RENDERED: AUGUST 19, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1131-MR

MARION BISCHOFF; PHILLIP 

BISCHOFF; AND TRADEMARK 

EXCAVATING COMPANY, LLC APPELLANTS 

v. 

APPEAL FROM NELSON CIRCUIT COURT

HONORABLE JOHN DAVID SEAY, JUDGE

ACTION NO. 17-CI-00456 

HAROLD BYRD; EARTHWORKS, 

LLC; JERRY ST. CLAIR; SHANNON 

GENTRY; SHELBY WOLF; AND THE 

NELSON FISCAL COURT APPELLEES 

OPINION

AND ORDER DISMISSING

**   **  **

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

CLAYTON, CHIEF JUDGE: Marion Bischoff, Phillip Bischoff, and Trademark 

Excavating Company, LLC (hereinafter “Appellants”) appeal the Nelson Circuit 

Court’s order reversing the Nelson Fiscal Court decision approving a zoning map 
-2-

amendment. After careful review, we grant the motion of Harold Byrd, 

Earthworks, LLC, Jerry St. Clair, Shannon Gentry, Shelby Wolf, and the Nelson 

Fiscal Court (hereinafter “Appellees”) to dismiss this appeal.

This case originated when Marion and his son Phillip applied on 

March 17, 2017, to the Joint City-County Planning Commission of Nelson County 

(the “Commission”) to have a five (5) acre tract of their property re-zoned A-1 

(Agricultural District) to I-1M (Moderate Impact Industrial District). The 

Commission decided to transfer the application to the Nelson Fiscal Court for a 

final determination. The Nelson Fiscal Court ultimately approved the application 

and adopted an ordinance amending the zoning map and the property’s zoning 

classification to I-1M.

Thereafter, Appellees filed an appeal to the Nelson Circuit Court on 

August 3, 2017, challenging the propriety of the Nelson Fiscal Court’s actions. 

The Nelson Circuit Court entered an order reversing the Nelson Fiscal Court on 

June 26, 2019, on the grounds that its decision was arbitrary. Appellants filed a 

notice of appeal in this matter on July 25, 2019. Appellees subsequently moved

for the circuit court to set an appeal bond on August 14, 2019, under Kentucky 

Revised Statute (“KRS”) 100.3471. The parties briefed the issue, and the circuit 

court held a hearing and entered an order requiring Appellants to post a $5,000.00

appeal bond on December 2, 2019. Appellants posted the bond on January 7, 
-3-

2020, and Appellees filed a motion to dismiss this appeal on January 30, 2020,

based on Appellants’ failure to pay the bond required under KRS 100.3471 within 

fifteen (15) days of the circuit court’s determination of the bond amount. See KRS 

100.3471(3)(f). Additionally, on June 22, 2020, this Court entered an order 

directing Appellants to show cause why the constitutionality of KRS 100.3471 

should not be excluded from the issues on appeal based on Appellants’ purported 

failure to give notice to the Attorney General under KRS 418.075. On December 

17, 2020, both the show cause order and the motion to dismiss were subsequently 

passed to this merits panel to determine whether Appellants had preserved their

constitutional arguments and whether the appeal should be dismissed under KRS 

100.3471(3)(f). 

Concerning the show cause order, KRS 418.075 states that:

(1)In any proceeding which involves the validity of a 

statute, the Attorney General of the state shall, before 

judgment is entered, be served with a copy of the 

petition, and shall be entitled to be heard, and if the 

ordinance or franchise is alleged to be 

unconstitutional, the Attorney General of the state 

shall also be served with a copy of the petition and be 

entitled to be heard.

(2)In any appeal to the Kentucky Court of Appeals or 

Supreme Court or the federal appellate courts in any 

forum which involves the constitutional validity of a 

statute, the Attorney General shall, before the filing of 

the appellant’s brief, be served with a copy of the 

pleading, paper, or other documents which initiate the 

appeal in the appellate forum. This notice shall 
-4-

specify the challenged statute and the nature of the 

alleged constitutional defect.

In this case, Appellants produced proof that they served the Kentucky 

Attorney General with a copy of Appellants’ response to Appellees’ motion for 

bond – which raised the constitutional question at issue – on October 8, 2019. 

Additionally, on October 9, 2019, the Nelson Circuit Court entered a calendar 

order postponing a hearing on the matter until the Attorney General had an 

opportunity to respond pursuant to the statute. There is no evidence of a response 

from the Attorney General. 

