RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0543-MR

RAZ, INC.; ANDREA B. PARROTT; 

BETH STANTON; DANIEL E. NEWETT; 

DANIEL VLIEK; DON MITCHELL; 

DONNA MAJOR; EVELYN HELM; 

GRETCHEN SHEARER; J. WILLIAMSON; 

KATHY CLARK; KIM CARROLL; 

KIM COOPER; ROBERT CLARK; 

ROBERT WILLMOTT; SUSAN VLIEK; 

TERRELL ATWOOD; THORNTON HELM; AND 

VIRGINIA BAILEY APPELLANTS

APPEAL FROM MERCER CIRCUIT COURT

v. HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 19-CI-00194

MERCER COUNTY FISCAL COURT; 

ADAM JOHNSON, CHAIRMAN, 

MERCER COUNTY JOINT PLANNING

AND ZONING COMMISSION; 

BOBBY UPCHURCH, VICE CHAIRMAN, 

MERCER COUNTY JOINT PLANNING AND 

ZONING COMMISSION; COMMONWEALTH 

OF KENTUCKY, EX REL. DANIEL CAMERON, 

ATTORNEY GENERAL; DAARIK GRAY, 

MEMBER, MERCER COUNTY JOINT PLANNING 

AND ZONING COMMISSION; DENNIS HOLIDAY, 
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SIXTH DISTRICT MAGISTRATE; 

DONNIE WEBB, FOURTH DISTRICT 

MAGISTRATE; JACKIE CLAYCOMB, THIRD 

DISTRICT MAGISTRATE; JIM MCGLONE, 

MEMBER, MERCER COUNTY JOINT PLANNING 

AND ZONING COMMISSION; LINDA BARNES; 

MERCER COUNTY JOINT PLANNING AND 

ZONING COMMISSION; MIKE HARDIN, MEMBER, 

MERCER COUNTY JOINT PLANNING AND 

ZONING COMMISSION; MILWARD DEDMAN, 

JUDGE EXECUTIVE; PAUL BARNES; 

RONNIE SIMS, FIRST DISTRICT MAGISTRATE; 

TIM DARLAND, SECOND DISTRICT MAGISTRATE; 

TOM HARDY, MEMBER, MERCER COUNTY JOINT 

PLANNING AND ZONING COMMISSION; AND 

WAYNE JACKSON, FIFTH DISTRICT MAGISTRATE APPELLEES

OPINION AND ORDER

AFFIRMING AND DISMISSING APPEAL

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.

CLAYTON, CHIEF JUDGE: Appellants appeal the Mercer Circuit Court’s order 

upholding the Mercer Fiscal Court’s approval of a zoning map amendment and 

order holding that Appellants had waived the enforcement of a deed restriction. 

Ultimately, the Mercer Circuit Court dismissed the appeal based on 

Appellants’ failure to file an appeal bond as required by its order and Kentucky 

Revised Statute (“KRS”) 100.3471. Appellants argue that the statute is an 

unconstitutional infringement on the separation of powers between the judicial and 
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legislative branches, imposes an unconstitutional penalty on the right to appeal, 

and violates the equal protection clauses of the United States and Kentucky 

Constitutions. 

For the following reasons, we affirm the circuit court’s order 

dismissing the case for failure to post a bond and hereby dismiss the appeal for 

lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Paul and Linda Barnes granted Kentucky Lodging and Development 

Company, Inc. (the “Company”) an option to purchase real property located in 

Mercer County, Kentucky, for the purchase price of $60,000. The purchase was

contingent upon the property meeting “all requirements . . . of state and federal 

government agencies.” The Company intended to construct a Dollar General Store

on the property. 

Paul and Linda applied for a map amendment (the “Application”) to 

the Mercer County Joint Planning and Zoning Commission (the “Planning

Commission”) for rezoning their land from its classification of R-3 to B-3. 

