Attorneys for King Southern Bank, DF Investments and Metro Louisville Board of Zoning Adjustment have met the court-designated deadline of December 16 for the filing of their Reply brief in response to our November-filed papers. This back-and-forth represents a time-table that was established in September of this year. We, the Appellants in the case, will be digesting and considering this December document throughout the holiday period and may, at a later date and if it be prudent to do so, post here at <OldLouisvilleZoning.blogspot.com> a summary of the opposition's argument.
Visit again.
Wednesday, December 21, 2011
Thursday, November 17, 2011
We're still at it: November deadline met for Appellants' Brief.
The case of 224 E. Oak St. 40203 and its non-conforming use.
Our legal team, the Pike Legal Group, completed and timely filed
the Appellants' Brief on Wednesday, Nov. 16, 2011.
Our opponents Response to our Brief must be filed by December 16, 2011.
We expect our opponents to argue for a permissive approach which makes it very difficult to determine a nonconforming use has been abandoned. Such a permissive approach could prevent the subject property from reverting to the lower density occupancy standards of the Traditional Neighborhood Zoning District ("TNZD"). The approach the Board of Zoning Adjustment is required to use to determine abandonment could have implications for many properties throughout Old Louisville.
Our opponents Response to our Brief must be filed by December 16, 2011.
We expect our opponents to argue for a permissive approach which makes it very difficult to determine a nonconforming use has been abandoned. Such a permissive approach could prevent the subject property from reverting to the lower density occupancy standards of the Traditional Neighborhood Zoning District ("TNZD"). The approach the Board of Zoning Adjustment is required to use to determine abandonment could have implications for many properties throughout Old Louisville.
Our legal team will need to file a Reply Brief to our opponents' Response Brief by January 3, 2012. These filings are a matter of public record. The Judge will then decide whether to have oral argument prior to issuing a ruling on the merits of the case.
As soon as more specific information is appropriate for publication
it will appear on this blog site. Visit again soon, and please consider a donation to our legal defense fund. Our effort is impossible without your support.
Tuesday, October 4, 2011
Please consider a contribution to the legal costs of our case. Your help is needed.
We really, REALLY, need your help. We are paying the costs of litigation;
it is not free. Many citizens have stepped up to help us with the expense of pursuing this case in court but the case continues, and will so into the new year, and so our costs mount. We depend on your help.
Please consider a contribution to the legal defense of our case.
Donations in any amount should be sent to
Victorian Louisville, Inc.
119 West Ormsby Ave.
Louisville, KY 40203
Please note on the check "Legal Defense Fund."
Victorian Louisville is a 501 (c) 3 corporation. Check with your tax advisor to verify tax deductibility for your individual situation.
This case is being filed on behalf of Old Louisville, and yes to help other historic neighborhoods as well. The Appellants have taken a leap of faith that you will educate yourself on the seriousness of this case, and that you will be concerned enough to help.
it is not free. Many citizens have stepped up to help us with the expense of pursuing this case in court but the case continues, and will so into the new year, and so our costs mount. We depend on your help.
Please consider a contribution to the legal defense of our case.
Donations in any amount should be sent to
Victorian Louisville, Inc.
119 West Ormsby Ave.
Louisville, KY 40203
Please note on the check "Legal Defense Fund."
Victorian Louisville is a 501 (c) 3 corporation. Check with your tax advisor to verify tax deductibility for your individual situation.
This case is being filed on behalf of Old Louisville, and yes to help other historic neighborhoods as well. The Appellants have taken a leap of faith that you will educate yourself on the seriousness of this case, and that you will be concerned enough to help.
Judge Maze returns his opinion on preliminary motions in the case Leah Stewart et al.
Judge Irvin Maze returned his Order on Monday, September 19, 2011 in the case of
Leah Stewart, et al. v Metro Board of Zoning Adjustment, et al. As the oral arguments had been taken in his court only 5 days earlier, Judge Maze has moved with remarkable speed to deliver his opinion.
Defendants DF Investment and King Southern Bank had propounded very broad written discovery with the goal, we believe, of wearing us down, the appellants, in costs and delay. Judge Maze's Order limits written discovery to a few narrow inquiries to appellant Steve Zocklein only and, then, only over a two month period - December 7 2010 to February 7, 2011. No other discovery of any kind is allowed without further order of the Court. The Order also provides a series of deadlines for answering the discovery and sets dates for the Metro Board of Zoning Adjustment [BOZA] to file its Administrative Record on the case and for further legal Briefs by all parties.
