Opposition Brief — Erpenbeck Commercial Enterprises, Inc. v. Boone Fiscal Court

Supreme Court brief1995

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No. 94-1494

ERPENBECK COMMERCIAL ENTERPRISES, INC.,

Petitioner,

BOONE COUNTY FISCAL COURT, et ail.,

No. 94-1516

ENTERPRISE VI, et ail.,

BOONE COUNTY FISCAL COURT, et al.,

Re sponde nts.

ON PETITION FOR A WRIT OF CERTIORARI TO

PHE SUPREME COURT OF KENTUCKY

RESPONDENTS’ BRIE? IN OPPOSITION

DALE |. WiLSON

LARRY J. CRIGLER

ROUSE, SKEES, WILSON & DILLON

6024 Rogers Lane

P.O. Box 169 7699 Ewing Boulevard

Burlington, Kentucky 41005 P.O. Box 756

(606) 586-9950 Florence, Kentucky 41042

£6) 271.7 7

Counsel for Respondent, (606) 71-740

Boone County

Fiscal Court.

Counsel for Respondent,

Boone County

Planning Commutsstion.

Washington OC © THIEL PRESS ¢ (202) 328.3286

(t)

QUESTIONS PRESENTED

I. Do Petitioners have a protected property interest in

the only zoning application denied to support a Fifth

Amendment taking and a Fourteenth Amendment due

process claim pursuant to 42 U.S.C. 81983.

Il. If so, do Respondents’ actions constitute a Fifth

Amendment taking and Fourteenth Amendment due

process violation of that property interest.

(tt)

TABLE OF CONTENTS Tage.

Caras eee Ses 6. 4.k 6s Oe ee hee Rs hake i

TAs Ge CG nk we oc HR ae eh ee oa ae il

THe CS Fee ee a a hoe oe aie ob oh ks eS ll

STATUTORY PROVISIONS INVOLVED................ 1

COUNT EROLAR EmebmItn Glo Bim Gilt wc cee te cccee an 2

REASONS FOR DENYING PETITION................. 10

ARGUMENT:

I. Petitioners Lack A Protected Property Interest In

The Only Zoning Application Denied To Support

A Fifth Amendment Taking And A Fourteenth |

Amendment Due Process Claim Under 42 U.S.C.

BSGGD... 6.0.5 000 684 ee ee er ea as 11

II. Respondents’ Actions Do Not Constitute A Fifth

Amendment Taking Or Fourteenth Amendment

ue Feerens VOM oa c ki 64h aE HERG OKA i4

COMEAFIS 5 ect ewus (200 WON ew EOS OOO sO ee 8s 20

APPENDICES:

Appendix A — Letter Dated November 6, 1989. ......... la

Appendix B — Real Estate Purchase Agreement With

PPP ee re ee ee Pp rer reer eee 3a

Appendix C — Deed To Waco Oil Company, Inc. ....... 27a

Appendix D — Boone County Planning Commission

Minutes Dated January 18,1995 ................ 3la

Appendix E — Boone County Planning Commission

Repost Dated Janmaly FD, FFG. ccc ccc ssi vesacess 38a

Appendix F — Boone County Planning Commission

Committee Report Of October 3,1990............ 53a

Appendix G — Affidavit Of Mike Phillips............. 6la

Appendix H — Boone Circuit Court Order Overruling

Motion To Alter, Amend and Vacate.............. 67a

(iii)

TABLE OF AUTHORITIES Page

Cases:

Agins v. City of Tiburon, 447 U.S. 255 <a 12, 14,18

Anderson v. City of Issaquah, 851 P.2d 744 (Wash. App.

ig EE oe eh ES 17

Bellemeade Co. v. Priddle, Ky., 503 S.W.2d 734

EE Oa ee 15

Board of Regents v. Roth, 408 U.S. 564 2), ae ba, 27

City of Buford v. Ward, 443 S.E.2d 279 Oe 16

Collard v. Kentucky Bd. of Nursing, 896 F.2d 179

ERR 5 ei ny ee ee 19

Comnty. Conc. Citizens v. Union Twp., 613 N.E.2d

ce en ee 13

Connally v. General Const. Co., 269 U.S. 385 | err 18

Danville-Boyle County v. Prall, Ky., 840 S.W.2d 205

CE Sew Cokie ee) 15

Dodd v, Hood River County, 855 P.2d 608 (Or.

SE Ee eh ee PPh ees 6 ok kc cn 13

Dolan v. City of Tigard, ____ U.S. ___ »114S8.Ct.

ata, i es ee eee 16

Euclid v. Ambler Realty Co., 272 U.S. 365 {| 11,14

First English Evan. Luth. Ch. v. Los Angeles Cty., 482

I go ia 12, 13,18

Florida Rock Industries, Inc. v. United States, 18

FS 1560 (Fed. Cir. 1994)....................... 18

Grayned v. City of Rockford, 408 U.S. 104 cy : aan 17

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th

Cir. 1994), cert. denied, 115 S.Ct. 193 i) 0: oer 13, 14, 18

Kelly v. TRPA, 855 P.2d 1027 (Nev. 1993), cert.

denied, 114 S.Ct. 684 er 13

Keystone Bituminous Coal Ass’n v. DeBenedictus, 480

IE Ss Vk ow ses hws eG dos d wos be eee ny 12

Lucas v. South Carolina Coastal Council, ___ U.S.

——, 112S.Ct. 2886 (1992) .................... 13, 18

(tv)

Cases, continued: Page

National Advertising Co. v. City of Raleigh, 947 F.2d

1158 (4th Cir. 1991), cert. denied, 112 S.Ct.

Pate Res 3 kes ha es Oe bere wo eee ee ee ee 20

Nectow v. City of Cambridge, 277 U.S. 183 (1928)......... 1]

New Motor Vehicle Board of Ca. v. Orrin W. Fox

ay See See UE 6 Ochna wah 6 kN OR Shas wea ok 16

Penn Central Transp. Co. v. New York City, 438 U.S.

kt, Pree ey seen ee ee re Toe ee ee Peer 12

Pennell v. City of San Jose, 485 U.S. 1 (1988) ............12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ....... 11

Pruneyard Shopping Center v. Robins, 447 U.S. 74

| EN Se eee Pd ee ee eee ee 14

RRI Realty Corp. v. Inc. Village of Southampton, 870

Fe Ee CE Gs SE 446 0k oe ee was eR ee 14, 15

Silver v. Franklin Tp. Board of Zoning Appeals, 966 |

ae BE Cee as FOES 6 6 oe 4d eee een eee eee 13 |

Spence v. Zimmerman, 873 F.2d 256 (11th Cir.

Sew teed esx ak bwe aaa ee ees we Bees 14 |

Standard Mining and Development Corp. v. City of |

Auburn, Wash., 510 P.2d 647 (1973) .............08. 17 |

Tabb Lakes Ltd. v. United States, 10 F.3d 796 (Fed. |

OS Perr ey Pee ey eT Te Te CCRT CECT Ce 18 |

United States v. Riverside Bayview Homes, Inc., 474

OF ee Eee ee a ee ee ee 12, 18, 19

Ward v. Harding, Ky., 860 S.W.2d 280 (1993)............. 13

Wheeler v. City of Wayzata, 511 N.W.2d 39 (Minn.

OEE Sa bee RAR ares de ee we nee a ae ae 13

Williamson Co. Regional Planning v. Hamilton Bank,

or ge | ee ee ere ee ee 19

Witton vw. Garcia, 4713 U.S. 263 (3965)... ww ee ccc ee eeces 19

Page

Statutes: rae

ey Se Ss bg bk he ee ee ate ee 10,11, 19

Kentucky Revised Statutes, Chapter 100................ 15

i DS 0 605d oo w ok hs ERE EL 15

ns SNEED 04:46 bow 408 DR a ck Ee 15

ng gh citscs sossiieg a} ving PEE ETO OE ON CE 15

ace athe cay ck RECO ER rE Aue 17

ap TREE oy 204 6a pde kaw ehe eel 19

Ordinance:

Boone County Zoning Regulation, Article 15,

vious ease nce a OE EE IRI Re 7,8

ttaecinn besiege OEE PE OTP OP ee DE 7

Section 1506 7

Section 1514

ei i i ee ee ee ee ee ee ek pee

Nos. 94-1494 and 94-1516

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 199+

No. 94-1494

ERPENBECK COMMERCIAL ENTERPRISES, INC.,

Petitioner.

BOONE COUNTY FISCAL COURT, et ai.

Respondents.

No. 94-1516

ENTERPRISE VI, et al.,

Petitioners,

BOONE COUNTY FISCAL COURT, et al.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF KENTUCKY

RESPONDENTS’ BRIEF IN OPPOSITION

STATUTORY PROVISIONS INVOLVED

42 U.S.C. $1983 provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges

or immunities secured by the Constitution and laws,

shall be liable to the party injured and in an action

at law, suit in equity, or other proper proceeding

for redress.

Article 15 of the Boone County Zoning Regulations

appearing in Petitioner, Erpenbeck Commercial Enter-

prises, Inc., Appendix, 53.

COUNTERSTATEMENT OF THE CASE

Petitioners, Erpenbeck Commercial Enterprises, Inc.,

(Erpenbeck) and Enterprise VI (Vesper), omit and mis-

represent key facts supporting the Boone Circuit Court

and Court of Appeals of Kentucky decisions. These

undisputed facts which demonstrate federal questions

and law were decided consistent with decisions of this

Court. Nor is an unsettled question of federal law

presented.

Petitioners had no constitutional protected nght to

the only zoning approval denied and the C-2/PD zoning

classification does not violate the Constitution. Peti-

tioners assert the same arguments as their prior Petition

for a Writ of Certiorari (Case No. 94-939) denied on

January 17, 1995. Respondents here are the government

entities on which Respondents in Case No. 94-939

served as members.

On July 21, 1989, Erpenbeck contracted to purchase

all or none of Vespers’ 264 acres. That contract con-

tained a protective contingency, but Erpenbeck waived

that protection on November 6, 1989. (App. Jnfra, 1a).

Prior to a public hearing on Petitioners’ Article 15 appli-

cation, Erpenbeck removed its protected contingency.

Failing to close on the 264 acres by February 1, 1990,

Erpenbeck forfeited its $150,000.00 earnest money

to Vesper. (Petitioner Erpenbeck App., 17, fn. 3).

Crucial to purchase of the 264 acres was Erpenbeck

selling 43.45 acres of it to Hyper Shoppes, Inc., (Hyper),

parent company of Biggs Hypermarket. Without that

sale, Erpenbeck would not close on the 264 acres. Erpen-

beck had no agreement with Hyper until August 17,

1989. Tha agreement was only an option, giving Hyper

the right to terminate for any reason prior to February

28, 1990, or 30 days after Boone Fiscal Court approved

a development plan under Article 15, whichever was

later. Even if Boone Fiscal Court approved the Erpen-

beck development plan, Hyper had the right. to terminate

for any reason. (Petitioner Erpenbeck App., 16, and

App., Infra, 22a).

Prior to 1986 all 264 acres was zoned industrial. As

part of a 1986 comprehensive plan and zoning regulation

update, a portion was zoned C-2/PD. The 264 acres is

on the north side of Kentucky State Route 18, two miles

west of interstate highway I-75 and I-71. The 1986

C-2/PD zoning provided a transition area between large

residential developments south of Kentucky State Route

18 and industrial uses to the north. It allowed over 200

different commercial and office uses at a clustered,

non-regional intensity. This segment of the Kentucky

18 corridor contained several large, undeveloped tracts

making it sensitive to large scale, regional retail develop-

ments. These developments attract high volumes of

regional traffic. The C-2/PD zone allowed more varied

uses than C-1 or C-2 zones for existing and growing resi-

dential population in western Boone County. Section

1514 (Petitioner Erpenbeck App., 63) permitted uses

not listed in the underlying zone. It made commercial

and office uses available to residents without going to

congested areas near the interstates I-75 and I-71. The

PD overlay regulated intensity of the underlying uses.

It provided protection from the larger scale regional

retail uses extending down the Kentucky 18 corridor

from I-75 and I-71. The C-2/PD zone coordinated devel-

opment with infrastructure in an area identified as need-

ing protection in the comprehensive plan. The Court

of Appeals of Kentucky correctly found that the C-2/PD

zoning expanded uses for the site. (Petitioner Erpen-

beck App., 20).

This C-2/PD zoning implemented the 1986 compre-

hensive plan and its land use plan element. That pian

recommended this segment of the Kentucky 18 cor-

ridor be commercially developed, but not for regionally

oriented massive retail. Regional retail development

generates high volumes of traffic and the comprehensive

plan identified areas closer to the I-75 and I-71 interstate

highway system as appropriate for those uses. Without

a PD overlay as part of the zoning classification, C-2

zoning would have allowed massive regional oriented

retail development, contrary to the comprehensive

plan. Over half the 264 acres remained zoned indus-

trial (I-1) without the extra layer of PD review. Over

40 industrial uses were available as a matter of right.

Access to the I-l1 property could occur through the

C-2/PD zone without overlay review. The PD review

was triggered only when C-2 uses were sought in the

C-2/PD zone. (Petitioner Erpenbeck App., 28-29).

Petitioners applied for C-2/PD approval on November

1, 1989. The development plan comprised 43.45 acres,

34.8 acres were zoned C-2/PD and 9 acres industrial

(I-1). It showed 417,600 square feet of regional retail

space and 2,113 parking spaces, all needed for the

regional retail use. All the retail center’s commercial

shipping and receiving areas and some of the required

2,113 parking spaces, were located in the industrial

zone. (Petitioner Erpenbeck App., 28). The proposed

development required excavation of 10,800,000 cubic

feet of ground and the parking spaces measured 422,600

square feet, not including driving aisles. Over 90% of

the 43.45 acres was under roof or paved. This proposal

was regional retail development on a grand scale. It did

not comply with existing zoning, conflicted with the

comprehensive plan, and could not have been approved

as submitted.

Petitioners contend they were wrongly subjected to

PD overlay review and only applied to mitigate damages

and exhaust remedies. This groundless contention is

refuted by Erpenbeck’s contract with Hyper dated

August 16, 1989. Section 5(a) recites approval of a Con-

cept Development Plan is required pursuant to applicable

zoning regulations. Section 5(c) is more explicit, pro-

viding:

‘Final approval of the Concept Development Plan

will not be deemed to have occurred until the

Concept Development Plan with conditions accept-

able to Buyer (Hyper) is adopted by the Boone

County Planning Commission and a corresponding

ordinance is adopted by the Boone County Fiscal

Court and the time for appeal pursuant to K.R.S.

Section 100.347 has expired without an appeal

being filed.” (App., /nfra, 10a-1 1a).

This contract predates Petitioners’ application by over

two months. Petitioners knew when contracting with

Hyper that ministerial review for principally permitted

uses of an unrestricted C-2 zone did not apply. They

knew Boone Fiscal Court final action by passing an

ordinance was required for C-2/PD approval.

Petitioners knew their development plan extended

beyond the 34.8 acres zoned commercial. To meet the

February 1, 1990, closing deadline under the Vesper

contract, Erpenbeck sought to move the C-2/PD zoning

line through a zoning administrator interpretation to

include the 9 acres zoned industrial. The zoning adminis-

trator refused to move the zoning line and Erpenbeck

appealed the the Board of Zoning Adjustment. They

were proceeding before that Board as well as the Planning

Commission at the same time. (Petitioner Erpenbeck

App., 17, fn.2). Petitioners were not taken by surprise

by new or unknown regulations. They were well aware

of the C-2/PD zoning classification, its requirements, and

location on the 264 acres. Erpenbeck has owned, devel-

oped and served as consultants for property zoned with

a PD overlay. Adjacent to the subject 43.45 acres is a

5.5 acre parcel Erpenbeck proposed to use as access to

the regional retail center. It had C-2/PD and C-3/PD

zoning with an approved development plan for car dealer-

ships. On January 29, 1993, Erpenbeck sold this 5.5

acres to Waco Oil Company, Inc., for $530,000.00. That

development plan was amended through PD review for a

McDonald’s restaurant. (App., Jnfra, 27a).

