Bluegrass Trust for Historic Preservation v. Lexington Fayette Urban County Government Planning Commission

• Court: Kentucky Supreme Court
• Decided: August 22, 2024
• Docket: 2022-SC-0480
• Status: Published

Opinion

RENDERED: AUGUST 22, 2024 TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0480-DG

BLUEGRASS TRUST FOR HISTORIC APPELLANTS PRESERVATION

V. ON REVIEW FROM COURT OF APPEALS NO. 2020-CA-0726 FAYETTE CIRCUIT COURT NO.18-CI-03781

LEXINGTON FAYETTE URBAN COUNTY APPELLEES GOVERNMENT PLANNING COMMISSION; COMMONWEALTH OF KENTUCKY, EX REL. RUSSELL COLEMAN, ATTORNEY GENERAL; THE RESIDENCES AT SOUTH HILL, LLC; AND WILLIAM WILSON

OPINION OF THE COURT BY JUSTICE CONLEY

AFFIRMING IN PART AND REVERSING IN PART

Kentucky Revised Statute (KRS) 100.3471 authorizes the circuit court to

impose an appeal bond on all appeals from the circuit court in cases involving

KRS Chapter 100 disputes; that is, involving zoning and land use disputes.

When this bond is imposed it operates as a jurisdictional requirement upon the

Court of Appeals, and failure to post the bond requires dismissal of the appeal.

The constitution, however, guarantees every Kentuckian at least one right of

appeal to the next highest court. Ky. Const. § 115. These cases present the

question of whether KRS 100.3471 is constitutional. Striking down a statute as

unconstitutional is the gravest power this Court possesses and must be exercised with great caution. When it is shown, however, that a statute on its

face cannot under any circumstances be constitutionally enforced, then

striking down that statute as null, void, and of no effect is the only remedy.

Accordingly, we hold KRS 100.3471 is unconstitutional since it encumbers the

individual right of Kentuckians to at least one appeal; and, in so doing, it

invades the rule-making power of this Court and operates to strip the Court of

Appeals of its inherent appellate jurisdiction. For the following reasons, we

reverse the Court of Appeals but affirm the circuit court on the underlying

merits.

I. Facts

Beauty, it is often said, is in the eyes of the beholder. This case raises the

question of whether contribution to historical character is also in the eyes of

the beholder. The Commonwealth Building, located within the H-1 Historical

Overlay Zone of South Hill Historic District in Lexington, was built in 1958 or

1960. 1 The Appellants describe it as “a rare and increasingly threatened mid-

twentieth century modern commercial structure[.]” The building had been

owned by the Commonwealth of Kentucky until its purchase in 2017 by The

Residences at South Hill, LLC (The Residences). After a year of ownership, The

Residences sought a Certificate of Appropriateness from the Board of

Architectural Review (BOAR) to demolish the building and erect a five-story

apartment complex. The BOAR approved the certificates. Several appeals were

1 The record is ambiguous as it states the building was constructed in 1958 but

also that the South Hill Historic District was designated in 1978 and the Commonwealth Building existed for eighteen years prior. 2 taken from that decision by interested parties. The Residences appealed certain

conditions imposed by the BOAR. The Historic South Hill Neighborhood

Association (HSHNA) appealed concerning the BOAR’s conclusion that there

was no reasonable economic return on the property and to disallow demolition

would amount to a taking of The Residences’ property. Instead, the HSHNA

supported demolition on the basis that the Commonwealth Building is a non-

contributing structure to the historic character of South Hill. Bluegrass Trust

for Historic Preservation (Bluegrass Trust) appealed the certificate for

demolition outright, arguing the Commonwealth Building can provide a

reasonable economic return with renovations, and that the building does

contribute to the historic character of South Hill.

The Planning Commission heard the appeal de novo. The record discloses

that several expert and lay persons testified regarding the specific question of

whether the Commonwealth Building is a contributing structure to the historic

character of South Hill. Prior to that hearing, The Residences and HSHNA

reached an agreement that they would ask the Commission to approve

demolition solely on that issue of non-contribution rather than on the

economic viability and taking question. 2 The first staffer to testify was Ms.

Keyu Yan. Ms. Yan testified the Kentucky Heritage Council confirmed the

Commonwealth Building is not a contributing structure by federal standards,

nor was the building in the process of being listed as such. She also testified an

2 The HSHNA was concerned that approval of demolition based on that theory

would set a dangerous precedent for other buildings not only in its historic district, but others as well. 3 inventory from the National Register of Historic Places was submitted by the

Heritage Council, describing the Commonwealth Building as a “two-story large

white brick building.”

Ms. Yan further testified the South Hill district is characterized by

Federal and Greek Revival architecture, as well as Italianate and Queen Anne

styles, per the H-1 Design Review Guidelines’ Brief Overview of Lexington’s

Historic Districts and Landmarks. She also stated the 2009 Downtown

Lexington Building Inventory, prepared by the Division of Historic Preservation,

did not include the Commonwealth Building when describing the South Hill

district. Ms. Yan concluded her testimony by recommending demolition based

on the non-contributory character of the structure to the historic district.

Next, a Ms. Kerr for the Historic Preservation staff testified. She testified

the State Historic Preservation Office does have the Commonwealth Building

listed as a contributing structure. She further commented that the mid-

twentieth century style of the Commonwealth Building is not necessarily a

negative as compared to the rest of the South Hill district, as all H-1 zones

contain a wide-range of architectural styles. Berry Dennis then testified, also

on behalf of the Historic Preservation staff. He testified the staff did not

recommend demolition to the BOAR; and to the contrary, concluded demolition

would adversely affect the district. The staff concluded the Commonwealth

Building is significant and contributes to the character of the district, in that

the architectural design is “sadly under-appreciated and disappearing[.]”

4 The next to testify were attorneys for respective parties and various

citizens. Both sides were supported by the various citizens, so we pass over

their arguments and testimony. David Cohen, chairman of the LFUCG Historic

Preservation Commission, testified the building is included in the H-1 Overlay

district and does contribute to the character of the district. Finally, Jackson

Oslan read a letter from the State Historic Preservation Office. This letter

detailed that Office’s opinion that the Commonwealth Building is a contributing

structure because of its eligibility for inclusion on the National Register for

Historic Places in 2018; as well as its demonstration of architectural variety

and brick-and-mortar history of Lexington.

The Planning Commission voted to uphold the BOAR’s decision, and

issued its own findings of fact, to wit: the age of the Commonwealth Building

“differs dramatically from the age of the buildings that formed the basis for the

creation of the South Hill Historic District[,]” and that the National Historic

Register of Historic Places Nominating Form did not list the building or its

architectural style, instead referring to those styles from the 19th and early

20th centuries. Second, the mid-twentieth century design of the building is

“dramatically different” from those other architectural styles. These two factors

combined demonstrate the Commonwealth Building was not considered when

establishing the South Hill Historic District or considered a contributing

structure at the time of the establishment of the district. Third, that cosmetic

modifications to the exterior, including windows, stairs, and railings over the

years, had rendered the structure “not even an intact example of the

5 architecture of the period in which it was constructed.” Finally, because the

building had been owned for almost its entire existence by the Commonwealth,

it had undergone internal and external modifications without oversight by the

BOAR. The Commission concluded,

the building does not add to the District’s sense of time and place or historical development. The building, because of its age, architecture, location and use, was never effectively part of the South Hill neighborhood. The building is simply a one-of-a-kind structure built and operated by the Commonwealth of Kentucky which has had no influence on other buildings or development within the District. Bluegrass Trust appealed. The Fayette Circuit Court concluded the