Appellants objected to the zoning change of the property. Ultimately, the Planning 

Commission could not reach a consensus and forwarded the Application to the 

Mercer Fiscal Court (the “Fiscal Court”) without a recommendation from the 

Planning Commission.
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On July 9, 2019, the Fiscal Court approved the zoning change of the 

property. Thereafter, Appellants filed a “Complaint and Petition for Declaration of 

Right” with the Mercer Circuit Court under KRS 100.347. Such statute allows 

anyone “aggrieved by any final action of the legislative body of any city . . .

relating to a map amendment” to appeal the action to the circuit court of the county 

where the property is located. Id.

Appellants ultimately filed a motion for summary judgment. The 

circuit court denied the motion, as the court found substantial evidence to support 

the Fiscal Court’s decision and, thus, that the decision was not arbitrary. The 

circuit court also denied Appellants’ motion to alter, amend, or vacate in an order 

entered on March 18, 2020.

Appellants filed a notice of appeal to this Court on April 13, 2020. 

On May 12, 2020, Appellees filed a motion requesting that the circuit court set an 

appeal bond amount under KRS 100.3471, which requires a circuit court, “upon 

motion of an appellee . . . to [set] an appeal bond[.]” Thereafter, the circuit court 

held a bond hearing on June 10, 2020. On June 18, 2020, the circuit court entered 

an order finding that the appeal was not frivolous and, on June 29, 2020, entered an 

order requiring Appellants to deposit $60,000 as an appeal bond based on the value 

of the option under the contract with the Company. 
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On August 4, 2020, Appellees filed a motion arguing that both KRS 

100.3471(3)(f) and the circuit court’s order required Appellants to post the $60,000 

bond within fifteen (15) days of its order, and Appellants had failed to do so. As a 

result, on September 30, 2020, the circuit court entered an order dismissing the 

case due to Appellants’ failure to post the required bond within the period required 

by the statute. Appellants thereafter filed a petition for a writ of prohibition with 

this Court, which this Court denied on April 7, 2021. However, this Court did stay 

the order dismissing this case and consolidated this appeal with several other 

appeals challenging the constitutionality of KRS 100.3471. 

We will discuss further facts as they become relevant to this Opinion.

ANALYSIS

As previously discussed, in planning and zoning matters, KRS 

100.347 provides for appeals to the circuit court from the final actions of the board 

of adjustment, the planning commission, or the legislative body of any city, 

county, or consolidated local government. However, the statute at issue here –

KRS 100.3471 – seeks to limit the subsequent appeals of such cases to the Court of 

Appeals. 

To this end, the statute provides for the imposition of a bond on the 

appellant upon motion by the appellee. KRS 100.3471(1). If a party appeals a 

circuit court’s decision in a planning or zoning matter, the appellee has thirty days 
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to file a motion for such a bond. KRS 100.3471(2). The circuit court is thereafter 

required to hold a hearing to set the amount of the bond, the maximum amount of 

which is based on the circuit court’s determination of whether the appeal is 

presumptively frivolous or not. KRS 100.3471(3).

If the court finds that the appeal is presumptively frivolous, after 

considering such factors as whether “the appeal is of a ministerial or discretionary 

decision[,]”and whether or not there exists “a reasoned interpretation supporting 

the appellant’s position[,]” it “shall consider all costs, economic loss, and damages 

that the appellee may suffer or incur during the pendency of, or that will be caused 

by, the appeal, including attorney fees and court costs, up to a maximum bond 

amount of two hundred fifty thousand dollars ($250,000).” KRS 100.3471(3)(b) 

and (c).

If the court finds that the appeal is not presumptively frivolous, it 

“shall consider the costs that the appellee may incur during the pendency of the 

appeal, including but not limited to attorney fees and court costs, plus interest 

payable on land acquisition or development loans, up to a maximum bond amount 

of one hundred thousand dollars ($100,000).” KRS 100.3471(3)(d).

Importantly, the statute requires the circuit court to dismiss the appeal 

if the appellant does not post the bond within fifteen days of the circuit court’s 

determination of the bond amount. KRS 100.3471(3)(f).
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Appellants present the following grounds for holding the statute to be 

unconstitutional: (1) it violates the Kentucky Constitution’s separation of powers; 

(2) it imposes an unconstitutional penalty on the right to appeal found in Section 

115 of the Kentucky Constitution; (3) it violates the right to equal protection under 

the United States Constitution and the Kentucky Constitution; and (4) it constitutes 

impermissible special legislation.