Petitioners own other large parcels of land and sought

map amendments to zones witha PD overlay. On Janu-

ary 18, 1995, the same Erpenbeck family members

received a favorable recommendation for C-2/PD rezon-

ing on a 466 acre site. (App., /nfra, 31a-37a). Petitioners

own actions decimate their argument that C-2/PD zoning

on its face allows no uses and is worthless.

Petitioners urge their development plan should have

been reviewed based on unrestricted C-2 zoning. This

argument is based on zoning the property never had.

(Petitioner Erpenbeck App., 16). If the C-2/PD had been

instead unrestricted C-2, the project still extended com-

mercial retail facilities into an industrial zone. The

project could not have been approved as a matter of right

even if the 34.8 acres had been zoned C-2. The commer-

cial intrusion into the I-1 zone is a zoning deviation.

Without a PD overlay as part of the zoning classification,

this zoning deviation could not have even been consid.

ered. (Petitioner Erpenbeck App., 59-60, Sec. 1506).

Petitioners’ position the C-2/PD zone lacked standards

is unsupported. Section 1504 requires a development

plan before developing any property having a PD overlay

as part of its zone. Minimum contents include transpor-

tation patterns, existing and proposed land uses and

structures and relationship of the proposed development

to the comprehensive plan, which includes its land use

plan element. (Petitioner Erpenbeck App., 56).

Section 1506 (Petitioner Erpenbeck App., 59-60)

requires the Planning Commission to apply certain stand-

ards in reviewing a proposed development based on facts

presented at a public hearing. The Planning Commission

must apply the following criteria to a proposed develop-

ment plan:

(1) Consistency with Section 1500;

(2) Whether proposed development advances general

welfare of the community and neighborhood; and

(3) Whether the proposed land uses, innovation of

physical design, and the inter-relationship with the

land uses in the surrounding area justify deviation

from standard district regulations.

Section 1500 PD (Petitioner Erpenbeck App., 53-54)

criteria for reviewing a development plan includes:

(1) A useful pattern of open space;

(2) A development pattern preserving and utilizing

natural topography, trees and vegetation in ex-

change for development intensity elsewhere on

site;

(3) Encourages cluster development as a more effi-

cient use of land; and

(4) Development in harmony with land use density,

transportation facilities, community facilities and

objectives of the comprehensive plan.

The Planning Commission applied these standards and

recommended the development plan be denied. A nine

(9) page report listed reasons based on land use impacts,

conflict with the comprehensive plan, excessive intensity

of the development, traffic generation issues, land use

incompatibility, and the development’s extension into

the industrial zone. (App., /nfra, 38a-52a).

Petitioners did not challenge the Planning Commis-

sion’s recommendation or any of its findings, but attended

the Boone Fiscal Court meeting of February 6, 1990.

Unknown to Respondents, Hyper had already terminated

its agreement. The only C-2/PD project proposed no

longer existed. Petitioners were aware Boone Fiscal Court

could override the recommendation. Erpenbeck had con-

sulted for other PD developments in which the Planning

Commission recommendation had been overridden by

the governmental legislative body.

Petitioners improperly inject subsequent approval for a

Biggs Hypermarket elsewhere in Boone County. That

approved site received a zoning map amendment nearly a

year later containing many conditions making it compati-

ble with the comprehensive plan. It abutted I-75 and I-71

and had access to three interstate interchanges. Among

the zone change conditions, Biggs was not permitted to

open until major road improvements were completed. No

elected or appointed official of Respondents or any of

their staff steered Hyper to this or any other site. (App.

Infra, 53a-60a, 63a-66a).

Petitioners blatantly misrepresent testimony of Bruce

Ferguson, then Boone County Judge/Executive. He was

the chief elected official of the County’s legislative body.

Petitioners’ counsel acknowledged they were not seeking

expert testimony from him. (Ferguson dep., pp. 4-7, 17

and 59-61). Judge Ferguson testified the C-2/PD zone

allowed uses referenced by the underlying zone, subject

to considerations of the extra layer of review through the

PD process. Three times Judge Ferguson disagreed with

Petitioners’ comments that PD zoned property had no

use. (Ferguson dep., pp. 27, 29-30, 49 and 66). Judge

Ferguson simply testified that the many underlying C-2

uses would be subject to the PD overlay review on prop-

erty zoned C-2/PD.

Petitioners’ continued attack on Boone Circuit Judge

Bamberger’s Opinion is unjustified. Kentucky’s Court of

Appeals rejected this argument and the Supreme Court of

Kentucky denied discretionary review. (Petitioner Erpen-

beck App., 12 and 15). Petitioners first made this charge

in a Motion to Alter, Amend and Vacate. Judge Bam-

berger issued a 3 page Order overruling, stating the Opin-

ion and Order as entered “‘is this court’s independent

decision.” Petitioners were asked to tender a proposed

Opinion, made no objection, and submitted an opinion

to Judge Bamberger. (App., Jnfra, 67a-69a).

Petitioners argue they have a federal constitutional

right to unrestricted C-2 zoning. The unsoundness of this

position is clear. It depends on zoning the property never

had and Petitioners never sought through a zone change.

Boone Fiscal Court rejected this zoning during three

county wide zoning updates. Petitioners had no protected

property interest as a matter of right to a project that

violated zoning and conflicted with the comprehensive

plan.

REASONS FOR DENYING PETITION

Petitioners have shown no violation of any constitu-

tional right. Instead, Petitioners ask this Court to empley

the Constitution as a means to become a “federal super-

legislative body” to oversee local government legislative

zoning decisions. Respondents’ C-2/PD zoning decision

lawfully advanced legitimate government interests in

regulating land use. This zoning accomplished this pur-

pose without denying Petitioners’ viable use. Respon-

dents’ actions do not constitute a Fifth Amendment

taking or a Fourteenth Amendment due process viola-

tion.

Petitioners had no constitutional right or entitlement

to the only C-2/PD approval sought. Nor does the Consti-

tution mandate a rezoning to unrestricted C-2, a zone the

property never had. Petitioners lack a legitimate pro-

tected property interest in the only application denied,

which leaves their 42 U.S.C. §1983 claims unsupported.

ARGUMENT

PETITIONERS LACK A PROTECTED PROPERTY INTER-

EST IN THE ONLY ZONING APPLICATION DENIED TO

SUPPORT A FIFTH AMENDMENT TAKING AND A

FOURTEENTH AMENDMENT DUE PROCESS CLAIM

UNDER 42 U.S.C. § 1983.

Petitioners had no constitutionally protected entitle-

ment or justifiable expectation to development free of

all regulation. Board of Regents v. Roth, 408 U.S. 564

(1972). Since Euclid v. Ambler Realty Co., 272 U.S. 365

(1926), land use has been subject to reasonable govern-

ment regulation based on planning. Only where govern-

ment goes too far or leaves the owner with no viable use

is the Constitution violated. Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393 (1922) and Nectow v. City of Cam-

bridge, 277 U.S. 183 (1928).

In Nectow zoning as applied left no practical use and

Mahon found the Kohler Act solely regulated a private

dispute. These regulations failed to advance a legitimate

government interest, violating due process. In both

instances, a clear protected entitlement or expectation

was affected, which Petitioners lack.

Petitioners possessed a legitimate expectation to com-

mercially develop that portion zoned commercial, sub-

ject to a development plan satisfying the criteria of the

PD review. This process included a review for develop-

ment intensity consistent with the comprehensive plan

and existing or planned infrastructure. Petitioners had no

legitimate entitlement as a matter of right to commercial

development extending into the I-] zone which failed to

satisfy the limited discretionary C-2/PD procedure.

Rather than overreaching, the C-2/PD and I-1 zoning

promoted Petitioners’ protected interest. It provided

zoning to enable Petitioners to develop property consis-

tent with proper land use planning. Petitioners had no

constitutional entitlement as a matter of right to devel-

opment that deviated from existing zoning.

The Kentucky Court of Appeals properly relied on

Agins v. City of Tiburon, 447 U.S. 255, 261-262 (1980).

Petitioners misread Agins as based on ripeness. To the

contrary, Agins holds as a matter of law that Tiburon’s

residential planned development overlay zone on its

face did not violate the Fifth Amendment or Fourteenth

Amendment. The overlay review regulated intensity of

proposed development, just as the Respondents’ C-2/PD

zone. Facially, it denied no use and owners were free to

pursue reasonable investment backed expectations by

submitting development plans. The overlay zone in Agins

advanced the same government interests of assuring care-

ful and orderly development without excessive intensity

and providing open space that the C-2/PD regulation pro-

motes. See also Penn Central Transp. Co. v. New York

City, 438 U.S. 104 (1978). Regulations imposing a rea-

sonable discretionary review process are facially neutral,

denying no use. Existence of a permitting review system

implies approval can occur. Accordingly, mere enactment

of a discretionary regulation does not on its face violate

due process or constitute a taking. Keystone Bituminous

Coal Ass’n. v. DeBenedictus, 480 U.S. 470 (1987); Pen-

nell v. City of San Jose, 485 U.S. 1 (1988); and United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121

(1985).

The Constitution affords government the right to

govern. No protected interest or expectation is lost faci-

ally to a discretionary review and approval process. There

is no constitutional right to be free of all delay. First

English Evan. Luth. Ch. v. Los Angeles Cty., 482 US.

304, 321 (1987). Only where extraordinary regulatory

delay results, leaving no viable use without advancing legi-

timate government interest has there been government

overreaching. The C-2/PD regulation imposed no unusual

delay and Petitioners never applied for commercial devel-

opment approval confined to the commercial zone.

Petitioners wrongly rely on Lucas v. South Carolina

Coastal Council, __——_ss—i*U SS. , 412 S.Ct. 2886

(1992) to assert a protected property interest. David

Lucas’ beach lots when purchased were zoned and

approved for development with no further discretionary

review. South Carolina’s Beachfront Management Act

precluded all occupiable structures on either of these two

lots, with no exception. Thereafter, the Act was amended

to provide a special use process, but until then Mr. Lucas’

constitutional investment backed expectations were

denied. Petitioners never had unrestricted C-2 zoning and

many alternative viable uses were available through the

PD review process.

Lucas, supra, supports Respondents, holding no consti-

tutional violation occurs when the proscribed use or

activity was not part of Petitioners’ protected expecta-

tions, title or ownership. Kentucky and other states have

so applied Lucas in several cases involving discretionary

regulatory approvals. Ward v, Harding, Ky., 860 S.W. 2d

280 (1993); Wheeler v, City of Wayzata, 511 N.W. 2d 39

(Minn. 1994); Dodd v. Hood River County, 855 P.2d 608

(Or. 1993); Comnty. Conc. Citizens v. Union Twp., 613

N.E.2d 580 (Oh. 1993); and Kelly v. TRPA, 855 P.2d

1027 (Nev. 1993), cert. denied, 114 S.Ct. 684 (1994).

Two federal decisions reflecting a long line of cases apply-

ing this Court’s precedent are Silver v. Franklin Tp. Board

of Zoning Appeals, 966 F.2d 1031 (6th Cir. 1992} and

Kawaoka v. City of Arroyo Grande, 17 F.3d 1227 (9th

Cir. 1994), cert. denied, 115 S.Ct. 193 (1994). Consistent

with the state court decisions, these cases hold there is

no constitutional legitimate claim of entitlement or justi-

fiable expectation to discretionary permit approval. Both

decisions uphold regulations requiring discretionary per-

mit plan approval as constitutional. See also RR/ Realty

Corp. v. Inc. Village of Southampton, 870 F.2d 911 (2nd

Cir. 1989) and Spence v. Zimmerman, 873 F.2d 256

(llth Cir. 1989). Petitioners cite no authority recogniz-

ing a facially protected constitutional expectation as a

matter of right to a discretionary regulatory zoning

permit.

Il.

RESPONDENTS’ ACTIONS DO NOT CONSTITUTE A

FIFTH AMENDMENT TAKING OR’ FOURTEENTH

AMENDMENT DUE PROCESS VIOLATION.

Assuming a constitutional protected entitlement,

Respondents’ actions do not constitute a taking under

the Fifth Amendment or a Fourteenth Amendment due

process violation of that property interest. The C-2/PD

zoning advanced a legitimate government interest and did

not deny Petitioners all beneficial or productive use of

the property, particularly when considering the entire

264 acres as a whole, as Petitioners did. Moreover, this

regulation and denial of the only development plan sub-

mitted are not actions of undue interference of an arbi-

trary, Capricious, or irrational character. It has a legiti-

mate and appropriate relation to the government objec-

tive to be obtained through that regulation. Agins v. City

of Tiburon, 447 U.S. 255 (1980); Euclhd v. Ambler

Realty Co., 272 U.S. 365 (1926) and Pruneyard Shop-

ping Center v. Robins, 447 U.S. 74 (1980).

Kentucky law enables local government to enact zon-

ing regulations based on a prior prepared comprehensive

plan. Chapter 100 of the Kentucky Revised Statutes is

the enabling legislation for regulating land use. Author.

ized purposes of regulation are set forth in K.R.S.

100.201 and 100.203(1). These purposes include facili-

tating orderly and harmonious development, and regu-

lating density of population and intensity of land use.

Other purposes include protection of transportation

facilities, particularly activities at or near transportation

arteries. To accomplish these statutory purposes, local

governments may enact special zoning districts pursuant

to K.R.S. 100.203(1)(e). These are the very purposes

underlying the need for the C-2/PD zoning within the

Kentucky 18 corridor. Such zoning made available many

uses not otherwise appropriate by regulating intensity

through the PD review process. It advanced legitimate

government interest of coordinating development with

infrastructure and provided many alternative realistic

uses,

Kentucky courts have interpreted the enabling legisla-

tion, recognizing that PD overlay zones are allowed.

Bellemeade Co. v. Priddle, Ky., 503 S.W.2d 734 (1974)

and Danuville-Boyle County v. Prall, Ky., 840 S.W.2d 205

(1992) uphold identical standards and criteria as the chal-

lenged Article 15. When keyed to a comprehensive plan,

discretionary overlay zones are valid exercises of the

police zoning power and do not lack sufficient standards.

To meet these standards, Petitioners could have scaled

the project down to a less intensity, clustered the devel-

opment to provide open space and afforded compati-

bility with adjacent residential development to the south

and west. Lessened intensity would lower traffic genera-

tion and be consistent with the comprehensive plan.

Regulatory taking and due process analysis focuses on

the purpose of the challenged regulation, whether it

advances a legitimate government interest, the economic

impact, and what remains. The challenged C-2/PD regu-

lation advanced government interests through implemen-

tation of the comprehensive plan while expanding avail-

able uses for the Kentucky 18 corridor. While Respon-

dents denied Petitioners only application, that denial did

not preclude all viable use, nor was it so intended. The

January 3, 1990, Committee Report adopted by the

Boone Fiscal Court concludes (App., /nfra, 52a):

“This site has many development possibilities, how-

ever, we do not believe that this is an appropriate

use based on the information stated and for the rea-

sons listed above. Further, we are of the opinion

that this use could occur in Boone County if prop-

erly located.”

Petitioners misapply Dolan v. City of Tigard,

U.S. ____, 114 S.Ct. 2309 (1994). There, local govern-

ment exacted private property for a public purpose with-

out showing any connection between the regulated devel-

opment and the need for the exaction. Respondents

imposed no condition amounting to an exaction. Peti-

tioners proposed a development violating zoning and fail-

ing to conform to the comprehensive plan and other PD

criteria. In Dolan the proposed use and its intensity was

allowed as a matter of right.

Petitioners cite City of Buford v. Ward, 443 S.E.2d

279 (Ga. 1994) and New Motor Vehicle Board of Ca. v.

