Louisville/Jefferson Cnty. Metro Gov't v. Louisville Historical League, Inc.

• Docket Number: 2023-CA-0082-MR,2023-CA-0134-MR
• Decision Date: 01 December 2023
• Parties: LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; THE LEGISLATIVE BODY OF THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AND HISTORIC LANDMARKS AND PRESERVATION DISTRICTS COMMISSION APPELLANTS v. LOUISVILLE HISTORICAL LEAGUE, INC.; AND OMNI LOUISVILLE, LLC APPELLEES AND OMNI LOUISVILLE, LLC APPELLANT v. LOUISVILLE HISTORICAL LEAGUE, INC.; LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; THE LEGISLATIVE BODY OF THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AND HISTORIC LANDMARKS AND PRESERVATION DISTRICTS COMMISSION APPELLEES
• Court: Kentucky Court of Appeals

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NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 21-CI-002393

BRIEF FOR APPELLANTS LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; THE LEGISLATIVE BODY OF THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AND HISTORIC LANDMARKS AND PRESERVATION DISTRICTS COMMISSION: Michael J. O'Connell Jefferson County Attorney Anne P. Scholtz Carrie P. Hall Assistant Jefferson County Attorneys Louisville, Kentucky

BRIEF FOR APPELLANT OMNI LOUISVILLE, LLC: Scott A. Davidson Louisville, Kentucky

BRIEFS FOR APPELLEE LOUISVILLE HISTORICAL LEAGUE, INC.: Donald J. Kelly Jordan M. White Matthew L. Bunnell Louisville, Kentucky

BEFORE: CALDWELL, DIXON, ^[1] AND EASTON, JUDGES.

OPINION

CALDWELL, JUDGE

The above-captioned appellants in this consolidated matter (collectively "Metro") appeal a decision of the Jefferson Circuit Court reversing an administrative determination that a certain building in Louisville, Kentucky, should not be deemed a landmark pursuant to Louisville ordinance. Upon review, we vacate and remand as set forth below.

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BACKGROUND

At its October 24, 2019 meeting, the Legislative Body of Louisville/Jefferson County Metro Government ("Metro Council") passed a resolution directing its Historic Landmarks and Preservation Districts Commission ("Landmarks Commission") to conduct a review to determine whether the Odd Fellows Building located at 211-215 W. Muhammad Ali Boulevard ("Liberty Hall") should be landmarked. The issue went before the Landmarks Commission during a public hearing on November 19, 2020, and at the conclusion of the hearing it voted to designate Liberty Hall as a landmark. The Landmarks Commission then notified Metro Council of its designation. However, based upon its review of the record made before the Landmarks Commission, Metro Council disagreed and overruled the designation.

Subsequently, the Louisville Historical League, Inc. ("LHL"), filed suit in Jefferson Circuit Court to contest Metro Council's decision, claiming in its complaint that it was "injured and/or aggrieved" and denied its procedural due process rights by the "erroneous, arbitrary and capricious final action of Metro Council[.]" The circuit court ultimately considered the merits of LHL's claims; and, agreeing with LHL's position, it entered an order reversing Metro Council's decision. These consolidated appeals followed. Additional facts will be discussed in our analysis.

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ANALYSIS

On appeal, Metro argues the circuit court lacked subject matter jurisdiction to resolve LHL's appellate action. This is the first time Metro has raised this argument, and LHL contends Metro is accordingly barred from asserting it. However, LHL is incorrect. Subject matter jurisdiction is an issue we are required to raise even sua sponte, "as it cannot be acquired by waiver, consent, or estoppel." Doe v. Golden &Walters, PLLC, 173 S.W.3d 260, 270 (Ky. App. 2005) (footnotes omitted); see also University of Kentucky v. Hatemi, 636 S.W.3d 857, 883 (Ky. App. 2021) (internal quotation marks, brackets, and citation omitted) ("[A] reviewing court succeeds to the jurisdiction of the court from which the appeal is taken without diminution or enlargement; it has simply that and nothing more as well as nothing less.").

Proceeding to the substance of Metro's argument, LHL's action before the circuit court was, as discussed, an appeal of Metro Council's decision to overturn the Landmarks Commission's designation of Liberty Hall as an historic landmark. The Landmarks Commission and Metro Council are both "creatures of ordinance"^[2] (i.e., administrative agencies). Kentucky's circuit courts only have subject matter jurisdiction "to review the actions or decisions of administrative

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agencies" when "authorized by law[,]" KRS^[3] 23A.010(4), because "[a]n appeal from an administrative decision is a matter of legislative grace ...." Spencer Cnty. Pres., Inc. v. Beacon Hill, 214 S.W.3d 327, 329 (Ky. App. 2007). It is also well-established that a party seeking to appeal an administrative agency's decision must strictly comply with the legislative provisions authorizing the appeal.^[4] Kenton County Bd. of Adjustment v. Meitzen, 607 S.W.3d 586, 595 (Ky. 2020). Failure to do so deprives any reviewing court of subject matter jurisdiction. Id.

Metro's argument is that LHL failed to strictly comply with the legislative provision that authorized the type of appellate action LHL initiated before the circuit court. The legislative provision in question was LMCO § 32.263(C), which provides:

An appeal from the Council shall be taken by any person or entity claiming to be injured or aggrieved by the final action of the Council to the Jefferson Circuit Court within 30 days of the Council's final action, which shall be defined as the date on which the Council votes to uphold amend, or overturn the decision of the

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Commission on the proposed designation. Should the Council fail to take action on a proposal for designation of an individual landmark within the 120-day period as provided in § 32.260(Q), then the Council's failure to act shall constitute its final action on said proposal, and any appeal shall be taken within 30 days of that 120th day. The property owner, applicant, Commission and the Council shall be named as parties to the appeal.

(Emphasis added.)

At issue is what the above-emphasized language required LHL to plead in its complaint to effectively invoke the circuit court's subject matter jurisdiction over its appellate action. Metro argues "any person or entity claiming to be injured or aggrieved by the final action" should be interpreted consistently with how our Supreme Court interpreted that same language, albeit as set forth in KRS 100.347, a zoning appeal statute. Specifically, in Meitzen, 607 S.W.3d at 592-93, the Court explained this language means a party must provide factual allegations in the complaint stating how he or she was particularly injured, aggrieved, or harmed by the decision of the administrative entity:

Taking the plain meanings of these words in the context of KRS 100.347(1), we conclude that a party pursuing an appeal from a board of adjustment must claim some type of hurt or damage, or some form of suffering or infringement that the party will experience as a result of the board's decision.

The only reasonable method by which a person or entity can "claim" to be injured or aggrieved by a final decision of a board of adjustment when initiating an appeal in circuit court is through their complaint. But

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Meitzen and Nageleisen failed to provide any factual allegations to support a claim that they themselves were injured or aggrieved in some way by the Board's action. In fact, the words "injured" or "aggrieved" (or even synonyms of those words) do not appear anywhere in their complaint. While these particular words are not necessarily required, a complaint pursuant to KRS 100.347(1) must reflect how the plaintiff fits into the statutory language authorizing an appeal. Meitzen and Nageleisen explain how they believe the Board erred legally but they fail to state how the alleged errors affect them or cause injury to them. In fact, the complaint reads solely as a critique of the Board's

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