Regarding Appellants’ separation of powers argument, Kentucky 

Constitution Section 116 vests exclusive jurisdiction in the Supreme Court to 

prescribe “rules of practice and procedure for the Court of Justice.” However, 

Section 111(2) of the Constitution further states that the Court of Appeals “shall 

exercise appellate jurisdiction as provided by law.” (Emphasis added.) As our 

Supreme Court noted in Commonwealth v. Farmer, “[j]urisdiction is a threshold 

consideration for any court at any level of the Kentucky court system.” 423 

S.W.3d 690, 692 (Ky. 2014). As the Court further discussed, “[t]he ‘as provided 

by law’ language . . . authorizes the legislature to prescribe the appellate 

jurisdiction of the Court of Appeals.” Id. (citations omitted).

In enacting KRS 100.3471, the General Assembly utilized its 

authority to prescribe this Court’s appellate jurisdiction. By stating that an “appeal 

shall be dismissed” if the appellant fails to post the necessary bond within the 

appropriate time, KRS 100.3471 removes such an appeal from the Court of 
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Appeals’ jurisdiction. Stated another way, KRS 100.3471 provides that the Court 

of Appeals’ jurisdiction only encompasses appeals in which the appellant timely 

posts the required bond. Because Section 111 of the Kentucky Constitution allows

the legislature to define the Court of Appeals’ jurisdiction, the General Assembly 

did not violate the separation of powers in enacting KRS 100.3471. Rather, the 

General Assembly employed the power given to it by the Constitution.

Nor do we believe that the statute levies a penalty on prospective

appellants that functions to take away their right to appeal under Section 115 of the 

Constitution. Appellants have brought a facial challenge to the statute, which is 

“the most difficult challenge to mount successfully, since the challenger must 

establish that no set of circumstances exists under which the [statute] would be 

valid.” Harris v. Commonwealth, 338 S.W.3d 222, 229 (Ky. 2011) (internal 

quotation marks and citation omitted); see also Commonwealth v. Bredhold, 599 

S.W.3d 409, 415-16 (Ky. 2020). Here, Appellants are unable to make such a 

showing and have neither argued nor shown that they are indigent or otherwise 

incapable of satisfying the bond requirement.

Finally, the statute does not violate the equal protection clauses of the 

United States or the Kentucky Constitution. “[T]he level of judicial scrutiny 

applied to an equal protection challenge depends on the classification made in the 

statute and the interest affected by it.” Zuckerman v. Bevin, 565 S.W.3d 580, 595 
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(Ky. 2018) (citation omitted). Statutes that affect economic policy are subject “to a 

less searching form of judicial scrutiny, i.e.[,] the ‘rational basis’ test.” Id. (citation 

omitted). Indeed, “[a] statute complies with Kentucky equal protection 

requirements if a ‘rational basis’ supports the classifications that it creates.” Id. at 

569 (citations omitted). 

KRS 100.3471 survives such scrutiny, as “there is [a] reasonably 

conceiv[ed] state of facts that could provide a rational basis for the classification.” 

Zuckerman, 565 S.W.3d at 596 (internal quotation marks omitted). The General 

Assembly stated the statute’s purpose in Section 2 of House Bill 72 as follows: “to 

curb unnecessary appeals of land[-]use cases, which appeals burden the courts, 

cause loss of jobs and loss of tax revenue, and many times render time-sensitive 

projects such as multifamily affordable housing projects undevelopable[.]” Ky. 

Laws ch. 181 (H.B. 11) (eff. Apr. 11, 2017). Thus, a rational basis existed for 

KRS 100.3471. 

Finally, KRS 100.3471 does not constitute “special legislation” in 

violation of Section 59 of the Kentucky Constitution, as argued by Appellants. 

