Oral arguments are planned for 9 a.m. Friday in Anderson Circuit Court in a lawsuit pitting dozens of people who own property near a motorsports complex and the public agency that granted its developer a conditional use permit to build it.
Nearly 60 people who own property near the motorsports complex, which is under construction on U.S. 127 just south of the Bluegrass Parkway, sued the Board of Zoning Adjustments just hours after its members granted a conditional use permit to developer Eddie Carey.
The lawsuit claims the board doesn’t the power or authority to issue a conditional use permit to operate a motorsports venue, and that it violated the Kentucky Open Meetings Act.
It also claims the board failed to adopt “findings and conclusions of law,” and failed to make a record for review “by this court.”
Board members named in the lawsuit include Chairman Jim Doss, Gary McInturf, Doug Dadisman, Donald Lewis and Jerry Gritton.
The suit asks for reasonable attorney fees and “all further relief to which they may be entitled.”
It also calls the decision “arbitrary and capricious and a violation of Section 2 of the Kentucky Constitution.”
“The appellants are all injured and aggrieved by the action the board of adjustment in issuing a conditional permit … to operate a dirt track and motorsports arena in that the noise, dust and odors from those activities will negatively affect their peaceful enjoyment of their properties.”
Shortly after the lawsuit was filed, Carey filed a counterclaim, asking the judge to have suit filed against the board dismissed, along with having its decision to grant the permit declared “final action.”
The board twice approved a conditional use permit to allow Carey to build a motorsports complex on U.S. 127, once in last May and again in June. The second meeting saw the board rescind its decision to approve the facility in May after it apparently violated portions of the Open Meetings Act.
In is crossclaim, Carey asks that both approvals be upheld and made final and challenges some of the restrictions put in place each time.
In the count one of the crossclaim, Carey contends a condition on being granted the permit was that it be revisited by the board in six months.
“Defendant BOZA is without jurisdiction or power to modify or revoke the [permit] except as is in accordance with KRS. 100.237, and such a condition is void,” the crossclaim reads.
The claim also challenges a condition placed in the May meeting that Carey comply with city, state and OSHA regulations.
“While defendant Carey acknowledges a duty to comply, BOZA is without jurisdiction to enforce such laws,” the crossclaim reads.
In count two, Carey contends there was no violation of the Open Meetings Act in May and asks that any decisions rendered by the board after that date be void.
In count three, Carey says if the court determines the May meeting was not final action, that the meeting in June be declared final and the suit filed by dozens of homeowners against BOZA be dismissed.
The crossclaim also asks for Carey to be reimbursed for his legal fees and awarded “all further relief to which he appears otherwise entitled.”
During several contentious hearings last year, nearby property owners cited concerns over noise and dust they say will be generated by the motorsports facility, which will be used to host pulling events and dirt track races, among other activities.
Lead plaintiffs Chris and Melissa Hanks, owners of a wedding and reception facility next door to the complex, said if it’s approved, it will ruin their business.
During a hearing last April attorneys representing the Hanks and Carey offered widely differing interpretations of the zoning ordinances in question, which appears to the main sticking point for the board.
Here’s the rub: The property Carey purchased is zoned light industrial. The rules for that classification specifically say “such establishments should be clean, quiet and free from hazardous or objectionable levels of noise, odor, dust, smoke or glare,” all of which go hat-in-hand will motorsports events.
However, that same ordinance, under the conditional uses heading, says allowed uses are for “all permitted or conditional uses in any business zone.”
The conditional use allowances for the ordinance governing business districts include a carve-out for “places of amusement and entertainment,” which Carey’s attorney, David Nutgrass, argued would include the proposed venue. He has also argued the board has already approved a truck and tractor pull venue for Carey last year as a conditional use in a business zone.
The attorney for the Hanks said that’s not the case and that the board doesn’t have the legal authority to grant Carey’s request.
“This request is not within your legal authority,” said Frankfort-based attorney Bill Moore, adding there is not specific conditional use anywhere in the ordinance that allows a motorsports venue.
“There’s nothing even close to that,” he said, adding there’s a reason for that.
“Why isn’t it included in the zoning ordinance? Because it’s a nuisance. If the fiscal court [which approves zoning ordinances] had wanted [it] in there, it would be in there.”
Nutgrass then chimed in, saying the ordinance also doesn’t include wedding venues as a conditional use for light industrial, but the board granted one for the Hanks.
Moore then echoed comments made a week earlier when, during a fiscal court meeting, Chris Hanks called other properties owned by Carey “eyesores.”
“What will happen to this property,” Moore said. “We can see that on property he already has.”