Norton v. Perry, 2009-CA-002343-MR
| Decision Date | 11 January 2013 |
| Docket Number | NO. 2009-CA-002394-MR,NO. 2009-CA-002343-MR,2009-CA-002343-MR,2009-CA-002394-MR |
| Parties | THOMAS NORTON; GEORGE NORTON; CARL NORTON; CLYDE WILCOXSON; GESS FAMILY PARTNERSHIP, LTD; TROY THOMPSON; LARRY WHITE AND BRENDA WHITE; PATSY A. BRATTON; MARY LOUIS BRATTON QUERTERMOUS; WAYNE QUERTERMOUS; AND IRENE GERDEMAN, AS TRUSTEE OF THE IRENE GERDEMAN LIVING TRUST APPELLANTS/CROSS-APPELLEES v. MARTY PERRY, NATIONAL REGISTER COORDINATOR FOR THE KENTUCKY HERITAGE COUNCIL AND THE STATE HISTORIC PRESERVATION OFFICE; VANESSA ZEOLI; CLARE SIPPLE; COMMONWEALTH OF KENTUCKY, COMMERCE CABINET, KENTUCKY HERITAGE COUNCIL AND THE STATE HISTORIC PRESERVATION OFFICE; MARK DENNE, ACTING EXECUTIVE DIRECTOR, KENTUCKY HERITAGE COUNCIL AND STATE HISTORIC PRESERVATION OFFICER; CLARK COUNTY FISCAL COURT; AND CLARK COUNTY-WINCHESTER HERITAGE COMMISSION APPELLEES/CROSS-APPELLANTS |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
OPINION OF OCTOBER 12, 2012, WITHDRAWN
APPEAL FROM FAYETTE CIRCUIT COURT
This appeal stems from Appellees' nomination of Appellants' property to the National Register of Historic Places (hereinafter "NationalRegister").2 On July 23, 2008, Appellants, along with approximately 145 other landowners, were notified by the Kentucky Heritage Council through the Kentucky State Historic Preservation Office via letter that their property located in Clark and Fayette Counties, collectively known as the "Upper Reaches of Boone Creek"3 (hereinafter "Upper Reaches"), would be considered by the Kentucky Historic Preservation Review Board for nomination to the National Register.
This letter indicated that Marty Perry, the National Register Coordinator for the Kentucky State Historic Preservation Office, would conduct a public informational meeting at the Boone's Creek Baptist Church in Lexington, Kentucky, on August 14, 2008. The letter further stated that if the property owner(s) wished to object, they were to do so in a written letter of objection, properly notarized, and submitted to the State Review Board by August 27, 2008. In addition, the notification letter stated that if the majority of owners object to the listing the district would not be listed.
Appellants contend that at the Boone's Creek Baptist Church meeting, Perry informed the landowners that unless greater than 50% of the landowners of the property designated objected, then the nomination would be submitted to the National Register as a historic district. Further, Perry indicated that the objections had to be written, notarized, and presented at the State Historic Review Boardmeeting in Russellville, Kentucky, on August 27, 2008, a location three hours away from the land in question. Based on these assertions that an individual landowner would be "wasting his time" to object, Appellants assert that at least one landowner did not submit his written objection at that time.
At the August 27, 2008, State Review Board meeting in Russellville, several landowners attended and presented their written and notarized objection letters. Thereafter, counsel for Appellants sent a letter to Perry stating that they had objection letters from 129 landowners covering 95 parcels of property out of the 157 properties listed, and demanded that the action to submit the nomination be stopped.
In response, Mark Dennen, the Acting Executive Director of the Kentucky Heritage Council and State Historic Preservation Officer ("SHPO") sent counsel a letter dated October 28, 2008, wherein he stated that regardless of whether the majority of landowners object, the SHPO must still forward the nomination to the Keeper of National Register ("Keeper") for a determination of eligibility. The letter further stated that if the majority of the landowners objected prior to the State Review Board meeting, the Review Board would note that in their minutes but would still render a recommendation on eligibility for listing. The SHPO would likewise note the objections in his findings but would also render a finding as to the eligibility for listing for the Keeper.
