Franklin Circuit Judge Thomas Wingate on Thursday tossed out a central claim in a Frankfort Plant Board lawsuit filed against the city of Frankfort over a proposed Tanglewood reservoir project, but another claim in the suit will proceed in court.

Wingate dismissed the Plant Board’s claim that the Frankfort-Franklin County 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.

However, the city’s motion to dismiss the second count of FPB’s lawsuit — that the planning commission’s findings were “arbitrary and capricious,” or baseless — was denied.

FPB’s approximately $3.8 million plan to replace two antiquated, 4.6-million-gallon water tanks with a new 7-million-gallon tank — with an identical tank possible at a later date — has drawn the ire of the Tanglewood Neighborhood Association, which has proposed replacing the current tanks with one of identical sizes to prevent any potential 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.

The two sides met in court Dec. 5, with the city arguing it has domain of its own land and the Plant Board arguing it has authority to act as an independent agency and should not need the city’s approval.

Wingate’s ruling cites KRS 96.174(4) in supporting that FPB is required to “obtain a permit or consent or approval in writing” from the city to go forward with the project, and he goes on to state that the planning commission’s decision not to grant a permit is indeed binding.

Both parties, however, will still have to sort out FPB’s appeal of the city’s denial to build the reservoir since Wingate did not dismiss the lawsuit’s second count, which claims that the planning commission’s decision should be invalidated because it did not “undertake or describe the research, analysis and projections” required by state law and was not supported by substantial evidence.

Even if the judge does rule that the planning commission’s decision was indeed arbitrary and capricious, Wingate’s ruling on count one means that FPB still must obtain the city’s consent, City Solicitor Laura Ross told The State Journal.

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 yet to be announced.

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