MSD Variance Approving Relocation of Beargrass Creek on River Metals Property Is Remanded
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On January 25, 2008, Jefferson Circuit Judge Kathleen Voor Montano issued an 18-page opinion in the case of Irish Hill Neighborhood Association et al v. MSD et al., an appeal filed by the Irish Hill Neighborhood Association and Lisa Dettlinger of the grant of a variance by the MSD Floodplain Board allowing relocation of Beargrass Creek in order to facilitate a new commercial development on the River Metals property in the Irish Hill Neighborhood.
The court rejected motions to dismiss filed by MSD, River Metals and Crossings at Irish Hill, and agreed that the Irish Hill Neighborhood Association had standing to represent the interests of its members in protecting Beargrass Creek and assuring proper implementation of the floodplain ordinance. The Court also agreed that the due process rights of the Association and Ms. Dettlinger were abridged by the denial by MSD of a right to cross-examine witnesses at the floodplain variance hearing, and also that the decision by the Floodplain Board lacked findings of basic fact to support the Board?s decision.
The case was remanded to the MSD Floodplain Board with directions to conduct further proceedings and to make findings consistent with the floodplain ordinance, and to reopen the hearing for evidence of any witnesses that presented testimony previously and to make those witnesses available for cross-examination.
The court rejected motions to dismiss filed by MSD, River Metals and Crossings at Irish Hill, and agreed that the Irish Hill Neighborhood Association had standing to represent the interests of its members in protecting Beargrass Creek and assuring proper implementation of the floodplain ordinance. The Court also agreed that the due process rights of the Association and Ms. Dettlinger were abridged by the denial by MSD of a right to cross-examine witnesses at the floodplain variance hearing, and also that the decision by the Floodplain Board lacked findings of basic fact to support the Board?s decision.
The case was remanded to the MSD Floodplain Board with directions to conduct further proceedings and to make findings consistent with the floodplain ordinance, and to reopen the hearing for evidence of any witnesses that presented testimony previously and to make those witnesses available for cross-examination.
KRC looks forward to the opportunity to cross-examine the MSD staff and the applicant's witnesses concerning the claim of an undue hardship if the Creek is not relocated in order to accommodate a proposed commercial development.
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By Kentucky Resources Council
on 02/01/2008 5:32 PM
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The Kentucky Resources Council is a non-profit, 501(c)(3) organization dedicated to the conservation and prudent use of Kentucky’s natural resources. Since 1984, we have dedicated ourselves to protecting Kentucky’s land, air, water, and communities.