So we want to get water out of there as much as possible. Talk about the overall numbers for the tank. What we first thought was going to be versus what you think it is now here to be in. The original cost estimate for this all in was $19.1 million. In terms of value engineering and also being able to better utilize the sites here, we're right now at $14.4 million. And with the opportunity of being able to recover some money, because we think we have some excess property that others would be interested in. Still a lot of money, but to save nearly $5 million at the original cost, that's huge. You've been consistent in this part of the decree of saving us money. Now, we're going into a different time with different constraints and different hardware in terms of pipelines that may not be as easy to get that economics out of. But that's why we're programming a sewer rate fee increase for the first time in several years this year. It's kind of keep us caught up, as it were. Good afternoon, ladies and gentlemen. We are here for the June 10, 2019 Board of Adjustment meeting. I will go through the agenda momentarily. First I can make some general announcements. If you have your telephone, please turn it on to silent or turn it off for me so it doesn't to go after the hearing. People who would like to either speak as opponents or proponents of applications, I'm going to go ahead and swear you in. So if you could stand, if you plan on going to the podium today for any reason. All right, raise your right hand. Do you swear, affirm, tell the truth, the whole truth, and nothing but the truth? Thank you very much. OK, so the first item we're going to go through is the minutes staff has passed those or emailed those to us. Did anyone have any comments to the minutes as presented by staff? Hearing none, then the chair will entertain a motion. I move approval. Thank you. Second. We have a first and a second. Any discussion on the motion? Hearing none, I'll call to a vote. Okay. So now what we'll do is today we have, looks like we have one disapproval, one postponement, and a bunch of approvals, two disapprovals. So what we'll do is first I'm going to ask, is there anyone who wants to withdraw or postpone their application today. Please state your name for the record. Good afternoon. I'm Laura Wachter with EA Partners. Thank you. Page 1, item 3, plan 190035 Highgates. We would like to request a one-month postponement to the July 8th meeting. OK. So this is for PLNBOA 19-35 Highgates in reference to 4128 Todd's Road. The applicant has requested a postponement to our July 8, 2019 meeting. Is there anyone here on this matter today? This is the Highgate's Todd's Road matter. Okay. Well, the applicant would like to ask for a postponement. Anyone want to discuss or want to move for a motion? I move for postponement until our July meeting. Thank you. Do I have a second? Second. We have a first and a second to postpone PLM BOA 19-35 High Gaits until next month. Any discussion on the motion? Hearing none, then I'll call a vote. All right, we'll see you next month. Thank you. Then we also have on our agenda, Susan Cox was asking for a postponement. Susan Cox actually has withdrawn their application. That withdrawal was received via email. And I also want to mention the application that we have had on the agenda the past two months at 3500 Arbor Drive. That applicant has withdrawn their application as well. I think there may be a few folks here today for that, but that application has been withdrawn. Okay. Is anyone here for the Arbor Drive? Okay. The applicant has withdrawn its application at this time. So that case is currently over. There's nothing to be done. So you guys don't need to stay. If the applicant decides to move something in the future, the same process would occur. They'd have to file an application. Notices will be filed, so you'd be notified of those at that time. Thank you very much for your participation. Okay, so the first item on the agenda. will be P-O-N-B-O-A-1933, Eric Whitaker. Is the applicant present? Thank you, sir. Is there anyone here to discuss that? Do we have a letter? Two letters of support. Of support? Okay. So, Mr. Whitaker, what we'll do is you'll be the first one to be heard today, but I've got to call through the rest of the agenda. We do a cattle call first, but just stay put, and we'll have you called up. The next item is PLN BOA 1936, Lexington Home Ownership Commission. Is the applicant present? Yes, sir. Is there anyone here to speak on this matter? All right, so we'll have that one called second. Then we have two conditional use appeals today. The first one is PLM BOA 1934 Lexington Universal Academy Inc. Is the applicant present? All right. Is there anyone here to discuss that matter today? All right. That was recommended for approval by the staff, so we'll put that one on. Well, that works out. Central Dealers is the last one. Applicant present? Yes, sir. Is there anyone here that wants to speak on the Central Dealers LLC matter? All right. We'll mark that one to be heard since staff disapproved it, recommended disapproval, which brings us back to the first page. So our first case will be PLMBOA 19-33, Eric Whitaker. We have a couple emails, but come on up to the podium, sir. You can state your name for the record. Eric Whitaker. Good afternoon, Mr. Whitaker. We're going to look at these emails in support. I doubt they're going to change the recommendation since they recommend approval, but the staff has recommended approval and it was subject to the one condition. Have you read that condition? Yes, sir. And you will agree to abide by that condition? Yes, sir. Okay. Here's this. All right. Well, while we're passing down the email, does anyone from the board have any questions for either staff or Mr. Whitaker? All right. Give us 30 seconds to read through this, and then we'll... Thank you. Okay. Thank you. Okay, we've now looked at the emails. At this point, if there are no questions or comments, I'll entertain a motion from somebody from the floor. Mr. Chair, I'll make a motion to accept the request of PLNBOA 19-33, Eric Quiddicker requesting a variance to reduce the required setback for a six-foot tall fence in a side street side yard from three feet to two feet in order to allow a recently constructed fence to remain as constructed in a single-family resident R1C zone at 3340 Hunter Road, based on the staff's recommendation and subject to the single condition listed. Sir, second? Mr. Needham, seconded. Any discussion on the motion? Hearing none, I'll call to a vote. Applications approved. You're done for the day. Thank you. The next case is PLN BOA 19-36 Lexington Home Ownership Commission 2 Inc. regarding 369 Glen Arvin