Clark Cnty.-Winchester Heritage Comm'n v. Norton
| Decision Date | 04 June 2021 |
| Docket Number | NO. 2017-CA-1209-MR,NO. 2017-CA-1172-MR,NO. 2017-CA-1207-MR,NO. 2017-CA-1208-MR,NO. 2017-CA-1206-MR,2017-CA-1172-MR,2017-CA-1206-MR,2017-CA-1207-MR,2017-CA-1208-MR,2017-CA-1209-MR |
| Parties | CLARK COUNTY-WINCHESTER HERITAGE COMMISSION AND HARRY ENOCH APPELLANTS v. THOMAS NORTON; BRENDA WHITE; CARL NORTON; CLYDE WILCOXEN; GEORGE NORTON; GESS FAMILY PARTNERSHIP, LTD; IRENE GERDEMAN, AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST; JANE GRAVES BLACKFORD; JEFFREY R. WALKER, TRUSTEE OF THE J.H. GRAVES TRUST UNDER WILL FOR BENEFIT OF JANE GRAVES BLACKFORD; LARRY WHITE; MARY LOUIS BRATTON QUERTERMOUS; PATSY A. BRATTON; TROY THOMPSON; AND WAYNE QUERTERMOUS APPELLEES AND CLARE SIPPLE AND VANESSA ZEOLI APPELLANTS v. CLARK COUNTY-WINCHESTER HERITAGE COMMISSION; BRENDA WHITE; CARL NORTON; CLARK COUNTY FISCAL COURT; CLYDE WILCOXSON; GEORGE NORTON; GESS FAMILY PARTNERSHIP, LTD; HARRY ENOCH; IRENE GERDEMAN AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST; KENTUCKY HERITAGE COUNCIL; LARRY WHITE; MARK DENNEN; MARTY PERRY; MARY LOUIS BRATTON QUERTERMOUS; PATSY A. BRATTON; THOMAS NORTON; TROY THOMPSON; UNIVERSITY OF KENTUCKY; AND WAYNE QUERTERMOUS APPELLEES AND CLARK COUNTY FISCAL COURT APPELLANT v. THOMAS NORTON; BRENDA WHITE; CARL NORTON; CLYDE WILCOXEN; GEORGE NORTON; GESS FAMILY PARTNERSHIP, LTD; IRENE GERDEMAN, AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST; JANE GRAVES BLACKFORD; JEFFREY R. WALKER, TRUSTEE OF THE J.H. GRAVES TRUST UNDER WILL FOR BENEFIT OF JANE GRAVES BLACKFORD; LARRY WHITE; MARY LOUIS BRATTON QUERTERMOUS; PATSY A. BRATTON; TROY THOMPSON; AND WAYNE QUERTERMOUS APPELLEES AND MARTY PERRY, NATIONAL REGISTER COORDINATOR FOR THE KENTUCKY HERITAGE COUNCIL AND THE STATE HISTORIC PRESERVATION OFFICE; COMMONWEALTH OF KENTUCKY, COMMERCE CABINET, KENTUCKY HERITAGE COUNCIL, STATE HISTORIC PRESERVATION OFFICE; AND MARK DENNEN, ACTING EXECUTIVE DIRECTOR, KENTUCKY HERITAGE COUNCIL AND STATE HISTORIC PRESERVATION OFFICER APPELLANTS v. THOMAS NORTON; BRENDA WHITE; CARL NORTON; CLYDE WILCOXEN; GEORGE NORTON; GESS FAMILY PARTNERSHIP, LTD; IRENE GERDEMAN, AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST; JANE GRAVES BLACKFORD; JEFFREY R. WALKER, TRUSTEE OF THE J.H. GRAVES TRUST UNDER WILL FOR BENEFIT OF JANE GRAVES BLACKFORD; LARRY WHITE; MARY LOUIS BRATTON QUERTERMOUS; PATSY A. BRATTON; TROY THOMPSON; AND WAYNE QUERTERMOUS APPELLEES AND THOMAS NORTON; GEORGE NORTON; BRENDA WHITE; CARL NORTON; CLYDE WILCOXEN; GESS FAMILY PARTNERSHIP, LTD; IRENE GERDEMAN, AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST; JANE GRAVES BLACKFORD; JEFFREY R. WALKER, AS TRUSTEE OF THE J.H. GRAVES TRUST UNDER WILL FOR BENEFIT OF JANE GRAVES BLACKFORD; LARRY WHITE; MARY LOUIS BRATTON QUERTERMOUS; MARY LOUISE BRATTON; PATSY A. BRATTON; TROY THOMPSON; AND WAYNE QUERTERMOUS CROSS-APPELLANTS v. CLARE SIPPLE; CLARK COUNTY FISCAL COURT; CLARK COUNTY-WINCHESTER HERITAGE COMMISSION; HARRY ENOCH; KENTUCKY HERITAGE COUNCIL, STATE HISTORIC PRESERVATION OFFICE, COMMONWEALTH OF KENTUCKY, COMMERCE CABINET; MARK DENNEN, ACTING EXECUTIVE DIRECTOR, KENTUCKY HERITAGE COUNCIL AND STATE HISTORIC PRESERVATION OFFICER; MARTY PERRY, NATIONAL REGISTER COORDINATOR FOR THE KENTUCKY HERITAGE COUNCIL AND THE STATE HISTORIC PRESERVATION OFFICE; AND VANESSA ZEOLI CROSS-APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
The Appellees/Cross-Appellants (hereinafter referred to as "Plaintiffs") are a group of individuals who own real property in an area known as the Upper Reaches of Boone Creek ("Upper Reaches").1 The Appellants/Cross-Appellees (hereinafter collectively referred to as "Defendants") are: the Clark County Fiscal Court; the Clark County Winchester Heritage Commission and three of its employees/agents, Clare Sipple, Vanessa Zeoli, and Harry Enoch; and the Kentucky Heritage Council, its Director, Mark Dennen, and its National Register Coordinator, Marty Perry. The litigation concerns the actions Defendants took inconnection with having the Upper Reaches listed as a historic district on the National Register of Historic Places ("National Register").
