Boyle church denied permit to build rehab center

Published 8:51 am Friday, January 19, 2018

Amber Estes and her husband bought their “dream home” off of Perryville Road in 2011.

“We had been driving up and down Perryville Road for years, looking at this home, saying, ‘wow, that would be our dream home,'” Estes said. “Ironically, the property came open and we were able to purchase our dream home.”

Boyle County resident Amber Estes testifies before the Board of Adjustments Thursday about issues she has had dealing with her neighbor, New Birth Temple of Deliverance.

Estes did not expect when she bought the house that a church would be built next-door several years later. She also didn’t anticipate that she would be standing in front of the Danville-Boyle County Planning and Zoning Board of Adjustments in January 2018, recounting how she blames that church for flooding her yard with dead fish.

“I have been told multiple times to try to remain calm and non-emotional, but I can’t help from feeling emotional about my dream property — and where I wanted to raise my children and my grandchildren — being at stake,” she said.

Estes was one of three neighbors of New Birth Temple of Deliverance who were sworn in before the Board of Adjustments Thursday to argue against giving the church’s owner and leader, Tim Napier, a conditional use permit for a new project: a 16-bed rehabilitation center for people with drug and alcohol problems.

Estes presented photos to the Board of Adjustments showing flooding on her property she blamed on improper drainage from a retention basin on the front portion of the New Birth property. One time, the flooding situation was made worse because the retention basin had been stocked with fish, she alleged.

“We looked out one afternoon and saw he had a fish truck … they pump fish, stocking ponds or whatever. I was absolutely beyond angry, because I knew what would happen — that we would have a flooding incident like this, which then produced, as you see in the photographs … dead fish all over our yard.

“If his (Napier’s) opinion is this has no effect on his neighbor, I’m confused.”

The neighbors succeeded in their goal — the Board of Adjustments denied Napier’s request. Bill Erwin, an attorney representing Napier, said after the meeting he was unsure what Napier’s next step would be or whether he would file a new conditional use permit application.

Tim Napier appears before the Board of Adjustments on Thursday to request a conditional use permit for a rehabilitation center at his church, New Birth Temple of Deliverance, on Perryville Road.

 Napier has a different dream from Estes: He wants to construct a facility called The Lighthouse on a 14-acre tract of land off of Perryville Road. The facility would be built behind New Birth Temple of Deliverance and would provide a “faith-based” rehabilitation program for adults dealing with drug and alcohol addiction.

The 28- to 30-day program would give up to 16 clients a place to sleep, counseling services, job training and life skills training in agriculture and cooking, among other things, Napier said.

“We’re going to make sure that they’ve very busy while they’re here,” and prepared to be “contributing” members of the community when they graduate, he said.

His attorney, Erwin, laid out an economic argument for building The Lighthouse, as well: It would cost around $800,000 to build the facility, which would “bring approximately 20-plus good-paying jobs to the community,” Erwin said.

“It’ll also have an annual stimulus of — it’s estimated — $700,000 to $800,000 annually to the community as an economic stimulus,” he said. “Which brings me to why is this being proposed and why is this needed in this area? And that’s one of the questions you must ask — ‘is this good for the public welfare?'” he said. “I think we can all just look around at the news and answer that question, but we in this country are dealing with a drug epidemic and Boyle County is not omitted from that epidemic.

“We have a serious issue in this community and around the state and around the country. Boyle County does not have, currently, a rehabilitation home for treatment of drug and alcohol abuse.”

Steve Hunter, director of Danville-Boyle County Planning and Zoning, left, goes over regulations with Tim Napier, right, and Napier’s attorney, Bill Erwin, center, during Thursday’s Board of Adjustments meeting.

New Birth’s application for a conditional use permit had been filed and withdrawn twice prior to Thursday’s hearing, as the applicant attempted to solve issues with notification, the names on the application and other things, said Steve Hunter, director of Danville-Boyle County Planning and Zoning.

There was initially some confusion over what category the proposed facility would fit into. Specific P&Z definitions for overnight accommodations, childcare facilities, halfway houses and group homes were all looked at before the applicant settled on  the definition for “rehabilitation center,” Hunter said.

