Witt: Kudos to Mayfield, Alvarado for saying ‘no’ to HB 72

Published 10:45 am Tuesday, March 28, 2017

Clark County, and indeed all of Kentucky’s counties, owe a debt of gratitude to both state Rep. Donna Mayfield and state Sen. Ralph Alvarado.

Both cast ballots in their respective chambers against House Bill 72, a truly heinous bill introduced by Jerry Miller, republican from Louisville, and Robert Benvenuti, republican from Lexington.

The Kentucky Resources Council and numerous constitutional lawyers voiced opposition to this bill, for the chilling effect it would have on citizens opposing zone changes, and for its questionable constitutionality.

The KRC labeled the bill a “Developers Dream and a Neighbor Nightmare.”

The bill, and numerous amendments, if passed, would have imposed intolerable — and virtually impossible — conditions on individuals or groups who seek recompense through the courts against zoning approvals.

Part of its articles would have required these individuals or groups to post bonds simply for the appeal, up to a potential $100,000, a sum that would be impossible for nearly every small neighborhood group or association.

Under one added provision to the bill, on filing a Notice to Appeal, the person or business whose zoning approval was being challenged, could request the Circuit Court to determine if the appeal was “presumptively frivolous.”

If the Circuit Court deemed the appeal “presumptively frivolous,” it could impose a bond up to $250,000. Even if the Circuit Court found the appeal to be non-frivolous, a mandatory bond would still have to be posted as a condition of appeal, up to the $100,000.

To top off this ludicrous piece of legislation, the term in the bill — “presumptively frivolous” — is purely subjective, which should not be a part of any law.

There is no doubt this bill was the sweetheart of the development industry in Kentucky, aimed at curtailing all legitimate recourse to the court system and it was a solution in search of a problem since the courts already have authority to impose conditions and damages against appeals determined to have been brought in bad faith.

The Kentucky Resources Council did an admirable job in critiquing the implications of this bill and pointing out that it violates sections of the Kentucky Constitution, Civil Rules and Kentucky Revised Statutes and seeks to remove responsibility that has been specifically vested in the court system of Kentucky and, most notably, the Kentucky Supreme Court, which has exclusive jurisdiction over procedures for appellate review.

A good deal of recognition should go as well to the Southwest Clark Neighborhood Association of Clark County, which was active in contacting legislators about this bill and educating them about its demonstrably harmful implications.

It is possible that this bill will rear its ugly head again in future sessions of the Kentucky Legislature.

Hopefully, the KRC and affected citizens groups will continue to monitor to assure any future appearances are revealed.

Maybe it would be incumbent to discover who representatives Miller and Benvenuti really represent since it seems apparent they have no regard for the rule of law, access to legal representation or the rights of individuals and groups to seek help through legal means which are already codified.