Avenue I believe we have some recusals potentially so miss miss Whitman and mr. Raquel yes and then myself so we'll be down to four and I'm gonna hand the gavel over to mr. Glover Howdy. How are you? Jake Michael here on behalf of the applicant, the Lexington Home Ownership Commission 2. The staff has recommended approval of this request for a variance to reduce the side yard on the R2 lot in question from 25 to 15 feet at 369 Glenarvin Avenue. We are in agreement with the staff's recommendation and would request that you all approve the variance as recommended. and Tony Barrett and myself are here today to answer any questions you might have. Have you read the conditions? Yes, sir. Your client has read the conditions? Yes. And are in agreement with them? Yes. Okay. Any questions from the board? Is this a similar structure that has been built across the street? I believe this will just be two duplexes. Two duplexes, right. That's what I read. address is actually two lots so there'll be one duplex on each lot as shown on the site plan it seemed appears to be a big wide lot and so I would approve approve it looks great thank you any other questions from from those of us left that didn't recuse on this case if if not then we'll entertain a motion I I move we approve PLNBOA 19-36 Lexington Home Ownership Commission 2, Inc.'s request for variants to reduce the required side yard setback from 25 feet to 15 feet in order to construct a duplex within the defined infill and redevelopment area in a two-family residential R2 zone at 369 Glen Arvin Avenue, based on staff's three recommendations and subject to their two conditions. Thank you, Mr. Needham. Is there a second? Second. Thank you, Ms. Meyer. All in favor, please register your vote. Motion carried. Your project is approved. Thank you all. Thank you. You're excused. That was easy. Thank you. Thank you, Mr. Glover. I didn't listen, but I'm sure you did a great job. I did. So the next item on our agenda is for PLN BOA 1934's conditional use appeal, Lexington Universal Academy regarding 4590 Niggasville Road. The applicant wants to come forward and just state your name for the record. My name is Chris McCoy. I'm with McCoy Architects. I'm the architect for the project for the Lexington Universal Academy and I have Mary Domigan, the civil engineer, with us as well. Okay, thank you. It looks like the staff has recommended approval excluding the alternate site plan is that is are you in agreement with that or do we need to have a hearing on this we understand understand that as well we just have questions as to why that alternate it was an alternate for us it's not a deal breaker but we just have questions as to why that was not approved okay um traffic engineering may be able to speak to this a bit they had a number of concerns regarding the parking layout um and since the layout did have some issues and was not something that was part of your immediate plan we felt that it would be kind of a hypothetical to approve it at this point especially given those issues and that it would be best for that plan to come back in the future um i don't know if traffic has any comments that's exactly our our concern we want to know what what's going to be built and we were okay with one plan we were not okay with the alternate plan so which plan was given to us our packet the alternate plan is shown in the bottom corner of the plan so that the larger drawing is the existing parking configuration in the proposed addition in the bottom left-hand corner I believe of the drawing there's a an alternate layout for the parking it would it be possible if I could meet with traffic engineering sometime in the next couple weeks where we can discuss what changes need to be made for you all to approve it in the future? What was it? Sorry, I'm still trying to look at the plan. So you're asking about further discussions with staff? Yes. Yes. We're trying to figure out what we need to do to be able to get of why exactly it's not being approved today so that if we come back before the board in the future, like let's just say in a month or two, of being able to present a plan that will definitely be getting approved? Well, I think the issue is that the ultimate site plan, assuming that traffic is okay with the layout, I think the question is that I think they like to approve plans and this is what you're going to build, not necessarily this is what we may build in the future. Or is that – so I think that's kind of a hang-up. There's only one site plan. It's the existing layout, which doesn't change, or it was an ad alternate to do that. So it wasn't two plans. It was only one plan of what we proposed to build. It just was questionable as to whether or not we actually build it, because there will be an ad alternate to the project. And then when parking, I think that there were two different plans. I understood and we're okay with the current plan. The alternate has issues. And if this board is okay with voting on both plans, that's fine. But you won't know what's going to be built. Well, I think, let me ask a question while we're on this. It looks to me like the original plan is what's before us. An alternate plan is usually conditional, temporary, or has preconditions, and there's nothing. So the alternate plan, because it's an alternate, is not before us. So the only thing we're looking at is the submitted plan. If you want to propose an alternate plan for some later time or when you get ready to do that, or if this one fails, for example, if the board doesn't approve it or something, then that's a different deal. But I think what we're looking at is the plan that's presented to us. Alternate is too contingent on future dates. And since that's true, then you would have plenty of time to talk with traffic or whoever else about what they may not like. If you plan on building what is in your alternate plan box, is that the intent is to build that? That was our intent, but we will happily go through the details and come back at another date, too. It's not going to stop the project if that portion is not approved. But that was our intent when it was to be constructed with the rest of the addition as an ad alternate. It's more of a question of funding than whether or not we want it, if that made any sense. but we are happy to go back and come back with a different plan and work through the details if traffic has any issues with the design of that alternate plan so let me ask you this would you prefer a postponement and come back with the final plan with the alternate parking or go ahead and have as the staff recommend recommended approval of the plan striking the alternate site plan no we would prefer to go ahead and remove the site