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Norton v. Perry

United States District Court, E.D. Kentucky, Central Division, Lexington

January 3, 2017

THOMAS NORTON, et al., Plaintiffs,
v.
MARTY PERRY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         On November 28, 2016, the defendants removed this matter from the Commonwealth of Kentucky9');">9;s Fayette Circuit Court pursuant to 28 U.S.C. § 1441. [Record No. 1] On December 2, 2016, the plaintiffs moved to remand the matter back to the state court. The plaintiffs also sought to recover their attorneys9');">9; fees and costs pursuant to 28 U.S.C. § 1447(c). [Record No. 5] For the reasons that follow, the plaintiffs9');">9; motion will be granted.

         I.

         The plaintiffs are residents and owners of real property located in Clark and Fayette Counties, Kentucky. [Record No. 1-1, p. 3] On November 26, 2008, they filed suit in the Fayette Circuit Court, challenging the defendants9');">9; efforts to have their property listed on the National Register of Historic Places (“National Register”). See 54 U.S.C.§ 302101 et seq. See also 36 C.F.R. § 800.16(1). [See Record No. 1-1.] Specifically, the plaintiffs allege that the defendants9');">9; actions constituted unconstitutional taking of their property. The plaintiffs also claim that their rights to substantive and procedural due process were violated, as the defendants did not provide them with adequate notice and an opportunity to be heard, despite the continued efforts to have the property placed on the National Register. Id. at p. 11. Additionally, the plaintiffs sought injunctive relief, asking that the defendants be stopped from attempting to have their property designated on the National Register. Id. at 13.

         Protracted litigation ensued over the next several years. The matter worked its way to the Kentucky Court of Appeals and then back to the Fayette Circuit Court. Most recently, the circuit court granted partial summary judgment in the plaintiff9');">9;s favor, concluding that that the defendants had violated their due process rights.[1" name="FN1" id= "FN1">1] [Record No. 5-13] On October 31, 2016, the plaintiffs filed a motion for attorneys9');">9; fees, as “substantially prevailing” parties under 54 U.S.C. § 307105. [Record No. 1-22] This motion for attorneys9');">9; fees under a federal statute forms the basis of the defendants9');">9; notice of removal.

         The parties dispute whether the Complaint was removable in the first instance. The defendants contend that, because the plaintiffs made no reference to the United States Constitution or 42 U.S.C. § 19');">983, it is likely the plaintiffs9');">9; constitutional claims were brought pursuant to the Kentucky Constitution. The plaintiffs argue that federal subject matter jurisdiction existed regardless, because the plaintiffs challenged federal law, as well as the defendants9');">9; actions pursuant to it.

         II.

         The National Historical Preservation Act (the “Preservation Act”) authorizes the Secretary of the Interior “to expand and maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 36 C.F.R. § 60.1. Under the Preservation Act, the Secretary is charged with promulgating regulations for nominating properties to the National Register and notifying property owners when property is being considered for inclusion on the register. 54 U.S.C. § 302103. Before any property may be included in the National Register, the owners of such property-or a majority of owners within the district in the case of a historic district- must be given the opportunity to object to the nomination of the property for inclusion. Id. at § 302105. Generally, the Preservation Act prohibits inclusion of the district on the register if a majority of the owners in the district object. See id.

         The states play a role in carrying out the objectives of the Preservation Act. The Code of Federal Regulations provides guidelines that a State Historic Preservation Officer must follow in identifying and nominating eligible properties to the National Register. See 36 C.F.R. § 60.6. For example, the state officer is required to notify the property owners of the agency9');">9;s intent to nominate property at least 30 days before a meeting of the State Review Board. 36 C.F.R. §60.6(d). The agency also must provide “an opportunity for the submission of written comments and provide [property owners] . . . an opportunity to concur in or object in writing to the nomination.” Id.

         Pursuant to the guidelines outlined in 36 C.F.R. § 60.6, the Kentucky Heritage Commission has adopted the following procedures:

Prior to deciding whether to nominate a district, site, building, or object to the National Register of Historic Places created by the National Historic Preservation Act of 19');">966, the Kentucky Historic Preservation Review Board and the Kentucky Heritage Commission shall afford persons desiring to comment on the proposed nomination the opportunity to be heard by the board, in accordance with subsection (2) of this section.
The Kentucky Heritage Commission shall give public notice of the proposed nomination of any district, site, building, or object to the National Register of Historic Places before such nomination is presented to the Kentucky Historic Preservation Review Board. The notice shall be published in the county in which the district, site, building, or object is located in accordance with KRS Chapter 424, except that the notice shall be published only one (1) time, at least thirty (30) days prior to the review board9');">9;s consideration of the nomination. The notice shall state the time and place of the meeting at which the nomination is to be considered and shall indicate that any person desiring to be heard by the historic preservation review board shall be afforded the opportunity to comment on the proposed nomination.

K.R.S. § 171.382 ...


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