The Kentucky Supreme Court has held that a statute only violates Section 59 if it 

“applies to a particular individual, object or locale.” Calloway County Sheriff’s 

Department v. Woodall, 607 S.W.3d 557, 573 (Ky. 2020).
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Moreover, even if Appellants had posted a bond with the circuit court 

under KRS 100.3471, we would still affirm the circuit court because the Fiscal 

Court made sufficient findings required to grant the zoning change. KRS 

100.213(1) requires a fiscal court to make one of the following findings before it 

approves a zoning change:

a. That the zoning change is in agreement with the 

adopted comprehensive plan;

b. That there have been major changes in the economic, 

physical, or social nature within the area involved 

which were not anticipated in the adopted 

comprehensive plan and which have substantially 

altered the basic character of such area; or

c. That the existing zoning classification given to the 

property is inappropriate and that the proposed zoning 

classification is appropriate. 

Further, when making “a zoning change, [a fiscal court] must make a finding of 

adjudicative facts necessary to support the change. These findings must be made 

from (and supported by) the evidence heard by the Planning Commission[.]” 

Manley v. City of Maysville, 528 S.W.2d 726, 728 (Ky. 1975).

In this case, the Fiscal Court made the required findings under KRS 

100.213(1). The Fiscal Court conceded that the zoning classification sought differs 

from the future land use map within the comprehensive plans. However, the Fiscal 

Court found that “[t]he existing zoning classification is inappropriate due to several 

neighboring parcels having a classification of B-3 as commercial business making 
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the subject parcel unusable for residential use.” Additionally, the Fiscal Court 

found that “[t]he parcel is no longer appropriate for agricultural or open space due 

to neighboring parcels being rezoned from R-3 to B-3 and which now house 

commercial storage which have brought significant commercial and business 

activity as well as physical changes to the area.” 

Moreover, such findings were supported by substantial evidence. A 

zoning decision must be supported by substantial evidence adduced during the 

hearing. City of Louisville v. McDonald, 470 S.W.2d 173, 179 (Ky. 1971). 

Appellees presented testimony at the public hearing that several neighboring 

parcels were changed to a B-3 classification in 2014 and 2016. Based on the 

record developed at the public hearing before the Planning Commission, 

substantial evidence supports the Fiscal Court’s decision changing the zoning 

classification. 

Further, regarding the deed restriction, the circuit court’s order of 

dismissal, order denying the motion to reconsider, and order denying the motion to 

alter, amend, or vacate are all based on sound principles of law and are supported 

by the record.
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CONCLUSION

We AFFIRM the circuit court’s order and hereby ORDER that this 

appeal be DISMISSED for lack of jurisdiction because Appellants failed to timely 

post the bond required under the circuit court’s order and KRS 100.3471.

DIXON, JUDGE, CONCURS. 

COMBS, JUDGE, CONCURS AND FILES SEPARATE OPINION. 

ENTERED:_September 30, 2022___ _________________________________

CHIEF JUDGE, COURT OF APPEALS

COMBS, JUDGE, CONCURRING: This case presents both a legal and a 

philosophical conundrum. Philosophically, it entails an analysis of what are the 

practical and proper parameters of the constitutional doctrine of separation of 

powers. Legally, it compels a careful construction of statutory law versus

constitutional restraints on legislative enactments.

 In essence, the statute at issue in this case, KRS l00.3471, creates a 

whole new process for cases involving appeals from a zoning entity to a circuit 

court and ultimately to the Court of Appeals for the purpose of expediting the time 

involved. It empowers a circuit court with jurisdiction to determine whether its 

own decision may be worthy of appeal in arguable disregard of the mandate of 
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Section 115 of the Kentucky Constitution: “In all cases, civil and criminal, there 

shall be allowed as a matter of right at least one appeal to another court . . . .” By 

legislatively vesting that additional constitutional jurisdiction in the circuit court, 

the statute simultaneously divests the constitutionally guaranteed appellate 

jurisdiction of the Court of Appeals.

 Additionally, it authorizes the circuit court to set an appeal bond 

wholly within its own discretion -- in potential conflict with the explicit mandatory 

language of Section 115 of the Kentucky Constitution providing: “Procedural 

rules shall provide for expeditious and inexpensive appeals.”

 I will not address the pros and cons of the stated legislative purpose 

of reducing the time entailed in the appeal of zoning matters. Suffice it to note that 

procedural expediency is potentially elevated above -- and in derogation of -- the 

right of appeal of litigants and the authority of the judicial branch to separately 

determine the parameters of its own jurisdiction.