plan and come back with that but we want to if the rest is okay we want to proceed with the addition to the building yes okay i understand yeah mr mccoy that's the only way i can i think i can look at this right now yeah that's that's satisfactory i think that's the way we ought to go that's fine and that that's what staff had proposed essentially that's correct we would recommend that the applicant get together with traffic engineering in the near future and discuss the the issues that are there and then file a new application for for for the parking area. For the parking area. Okay. All right. And that's okay with you and your client? Yes. Okay. So the staff's approval, they listed three conditions and you were okay with those three conditions? Yes. Okay. All right. Well, that's easy. So now we're to the point where does anyone from the board have any questions for staff or for the applicant? And if not, does somebody want to move? Mr. Chair, I move the acceptance of PLN BOA 19-34 Lexington Universal Academy requesting a conditional use permit to expand an existing school for academic instruction in the agricultural urban zone at 4590 at Nicholsville Road, excluding the alternate site plan consideration based on the staff's recommendation and subject to the three recommendations so listed. Thank you, Mr. Clark. I'll second. Mr. Glover seconds. Any discussion on the motion? Hearing none, we'll call to a vote. Application carries. Good luck with your project. See you soon. Thank you. Yeah, yeah, yeah. All right, so the last case on what I thought was going to be a short docket, gentlemen. We'll keep it, too. But I see the big guns are here today. So we're going to have a case of PLM BOA 1937 Central Dealers, LLC, regarding 120 West High Street. And staff was recommending disapproval. I see that I've read the report of staff. I saw that it looks like legal had given a recommendation to the inspection, so I'm probably going to have them heard. So I guess everyone's going to talk today, but please state your name for the record and proceed. Nick Nicholson here on behalf of the applicant, Central Dealers. It's an LLC that's basically, we're calling it the residence at South Hill. It's for a project that's right up the road at kind of the corner of High and Upper Street. and before i get into the project history to kind of explain why we're before you all is this is going to be an administrative review to determine whether or not building inspection is making the proper interpretation of a provision in the zoning ordinance they believe that an automatic stay is in place whenever an approved demolition permit is appealed to the circuit court and so that is kind of the underlying issue but the way we got here is both the board and our Board of Architectural Review and the Planning Commission approved a certificate of appropriateness for a demolition permit on property at 120 West High that is in the historic South Hill neighborhood overlay the adjacent neighborhood association the historic South Hill neighborhood association supported the findings of the Planning Commission for that demolition permit. The Bluegrass Trust filed an appeal of the Planning Commission's decision to the circuit court. That appeal was dismissed for failure to basically follow the required statutory provisions whenever you appeal the final action of a Planning Commission. The Bluegrass Trust appealed that dismissal to the Court of Appeals. And I know I don't have to say this to the lawyers in the room. once you get to the Court of Appeals stage, all bets are off. I know that even the most basic cases are taking about two and a half years. I've had cases that have well pushed five years. And again, this is just on whether the Fayette Circuit Court made the right decision to dismiss the appeal. This wouldn't involve the actual underlying merits of the appeal. And so we are looking at a very lengthy period of time. And it goes without saying that whenever you are looking at that lengthy time. There are damages, there are risks, there are expenses that are inherent whenever property development goes through the appellate procedure. We are of the belief that the court system has a set mechanism to determine how those risks, costs, and damages are basically properly balanced between the two parties as they are going through the appellate process. We are here today in hopes that you will allow us to get to that mechanism because namely the billing inspection through the Department of Law have made the interpretation that section 13.8 B contains with it in automatic stay that whenever a demolition permit approved by the Planning Commission is appealed it automatically stays all proceedings to basically get to it here is what the language of this provision is. All orders of the planning commission which have not been appealed within 30 days shall become final. However, there shall be no stay of action on the subject property on such time as the appeal has been filed with the Fayette Circuit Court. We do not believe that this automatically grants an appeal. It is merely recognizing or contemplating the authority of the Circuit Court to issue that stay of proceedings. In no way does this say that as soon as you are filing this appeal there is an automatic stay and I can say that so definitively because when LFUCG wants to write in an automatic stay into their ordinances they know how to do it this is the ordinance for basically when dealing with evictions proceedings it says that in the event that judicial or quasi judicial proceedings prohibit an owner from proceeding with an eviction, enforcement under this section will be stayed until the judicial or quasi-judicial proceeding is resolved. That, my friends, is an automatic stay. It is very much different than what is contemplated by section 13.8. We think that the lack of an automatic stay is basically further kind of, you know, supported by the code of ordinances that govern the proceedings with which building inspection takes in demolition permits. When you are dealing with the demolition permits, the code of ordinance is very clear that the building inspection itself is basically a ministerial task. Their evaluation of that is ministerial in nature. They're not adjudicating anything. They are not having discretion whether or not to issue it. If it has properly been filed, then there are the steps that must be taken, and then that permit is issued. It is just a processing. In situations like the one that we have where a building is more than 50 years old, there is set time periods involved with the processing of that application and the timeliness of this. The reason why it's up in essence and why LFUCG is not allowed to basically