Clark County- Winchester Heritage Commission v. Thomas Norton
2017 CA 001172
| Ky. Ct. App. | Jun 3, 2021Background
- The dispute centers on efforts to list the "Upper Reaches of Boone Creek" (approx. 10,000 acres spanning Fayette and Clark Counties) on the National Register of Historic Places; state and local actors prepared and submitted the nomination.
- Plaintiffs (several landowners) alleged procedural irregularities in owner identification, notice, and vote-counting (e.g., how trusts/LLCs vs. natural persons were counted) and challenged the nomination as violating procedural due process.
- Litigation: plaintiffs sued in Fayette Circuit Court (2008); the court initially enjoined State Review Board action, later dismissed for jurisdictional reasons; this Court reversed that dismissal (Norton I) and remanded for further proceedings.
- On remand the circuit court granted summary judgment to plaintiffs on their due process claim, held certain state actors liable (Kentucky Heritage Council, its director Dennen, and SHPO Marty Perry), refused immunity defenses as to the due process claim, and awarded $206,465.60 in attorneys’ fees and $13,465.43 in costs under 54 U.S.C. § 307105 (NHPA).
- The Keeper (National Park Service official) denied the circuit court-directed petition to delist the property; multiple appeals and a cross-appeal followed to address immunity, liability allocation, and the fee/cost award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Immunity for due process claim | State actors are not immune from constitutional claims; plaintiffs seek prospective relief. | Defendants asserted sovereign/governmental/qualified official immunity. | Affirmed: defendants are not immune from suit for plaintiffs’ due process claim; state actors may face prospective relief. |
| Whether due process was violated and who is liable | Regulations and their application were arbitrary (owner-counting, timing), depriving procedural due process; plaintiffs sought liability of all named defendants. | Defendants argued proper application of NHPA/regs and lack of liability for some local actors. | Partial affirm/reverse: court held Kentucky Heritage Council, Dennen, and Perry liable for violation in applying regs at state level; reversed liability as to Clark County Fiscal Court, Clark County–Winchester Heritage Commission, Sipple, Zeoli, and Enoch. |
| Award of attorneys’ fees and costs under 54 U.S.C. § 307105 (NHPA) | Plaintiffs contended they substantially prevailed and that state court could award NHPA fees; alternatively urged equitable relief. | Defendants argued the NHPA fee provision applies only to federal-district-court actions and authorizes fees only against federal agencies. | Reversed: state court could not award attorneys’ fees/costs under § 307105 because action was in state court and defendants are non‑federal; equitable fee recovery also unavailable under Kentucky law. |
| Plaintiffs’ claim for additional recompense (non‑attorney time/expenses) | Plaintiffs sought compensation for personal time and expenses (locating owners, attending meetings). | Defendants argued these are not compensable under NHPA fee/cost language. | Affirmed denial: such personal time/expenses are not recoverable under NHPA (recoverable items limited to attorney/paralegal/expert/out‑of‑pocket costs normally billed to clients). |
Key Cases Cited
- Preservation Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444 (2d Cir. 2004) (NHPA fee provision authorizes awards against federal agencies but not against state/local agencies)
- Morris County Trust for Historic Preservation v. Pierce, 730 F.2d 94 (3d Cir. 1984) (interpreting NHPA fee provision as tied to actions "brought in a United States district court")
- Bell v. Commonwealth, 423 S.W.3d 742 (Ky. 2014) (Kentucky disallows equitable attorney-fee awards absent statute/contract or sanction authority)
- Miller v. Administrative Office of Courts, 361 S.W.3d 867 (Ky. 2011) (sovereign immunity does not bar suits alleging constitutional due process violations; relief is typically prospective)
- Will v. Michigan Dep’t of State Police, 491 U.S. 58 (U.S. 1989) (federal statutes must clearly abrogate state sovereign immunity)
- College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (U.S. 1999) (Congress can abrogate state sovereign immunity only when legislating under Fourteenth Amendment and with unmistakably clear language)
- Moody Hill Farms Ltd. P’ship v. U.S. Dep’t of the Interior, Nat’l Park Serv., 205 F.3d 554 (2d Cir. 1999) (Keeper retains authority to decide National Register listing even when nomination comes through state program)