Planning Commission’s action was supported by substantial evidence. After

summarizing the various testimonies and evidence the circuit court opined,

This Court agrees that BGT did present a compelling case at the hearing in support of its position. Much like a jury evaluating evidence presented to it in trial, the Planning Commission heard from all sides in this dispute and was tasked with the responsibility of weighing the information, accessing [sic] credibility and drawing reasonable inferences as it applied that to the ordinances. The party presenting the most witnesses or the only “expert" witnesses does not necessary prevail. This Court is of the belief that information, evidence and argument presented by South Hill at the Planning Commission hearing was enough to satisfy the “substantial evidence” standard that this Court must adhere to. There was enough evidence and information upon which a reasonable member of the Planning Commission could find as he/she did. Bluegrass Trust appealed again. It is unnecessary to detail the record

regarding the appeal bond, except to note that Bluegrass Trust did not post the

bond and instead argued it had insufficient funds as a charitable organization

to do so. The Court of Appeals concluded KRS 100.3471 is constitutional and

6 therefore it did not have jurisdiction because of Bluegrass Trust’s failure to

post the ordered bond. The Court of Appeals nonetheless briefly offered in

dictum that had it jurisdiction, it would affirm the trial court.

II. Standards of Review This case presents two pure questions of law as to the constitutionality of

KRS 100.3471. “It is a well established principle that ‘a facial challenge to a

legislative Act is ... the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists under which the

Act would be valid.’” Harris v. Commonwealth, 338 S.W.3d 222, 229 (Ky. 2011)

(quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)). The alleged violation must

be “clear, complete, and unmistakable in order to find the law

unconstitutional.” Id. (quoting Kentucky Industrial Utility Customers, Inc. v.

Kentucky Utilities Co., 983 S.W.2d 493, 499 (Ky. 1998)). Questions of

constitutional and statutory construction are reviewed de novo by this Court,

and we give no deference to the lower courts. Louisville and Jefferson Cnty.

Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 535 (Ky. 2007). When

interpreting both the constitution and statutes, we understand the words used

in their plain and ordinary meaning. Westerfield v. Ward, 599 S.W.3d 738, 747

(Ky. 2019). Our task is to effectuate the intent of the framers, and it is

“presumed that in framing the constitution great care was exercised in the

language used to convey its meaning and as little as possible left to

implication.” Id. at 748 (quoting City of Louisville v. German, 150 S.W.2d 931,

935 (Ky. 1940)).

7 Generally, it is not within the province of this Court to question the

purposes of a statute—"the propriety, wisdom and expediency of statutory

enactments are exclusively legislative matters.” Hallahan v. Mittlebeeler, 373

S.W.2d 726, 727 (Ky. 1963). Nonetheless, when it comes to the separation of

powers, we have recognized the indubitable principle that “the power to declare

a legislative enactment unconstitutional when its enactment violates

constitutional principles is solidly within the Court's constitutional authority.”

Bevin v. Commonwealth ex re. Beshear, 563 S.W.3d 74, 82 (Ky. 2018). “To avoid

deciding the case because of ‘legislative discretion,’ ‘legislative function,’ etc.,

would be a denigration of our own constitutional duty.” Id. (quoting Rose v.

Council for Better Education, Inc., 790 S.W.2d 186, 209 (Ky. 1989)). Moreover, it

is the judiciary “to whom the protection of the rights of the individual is by the

constitution especially confided, interposing its shield between him and the

sword of usurped authority, the darts of oppression, and the shafts of faction

and violence.” St. George Tucker, View of the Constitution of the United States

With Selected Writings 91, 293 (Liberty Fund, Inc., 1999). In the circumstances

presented by this case, “[t]o desist from declaring the meaning of constitutional

language would be an abdication of our constitutional duty.” Bevin, 563

S.W.3d at 83.

As to the underlying merits, we review this matter for arbitrariness.

American Beauty Homes Corp. v. Louisville and Jefferson County Planning and

Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964). Essentially this focuses

our review on “(1) action in excess of granted powers, (2) lack of procedural due

8 process, and (3) lack of substantial evidentiary support[.]” Id. at 454.

Nonetheless, “[i]t is possible that other apparently unrelated matters of law

may be considered. Judicial review of legal questions cannot be impaired by the

legislature.” Id. at 456-57 (internal footnote omitted). While review for

arbitrariness is one of the laxer standards of review employed by courts, that

should not distract from the fact that this standard

is basically founded upon the independent exercise of judicial power, and limitations imposed by the legislature will not prevail if they fail to protect the legal rights of a complaining party. As we have heretofore indicated, the courts can and will safeguard those rights when questions of law properly present the ultimate issue of arbitrary action on the part of an administrative agency. Id. at 457. Simply put, arbitrary power cannot exist in this Commonwealth. Ky.

Const. § 2. Where it does exist, it must be extinguished. When it is found, “it is

the sworn duty of the court to enforce provisions of the Constitution

irrespective of the consequences.” Dalton v. State Prop. and Bldg. Comm’n, 304

S.W.2d 342, 345 (Ky. 1957).

Bluegrass Trust contends the Planning Commission engaged in a mixed

question of law and fact, and that its action fundamentally concerned the

interpretation of a zoning ordinance which calls for de novo review by this

Court. We reject that argument. American Beauty Homes is unequivocal that de

novo review of planning and zoning actions essentially nullifies the “steps taken

before the Commission[,]” and renders the “detailed administrative process . . .

a mockery.” Id. at 455. Consequently, a de novo review “does not constitute a

proper judicial review of this administrative action[.]” Id. at 456. We do agree

9 questions of law are fit for de novo review, as this Court is the final authority

on “what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). The

Commission’s action, however, was not an interpretation of an ordinance but

rather a determination of whether the conditions imposed by that ordinance

had been met as to justify demolition. That is a question of fact reviewed for

substantial evidentiary support. That standard requires only “evidence of

substance and relevant consequence having the fitness to induce conviction in

the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical Co., 474

S.W.2d 367 (Ky. 1971).

III. Analysis KRS 100.3471 was passed in 2017 and represents the General

Assembly’s contribution to the interminable struggle against frivolous appeals.

The General Assembly declared that such unnecessary appeals in KRS Chapter

100 cases burden the courts, cause loss of jobs and tax revenue, and prevent

time-sensitive projects from being completed. Acts of General Assembly,

Chapter 181, H.B. 72 § 2. The statute, in pertinent part, reads, “Any 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). Within thirty days after the filing of a notice of

appeal, “any appellee may file a motion for the Circuit Court, pursuant to the

jurisdictional authority established in Rule 73.06 of the Kentucky Rules of Civil

Procedure, to order the appellant to post an appeal bond, which the Circuit

10 Court shall impose, subject to the other requirements of this sections.” Id. at

(2). The circuit court must then determine whether it believes the appeal is

presumptively frivolous or in good faith. If the former, then the bond the circuit

court imposes is set at a maximum of $250,000. Id. at (3)(c). If the latter, then

the maximum amount of the bond is $100,000. Id. at (3)(d). If a bond is

ordered it must be posted within fifteen days, or the appeal must be dismissed.

Id. at (3)(f). After the Court of Appeals’ decision becomes final, “either the

appellant or appellee” may seek costs and damages in the circuit court “to be

paid to the appellee under the appeal bond”. Id. at (4)(a). The costs and

damages are “limited to the amount of the appeal bond.” Id. at (4)(c).