drag its feet is stressed here, where it says under no circumstances shall this process, if you add them up, take longer than 33 days. after the circuit court dismissed the the appeal of the bluegrass trust we wanted to basically move forward and get the process starting so we could have an injunction hearing so we could talk about the posting of bombs we filed the demolition permit on january 15th we did not receive the rejection from the building inspection until april 9th almost 80 days later it's now almost or over 140 days since we originally filed that appeal even though under no circumstances is this process supposed to be taking more than 33 days but what i do want to very much stress is this in no way whatsoever is any attempt to skirt the court proceedings or the appellate process that is going to be undertaken evaluating the bluegrass trust's appeal every meeting we've had with with building inspection and with the Department of Law, we have stressed we are happy to go forward with basically an injunction hearing. We are happy to abide by anything that the Fayette Circuit Court decides. We are just asking that you all let us get to that phase. If you agree with LFPCG that there is an automatic stay in existence, we can't have that injunction hearing because there's nothing to enjoin. The automatic stay exists. And so we do not believe that in any way, shape, or form, a court system that has designed the injunction hearing, that has set rules for how to deal with posting of bonds and property appeals, intends for there to be an automatic stay. We also don't think LFUCG intended that, or else they would have written something just as strict and obvious as the eviction hearing automatic stay was. So, in order to have a conversation with a judge about how we handle the basically balancing of the equities for the next two and a half to five years on just this one part of the Court of Appeals review, we're asking you to basically just agree that there's not an automatic stay, that the court system can put in a stay in place, but that that is up to the circuit court system. That is not an automatic move by LFUCG. Now, if you all agree with LFUCG, here's essentially what you are saying. That the applicant that has been approved by the Board of Architectural Review, that has been approved by the Planning Commission, and in this specific instance has already had their appeal dismissed by the circuit court, that they alone will have to bear all of the risks moving forward with the development of property as this appeal is pending. You are also saying that the appellant claiming to be injured and abhorred that has lost at every stage, the Board of Architectural Review, the Planning Commission, and even in this case had an appeal dismissed by the Fayette Circuit Court, they get a risk-free, free trial, free appeal that basically will hold up an otherwise approved development for a number of years. We simply do not think that that is the proper balancing of the equities in this situation, and we're just looking to basically get to the Fayette Circuit Court. I do have proposed findings. They are very simple. They are not specific in any way, shape, or form. It's as broad as I possibly can. Before you get to those findings, would you go back to your first slide, please? Yes, sir. and 13 8b is the is the basis on which the application was determined to be uphill to be on hold yes okay so the uh building inspection basically i have the exact language and this was in the letter you got from them yes it said pursuant to section 13 8b of the zoning ordinance any action on the subject property was stayed when the appeal was filed with the circuit court we've had several meetings with them and they view this to be an automatic stay I do want to say I meant to say earlier we have been lockstep with LFUCG on pretty much throughout this entire process this is one that was basically approved by Board of Architecture review was approved by Planning Commission LFUCG supported the decision of the Planning Commission. LFUCG even supported the motion to dismiss in order to basically say that the appeal was lacking. So this is truly the only small little caveat that we are kind of in disagreement with LFUCG. It is how can we move this to the next phase of this proceeding. That's all. Bill does want to comment as well. I hope you all won't think we're double teaming. This will just be really quick. This is a little refresher for the lawyers, but maybe new to the non-lawyer, the people who are lucky enough to be non-lawyer members of this board. Aside from the fact that the only section of the ordinance that is relied upon requires you to make what is in effect a negative implication to arrive at the result they did, which is pretty poor statutory drafting and pretty ambiguous statutory drafting, The rules of civil procedure allow an entity that's in the position of the other party in this case plenty of opportunity to request a stay. Civil rule 6203, which deals with pending stay of proceedings to enforce a judgment, and 6203 says pending appeal. When an appeal is taken, the appellant may stay enforcement of the judgment by giving a supersedious bond as provided in Rule 7304. And if you look at 7304, it allows the posting of a bond to cover many things, including damages associated with the cost of the appeal and damages for delay. And that rule would apply to any appeal, including the one that is in existence. And Rule 73 further provides that even though there's an appeal which takes the case to the Court of Appeals, the circuit court, Judge Travis in this case, retains jurisdiction to address matters such as the sufficiency of the bond that's required. And aside from the fact that if you want to tell somebody they have a right to a stay, this rule shows you how to do it, not by some negative implication. What this rule shows is there's a mechanism in place. It applies to everything, not just this situation, that fully affords the other party the opportunity to grant a stay if the court thinks it's appropriate, but also to bear the risk of costs associated. Now, if that appeal is successful under the rules, they wouldn't owe anything. But if ultimately they are determined to have held up the property rights that this government has said the applicant here has, held up for a period of years, then the applicant, in this case central dealers, has a mechanism that they can go against to recoup at least some of the cost. It's totally up to the circuit judge how much the bond is, what the surety is on the bond, but that's, number one, a way you say it if you are a good drafts person. That's how you say that a stay is appropriate, and that's how you provide the necessary