After receiving this letter from the SHPO, the Appellants commenced an action in Fayette Circuit Court, alleging unconstitutional taking, due processviolations, trespass, conversion, defamation, and unjust enrichment. The Appellants sought injunctive and declaratory relief in addition to damages.
Appellants' trespass claim was based on their allegation that Vanessa Zeoli,4 a graduate student at the University of Kentucky, worked for the Clark County-Winchester Heritage Commission for the purposes of obtaining information about Appellants' property for use in the nomination process to the National Register and trespassed on their property to create the application for the listing. Appellants' defamation claim alleged that Claire Sipple, an employee and agent of the Clark County-Winchester Heritage Commission, made defamatory allegations that the Appellants had "strong-armed" certain landowners into submitting objection letters at the August 27, 2008, State Review Board Meeting.
A hearing was held on December 5, 2008, and the court granted a temporary restraining order and injunction mandating that the Appellees cease their efforts and activities. In response, Appellees filed motions to dismiss for failure to state a claim, failure to exhaust administrative remedies, improper venue, sovereign immunity, and lack of personal and subject matter jurisdiction. The court held another hearing and thereafter deferred ruling on the motions to dismiss but ordered matters to proceed and answers to be filed. It also dissolved the temporary injunction against Appellees. When Appellants sought discovery by noticing the depositions of Perry, Sipple, and Zeoli, the court entered a protective order and prevented the depositions from being taken. Thus, the only proof in therecord concerning the Appellants' claims was the affidavits of the Appellants verifying the allegations contained in their complaint.
Thereafter, the State Review Board met on May 12, 2009, and decided to approve the district's nomination and to forward it to the Keeper for review and listing. The Appellants filed a motion with the court requesting that it prevent the Appellees from forwarding the nomination to the Keeper. The court did not grant this motion but instead requested that the Appellees have the nomination returned from the Keeper. The Appellees had the nomination returned, only to resubmit it on September 11, 2009.
On September 9, 2009, a hearing was held by the court. At that time Appellants maintained that they had at least 92 objection letters while the Appellees alleged that there were 184 landowners for the purposes of calculating whether the Appellants had met the 50% threshold. Appellees disallowed at least nine objection letters. Appellants informed the court that they had doubts and questions about the validity of how the number of property owners was calculated, the fluctuation of said number, and their concern that it may have been futile to try to stop the nomination process once it had begun, regardless of what measures were taken by the landowners. At that hearing, the Appellees discussed how the federal regulations required them to use either property records or property tax records and that, traditionally, they used tax records. The Appellees then went through the process used to tally the number of owners and the number of objections.
The Appellees informed the court that they counted 182 owners with 103 objections submitted; 9 objections were not recognized after conferring with National Park Service ("NPS"). The nine objections were not recognized by the Appellees for the following reasons: objection was submitted by someone who was no longer an owner; objections were made by LLCs and the Appellees were told by the NPS that trusts, LLCs, and LPs received only one vote even if they own multiple properties;5 objections were submitted by someone with a remainder interest; and objections were withdrawn.
Thus, the Appellees informed the trial court that 91 objections were recognized by the SHPO at the State Review meeting out of 182 owners. Subsequently, on August 21 the Appellees recognized 184 owners, explaining that 2 owners were originally overlooked. The total objections recognized by the SHPO at that time were 84, based on the aforementioned criteria and withdrawals. At the hearing before the trial court Appellants presented an additional 4 objections which would have raised the total to 88 objections out of 184 landowners.6
The Appellants then argued to the trial court that the constantly changing of number of landowners and objections recognized for purposes of the hearing was inherently unfair. The Appellants claimed to have never been shown apiece of paper saying a property owner was in favor of registering his or her property on the historic register, even though the Appellees claimed that the majority of property owners were in favor of the listing. The Appellants argued to the court that their objections, which were offered by a majority...
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