Orrin W. Fox Co., 439 U.S. 96 (1978). These decisions

do not support Petitioners. In City of Buford due process

and equal protection claims were dismissed as a matter of

law for the very reason Petitioners fail here. Govern-

mental denial of a permit did not violate a constitution-

ally protected right or entitlement. The same principle

applied in Orrin W. Fox Co. as no protected liberty or

property interest was found to satisfy Board of Regents

v. Roth, 408 U.S. 564 (1972). Grayned v. City of Rock-

ford, 408 U.S. 104 (1972) upholds a noise ordinance as

having sufficient standards. While its contents were flex-

ible, what it prohibited as a whole was found constitu-

tionally clear. For similar reasons, Anderson v. City of

Issaquah, 851 P.2d 744 (1993), does not support Peti-

tioners. This decision found invalid an architectural

review regulation based on unwritten and undescribed

“feeling” or “image” for development on a particular

street. Decision makers were left with only their indivi-

dual subjective feelings about what the image should be.

The regulation was not keyed or referenced to any par-

ticular description in a comprehensive plan or similar land

use study. Such is not the case with Article 15,

Article 15 standards and criteria reference specifically

the comprehensive plan and other appropriate land use

factors for this segment of the Kentucky 18 corridor.

These standards and criteria provide that degree of ascer-

tainability required in Standard Mining and Development

Corp. v. Auburn, 510 P.2d 647 (1973), which is cited and

distinguished in Anderson. In Standard Mining zoning

regulations governing special discretionary use permits

for gravel pit operations were challenged for lack of

standards. Since a discretionary permit was required with

a public hearing review process, standards keyed to the

comprehensive plan were upheld. These flexible standards

as part of a public hearing review with a right of appeal

satisfied due process. The C-2/PD review required a

public hearing and findings made from facts presented.

Petitioners were afforded and availed themselves of the

statutory appeal process under K.R.S. 100.347 as part of

their Complaints and Amended Complaints in state court.

(Petitioner Enterprise VI App., 33a and Petitioner Erpen-

beck App., 37).

Petiticners also cite Connally v. General Const. Co.,

269 US. 385 (1926), challenging the Oklahoma mini-

mum per diem wage statute. The state stature was found

to be invalid for lack of certainty as to the rate of regu-

lated wages and the locality to determine that rate.

Unlike Oklahoma’s statute, Article 15 contains sufficient

standards and criteria for available uses. It also provides

a procedure through a public hearing process to resolve

any ambiguity. In Kawaoka v. City of Aroyo Grande, 17

F.3d 1227 (9th Cir. 1994), cert. denied, 115 S.Ct 193

(1994), standards nearly identical to Article 15 were

upheld as a matter of law for a land use regulation requir-

ing a specific development plan. Requiring a specific

development plan was constitutional as a rational plan-

ning device to coordinate development with infrastruc-

ture where large undeveloped tracts were proposed for

development.

Petitioners’ position has no similarity to Florida Rock

Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir.

1994). There, denial of the fill permit under wetlands

legislation denied all use. Instead, Tabb Lakes, LTD. v.

U.S., 10 F.3d 796 (Fed. Cir. 1993) applies and requires

denial of further review. Citing Lucas, Agins, and First

English, supra, the Court of Appeals found a discretion-

ary wetlands fill permit denial was not a constitutional

violation. In support the Court of Appeals quoted United

States v. Riverside Bayview Homes, Inc., 474 U.S. 121,

126-127 (1985):

“The mere assertion of regulatory jurisdiction by a

governmental body does not constitute a regulatory

taking. . . . A requirement that a person obtain a

permit before engaging in a certain use of his or her

property does not itself “‘take” the property in any

sense; After all, the very existence of a permit

system implies that permission may be granted,

leaving the landowner free to use the property as

desired. Moreover, even if the permit is denied, there

may be other viable uses available to the owner,

Only when a permit is denied and the effect of the

denial is to prevent “economic viable” use of the

land in question can it be said that a taking has

occurred. ”’ (Emphasis added).

Kentucky’s state courts correctly ruled as a matter of

law that Petitioners were not entitled to relief. Then as

now they could not sustain their burden of showing an

entitlement to the only zoning approval denied. The

C-2/PD regulation advanced legitimate government inter-

est in land use planning and imposed no undue adverse

economic impact on any protected investment backed

expectation for the development as proposed. Nor can

they show that Hyper would have purchased even if

Boone Fiscal Court had approved the application. The

record below is undisputed that Petitioners’ development

plan was not fully acceptable to Hyper. To make it more

acceptable, the retail building had to be placed in the rear

9 acres zoned industrial. (App., Infra, 61a-66a; Peti-

tioner Erpenbeck App. 29).

Other flaws fatal to Petitioners’ 42 U.S.C. §1983

claims are. ripeness and being time barred. Petitioners

have not satisfied the “finality” prong of Williamson Co.

Regional Planning v. Hamilton Bank, 473 U.S. 172

(1985). Without “finality” government decision making

has not become a constitutional violation. Petitioners’

facial claims assert the C-2/PD by its mere enactment

violates their constitutional rights. The applicable statute

of limitations for Petitioners’ 42 U.S.C. §1983 claims is

Kentucky’s 1 year provision in K.R.S. 413.140(1)(a).

Wilson v. Garcia, 471 U.S. 261 (1985) and Collard v,

Kentucky Bd. of Nursing, 896 F.2d 179 (6th Cir. 1990).

In constitutional facial attacks, the statute of limitations

commences immediately upon enactment. National

Advertising Co. v. City of Raliegh, 947 F.2d 1158 (4th

Cir. 1991) cert. dented, 112 S.Ct. 1997 (1992). Respon-

dents enacted the C-2/PD zoning on Petitioners’ prop-

erty in 1986 and Petitioners participated in that county-

wide zoning update. Petitioners commenced no action

within the allowed time.

As part of the 1991-92 county-wide zoning update,

that portion of Petitioners’ property zoned C-2/PD was

rezoned with no objection from Petitioners to C-4. This

zoning classification allows over 30 commercial uses with-

out PD review, with no user exceeding 100,000 square

feet. Under either the C-2/PD or the current C-4 zoning,

Petitioners’ development plan could not be approved.

CONCLUSION

Respondents urge the Petitions for Certiorari be

denied. Petitioners lacked a constitutionally protected

property right to a development plan approval that vio-

lated existing zoning and conflicted with the compre-

hensive plan. They had no investment backed expecta-

tions for such a development. Petitioners present no spe-

cial or important reasons giving rise to further review.

Instead, Petitioners ask this Court to exercise a legisla-

tive function of local government. Simply stated, Peti-

tioners’ action depends on a zoning classification the

property never had and presumes, without support, that

none of the hundreds of available uses would be

approved. The Court of Appeals of Kentucky properly

applied precedent of this Court and Petitioners present

no unsettled question of federal law.

Respectfully submitted,

DALE T. WILSON

ROUSE, SKEES, WILSON & DILLON

7699 Ewing Boulevard

P.O. Box 756

Florence, Kentucky 41042-0756

(606) 371-7407

Counsel for Respondent,

Boone County

Planning Commission.

LARRY J. CRIGLER

6024 Rogers Lane

P.O. Box 169

Burlington, Kentucky 41005

(606) 586-9950

Counsel for Respondent,

Boone County

Fiscal Court.

APPENDIX A

BUSALD FUNK ZEVELY, P.S.C.

ATTORNEYS AND COUNSELORS AT LAW

226 MAIN STREET

FLORENCE, KENTUCKY 41042—6910

606/371-3600 - 606/371-2300

TELECOPIER 606/525-1040

November 6, 1989

Mr. Paul J. Vesper

Attorney at Law

8100 Burlington Pike

Suite 400

P.O Box 576

Florence, KY 41042

Mr. Dennis J. Vesper

Enterprise VI

709 St. Joseph Lane

Covington, KY 41011

RE: Burlington Pike Property

Dear Mr. Vesper:

Per paragraph (17) of the CONTRACT FOR PUR-

CHASE AND SALE between Enterprise VI and Erpen-

beck Commercial Enterprises, Inc., dated July 21, 1989,

this is to confirm that my client’s wish to waive the con-

tingencies set out in paragraph 11(A) of same.

Should you have any questions, please do not hesitate

to call.

Very truly yours,

BUSALD FUNK ZEVELY, P.S.C.

/s/ Thomas R. Nienaber

Thomas R. Nienaber

TRN:mjk

Certified Mail, Return Receipt Requested

cc: Erpenbeck Commercial Enterprises, Inc.

4205 Dixie Highway

Erlanger, KY 41018

APPENDIX B

REAL ESTATE PURCHASE AGREEMENT

THIS REAL ESTATE PURCHASE AGREEMENT

(hereinafter referred to as Agreement”) is made and

entered into by and between ERPENBECK COMMER.

CIAL ENTERPRISES, INC., a Kentucky corporation

(hereinafter referred to as Seller”), HYPER SHOPPES,

INC., a Delaware corporation (hereinafter referred to

as “Buyer’’), and THOMAS R. NIENABER, as Escrow

Agent (hereinafter referred to as “Escrow Agent”).

WITNESSET H:

WHEREAS, Seller does hereby agree to convey to

Buyer, who agrees to purchase from Seller, a 41(+) acre

tract of real estate lying and being located on Kentucky

Highway 18, Florence, Boone County, Kentucky said

property being more particularly described and identified

below; and

WHEREAS, it is understood and acknowledged by

Buyer and Seller that Seller herein has contracted with

various third parties for the purchase of the 41(+) acre

tract of real estate, in addition to other adjoining acre-

age; and

WHEREAS, Buyer and Seller acknowledge that Sel-

ler’s contract to purchase the subject real estate with said

third parties is subject only to obtaining certain zoning

approvals; and

WHEREAS, Buyer and Seller desire to enter into this

Agreement for the purchase of the Property, subject to

the following terms and conditions.

NOW, THEREFORE, in consideration of the foregoing

premises and mutual promises and undertakings herein-

after specified, the parties hereby covenant and agree as

follows:

1. PROPERTY

(a) Seller agrees to convey to Buyer, who agrees to

purchase from Seller, an approximate 41(+) acre treat of

real estate, lying and being located at Kentucky Highway

18, Florence, Boone County, Kentucky, said 41(+) acre

tract of real estate, being outlined on the attached plat,

identified as Exhibit “‘A”’, a copy of which is incorpor-

ated herein by reference. Said 41(+) acre tract shall here-

inafter be referred to as the “Property”.

(b) Seller shall within 30 days from the date hereof

obtain, at Seller’s cost, a survey and legal description of

the Property, prepared by a registered Kentucky sur-

veyor, certified to Seller, Buyer and, if requested by

Buyer, Buyer’s title insurance company. Such survey

shall stake all boundary corners and indicate the location

of rights of ways and easements and indicate the acreage

located within the Property as well as the acreage encum-

bered by rights of way or easements within the Property.

located on the Property and all crops, crop bases, tobacco

poundage allotments, standing timber, residential or any

type of farming structure, or any and all other types of

standing crops of improvements shall not be included in

the Purchase Price and any and all such structures,

improvements, crops, etc. as herein before stated, shall

remain the sole and separate property of Seller provided,

however, that any and all buildings, structures, standing

crops, timber, etc. as herein before stated, shall be

removed from the Property by Seller at Seller’s cost and

expense prior to Closing. Any and all such improve-

ments, structures, crops, timber, etc. left on the Property

at time of Closing shall become the property of Buyer.

2. PURCHASE PRICE

(a) The purchase price to be paid by Buyer to Seller

for the Property (hereinafter referred to as “‘Purchase

Price’) shall be a sum equal to the product of $120.-

000.00 multiplied by the number of acres (calculated to

the nearest 1/100 of an acre and based on the survey

obtained pursuant to Paragraph | above) contained

within the Property net of acreage encumbered by ease-

ments or rights of way of record,

(b) The Purchase Price shall be paid by the Buyer to

the Seller at closing in cash or certified or cashier’s check,

less the amounts of Earnest Money paid by Buyer to Sel-

ler as provided for herein. Payment of the Purchase Price

shall also be subject to the Escrow Provisions set out in

Paragraph 6 hereof.

3. Earnest Money

(a) Buyer shall deposit the following earnest money

deposits (the “Earnest Money”): (i) at the execution

hereof, an initial Earnest Money deposit in the sum of

Fifty Thousand Dollars ($50,000.00), (ii) thereafter

Buyer shall pay additional Earnest Money of Ninety

Thousand Dollars ($90,000.00), said sum being payable

in six (6) equal installments of Fifteen Thousand Dollars

($15,000.00) each, the first of such installments to be

payable on or before September 1, 1989 with a like Fif-

teen Thousand Dollar ($15,000.00) payment on the first

day of each month thereafter, until the entire additional

Earnest Money of Ninety Thousand Dollars ($90,000.00)

is paid in full, (iii) In the event that Buyer elects to

extend the Closing beyond February 28, 1990, and the

zoning approval under Paragraph 5 has not been

obtained, then Buyer shall make the additional Earnest

Money deposits provided in Paragraph 4(b), below. The

additional deposits under this Paragraph 3(a)(iii) are to

be applied to the Purchase Price at Closing.

(b) All Earnest Money shall be deposited by Buyer to

Thomas R. Nienaber as Escrow Agent and shall be in an

interest bearing Eamest Money account at Florence

Deposit Bank, Florence, Kentucky.

vided for herein, then and in such event, the principal

amount of Earnest Money paid under Paragraph 3

(except payments made under Paragraph 3(a)(iii)), shall

be applied to the Purchase Price with all interest accrued

on such Earnest Money being paid to the Seller and not

applied to the Purchase Price. In the event that this

transaction shall not close as provided for herein, then

all Earnest Money and accrued interest shall be dis-

bursed as provided in Paragraphs 4, 5, 8, 12 and 15

hereof.

(d) Thomas R. Nienaber shall serve as Escrow Agent

for purposes of investing and retaining all escrow mon-

eys paid herein by Buyer to Seller. Escrow Agent shall

make all disbursements as provided for in Paragraphs 4,

5, 8, 12 and 15 hereof.

4. CLOSING AND CLOSING DATE

(a) The Closing shall be held on or before the later

of (i) February 28, 1990, or {it} 30 days after zoning

approval has been obtained under Paragraph 5, subject to

Buyer's estension rights under Paragraph 4(b), below.

(b) In the event that the Closing should not occur

before February 28, 1990, Buyer shall have the right to

extend the Closing Date, in Buyer’s sole discretion, on

a month to month basis until the later of February 28,

1991 or 30 days after Seller has obtained the zoning

approval under Paragraph 5. Should Buyer make such

election or elections to extend the Closing Date, Buyer

shall pay a sum of Twelve Thousand Five Hundred Dol-

lars ($12,500.00) for each calendar month or any por-

tion thereof that the Closing Date is extended. Such

extension payments shall be applicable to the Purchase

Price at Closing. All additional monthly payments shall

be due and payable on or before the first day of each cal-

endar month for which Buyer elects to extend. Such

$12,500 extension payments shall be made directly to

Seller and not to the Escrow Agent if the zoning approval

under Paragraph 5 has been obtained at the time such

extension payment is due. In the event that Seller should

institute any litigation and/or appeal from action taken

by either the Boone County Planning and Zoning Com-

mission and/or the Boone Fiscal Court regarding the

application for approval of Concept Development Plan

as provided for herein, then the Buyer shall have the right

to extend this agreement and the Closind Date by paying

to Escrow. Agent, as additional Earnest Money, on the

first day of each calendar month during such period of

litigation and/or appeal the sum of Twelve Thousand

Five Hundred Dollars ($12,500.00). If the within trans-

action should close after favorable resolutionof such liti-

gation and/or appeal, then all such $12,500.00 payments

and interest thereon shall be applied to the purchase

price. If such litigation and/or appeal is not resolved in

favor of Seller and this transaction is not concluded, all

$12,500.00 payments made by Buyer to Seller during

that period of litigation and/or appeal, and any interest

for

PAW

thereon shall be returned to the Buyer. Seller shall not

be under any obligation to institute an appeal or any

other litigation resulting from any action taken by the

Boone County Planning and Zoning Commission and/or

the Boone Fiscal Court and any decision made relative

thereto shall be made by Seller in Seller’s sole judgment

and discretion.

right to terminate this Agreement on or before February

28, 1990 or such later date as provided for in Paragraph

(a)

15,,and this transaction does not close on or before Feb-

ruary 28, 1991 due to default of Buyer, then and in such

event, all Earnest Money and accrued interest thereon,

and any and all other additional sums paid to extend

the Closing Date, shall become the property of Seller,

free and clear of all claims and demands, which sum shall

be considered as partial damages with Seller being

reserved any and all other causes of action at law or

equity including, but not limited to specific perform-

ance as provided for under Kentucky law.

