Melvin Terrel Nethery and Laura Nethery v. H. Troy Ethington, et al.

Summary

The United States District Court for the Eastern District of Kentucky grants the defendants’ motion for summary judgment and denies the plaintiffs’ cross-motion in a dispute concerning historic-district regulations and a Stop Work Order issued against the plaintiffs’ property. The court holds that the plaintiffs’ takings claim based on the Stop Work Order is unripe because they did not apply for a Certificate of Appropriateness. The court further concludes that the historic-district ordinance does not constitute a regulatory taking under the Penn Central factors.

Holdings

1. The takings claim based on the Stop Work Order was not ripe because the defendants had not reached a final, definitive decision concerning the permissible uses of the property. Plaintiffs were required to apply for a Certificate of Appropriateness before the regulatory process could produce a final decision.
2. The creation and enforcement of the Shelbyville Historic District did not constitute a taking of plaintiffs' property as a matter of law.
3. Plaintiffs did not possess a protected property interest in making exterior alterations without governmental interference because the repairs were unauthorized under the municipal code and plaintiffs had no legitimate claim of entitlement to perform them without first obtaining a Certificate of Appropriateness.
4. Even assuming plaintiffs had a protected property interest, the Stop Work Order provided constitutionally sufficient process.
5. Section 72.004(B) was not unconstitutionally vague, either because of its relationship to the repair requirement in § 72.005 or because it allegedly failed to specify who could issue a Stop Work Order.
6. Plaintiffs could not obtain summary judgment on the theory that the Stop Work Order was unenforceable because the Historic District Commission allegedly failed to follow the ordinance's procedure; that claim was not pleaded and could not be raised for the first time at summary judgment.

Questions Presented

1. Whether the takings claim based on the Stop Work Order was ripe when plaintiffs had not applied for a Certificate of Appropriateness or obtained a final decision from the Historic District Commission.
2. Whether the designation of plaintiffs' property within Shelbyville's historic district constituted a partial regulatory taking under the United States or Kentucky Constitutions.
3. Whether plaintiffs possessed a protected property interest in making exterior repairs without governmental interference and, if so, whether the Stop Work Order provided constitutionally sufficient procedural due process.
4. Whether Shelbyville Code of Ordinances § 72.004(B), considered with related provisions, was unconstitutionally vague.
5. Whether plaintiffs could obtain summary judgment on a claim that the Stop Work Order was unenforceable because the Historic District Commission allegedly failed to follow the ordinance's issuance procedure when that claim was not pleaded in the complaint.

Disposition

other