Friends of Louisville Pub. Art v. Louisville/Jefferson Cnty. Metro Historic Landmarks

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FRIENDS OF LOUISVILLE PUBLIC ART, LLC; CHARLES NICHOLAS MORRIS; DEANNA M. O'DANIEL; GERALD R. TONER; JAMES PRICHARD; LOUISVILLE HISTORICAL LEAGUE, INC.; MARK THOMPSON; MARTINA KUNNECKE; AND STEVE WISER APPELLANTS v. LOUISVILLE/JEFFERSON COUNTY METRO HISTORIC LANDMARKS AND PRESERVATION DISTRICTS COMMISSION; LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AND LOUIVILLE METRO GOVERNMENT CHEROKEE TRIANGLE ARCHITECTURAL REVIEW COMMITTEE APPELLEES

No. 2023-CA-0961-MR

Court of Appeals of Kentucky

November 15, 2024

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JENNIFER WILCOX, JUDGE ACTION NO. 19-CI-003550

BRIEFS FOR APPELLANTS:

Stephen T. Porter

Louisville, Kentucky

BRIEF FOR APPELLEES:

Michael J. O'Connell

Jefferson County Attorney

Anne P. Scholtz

Susan M. Rivera

Assistant Jefferson County Attorneys

Louisville, Kentucky

BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES.

OPINION

CALDWELL, JUDGE:

AFFIRMING

The above-captioned appellants (collectively referred to herein as the "Friends") appeal an order of the Jefferson Circuit Court denying their request for an injunction to force appellee Louisville/Jefferson County Metro Government ("LMG") to return a statue of John B. Castleman to where the statue was formerly located. Upon review, we affirm.

BACKGROUND

This appeal is a continuation of what was before our Supreme Court in Friends of Louisville Public Art, LLC v. Louisville/Jefferson County Metro Historic Landmarks and Preservation Districts Commission, 671 S.W.3d 209 (Ky. 2023). In sum, Louisville Mayor Greg Fischer announced in August 2018 that LMG intended to remove the statue of John B. Castleman from its location in the Historic Cherokee Triangle Preservation District. It is undisputed that LMG owns the statue in question. Prior to removing it, LMG acted in conformity with §§ 32.250 through 32.263 of its ordinances (collectively referred to herein as the "Landmarks Ordinances") by applying for a "certificate of appropriateness" from the Cherokee Triangle Architectural Review Committee ("ARC"). As our Supreme Court explained in its prior review of this matter:

Under LOUISVILLE/JEFFERSON CNTY., KY., METRO GOV'T ORDINANCES ["LMCO"] § 32.252, [LMG] created the Cherokee Triangle Preservation District as a Historic Preservation District. The Preservation Ordinances provide that before any exterior alteration or demolition, including the moving, of a structure may occur, a certificate of appropriateness is required. Ordinance § 32.252(D), § 32.257(B). These ordinances are authorized under Kentucky Revised Statute ("KRS") 82.026, which permits "[t]he legislative body of any city [to] enact ordinances establishing local historic preservation commissions[.]"

Id. at 211 n.2.

The ARC denied LMG's application for a certificate of appropriateness. Afterward, LMG appealed to the Historic Landmarks and Preservation Districts Commission ("Landmarks Commission"), per LMCO § 32.257(K). Upon consideration, the Landmarks Commission reversed the ARC and approved LMG's application.

Contesting the Landmarks Commission's decision, the Friends subsequently filed a complaint and appeal with the Jefferson Circuit Court, per LMCO § 32.263. The circuit court affirmed. The Friends appealed to this Court, which similarly affirmed. The Friends then sought and were granted discretionary review from our Supreme Court, which ultimately reversed and remanded to the circuit court with directions to set aside the Landmark Commission's decision as arbitrary. In closing, the Court stated:

[W]e underscore that we express no opinion as to the fate of the statue in question. That is ultimately a decision for the citizens of Louisville/Jefferson County. Those citizens, however, having created a process for that decision must abide by that process, and must not act arbitrarily in the process.

Friends of Louisville Public Art, LLC, 671 S.W.3d at 215.