With this Order the right of discovery sought by the defendants is framed
as narrowly as possible, stopping only just short of a strict prohibition. The appellants have persuaded the court that it has jurisdiction. It must be added that the BOZA has not joined in the motions and tactics of the other defendants DF Investment Group and King Southern Bank choosing instead a role as silent participant.
Leah Stewart, et al. v Metro Board of Zoning Adjustment, et al. As the oral arguments had been taken in his court only 5 days earlier, Judge Maze has moved with remarkable speed to deliver his opinion.
Defendants DF Investment and King Southern Bank had propounded very broad written discovery with the goal, we believe, of wearing us down, the appellants, in costs and delay. Judge Maze's Order limits written discovery to a few narrow inquiries to appellant Steve Zocklein only and, then, only over a two month period - December 7 2010 to February 7, 2011. No other discovery of any kind is allowed without further order of the Court. The Order also provides a series of deadlines for answering the discovery and sets dates for the Metro Board of Zoning Adjustment [BOZA] to file its Administrative Record on the case and for further legal Briefs by all parties.
With this Order the right of discovery sought by the defendants is framed
as narrowly as possible, stopping only just short of a strict prohibition. The appellants have persuaded the court that it has jurisdiction. It must be added that the BOZA has not joined in the motions and tactics of the other defendants DF Investment Group and King Southern Bank choosing instead a role as silent participant.
Wednesday, September 14, 2011
Case of 224 E. Oak Street: Leah Stewart, et al. v BOZA, et al.
Today, Sept. 14, 2011 Jefferson County Circuit Court Judge Irv Maze took oral arguments from attending attorneys - Keith Brown for appellants Leah Stewart, Steve Zocklein, Christopher White; Clifford Ashburner for appellees King Southern Bank and DF Investment Group; Jonathan Baker for appellee Louisville Metro Board of Zoning Adjustment (BOZA -on a motion from appellants for the filing of the (BOZA) administrative record of the case, on setting a briefing schedule, and to quash discovery in a KRS 100.347 statutory appeal. Attending in the peanut gallery for the hearing were Christopher White and Leah Stewart, and John King, a vice-president of King Southern Bank and brother of bank president Jim King.
In his introductory comments Judge Maze set the tone with relaxed welcoming remarks to the assembled counsel adding that he had read all of the filed memoranda from both sides, understood the content of the filings and was familiar with the case law being cited in the filings. Because the motion had been filed by the appellants Judge Maze agreed as a matter of procedure to let Brown begin and, also, granted him opportunity for rebuttal. After hearing arguments from both sides on the issue of quashing discovery the judge stated that he would not make a decision from the bench today but would do so in a week's time and he added, directing his next comment to Ashburner, that he was not inclined toward the overly-broad interrogatories and extensive discovery sought by the counsel for the appellees and if he allowed any discovery it would be very narrow in time frame and limited to knowledge -a term left undefined in ambit at this point. Judge Maze made a gesture with one hand communicating "a pinch" of something to illustrate the meaning of his words. Maze also asked of counsel Baker that the administrative record of BOZA be filed. The assembled counsel agreed that as soon as the judge delivered his opinion on the discovery issue they would meet and set the briefing schedule. Watch for an update next week.
In his introductory comments Judge Maze set the tone with relaxed welcoming remarks to the assembled counsel adding that he had read all of the filed memoranda from both sides, understood the content of the filings and was familiar with the case law being cited in the filings. Because the motion had been filed by the appellants Judge Maze agreed as a matter of procedure to let Brown begin and, also, granted him opportunity for rebuttal. After hearing arguments from both sides on the issue of quashing discovery the judge stated that he would not make a decision from the bench today but would do so in a week's time and he added, directing his next comment to Ashburner, that he was not inclined toward the overly-broad interrogatories and extensive discovery sought by the counsel for the appellees and if he allowed any discovery it would be very narrow in time frame and limited to knowledge -a term left undefined in ambit at this point. Judge Maze made a gesture with one hand communicating "a pinch" of something to illustrate the meaning of his words. Maze also asked of counsel Baker that the administrative record of BOZA be filed. The assembled counsel agreed that as soon as the judge delivered his opinion on the discovery issue they would meet and set the briefing schedule. Watch for an update next week.
Tuesday, August 30, 2011
Day in court nears.
The case of 224 E. Oak in Louisville KY: Leah Stewart, et al.
v Louisville Metro BOZA, et al.
On Sept. 14, at 9:45 a.m. Judge Irv Maze will give the lawyers
on the case their first extended opportunity to make oral arguments f
or their contending positions on a two issues:
1) does the court have jurisdiction in this case?