A. Legislative Authority to Mandate Appeal Bonds

Bonds on appeal have been a part of Kentucky’s history since the

beginning. We have previously noted that the first act establishing the Court of

Appeals in 1792 provided for a bond. Phillips v. Green, 155 S.W.2d 841, 843

(Ky. 1941). 3 These bonds have always been understood as a penalty or a tax.

Id. In what appears to be the first case considering appeal bonds, the

legislature’s authority not only to mandate appeal bonds, but to mandate the

procedures as to when, where, and how that appeal bond should be posted was

upheld. Hardin v. Owings, 4 Ky. 214 (1808). The authority to mandate appeal

bonds was predicated on legislative supremacy.

The legislative body is the supreme power of the State, and whenever it acts within the pale of its constitutional authority, the

3 It would appear, however, that the Phillips court was referring to something

very much akin to a supersedeas bond, if not exactly that; and as is made clear below, the appeal bond here is not analogous to a supersedeas bond. 11 judiciary is bound by it, and it is not competent to the latter tribunal to dispense with a regulation or requisition plainly prescribed by the former (its superior), or to say that this mode, that, or the other, is as good as the one dictated by the legislature[.]

Id. at 215. The constitutions of Kentucky as they existed prior to adoption of

the 1974 Judicial Amendments all provided that the General Assembly could

regulate the appellate jurisdiction of the judiciary and could grant or withhold

a right of appeal. Ky. Const. Art. IV, § 2 (1799); Ky. Const. Art. IV, §§ 2; 18

(1850); Ky. Const. Art. IV, §§ 115; 132 (1891). As one opinion declared, “no one

has an inherent right to appeal from a court judgment, and that the right to do

so, in the absence of some constitutional provision to the contrary, rests

exclusively with the Legislature, and which it may grant or withhold at its

discretion.” Caddell v. Fiscal Court of Whitley Cnty., 79 S.W.2d 407, 408 (1935).

Indeed, our predecessor court even recognized that in cases involving the

constitutionality of a statute, it could do nothing if the General Assembly did

not provide for an appeal—“we have no power to review except where they are

brought before us within the time and in the manner prescribed by the

Legislature.” Commonwealth ex rel. Dummit v. Jefferson Cnty., 189 S.W.2d 604,

607 (Ky. 1945).

This conception of legislative power regarding the right of appeal is no

longer tenable. The constitution now declares, “In all cases, civil and criminal,

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

with two minor exceptions not relevant to the cases at bar. Ky. Const. § 115.

This language is unambiguous and “[i]t is not allowable to interpret that which

12 needs no interpretation.” Gilbert v. Greene, 216 S.W. 105, 108 (Ky. 1919). But

these cases demonstrate that Section 115 must be explained. “Appeal to

another court” presupposes that a lower court has considered the case or

controversy and rendered a final judgment. In these cases, that was the circuit

court. The circuit court exists by the constitution. Ky. Const. § 112. A circuit

judge is a constitutional officer. Ky. Const. §§ 112; 117. A judge only exercises

authority under law or equity, i.e., exercises nothing but judicial power.

American Beauty Homes, 379 S.W.2d at 454. A court’s final decisions are

“judgment[s] or decree[s] . . . affecting some personal or proprietary interest

defined and regulated by law[.]” Bruce v. Fox, 31 Ky. 447, 448 (1833). And

finality is defined as “put[ting] an end to the action by declaring that the

plaintiff is or is not entitled to the relief sought, and if relief is granted [the

judgment] must give that relief by its own force or be enforceable without

further action by the court or by process for contempt[.]” Kentucky Heating Co.

v. City of Louisville, 198 S.W. 1150, 1152 (Ky. 1917). Once a court issues a

final judgment, that judgment is appealable. CR 4 54.02(1).

In the case before us, the circuit court exercised a power of review of an

administrative action as authorized by statute. KRS 100.347(1). That

procedural hurdle does not change the fact that the circuit court is a court

presupposed by Section 115. The circuit court made a final decision, affecting a

personal or proprietary interest, declaring the plaintiffs either were or were not

entitled to the relief they sought under law. The constitution unequivocally

4 Kentucky Civil Rules of Procedure.

13 declares for such instances that “there shall be allowed as a matter of right at

least one appeal to another court[.]” Ky. Const. § 115. In this case, that other

court is the Court of Appeals.

It has been argued, however, that there is no constitutional right to

appeal from the circuit court to the Court of Appeals under Section 115. The

parties cite to Seiller Waterman, LLC v. Bardstown Capital Corp., to argue that

Section 115 only applies to “cases originating in our court system.” 643 S.W.3d

68, 80 (Ky. 2022). And since this case (and others consolidated for oral

argument) originated in county Planning and Zoning Commissions, Boards of

Adjustment, or Boards of Architectural Review, i.e., administratively, there is

no constitutional right to appeal from the circuit court’s judgment. Justice

Robert Jackson once observed, “[w]e are not final because we are infallible[.]”

Brown v. Allen, 344 U.S. 443, 540 (1953). We do well to remember that now. To

err is human, and when this Court used the word “originate” we misspoke. We

can admit when a mistake has been made because stare decisis does not bind

us to fallacy. Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002). A

literal reading of Seiller Waterman does not comport with the history of our

application of Section 115 to appeals from court judgments in cases originating

in administrative actions. Therefore, we abrogate that portion of Seiller

Waterman to the extent it conflicts with Section 115.

More than thirty years ago, we held that an appeal from the Court of

Appeals to this Court was guaranteed by Section 115 in worker’s compensation

cases. Vessels by Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795,

14 798 (Ky. 1990). Worker’s compensation cases are undoubtedly administrative

in nature and do not “originate” within the judiciary. Vessels’ rationale was

short and to the point. Section 115 is “unambiguous” and “presupposes that

the tribunals of review and for appeal are courts within the constitutional

meaning of the word.” Id. In other words, if a citizen has had an adjudication of

his rights made by a judge, exercising judicial powers whether upon review or

by appeal, then he has found himself in a court; and once a final judgment has

been rendered by that court, Section 115 unambiguously guarantees one right

of appeal to the next highest court. Id.

Vessels did not break new ground with this holding. We said as much, in

so many words, in Sarver v. Allen Cnty., 582 S.W.2d 40 (Ky. 1979). In that

case, the Court of Appeals had suggested that its appellate jurisdiction was

discretionary and not a matter of right in a case on appeal from a circuit court,

which had reviewed the action of the county fiscal court. Id. at 43. We rejected

the suggestion citing to KRS 23A.010(4)—which states direct review of an

administrative decision in the circuit court is not considered an appeal but an

original action—and Ky. Const. § 115. Id. The plain implication being that

Section 115 did not apply from the fiscal court to the circuit court but does

apply from the circuit court to the Court of Appeals. This is because fiscal

courts traditionally exercise powers that are legislative and sometimes only

quasi-judicial. Shelton v. Smith, 144 S.W.2d 500, 501 (Ky. 1940). The fiscal

court is not a court presupposed by Section 115. Varney v. Varney, 609 S.W.2d

704, 705 (Ky. App. 1980). But where a person is in the circuit court, before a

15 duly elected judge, exercising purely judicial power, then he is in a court as

contemplated by Section 115 and he has one right of appeal to another court

once a final judgment has been rendered. 5

As such, the General Assembly no longer has authority to impose appeal

bonds. Even under the old rule, the General Assembly’s authority to regulate

appeals could be circumscribed by “some constitutional provision to the

contrary . . . .” Caddell, 79 S.W.2d at 408. Section 115 does more than

circumscribe this power—it negates it. Section 115 is an unmistakable

renunciation of the old rule that no right of appeal existed but when and upon

what terms the General Assembly dictated. Appeal bonds may have a useful

and salutary purpose, but utility and authority are separate questions. The

authority to impose appeal bonds was heretofore predicated on previous

iterations of the constitution that did not guarantee a right of appeal and, in

fact, explicitly declared such a right was a matter of legislative grace. Hardin, 4

Ky. at 215; Caddell, 79 S.W.2d at 408. That is no longer true under Section

115. Therefore, the authority no longer exists.

It has been argued that because the statute makes the imposition of the

bond discretionary, it passes constitutional muster on a facial challenge.

