
- AiG incorporates by reference all of the foregoing statements and allegations
as if fully rewritten herein.
- AiG seeks to acquire the subject property to use for activities in furtherance
of its purpose to publish and communicate its teachings and ideas.
- AiG is limited and restricted in its ability to propagate its message
unless it has proper facilities adequate to house its staff, warehouse its
products and conduct its educational activities.
- AiG has been denied the opportunity to acquire and construct the necessary
facilities because of the denial by the Fiscal Court of zoning for a site
to which it is rightfully entitled to zoning for its use.
- Propagation of its message is an activity protected by the First Amendment
right of free speech.
- AiG’s right of free speech has been unreasonably, arbitrarily and unconstitutionally
hindered and restricted by the Fiscal Court’s refusal to grant a zone change
on the subject property, such as to allow AiG to construct the facilities
necessary to conduct its protected rights.
- The Fiscal Court’s actions violated the rights of AiG as protected by
the First Amendment of the United States Constitution under color of state
law, and therefore constitute actions of the state within the meaning of
the Fourteenth Amendment to the United States Constitution.
- AiG is entitled to reversal of the Resolution of the Fiscal Court and
compensation for the losses, expenses and damages suffered by it as a result
of the unconstitutional denial of the requested zone change, as violative
of the First Amendment free speech rights of AiG.
Count IV-Fifth Amendment Taking
- AiG incorporates by reference all of the foregoing statements and allegations
as if fully rewritten herein.
- In the process of considering the zone change requested by AiG, the
Planning Commission sought to subject AiG to certain conditions in the event
that the zone change request was approved.
- The conditions at issue upon which the Planning Commission sought to
impose upon the zone change are as follows:
- AiG was required to limit its industrial zone change request to a
25.167-acre industrial area of the Subject Property consisting of 47.215
as provide a buffer from adjacent residential uses consisting of the
remaining 22.048 acre residential area.
- AiG was prohibited from using its industrial property for outdoor
nature classrooms and trail facilities.
- AiG was prohibited from using the remaining 22.048-acre residential
area for uses that would be accessory to, related to, or an expansion
uses permitted in the I-1 zone, such as outdoor recreational uses, assembly
areas, parking, etc.
- In the 22.048-acre residential area, the current zoning (Rural Suburban
Estates-RSE) was to remain, but AiG was to prohibited from using that
land for uses otherwise permitted by other owners of land zoned RSE as
follows: “Recreation defined in this district to be playgrounds, open space parks, hiking areas and trails, bikeway systems, and picnicking areas.”
- Further prohibited in the residential area were to be the following
permitted accessory uses otherwise permitted by other owners of land
zones RSE as follows: “2. Signage (according to Article 34); 3. Parking (according to Article 33); 4. Temporary buildings incidental to construction; 5. Accessory dwelling unit; 6. Family day care.”
- AiG was to be prohibited from the following conditional uses otherwise
available to be requested by owners of land zoned RSE as follows: “1. Country clubs, clubhouses, lodges and similar places of assembly or entertainment-including the operation of eating and drinking establishments with alcoholic beverages (Site Plan Review required); 3. Nursery and day care centers (Site Plan Review required); 4. Churches, synagogues, temples and other places of religious assembly for worship (Site Plan Review required); 6. Duplex dwelling units; 7. Unlighted athletic fields.”
- By intent and design, the Planning Commission imposed conditions calculated
to prevent AiG from using the 22.048-acre portion of the subject property
for all uses that are of the type that AiG would employ.
- The conditions imposed by the Planning Commission render the 22.048-ccre
parcel unusable and valueless.
- The conditions imposed by the Planning Commission are unreasonable restrictions
on AiG’s use of the 22.048-acre residential area.
- The Planning Commission appropriated no funds to compensate AiG for
the denial of the uses of the land to which it was imposing upon AiG.
- The Fifth Amendment of the United States Constitution prohibits the
taking of private property rights without just compensation.
- The zoning conditions imposed by the Planning Commission represent an
unconstitutional taking of private property rights without just compensation,
done under color of state law, and therefore constitute actions of the state
within the meaning of the Fourteenth Amendment to the United States Constitution
- AiG demands the elimination or nullification of the unconstitutional
conditions, or compensation to justly provide for the losses, expenses and
damages suffered by AiG as a result of the taking represented by the unconstitutional
Count V-Procedural Due Process
- AiG incorporates by reference all of the foregoing statements and allegations
as if fully rewritten herein.
- The zone change process employed by both the Planning Commission and
the Fiscal Court is a judicial or quasi-judicial function and activity.
- Judicial functions dictate a fairness requirement that prohibits the
commissioners from engaging in ex parte communications outside the
hearing room, and from considering any evidence not introduced into the record.
- Upon information and belief, the Planning Commission members and Fiscal
Court members engaged in prohibited communications, and received “evidence” outside
of the formal hearing process.
- The ex parte communication was considered by the individuals
involved, and impacted upon the decision-making process, tainting the process,
and rendering the consideration of the AiG application an unlawful proceeding.
Wherefore, AiG demands as follows:
- An Order and Judgment reversing the Resolution of the Fiscal Court
and order the change of the zoning on the subject property to the Industrial
One zoning classification;
- An Order and Judgment eliminating and nullifying the unconstitutional
conditions imposed upon AiG by the Planning Commission;
- A Judgment against the Fiscal Court and Planning Commission in an amount
in excess of the minimal jurisdiction amounts for this Court to compensate
AiG for the losses, expenses and damages suffered as a result of the
unconstitutional denial of the requested zone change and unconstitutional
taking of property
with just compensation;
- A Judgment pursuant to 42 U.S.C. §1988 in an amount to be proven at
trial for attorneys fees, interest and court costs incurred by AiG in this
- Expedited docket consideration such as to minimize and abbreviate the
damaging effects of the zone change denial;
- Trial by Jury on all issues so triable;
- For all other just and legal relief to which it may appear entitled.