(d) At Closing, all nondelinquent real property taxes

apportioned to the Property shall be pro-rated between

Seller and Buyer, said proration to be based upon the

most recent available tax valuation information, as pro-

vided by the Boone County Property Valuation Adminis-

trator. Seller shall be responsible for any recoupment of

real estate taxes pursuant to KRS § 132.452 applicable to

the period prior to the Closing Date as a result of any

agricultural valuation of the Property under KRS

§ 132.450.

(e) Within thirty (30) days from the Buyer’s receipt

of the survey required under Paragraph 2, Buyer shall

obtain a title commitment for the Property and Buyer

shall notify Seller in writing as to any and all exceptions

- a

to title shown by such title commitment or survey to

which Buyer objects including, but not limited to ease-

ments, assessments, restrictions, and any and all other

matters of record. Seller shall remove or cure such

objectionable titie exceptions to Buyer’s satisfaction

within 60 days after receipt of Buyer’s objections. In

the event that no objection is made by Buyer to Seller,

with respect to a matter shown by the title commitment

or survey, Buyer shall be deemed to have waived such

exception and shall take title to the Property subject

to the same.

(f) At Closing, Buyer and Seller agree to execute and

deliver any and all papers as may be legally necessary

to carry out the terms of this Agreement, including, with-

out limitation:

(i) A General Warranty Deed executed by Seller,

conveying fee simple marketable record title to

the Property to Buyer, free and clear of all ten-

ants rights , liens, easements, reservations, restric-

tions and encumbrances whatsoever, excepting

only such matters as are disclosed by the survey

and/or the title commitment described above

and which are not objected to by Buyer.

(ii) An. Owner’s Affidavit in form acceptable to

Buyer’s Title Insurer.

(i1i)Such documentation as may be reasonably

required by Buyer’s Title Insurer to evidence

Seller’s authority to convey the property to

Buyer.

5. ZONING APPROVAL

(a) Buyer and Seller acknowledge and understand that,

Seller shall be required to obtain various certificates of

10a

approval from the appropriate Planning and Zoning

regulatory bodies in Boone County, Kentucky for a

Concept Development Plan permitting the construction

of an approximately three hundred thirty-seven thousand

(337,000) square foot retail building on the Property.

The term “Concept Development Plan’’, as provided for

herein, shall be defined and interpreted pursuant to the

current Planning and Zoning Regulations of Boone

County, Kentucky. Seller agrees to act diligently and in

good faith and take all reasonable steps necessary to

obtain the approval of a Concept Development Plan by

the appriate Planning and Zoning Authorities in Boone

County, Kentucky on or before February 28, 1990.

Buyer agrees to reasonably cooperate and assist Seller in

all reasonable ways in obtaining Concept Development

Plan approval from the appropriate Planning and Zoning

authorities in Boone County, Kentucky.

(b) Buyer and Seller will cooperate in the development

of the Concept Development Plan to be submitted.

Buyer shall provide Seller with its preliminary site layout

by September 1, 1989 and Seller will submit a Concept

Development Plan for consideration of the Boone County

Planning and Zoning Commission at its October 4, 1989

meeting. Changes to the submitted Concept Develop-

ment Plan will not be made without the consent of

Buyer.

of the Concept Development Plan and Buyer elects to

terminate this Agreement pursuant to Paragraph 15, then

and in such event, all Earnest Money and the interest

thereon shall be refunded pursuant to Paragraph 15

with Buyer and Seller having no further legal obligations

to the other by virtue of the terms and conditions hereof

except as provided in Paragraph 5(f) below. Final

for

Paw

lla

approval of the Concept Development Plan will not be

deemed to have occurred until the Concept Development

Plan with conditions acceptable to Buyer is adopted by

the Boone County Planning Commission and a corre-

sponding ordinance is adopted by the Boone County

Fiscal Court and the time for appeal pursuant to KRS

Section 2%” has expired without an appeal being

filed. Seller will promptly notify Buyer of the date of

expiration of the appeals period (and, therefore, the date

deemed to be final approval hereunder) and evidence

of the approval.

(d) Buyer shall be responsible to Seller for the pay-

ment of all necessary and reasonable costs incurred by

Seller in order to obtain approval of the Concept Devel-

opment Plan, provided that Buyer’s liability for such

costs and expenses shall not exceed One Hundred Fifty

Thousand Dollars ($150,000.00). Upon execution

hereof, Buyer shall deposit with Seller the sum of Fifty

Thousand Dollars ($50,000.00) as partial payment

toward the costs and expenses incurred by Seller in

obtaining Concept Development Plan approval. On or

before the first day of each month during the term of

this Agreement, Seller shall provide Buyer an itemized

listing of all costs and expenses incurred by Seller in

obtaining .Concept Development Plan approval. At

such time as Seiler depletes the initial Fifty Thousand

Dollar ($50,000.00) cost and expense deposit, Buyer

shall forthwith deliver to Seller an additional Fifty

Thousand Dollars ($50,000.00) for the payment of all

subsequent costs and expenses incurred. At such time

as the second Fifty Thousand Dollar ($50,000.00)

deposit for costs and expenses is depleted, Buyer shall

deliver to Seller the third and final Fifty Thousand Dol-

lar ($50,000.00) deposit for costs. All cost and expense

12a

funds remaining on deposit with Seller at such time as

the Concept Development Plan is approved shall be

delivered by Seller to Buyer with a complete account-

ing of all costs and expenses incurred. Seller need not

obtain Buyer’s approval prior to expending any and all

sums for costs incurred in obtaining approval of the Con-

cept Development Plan. It is agreed by Buyer that Seller

shall be entitled to use Seller’s reasonable judgment and

discretion in determining what costs should be incurred

in obtaining Concept Development Plan approval, and

that such reasonable judgment and discretion shall be

final and not subject to contest or objection by Buyer.

Buyer shall be reserved the right to recommend to

Seller any expenditures which Buyer deems appropriate

and necessary to obtain Concept Development Plan

approval; however, such suggestions and requests shall

not be binding upon Seller. In the event that Planning

and Zoning Commission denies the Concept Develop-

ment Plan, the costs of a lawsuit or other legal action to

overturn such decision will be at Seller’s sole expense.

Seller shall not be required to pursue any litigation

and/or appeal of any action taken by the Boone County

Planning and Zoning Commission and/or Boone Fiscal

Court unless Seller deems it appropriate in Seller’s sole

judgment and discretion.

(e) All costs incurred by Seller in obtaining Concept

Development Plan approval shall not be considered or

act as a credit to any portion of any Earnest Money

or Purchase Price to be paid by Buyer to Seiler, not to

any charge for extending the Closing as provided for

herein.

(f) In the event that Seller is unable to obtain approval

of the Concept Development Plan, Buyer shall not be

entitled to reimbursement of any and all such costs

13a

or expenses incurred by Seller in obtaining approval

of the Concept Development Plan; however, Buyer shall

be entitled to all plans, designs and other work product

prepared in connection with the Concept Development

Plan.

6. SITE GRADING AND IMPROVEMENTS

(a) Seller shall, at its sole cost and expense, provide all

grading services for the Property to meet all specifications

and standards of the Buyer (as set forth in attached

Exhibit B) and all site grading plans and elevations as

mutually agreed upon by Buyer and Seller. Buyer shall

be responsible for providing at its sole cost and expense

all engineering and related services necessary in preparing

all plans, specifications and standards regarding site grad-

ing requirements necessary to meet those requirements of

Buyer. Buyer and Seller agree that within forty five (45)

days following the execution hereof, Buyer and Seller

shall mutually agree upon a Site Grading Plan setting

forth all site grading elevations. Buyer and Seller

acknowledge that the appropriate Planning and Zoning

Authorities may require various conditions relative to site

grading and that Buyer and Selter shall, as is reasonably

practical, cooperate with and accommodate any and al!

such conditions as may be required.

(b) Seller shall, at its sole cost and expense, construct

up to the Southwest Property line (that property line

fronting on Kentucky Highway 18) all water mains, san-

itary sewer lines and utility services with capacity neces-

sary to meet all existing Boone County and Common-

wealth of Kentucky building code requirements for the

proposed building and as may be required by the appro-

priate Planning and Zoning Authorities. Seller shall be

responsible for any assessments or similar charges (other

l4a

than customary tap-in fees) in connection with the

installation of such facilities In no event shall Seller be

required to extend any water mains, sanitary sewer

lines, or other utility services onto and/or across the

Property. If any such extensions are required as a condi-

tion of the Concept Development Plan approval, then and

in such event, Buyer shall agree to assume the cost of

such lines serving improvements on the Property and

Seller will be responsible for the costs of any extensions

necessitated to serve tracts other than the Property.

roadways at Seller’s sole cost and expense: (i) proposed

Centennial Circle (in accordance with the Improvement

Plan for Heritage Hill Industrial Center) and in accord-

ance with the construction standards and requirements of

the local governmental jurisdiction for the dedication

and acceptance of streets); (ii) a two-lane access road

from the East side of the property to Centennial Circle

(as shown on Exhibit A) in accordance with the construc-

tion standards and requirements of the local govern-

mental jurisdiction for the dedication and acceptance of

streets; (ili) proposed four-lane roadway from Kentucky

18 along the entire west boundary of the Property, as

shown on Exhibit A, in accordance with the Construction

Standards and requirements of the local governmental

jurisdictions for the dedication and acceptance of streets.

Seller will cause the proposed streets and roadways to be

dedicated to and accepted by the local government juris-

diction and Seller will grant easements to Buyer to use

such streets until such dedication and acceptance.

(d) Seller shall not be responsible for any improve-

ments on the Property other than as provided for above.

In the event that any turn lands, traffic signals or other

road construction or road improvements are required by

15a

Planning and Zoning authorities to obtain Concept

Development Plan approval, the costs will be borne as

provided in Paragraph 7.

(e) Upon Closing, Seller shall begin all site grading

work and other improvements required to be undertaken

by Seller under this Agreement and complete all such

work in accordance with the construction schedule

attached hereto as Exhibit C. All such work will be

undertaken in a good and workmanlike manner, will be

diligently pursued and will be free of liens or claims for

liens. At Closing, the sum of Six Hundred Thousand

Dollars ($600,900.00) shall be withheld from the Pur-

chase Price to be held in Escrow with Thomas R. Nie-

naber as Escrow Agent. Escrow Agent shall disburse such

funds from time to time as the site grading and other

construction progresses based upon draw requests signed

by Buyer and Seller. Buyer agrees to sign all draw

requests upon receipt from Seller of evidence that (i)

payments are due to contractors for such site grading

or other construction, (ii) lien waivers have been obtained

for the payments to be made and (iii) that sufficient

funds remain in such escrow to complete the Seller’s

site grading and other construction obligations hereunder,

When Seller and Buyer have certified that all such Seller’s

work has-been completed, Escrow Agent shall pay any

remaining escrow funds to Seller. All Escrow Money pro-

vided for under this paragraph shall be held at Florence

Deposit Bank in an interest bearing account and all

accrued interest on said Escrow Money shall be shared

equally by Seller and Buyer. If Seller defaults in its con-

struction obligations, Buyer shall be entitled to all undis-

bursed Escrow Money and all interest on the Escrow

Money without prejudice to any other claims which

Buyer may have against Seller arising out of such default.

l6a

7. PLANNING AND ZONING CONDITIONS

(a) Buyer acknowledges that the appropriate Planning

and Zoning authorities may require various conditions

as a condition precedent to approval of the submitted

Concept Development Plan. In the event that any such

“conditions’’ are required for approval of the Concept

Development Plan, such conditions shall be subject to

Buyer’s consent, which will not be unreasonably with-

held.

(b) If turn lanes, traffic signals or other road improve-

ments to KY 18 are required by the Planning and Zoning

Authorities to obtain Concept Development Plan

approval, then Buyer shall pay for the cost of any

improvements to that part of KY 18 along the frontage

of the Property. In addition, if the Planning and Zoning

Authorities should require any turn lanes or road improve-

ments to KY 18 on the East side of Centennial Circle

Drive, Buyer shall be required to pay the cost thereof.

The Seller will pay or cause the Commonwealth of Ken-

tucky to pay for the cost of turn lanes at the intersec-

tion of KY 18 and the proposed 4-lane road West of the

Property. The cost of any traffic signals at KY 18 and

the proposed 4-land road west of the Property will be

shared equally by Buyer and Seller. The cost of the

traffic signal at KY 18 and Centennial Circle Drive will

be paid by Buyer. The cost of extension of the proposed

4-lane road to the West of the property site, detention

and retention basins and other off-site improvements

required by the Planning and Zoning Authority shall be

at Seller’s sole cost and expense and Seller agrees to con-

struct same as part of its construction obligations under

Paragraph 6. Seller shall only be required to pay that

portion of the cost incurred relative to such improve-

ments as are actually constructed off-site ie. on that

for

PAW

l7a

portion of the real estate not actually included in the

41 acre (+) tract defined in Exhibit A. Buyer agrees that

it shall be responsible for all construction costs of any

and all other such improvements including the exten-

sion of the 4-lane road, detention and retention basins

and any and other site improvements which are situ-

ated directly on the Property.

8. CONTINGENCIES; CONTRACT RIGHTS

(a) Buyer acknowledges that at the present time,

Seller is under Contract with various third parties for

the purchase of the Property and other property com-

prising a two hundred fifty-four (254) acre (+) tract of

real estate lying and being located at Kentucky Highway

18, Florence, Boone County, Kentucky. Seller agrees

to perform under such contract and to use best efforts.

including taking legal action and seeking specific per-

formance, to enforce its rights to purchase the Prop-

erty. In the event that Seller defaults hereunder due to tl

thru no fault of the Seller PAW

its inability to conclude its purchase of the Propertya,

then all Earnest Money, all accrued interest thereon and

all extension fees paid by Buyer to Seller forasening = MP

eests shall be returned to Buyer. If such failure to Paw

conclude .the purchase is due to Seller’s default, then

Buyer shall also be entitled to a return of all zoning

costs paid to Seller and Buyer shall have such reme-

dies against Seller as provided at law or in equity.

(b) Seller represents and warrants to, and covenants

with Buyer that:

(i) Seller has an executed contract to purchase the

Property with the fee title owner of the Property;

that no default has occurred thereunder, that the

contract is contingent only upon obtaining the

18a

zoning approval contemplated by Paragraph 5,

hereof obtaining clear title to the Property and

obtaining court approval of the sale of a minor’s

interest in said real estate, and that Buyer will

make all payments, give all notices and take all

other actions necessary or appropriate to keep

such contract in effect.

(11) Seller will not (and will not enter into any agree-

ment to or permit the owner of the Property

to) convey, encumber or restrict the Property

without first obtaining the written consent of

Buyer.

(iii) To the best knowledge of Seller, the Property is

not subject to any liens (other than regular

installments of real estate taxes and mortgages in

an aggregate amount not more than one Purchase

Price, assessments, leases, unrecorded easements,

options to purchase (other than Seller’s rights and

this Agreement), rights of first refusal or any

other agreement or contract to use, lease or pur-

chase the Property.