2) will the appeal stand "on the record" (the administrative record
of the Board of Zoning Adjustment hearing that triggered the appeal)
and so disallow any new discovery or "trial de novo"
Representing the appellants (plaintiffs) Stewart, Zocklein and White
will be Keith Brown of Pike Legal Group holding forth that the court
does have jurisdiction and that the opponents request for discovery should be
quashed. Representing the appellees (defendants) for King Southern Bank
and DF Investments will be Cliff Ashburner of Wyatt, Tarrant & Combs.
Judge Maze's courtroom is on the 9th floor of the Judicial Center
at 7th and Jefferson Sts. Louisville
v Louisville Metro BOZA, et al.
On Sept. 14, at 9:45 a.m. Judge Irv Maze will give the lawyers
on the case their first extended opportunity to make oral arguments f
or their contending positions on a two issues:
1) does the court have jurisdiction in this case?
2) will the appeal stand "on the record" (the administrative record
of the Board of Zoning Adjustment hearing that triggered the appeal)
and so disallow any new discovery or "trial de novo"
Representing the appellants (plaintiffs) Stewart, Zocklein and White
will be Keith Brown of Pike Legal Group holding forth that the court
does have jurisdiction and that the opponents request for discovery should be
quashed. Representing the appellees (defendants) for King Southern Bank
and DF Investments will be Cliff Ashburner of Wyatt, Tarrant & Combs.
Judge Maze's courtroom is on the 9th floor of the Judicial Center
at 7th and Jefferson Sts. Louisville
Wednesday, May 18, 2011
Today's the day
Today, an Appeal of the 224 East Oak case will be filed in Circuit Court.
This appeal is being filed by individual citizens on behalf of the Old Louisville neighborhood. We have retained David Pike of the Pike Legal firm for representation. Although this group of concerned neighbors is adept at research and presented this complicated case to BOZA, we know our limits. We're not attorneys and don't know the first thing about court filings.
Mr. Pike is a recognized expert in zoning law. He is a prolific writer and teacher in addition to being a busy, practicing attorney. Having "shopped" our Appeal to three local attorneys, Mr. Pike was the most enthusiastic and has envisioned a different strategy for the Appeal than we'd heard from the other attorneys. Additionally, he also offered a favorable non-profit rate.
And now we really need your help. We have pledges to cover some of the costs of litigation, but not all at this point. We were fortunate to raise enough very quickly to cover the retainer needed to get the case rolling.
Donations in any amount should be sent to
Victorian Louisville, Inc.
119 West Ormsby Ave.
Louisville, KY 40203
Please note on the check "Legal Defense Fund."
Victorian Louisville is a 501 (c) 3 corporation. Check with your tax advisor to verify tax deductibility for your individual situation.
This case is being filed on behalf of Old Louisville, and yes to help other historic neighborhoods as well. The Appellants have taken a leap of faith that you will educate yourself on the seriousness of this case, and that you will be concerned enough to help.
Please don't assume that someone else will "take care of it." We need you.
This appeal is being filed by individual citizens on behalf of the Old Louisville neighborhood. We have retained David Pike of the Pike Legal firm for representation. Although this group of concerned neighbors is adept at research and presented this complicated case to BOZA, we know our limits. We're not attorneys and don't know the first thing about court filings.
Mr. Pike is a recognized expert in zoning law. He is a prolific writer and teacher in addition to being a busy, practicing attorney. Having "shopped" our Appeal to three local attorneys, Mr. Pike was the most enthusiastic and has envisioned a different strategy for the Appeal than we'd heard from the other attorneys. Additionally, he also offered a favorable non-profit rate.
And now we really need your help. We have pledges to cover some of the costs of litigation, but not all at this point. We were fortunate to raise enough very quickly to cover the retainer needed to get the case rolling.
Donations in any amount should be sent to
Victorian Louisville, Inc.
119 West Ormsby Ave.
Louisville, KY 40203
Please note on the check "Legal Defense Fund."
Victorian Louisville is a 501 (c) 3 corporation. Check with your tax advisor to verify tax deductibility for your individual situation.
This case is being filed on behalf of Old Louisville, and yes to help other historic neighborhoods as well. The Appellants have taken a leap of faith that you will educate yourself on the seriousness of this case, and that you will be concerned enough to help.
Please don't assume that someone else will "take care of it." We need you.
Sunday, May 15, 2011
Why this case matters
(It will be helpful to read the first Post. It's the one from April. Look over to the right in the Blog Archive.)
Maybe you think zoning is sort of complicated stuff. Maybe you think it doesn't really matter since this property isn't on your street. Maybe you think, well the property got fixed up in the end, so it's all good now, right?
Yes, a little. Yes, it does. No, not at all.
