Bissell Roberts
Attorney at Bardenwerper, Talbott & Roberts, PLLC
1000 N. Hurstbourne Parkway, Suite 200
Louisville, Kentucky 40223
502-593-4560
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Areas of Practice
Bissell Roberts
Land Use & Zoning
Land use and zoning attorneys assist clients in navigating typically complex local and state laws concerning real estate acquisition, development, zoning, leasing and environmental laws regarding the proposed use of private property. This involves client presentations in “trial type hearings” before local planning commissions and local zoning boards as well as presentations to cities and counties in land use cases involving conditional use permits, waivers/variances, major and minor subdivisions and rezoning.
Eminent Domain & Condemnation
Eminent Domain or condemnation involves the taking of private property for a “public use” by the State of Kentucky, a public utility, or other entity authorized by state law to condemn property under Kentucky’s Eminent Domain Act.
Mediation
Mediation is an informal and voluntary process often involving business/contract disputes, labor disputes and Court cases where a neutral third-party trained Mediator facilitates settlements of disputes involving two or more parties.
Land Use Law & Zoning
Zoning Laws and Regulations are complicated and ever changing, and it generally requires an experienced, knowledgeable lawyer to navigate this practice area. For over 45 years I have represented individuals, businesses and municipalities in a variety of land use and zoning cases in Jefferson County and neighboring Kentucky counties. This is a complex area of law. I typically represent owners and developers and occasionally I represent Cities. Kentucky Revised Statutes – Chapter 100 authorizes Kentucky cities and counties to enact subdivision regulations, comprehensive plans and zoning ordinances. 41 Cities and 55 of 120 Counties in Kentucky have adopted such laws. In addition to Louisville Metro, 13 smaller Jefferson County cities have adopted zoning laws.
Typical land use cases involve applications considered by a local Planning Commission or Board of Zoning Adjustments with zoning cases ultimately decided by the local city or county legislative body. Some of the land use applications involved are:
- Zoning or Form District Change
- Joint Zoning Change and Subdivision
- Minor Subdivision Applications
- Major Subdivision Applications
- Conservation Subdivision Applications
- Plan Review
- Signature Entrance
- Sign Plan
- Conditional Use Permits
- Variance Applications for Departures from Zoning Regulations
- Waiver Applications to Reduce or Eliminate a Land Development Code Requirement which cannot be modified thorough a Variance
- Street Closure cases
- Home Occupation Applications
- Cell Tower Applications
- Community Facility Review
- Non-Conforming Rights Determination
- Short-Term Rental Registration Form
By statute an “aggrieved party” may appeal a land use decision by an Administrative body or a Legislative body to a local Circuit Court. I am experienced in handling such Appeals, which occasionally result in an Appeal to the Kentucky Court of Appeals. These Appeals are governed by established precedents and specific statutes. Only rarely are Land Use cases considered by the Kentucky Supreme Court.
Condemnation
Kentucky’s Eminent Domain Act of 1976 defines “eminent domain” and “condemned”. It is the statutory right of the Commonwealth, its agencies, public utilities and other private persons, corporations and businesses authorized by state statute to condemn private property for a “public use.” Kentucky’s Constitution and the U.S. Constitution require that the condemning authority pay “just compensation” for the private property taken which may involve all of or a portion of the property, including temporary and permanent easements.
When the condemning authority seeks to condemn all or part of a valuable piece of private property the property owner should retain legal counsel early in the process, because the condemning authority is obligated by law to negotiate in “good faith” with the property owner concerning “just compensation” for the property right(s) to be acquired. If the parties are unable to negotiate a settlement the condemning authority will file a lawsuit in the local Circuit Court. As a general rule, the condemning authority will acquire the property rights desired, unless the property owner can convince the Circuit Court that the property is not being acquired for a “public use”. Kentucky law prescribes specific legal steps that must be taken in an Eminent Domain case. In the absence of a settlement damages are usually assessed by a unanimous jury verdict. Typically, the assessment of damages involves opinions expressed by professional real estate appraisers. Among the considerations may be comparable sales, the possibility of zoning change, change in market potential, tax assessments, enhancement to the remaining property as a result of a partial taking, complete loss of access to the remaining property, fencing costs, and other factors. Lease term are important to the both a Landlord and Tenant as they may impact the outcome of a condemnation case for the Landlord and the Tenant.
Kentucky laws are not as favorable to the property owner as the laws of some other states. As a rule, the property owner is responsible for all of its attorney’s fees, appraiser fees and expenses. Only in exceptional cases may the property owner recover attorney’s fees from the condemning authority. Because condemnation cases do not involve a level playing field for the property owner and the condemning authority, it is very important for the property owner to retain a skilled Eminent Domain lawyer and skilled appraisers to assist in the process.
Our approach is to promptly assess the value of the property owners’ claim and to carefully consider what strategy to follow with respect to pre-litigation negotiations and litigation strategy, after a lawsuit is filed.
We also represent Kentucky property owners and tenants in eminent domain cases involving federal government agencies that involve different procedures and are litigated in United States District Courts in Kentucky.
Mediation
Throughout my career I have been involved in lawsuits, business disputes and labor disputes where parties sought to voluntarily mediate their differences. Mediation is often a voluntary process or a Court ordered process whereby a trained third-party mediator meets with the parties (and their legal counsel) in an effort to reach an agreed upon written settlement of a dispute.
Mediation is a voluntary non-binding process as contrasted with an arbitration in which an arbitrator is authorized to make a final award or decision. In 2003 I completed a comprehensive training program offered by the Kentucky Administrative Office of the Courts to become a trained mediator. I have worked as a mediator since 2003. The Kentucky Supreme Court adopted Model Mediation Rules in 2005. Although those Model Mediation Rules prescribe one standard for mediation, many private contracts, like real estate contracts or labor union agreements provide different mediation standards. Often contract standards contain provisions regarding the cost, time and place for the mediation. It is common for such contracts to require the parties will share costs equally with a percentage based on the number of parties involved.
A mediation can last as little as one hour or may take many hours over several days depending on the number of parties, the complexity of the issues, and the willingness of the parties to find a creative solution to the dispute. The job of a mediator is to help the parties come up with their own resolution of their differences on terms they are committed to follow. As a rule, mediations are considered confidential like confidential settlement negotiations under Kentucky Rule of Evidence 408.
It is my practice to ask the parties in advance to sign a simple written agreement regarding how the mediation will be conducted and if the mediation is successful to sign a written Settlement Agreement immediately upon the conclusion of the Mediation.