(iv) to the best knowledge of Seller, the Property has

not been used for the manufacture, distribution,

storage or disposal of any hazardous waste, haz-

ardous substance or other pollutant (as those

terms are defined by any federal or Kentucky

law, statute or regulation) and no such hazardous

wastes, substances or pollutants are located on

the Property.

approval from the Boone County Planning and Zoning

Commission of the Concept Development Plan as more

particularly described in Paragraph 5. In the event that

for

PAW

19a

this approval is not obtained for any reason other than

the negligence or willful non-cooperation of either

party, then, subject to Paragraph 4 and 15, hereof, this

Contract shall become null and void with neither party

having any obligation to the other than all Earnest Money

shall be paid to the respective parties as provided for in

Paragraphs 4 and 15,

9. POSSESSION

(a) Seller shall delivery to Buyer full and exclusive pos-

session of the Property at Closing, subject only to Seller’s

right to enter the Property for the purpose of performing

all Site Gradin Excavation, as provided for in Paragraph 6.

Any crops, timber, structures, or other improvements on

the Property not removed prior to Closing shall be

deemed to be abandoned by Seller.

(b) Within $6 days from the date hereof, Seller will

furnish Buyer, at Seller’s sole cost and expense, with a

report of an environmental engineer certifying that the

Property is free of all hazardous wastes, substances or

other pollutants.

Property (which right Seller has under its contract to

purchase -the Property) to conduct inspections, surveys

and tests of the Property.

10. REAL ESTATE COMMISSION

Buyer and Seller acknowledge that neither has

obtained nor retained the services of any real estate

broker or real estate agent for which any real estate com-

mission would be due and owing as a result of the real

estate closing contemplated herein. Buyer and Seller

agree to indemnify and hold the other harmless for any

20a

real estate commissions so charged against the respective

parties by virtue of any agreement or contract which they

may have with any real estate broker or real estate agent.

11. NOTICES

Any notices which are permitted or required here-

under shall be in writing and shall be deemed to have

been duly given as of the date and time the same are

personally delivered, delivered by overnight delivery

service; or deposited with United States Postal Service,

postage prepaid, to be mailed by registered or certified

United States Mail, return receipt requested and

addressed to the following:

TO THE SELLER: Erpenbeck Commercial Enter-

prises, Inc.

Attn.: Mr. Ronald Erpenbeck

4205 Dixie Highway

Elsemere, Kentucky 41018

TO THE BUYER: — Hyper Shoppes, Inc.

Attn.: Mr. Pierre Wevers

4450 Eastgate Blvd.

Cincinnati, Ohio 45245

TO ESCROW Thomas R. Nienaber, Esq.

AGENT: Busald Funk Zevely, P.S.C.

226 Main Street

Florence, Kentucky 41042

or to such other address as either party hereto shall, from

time to time, designate to the other party by Notice in

writing as herein provided.

12. ESCROW AGENT

Thomas R. Nienaber joins in the execution of this

Agreement for the express purpose of (a) acknowledging

2la

receipt (subject to collection) of the Earnest Money

deposit lodged by Buyer with Escrow Agent hereunder;

and (b) agreeing to be bound by the provisions set forth

in this Agreement with respect to the disbursement of the

Earnest Money. Buyer and Seller hereby authorize the

disbursement and delivery of the Earnest Money in

accordance with the terms and provisions set forth in

this Agreement. If, however, in the sole discretion of the

Escrow Agent, some doubt exists as to when, whom or

under what circumstances such Earnest Money shall be

disbursed hereunder, and the parties hereto are unable

after ten (10) prior written notice thereof from Escrow

Agent to agree and direct Escrow Agent in writing as to

when, whom or under what circumstances Escrow Agent

shall disburse same, Escrow Agent shall be entitled to

interplead said Earnest Money into the Boone Circuit

Court without further liability or responsibility on

its part. Costs, expenses and attorney fees incurred by

Escrow Agent in connection with any such interpleader

may be deducted by Escrow Agent from the amount of

the Earnest Money prior to its deposit into the registry

of the Court. In any event, however, all parties agree

that Escrow Agent shall have no liability or any further

responsibility to any party or person whomsoever for any

disbursement of the Earnest Money made by Escrow

Agent in good faith, unless such disbursement shall con-

stitute a willful breach of the duties and obligations of

Escrow Agent under this Agreement or gross negligence

on the part of Escrow Agent. It is acknowledged by

Buyer that the services of Thomas R. Nienaber rendered

by him in his capacity as Escrow Agent shall not be con-

strued as a conflict of interest and that Thomas R. Nie-

naber is in fact counsel for Seller herein. Buyer further

acknowledges that the representation of Thomas R. Nie-

naber with respect to the Seller herein shall continue

22a

after the closing hereof and that such continued repre-

sentation shall not be construed as a conflict of interest

by virtue of those services rendered as Escrow Agent.

13. TERM OF OFFER

This Agreement has been executed first by Seller

as a continuing offer to sell the Property, subject to

and conditioned upon the terms and conditions herein

cotained, which offer shall be open for acceptance by

Buyer until 6:00 o’clock p.m., August 28th , 1989, at

which time the offer shall be deemed to be withdrawn.

14. AUTHORITY

Each of the undersigned hereby warrants and repre-

sents that he is authorized to execute this Agreement on

behalf of the entity whose name he is signing under, and

that his signature shall be binding upon such entity.

Buyer and Seller acknowledge by the execution hereof,

that all corporate action has been taken pursuant to and

by duly authorized and adopted resolution of their

respective Boards of Directors.

15. TERMINATION

(a) Buyer shall be reserved the option to terminate this

Agreement for any reason, in Buyer’s sole discretion and

judgment, prior to the later of February 28, 1990 or 30

days after Seller has obtained the zoning approval pur-

suant to Paragraph 5.

(b) In the event that the Buyer should so elect to

terminate this Agreement then:

(i) If Buyer elects to terminate this Agreement prior

to February 28, 1990, and planning and zoning approval

for

PAW

23a

for the submitted Concept Development Plan has not

been obtained at the time of termination, then and in

such event, Buyer shall be refunded all Earnest Money

and accrued interest.

(ii) If Buyer should elect to terminate this Agreement

after February 28, 1990 but prior to the time that Seller

has obtained the zoning approval pursuant to Paragraph

5, then and in such event, Escrow Agent shall pay to

Buyer all of the Earnest Money paid to date, with all

accrued interest thereon.

(ui) If Buyer exercises this option to terminate and

Seller has obtained the required zoning approval at the

time of termination, then Escrow Agent shall pay to

Seller and Seller shall be entitled to retain as its sole

and separate property, all of the Earnest Money paid

to date, with all accrued interest thereon.

Earnest Money as provided for in Paragraph 15(a) and

(b), this Contract shall become null and void with neither

party having any further obligation to the other. All

costs and expenses incurred by Seller in order to obtain

approval of the Concept Development Plan shall not be

reimbursed to Buyer by Seller; however, any all remain-

ing moneys held by Seller to be applied to costs and

expenses shall be immediately refunded to Buyer.

(d) In the event that Buyer should fail to terminate

this contract as provided for in Paragraph 15(a) and

planning and zoning approval under Paragraph 5. is

obtained, Buyer shall be bound by the terms and con-

ditions hereof and Seller shall be reserved any and all

causes of action against Buyer including but not limited

to retention of all Earnest Money and extension monies

paid by Buyer to Seller plus all accrued interest; specific

24a

performance; and any and all other causes of action as

reserved Seller under Kentucky Law.

16. BINDING EFFECT

This Agreement shall be binding upon the respective

parties, their successors, heirs and assigns. This contract

may be assigned by the Seller or the Buyer provided that

any such assignment will not release the parties of any

liability hereunder.

17. GENERAL PROVISIONS

No failure of either party to exercise any power given

hereunder or to assist upon strict compliance with any

obligations specified herein, and no customer practice

at variance with the terms hereof, shall constitute a

waiver of either parties right to demand exact compliance

with the remaining terms and conditions hereof. This

Agreement contains the entire Agreement of the parties

hereto and that no representations, inducements, prom-

ises or Agreements, oral or otherwise, between the parties

not embodied herein, shall be of any force or effect. Any

amendment to this Agreement shall not be binding upon

the parties hereto unless the such amendment is in writ-

ing and executed by all the parties. The provisions of this

Agreement inure to the benefit of, and be binding upon

the respective parties, their heirs, administrators, execu-

tors, personal representatives, successors and _ assigns.

Time is of the essence of this Agreement. This Agree-

ment shall be interpreted under the laws of the Common-

wealth of Kentucky.

Seller’s election to retain any and all Earnest Money

in the event of default by Buyer shall not act as or con-

stitute a waiver of any and all other remedies available to

Seller under Kentucky Law in the event of breach of this

Heo

25a

Agreement by Buyer. The return of Earnest Money to

Buyer in the event of default by Seller shall not act as or

constitute a waiver of any and all other remedies available

to Buyer under Kentucky Law in the event of breach of

this Agreement by Seller.

18. SURVIVAL OF OBLIGATIONS

The covenants, representations and warranties set

forth in this Contract shall survive any Closing under this

Contract.

IN WITNESS WHEREOF, Seller has caused this Agree-

ment to be executed by and through its president, Ron-

ald Erpenbeck, pursuant to duly authorized and adopted

resolution of its Board of Directors this __ day of

, 1989.

ERPENBECK COMMERCIAL ENTERPRISES, INC.

By /s/ Konald Erpenbeck

Ronald Erpenbeck, President

Dated: 8/17/89

COMMONWEALTH OF KENTUCKY _)

) SS:

COUNTY OF BOONE )

SUBSCRIBED, sworn to and acknowledged before me

by the said Ronald Erpenbeck, President, Erpenbeck

Commercial Enterprises, Inc., acting pursuant to duly

authorized and adopted resolution of its Board of Direc-

tors this 17 day of August, 1989.

/s/

Notary Public

My Commission Expires: 5/25/91

Bea

26a

IN WITNESS WHEREOF, Buyer has caused this Agree-

ment to be executed by and through Pierre Albert Wev-

ers, its Executive Vice President pursuant to duly auth-

orized and adopted resolution of its Board of Directors

this 17th day of August, 1989.

HYPER SHOPPES, INC.

By /s/

—

Dated: August 17, 1989

STATE OF Ohio )

) SS;

COUNTY OF Clermont )

SUBSCRIBED, sworn to and acknowledged before me

by the said Pierr Albert Wevers, Executive Vice Presi-

dent of Hyper Shoppes, Inc. acting pursuant to duly

authorized and adopted resolution of its Board of Direc-

tors this 17th day of August, 1989.

/s/ Janice K. Dean

Notary Public

My Commission Expires: 1-1-92

27a

APPENDIX C

DEED

KNOW ALL PERSONS BY THIS INSTRUMENT:

That ERPENBECK COMMERCIAL ENTERPRISES,

INC., a Kentucky Corporation,

the GRANTOR(S), for and in consideration of One

($1.00) Dollar and other good and valuable consideration

as certified to below, paid to the GRANTOR(S) by the

GRANTEE(S) herein, the receipt of which is hereby

acknowledged, do(es) bargain, sell and convey to the fol-

lowing named GRANTEE(S),

WACO OIL COMPANY, INC., a Kentucky Corporation,

its

successors and assigns forever, the following described

real estate, in the county of BOONE, and state of KEN-

TUCKY, to wit:

Street Address: Kentucky 18, Boone County, Kentucky

Grantee(s) Address: 119 Gerard Street, Covington,

Kentucky 41011

Grantor(s) Address: 4205 Dixie Highway, Elsmere,

Kentucky 41013

ON ckusarak aia Group: 2026

Located in Boone County on the east side of Ky.

18 approximately 0.7 miles southeast of the inter-

section with Ky 237 and being more particularly

described as follows:

Beginning at a point in the east right of way of Ky

18, said being 110 feet right of Station 158+78 and

a corner with Lee Vesper, Trustee, thence with

Vesper N 76-02 E. 1027.25 feet to a point; thence

with a new division line S 13-58 E, 272.99 feet to

28a

a point in the center of a proposed roadway; thence

with the proposed centerline S 66-21-14 W, 131.72

feet to a P.C. of a curve; thence with the curve to

the right 129.22 (R=300.00 delta = 24-40-46) to

a point; thence N 88-58 W, 143.54 feet to a P.C.

of a curve; thence with the durve to the left 130.91

feet (R=500.-- delta = 15-00) to a point; thence

S 76-02 W. 163-47 feet to a P.C. of a curve; thence

with the curve to the left 87.63 feet (R=125.00

delta = 40-10) to a point; thence S 35-52 W. 21.59

feet to a point on the east right of way of Ky 18;

thence with said right of way N54-48-25 W. 368.00

feet to the point of beginning.

Containing 5.50 acres.

BEING the same property conveyed to the Grantors

herein by deed from BARRY J. WILLIAMS and SERA-

FINA S. WILLIAMS, husband and wife, dated August

1, 1989, and recorded in Deed Book 418, page 266 of

the records in the Boone County Clerk’s Office at Bur-

lington, Kentucky.

* * *

{Plat Map Omitted in Printing]

* * *

Together with all the privileges and appurtenances to the

same belonging. To have and to hold forever the same to

the GRANTEE(S), in the fashion and manner stated

above in the conveying clause, with covenants of gen-

eral warranty, except all taxes and assessments due and

payable in the year 1993, which are to be reasonably

prorated as of the date of closing and which the

GRANTEE(S) assume(s) and agree(s) to pay.

GRANTOR and GRANTEE both certify, under oath,

that the consideration of $530,000.00 is the full con-

29a

sideration paid for the property and GRANTEE joins in

this deed for the sole purpose of making this certificate

about the consideration.

Dated this 29th day of January, 1993.

GRANTOR:

ERPENBECK COMMERCIAL ENTERPRISES, INC.,

a Kentucky Corporation

By: /s/ Ronald Erpenbeck

RONALD ERPENBECK, President

GRANTEE:

WACO OIL COMPANY, INC.,

a Kentucky Corporation

By: /s/ Dan Conrad Pres.

NAME AND TITLE

STATE OF KENTUCKY, COUNTY OF BOONE

(GRANTOR)

The foregoing instrument was sworn to and acknowl-

edged before me this 29th day of January, 1993, by

RONALD ERPENBECK, President of ERPENBECK

COMMERCIAL ENTERPRISES, INC., a Kentucky

Corporation, for and on behalf of the Corporation.

/s/ Lori Jean Fields Lee

Notary Public

My commission expires: 6-25-93

My jurisdiction is: STATE AT LARGE

STATE OF KENTUCKY, COUNTY OF BOONE

(GRANTEE) -

The statement about consideration in the foregoing

instrument was sworn to and acknowledged before me

30a

this 29th day of January, 1993 by Dan Conrad, President

of WACO OIL COMPANY, INC., a Kentucky Corpora-

tion, for and on behalf of the Corporation.

/s/ Lori Jean Fields Lee

Notary Public

My commission expires: 9-25-93

My jurisdiction is: STATE AT LARGE

This instrument prepared by Ziegler & Schneider, P.S.C.,

Attorneys at Law, 200 Covington Mutual Building, 629

Madison Avenue, Covington, Kentucky 41011, by Lori

Jean Fields Lee, Attorney.

This conveyance has been authorized by Resolution of

the Board of Directors of Grantor and the person(s) sign-

ing on behalf of Grantor have also been authorized to do

so.

The Grantors herein hereby adopt the convenience plat

attached hereto and incorporated herein by reference.

Subject to conditions, restrictions and easements con-

tained in deeds and instruments of record.

STATE OF KENTUCKY, )

) Sct.

COUNTY OF BOONE, )

I, JERRY W. ROUSE, Clerk of the County Court in

and for the county and state aforesaid, do hereby certify

that the foregoing is a true and correct copy of the onig-

inal on record in Deed Book, 501, Page 265-268 records

of the Boone County Clerk’s Office.

Given under my hand and official seal, this the 21 day

of March, 1995.

JERRY W. ROUSE, Clerk

By: D. Lope, D.C.

3la

APPENDIX D

BOONE COUNTY PLANNING COMMISSION

BUSINESS MEETING

Ellis Cooperative Extension Center

January 18, 1995

8:00 P.M.

Mr. William Viox, Chairman, called the meeting to order

at 8:15 P.M.,

COMMISSION MEMBERS PRESENT:

Mrs. Judy Arnett

Mr. William Bailey

Mr. Fred Burch, Vice Chairman

Mr. Phil Damstrom

Mr. Robert Kirby, Jr.