backstop for it. So we appreciate the time that you're giving to this. Last thing I'll say, one of my favorite Mark Twain quotes is, if two lawyers agree, one of them is unnecessary. And it might make one of the two of us unnecessary, but not us and the Department of Law. Mr. Lear, before you leave the podium, or Mr. Nicholson, either one, who are the parties to the litigation? Bluegrass Trust. The Bluegrass, the central dealers filed the application. The application was approved by the BOAR. then the neighborhood association joined at the planning commission level, but were not joined in the appeal, which was the basis for the dismissal, they being a necessary party under the statute. So right now the two parties are central dealers, the government, which is always a party defendant when the government, in this case the planning commission, when they finally approve something, and the Bluegrass Trust. those are the three parties. Okay thank you. One question Mr. Lear before you step down I know you've been doing this for a couple years now um are you have you have you ever heard of 13 8b being used to stay anything development plans anything in the process after someone appeals because I haven't. I haven't um I've I've never heard of it most In most cases, in the granting of a permit that is something other than demolition, you will see the applicant during an appeal not run the risk of going forward. But these rules that I mentioned would always be present if somebody wanted to attempt to do it. I do know of one case many years ago where a conditional use was granted to build a bank with a drive-through out on Nicholasville Road across from Central Baptist Hospital. That was in my objector days. I actually filed an appeal and the bank decided to go ahead and build because the real issue was whether they were going to be able to do a drive-through and I guess they made the decision they were going to build the bank anyway. If they couldn't do a drive-through, they couldn't do a drive-through. There are cases where they will go ahead and there was certainly no automatic stay in that case. Thank you. Any questions for the applicant at this time? I'm trying to get my head around this because I'm one of the non-lawyers. So the staff, when it went through BOAR, did the staff recommend for disapproval? For the demolition permit, yes. The historic preservation staff was recommending disapproval. But the BOAR approved it over the staff. And the planning commission staff recommended approval at the planning commission stage. Okay. Okay. right because normally i would think the bgt and the staff of the boar would be on the same page here yes okay but it is should be of note that the actual neighborhood association that is impacted by this and is part of the overlay that is protected here was recommending to demolish this structure at the board of architectural review and at the planning commission itself interesting okay all right that's what i want to clarify thank you yeah i have a question i'm not sure if it's for staff or for our legal but i could we get a little more clarity on what we're approving or disapproving and specifically i was going to ask legal okay to come up next but i think essentially we're doing is we would ultimately we would be granting their demolition permit if if we vote with the appellant applicant. And if we vote against them, we'd word the motion properly. But a vote against them would be they could not get their demolition permit and they'd be stayed pending this court of appeals case. So it's whether or not we give them a demolition permit. I think that is mostly correct. It is more that you are disagreeing with the board or the building inspections interpretation that there is an automatic stay which prevents them from issuing this demolition permit the Board of Architectural Review and the Planning Commission have already said that the building permit is approved this is truly an interpretation of the zoning ordinance that there is an automatic stay or not so by granting approval to our request you are basically telling building inspection that there is not an automatic stay under this section as as such, then the permit must be issued under the rules. It's slightly different than the Board of Adjustment approving the demolition permit because that is kind of the purview of the Board of Architects. I was trying to put it in the layman's term, but yes, Mr. Nicholson's right. I would like to listen to legal because I have a real hard problem with your interpretation of this provision, so I'd like to listen to your guys' case. First, let me say that we did have many discussions with Mr. Lear and Mr. Nicholson, and we just fundamentally disagree about the interpretation of this ordinance. For example, if you read it the way they read it, then there's no need to have that additional language because there should be no stay of any action on subject property until such time as an appeal that's been filed to Fayette Circuit Court would go without saying. But this indicates that if there's an appeal filed with the Circuit Court, then it is stayed until that appeal process has completed. In this particular instance, it's particularly stark because the very issue here is if the building is demolished, there's no reversing that. If someone did try to put in a drive-through lane and it had been denied, you can make someone take the drive-through lane out. If a building is demolished and the court ultimately decides that that should not have been issued, there's no rebuilding the building. It is done. Two things. could you state your name for the record just sorry yeah it's fine for those who don't know me I'm Keith Horn at the Department of Law yes secondly and then the second question I have is but they could appeal our decision or any decision could they not could that not be appealed yes and I'm assuming perhaps wrongly that if you agree that the Department of Law has advised building inspection properly here that they will be filing an action in the circuit court to get an order that they be issued the demolition permit, recognizing that they were in court and are in court in front of judges that could do that. They apparently simply don't want to ask those courts to issue in order to the government that that demolition permit be issued. So yes, the other party could, if you make a decision today that building inspection should issue the building permit, they could also go to court to say that that was in error and ask a court to reverse that or issue the stay. Mr. Horn, do you agree that what we're deciding here by either our thumbs up or thumbs down on this appeal is whether or not the interpretation that the Department of