Though the amount of the bond may be discretionary up to certain limits,

5 RAP (1)(A) states, “[t]hese rules govern appellate procedure in all Kentucky

courts, except for special statutory proceedings in the Court of Appeals.” It has been suggested that this rule applies to KRS 100.3471. But it is the circuit court that conducts all the proceedings in determining the amount of a bond before the Court of Appeals renders a decision and whether to impose costs and damages after the Court of Appeals’ decision has become final. The proceedings thus take place in the circuit court, not the Court of Appeals, so RAP 1(A) cannot apply. 16 imposing a bond in and of itself is not discretionary. KRS 100.3471(2). But

granting the point arguendo, the argument is unavailing because even if some

Kentuckians may not have an appeal bond imposed, that changes nothing

about the fact that some Kentuckians will have the bond imposed. It is the

latter group that suffers the constitutional deprivation. If the former group does

not suffer a constitutional deprivation, it is only because the circuit court did

not impose the bond as the statute contemplated. In other words, the statute

mandating an appeal bond would only be constitutional if an appeal bond is

not imposed. That is not an argument for constitutionality. If a statute can only

be constitutional in some cases by not being enforced, then it is

unconstitutional in all cases when it is enforced; thus, the facial challenge

succeeds.

It has also been suggested that because the amount of the bond is

essentially discretionary, a trial court could impose only a de minimis amount

on the bond. But the General Assembly’s declared purpose in passing KRS

100.3471 is to discourage frivolous appeals in KRS Chapter 100 cases.

Imposing a monetarily de minimis bond would not achieve that purpose. 6 It

cannot be seriously contended then when a circuit court finds an appeal

presumptively frivolous but only orders a de minimis bond, that such a bond

will discourage the appeal. And if the circuit court concludes the appeal is in

good faith, how does imposing a bond of any kind discourage a frivolous

6 De minimis comes from the rule de minimis non curat lex. Translation: the law

does not concern itself with trifles.

17 appeal? All that achieves is to penalize appellants with good faith, perhaps even

meritorious claims, in like manner as bad faith actors filing frivolous appeals.

The statute’s purpose is to discourage frivolous appeals, but its effect is

manifestly broader under a plain text reading.

The next argument is that an appeal bond is no different than a

supersedeas bond. First, supersedeas bonds are clearly within the authority of

this Court as a rule of practice and procedure. RAP 7 63. A supersedeas bond

“stay[s] enforcement of the judgment” of the trial court or Court of Appeals.

RAP 63(A)(1). It “maintains the status quo and protects the prevailing party's

interests.” Stars Interactive Holdings (IOM) Ltd. v. Wingate, 594 S.W.3d 181,

184 (Ky. 2020). The appeal bond of KRS 100.3471 does not stay execution of

the circuit court’s judgment and the successful party before the circuit court is

free to act in accordance with that judgment during the pendency of appeal. In

other words, a bondholder under KRS 100.3471 would have to take out a

separate supersedeas bond to preserve the status quo. That fact alone refutes

any analogy to supersedeas bonds.

It is true that KRS 100.3471(2) refers to CR 73.06—which is now RAP

63(c)—so the analogy to supsersedeas bonds is implied by the statute. But RAP

63(c) only refers to the trial court’s limited retention of jurisdiction to determine

the sufficiency of a supersedeas bond. The legislature plainly intended to

append to that “jurisdictional authority[,]” KRS 100.3471(2), a power to impose

7 Kentucky Rules of Appellate Procedure.

18 another kind of bond, which it cannot do. Ky. Const. § 116. If the General

Assembly intended the bond itself to be nothing other than a supersedeas

bond, it could have said exactly that or referred to the former CR 73.04. It is

now RAP 63(B)(3) which limits a supersedeas bond in cases involving

disposition of property to “only [that] as will secure the amount recovered for

the use and detention of the property, the costs of the action, costs on appeal,

interest, and damages for delay.” KRS 100.3471 simultaneously does less than

our own rule by excluding the amount for use and detention of property, KRS

100.3471(3)(c) and (d); and more than our own rule by allowing the circuit

court to consider the legal merits of the appeal in determining the bond

amount. KRS 100.3471(3)(b).

By applying to good faith assertions of legal rights and failing to preserve

the status quo, the bond of KRS 100.3471 admits to being nothing other than a

price of admission to the Court of Appeals, and its only effect is to penalize

Kentuckians wishing to challenge land-zoning decisions beyond the circuit

court by exercising their constitutional right of appeal.

Finally, KRS 100.3471(4)(a)-(c) is manifestly unconstitutional as

arbitrary. Ky. Const. § 2. Section 2 is broad enough to encompass traditional

notions of due process. Bd. of Ed. of Ashland v. Jayne, 812 S.W.2d 129, 131

(Ky. 1991). Nothing in the statute predicates an appellee’s award of costs and

damages upon a successful outcome in the Court of Appeals. The statute

allows an unsuccessful appellee in the Court of Appeals to return to the circuit

court and seek costs and damages from the successful appellant. The only

19 argument of merit offered against this interpretation is that it is highly unlikely

a circuit judge would ever award costs and damages to an unsuccessful

appellee. We agree. But that cannot save the constitutionality of these

provisions. The reason we believe no circuit judge would ever impose costs and

damages on a successful appellant is because such an outcome is essentially

unjust. “[W]hatever is essentially unjust and unequal or exceeds the reasonable

and legitimate interests of the people is arbitrary[.]” Id. (quoting Ky. Milk

Marketing v. Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985)). A successful

appellant cannot be penalized for asserting his rights and pursuing his claims

in a court of law; he owes nothing to an unsuccessful appellee. The

Commonwealth has no legitimate interest in hindering good faith assertions of

legal rights in a court of law. To the contrary, our Founding Fathers recognized

the raison d’etre of government is the protection of rights and liberties, both

personal and in property, under law. Beard v. Smith, 22 Ky. 430, 476-77

(1828). Even though we agree it is nigh impossible to conceive that such an

outcome would ever occur, we must be cognizant that “[i]f men were angels, no

government would be necessary. If angels were to govern men, neither external

nor internal controls on government would be necessary.” James Madison,

Federalist No. 51, 319 (Rossiter, Clinton, ed., 1961). “[P]ower, lodged as it must

be in human hands, will ever be liable to abuse.” James Madison, Writings,

Speech in the Virginia Constitutional Convention 824 (Library of America,

1999) (Jack N. Rakove, Ed.). Because KRS 100.3471(4)(a)-(c) allows for the

20 possibility that a successful appellant pay costs and damages to an

unsuccessful appellee, we must conclude these provisions are arbitrary.

B. General Assembly’s Authority to Regulate Appellate Jurisdiction

Having determined KRS 100.3471 is an unconstitutional deprivation of

Kentuckians’ right of appeal, we must next consider that portion of the statute

that mandates dismissal of an appeal when the bond is not posted as ordered.