Mr. Gayle McElroy

Mr. Don McMillian

Mr. Bob Millay

Mr. Barry Neltner

Mr. Robert Ries

Mr. Ralph Rush

Mrs. Linda Schaffer

Mrs. Carol Smith, Secretary/Treasurer

Mr. William Viox, Chairman

Mr. Earl White

All members were present.

LEGAL COUNSEL PRESENT:

Mr. Dale Wilson

STAFF MEMBERS PRESENT:

Mr. Kevin Costello, AICP, Executive Director

Ms. Jan Hancock, Secretary

32a

Mr. Robert Jonas

Mr. Mitch Light

Mr. Kevin Wall

Approval of the Minutes:

Chairman Viox stated that each Commission member had

received copies of the Minutes of the January 4, 1995

Public Hearings and Business Meeting. He asked if there

were any comments or corrections.

There being no changes to the Minutes, Mr. McMillian

moved that the Minutes be approved as mailed. Mrs.

Smith seconded the motion and it carried unanimously.

UNFINISHED BUSINESS:

Zoning Map Amendment

The request of ERPS, Inc. (applicant) for ERPS, Inc.,

W. Thomas and Catherine Erpenbeck, Raymond and

Carole Erpenbeck, Ronald and Patricia Erpenbeck,

and Lawrence and Barbara Erpenbeck (owners) fora

Zoning Map Amendment on a 466-acre site located

on both sides of U.S. 42 and on the north side of Mt.

Zion Road, Florence and Union, Kentucky. The

request is to rezone the site from Suburban Residen-

tial One (SR-1) to Residential Planned Development

(RPD) and Commercial Two/Planned Development

(C-2/PD) in order to allow a mixed use residential/

commercial development, Plantation Pointe.

Staff Member Kevin Wall read the Committee Report

which recommended approval of the request based on

the findings of fact, but subject to conditions (See

Committee Report). Mr. Wall offered to review any

of the changes in the project.

33a

Mr. Barry Neltner, Committee Chairman, stated that

it has taken quite a while to get to this point. He

thanked Mr. Ray Erpenbeck for working with the

Committee through the process.

Mr. McMillian asked if the new highway conflicts

with the plan. Mr. Wall advised that it does not.

Chairman Viox asked if there were any comments

from the applicant. Mr. Ray Erpenbeck stated that he

appreciated working with the Committee. Chairman

Viox thanked Mr. Erpenbeck for bringing the plan

before the Commission. He stated that it is an excel-

lent plan and he looks forward to Plantation Pointe.

Mr. Burch moved by resolution to the cities of Flor-

ence and Union to approve the request based on the

Staff and Committee Reports including the condi-

tions. Mr. Neltner seconded the motion.

Mrs. Schaffer stated that the Committee did a very

good job. She questioned if the single-family attached,

carriage homes, and condominiums are to be owner

occupied. She does not want them to apply for multi-

family, which could be four families that own. Mr.

Ray Erpenbeck stated that the attached single-family

residences and the carriage homes will be owner occu-

pied. Mrs. Schaffer asked if this should be stated in

the conditions. Mr. Wall replied “no”. Mrs. Schaffer

stated that it is important. Mr. Costello stated that it

is implied in the application, all of the information

submitted, and in the testimony. He stated that the

apartments refer to the multi-family section only,

which was discussed at length before the full Com-

mittee.

Counselor Wilson asked if the applicant would agree

to submit a letter, to be included as part of the Devel-

34a

opment Plan, stating that single-family attached and

condominiums will be owner occupied. Mr. Erpen-

beck replied “I will do that”.

Mrs. Schaffer questioned if the project stops if some

of the conditions do not occur. Counselor Wilson

advised that, depending on the condition, that is

probably correct. He noted that there is a condition

that the road has to be all the way built thru before

a Certificate of Occupancy can be issued. He stated

that when a zone change is approved subject to a

Concept Development Plan and a condition is not fol-

lowed thru, the statutes say that the zone change is

not lost and the property does not revert back to the

prior zoning without having a Public Hearing to deter-

mine whether failure to meet that condition would

cause that to happen.

Mr. Costello stated that with Oakbrook and Triple

Crown, the conditions have been looked at as each

phase comes on line, which will be done in this case.

Mr. Wail reviewed Condition #16 in this regard.

Mrs. Schaffer referred to Condition #3 and ques-

tioned areas 11 A, B, and C. Mr. Wall indicated those

three commercial areas on the plan. He stated that

through the Committee review process, there was a

general consensus that commercial uses should

become much more limited in range of uses and inten-

sity the further west they go. He stated that Mr. Erpen-

beck divided Area 11, which is located along U.S. 42,

into three areas (11 A, B and C) and prepared use lists

(which are attached to the Committee Report). Mr.

Burch stated that it was agreed that everything from

the main road coming in on 11 B and C would be O-1

uses. Mr. Wall agreed and added that Area 12 was pro-

posed to be generally C-2 uses, and Area 3 was to be

35a

generally C-] uses. He stated that Area 11 is normal-

ly what is included in C-2, with some exclusions. Area

3 is what is in C-1 with the exception that the inten-

sity has been limited to 10,000 square feet per acre.

Areas 11 B and C have been combined to allow O-1

uses for the area between the collector road and the

western boundary of the site. Area 12 is a combina-

tion of C-1 and O-1 uses.

Mrs. Schaffer stated that it is not in the letter that

11 Band C will be O-1 uses. Mr. Wall referred to Con-

dition #3 which indicates how the use lists apply. He

stated that the Committee did not have a problem

with the use lists and the concern was the parts of the

project they were being applied to. Mrs. Schaffer

stated that Condition 3. B. says that the allowed uses

for Areas 11 B and 11 C “‘shall be exclusively those

listed in the applicant’s letter . . .”’. Mr. Wall stated

that they are using the list, but putting the uses tow-

ards different parts of the development. He stated

that the uses will be O-1 only.

Mr. Kirby noted Mrs. Schaffer’s comments regarding

the single-family and detached homes being some-

thing other than owner occupied, and that the appli-

cant agreed to provide a letter stating that they would

be owner occupied. He asked if an owner would be

precluded from renting the home in the future while

it was on the market for sale. Counselor Wilson ex-

plained that the owners would occupy the dwellings

and not purchase them solely for investment purposes.

Mr. Kirby stated that the restriction would apply to

the first time the home is purchased. Counselor Wil-

son stated that that would be a fair answer to the

question.

36a

Mrs. Smith questioned the location of the land to be

donated for the school. Mr. Erpenbeck indicated an

area shown in orange on the plan. Mr. Neltner stated

that there was @ lot of discussion in regard to the

school site. He stated that the depth of the commer-

cial and office areas is approximately 400 feet and

the way the ground lays, the school will have visibil-

ity from U.S. 42. Mrs. Smith stated that the visibility

was her concern.

Mr. Ries stated that the Committee and Mr. Erpen.-

beck did an excellent job working together on this

project and he commended them both.

There being no further comments, Chairman Viox

asked for a vote on the motion made by Mr. Burch

and it carried unanimously. Counselor Wilson advised

interested parties to follow up with the Union and

Florence city councils as they have the final say.

Mr. McElroy left the meeting at this time.

bho

Utilization of an Underlying Zone in a Planned Devel-

opment

The request of Gary Gregory and Brad Denzta (appli-

cants) for Matthias and Laverne Toebben (owners)

for the Utilization of an Underlying Zone ina Planned

Development in order to construct an 8,800 sq. ft.

AutoZone auto parts/accessory store on a 1.1-acre

parcel located at Highway 42 and Old Toll Road,

Florence, Kentucky. The site is zoned Commercial

Two/Planned Development (C-2/PD).

Staff Member Bob Jonas read the Committee Report

which recommended approval of the request based on

the findings of fact, but subject to conditions (see

Committee Report).

37a

Mr. Kirby moved by resolution to the Florence City

Council that the request be approved based on the

Staff and Committee Reports. Mr. Bailey seconded

the motion.

Mr. Ries stated that on the original plan the area in

front of the dumpster was considered a loading area.

He asked if it is still a loading area. Mr. Jonas advised

that it is still a loading area, but shipping and receiv-

ing will be done after hours. Mr. Ries asked what it

will look like. Mr. Jonas stated that it is a one-bay

garage.

TO:

FROM:

DATE:

RE:

38a

APPENDIX E

COMMITTEE REPORT

Boone County Planning Commission

Barry Neltner, Chairman

January 3, 1990

Request of Erpenbeck Commercial Enterprises,

Inc. (applicant) for Enterprise VI or Dennis Ves-

per and Alicia Vesper (owners) for the Utiliza-

tion of an Underlying Zone in Planned Develop-

ment on a 43.45 acre site located on the north

side of KY 18 and east of Limaburg Creek Road,

Boone County, Kentucky. The site is currently

zoned Commercial Two/Planned Development

(C-2/PD). Boone Crossing, a 447,600 square

foot retail center, is being proposed.

REMARKS:

We, the Committee, recommend denial of the request

based upon the following statements and findings of

fact.

FINDINGS OF FACT

CONCEPT DEVELOPMENT PLAN

1. The proposed uses and building density as stated on

the submitted Concept Development is not consistent

with Article 15 of the Boone County Zoning Regula-

tions and the criteria used to evaluate Planned Devel-

opment (PD) requests under the applicable regula-

tions.

a. The submitted Concept Development Plan, pro-

posed uses and design are not innovative nor do

they offer a mixed-use of a substantial value than

ee ee re ee ee ee ar ys

a sad eee

iii isi

39a

would be normally allowed under conventional

zoning requirements as stated in the Boone County

zoning Regulations.

The proposed uses and scale of development are

not appropriate given the nature of the adjoining

residential and small scale commercial land uses

and zoning either existing or planned for the Flor-

ence-Burlington (KY 18) corridor. The proposed

type and scale of commercial uses are not presently

located along KY 18 from Houston Road to Bur-

lington (the governmental center) nor are they pro-

posed or planned for the future.

. As stated in the Boone County Zoning Regulations,

the Commercial Two (C-2) underlying zoning dis-

trict serves as a reference point to determine per-

mitted uses if the other requirements of Planned

Development (PD) are met. The submitted plan

and proposed uses and their intensities do not meet

the other requirements stated in Article 15. These

requirements include but are not limited to build-

ing dimensional standards, a more useful pattern of

open space, a development pattern which utilizes

the natural topography, a more efficient use of the

land and a development pattern in harmony with

land use densities, transportation facilities, com-

munity facilities and the objectives of the Compre-

hensive Plan.

. The submitted Concept Development Plan does

not demonstrate a development pattern which pre-

serves and utilizes the natural topography, scenic

vistas (KY 18 corridor), trees and prevents the dis-

ruption of natural drainage patterns as required in

Planned Development (PD). The Plan is over 90

percent impervious cover, either building or pave-

ment from parking, circulation or loading areas.

40a

The submitted Concept Development Plan shows

no landscaping features, or the retention of exist-

ing vegetation, to soften the tremendous visual

impact of the paved parking area from public view

(KY 18). To further illustrate this point, the sub-

mitted Concept Development Plan indicates only

a 10 foot non-paved area between the KY 18 right-

of-way and the interior ring road to screen the

extremely large parking area located in front of the

proposed retail center. In addition, due to the scale

or size of the project and existing topography of

the site, massive earthwork will be required to cut

and fill the site. Consequently, the natural drainage

system of the site will be disrupted and will be

relocated off the site.

The proposed uses and location of the uses severely

impact the site’s physical assets. No attempt was

made to rearrange the proposed uses to preserve

the existing heavily wooded area on the site. The

submitted request did not take into consideration

the visual impact of the loss of this wooded area or

the public view of the large parking areas in front

of the retail center.

. The proposed uses and submitted Plan do not fit

the development pattern in harmony with land use

density, transportation facilities, community facili-

ties and objectives of the Comprehensive Plan. The

applicant has indicated that the building intensity

of the proposed project is 9,266 square feet per

acre. This intensity was derived by combining the

acreage of the C-2/PD zoned property and the I-1

zoned property. The correct building intensity is

approximately 12,862 square feet per acre or

447,600 total square footage located on approxi-

ee ate een ee Oe ee ee

kph aeteddln Vay tee

si Dh a nad Cg A Ne cn I, I iN AM

4la

mately 34.8 acres zoned C-2/PD. This figure is

considered to be very intense in terms of the

adjoining commercial uses. The Heritage Hill Indus-

trial Center Subdivision was approved at an inten-

sity of 6,447 square feet per acre.

. The proposed development will have a tremendous

impact on the existing roadway network (KY 18

and KY 237) extending from I-75 and 1-275. The

existing traffic volume on KY 18 at the site loca-

tion is approximately 2,342 vehicles per hour at

the P.M. Peak Hour, (from applicant’s TIA, Figure

5) The total amount of traffic estimated to be gen-

erated by the development at full build out (again

from the applicant’s TIA, Table 3) is 2,929 trips.

The amount of traffic generated by the proposed

development compared to the existing traffic vol-

ume of KY 18 is significant. The traffic generated

by the proposed development has the potential to

double the existing amount of traffic on KY 18

during the most heavily traveled hours. This would ©

greatly decrease the capacity of KY 18 which is

needed for future development of Boone County.

The intent of the Access Management Regulations

is to “. .. permit reasonable speeds and economy

of travel while maintaining the capacity of the

roadway. ”. Overall, the submitted Concept

Development does not demonstrate the combina-

tion of various land uses, innovation of physical

cesign, and the inter-relationship with the land uses

in the surrounding area to justify the deviation

from standard district regulations.

42a

BOONE COUNTY COMPREHENSIVE PLAN

2. The Proposed uses and submitted Plan are not in

agreement with the 1989-1990 Goals and Objectives

of the Boone County Comprehensive Plan.

Overall Objective

**Residential, commercial, industrial and institu-

tional uses can co-exist provided proper design

principles are applied in developments to mini-

mize frictions created by activities of whatever

diversity.”

“The future growth and the redevelopment of

areas shall be accompanied by adequate infra-

structure and services.”

Because of its scale and its expected impact on the

community, the proposed development would require

significant road and utility improvements in order to

support the retail portion of this site. The applicant

has failed to provide the assurance that these improve-

ments will be made.

Environment

The project as proposed contradicts one of the Envi-

ronment objectives of the Comprehensive Plan.

‘“‘New development shall be designed in harmony

with the physical environment in such a way that

each site’s existing physical assets are used benefi-

cially.”

Due to the scale of the project, the site’s assets (e.g.

trees, drainage swales, and existing topography) will

have to be completely removed including the possible

the Silvery Salamander and the Running Buffalo

Clover.

wins

Ps Rb At DoT ie SRA de Ris lin ataio sits

43a

Business Activity

“Appropriate locations for industries or busi-

nesses compatible with others located in Boone

County are provided.”

The scale of the proposed use conflicts with adjoining

smaller scale and less intense commercial uses and

existing businesses located along KY 18. The Commit-

tee believes there are other more appropriate locations

in Boone County for the proposed regional develop-

ment as stated in the Comprehensive Plan.

The proposed project also conflicts with a commercial

objective of the Business Activity Element. Large scale

mixing of commercial and non-commercial uses shal]

occur in Planned Developments only when considera-

tion can be given to assure compatibility with sur-

rounding land uses. The proposed design of the com-

mercial center suggests only large scale retail uses

instead of providing professional office and service

related uses needed for the nearby residential popula-

tion and the eventual industrial development located

directly north of the site.

Transportation

The applicant has not adequately addressed the traffic

impact the proposed project will have on the existing

transportation network in Boone County. Specifically,

the transportation concerns raised at the Public Hear-

ing relating to a increase in the number of traffic acci-

dents along KY 18, and a decrease in the level of ser-

vice at intersections have not been resolved. The Com-

prehensive Plan discusses the need for access manage-

ment and to protect the traffic capacity of major roads

like KY 18 in Boone County.

