Western Shores Sues Calloway Officials And Developer Over Unfinished Roads
The property owners association of a neighborhood along Kentucky Lake is suing Calloway County officials, the developer and former leadership over unfinished roads. Western Shores Property Owners Association filed the suit this month in Calloway Circuit Court. Treasurer Steven Lemke said the lawsuit is straightforward: “We’d like to get our roads done.”
Lemke said the only work that had been done to the roads was a subbase, which doesn’t have a final lift. This subbase isn’t designed to stand the test of time, he said, and has taken a beating over the past eight to ten years. This subbase is now in need of repairs. Driving through the neighborhood, some roads appear cracked and have potholes. Lemke said an engineering firm has identified 130 repair points and they were expensive, totaling $1.6 million. “And that’s today’s number,” he said. “As the clock ticks, the roads take more and more beating and the situation, no pun intended, deteriorates.”
In the meantime, because the roads haven’t been accepted by the county the neighborhood pays for their own snow plowing and winter services. Once the roads are brought up to county standards and accepted by the county, the county would then be responsible for maintaining the roads.
Lemke said the county is bound by statutes for allowing development, had certain expectations and requirements for roads and required the developer to put performance bonds in place. But, “At the end of the day, the bonds were returned, the roads weren’t done and the county didn’t do what they were supposed to do.” He added that the developer didn’t do what they were supposed to do either. “Our protections were with the bonds - the performance bonds - that the county required the developer to have in place, per their own requirements.”
"We're not looking for anything special. We just want to get the roads done to the standards that they're to be done at and be accepted by the county. And our protections were let go," Lemke said.
Lemke said the POA has around 596 property owners. Western Shores has about 15 miles of internal roads and totals 1,100 acres. "It's a breathtakingly gorgeous place to live," Lemke said after describing spotting a bald eagle on the pond. "We love it here. We wouldn't live anywhere else. But the roads have to be done."
Among requested relief, the lawsuit seeks the roads be repaired and completed within one year and being accepted into Calloway County Jurisdiction. There is also a request to recoup losses associated with maintenance, decline in property value and costs associate with other factors, such as safety risks.
The developer, Kentucky Land Partners (a Massachusetts-based company), recently converted vacant lots to a nature area. Lemke said covenancy conditions for the property owners are such that when 95% of the properties on the market are sold, then the POA would be turned over to the property owners themselves as opposed to being controlled by the developer, which had operated as the "declarant" of the POA. Lemke said the market for those remaining properties was minimal, so in order to exit the development - to reach that 95% - KLP deeded over the 97 properties to the POA and restricted them as nature areas. As a result, the POA must now pay real estate tax on those properties. The lawsuit claims there was no involvement or agreement from the homeowners related to this transaction.
On February 26, 2018, an election was held for new officers. The POA was handed over to the property owners from KLP. Lemke said in March, the POA became active as a board in managing day to day affairs.
The lawsuit, which includes official attached documents, outlines a history of the Western Shores development, in which planning began with the judge/executive’s office in 2005. At the time, a surety bond in the sum of $3,031,382.75 was required to be posted to ensure completion of necessary infrastructure proposed for the development. Final approval was subject to posting the bond and transferring the property to Kentucky Land Partners. Judge/Executive Larry Elkins signed the plan in 2006.
A surety bond, according to SuretyBonds.org, is a contract between three or more parties: and obligee (a government requiring the principal to be bonded), a principal (a business owner required to post bond) and the surety (provider of the financial guarantee on behalf of principal). Should the principal fail to meet the agreed-upon obligations, the surety may be required to resolve the dispute by paying the claim to the obligee.
In this instance, the surety was Westchester Fire Insurance Company, the principal was Kentucky Land Partners, LLC. And the obligee was the Calloway County Judge/Executive. The bond guaranteed certain work on the development: “Road construction, paving, surveying, and engineering at Western Shores Subdivision.” The bond also contained this limitation: “Any action under this bond by the Obligee must be instituted before the expiration of one (1) year from the date on which this bond was executed.” The lawsuit claims this limitation should not have been accepted by Elkins or any other defendants.
Beginning in 2007, the bond limits were reduced each year until 2010, when Elkins sent a letter to KLP involving the increases in asphalt and related costs on the development and requested the bond be increased to $1.5 million. According to the suit, there has been no bond in place since 2010 and at no time did the county defendants call on the bond or otherwise cause required work to be done or withdraw the amount required or payment from the bond.
Going further back, the fiscal court in 2003, led by Elkins, adopted an ordinance for providing “adequate protections for the purchasers of lots in subdivisions relating to the development or roads therein.” The regulations explain that proposed roads must be properly built prior to acceptance or with security to ensure that they will be built without using public funds. Regulations also say that should the subdivided fail to complete all work and improvements required within 24 months of approval of the final plat, or within an agreed upon extension not to exceed 12 months, then the fiscal court shall cause required work to be done. The suit claims neither the bond for the development nor county officials adhered to this regulation.
The regulations also require written certification from the developer’s engineer and the county that all improvements have been constructed. The suit claims the county never received written certification that all improvements have been constructed.
Elkins said neither he nor the county attorney would comment on pending litigation. He said the county does road work in a continuing, ongoing basis. He would not comment on who is representing him or members of the fiscal court in this matter. National Land Partners, which appears to oversee Kentucky Land Partners, did not return a voice message. Prosecution Lead Counsel Daniel Reed did not return a voice message.
Up until a few days prior to the publication of this article, the Kentucky Land Partners page was still active on the nationallandpartners.com website. Now the link is returned with a 404 Server Error and Kentucky is no longer listed on their website. Here's a link to an archived version of the page on August 27, per the Google Wayback machine.