A hundred thousand dollars can buy a lot.
From a cursory internet search, that amount of money can purchase a franchise for a Caribbean cruise agency, a high-end water jet pack, Kobe Bryant’s NBA championship rings from 2000 or even an entire private island off the coast of Brazil.
Then again, it could pay for — and indeed has — a year’s worth of litigation over an almost century-and-a-half-old water reservoir that everybody agrees is urgently in need of replacement.
According to records obtained by The State Journal, litigation over the Tanglewood Reservoir project has so far reached $95,084.10 in attorney fees funded by Frankfort taxpayers and the municipal utility's ratepayers. A person who owns property in the city limits and purchases utility services from the Frankfort Plant Board is paying lawyers on both sides of the dispute.
In total, the Frankfort Plant Board has paid $64,892 to Frost, Brown, Todd Attorneys, of Louisville, for 188.3 hours of legal work since September out of the utility's administrative budget. The city has paid $18,183 to Baughman-Harp law firm, of Frankfort, and the Frankfort-Franklin County Planning Commission has paid $12,009.10 to Logan, Birch & Fox law firm, of Frankfort, for a combined total of 128 hours of legal work in that same time from the city’s professional services budget.
And a resolution does not appear to be near.
In speaking with officials familiar with the litigation, it becomes clear the replacement of half the 134-year-old Tanglewood drinking water reservoir with a 7-million-gallon tank is only part of the argument. Everyone — especially since a Jim Beam warehouse fire in early July shined a light on the fragility of Frankfort’s water system — seems to agree that replacing the reservoir is paramount.
However, there is an underlying dispute over whether a municipal utility has autonomy to make decisions about services it is tasked with providing without involvement by city government. And that, at least to FPB Chairwoman Anna Marie Pavlik Rosen, is worth the fight.
“That’s the heart of the lawsuit. It all goes to that question,” Rosen said of the utility's suit challenging a planning commission ruling that FPB's plan violates the city's Comprehensive Plan. “FPB’s job is to provide services, and all our decisions come from engineering and science. We’re supposed to be removed from political pressure … . We want to do the right thing, and that’s what we’re in court fighting for.”
The argument is not explicitly laid out in FPB’s lawsuit against the city and its planning department. FPB has only stated that the city, when it created the Plant Board, gave the utility the power to carry out projects as an independent agent.
Frankfort Mayor Bill May agreed that the statute should be clarified so that municipal utilities across the state have clear directions going forward. The difference in the case of the Tanglewood reservoir, though, is that the tank is on city property, May said.
“We need to know going forward whether FPB can operate as its own entity as envisioned by Kentucky law,” May said. “Right now, it’s not clear.”
Officials disagree on whether something as dire as replacing the city’s 134-year-old water storage infrastructure should be the subject of a lengthy legal brawl.
“We need settled law,” said City Commissioner Scott Tippett, “but we don’t want the reservoir to be the vehicle for that settled law. It’s too important.”
“I would think it would be good to separate the lawsuit from what’s going on here,” May said. “That would be the better way to do it. I’m concerned about the reservoir.”
However, Rosen said it is important cases that require important decisions.
“Critical issues are what interpretations of statutes are for,” she said. “This affects our water, and it could affect our electricity in the future.”
FPB's proposed 7-million-gallon tank, which would cost $3.8 million, stalled last August when the Frankfort-Franklin County Planning Commission recommended denying the plan. The planning commission wrote at the time that the plans were “not in agreement with the Comprehensive Plan,” according to city documents.
The city backed alternative plans proposed by the Tanglewood Neighborhood Association, which prefers replacing the two existing tanks with ones of identical size — 4.6 million gallons — to prevent aesthetic damage to the neighborhood. But FPB said that acquiescing to the alternative plans would cost approximately $3 million more than the original proposal and, ultimately, lead to higher water rates for consumers.
Following the planning commission’s findings, FPB filed a lawsuit in September claiming that the recommendation was not binding. FPB has since seen Circuit Judge Thomas Wingate dismiss that portion of the lawsuit, leaving its attorney only to argue whether the planning commission’s findings were “arbitrary and capricious,” or baseless.
FPB’s attorney, Cory Skolnick, began filing briefs Thursday to prepare for future hearings on the matter. The planning board will have 30 days to respond and a hearing could follow, although one has not been publicly scheduled. Skolnick, however, has indicated that FPB might appeal the outcome of the case.
“We’re paying money for legal fees,” said Rosen. “But, in the long run, we’re avoiding an additional cost for less storage and the unforeseen long-term costs.”