While the foregoing evidence may satisfy KRS 418.075(1), it does not 

satisfy KRS 418.075(2), which deals with appeals to this Court. Here, we have 

found no evidence that Appellants served the Attorney General with the notice of 

appeal, which is the “document[] which initiate[d] the appeal in the appellate 

forum.” See KRS 418.075(2). The Attorney General is not listed on the certificate 

of service of Appellants’ notice of appeal, and Appellants provided no evidence to 

prove the Attorney General received notice of the appeal. Strict compliance with 

the notification provision is required. Benet v. Commonwealth, 253 S.W.3d 528, 

532 (Ky. 2008); see also A.H. v. Louisville Metro Government, 612 S.W.3d 902, 

912-13 (Ky. 2020). In keeping with this case law and noting Appellants failed to 

present any proof that the Attorney General was notified of this appeal, we decline 

to address the constitutionality of KRS 100.3471(3)(f).
-5-

As previously discussed, on January 30, 2020, Appellees moved to 

dismiss the appeal based on Appellants’ purported failure to timely post an appeal 

bond pursuant to KRS 100.3471. The statute states that “[a]ny party that appeals 

the Circuit Court’s final decision made in accordance with any legal challenge 

under this chapter shall, upon motion of an appellee as set forth in subsection (2) 

of this section, be required to file an appeal bond as set forth in this section.” KRS 

100.3471(1) (emphasis added). Appellees moved for a bond in accordance with 

KRS 100.3471(2) on August 14, 2019. Under KRS 100.3471(3), the Nelson 

Circuit Court granted that motion and set a bond of $5,000.00 by order entered 

December 2, 2019. However, Appellants did not post the bond with the Nelson 

Circuit Court until January 7, 2020. Therefore, we must grant Appellees’ motion 

to dismiss this appeal.

Appellants argued in their response to the motion to dismiss that, 

because this Court entered an order on October 9, 2019, holding this appeal in 

abeyance and did not enter an order reinstating the appeal to the Court’s active 

docket until January 7, 2020, all deadlines associated with the appeal were on hold

– including the deadline for posting the bond under KRS 100.3471. As previously 

discussed, we decline to address the constitutionality of KRS 100.3471. Moreover, 

“we must look first to the plain language of a statute and, if the language is clear, 

our inquiry ends.” University of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 
-6-

2017) (citation omitted). In this case, the specific language of KRS 100.3471

provides that it is the circuit court, not the Court of Appeals, that retains the 

jurisdiction to order an appellant to post an appeal bond. Thus, any deadlines 

associated with the bond are set forth in KRS 100.3471 and are not governed by 

the rules governing the abeyance of an appeal. Therefore, such argument is not 

applicable.

Moreover, even if Appellants had posted a bond with the Nelson 

Circuit Court under KRS 100.3471, their appeal still fails because the Nelson 

Fiscal Court failed to make the findings required to grant any map amendment. 

Under KRS 100.213(1), a fiscal court is required to make 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 
-7-

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

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

Indeed, the Fiscal Court recited only three findings: (1) that a 

distillery operated on the Bischoff Property at one point in the past, (2) a statement 

on the width of the road and describing it as being common throughout the county, 

and (3) that a statement was made “under oath” that “if the property was I-1 at the 

time, even though Planning and Zoning was not in existence, it should be I-1. It 

runs with the property, not the owner, so it would be I-1 forever.” The first two 

findings are factual in nature but are not relevant to the findings required under 

KRS 100.213. The fact that a distillery once operated on the property years before

or a recitation of the measurements of the road in front of the property does not 

indicate a “major change” that altered the “basic character of such area” or “[t]hat 

the existing zoning classification ... [was] inappropriate.” Additionally, the third 

finding does not even address the existing A-1 designation, let alone establish how 

the A-1 designation is inappropriate. Because the Nelson Fiscal Court’s written 

findings do not conform with KRS 100.213, the Nelson Circuit Court properly 

determined that they cannot constitute sufficient evidence to support approving the 

zoning change and related ordinance, rendering the Nelson Fiscal Court’s actions 

arbitrary.
-8-

Therefore, we dismiss Appellants’ appeal for failure to post the bond 

required under KRS 100.3471.

ALL CONCUR.

ENTERED: _August 19, 2022__

CHIEF JUDGE, COURT OF APPEALS

BRIEFS FOR APPELLANTS:

John M. Sosbe

Georgetown, Kentucky

BRIEF FOR APPELLEES:

S. Thomas Hamilton

Bardstown, Kentucky

Jake K. Michul

Lauren R. Nichols

Lexington, Kentucky