While many of the other defined facilities are not allowed on land zoned for agricultural purposes, rehabilitation centers are allowed — if the Board of Adjustments grants a conditional use permit, Hunter explained.

“One of the confusing things to the neighbors has been, ‘how come you can even ask for this in the ag district?'” he said. “Well, the answer is right there in … the zoning ordinance.”

There’s also a problem with who owns the land that New Birth sits on, according to Kevin Nesbitt, an attorney hired by neighbors opposed to the proposal.

Nesbitt presented the Board of Adjustments with documents he said prove the land is deeded to a non-profit entity named Church of God of America. That entity was dissolved in July 2017, and ownership of the land was never given to anyone else, he said.

A new non-profit entity named Church of God of America Inc. was incorporated five months later in December, but that entity is not the owner of the property, Nesbitt alleged.

“I would submit that first off, they don’t even have a right to present this because there is no existing entity that owns that property — it’s just kind of out there,” he said.

Erwin called that argument a “red herring.”

Napier was and is the head of both Church of God entities, as well as New Birth Temple of Deliverance, according to attorneys at the meeting.

The issue of which corporation owns the land is what caused the application to be withdrawn at least once previously, Nesbitt said.

Bruce Smith, attorney for Danville-Boyle County Planning and Zoning, reviews regulations during Thursday’s Board of Adjustments meeting.

P&Z attorney Bruce Smith ultimately told Board of Adjustments members it would be OK to rule on the case regardless of the technical matter, as long as they were comfortable that the real owner of the land was present and in favor of the conditional use permit.

The Board of Adjustments also had to deal with some uncertainty about the size of the proposed building: Erwin and others said the building would have around 9,000 square feet of space; Napier said that was incorrect — it would actually be only about 3,100 square feet. Officials were unable to resolve the disagreement during Thursday’s meeting.

Board questions Napier

The P&Z staff report for the case lists six “items of concern” that P&Z Director Hunter said he would like to see addressed if the Board of Adjustments were to grant the conditional use permit.

The biggest one is that New Birth has never finished building its property to meet the specifications of its existing site plan, Hunter said. Paving, striping of the parking lot, lighting and drainage have not been completed as required by the site plan from 2011, according to the staff report.

Hunter said he would also like for New Birth to check with the City of Danville on whether it should install sewer service instead of using a septic system; specify an exact rather than approximate number of total employees who would work in the new facility; agree to meet all P&Z regulations for landscaping; and clarify what signage would be used on the property.

Board of Adjustments member Donna Fairchild questioned why New Birth had not completed the site plan as it was approved and wondered if it was due to “lack of funds.”

“To be honest and truthful with you, we knew that eventually, we was going to do something with this facility for our future ministry,” Napier responded. “… We probably would have had to tore out some of the parking lot due to running underground utilities, heavy equipment … All that would have to be tied in and we saw no need to address that at that time.”

Board member David Anderson asked if something could be done to help with neighbors concerns about the property — perhaps the addition of a fence with vertical slats that would clearly delineate the land and make it difficult for people at the rehabilitation facility to cross onto neighbors’ land?

Erwin responded that none of the program’s clients would be “in jail.”

“In all likelihood, David, you’re going to see them at their very best. They’re going to be clean and sober,” Erwin said. “We know that because they’re going to be drug tested … you go out to Walmart right now and you’re walking around and there’s a roomful of people who are drug addicts and alcoholics — you just don’t know it.”

Board Chair Virgie Johnson asked if Napier had attempted to contact his neighbors and share his vision for the facility with them prior to the Board of Adjustments meeting.

“We could have had a meeting, but we didn’t do that,” said Napier, explaining he thinks “there would have been an outrage, because some of the neighbors, when we got ready to build the church, I don’t think they wanted the church to be built there. They say it blocked the view.”

Neighbors’ complaints

Nesbitt, the attorney for the neighbors, said besides the issue of who owns the land, his clients believe there is a “good faith issue” with New Birth — the neighbors don’t feel the church can be trusted to do what it says it will do.