Shortly after remand to the Jefferson Circuit Court, the Friends then moved for injunctive relief. LMG had removed the Castleman statue from the Historic Cherokee Triangle Preservation District during the pendency of the Supreme Court proceedings under the auspices of its invalidated "certificate of appropriateness," and the Friends wanted the circuit court to force LMG to put the statue back until LMG reapplied for and secured a new and valid certificate.

In response, LMG stated it had no intention of reapplying for a new certificate of appropriateness, but that it also had no intention of returning the statue back to where it had been, either. Further, LMG claimed it would be futile for the circuit court to grant the Friends their requested injunctive relief, arguing (for the first time) that it enjoyed sovereign immunity from complying with its own Landmarks Ordinances.

The circuit court disposed of this litigation in its entirety by setting aside the Landmarks Commission's decision and denying the Friends' motion for an injunction. In its order to that effect, the circuit court explained that the "law of the case" doctrine merely required it to set aside the Landmark Commission's decision, and that its order did exactly that. The circuit court rejected the notion that the "law of the case" or LMG's litigation conduct barred LMG from asserting sovereign immunity this late into the proceedings; and it agreed that LMG was immune from complying with the Landmarks Ordinances, and that it would therefore be futile to grant the Friends' request for injunctive relief. This appeal followed.

STANDARD OF REVIEW

The focus of this appeal is upon the propriety of the court-ordered injunctive relief requested by the Friends. Our standard of review is set forth in Kentucky Rule of Civil Procedure ("CR") 52.01, which provides:

[I]n granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action .... Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses....

To determine if findings are clearly erroneous, we look to see if they are without adequate evidentiary support or occasioned by erroneous application of the law. See Rogers v. Lexington-Fayette Urban Cnty. Gov't, 175 S.W.3d 569, 571 (Ky. 2005) (citation omitted). The determination of whether governmental immunity applies to a party is also a question of law, and, therefore, reviewed de novo. University of Kentucky v. Regard, 670 S.W.3d 903, 911 (Ky. 2023).

ANALYSIS

The issues presented in this appeal largely involve the application of law to undisputed facts. In that vein, the Friends posit two overarching arguments in support of why, in their view, the circuit court erred in rejecting their motion for injunctive relief: (1) the Landmarks Ordinances applied to LMG and accordingly waived any sovereign immunity LMG may have had; and (2) LMG, through its conduct in litigating this matter, otherwise forfeited any claim of sovereign immunity.

Their first argument is incorrect. For context, we begin with a general rule:

[T]he state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control.

...

This is not to say that it is impermissible for the Commonwealth to grant to cities the authority to inspect and control the construction of state buildings. But it is clear that such power, when given, must be specifically delegated.

...

The rule of construction to be applied is: Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the legislature to effect this object is clearly expressed.

City of Bowling Green v. T &E Elec. Contractors, Inc., 602 S.W.2d 434, 435-36 (Ky. 1980) (internal quotation marks and citations omitted).

In other words, the Commonwealth and its instrumentalities maintain sovereignty over their property. And "general authority conferred upon one agency of the government will not be construed as embracing power to impose burdens upon the property or operations of other governmental agencies." Board of Councilmen of City of Frankfort v. Commonwealth, 243 Ky. 633, 49 S.W.2d 548, 549 (1932). Illustrating this rule and its application, it was held in Kentucky Institution For The Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402 (1906), that absent express statutory authorization, an otherwise valid city ordinance requiring the presence of fire escapes on tall buildings could not be applied to a state-owned institution located within the city limits. In Board of Councilmen of City of Frankfort, 49 S.W.2d 548, applying the same rule, it was held that a city ordinance regulating the sale of milk could not be applied to the sale of milk to a state prison located within the city. In City of Bowling Green, 602 S.W.2d 434, it was held that a statute granting cities the power to regulate public buildings did not cede to a city jurisdiction to impose a local building code on state buildings located in the city. And, in Lexington-Fayette Urban County Board of Health v. Board of Trustees of the University of Kentucky, 879 S.W.2d 485 (Ky. 1994), it was held that this general rule of construction also applies to statutory entities created by urban-county governments; and that because the General Assembly enacted no clear statute granting authority to the appellant Board of Health to...