KRS 100.3471(3)(f). We have to address this issue because it is linked with the

Section 115 issue. It has been argued that the constitution authorizes the

General Assembly to regulate the appellate jurisdiction of the Court of Appeals

under Section 111(2). If that is true in the manner now argued, then we would

be required to harmonize that authority with Section 115, and thereby save the

constitutionality of KRS 100.3471. This question also compels us to consider

the separation of powers between the General Assembly and this Court, as

head of the judicial branch. Thus, we must consider and interpret the entirety

of the Judicial Amendments. Legislative Research Com’n v. Fischer, 366 S.W.3d

905, 913 (Ky. 2012).

The Judicial Amendments were adopted in 1974 and made effective in

1976. They were a paradigmatic shift in the relation of the judiciary to the

legislature. “The judicial power of the Commonwealth shall be vested

exclusively in one Court of Justice . . . [and] shall constitute a unified judicial

system for operation and administration.” Ky. Const. § 109. As to this Court,

the constitution provides it “shall have appellate jurisdiction only, except it

shall have the power to issue all writs necessary in aid of its appellate

21 jurisdiction, or the complete determination of any cause, or as may be required

to exercise control of the Court of Justice.” Ky. Const. § 110(2)(a). Moreover,

“[t]he Supreme Court shall have the power to prescribe rules governing its

appellate jurisdiction, rules for the appointment of commissioners and other

court personnel, and rules of practice and procedure for the Court of Justice.”

Ky. Const. § 116.

As to the Court of Appeals, it

shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the Commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as provided by law.

Ky. Const. § 111(2).

The import of these several provisions is that when it comes to the

appellate jurisdiction of this Court and the Court of Appeals on a constitutional

level, it is the Supreme Court which exercises authority; and that authority is

neither dependent upon nor constrained by the General Assembly. First, the

Court of Justice is one and unified with the Supreme Court as its head. The

Supreme Court and Court of Appeals exercise appellate jurisdiction only (with

minor exceptions). The power to govern that appellate jurisdiction is given to

this Court. That this was the understanding of the 1974 Judicial Amendments

was acknowledged as early as 1978—"[t]he Constitution also gives the Supreme

Court the power to define its own appellate jurisdiction as well as the

jurisdiction of the Court of Appeals by the enactment of rules.” Ash v. Security

22 Nat. Ins. Co., 574 S.W.2d 346, 348 (Ky. App. 1978) (citing Ky. Const. §§ 110

and 116). Under Section 116 we govern the appellate jurisdiction of the Court

of Appeals by the Rules of Appellate Procedure. These rules serve as a

necessary protection to the substantive rights of Kentuckians, even those of

constitutional import, because “without such rules those rights would smother

in chaos and could not survive.” Cassetty v. Commonwealth, 495 S.W.3d 129,

134 (Ky. 2016) (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky.

1977)). And as the case at bar readily demonstrates, under Section 110(2)(a),

we govern the appellate jurisdiction of the Court of Appeals through the

exercise of our own appellate jurisdiction. We need not cite the litany of cases

demonstrating this Court routinely reviews lower court determinations as to

the assertion or non-assertion of jurisdiction. In other words, as a general and

uncontroversial proposition, it is a necessary part of this Court’s appellate

jurisdiction to ensure the Court of Appeals is correctly exercising its appellate

jurisdiction. See e.g., Commonwealth v. Sexton, 566 S.W.3d 185, 196-97 (Ky.

2018).

But the parties in favor of KRS 100.3471 argue that Section 111(2)

provides that the Court of Appeals can “exercise appellate jurisdiction as

provided by law.” And this language is the authorization allowing the General

Assembly to pass an appeal bond. The parties cite to, and the Court of Appeals

relied upon, Farmer v. Commonwealth, 423 S.W.3d 690, 692 (Ky. 2014) for this

proposition. Farmer says, “[t]he ‘as provided by law’ language in the second

sentence of Section 111(2) authorizes the legislature to prescribe the appellate

23 jurisdiction of the Court of Appeals.” Id. The precise issue in Farmer concerned

the authority and application of KRS 22A.020(4). Id. In the three cases Farmer

cited for that holding this Court was also considering KRS 22A.020(4).

Commonwealth v. Bailey, 71 S.W.3d 73, 77 (Ky. 2002); Moore v.

Commonwealth, 199 S.W.3d 132, 138 (Ky. 2006); Ballard v. Commonwealth,

320 S.W.3d 69, 72-73 (Ky. 2010).

KRS 22A.020(4) grants the Commonwealth a right of appeal for

interlocutory orders in criminal cases under certain conditions. Understood as

a statutory grant of appellate jurisdiction, it has been repeatedly upheld as

constitutional. Ballard, 320 S.W.3d at 73; Commonwealth v. Burkhead, 680

S.W.3d 877, 881 (Ky. 2023). We do not at all disturb these rulings; merely

clarify their inapplicability to the cases at bar. KRS 22A.020(4) has been

recognized as a statutory grant of appellate jurisdiction distinct from the

constitutional right of appeal. Moore, 199 S.W.3d at 138. We have

acknowledged that KRS 22A.020(4) is a unique benefit granted to the

Commonwealth and is not applicable to criminal defendants. Farmer, 423

S.W.3d at 693. The cases we are now addressing are neither criminal nor

interlocutory. KRS 22A.020(4) has no applicability whatsoever; thus, Farmer is

not controlling as to whether the General Assembly may statutorily mandate

dismissal of an appeal when that appeal is a matter of constitutional right.

That question is answered by the constitution.

As demonstrated above, the right of appeal from a final order of a court is

constitutionally protected in all cases civil and criminal.

24 The constitution itself is in every real sense the supreme law . . . [and] [t]hough the legislature of a state may exercise all governmental power not denied it and may enact any law not expressly forbidden by the state or the federal constitution, where such authority has been withheld the people have declared that any act transcending that restriction or opposing that supreme law shall be void.

Jefferson Cnty. ex rel. Grauman v. Jefferson Cnty. Fisc. Court, 117 S.W.2d 918,

919-20 (Ky. 1938). When comparing the language of Section 111(2) with

Section 115 we must also be mindful that “[i]nterpretation of the Constitution

by rule of implication is hazardous; to be employed only in instances where the

subject matter and language leave no doubt that the intended meaning may be

thus reached with approximate certainty.” Commonwealth ex rel. Attorney

General v. Howard, 180 S.W.2d 415, 418 (Ky. 1944). As such, “if there be

conflict [between two constitutional provisions] it is the duty of the court to

uphold that provision containing express language relating to the subject,

rather than to one dealing with matters in general terms.” Id. Finally, “[t]he

Constitution should not be construed so as to defeat the obvious intent of its

framers if another interpretation may be adopted equally in accordance with

the words and sense which will carry out the intent.” Grantz v. Grauman, 302

S.W.2d 364, 367 (Ky. 1957).

Section 115 is unambiguous and specific over the quite general language

of Section 111(2) that “[i]n all other cases, it shall exercise appellate

jurisdiction as provided by law.” It was the obvious intent of its framers that

Section 115 should guarantee the right of appeal to another court in all cases

civil and criminal with minor exceptions. The general language of Section

25 111(2) simply cannot be used defeat that explicit right. Instead, what Section

111(2) provides for is that the General Assembly may confer a statutory right of

appeal in those instances where a constitutional right of appeal does not

already exist, e.g., an interlocutory appeal in criminal cases for the

Commonwealth. Farmer, 423 S.W.3d at 692. Section 111(2) provides no

authority, however, to regulate the inherent appellate jurisdiction of the Court

of Appeals granted in the self-same section. As we have noted before,

jurisdiction now derives from the constitution and by filing a notice of appeal

the appellant is invoking “the exercise of the inherent jurisdiction of the court

as constitutionally delegated.” Johnson v. Smith, 885 S.W.2d 994, 950 (Ky.

