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Metro Council members could face depositions after controversial vote on apartment project

Roberto Roldan

Louisville Metro Council members will have to answer questions from a lawyer representing residents living near a planned apartment development in southeast Jefferson County.

Lawyer Steve Porter is alleging that Democratic District 26 Metro Council Member Brent Ackerson, and perhaps others, worked behind the scenes with developer Scott Hagan to force through one of his projects over the objections of neighbors and the city’s Planning Commission.

Circuit Court Judge Mary Shaw heard arguments Friday afternoon over whether Metro Council and Hagan should be required to answer written questions and whether Porter could interview them in person, otherwise known as a deposition.

While Jefferson County Attorney Mike O’Connell did not fight to prevent Metro Council members from having to answer questions, Hagan attorney John Talbott told Shaw that further delaying construction on the project could have a negative financial impact on his client. Shaw ultimately ruled in favor of Porter.

Porter argued in court that the case has important repercussions for residents.

“This is not just about Cedar Creek Gardens, the other plaintiffs in this case and this particular project, this is about how zoning cases can be handled in Jefferson County, Ky., from now on,” he said. “It can’t be handled this way or private citizens without money, or not much, are never ever going to be able to take part in these proceedings in any effective way.”

He hopes the court will nullify Metro Council’s vote to overturn a recommendation by the Planning Commission, a decision that allowed the Hagan project to proceed.

Porter told WFPL News after the hearing that he plans to take depositions from Hagan, Hagan’s hired lobbyist John McCarthy, Ackerson and other Metro Council members who may have had contact with Hagan leading up to the vote.

Ackerson did not respond to repeated requests for comment. O’Connell said “No comment” as he walked out of the courtroom on Thursday.

What’s the case?

Hagan Properties, Inc. is planning to invest $48 million into 344 market-rate apartments at 8006 Cedar Creek Road, near the Fern Creek neighborhood. Hagan wants to construct 15 two- and three-story buildings on 19 acres. The project also includes plans for a dog park, pet salon and car care facility. The land, however, was previously zoned for single-family homes, not apartments.

Louisville Metro’s Planning Commission voted to recommend against rezoning the property in April, which would have shut the project down. In addition to community opposition, the Commission said the project was at odds with the city’s comprehensive plan and wasn’t close to transportation and business hubs. But Metro Council voted overwhelmingly in May to overturn the Planning Commission’s decision.

Last week, Porter submitted to the court email and text messages between Ackerson, Hagan and Hagan’s team of lobbyists and lawyers. They show that the developer communicated extensively with Ackerson in the days before the vote and helped Ackerson whip votes in Hagan’s favor.

The communications include emails in which Ackerson told Hagan “you were my guy from the get go,” and Hagan told Ackerson to ask specific council members for votes.

Porter said the exchanges show that the council’s decision to overturn the Planning Commission and approve the rezoning was based on politics, not the merits of the project.

Lawyers for Hagan, however, disagree. John Talbott, who has represented Hagan throughout the zoning case, argued that these contacts were not improper.

“They say nothing,” Talbott said. “They show that one council member was friends with an attorney who approached him to look into a case. If that becomes the standard for ‘blatant favoritism,’ then we will have every case opened up very easily.”

In court filings, Talbott also argued that the rezoning ordinance Metro Council approved provides substantial reasons for why they disagreed with the Planning Commission. He said neighbors were not denied an opportunity to have their concerns heard.

“Plaintiffs were afforded a hearing with notice, a full opportunity to present their case at the Planning Commission, the opportunity to cross-examine witnesses, a recorded Certified Record which Metro Council reviewed in its entirety, and a written decision from Metro Council based on its factual findings,” Talbott wrote.

The Metro Council vote

It’s unclear why individual Metro Council members voted the way they did, but the vote on this proposal happened in the context of opposition to other apartment and affordable housing developments.

Around the time of the Hagan rezoning vote, District 15 Metro Councilman Kevin Triplett had been vocally opposed to a similar rezoning effort in his south Louisville district. A developer wanted to construct a seven-building, 180-unit apartment complex near U of L’s St. Mary & Elizabeth Hospital. That land was already zoned for single-family homes.

While the Planning Commission voted 8-2 to recommend approving that rezoning, Triplett initially pushed for his colleagues to reject that recommendation, citing concerns about the environmental impact and additional traffic on nearby roads. At the May 20 full Metro Council meeting — the same meeting as the final vote on the Hagan Properties rezoning — Triplett dropped his opposition.

“My intention was to never, ever stall or hinder our collective attempts at addressing a critical housing need everywhere in our city, especially affordable housing, and especially affordable housing in my district,” Triplett said, explaining his vote.

Metro Council ended up approving that rezoning, clearing the way for that project to be built.

Triplett’s comments indicate that Louisville’s need for affordable housing might have been on some Metro Council members’ minds at the time. A 2019 report by Louisville Metro found the city has an unmet need for 31,412 units of affordable housing.

Emails between Hagan’s team members show they understood this context and discussed whether it could work for or against their project.

In a May 20 email from lobbyist John McCarthy to the development team, he said it was likely that District 17 Council Member Markus Winkler, a Democrat, would also lose in his opposition to an affordable housing project in his district. Metro Council was set to vote on the project that same night as well. McCarthy indicated that he thought the approval of these two affordable housing developments would help their case as a commercial project.

“That may allow the strong low income housing advocates on the council to support our substitute [amendment],” McCarthy wrote. “Because if two low-income housing projects get denied by council our project as the only commercial project becomes mired in the low-income housing debate.”

Porter, the lawyer representing the neighbors, will have 90 days to send additional written questions to Hagan and Metro Council and conduct any depositions.

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