Law has put on this we agree with. Is that what we're deciding? Yes. Okay. I'd like to ask another question as the non-lawyer. So on here where it's referencing the appeal to the Fayette Circuit Court. So it was before Fayette Circuit Court and they dismissed the appeal. And so now it's moved on to the Kentucky Court of Appeals? That's correct. They filed a notice of appeal. And does this still apply to the fact that it's in the Kentucky Court of Appeals? It does. It basically means once the appeal is filed with circuit court, which is the beginning point of the appeal, well, after you get past the Planning Commission from a BOAR decision, that that appeal process continues. And we have great sympathies for the position that this owner is in. but we don't know how else to read this or apply it in a just manner. I guess I still can't wrap my head around that, but the Fayette Circuit Court has, I mean, they dismissed it, so it's no longer before the Fayette Circuit Court. That's correct. It's in front of the Court of Appeals. Okay. But this is the, if you read it as the starting point, once the appeal has been filed with the Fayette Circuit Court, there's no place else to file the appeal from the Planning Commission. It goes to the Circuit Court. That triggers the appeal process. And by law, they have a right to take that appeal to the Court of Appeals if they decide to do that. And as I indicated, the owners in this situation, the developers, can ask the court either to tell us to issue the building permit or they can ask that under the law that was amended a couple of years ago that a bond, particularly to these situations, be issued against the Bluegrass Trust. And if they cannot issue that bond, the Bluegrass Trust, then they would also be entitled to get their building permit. Mr. Horne. Main demolition permit. Another question. In reading the language that's highlighted up there, after however, It says there shall be no stay of any action. What action is that, what action are they talking about in that language? What is the action that there shall be no stay of? In this case, it's the issuance of the demolition permit. The Planning Commission basically agreed with the Board of Architectural Review that the owner in this situation should be permitted to demolish the building. Because it's in a historic overlay, there's a special process they have to go through with the Board of Architectural Review to seek demolition of the building. And there are special provisions in the historic overlay that apply to demolition of buildings that do not apply generally to demolition of buildings. For example, one of the things that they pointed out for any building that's a certain age, whether it's in a historic overlay or not, there can be a 30-day delay while historic preservation documents the building. They can't prevent or there's no decision by the BOAR related to the demolition of the building, but there can be a 30-day period before that permit issues. That's the provision he was talking about. This particular process, BOAR said okay. Planning Commission said okay, although they, I think, changed the reasoning a little bit for the demolition. And then there was an appeal filed in circuit court. So the action being stayed is issuance of that demolition permit. So the action referred to in the language is the action in the circuit court? Yes. Planning Commission. If I understood your question. I'm just trying to find out what action this the language is referring to it's the action that the Planning Commission took the action of the Planning Commission yes so the Planning Commission approved that's correct application that's correct okay so by disapproving or voting for disapproval are we actually are we killing the deal or we're just saying that Now they have to wait out the court process. They either have to wait out the court process or approach the court that already has the case to make a decision on telling us that we need to issue the demolition permit. I guess that's where I'm having an issue, is that this feels to me like this is circumventing kind of the way that system is set up for an injunction or a stay. that's issued by the actual court itself. And usually the aggrieved party is the one asking to enjoin the victor, not that the victor has to get approval to remove an injunction that's automatically placed against itself. I understand you guys are trying to salvage this provision. I don't care how it was written. I don't think it properly fits within the framework of how these processes are supposed to work. I'm personally, I'm in favor of the applicant when it looks at the provision. My concern is that if we interpret it that way, then as soon as someone files an appeal, that means all development plans process stops. I mean, more or less, the system comes to a halt no matter where it is. And I don't think that's the way it works even now. I don't think if someone files an appeal that all of a sudden the development plan reviewers stop reviewing and stop the process from moving forward. But if we take your interpretation, as soon as the appeal was filed, the staff would essentially have to stop working on the application in total, would they not? I don't know that this particular circumstance has ever presented itself. So I don't know, I can't tell you that they would have to stop working on development plans, whether or not it would prevent the issuance of other permits, I would imagine is possible. Any more of them? You know, the way I look at it is that this was the property that I owned, and I had decided to take it down, and there was a strong opposition from the neighborhood, a strong opposition from BOAR and a strong opposition, I guess, from the Planning Commission, probably wouldn't take it down. The fact that they got approval and they have plans to do something that seems to be, I'm not sure what the Planning Commission agreed to or interpretation. You said it was a little different. But it seems to me as though, you know, with those three approvals, they really should have the right to do what they want to do with it. And the fact that the BGT doesn't like that, this is a backwards way to kind of get this halted again. So I would probably be in favor of the applicant here. Just let me make sure everyone understands that BGT didn't have anything to do with this interpretation, and we had no discussions with Bluegrass Trust about this. This has been discussions with Mr. Lear and Mr. Nicholson and the Department of Law. Has the Department of Law made this interpretation on any other applications in your knowledge? Like I said, I can't remember when this type of situation presented itself previously. And Tracy Jones isn't