Why the Bavarian Brewery Demolition Case Still Lingers at Kenton Courthouse
It has now been six months since the City of Covington and Columbia Sussex faced off in a Kenton County Circuit Courtroom, arguing about whether the historic Bavarian Brewery Building should be demolished.
Columbia Sussex purchased the structure, which sits on the corner of 12th Street/Martin Luther King Boulevard and Jillian's Way, nearly ten years ago with the hopes that the Commonwealth of Kentucky would allow a casino to operate at the site. The state has failed to pass expanded gaming legislation and the building has sat vacant since.
The owner wants to sell the property and Columbia Sussex attorneys have argued that the land is more valuable without the nearly 140-year old building on it. The city's urban design review board rejected demolition plans, a decision upheld unanimously by the Covington City Commission. Columbia Sussex appealed the decision to the Kenton County Circuit Court and the case was heard by Judge Gregory Bartlett on July 1.
Months passed and with regular checks by The River City News, no decision was handed down.
Then, last week, during a check on the case, RCN learned that Bartlett had removed himself from the case. Since the case was first heard, Michael Bartlett, the judge's son, was hired as an assistant city solicitor at the City of Covington, and Judge Bartlett stepped aside to avoid a conflict of interest, citing Kentucky Revised Statute 26A.015(2)e: "Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned."
On October 28, the case was assigned to Judge Patricia Summe.
No further hearings have been scheduled. Whether an entirely new hearing would be necessary was unclear Monday. "My assumption is we would be called in for another hearing but that is an assumption," said Covington city solicitor and assistant city manager Frank Warnock.
The city has argued that the site is economically viable with the building in tact and multiple affidavits filed by the city support the claim that Columbia Sussex has not marketed the property effectively. Assistant city solicitor Donald Warner argued for the City of Covington at the July 1 hearing. He disputed Columbia Sussex attorney Scott Thomas's legal assertion that the UDRB based its decision, the one upheld by the city commission, on the wrong part of the zoning code. Instead of basing the decision to deny a certificate of appropriateness (CoA) for the demolition by using the City of Covington Code of Ordinances, Appendix A, Section 12.14.06, which governs CoA's, Thomas said that there was a legal mistake by the city. Section 12.14.07, which governs demolitions, should have been used, he argued before the judge.
Not true, Warner countered. 12.14.07 deals with historic landmarks and historic preservation overlay zones. The Bavarian Brewery Building, while 140 years old, is not itself an historic landmark and neither is it within the boundaries of an historic preservation overlay zone. Instead, it is the target of a Chapter 99 redevelopment plan, one adopted in 2009 that allowed Columbia Sussex to raze multiple buildings on the site, but preserved the so-called tower building. Warner argued that the city made that move to maintain the presence of the building for future use while Thomas countered that the city cannot prevent the demolition from going forward based on that plan.
For cases like this to drag on for many months as the Bavarian Brewery issue has, is not unusual, Warnock said. "It varies," the city's attorney said. "Sometimes these things do take a while. You can imagine a judge has to satisfy time and go in a room and review all the material and it can become very onerous time-wise, and complex."
Timeline of events
Sept. 29, 2014: The River City News is first to report that Columbia Sussex is weighing the possibility of demolishing the building Story
Oct. 7, 2014: Petition launched to stop demolition of the brewery building Story
Oct. 29, 2014: Permission from the City of Covington officially sought by Columbia Sussex to tear down the building Story
Nov. 7, 2014: Pickets planned outside the Bavarian to raise awareness Story
Nov. 17, 2014: UDRB rejects Columbia Sussex's application to demolish the building Story
Jan. 13, 2015: Covington City Commission unanimously upholds the UDRB decision Story