The Frankfort Plant Board building (The State Journal archive)

Frankfort Plant Board attorneys have laid out their legal case for why plans to replace the controversial Tanglewood reservoir should go forward.

FPB recently filed a 170-page motion for summary judgment on the remaining count of its lawsuit against the Frankfort/Franklin County Planning Commission. FPB asked that Circuit Judge Thomas Wingate rule in its favor, contending that the Planning Commission acted “arbitrarily and capricious” in its rejection of a 7-million-gallon tank proposed to replace the current, 133-year-old reservoir in the Tanglewood neighborhood.

Wingate has scheduled a hearing for next Wednesday to hear arguments from both sides.

A summary judgment is a judgment entered by a court for one party and against another party without a full trial.

In its motion, FPB argues that the planning commission acted outside of its statutory powers and violated an agreement that review of the 7-million-gallon tank proposal would not be binding. FPB also argues that the planning commission’s finding was not based on substantial evidence, such as an engineering analysis.

“The planning commission is not a utility regulator,” FPB’s legal team wrote in the motion. “It does not have the institutional competence to evaluate competing proposals for the design of water distribution infrastructure. It is impermissible for the planning commission to engage in this kind of micro-management under the guise of land use planning.”

Legal counsel for the planning commission has not filed a response.

The exhibits in the motion cover an array of information, from how the $3.8 million required to build the 7-million-gallon tank is expected to affect Frankfort ratepayers – an increase over two years of about $4 for each 4,000 gallons of water used – to a transcript of proceedings from the August 2018 planning commission meeting that prompted the lawsuit over replacement of the reservoir.

The lawsuit claimed two major points: that the Planning Commission’s determination that the reservoir plans did not align with the city’s comprehensive plan was not binding and that the findings were “arbitrary and capricious,” or baseless.

Wingate dismissed the first count in a December ruling but let the latter move forward. After an unsuccessful attempt to again argue whether the Planning Commission’s decision was binding, FPB’s legal counsel is now focused in on whether the decision was baseless.

While the city has previously cited its Comprehensive Plan as grounds to reject the reservoir proposal, FPB has argued that the decision was devoid of “substantial evidence.”

Wingate is expected to weigh in on the latest filing sometime after next week's hearing.

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