44a

3. The proposed uses and submitted Plan are not in agree-

ment with the 1986 Boone County Comprehensive

Plan.

a. The Comprehensive Plan describes areas of future

commercial activity. The primary focus of commer-

cial activity is and will remain in the future in Flor-

ence. The City of Fiorence, because its location to

the interstate road system and access is well suited

for the expansion and the retention of commercial

businesses with a regional draw. Page B-14 of the

Land Use Element describes this type of activity.

“Since the immediate Florence area figures

so prominently in the County’s commercial

activity, this region has the momentum to

continue dominating construction of com-

mercial structures. Many problems with the

location and arrangement of commercial

enterprises have emerged, however, especial-

ly along KY 18 and US 42. Along KY 18 in

the I-75/Mall Road/Houston Road area,

there are many traffic problems that can be

worsened by adding commercial access

points. The land surrounding the U.S. 42

area south of Florence, will experience addi-

tional growth towards the City of Union.

Any commercial developments in these areas

should be limited in scale and clustered to

serve growing residential neighborhoods.

Ideally, these commercial clusters should not

function as an extension of Florence and

Mall Road, but as a distinct unit serving the

Union area. This should apply to the Lima-

burg area as well. The commercial develop-

ment in this area should coordinate closely

45a

with the projected high and medium density

residential development to form a more

coherent community rather than just a strip

extending out of Florence.”

Specifically, commercial uses in the Limaburg/KY

18 area or the project area should not be similar in

nature and scale as to the type located on Mall Road.

- In the Transportation Element of the Comprehen-

sive Plan, there is a reference to the construction a

road across Airport property to connect Mineola

Pike with KY 18. Such a road would alleviate exist-

"ing and potential traffic problems by providing alter-

nate transportation routes for the public. As stated

at the Public Hearing and in a letter from the Ken-

ton County Airport Board and the Federal Aviation

Administration (see attached letters), this road is

not constructed nor is it planned to be constructed

in the future. It is obvious that the “effective and

efficient use of highway facilities” will not occur

without the construction of the road.

. The text of the Land Use Element of the Compre-

hensive Plan suggests that the “KY 18 corridor will

be a mixture of all types of development.” In addi-

tion, the proposed scale of the project and regional

focus contradicts the text of the Land Use Element,

which stresses that the ‘‘Mall Road area will con-

tinue to grow as a regional shopping area and its spill

over onto US 42, KY 18 and Houston Road will be

evident, thus, needs to be substantially controlled.”

Consequently, the design and location of the KY

18/I-75 Interchange, US 42/1-75 Interchange, and

the new Mall Road/I-75 Interchange encourages the

location of large scale retail regionally focused devel-

opment to be confined to the Mall Road area. The

46a

Comprehensive Plan discusses the importance of lim-

iting regional retail development to select areas. The

Comprehensive Plan states that “regionally oriented

commercial development, should be retained to the

Mall Road area.’’ The basis for this statement is the

current trend of this type of commercial develop-

ment occurring there now and the introduction of

the I-75/Mall Road Interchange to serve this type of

development. This is well documented in the Com-

prehensive Plan. The Comprehensive Plan also notes

the existing and potential traffic problems on KY 18

and recognizes that these problems can be worsened

if regionally oriented commercial or retail uses simi-

lar to the existing retail businesses along Mall Road

are built along KY 18. In addition, KY 18 is the

main artery to Burlington and the existing and

future planned growth of Boone County. Even

though the I-75/Mall Road Interchange is planned to

reduce some of the existing traffic congestion prob-

lems on KY 18 and Mall Road, it was not designed

to alleviate future trips related to growth along KY

18 towards Burlington.

LAND USE COMPATIBILITY

4. The proposed project and its regional orientation at

this location as stated, and depicted graphically in the

applicant’s traffic study is not appropriate given the

site’s location from I-75 (approximately 2 miles) and

from I-275 (approximately 5 miles). Also, the scale of

the proposed project is not compatible with the scale

and impact upon the community compared with the

existing businesses located along KY 18 from Houston

Road to the governmental center of Burlington.

47a

5. The proposed project and its expected traffic impact

doesn’t meet the design and purpose of Burlington

Pike or KY 18. The proposed project would severely

impact the movement of traffic from Florence to Bur-

lington or the County’s governmental center. This road

primarily serves the local population of Burlington and

Oakbrook Subdivision and is not intended to predomi-

nantly serve regional traffic from I-75 and 1-275 that

the proposed project would draw from if the retail cen-

ter were constructed.

Dee tee Ue ee 6 ee ee aE Cada pe oe

- The applicant has failed to determine the full impact

of the project since the applicant’s traffic study did

not include a thorough analysis of projected residential

growth and business expansion adjacent to the site and

along the KY 18 corridor. This growth includes but is

not limited to the existing population counts and pro-

jections of Oakbrook Subdivision, the increase in resi-

dential population in Burlington, the adjoining com-

mercial uses in the Heritage Hill Industrial Center Sub-

division and the remaining industrially zoned property

located to the north. Also, with the opening of Oak-

brook Road from KY 18 to Pleasant Valley Road, the

traffic analysis did not take into account the antici-

pated traffic from the new residential development

along Pleasant Valley Road.

it od ic 2

List

fa Ree RIES ect et Sid ih The ta Aiba EE

LO URRY 0

ike a NR ac

7. The scale or size of this development requires a sig-

nificant amount of off-site improvements in order to

accommodate the proposed development on the 43.45

acre site. These off-site improvements include but are

not limited to sanitary sewer line improvements to the

Oakbrook Treatment Plant, the construction of two

‘major access roads, and the development of a deten-

tion/retention system northwest of the 43.45 acre par-

cel. The development of such a detention/retention

ener

a ARINC Scr

48a

system would drastically disrupt the natural drainage

pattern as specified in the Planned Development cri-

teria. In addition this development as proposed would

require the paving of a large loading/unloading and

parking area on industrially zoned property located

directly behind the retail center.

. The proposed uses and the large scale of the region-

ally focused retail center are not compatible with the

large amount of employment or industrial zoning (e.g.

250-300 acres) that is located to the north of this site.

First, the development would result in an enormous

traffic impact in terms of increased traffic volume on

surrounding roadways and the concern of mixing of

industrial and retail traffic traveling onto KY 18. Sec-

ond, there is a concern for utilizing an entrance de-

signed for major retail use and at the same time serv-

ing a large industrial park.

. The proposed project is not compatible with the adjoin-

ing properties to the south and east. Located to the

south is a large residential community (Oakbrook—

approximately 1,800 dwelling units and over 6,000

residents at full build out) within 500 feet of this

project. Located to the east are approved automotive

related uses. These uses were adopted as part of a zone

change request prior to the adoption of the 1986 Com-

prehensive Plan. Unlike the applicant’s submitted Con-

cept Development Plan, these uses are not predomi-

nately regional draws and they are not developed with

the same intensity as the project site. Therefore, they

are compatible with the adjoining residential land uses.

Automotive related use traffic is usually more dis-

persed during a 24 hour period, and obviously the scale

of these individual uses are different in terms of com-

munity impact than the applicant’s proposed project.

49a

10. The uses that are proposed by the applicant are gen-

erally located near an interstate with an adequate road

system in place to handle anticipated traffic. In addi-

tion, the underlying zone or the C-2 zoning district

allows other retail and offices uses that are not nor-

mally high traffic generators. Those type of uses are

presently located along the KY 18 corridor from Flor-

ence to Burlington. These uses serve the local popula-

tion as intended and are indicated in the Comprehen-

sive Plan. The submitted Concept Development Plan

and proposed uses do not address the Comprehensive

Plan’s desire to encourage the retail, office and service

related needs of the Oakbrook and Burlington popu-

‘ lations, but rather the predominant needs of a regional

population.

;

TRAFFIC

11. The applicant’s traffic study does not fully address

3 the development’s impact on the existing roadway

: system.

a. The applicant’s study failed to evaluate the impact

of the additional retail space in the proposed center

and the out-lots, which would include an additional

240,000 square feet as stated in the applicant’s Traf-

fic Impact Analysis planned for the site. The study’s

conclusions were based upon Phase I of the develop-

ment or just 337,000 square feet of retail use.

DORN 15 ib ct Al unpeeled Lk

b. The applicant’s study does not evaluate the associa-

ted traffic from other developments in the area such

as the expansion of Oakbrook Subdivision and Heri-

tage Hill Industrial Center and other developments

than have been approved. These future develop-

ments should be included in order to make the com-

12.

50a

plete analysis of the traffic impact on the commun-

ity.

c. The applicant’s study includes in Phase II traffic

generated from 500,900 square feet of industrial

use on the industrially zoned property to the north.

This figure may be under estimated given the poten-

tial development of 250-300 acres under the current

zoning regulations would allow up to 6,250,000 squ

square feet of industrial use.

d. The applicant assumes that 50-60 percent of all

traffic at the KY 18/I-75 interchange will use the

new interchange for Mall Road. The conclusion of

OKI, who prepared the study for the new ramps, is

that a 30 percent reduction of traffic on KY 18 is

expected. Further, the concern is that any increase

in the capacity of KY 18 is protected for future

growth of Boone County.

e. The applicant assumed the proposed airport road

would handle 39 percent of the traffic generated by

the proposed development. However, the applicant

does not give an alternative if the airport road is not

built, or where the 39 percent of the traffic will be

routed. The Committee believes that KY 18 will be

main road system for this proposed development

and thus be most impacted.

The TIA analysis presented by the applicant therefore

has not significantly analyzed the potential impact of

the development on area roadways.

The applicant’s Phase I conclusions of their traffic

study were incomplete in terms of evaluating the im-

pact of the entire retail development. By adding Phase

II traffic, the applicant’s traffic study showed that the

development will reduce the LOS (level of service) of

Sarees kita ziMotind

13.

14,

5la

intersections to unacceptable levels, as shown in Table

2. (see attached table) Further, these LOS calculations

do not take account the additional future traffic gen-

erated by surrounding developments as discussed on

Item 11.

The proposed design of the eastern access driveway

(located off site or outside the 43.45 acre parcel) will

not adequately handle the anticipated commercial

traffic from the Boone Crossing development and

future industrial traffic from the property immediately

north of 43.45 acre parcel and Heritage Hill Industrial

Center Subdivision.

The type of development being proposed should be

located within close proximity of an interstate system

and on an adequate transportation network with lim-

ited access in order to move a large amount of local

and regional traffic efficiently. If this type of develop-

ment was located at this site the traffic associated with

this regional retail center would greatly affect the effi-

ciency of the major thoroughfare from Florence to

Burlington (KY 18) and KY 237 from the Camp Ernst

area to Hebron.

CONCLUSION

The Committee would like to state that the Boone Cross-

ings Concept Development Plan project was evaluated

from a land use standpoint, which is the role of a Plan-

ning Commission. We recognize that this project would

have a large economic impact on the community but then

any project of this magnitude will have a large economic

impact in terms of the number of jobs created and the

taxes generated. The Boone County Planning Commission

is charged with reviewing land use considerations, such as

compatibility of the project with adjoining land uses, ade-

52a

quacy of roads, access, utilities, signage, and public visi-

bility for it is the land use impact which is ultimately felt

by the community.

This site has many development possibilities, however, we

do not believe that this is an appropriate use based on the

information stated and for the reasons listed above. Fur-

ther, we are of the opinion that this use could occur in

Boone County if properly located.

/s/ Barry Neltner /s/ Larry Barnett

Barry Neltner, Chairman Larry Barnett

/s/ Fred Burch

Fred Burch Phil Damstrom

/s/ Rector Jones /s/ Carol Smith

Rector Jones Carol Smith

BN:kat

Leet Beir de Ts

TO:

FROM:

DATE:

RE:

53a

APPENDIX F

COMMITTEE REPORT

Boone County Planning Commission

Barry Neltner, Chairman

October 3, 1990

Request of Turfway Park Racing Association,

Inc. (Owner) for Carroll Properties, Inc. (appli-

cant) for a Zoning Map Amendment on a +123.1

acre site located off both sides of the Houston

Road Extension, both in Florence and in unin-

corporated Boone County, Kentucky. The

request is to rezone the site from Office Two/

Planned Development (O-2/PD), Suburban Resi-

dential Two/Planned Development (SR-2/PD),

Public Facilities/Planned Development (PF/PD)

and Recreation/Planned Development (R/PD),

to Commercial Two/Planned Development (C-2/

PD) in order to allow a mixed use office/com-

mercial development and an entertainment and

exhibition facility.

REMARKS:

We, the Committee, recommend approval of the above

request based upon thé following findings of fact and

subject to the following conditions.

FINDINGS OF FACT

1. The existing zoning classification of the site, Office

Two/Planned Development (O-2/PD), Suburban

Residential Two/Planned Development (SR-2/PD),

Public Facilities/Planned Development (PF/PD), and

Recreation/Planned Development (R/PD), is inappro-

54a

priate and the proposed zoning classification, Com-

mercial Two/Planned Development (C-2/PD), is

more appropriate due to the fact that the existing

Houston Road Extension divides the site and, there-

fore, makes it less conducive for significant residen-

tial and office development as previously approved.

Also, part of the Houston Road Extension is com-

pleted and represents a physical improvement

already in place since the adoption of the Houston-

Donaldson Study. Jn addition, some of the uses pro- —

posed, for example, the hotel use and the entertain-

ment/mini-convention center use, are compatible

with adjoining land uses and appropriate due to the

presence of Turfway Park, a major recreational facil-

ity in Boone County and in Northern Kentucky.

The proposed uses as described on the submitted

Concept Development Plan and subject to the con-

ditions listed below generally meet the goals and

objectives of Planned Development (as stated in

Article 15 of the Boone County Zoning Regula-

tions). In addition, some of the proposed uses will

help maintain the employment character of the

areas as outlined in the Houston-Donaldson Study.

These uses are service related and are designated to

protect the employment character of the area.

The proposed uses and zoning are appropriate since

the applicant has agreed to make significant road-

way and utility improvements on and off the site

and has agreed to phase the development. Also, the

applicant has agreed to work with other property

owners in the area, the Boone County Planning

Commission, the City of Florence, and the Boone

County Fiscal Court to help remedy the existing

and forecasted traffic congestion around the I-75/

KPC

55a

Turfway Road Interchange. These actions are in

accordance with the Houston-Donaldson Study,

which was designed to correlate Study area devel-

opment with infrastructure improvements.

CONDITIONS

The applicant is being asked to agree to include these

items as part of the Concept Development Plai: in order

to clarify the plan as presented at the August 22, 1990,

Business Meeting. Further, these conditions are intended

to clarify the suitable uses and development for the pre-

sented plan. -

1. The applicant shall agree not to take occupancy of

the proposed Bigg’s building and enclosed mall until

the construction of the Houston Road Extension to

Donaldston Highway is completed and open to the

public. The three proposed uses along Turfway

Road Extension to Donaldson Highway. The appli-

cant shall further agree not to take occupancy of

any other new building until the construction of the

Houston Road Extension is substantially underway.

2. The applicant shall make the necessary road improve-

ments to the I-75 southbound exit ramp and Hous-

ton Road Extension as stated in the applicant’s traf-

fic study, application and the correspondence from

the Kentucky Transportation Cabinet (dated August

22, 1990).

3. If deemed appropriate by the Boone County Plan-

ning Commission, the Kentucky Transportation

Cabinet, and St. Luke West Hospital, the southern

access to Parcel B shall be relocated north on the

Houston Road and Turfway intersection. Such

access should be located opposite from a new St.

Luke West Hospital entrance.

10.

ll.

56a

The applicant will be required to share access from

Parcel A to the adjoining properties to the north and

south. Due to the planned shared access, the pro-

posed ring road shall be designed to accommodate

future traffic from the adjoining properties.

The proposed curb cut off Turfway Road serving

Parcel B shall be limited to right turn in and out.

The proposed curb cut off the Houston Road Exten-

sion serving the major retail center on Parcel B shall

be eliminated.