Yes zoning can be complicated and it's based on laws and ordinances. But we're not here right now to talk about the big world of zoning. We're here to talk about why this case at 224 East Oak should be important - very important - to you if you live in Old Louisville. Or, frankly if you live in any other historic neighborhood.
This case revolved around a prior use that was once lawful, but that would not be allowed today. That's the heart of nonconforming use. Zoning code (not just in Louisville, but everywhere) holds that nonconforming uses should eventually go away and properties will at some point conform to the zoning in effect currently. When nonconforming uses go away, properties and communities become what is planned or desired for an area. It's a simple concept, really. Some uses used to be considered OK, now they're not. No one should have their property's use altered against their will - IF they follow the rules. This is another case of "use it or lose it."
For a nonconforming use to continue, the use has to be continuous through the years. (That's the "use it or lose it" part.)
In the 224 East Oak case the Board of Zoning Adjustment (BOZA) through their discussions, agreed that the non-conforming use had been abandoned for a period of time (in excess of a year.) Then BOZA ruled that because the previous owner hadn't physically changed any of the interior structure, the use could continue/be reinstated. We've been searching case law, reading statutes and code and can't find that rule anywhere. And three different attorneys tell us that is absolutely not what the law says.
Following along that path of reasoning, nonconforming uses would never go away. Anyone could come along at any future date and reinstate a previous use in a property, as long as there hadn't been any physical changes to the interior.
Here's the part about why you should care.
There's a building on my street that hasn't changed it's appearance in 15 years. The signs in the windows haven't changed except for becoming more faded. I haven't been inside, but I'll bet no one has moved any walls around. It obviously used to be a bar. So, following the reasoning of BOZA, a new owner could come in and reinstitute the bar. Never mind that the property appears to have been vacant for at least 15 years. Never mind that a bar use is not allowed on my street.
Are there any buildings like that on your street? Old, somewhat neglected, used to be something else, and probably hasn't had the interior altered? Maybe it wasn't a bar, but just a house cut up into a 10 plex.
This BOZA decision effectively nullifies our zoning. That's why you should care.
And that's why your neighbors are appealing the 224 East Oak case to Circuit Court. It's to protect us all.
Maybe you think zoning is sort of complicated stuff. Maybe you think it doesn't really matter since this property isn't on your street. Maybe you think, well the property got fixed up in the end, so it's all good now, right?
Yes, a little. Yes, it does. No, not at all.
Yes zoning can be complicated and it's based on laws and ordinances. But we're not here right now to talk about the big world of zoning. We're here to talk about why this case at 224 East Oak should be important - very important - to you if you live in Old Louisville. Or, frankly if you live in any other historic neighborhood.
This case revolved around a prior use that was once lawful, but that would not be allowed today. That's the heart of nonconforming use. Zoning code (not just in Louisville, but everywhere) holds that nonconforming uses should eventually go away and properties will at some point conform to the zoning in effect currently. When nonconforming uses go away, properties and communities become what is planned or desired for an area. It's a simple concept, really. Some uses used to be considered OK, now they're not. No one should have their property's use altered against their will - IF they follow the rules. This is another case of "use it or lose it."
For a nonconforming use to continue, the use has to be continuous through the years. (That's the "use it or lose it" part.)
In the 224 East Oak case the Board of Zoning Adjustment (BOZA) through their discussions, agreed that the non-conforming use had been abandoned for a period of time (in excess of a year.) Then BOZA ruled that because the previous owner hadn't physically changed any of the interior structure, the use could continue/be reinstated. We've been searching case law, reading statutes and code and can't find that rule anywhere. And three different attorneys tell us that is absolutely not what the law says.
Following along that path of reasoning, nonconforming uses would never go away. Anyone could come along at any future date and reinstate a previous use in a property, as long as there hadn't been any physical changes to the interior.
Here's the part about why you should care.
There's a building on my street that hasn't changed it's appearance in 15 years. The signs in the windows haven't changed except for becoming more faded. I haven't been inside, but I'll bet no one has moved any walls around. It obviously used to be a bar. So, following the reasoning of BOZA, a new owner could come in and reinstitute the bar. Never mind that the property appears to have been vacant for at least 15 years. Never mind that a bar use is not allowed on my street.
Are there any buildings like that on your street? Old, somewhat neglected, used to be something else, and probably hasn't had the interior altered? Maybe it wasn't a bar, but just a house cut up into a 10 plex.
This BOZA decision effectively nullifies our zoning. That's why you should care.
And that's why your neighbors are appealing the 224 East Oak case to Circuit Court. It's to protect us all.
