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Developer can teach local government a lesson

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By Ben Carlson

Larry Cann and his attorney certainly don’t need nor have they solicited my advice, but I’m going to give it to them anyway.
Were I them, I wouldn’t waste my time, money or effort squabbling with Harry Wise Road residents who are fighting Cann’s efforts to build a subdivision. Instead, I’d go to court have a judge declare invalid the planning and zoning commission’s recommendations to deny that subdivision, and here’s why.
Since 2008, the planning and zoning commission has been making decisions based on an expired comprehensive plan. It’s really no more complicated than that.
Adopted in 2003, that plan was, by law, supposed to be updated every five years. But because the county was always supposedly on the verge of financial collapse under the previous judge-executive, the fiscal court shunned its legal obligation to have that plan made current.
Planning and zoning tried to rectify that problem last year by re-adopting the outdated plan, despite warnings from attorneys who said doing so still leaves them ripe for a lawsuit from a denied developer or ticked off resident.
That decision was nothing short of a farce and an ill-advised attempt to cover the commission’s backside. In doing so, it basically had to lie by contending that the research that went into creating the plan 10 years earlier remained valid, which is simply laughable.
“Planning and zoning has to determine if the research is still valid,” County Attorney Bobbi Jo Lewis said at the time. “In my opinion, if it’s 10- years old, it isn’t.”
No kidding. Ten years ago, public sewer lines along Harrodsburg Road were nothing more than a pipedream, so it wasn’t logical to even consider zoning that area to allow a subdivision.
Well, those sewer lines are there now, which has changed the area considerably, at least from a zoning standpoint.
“When zoning changes in particular come up, there are three findings one has to have, one of which is it in compliance with the plan,” Dal Harper, a senior regional planner for Bluegrass Area Development District said last year when commenting on the commission’s decision to readopt the plan without updating it.
“Another is if the zoning classification is appropriate, and have there been major changes of economic or social nature which have drastically altered the area.
“A developer could make a claim, if denied a zoning change, or a neighbor could make a claim if the change is granted and they disagree, that the plan was out of date and is no longer relevant. A judge could overrule a decision, send it back and require that the update be granted.”
Since that time, the fiscal court and city council have funded an update, which is expected to be ready for their consideration before the end of this year.
But like Cann’s plans or not — and the residents along Harry Wise Road certainly don’t — it’s outrageous to think any citizen should accept the decisions of a government body that is currently nothing short of a sham.
I’m certainly not taking sides in this fight. Cann has every right to do what he’s doing to develop land he legally owns, and those opposed to his efforts are using every legal means to make sure that doesn’t happen.
In short, both are playing by the rules. Trouble is, the same government that created the rules isn’t doing the same, and while I’m not cheering for either side, I certainly would cheer having a judge force local government to live by the laws it creates, just like the rest of us.