1994). Appellate jurisdiction is defined as “the power and authority to review,

revise, correct or affirm the decisions of an inferior court, and, more

particularly, to exercise the same judicial power which has been executed in

the court of original jurisdiction.” Copley v. Craft, 341 S.W.2d 70, 72 (Ky.

1960). In the cases before us, the parties were undoubtedly in a court; namely,

the circuit court. And said court rendered a final judgment, i.e., a judgment

affecting a personal or proprietary interest, and declaring the plaintiffs either

were or were not entitled to relief they sought as regulated by law. The

jurisdiction of the circuit court to review was not in doubt. KRS 100.347(1).

Section 115 guarantees their right to appeal to another (i.e., next highest)

court. Therefore, the Court of Appeals, properly understood, would be

exercising its inherent appellate jurisdiction as provided by the constitution.

26 It may seem strange to predicate appellate jurisdiction in part on Section

115, but it is not unprecedented. In Ratliff v. Fiscal Court of Caldwell Cnty., we

considered various parts of the eminent domain condemnation statute, KRS

416.610(4) and KRS 416.620. 617 S.W.2d 36, 38-39 (Ky. 1981). This statutory

scheme, in brief, allowed a circuit court to enter an interlocutory judgment on

the issue of whether a condemnor had the right to take the property. Id. at 38.

The statutes then required within thirty days of that interlocutory judgment for

a bill of exceptions to be filed by the condemnee, but expressly prohibited an

exception to the interlocutory judgment as to the condemnor’s right to take. Id.

at 39. Thus, it was arguable the only final judgment a condemnee could appeal

was the award of damages. Id. at 38.

We held that Section 115 “demanded” that a condemnee have “an

immediate right of appeal, which preserves the status quo,” from the

interlocutory judgment on the issue of the right to take because the

interlocutory judgment operated to divest the condemnee of a right to

ownership and possession which could not be restored to the original

condition. Id. at 39. In so holding, however, we did not overrule the statute.

Instead, we held the statutory provisions themselves were susceptible to an

interpretation providing for this interlocutory appeal. � We believe that the

provisions of KRS 416.610(4) referring to an interlocutory judgment . . . allows

an immediate, expedited appeal, by the condemnee of the question of the

condemnor's right to take.” Id.

27 Ratliff thus supports our understanding of Section 115. But, somewhat

fortuitously, it also indirectly supports our understanding of Section 111(2).

Granted that section was not at issue in Ratliff because the General Assembly

has authority over eminent domain. Ky. Const. §§ 13; 195; 242. But the salient

point is that the statute could have been read to deny a condemnee’s right of

appeal on the issue of whether the condemnor had a right to take. By applying

Section 115’s guarantee of a right of appeal, we instead interpreted the statute

as creating a statutory right of appeal from an interlocutory judgment on that

issue. And since appellate jurisdiction over interlocutory orders does not exist

by the constitution but only by statute, civil rule, or common law, Childers v.

Albright, 636 S.W.3d 523, 526 (Ky. 2021), this understanding of Ratliff

harmonizes with our reading of Section 111(2) in Farmer.

Finally, we note that comity is not an issue here. We apply comity only

when there is “gray area in which a line between the legislative prerogatives of

the General Assembly and the rule-making authority of the courts is not easy

to draw.” Ex Parte Auditor of Pub. Accounts, 609 S.W.2d 682, 688 (Ky. 1980).

Comity cannot apply to Section 115’s grant of an individual right to appeal

because that is not a provision regarding the rule-making power of this Court.

So far as Section 111(2) is concerned, the ambiguity this Court had to resolve

was not a result of the language of the constitution itself, but rather from a

misapplication of Farmer. Having made the necessary clarifications, the line to

be drawn in these cases is readily discernable and easily applicable.

28 Another reason not to grant comity is that we have previously struck

down a statute 8 for violating the separation of powers, Ky. Const. §§ 27 and 28,

because by imposing a monetary penalty its effect was to deter motions for

discretionary review, both frivolous and meritorious, and “thereby limits or

restricts the Kentucky Supreme Court in exercising its jurisdiction to review

cases from lower courts. By so doing, it invades the constitutional power

assigned exclusively to the Kentucky Supreme Court to ‘exercise appellate

jurisdiction as provided by its rules.’” Elk Horn Coal Corp. v. Cheyenne

Resources, Inc., 163 S.W.3d 408, 424 (Ky. 2005) (citing Ky. Const. § 110(2)(b))

(overruled on other grounds by Calloway Cnty. Sheriff’s Dept. v. Woodall, 607

S.W.3d 557, 572-73 (Ky. 2020)). The rationale underlying this conclusion was

that this Court had already promulgated a civil rule to deter frivolous appeals—

the former CR 73.02(4)—thus, the subject matter of the statute pertained to

the rules of practices and procedures of the Court. Id.

In like manner, the current rules provide ample authority to the Court of

Appeals to sanction frivolous appeals, and to award “just monetary sanctions

and single or double costs to the opposing party.” RAP 11(4). Trials courts also

have authority to sanction frivolous complaints and pleadings. CR 11. Just as

the statute at issue in Elk Horn invaded our exclusive power to define our own

rules for regulating appellate procedure in this Court under Section 110(2)(b),

KRS 100.3471 invades our exclusive authority to define the rules of practice

and procedure in the Court of Justice. Ky. Const. § 116. The reason is

8 KRS 26A.300.

29 demonstrated by what is lacking in KRS 100.3471. Although we need not

resolve these questions now, the statute does raise several; namely, 1) is the

trial court’s determination that an appeal is presumptively frivolous or in good

faith a finding of fact or conclusion of law? 2) Is that determination appealable

and if so, when—after the bond is imposed or after the award—and how? 3) Is

the trial court’s determination controlling upon the Court of Appeals? 4) What

degree of deference, if any, does the Court of Appeals owe the trial court’s

determination if a motion for sanctions under RAP 11 is filed in that court?

And 5) what is the effect of the Court of Appeals disagreeing with the circuit

court, e.g., if the circuit court determines an appeal is presumptively frivolous

and imposes a $250,000 bond, which is paid; but then the Court of Appeals

disagrees and concludes the appeal was made in good faith but nonetheless

affirms the circuit court’s judgment, what then is the circuit court’s authority

in awarding costs and damages? Can the circuit court award the full $250,000

or, since a higher court found the appeal was in good faith, should not the

costs and damages be limited to the $100,000? Why should costs and damages

be awarded at all if the appeal was made in good faith? As already noted, the

Commonwealth has no interest in deterring or penalizing good faith claims of

legal right.

All these questions, and the lack of any answers to them in KRS

100.3471, demonstrate that the deterrence of frivolous appeals, while

potentially touching upon larger economic concerns, are primarily the concern

of the judiciary. Our rules vest the Court of Appeals with the necessary and

30 sufficient authority to sanction them speedily and with as little expense as

possible; without involving the circuit court thereby avoiding procedural

conundrums concomitant with that involvement.