here, but I don't know if she would also remember anything like this presenting itself before. Do you agree that this is a poorly drafted statute? I don't know that I would say it's poorly drafted. It could have been drafted better probably because the way we read it to say that no stay of any action on the subject property until such time as an appeal has been filed with Fayette Circuit Court. Like I said, if that just means you can ask the court, there's not even a need for that part of the ordinance because that would be the status of the law without that language in the ordinance. Well, do you agree that you could interpret this language in two different ways? I can certainly see what Mr. Lear and Mr. Nicholson are arguing. Thank you. Mr. Lear, it looks like you want to speak. Yeah, just very briefly, I want to point out, the counselor has said that if it weren't for his way of looking at it, the language would be unnecessary. The reality is you don't have to wait 30 days to file an appeal and go into court, take advantage of the rules. This says there's no stay until 30 days, and there's nothing that requires building inspection or the Board of Architectural Review staff to take the full amount of time. It's conceivable we could have gotten a demolition permit with no stay in 10 days. There's nothing that says they had to wait 30 days to file their appeal. They could have filed it in two days and gone into court and got an injunction. So we did have a, we had a, it hadn't been unfriendly. The irony is we're on the same side of this case. Every part of the government that's looked at this or every agency has said you ought to get a demolition permit. So we're on the same side in the ultimate result. We just think their interpretation of this poorly drafted ordinance is incorrect. But you'd agree that you could interpret it two different ways? As you know, Mr. Glover, I've written a lot of statutes and passed a lot of statutes. You didn't write this one, did you? I was head of this department at one time a lifetime ago. I would have been embarrassed to have written it that way. because the thing that's harder about passing or drafting legislation than practicing law is when you draft legislation, when you practice law, you've got one set of circumstances. When you're drafting legislation, you have to consider every possible set of circumstances, and the proper way to have drafted this is to make it very clear that in the event of an appeal, there is an automatic stay. It was easy to say that. They didn't say it. And I think what's happening here is an effort to interpret something into it that the drafters never wrote. Any additional questions? I have some comments, if I might. Oh, please, Mr. Clark. In light of the approvals that have gone through the process, I can certainly understand why this is a project that the people who have considered it say, okay, this is probably something we ought to approve. My concern is that it is being appealed, and we're kind of ignoring that. And that bothers me that we're saying, okay, no matter if there's an appeal here, but let's ignore the appeal. Regardless of the wonderful language that I hear, I'm concerned that we're not taking that into consideration. I just don't see how we can ignore the fact there is appellate action here that if we go the way that we're asked to go, that we simply ignore that and the process continues. Is that the nature of an appeal? And do we have the right to overcome that? And that's my concern. So maybe we can discuss that. So I would be happy to hear a rebuttal to that, Mr. Lear or Mr. Nixon. Thank you. And I think that one of the other things that bothers me about the government's position, You've put your finger right on it. This is no other than the fact that the government won't issue this permit. The courts have this now. The courts have this now. And there's this whole body of law, the rules of court, as well as the substantive law on this that now will decide it. And the courts of Kentucky, they pay very close attention to it. They have rules to govern this very situation of how you, if somebody wants to stop something that otherwise is allowed to go forward, it's in the courts now. And the courts have it. And there's no question that the courts can fashion the rule that protects the other side. And there's a way to do it without penalizing the party in this case that has gotten all these approvals from the government. So it's in the courts right now. That's what I'm trying to say. Those protections are there. They respect it. So then why don't we let the appeals court make that decision rather than us? Because at this point you're basically having the government take that decision back away from there. If you decide to uphold the law department's position, you're forcing the successful applicant to file another appeal. It won't necessarily go back to the same judge. We'll have to file an appeal at which we now make the Board of Adjustment, the defendant, draw a new judge, and go through a whole process. And if the circuit court there says, we agree with you all, we agree with you all that there's not an automatic stay, guess what? That might get appealed. If you grant our interpretation of this, there is a very straightforward way in which this can be addressed. The other party can go and post a supersedious bond. A judge can hear what's the appropriate amount. And the other applicant that filed the appeal is protected. The case won't go forward. I mean, the demolition permit that has been issued will not go forward. We'll wait and see the outcome of the appeal. But the applicant, property owner, will at least have some protection for the damages potentially caused by delay. If you go the other way and force us to file a second appeal, then this thing gets wrapped around the flagpole, and you've got potentially two different tracks on the same case. It really gets convoluted then. I think it may be more, and I don't want to disagree with you, Mr. Lear, but I think it may be even more simpler than that. As I see it, and go back to that first slide again, because I do like looking at this language, because there's so much that's not there. There's so much in that ordinance that isn't there, that could be there. And the question to me is whether or not we allow a building inspector to make the decision or whether we let the courts to make the decision. I mean, that's what it seems like to me. It seems pretty clear to me that the courts that have it already should make that decision and we shouldn't stand in their way. And it seems like the Department of Law is asking us to stand in the way of the process that's already in the courts. So I'm in favor of granting