The corridor separating the two current, 4.6 million gallon tanks of the Frankfort Plant Board’s water reservoir. Both are 133 years old, and FPB has been pushing to replace the one on the left with a 7 million gallon tank amid complaints by the nearby Tanglewood neighborhood. Zack McDonald | The State Journal

It’s back to the drawing board for the Frankfort Plant Board in its quest for a new method of water storage.

Circuit Judge Thomas Wingate on Tuesday denied the municipal utility’s most recent attempt to gain headway in a lawsuit surrounding controversial plans to replace the almost 140-year-old reservoir in the Tanglewood neighborhood.

FPB had filed a motion for clarification on a critical December order by Wingate as to whether the Frankfort-Franklin County Planning Commission’s recommendation against FPB’s replacement of the reservoir with a single 7-million-gallon tank was binding. FPB argued at a hearing last week that the Planning Commission’s determinations, which led to Frankfort denying the utility's application for a construction permit, were merely “suggestions” in an attempt to sway the judge to find them non-binding.

However, Wingate denied the request Tuesday and wrote that to clarify his order would be “duplicative.”

Wingate summarized the court proceedings that led to his decision by saying that FPB argued it “voluntarily submitted” itself to the (planning board’s) review process under KRS 100.324(4), which they believed would be merely advisory and non-binding. FPB counsel argued the statute does not require the city to adopt the planning commission’s "suggestions," and Frankfort’s reliance on the planning commission’s findings to deny FPB’s permit to build the new reservoir was improper, Wingate wrote.

Wingate added that FPB submitted itself to the process and then objected to the Planning Commission’s decision once it was unfavorable to the utility. On those grounds, Wingate then denied the motion and said there is a second count of the lawsuit that can proceed in court.

“The recommendations and other evidence gleaned in the process contributed to the denial of the permit, and FPB may challenge any information, evidence or recommendation used, or ignored, during the permit application,” Wingate wrote. “The court’s order does not preclude the FPB from making challenges in the remaining litigation related to KRS 100.324(4) and the effect of the (planning commission’s) recommendations on a permit application decision. Therefore, to clarify the court’s previous order would be duplicative.”

Mayor Bill May said it puts the city in a better situation moving forward in the litigation because it appeared to also support the position that the city's denial of the plans were not "arbitrary and capricious." He said he hopes it sets the precedent to avoid future scrapes between the two boards on critical projects.

"I hope it clarifies the process in the future of which body has the express authority to make these types of decisions on projects," May said. "It would clarify the ambiguity in the statutes." 

The Plant Board filed its lawsuit last year after its plan to replace nearly 140-year-old water tanks in the Tanglewood neighborhood with a $3.8 million, 7-million-gallon tank was denied by the city. In December, Wingate dismissed the Plant Board’s claim that the Planning Commission’s determination that the reservoir plans do not align with the city’s comprehensive plan should not be binding.

“The FPB does not have the authority to circumvent the City Commission’s denial of a permit to complete its proposed water reservoir replacement project,” Wingate stated in his ruling.

But the judge allowed the second count of FPB’s lawsuit — that the planning commission’s findings were “arbitrary and capricious,” or baseless — to continue forward. And in its request last week, Plant Board counsel Cory Skolnick said that the second count of the lawsuit was premised on the first and requested clarification on whether the Planning Commission's determination was binding.

“We heard the court loud and clear, and we respect your decision,” Skolnick told the court. “But we’re faced now with how do we go forward on count two, and it became clear that the legal authority of the Planning Commission was never addressed in that decision.”

In his ruling Tuesday, Wingate also granted a motion from the Planning Commission to establish a schedule to tender briefs and move forward with litigating remaining aspects of the lawsuit.

FPB will have 30 days to file briefs on the second count, and the Planning Commission will have 60 days to respond.

Frankfort Plant Board attorney James Liebman did not respond to a request for comment prior to publication.

A court date for the next hearing has not been set.

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