As part of the orders on appeal, the circuit court: (1) granted Plaintiffs summary judgment on their due process claim against Defendants; (2) determined Defendants were not entitled to sovereign, governmental and/or qualified official immunity with respect to the due process claim; (3) awarded Plaintiffs a judgment against each defendant jointly and severally for recovery of attorneys' fees in the amount of $206,465.60 and costs in the amount of $13,465.43 pursuant to 54 U.S.C.2 § 307105; and (4) denied Plaintiffs' request for additional recompense for the time and expenses they personally invested in the litigation.
Following entry of the circuit court's orders, the parties filed a series of appeals with this Court: (1) Appeal No. 2017-CA-1172; (2) Appeal No. 2017-CA-1206; (3) Appeal No. 2017-CA-1207; (4) Appeal No. 2017-CA-1208; and (5) Appeal No. 2017-CA-1209.
(1) Appeal No. 2017-CA-1172 was filed by the Clark County Winchester Heritage Commission ("CCH Commission") and Harry Enoch, the CCH Commission's Chairman during the relevant time period. The CCH Commission asserts that the circuit court wrongly concluded that it was not entitled to sovereign immunity, and Enoch claims that the circuit court likewise wronglydenied his claim for qualified official immunity. Additionally, like Defendants in the other appeals detailed below, the CCH Commission and Enoch assert the circuit court erroneously granted summary judgment against them on Plaintiffs' due process claim, and further erred in awarding Plaintiffs attorneys' fees pursuant to 54 U.S.C. § 307105.
(2) Appeal No. 2017-CA-1206, was filed by Clare Sipple and Vanessa Zeoli. Sipple and Zeoli assert that the circuit court erroneously rejected their motions for dismissal based on sovereign and/or qualified official immunity. They also assert the circuit court failed to include in its orders of May 15, 2017, that Sipple and Zeoli are entitled to indemnification by the CCH Commission, and Zeoli likewise contends that the circuit court should have included her right to indemnification from the University of Kentucky. Zeoli and Sipple also maintain that the circuit court wrongfully granted summary judgment to Plaintiffs on their abuse-of-process cross-claims. Finally, Zeoli contends the circuit court erred in failing to dismiss Plaintiffs' claims against her for lack of personal jurisdiction and improper service of process.
(3) Appeal No. 2017-CA-1207 was filed by the Clark County Fiscal Court. The Clark County Fiscal Court's primary assignment of error is that the circuit court should have dismissed it from this suit based on its claim of sovereign immunity. Alternatively, the Clark County Fiscal Court maintains that the circuitcourt erroneously awarded attorneys' fees and costs to Plaintiffs based on a misplaced finding that it violated Plaintiffs' due process rights.
(4) Appeal No. 2017-CA-1208 was filed by the Kentucky Heritage Council, State Historic Preservation Office and two of its employees/officers, Marty Perry and Mark Dennen. Together, they argue the circuit court erred in failing to find that they were entitled to governmental and/or qualified official immunity. They additionally assert that the circuit court erred in finding that they were liable for violating Plaintiffs' due process rights; and alternatively, that the circuit court erred in awarding Plaintiffs their costs and attorneys' fees pursuant to 54 U.S.C. § 307105.
(5) Appeal No. 2017-CA-1209 is a cross-appeal filed by Plaintiffs. Plaintiffs' cross-appeal is focused on the circuit court's refusal to award Plaintiffs certain "additional recompense" pursuant to 54 U.S.C. § 307105. The additional recompense sought by Plaintiffs represents the time and expenses, apart from attorneys' fees, the individual Plaintiffs incurred in preparing for and attending various meetings concerning this litigation and the time they spent locating other property owners.
Having extensively reviewed the very lengthy record and being otherwise sufficiently advised, we affirm in part, reverse in part, and remand for entry of a modified judgment and further proceedings consistent with this Opinion.
Before delving into the factual and procedural nuances of this particular litigation, it is important to understand the process used to include a property on the National Register and the role played by local, state, and federal agencies and officials in the process.
The National Historic Preservation Act ("NHPA"), now codified at 54 U.S.C. § 300101, was originally enacted by Congress in 1966.3 The overarching purpose of the NHPA is to "foster conditions under which our modern society and our historic property can exist in productive harmony[.]" 54 U.S.C. § 300101(1). To further this objective, the NHPA authorizes the Secretary of the Interior to "expand and maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." 54 U.S.C. § 302101. Owner participation in the nomination process is required by statute. Specifically, 54 U.S.C. § 302105 provides:
To continue reading
Request your trial