The proposed curb cut off the Houston Road Exten-

sion serving Parcel A and located closest to the

northern property line shall be eliminated.

The applicant shall be required to negotiate with

city/county officials to relocate all necessary utili-

ties and to provide all necessary easements.

The applicant shall be required to pursue develop-

ment of the proposed Entertainment/Mini-Conven-

tion Center facility in the first phase of development.

The applicant shall be required to build the pro-

posed uses in accordance with the submitted Con-

cept Development Plan presented at the August 22,

1990, Public Hearing with the exception of the pro-

posed outlots on Parcel A. The outlot area shall be

restricted to a maximum number of nine outlots

with a total building square footage not to exceed

120,000 square feet. The proposed mix of office

and commercial use will be 50% office and 50%

commercial use for the outlot area.

The proposed Bigg’s building and other associated

anchor stores shall be moved approximately 50 feet

northwest from the proposed location on the Con-

cept Development Plan in order to expand the visual

12.

13.

14.

57a

buffer from I-75. Consequently, the proposed build-

ings will be at a minimum 150 feet from the I-75

property line.

All proposed buildings shall be subject to the design

review procedure and standards as stated in the

Houston-Donaldson Study. In addition, all roof

equipment and loading areas from the proposed

retail building along I-75 shall be sufficiently

screened from public view (I-75) with the use of pre-

serving existing trees, new landscaping plant mater-

ial, decorative building materials, and decorative

retaining walls. Water features shall be required

along I-75 and the Houston Road Extension as part

of this development. All building design shall be

consistent and in harmony with the Houston-Don-

aldson Study.

BN stand within

Generally, The existing trees located approximately

75 feet from the eastern property line shall not be

removed. On the northern and southern property

lines, all existing vegetation shall remain at a mini-

mum 50 feet from each property line. Additional

vegetation may be required to be preserved adjacent

to the St. Luke West property at subsequent reviews.

All trees to be removed on the site shall be ident-

ified on a‘ subsequent development plan and

reviewed and approved by the Boone County Plan-

ning Commission prior to any removal. The undis-

turbed areas shall be marked in the field and

inspected by the Boone County Planning Com-

mission.

The proposed development shall have at a minimum

22% green space. Each puaase of the development

submitted for review shall include calculations of

15.

16.

58a

green space area. In general, landscaping plans for

the project shall include the following:

a) Provide planting islands between every 10 to 15

spaces to avoid long rows of parked cars. The size

should be a minimum of nine feet wide to allow

for an adequate planting area. Each of these

planting islands should provide at least one shade

tree having a clear trunk height of at least six feet.

For code required parking, one tree and three

shrubs are to be utilized per 15 spaces.

b) Provide eight-foot wide landscape strips for every

four rows of parking, or large planting islands at

the ends of parking rows.

c) In addition, canopy tree plantings along the Hous-

ton Road Extension and other public streets of

the proposed development shall be planted along

with earthen berms as part of the application.

The applicant agrees to work with the City of Flor-

ence, Boone County, and area property owners and

developers in arriving at a solution to the existing

and forecasted traffic congestion at the Turfway

Road/I-75 Interchange.

The applicant agrees to pay for the traffic signals

which will be used to enter and exit the Bigg’s site.

The applicant shall negotiate with the Kentucky

Transportation Cabinet and St, Luke West Hospital

to place a traffic signal at the first entrance of the

development off the Houston Road Extension.

This Committee recommendation upon approval by the

Boone County Planning Commission is recommended to

be forwarded to the City of Florence and the Boone

County Fiscal Court. In addition, the Committee is

recommending that the text of the Houston-Donaldson

59a

Study and the 1990 Boone County Comprehensive Plan

be amended accordingly.

A copy of the Public Hearing minutes accompanies the

findings and recommendation serving as a summary of

the evidence and testimony presented by the proponents

and opponents of this request.

/s/ Barry Neltner

Barry Neltner, Chairman Rector Jones

/s/ Fred Burch /s/ Carol Smith

Fred Burch Carol Smith

/s/ Phil Damstrom

Larry Barnett Phil Damstrom

Lawrence Collins

BN:mcb

60a

CITY OF FLORENCE [SEAL]

Betsy R. Conrad

City Clerk

January 8, 1991

Mr. William R. Viox, Chairman

Boone County Planning Commission

P.O. Box 596

Burlington, KY 41005

Dear Mr. Viox:

Please be advised that Florence City Council declined to

take action on the Planning Commission’s recommenda-

tion regarding the request of Turfway Park Racing Asso-

ciation, Inc. (owners) for Carroll Properties, Inc. (appli-

cant), through your Resolution R-37-90. It is our under-

standing that the zoning map amendment stands

approved as recommended in this instance.

Sincerely,

/s/ Betsy

Betsy R. Conrad

Copy: Bruce Janken, City Coordinator

Mailing Address:

P.O. Box 457 - Florence, Kentucky 41022-0457

Street Address:

7431 U.S. Highway 42 - Florence, Kentucky 41042

(606) 371-5495

6la

APPENDIX G

AFFIDAVIT OF MIKE PHILLIPS

Comes now Mike Phillips and after being duly cau-

tioned and sworn, states as follows:

My name is Mike Phillips, and I hold the position of

Director of Real Estate of Hyper Shoppes Real Estate

Company, Inc. Our organization is the real estate devel-

opment arm of Biggs, a major regional retail developer.

During 1989 and the early part of 1990 our company

had a contract with Erpenbeck Commercial Enterprises,

Inc., to purchase a parcel of land containing approxi-

mately 43 acres along Kentucky 18 in Boone County,

Kentucky. That contract had a number of conditions

and for various reasons set forth below, our company

cancelled or terminated this contract with Erpenbeck

Commercial Enterprises on or about January 11, 1990.

The parcel that was the subject of that contract had

a zoning classification requiring review and approval of

a concept development plan before it could be developed

for a Biggs store. That approval had to come through the

Boone County Fiscal Court and this approval, along with

other conditions, was a requirement of the contract

before our company would purchase the property.

Under our contract, Erpenbeck Commercial Enterprises,

Inc., was to be primarily responsible for preparation of

an application with a concept development plan. Our

company was responsible for some of the costs in the

preparation of that plan, and before we could be obli-

gated under our contract we had to approve that plan

submitted to the Boone County zoning authorities.

In early December, 1989, the Boone County Planning

Commission conducted a public hearing on the develop-

ment plan submitted by Erpenbeck Commercial Enter-

62a

prises, Inc. This plan as submitted to the Boone County

authorities was not acceptable to our company and I

personally informed Ray Erpenbeck of Erpenbeck

Commercial Enterprises, Inc., that it was not acceptable

to us. There were various problems with that plan, as

we viewed it, most of which involved the transportation

facilities or roadways to the site.

As a regional retailer, it is very important for us to

have good access to interstate systems to allow regional

customers access to our site. Erpenbeck Commercial

Enterprises, Inc., had informed us that they could pro-

vide this access through a public use road through Airport

owned property to the north of the Kentucky 18 loca-

tion. This public use road would have close access to the

interstate systems for regional customers from the north

and west of the location. Without this type of access

road to the site, we would not have been interested in

pursuing actual purchase of the Kentucky 18 location.

Another major factor to us concerned the traffic study

or design internally within the site as well as planned

access from Kentucky 18. More specifically, regional

traffic accessing our site from the west along Kentucky

18 did not have adequate or acceptable access to our

location. Without acceptable access facilities for this

eastbound regional traffic from the west, the site would

not have been acceptable to us for purchase. This traf-

fic study and design was part of the Erpenbeck submitted

development plan.

Another important factor to our company was the

public reaction opposing the Kentucky 18 site as a loca-

tion for our company. It is our policy not to go where

we are not wanted at any particular location.

63a

Regarding internal traffic on site as reflected in the

development plan submitted by Erpenbeck Commercial

Enterprises, Inc., it was not designed in a way that was

acceptable to our company. I informed Ray Erpenbeck,

prior to its submittal, that we wanted the structure to be

located along the rear property boundary line of the

approximate 43 acres that was the subject of the con-

tract. I informed Ray Erpenbeck that unless the struc-

ture was so located, we would not close or purchase the

property. The importance to us is to have the structure

located along the back boundary for this site so that we

would have sufficient space to align parking and internal

traffic flow in the way and manner our company prefers.

For all of these reasons, I informed Ray Erpenbeck

that the concept development plan as submitted to the

Boone County authorities was not acceptable to our

company. Even if that development plan had been

approved all the way through the Boone County Fiscal

Court, our company would not have purchased or devel-

oped the property for a Biggs store.

In mid-February, I wrote a letter to Gerald Newton,

Director of the Boone County Planning Commission, to

schedule a meeting. In that letter I informed Mr. Newton

that our company had terminated its contract on the

Kentucky 18 property involving the Erpenbeck Commer-

cial Enterprises proposal. My purpose in wanting to meet

with Mr. Newton, as I expressed in that letter, was to dis-

cuss other locations or sites in Boone County that my

company felt were more appropriate for Biggs. A meet-

ing was scheduled for March 8, 1990, but that meeting

never occurred because of the lawsuit filed by Erpen-

beck Commercial Services and Enterprise VI.

After our company terminated its contract with

Erpenbeck Commercial Enterprises, we received num-

64a

erous proposals regarding other locations. However,

none of these proposals came from the Boone County

Planning Commission, its staff or its members. These

proposals were either from property owners, real estate

developers or real estate brokers from all over South-

ern Ohio and Kentucky. Some of these proposals came -

from Lexington and Louisville, Kentucky. Among the

proposals sent to us was a proposal from Carroll Prop-

erties, Inc.

After meeting with Carroll Properties, Inc., and review-

ing a potential site, our company entered into a contract,

with several conditions, with Carroll Properties, Inc. It

was only after our company decided on the Carroll

Properties location that we ever met with Jerry Newton

of the Boone County Planning Commission. Mr. Newton

never expressed any opinion as to whether or not our

project could be approved at the Carroll Properties site.

He merely informed us of the procedures and what may

be important factors to any review and approval for the

location. Again, our company never met with Jerry New-

ton or the Boone County Planning Commission, its staff

or members, regarding selection of any site until after

we had already focused and decided on the Carroll Prop-

erties location.

The significance of the Carroll Properties location to

our company was its accessibility to an interstate system.

As with the Kentucky 18 site, our company anticipates

that the vast majority of our regional retail customers will

come from the north. We also wanted our site to have

access to the west. A major consideration with the Car-

roll Properties contract is that we have no obligation to

close or purchase until the Houston Road extension to

Donaldson Highway is completed and open to the public.

Another major consideration is the improvement to the

65a

interstate highway I-75 and Donaldson Road interchange.

Without this accessibility to the northerly and westerly

regional retail customers, our company would not have

been interested in the Carroll Properties location for a

Biggs store.

Among the proposals our company received after

terminating our contract with Erpenbeck Commercial

Enterprises was a contact from the owner and developer

of property located along Houston Road, south of its

intersection with Turfway Road. That developer is

Buchanan Development Corporation and the property

is owned by N.K. Management, Inc. That property was

not acceptable to our company for a Biggs store because

ol its limited accessibility to regional customers from the

north. These customers would be using interstate high-

way I-75 and the ability of those customers from the

north to access I-75 back to the north upon leaving that

site is very restricted at the Turfway Road interchange

with interstate highway I-75 and was not acceptable to

us. Likewise, the interchange of I-75 and Kentucky 18 —

for the northbound traffic was viewed by our company

as unacceptable and it is these two interchanges that

would have to serve either the Buchanan location or the

site of the Erpenbeck Commercial Services Project on

Kentucky 18 west of Zig Zag Road.

CONCLUSION

To conclude, even if the Erpenbeck Commercial Ser-

vices concept development plan as presented to the

Boone County Planning Commission had been approved

through the Boone County Fiscal Court, our company

would not have purchased the property. The condi-

tions in our contract with Erpenbeck Commercial Enter-

66a

prises were not and would not have been met to our

satisfaction in a timely manner.

Dated this 17th day of February, 1991.

/s/ MIke Phillips

Mike Phillips

State of Ohio

County of Clermont

This Affidavit was subscribed, sworn to and acknowl-

edged before me this 18th day of February, 1991, by

Mike Phillips.

/s/Betty K. Carter

NOTARY PUBLIC, State of Ohio

Betty K. Carter

My Commission Expires:

March 30, 1995

67a

APPENDIX H

[Entered 12-30-92]

PAT GUTZEIT, CLERK

BOONE CIRCUIT/DISTRICT COURTS

BY /s/ D.C.

BOONE CIRCUIT COURT

CONSOLIDATED CIVIL ACTION

NOS. 90-CI-174 and 90-CI-175

ENTERPRISE VI, ET AL APPELLANTS/PLAINTIFFS

VS.

BOONE COUNTY APPELLEES/DEFENDANTS

FISCAL COURT, ET AL

AND

ERPENBECK COM- APPELLANTS/PLAINTIFFS

MERCIAL ENTERPRISES, INC., ET AL

VS.

BOONE COUNTY FISCAL APPELLEES/DEFENDANTS

COURT, ET AL

ORDER OVERRULING MOTION

TO ALTER, AMEND AND VACATE

* KK KK KK K KK

Plaintiff, Erpenbeck Commercial Enterprises, Inc.,

having moved to alter, amend and vacate this Court’s

Opinion and Order entered on November 20, 1992, this

Motion being heard on December 22, 1992, with said

Plaintiff’s counsel present (Alex Talbott) and the Court

being otherwise sufficiently advised;

68a

IT IS HEREBY ORDERED AND ADJUDGED that

said Plaintiff's Motion to Alter, Amend and Vacate is

overruled.

IT IS FURTHER HEREBY ORDERED AND

ADJUDGED that Plaintiff’s Motion to file as part of the

record the proposed Opinion and Order tendered by

Defendants is overruled. For explanation, the Court

states as follows:

The Opinion and Order entered on November 20,

1992, granted Defendants Summary Judgment. The

Court prior to rendering that Opinion and Order

requested all parties to tender proposed Opinions and

Orders for the Court’s review. These proposed Opinions

and Orders assisted the Court to focus on the issues con-

tained within pending motions. The Court also had

before it over 250 pages of memoranda supporting these

pending motions and lengthy oral argument with repre-

sentation by all parties had occurred.

None of the Plaintiffs filed objections or opposed this

procedure, and at the hearing on this Motion to Vacate,

Mr. Talbott confirmed that he had no objection then, nor

opposition now to that procedure. Counsel for Enter-

prise VI did not tender an Opinion and Order, and has

not filed any Motion to Vacate in this case. Moreover,

counsel for Enterprise VI filed no objections or oppo-

sition to submittal of proposed Opinions and Orders.

The Opinion and Order granting Defendants Summary

Judgment is not a blind entry or verbatim acceptance of

Defendants’ tendered Opinion and Order. This Court,

after becoming very familiar with the pending motions

and supporting memoranda submitted by all parties and

hearing the lengthy oral argument, rendered the Opinion

and Order as its decision on November 20, 1992. This

PP)

ade

a al iit a i lt i ee ee DE

or me

69a

Opinion and Order as entered contains several additions

made by this Court and is this Court’s independent deci-

sion.

IT IS FURTHER HEREBY ORDERED AND

ADJUDGED, that, while inappropriate for Plaintiffs’

counsel to attach a copy of its tendered Opinion and

Order to its Motion, making it improperly part of this

record, this Court does not direct that it be expunged.

/s/ [Illegible ]

JUDGE, BOONE CIRCUIT COURT

Copies to:

Alex F. Talbott

2100 First National Tower

101 South Fifth Street

Louisville, Kentucky 40202

Paul J. Vesper

1005 Madison Avenue

Covington, Keniucky 41011

Larry J. Crigler

6024 Rogers Lane

P.O. Box 169

Burlington, Kentucky 41005

David A. Schneider

505 Turfway Ridge Office Park

7300 Turfway Road

Florence, Kentucky, 41042

Dale T. Wilson

7699 Tanners Lane

P.O. Box 756

Florence, Kentucky 41042

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.