 The legislative policy is premised on two provisions.

 First is CR1 1(2), which provides as follows: 

These Rules govern procedure and practice in all actions 

of a civil nature in the Court of Justice except for special 

statutory proceedings, in which the procedural 

requirement of the statute shall prevail over any 

inconsistent procedures set forth in the Rules.

1 Kentucky Rules of Civil Procedure.
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 Second is reliance on Section 111(2) of the Kentucky Constitution, 

which discusses the breadth of the jurisdiction of the Court of Appeals: “In all 

other cases [other than those prescribed by the Supreme Court], it shall exercise 

appellate jurisdiction as provided by law.” (Emphasis added.) 

 It is black-letter law that where a right is statutorily conferred, there 

must be strict compliance with the statutory provisions governing access to 

appeals. Zoning entities are indeed statutory in origin. However, many of the 

property issues underlying disputes entailed in zoning matters or litigation arise 

from common-law concepts of property rights -- one of the oldest pillars of our 

legal system. What, then, does the language “as provided by law” intimate, 

encompass, guarantee, or limit in scope in this area of the law?

 Most pertinent (and concerning) of all for our review is the language 

enunciated by our Supreme Court construing that very phrase as follows: “[t]he 

‘provided by law’ language . . . authorizes the legislature to prescribe the appellate 

jurisdiction of the Court of Appeals.” Commonwealth v. Farmer, 423 S.W.3d 690, 

692 (Ky. 2014).

 The Farmer holding appears to be the answer to the case before us, 

and the majority opinion properly relies upon it -- as we must. Pursuant to SCR2

2 Kentucky Rules of Supreme Court.
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1.030(8)(a), we are compelled to follow the precedent of the Supreme Court. For 

that reason, I am constrained to write a separate concurrence rather than a dissent.

 Therefore, I would hope that the Supreme Court will grant 

discretionary review of this case (if it is sought) and re-examine its holding in 

Farmer. I would ask whether the language “to prescribe” our jurisdiction also 

encompasses the power “to proscribe” it and thereby to divest us of jurisdiction by 

transferring our appellate role to a circuit court under the unique circumstances set 

forth by KRS 100.3471. 

 With respect to Section 27’s division of government powers among 

the legislative, executive and judicial departments, Section 28 of the Kentucky 

Constitution expressly admonishes as follows: “No person or collection of 

persons, being of one of those departments, shall exercise any power properly 

belonging to either of the others . . . .” (Emphasis added.)

 This case gives pause and merits a re-examination of the doctrine of 

separation of powers and what powers properly belong to which branch with 

regard to KRS 100.3471.
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BRIEFS FOR APPELLANTS:

W. Henry Graddy, IV

Dorothy T. Rush

Versailles, Kentucky

ORAL ARGUMENT FOR 

APPELLANTS:

W. Henry Graddy, IV

Versailles, Kentucky

BRIEF FOR APPELLEES MERCER 

COUNTY FISCAL COURT; 

MERCER COUNTY JOINT 

PLANNING AND ZONING 

COMMISSION; PAUL BARNES; 

AND LINDA BARNES:

Whitney Z. Johns

Harrodsburg, Kentucky

David Patrick

Harrodsburg, Kentucky

Stephen A. Dexter

Danville, Kentucky

BRIEF FOR APPELLEE 

COMMONWEALTH OF 

KENTUCKY, EX REL. DANIEL 

CAMERON:

Matthew F. Kuhn

Brett R. Nolan

Courtney E. Albini

Assistant Attorneys General

Frankfort, Kentucky

ORAL ARGUMENT FOR 

APPELLEE MERCER COUNTY

FISCAL COURT:

Whitney Z. Johns

Harrodsburg, Kentucky

ORAL ARGUMENT FOR 

APPELLEES PAUL BARNES AND 

LINDA BARNES:

Stephen A. Dexter

Danville, Kentucky
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ORAL ARGUMENT FOR 

COMMONWEALTH OF 

KENTUCKY, EX REL. DANIEL 

CAMERON:

Brett Nolan

Assistant Attorney General

Frankfort, Kentucky