A zoning bill is headed for revisions after members of a state Senate committee questioned whether it would hold up in court.
The bill’s intent is to cut down on frivolous lawsuits that postpone or kill development projects, according to Ky. Rep. Jerry Miller (R) of Louisville, who filed the bill. Miller has repeatedly cited the legal battle regarding the West Louisville Walmart as a prime example of a frivolous lawsuit.
The bill passed the Kentucky House of Representatives with a vote of 63-32 on Feb. 14. When it went before the Senate Standing Committee on State and Local Government on Wednesday, committee members praised the thought behind the bill but questioned whether the existing language ran afoul of the state constitution.
“We will find more lawsuits over this issue than what we will accomplish today,” said Sen. Dorsey Ridley, a Democrat and developer from western Kentucky.
According to the current language of the bill, if someone files a lawsuit in Circuit Court opposing a zoning decision and loses the case, then he or she wouldn’t be able to appeal the case to the Kentucky Court of Appeals without posting an appeal bond. A Circuit Court judge could set the bond as high as $100,000 for a lawsuit with merit or as high as $250,000 if the judge deems the case “presumptively frivolous,” according to the bill.
During the Senate committee hearing, Nick Pregliasco, a land use lawyer with Bardenwerper, Talbott & Roberts in Louisville, stated that a Circuit Court judge could set an appeal bond at $0. Also, whoever appeals the case — be it a developer or a private citizen — would be required to secure the appeal bond, he added.
“It applies both ways. It is simply at the Circuit Court level, whoever loses,” Pregliasco said.
However, attorney Tom Fitzgerald, who’s argued against the bill, said he fears it would be used to keep people who could not afford to post $100,000 bonds from appealing their meritorious cases to the Court of Appeals. Fitzgerald noted that the state constitution gives citizens the right to appeal a court case.
Democratic Ky. Sen. Morgan McGarvey questioned whether the existing wording allowed a Circuit Court judge enough leeway to rule that an appeal bond isn’t necessary in some cases.
“I applaud the intent of the bill. I think we have had projects that were litigated out of existence and needlessly so,” said McGarvey, who represents part of Jefferson County. But “we don’t have the luxury of voting on intent.”
He also took issue with the fact that the bill cited the Kentucky Rules of Civil Procedure, a set of laws that lay out the rules and standards that courts must follow.
“I cannot find anywhere in the Rules of Civil Procedure where you are required to file an appeal bond. The Rules of Civil Procedure say quite the opposite,” McGarvey said. “I don’t think it works.”
Miller said he is working with McGarvey to tweak the bill language before it heads to the Senate floor for a vote. Miller was unsure when the bill would be voted on in the Senate.