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Newberry v. City of Newport3/11/2005
AFFIRMING
When Jerry Newberry's application to raze a building in the East Row Historic Preservation District (ERHPD) was denied, he sued the City of Newport and the Newport Historic Preservation Commission (NHPC), along with City and NHPC officials in their individual capacities (City). Discovery proceeded and each side filed summary judgment motions. After several months, Newberry filed a second application to demolish the same building. The second application was approved. The City then moved to dismiss the lawsuit, asserting that approval of the second application mooted the issues raised in the lawsuit. The circuit court agreed and granted summary judgment for the City. Newberry appealed. We affirm.
NEWPORT'S ERHPD
In 1987, the City passed an ordinance creating the NHPC. The ordinance, which was enacted under KRS 82.206, authorized the City to designate and regulate "landmarks, landmark sites and historic districts," and to provide for "penalties for the violation thereof." Three years later, the City passed a second ordinance establishing the boundaries of the ERHPD. And, in 1999, the City enacted a final ordinance adopting the revised "historic district design review guidelines" for regulation of the ERHPD.
Included in the 1999 ordinance is a section highlighting the requirements for demolition within the ERHPD. The ordinance reads:
Demolition of buildings within the East Row Historic District must be approved by the Historic Preservation Commission except in cases where there is a threat to the public safety. The purpose of historic zoning is to protect historic properties and the demolition of a building which contributes historically or architecturally to the character of the district is inappropriate and shall be avoided. Demolition shall only occur where it has been demonstrated that public safety is threatened; if economic hardship has been determined and the demolition is approved by the Historic Preservation Committee; or for building or additions which are of a later time period, have lost their original architectural integrity, or do not contribute to the neighborhood's streetscape as determined by the Historic Preservation Committee. A property owner within the ERHPD wanting to demolish a building must file a Certificate of Appropriateness (COA) application with the NHPC. The NHPC will consider the merits of the request, then vote to either approve or deny the application. If a COA application is denied, the ordinance provides for an appeal to the Newport Board of Commissioners (NBOC) under Newport Code 12,7-7.
NEWBERRY'S CONFLICT WITH ERHPD
Newberry owns several houses in the ERHPD; two of the houses are located at 206 and 216 Park Avenue. After the City enacted an ordinance eliminating on-street parking along Park Avenue, Newberry filed a COA to demolish the building located at 206 Park Avenue. He was concerned that the elimination of on-street parking would discourage renters for his property at 216 Park Avenue. So he wanted to raze 206 Park Avenue and pave the lot for parking. According to Newberry, 206 Park Avenue was in "such disrepair, it would be cost prohibitive to repair it." Newberry estimated that repairing 206 Park Avenue would cost him over $80,000.
NHPC received the COA application on October 9, 2001. And it held its hearing on Newberry's demolition application on October 24, 2001. Newberry explained to the committee that the reason for his application was the elimination of on-street parking on Park Avenue. Newberry stated:
Without the parking on Park Ave., the building at 216 Park?the four family, no one is going to rent there. Even with the parking ac
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