Sunday, April 24, 2011
224 East Oak - Review of BOZA Case
A team from ZALU recently appealed a case before the Louisville Board of Zoning Adjustment (BOZA) concerning nonconforming use of a five plex at 224 East Oak. Those in the Ft. George
What are nonconforming rights? Simply put, what was once permitted, but is not currently permitted due to a change in zoning, can remain until that use is abandoned. Previously the zoning for this property was R7 which would permit an owner to change a single family home into apartments as had been done with 224 East Oak. After the change in zoning to Traditional Neighborhood Zoning District (TNZD) that was no longer permitted. Until abandoned, the apartments remained a nonconforming use, and legal. The use can not be enlarged in area or scope. The long-term vision of nonconforming use is that it will eventually go away and the underlying zoning will prevail.
There are two standards for the evidence offered during a nonconforming appeal. The key in a nonconforming use case turns on abandonment and the intent to abandon the use. The Appellant, in this case Steve Zocklein, a neighbor, supported by ZALU had to present “… any substantial evidence sufficient to show that the nonconforming use has been discontinued for a period of one year or more.” (Land Development Code, 1.3.1.F) to establish the presumption of abandonment. This evidence included the following.
- From Codes and Regulations (C&R) records: a designation as “Vacant” for 17 months
- Placement on Louisville Metro’s Abandoned Urban Property list for 2005
- 12 notarized affidavits from neighbors attesting to the vacancy
The Appellant is also tasked with showing evidence of the intent to abandon. Evidence presented included:
- 39 failed property inspections by C&R between 2003 and 2010
- 15 court dates for violations of the Property Maintenance Code
- 5 fines imposed for those violations and 5 liens filed for those violations
- A guilty plea to all violations of the Property Maintenance Code
All of the above represents in our view, an intent to abandon by literally walking away from the property. It was later surrendered to the financer.
- A work order from the Department of Solid Waste Management to remove the garbage carts due to the house being vacant. Garbage pickup did not resume for 33 months.
- The Louisville Water Company confirmed that service was shut off at least from March 31, 2008 through May 1, 2009.
- LG&E confirmed no service to three meters and only enough power running through the other two meters that would be typical to maintain the meters, but not provide service to a tenant during a 17 month period.
- An Electrical Permit to restore service with a notation on the Permit of “Power has been off for over a year.”
At this point the burden of proof shifts to the property owner to rebut the presumption of an intent to abandon by “ . . . clear and convincing evidence . . .” (LDC 1.3.1.F)
The evidence presented and accepted by BOZA as “clear and convincing evidence” was a statement by the previous owner that he had fallen on hard economic circumstances and hadn’t been able to keep the property up as he should have, but he always intended to maintain the property as a five plex.
There was no explanation how a tenant could have lived in a property without water, electricity or garbage service. There was a statement that the property was difficult to rent because it wasn’t in good shape.
The hearing spanned two dates due to a continuance and lasted for a total of six hours. ZALU presented a 75 page document full of supporting materials detailing our position. That document was the result of months of research, interviews, poring over case files, filing Open Records Requests, meetings to discuss strategy and to plan the presentation and attending the hearings. ZALU owes a huge debt of gratitude to all the neighbors who worked on this case, and in particular to Christopher White for outstanding research, to Joseph Impellizzeri for assisting with a particularly difficult Open Records Request, and of course to Steve Zocklein for filing the Appeal and paying the fee to do so.
There were two truly disturbing statements during BOZA’s discussion of the case.
- If this property had been on the neighborhood’s “watch list” for so long, they should have just purchased the property and fixed it up.
Seriously?
2. Did Metro issue an opinion that this property was a five plex?
Well, yes, because the case you’ve been hearing for six hours is “An Appeal of a Staff Determination by Codes & Regulations that 224 East Oak has maintained nonconforming use as a five plex.”
Oh and yes, we lost the case.
***********************
Update: On April 25, ZALU called a special meeting to discuss a possible Appeal to Circuit Court of the above decision. The vote was unanimous to proceed with an Appeal and to ask the Old Louisville Neighborhood Council (OLNC) to be a party to such an Appeal.
On April 26, ZALU presented a motion to OLNC to join the Appeal (without a monetary commitment) and this motion was passed.
ZALU representatives are now talking with attorneys regarding the viability of an Appeal.
***********************
Update: On April 25, ZALU called a special meeting to discuss a possible Appeal to Circuit Court of the above decision. The vote was unanimous to proceed with an Appeal and to ask the Old Louisville Neighborhood Council (OLNC) to be a party to such an Appeal.
On April 26, ZALU presented a motion to OLNC to join the Appeal (without a monetary commitment) and this motion was passed.
ZALU representatives are now talking with attorneys regarding the viability of an Appeal.
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