the appeal. In follow-up, Mr. Glover, if the Urban County Council wanted an automatic stay of an action, they could have adopted this ordinance, they could have written it. And if they disagree with our interpretation, they can rewrite it. They can file a text amendment and have it redone, that process done. So I agree with Mr. Glover on this one. Yeah, I'd have to say the same. I agree without the legal terms. But I think it goes more to I agree with what you're saying, what's the remedy? But I feel like what we're doing here is saying that the owner, the applicant, is having to go get a motion to allow them to proceed when they've already received permission to proceed. When I feel like the other party should have to go to court and get a stay. Like they should be forced to go to court and request a stay to prevent them from doing what they wanted to do. So if the stay was to happen, like why should they have to do it on the opposite side? It should be the other party that's in contention or, you know, in disagreement with this that should have to go to court and force, you know, ask the court for a stay instead of them having to go and ask them to not stay or to allow them to proceed when they already have permission to do so. So what happens if we take that, if we make that decision, just for my own information, what happens to the appeal then? The appeal goes forward. The appeal is, there's nothing we can do that will affect the processes that are already in the circuit court. All right, let me follow that up. The court appeals. And then what happens to the project in the meantime? So I think what you are missing is the ability of a court to basically grant an injunction. So you are not basically automatically saying that the demolition of the structure will happen. And what we are asking is to basically allow us to get to circuit court for an injunction to be issued to prevent the demolition of the building while the appeal is pending. With the way that the Department of Law is interpreting this, we can't get there. There is an automatic injunction in place that we can't touch this building throughout the entire thing, whereas it needs to be the circuit court that makes that decision through the injunction proceeding. That is a very detailed and well-versed kind of area of law and where injunctions should be issued and under what terms. And so that's all we're basically asking for. And just to follow up on that, if the demolition permit issues, there's nothing to prevent you from going ahead and demolishing the building, which basically makes the appeal moot. That was my question. Well, it is why we have, every conversation we have had with them, we have reiterated that that is not going to happen. That we will wait for the Fayette Circuit Court to act in an injunction-like hearing to make sure that this would not occur. I think we even offered to say, you know, issue a letter to all parties that are, you know, that are pertinent to this, that you've got 30 days to file something and pay it circuit court before this demolition permit is issued. Like, we're willing to do anything. We just can't get to circuit court with this current interpretation, and we're just trying to get there. Would you agree to that, Mr. Nicholson, today if we granted your appeal to have your demolition permit stayed for 30 days? If you grant basically the interpretation that we are saying that the building inspection should not issue that for the next 30 days, absolutely. Okay. It's just we've got to get off this automatic stake type concept. Is that even within our legal authority to add that to our interpretation of 13.8B? We grant conditional uses and applications all the time with conditions. Law department is shaking their head yes. I would agree that they're willing to agree that the condition that you can do that. All right. Well, in that case, what I would like to do is let us use the restroom, take a five-minute, let you guys hash out a fourth condition or however you want to do it, and then we'll reconvene. And at least then the board has the option to look at the language before we bring this to a vote. But at this point, I'm going to close the public hearing, and we'll have our discussions, and we'll hopefully bring this to a vote very quickly. Thank you. We're adjourned. And we are back. I believe that the applicant in the law department has come to a resolution on the condition that was agreed to right before our recess. And so we're just waiting for that to be either read or shown on the screen. Mr. Glover, do you want to have me hand that to staff to put on the overhead, or do you want to read it? Let me read it, and then I'll give it to staff to put on the overhead. And you're ready for a motion? Okay. Mr. Chairman, I move we approve PLNBOA 19-37 Central Dealers LLC request for an administrative review of the building inspector's decision to delay the permitted demolition of a building at a property within the defined infill and redevelopment area in a stark district overlay and a downtown business center zones at 120 West High Street. Based on the following, number one, the issuance of a demolition permit is a ministerial task governed by Section 5-20 of the Code of Ordinances. Number two, the approval of a certificate of appropriateness for a demolition permit by the Board of Architectural Review and or the Planning Commission requires the Division of Building Inspection to issue a demolition permit upon receiving a proper application. Number three, Section 13-8B of the zoning ordinance does not create an automatic stay on the issuance of a demolition permit if an appeal is filed to the or in the Fayette Circuit Court. with the condition that building inspection shall issue the demolition permit period. However, the applicant shall take no action related to the demolition of the property until July 10th or in accordance with an order from the Fayette Circuit Court. Thank you, Mr. Glover. So I'm going to have this passed down. You can have staff put that overhead. for the viewing audience at home if you go ahead and bring it down so we can see the whole all the language since um there we go okay so that is the motion uh before us do we have a second second we have a first and a second is there any discussion on that motion um at this time hearing none i'll call to a vote motion's approved good luck with your project thank you legal department for all your help today so at this time is there any items that any of the board would like to bring to our attention any staff items to be heard at this time our next meeting date will be July 8th 2019 1 30 in these chambers if there's no further business I will adjourn the meeting thank you very much you