Estes, the woman who wound up with fish in her yard, was the first of three neighbors who testified about their interactions and problems with New Birth and Napier.

“This is not a Christian issue, this is not a religious issue in my opinion,” Estes said. “This is a moral issue, this is a compliance issue.”

In addition to the fish, Estes said she regularly deals with mud being carried onto her property from the New Birth property when flooding occurs.

“We approached (Napier) on multiple occasions to please do something, to please fix that, this is a problem,” she said. “He said to us, ‘if you don’t like it, hire an attorney.'”

Julie Bezio Popp, another neighbor, said she and her husband purchased a piece of land bordering the New Birth property “years ago,” with the intention of one day building a “forever home” there.

Popp manages multiple Pizza Hut locations in Eastern Kentucky and her husband works for Amazon, so they aren’t around the property in Boyle County all the time; they had been allowing the person who maintains the property to grow hay on it.

Popp said she eventually discovered Napier had been telling someone to go onto the property and mow the hay down, then splitting the money from the sale of the hay. Napier had told this person he owned the property, she alleged.

“Mr. Napier came out and he said, ‘he was just trying to be a good neighbor,’ and I said, ‘no, a good neighbor would have called me first before he came and told people they could be on my property and steal my hay,'” she said.

Popp said she had also received multiple requests from Napier to purchase their property, which she declined. And she alleged there are issues with flooding on her property because of improper drainage on the New Birth property.

The third neighbor to testify was Chuck Robinson, who told the Board of Adjustments he used to be close with Napier.

“When his wife was sick, I would stop and pray with him, and I thought we had that kind of a relationship,” he said. “But it went south. … There was things Tim was saying to me that really raised my eyebrows.”

Robinson said he was disturbed one day when Napier told him he planned to buy Popp’s land at a discount because a driveway could never be put on the land.

“That really hit me hard,” he said. “It’s been one thing after another. I don’t know of a neighbor that adjoins the property that hasn’t had these kind of problems. I’m afraid that my property is going to be depreciated, which it will be if this facility goes in.”

Flooding issues disputed

Napier, Erwin and an engineer from AGE Engineering, Doug Gooch, all offered evidence against the idea that flooding in the area was the fault of New Birth.

Erwin said he has a letter from the state showing no problems with drainage on the property, and verifying that the current drainage system is approved. “They show that there’s no violations, no problems with the current storm drains.”

Napier said before the retention basin was added on the property, his own driveway — he lives in a house next to the church property — would flood and he would have to wait for hours to get out. “Another neighbor” had a problem with flooding blocking up his septic system until the retention basin was added, he said.

Gooch said prior to the retention basin being installed, the whole area would be wet constantly, to the point that the land could not be mowed. Boyle County determined when the church was being planned that no stormwater retention work would need to be done, but AGE Engineering convinced the church to do some anyway, he said.

Gooch said it would be good to install a concrete weir for controlling water overflow in the basin, as planned for in the original site plan. Erwin said Napier has a bid to install the weir for around $3,000.

The vote

P&Z attorney Smith said for board members, the whole case boiled down to answering two questions. The first: is the proposed use “essential or would promote the public health, safety and welfare in this particular area?”

“If the answer to that is ‘no,'” then the board must consider whether any conditions could be imposed that would “prevent it from impairing the character and integrity of the area,” Smith said.

Board of Adjustments member Linda Green ultimately made a motion to deny the conditional use permit.

“I feel like I don’t have enough knowledge about this … to see that this is an essential need,” Green said, noting issues with the square footage, questions of ownership and other problems. “… I just feel like I would have to say no because I don’t understand the true nature of this. We have too many variables being kicked around.”

Board member Mike Lay seconded the motion. Members Green, Lay, Johnson, Fairchild and Jesse Purdy voted to deny the application. Members Anderson and Preston Miles did not vote to deny.

Smith said while there were previously laws that prevented applicants from seeking the same conditional use permit multiple times, now “that’s pretty much been eradicated at this point.”

“He could be back here next month.”