The groups opposing the controversial rezoning of Duncan Road land from agricultural to industrial have asked the Franklin County Fiscal Court to hold an evidentiary hearing.
The process in which the Frankfort-Franklin County Planning and Zoning Commission decided to recommend the rezoning was flawed, according to two letters sent to the fiscal court last month from the Duncan Road-Hilltop Meadows Association and Envision Franklin County.
Envision Franklin County’s letter specifically asks fiscal court to either reject the rezoning recommendation altogether, or hold an evidentiary hearing.
As of Friday, the Duncan Road-Hilltop Meadows Association has not received a response from the county nor a confirmation that the county even received the March 23 letter, according to Co-Director Susan Goddard.
“I have not heard one thing,” Goddard said, adding she has also not heard from any magistrates.
Envision Franklin County President Chris Schimmoeller did not respond to a request for comment by press time.
On Friday, Franklin County Judge-Executive Huston Wells told The State Journal he was aware of the evidentiary hearing request.
County Attorney Rick Sparks said there’s no formal response that’s sent when the court receives those types of requests, but a magistrate or the county judge can make the decision to send a response individually.
As for when the evidentiary hearing will take place, Sparks said that is up to the fiscal court.
In February, the planning commission voted 5-2 to recommend a zoning change for the roughly 85-acre tract at 690 Duncan Road owned by Tierney Storage. Tierney Storage owner Ron Tierney, a Winchester developer, purchased the property last year. At the January planning commission meeting, Tierney, planning and zoning staff, Kentucky Capital Development Corp. CEO Terri Bradshaw, Duncan Road residents and more shared testimony regarding the proposal.
After the February vote, the zoning change recommendation was supposed to go before the fiscal court, Wells said he had the first read of the zoning change scheduled for March 26.
Due to the social distancing mandates to control the spread of COVID-19 established by Gov. Andy Beshear, all public meetings cannot be held in person.
Wells and Sparks said the first reading of the zoning change will have to happen at a time when the court can resume in-person meetings so all parties in this matter can have the opportunity to speak during public comment.
“I just want to make sure it’s a fair meeting,” Wells said about the issue. “... I’m just trying to do the right thing.”
Sparks said during the first read of the zoning change recommendation, the fiscal court can decide whether it wants to have an evidentiary hearing. Tierney told The State Journal on Friday he was not aware that the association and Envision Franklin County had requested an evidentiary hearing.
He did say he signed a waiver giving the fiscal court the ability to have a first read of the zoning change later this year after the COVID-19 crisis subsides.
When asked about his reaction to the evidentiary hearing request, Tierney said: “That’s up to the fiscal court.”
On Friday, The State Journal contacted Bradshaw for her thoughts on the issue.
She believes Tierney’s rights as a developer are being overlooked.
She also said that an evidentiary hearing on this issue is not necessary since the association and Envision had a chance to be heard and the facts have not changed since the January and February planning commission meetings.
In a letter she wrote on behalf of the association, Goddard lays out five arguments to support its claim that the Planning Commission did not have all the facts during the rezoning hearing regarding 690 Duncan Road in February.
“The Applicant (Tierney) submitted inaccurate information and gave false testimony to the Commission at the January 9, 2019 re-zoning hearing,” Goddard wrote. “The Commission’s February 13, 2020 Findings of Fact which are currently before the Fiscal Court are inaccurate and must be reconsidered. Vital information from the opposition appears to have been intentionally and unlawfully withheld from the Commission for proper review before the vote.
“Additionally, the Planning and Zoning Office staff followed irregular procedures which violated the Association’s due process rights.”
Envision’s letter, dated March 14 and signed by Schimmoeller, makes six similar claims such as the property was inaccurately described, the findings of fact are flawed, the overall process was flawed, the zoning change is inconsistent with the comprehensive plan and more.
Both the association and Envision claim planning commission staff said the commission’s description of the property makes it sound like the property is a square or rectangle shape when it’s really polygonal, or has five sides.
In the association’s letter, Goddard wrote that Tierney has not followed all the proper procedures nor did he secure all the necessary permits to remove trees or demolish a house on the farm known as the Blanton-Crutcher Farm.
“Mr. Tierney failed to secure all necessary permits, ignored all rules, procedures and inspection protocols, and failed to leave the buffer zones in place per the (comprehensive plan),” the association’s letter reads. “The Commission’s Findings should state as much. Mr. Tierney should not be rewarded with a profitable rezoning for his defiance of the rules and processes. This sets a very dangerous and loose precedent for future developers to follow.”
Envision’s letter makes the same claim.
“A majority of the P&Z Commissioners ignored the evidence of Tierney’s ongoing violations in the record and voted instead to approve a finding of fact that the developer had complied with all requirements,” the letter reads. “The fact that Tierney tore down a historic home without a permit, disturbed over 10 acres of land without a permit, and created an illegal entrance that he is still using was wrongfully ignored by the Commission.”
In the association’s letter, Goddard wrote that planning and zoning staff violated the association’s right to due process.
“The Planning Staff failed to take action against Mr. Tierney even with knowledge that he had bulldozed over one acre (that it was more like ten to twelve acres that he had disturbed), and that he was utilizing the entrance he improperly built without the requisite permitting. Planning Staff did not dedicate adequate time nor oversight to conduct all inspections of this property,” the letter reads.
The State Journal contacted Robert Hewitt, director of planning and zoning, for request for comment but he did not respond by press time.