C. The Underlying Merits of the Certificate of Appropriateness Lexington-Fayette Urban County Government Zoning Ordinance 13-7(a)

details that the Board of Architectural Review may issue a Certificate of

Appropriateness allowing for demolition of a building within an H-1 Overlay

Zone. This negates any argument that merely by being within the H-1 Overlay

zone, the Commonwealth Building is entitled to protection. Instead, in order for

demolition to take place the BOAR must either find the building “does not

contribute to the character of, and [demolition] will not adversely affect the

character of the property in a zone protected by an H-1 overlay[,]” or “[n]o

reasonable economic return can be realized from the property and the denial of

the application would result in the taking of the property without just

compensation.” Id. at 13-7(c)(1)(b) and (c). The principal arguments offered by

Bluegrass Trust to justify a conclusion that demolition is not supported by

substantial evidence is the eligibility of the Commonwealth Building to be listed

on the National Register of Historic Places, and the conclusion of several expert

staffers below that the Commonwealth Building does contribute to the

character of South Hill Historic District, and its demolition would adversely

affect that character.

As to the first argument, we can only note that eligibility to be listed as

an historic landmark is not tantamount to a conclusion that a structure is an

31 historic landmark. Whatever the aesthetic qualities mid-twentieth century

architectural design might possess, the only reason demonstrated in this

record for eligibility is the age of the Commonwealth Building; an age which the

Commission determined was in fact a mark against it as concerns historical

contribution. The Commission determined the historical character of South Hill

was manifested by architectural designs from a hundred years ago or more,

and that a mid-twentieth century building was a “one-of-a-kind structure”

within the district that markedly stood out from the rest of the district.

Moreover, the Commission also considered the original nomination form for

when South Hill was designated an Historic District and found no evidence the

Commonwealth Building was originally considered. Bluegrass Trust has argued

that the building’s historical value and contribution arise from the fact that it

reflects the historical growth of Lexington. But nowhere is any statute or

ordinance cited that forbids the Commission from referring to the original basis

for historical designation. Without such a statute or ordinance, we believe the

original reasons for historical designation are a highly relevant factor in

determining whether any individual building can be considered a contributing

structure.

The second argument essentially is that the expert staffers of various

state and local bodies all testified the Commonwealth Building is a contributing

structure and its demolition would adversely affect South Hill. The failure of

the Commission to follow that expert testimony, Bluegrass Trust avers, is

arbitrary and capricious. While the value of expert testimony, particularly on a

32 subjective topic like architectural design and beauty, may be high, it is not

controlling. The Planning Commission is the body ultimately empowered to

make a zoning decision within the confines set by the ordinance. Nothing

Bluegrass Trust cites dictates otherwise.

For example, Zoning Ordinance 13-7(f)(b) states, “[i]n its deliberations,

the Planning Commission shall give due consideration to the decision of the

Board and the finding and conclusions reflected in the Board's record and shall

apply the design guidelines adopted by the Historic Preservation Commission.”

Due consideration means due consideration; it does not mean the Planning

Commission must give controlling weight to the opinions of the Historic

Preservation Commission’s staff. Moreover, such opinions are not the design

guidelines adopted by the Commission. Similarly, Zoning Ordinance 13-3(h)

merely defines Historic Preservation Office Staff. It does not contain any

language that staff opinions are controlling upon the Planning Commission.

Bluegrass Trust also cites the unpublished decision of Sanders v. Howard,

2017-CA-001392-MR, 2018 WL 6721226 (Ky. App. Dec. 21, 2018). Aside from

being unpublished authority from a lower court, we do not believe Sanders

stands for the proposition argued for.

Bluegrass Trust believes Sanders holds administrative bodies must give

controlling weight to expert evidence when it is unrebutted. But Sanders

reversed a State Trooper’s discipline for dishonesty predicated upon her oral

statements about which prescription medications she had in her system during

a police luncheon. Id. at *1. The Trooper later made a written disclosure of her

33 prescription medications prior to taking a urinalysis test. Id. The written

statement disclosed more drugs than her oral statement. Id. The test confirmed

the Trooper had truthfully disclosed in writing all medications. Id. at *2. The

trial court held, and the Court of Appeals affirmed, that disciplinary action

based on dishonesty was not supported by substantial evidence because the

Trial Board had ignored the written statement, and focused only on her oral

statements which, the Court of Appeals observed, were taken out of context. Id.

at *3. We find no mention of expert testimony in Sanders, nor do we believe

Sanders was particularly focused on the urinalysis test. Instead, the Court of

Appeals, and the trial court, focused on the written statement of the Trooper as

being dispositive of whether or not she was dishonest. Id.

Expert testimony is indeed valuable and often necessary. But Zoning

Ordinance 13-7(f) designates an appeal to the Planning Commission as a de

novo hearing. The trial court was therefore correct to hold the Planning

Commission is a factfinder analogous to a jury, free to give weight and

credibility to witnesses as it sees fit. It is beyond the judiciary’s authority to

impose a standard of weight and credibility that must be assigned to experts in

planning and zoning matters. Absent a statute or local ordinance dictating

what weight an expert testimony must be given by Planning Commissions, we

cannot conclude that a decision contrary to expert testimony is arbitrary, so

long as the decision is supported by other substantial evidence. That other

substantial evidence in this case is the undisputed fact that the

Commonwealth Building is not an historical landmark in the federal Register; it

34 was not included in the original nominating form for the South Hill

neighborhood as an Historic District; Ms. Yan’s testimony that the Kentucky

Heritage Council did not consider the structure a contributing building; and

multiple near-contemporaneous documents—the Design Review Guidelines

and Downtown Lexington Building Inventory—from Lexington that also did not

list the Commonwealth Building.

Finally, Bluegrass Trust argues the “controlling regulation” in this matter

is 36 C.F.R. § 67.5. That regulation is entitled, “Standards for evaluating

significance within registered historic districts[.]” First, this regulation is not

controlling. Zoning Ordinance 13-3(b) merely gives a definition of Certified

Local Government; it does not incorporate or otherwise instruct the Planning

Commission to conform its decisions to federal regulations. But taken as

instructive authority, 36 C.F.R. § 67.5(a)(2) clearly acknowledges that a

particular building within an historic district can be considered non-

contributing, and the regulation goes on to state,

[o]rdinarily buildings that have been built within the past 50 years shall not be considered to contribute to the significance of a district unless a strong justification concerning their historical or architectural merit is given or the historical attributes of the district are considered to be less than 50 years old.

Id. at 67.5(c). The Commonwealth Building was less than fifty years old when

South Hill was designated an Historic District. It was objectively a non-

contributing structure when the Historic District was formed. And the Planning

Commission concluded that the historical attributes of the district were based

on architecture from the 19th and early 20th centuries. Like the circuit court,

35 we believe Bluegrass Trust made a strong showing before the Planning

Commission. But the Planning Commission obviously did not believe a strong

justification had been presented demonstrating the historical or architectural

value of a mid-twentieth century building to the South Hill Historic District.

Bluegrass Trust, however, points to the State Historic Preservation Office, and

testimony to the effect that it has the Commonwealth Building listed as a

contributing structure. But 36 C.F.R. § 67.5(f) only states, “[a]dditional

guidance on certifications of historic significance is available from SHPOs and

NPS WASO.” In brief, even the federal regulations do not assign controlling

weight to designations by state preservation offices, merely referring to them for

“additional guidance.” Kentucky’s Historic Preservation Office believes the

Commonwealth Building is a contributing structure mainly due to its mid-

twentieth century design. The Planning Commission, however, focused on the

older designs that formed the basis for creating the South Hill Historic District

in the first place, and concluded a mid-twentieth century design is

“dramatically different” from the other structures in the district.

