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

# Commonwealth o f 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 ,- 2

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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 COMMISSI ON ; 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

. C LAYTON , CHIEF JUDGE: Appellants appeal t he 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 restri ction.

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 infrin gement on the separation of powers between the judicial and- 3

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legislative branches, imposes an unconstitutional penalty on the right to appeal, and violate s the equal protection clause s of the U nited S tates and Kentucky Constitutions.

For the following reasons , we affirm the circuit court’s order dismissing t he case for failure to post a bond and hereby dismiss the appeal for lack of jurisdiction

.

FACTUAL AND PROCEDU R AL BACKGROUND
Paul and Linda Barnes g ranted 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, t he Planning Commission could not reach a consensus and forwarded the Application to the Mercer Fiscal Cour t (the “Fiscal Court”) without a recommendation from the Planning Commission.- 4

- 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 th e circuit court of the county where the property is located

. Id.

Appellants ultimately filed a motion for summary judgment

. The circuit court den ied the motion, as the court found substantial evidence to support the Fiscal Court’s decision and , thus, th at 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, t he 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 opti on under the contract with the Company

.- 5

- 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, o n September 30, 2020, t he 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 w rit of prohibition with this Court, which this Court denied on April 7 , 2021 . However, this Court did stay the order dismissing t his case and consolidated this appeal with several other appeals challenging the constitutionality of KRS 100.3471.

We will discuss f

urther facts as they become relevant to this Opinion. ANALYSIS As previously discussed, i n 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 commis sion, or the legislative body of any city, county, or consolidated local government. However, t he 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- 6

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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. KR S 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 t wo 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 li mited 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, t he statute requires the circuit court to di smiss 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).- 7

- Appellants present the following grounds for holding the statute to be unconstitutional: (1) it vi olates 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 U nited S tates 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 pract ice 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 .” ( E mphasis 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’ la nguage . . . authorize s the legislature to prescribe the appellate jurisdiction of the Court of Appeals.” Id

. ( c itations omitted).

In enacting KRS 100.3471, the General Assembly utilized its authority to prescribe this Court’s appellate jurisdiction

. B y 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- 8

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Appeals ’ jurisdiction. Stated another way , KRS 100.3471 provides that the Cou rt 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 brough t a facial challenge to the statute, which is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstance s exists under which the [stat ut e] 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
U nited S tates 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- 9

-

(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

. ( c itation omitted). Indeed, “[a] statute complies with Kentucky equal protection requirements if a ‘ rational basis ’ supports the classific ation s that it creates. ” Id

. at 569 ( c itations 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 qu otation 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 ti mes 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.
T he Kentucky Supreme Court has held that a statute only violates Section 59 if it “applies to a particular in dividual, object or locale.” Calloway C ou nty Sheriff’s Department v. Woodall , 607 S.W.3d 557, 573 (Ky. 2020).- 10

- Moreover, even if Appellants had posted a bond with the c ircuit c ourt under KRS 100.3471, we would still affirm the circuit court because the Fi scal
Court ma d e 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 sup port 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
100.2 13(1). T he 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 neighbo ring parcels having a classification of B

- 3 as commercial business making- 11

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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

zon ing 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 b ased on sound principles of law and are supported by the record

.- 12

- CONCLUSION
We AFFIRM the circuit court’s order and hereby ORDER that this appeal be DISMISSED for lack of jurisdiction because Appellants fail ed 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 , CONCUR RING : 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 s tatutory 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 ul timately 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- 13

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Section 115 of the Kentuc ky Constitution: “In all cases, civil and criminal, there
shall be allowed as a mat t er of right at least one appeal to another cour t . . . . ” By legislatively vesting that additional constitutional jurisdiction in the circuit court, the statute simultane ously 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 explici t 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 reduc ing 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 CR 1 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.- 14

- Second is reliance on Section 111(2) of the Kentu cky 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
proper ty 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, o r 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 prope rly relies upon it

-- as we must. Pursuant to SCR 2

2 Kentucky Rules of Supreme Court.- 15

-

1.0 3 0(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 woul d 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.- 16

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BRIEF S FOR APPELLANT S : W. Henry Grad d y, IV Dorothy T. Rush Versailles, Kentucky
ORAL ARGUMENT FOR APPELLANTS: W. Henry Graddy, IV Versailles, Kentucky BRIEF FOR APPELLEE S 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 COMMONWEA LTH OF KENTUCKY , EX REL. DANIEL CAMERON: Matthew F. Kuhn Brett R. Nolan Courtney E. Albini Assistant Attorneys General Frankfort, Kentucky
ORAL ARGUMENT FOR APPELL EE MERCER COUNTY FISCAL COURT : Whitney Z. Johns Harrodsburg, Kentucky
ORAL ARGUMENT FOR APPELLEES PAUL BARNES AND LINDA BARNES: Stephen A. Dexter Danville, Kentucky- 17

- ORAL ARGUMENT FOR COMMONWEALTH OF KENTUCKY , EX REL. DANIEL CAMERON: Brett Nolan Assistant Attorney General Frankfort , Kentucky