FPB

An aerial shot of the current, 133-year-old reserviore with the Tanglewood neighborhood along its side and the state capital in the background. It is currently two 4.6 million gallon tanks that house Frankfort’s drinking water. The dark areas show where beams lay underneath and the dome has sunken in on top of them. An FPB proposal would replace one with a 7 million gallon tank for now and replace the other in about 60 years. Zack McDonald | The State Journal

After failed attempts to negotiate a resolution of the controversial Tanglewood reservoir project outside of a courtroom, the Frankfort Plant Board has picked up litigation efforts where they left off in a lawsuit against the city of Frankfort.

Attorneys for the city, the Frankfort-Franklin County Planning Commission and the FPB met Wednesday in Franklin County Circuit Court to discuss a recent motion by the municipal utility seeking clarification on a December court ruling as to whether the planning board’s recommendation against an overhaul of a nearly 140-year-old drinking reservoir in the Tanglewood neighborhood was binding. The Plant Board wants to build a single 7-million-gallon tank at a cost of $3.8 million. Neighborhood residents prefer two smaller tanks, which FPB says which will be much more expensive for ratepayers. At the end of Wednesday's discussions, Circuit Judge Thomas Wingate said he would issue an order within three days on the motion for clarification.

Nathan VanSickle, president of the Tanglewood Neighborhood Association, said the community would be ready to react accordingly to the judge’s decision. He said he was confident the planning commission’s determination would hold up.

“We will eagerly await his decision and go from there,” VanSickle said.

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Wingate had previously dismissed one count of the Plant Board’s lawsuit — that the Planning Commission’s determination that the reservoir plans do not align with the city’s comprehensive plan should not be binding. But he declined to dismiss a second count that alleges the commission’s findings were “arbitrary and capricious,” or baseless.

Cory Skolnick, FPB attorney who filed the motion for clarification, attributed the delay between Wingate’s December ruling and the motion for clarification to efforts at a resolution outside of the court. He said those have reached a stalemate, leaving FPB only to pursue litigation, with hopes of a compromise down the road.

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 in order to possibly prepare for the legal battle to play out in an appeals court.

“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.”

Skolnick said that if the Planning Commission’s decision is actually non-binding, the litigation could then move on to appeals. 

However, the city of Frankfort’s legal counsel, Josh Harp, told the court that FPB has so far been pursuing answers to the wrong question.

“The fact is the city has the prerogative to accept the permit or deny the permit,” Harp told the court. “That’s the question the Plant Board fails to appreciate is: What will it take to get the city to grant the permit?”

Harp said that the Planning Commission also has records of evidence relied upon to make its decision against FPB’s plan, which he claimed would show the board did not act “arbitrarily and capricious.”

At the heart of the lawsuit are FPB’s plans to replace nearly 140-year-old water tanks in the Tanglewood neighborhood with a $3.8 million, 7-million gallon tank — with an identical tank possible at a later date should demand require it. The neighborhood association has disputed the plans and proposed replacing the current tanks with two, 4.6 million-gallon tanks similar to those on the current site to prevent detriment to the neighborhood’s aesthetics or property values.

In August, the city commission supported Tanglewood’s proposed alternative and the planning commission followed by denying a permit to build the new tank, prompting FPB to file a lawsuit in September.

FPB board members and city commissioners have met behind closed doors since Wingate's ruling, but those efforts have not led to a resolution.

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