No one disputes the Planning Commission was empowered to make the

decision whether the Commonwealth Building is a contributing structure to the

historic character of South Hill. Historic contribution is indeed in the eyes of

the beholder. That beholder in this case is the Planning Commission, not staff,

regardless of their expertise. We cannot say its decision was arbitrary.

36 IV. Conclusion For the aforementioned reasons, we reverse the Court of Appeals on the

constitutionality of KRS 100.3471(1). We otherwise affirm the trial court’s

decision and uphold the Planning Commission’s action to affirm the certificate

of demolition of the Commonwealth Building.

All sitting. Lambert, Nickell, and Thompson, JJ., concur. VanMeter, C.J.,

concurs in part and dissents in part by separate opinion in which Bisig and

Keller, JJ., join.

VANMETER, C.J., CONCURRING IN PART AND DISSENTING IN PART: Two

issues are presented. The first is the is the constitutionality of the KRS

100.3471. I respectfully dissent from the majority’s opinion as to this issue,

since, in my view, no provision of the Kentucky Constitution invalidates this

statute. The second is the trial court’s resolution of the underlying dispute. I

concur with the majority in affirming the trial court in this respect.

I. Constitutionality of KRS 100.3471

As a general matter, this Court reviews questions of law, including the

constitutionality of a statute, de novo. Teco/Perry Cnty. Coal v. Feltner, 582

S.W.3d 42, 45 (Ky. 2019); Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017);

Parker v. Webster Cnty. Coal, LLC, 529 S.W.3d 759, 765 (Ky. 2017). “In

considering an attack on the constitutionality of legislation, our jurisprudence

has continually resolved any doubt in favor of constitutionality rather than

unconstitutionality.” Hallahan v. Mittlebeeler, 373 S.W.2d 726, 727 (Ky. 1963)

(citing Reynolds Metal Co. v. Martin, 269 Ky. 378, 381-82, 107 S.W.2d 251, 253

37 (1937)). In determining the constitutionality of a statute, “[o]ur functions are to

determine the constitutional validity and to declare the meaning of what the

legislative department has done. We have no other concern.” Teco, 582 S.W.3d

at 45 (quoting Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829, 833,

165 S.W.2d 820, 823 (1942)). “[T]he propriety, wisdom and expediency of

statutory enactments are exclusively legislative matters.” Hallahan, 373 S.W.2d

at 727 (citing Craig v. O'Rear, 199 Ky. 553, 557, 251 S.W. 828, 830 (1923)).

Further,

courts are not at liberty to declare a statute invalid because, in their judgment, it may be unnecessary, or opposed to the best interests of the state. . . . [A]n act will not be declared void on the ground that it is opposed to the spirit supposed to pervade the Constitution, or is against the nature and spirit of the government, or is contrary to the general principles of liberty, or the genius of a free people.

Craig, 199 Ky. at 557-58, 251 S.W. at 830 (citations omitted).

A. Planning and Zoning Generally.

This Court has held on numerous occasions that land-use planning and

zoning matters, as essentially administrative proceedings, constitute special

statutory proceedings and the zoning decisions and legislative action taken

therefrom are not the equivalent of court proceedings and their attendant

rulings. Seiller Waterman, LLC v. Bardstown Cap. Corp., 643 S.W.3d 68, 80

(Ky. 2022); Kenton Cnty. Bd. of Adjustment v. Meitzen, 607 S.W.3d 586, 593-94

(Ky. 2020). Good reason exists for this rule. Planning and zoning matters are

essentially local legislative matters, which do not involve judicial functions as

commonly understood. See Hilltop Basic Res., Inc. v. Cnty. of Boone, 180

38 S.W.3d 464, 468 (Ky. 2005) (holding that legislative bodies making zoning

determinations are not performing judicial functions); City of Louisville v.

McDonald, 470 S.W.2d 173, 178–79 (Ky. 1971) (“it is, nevertheless, true that

rezoning a parcel of property is intrinsically not a judicial function”). “An

appeal from an administrative decision is a matter of legislative grace and not a

right.” Seiller Waterman, 643 S.W.3d at 80 (quoting Taylor v. Duke, 896

S.W.2d 618, 621 (Ky. App. 1995)). Thus, the failure to follow the statutory

guidelines for such an appeal is fatal. A person seeking review of

administrative decisions must strictly follow the applicable procedures. Seiller

Waterman, 643 S.W3d at 80; Kenton Cnty., 607 S.W.3d at 594; Triad Dev./Alta

Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004). In two places, our

procedural rules recognize the primacy of the legislature in setting guidelines

for special statutory proceedings. See CR 9 1(2) (providing “[t]hese 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

requirements of the statute shall prevail over any inconsistent procedures set

forth in the Rules[.]”) (emphasis added); RAP 10 1(A) (providing “[t]hese rules

govern appellate procedure in all Kentucky courts, except for special statutory

proceedings in the Court of Appeals. . . . In special statutory proceedings,

the procedural requirements of the governing statutes prevail over any

inconsistent procedures prescribed by these rules[]”) (emphasis added).

9 Kentucky Rules of Civil Procedure.

10 Kentucky Rules of Appellate Procedure.

39 B. KRS 100.3471 Does Not Violate Equal Protection of the Laws as Guaranteed by Sections 1, 2 and 3 of the Kentucky Constitution. Unlike the Fourteenth Amendment to the United States Constitution, the

Kentucky Constitution nowhere explicitly guarantees equal protection of the

law. That noted, this Court has consistently held that our Commonwealth’s

guarantee of equal protection emanates from Sections 1, 11 2 12 and 3 13 of our

Constitution. E.g., Bloyer v. Commonwealth, 647 S.W.3d 219, 226 (Ky. 2022);

D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003). In Zuckerman v. Bevin, this

Court stated,

the goal of equal protection provisions is to keep governmental decisionmakers from treating differently persons who are in all relevant respects alike. However, because nearly all legislation differentiates in some manner between different classes of persons, neither the federal nor state constitutions forbid such classification per se. Accordingly, the level of judicial scrutiny applied to an equal protection challenge depends on the classification made in the statute and the interest affected by it.

565 S.W.3d 580, 595 (Ky. 2018) (internal citations and quotations omitted).

Our case law, as well as federal case law, recognizes three levels of review

may apply to equal protection challenges. See, e.g., Steven Lee Enters. v.

Varney, 36 S.W.3d 391, 394-95 (Ky. 2000). The first level of review, strict

scrutiny, applies whenever a statute makes a classification based on a

11 Section 1 provides that “[a]ll men are, by nature, free and equal,” and possess

“inherent and inalienable rights”, including “life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms[.]” KY. CONST. § 1. 12 Section 2 sets forth the prohibition of absolute and arbitrary power. KY. CONST. § 2. 13 Section 3 provides for equality of all persons and prohibits any “grant of

exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services[.]” KY. CONST. § 3.

40 “suspect” class. See Codell, 127 S.W.3d at 575-76 (discussing strict scrutiny).

In Varney, for example, race, alienage, and ancestry were noted as suspect

classes. 36 S.W.3d at 394. In such cases, or when a statute affects a

fundamental right, a statute is “sustainable only if [it] is suitably tailored to

serve a ‘compelling state interest.’” Id. (citation omitted).

An argument is made that KRS 100.3471 impermissibly burdens a

party’s fundamental and constitutional right of appeal. KY. CONST. § 115. This

argument, however, ignores that no right of appeal exists in land-use planning

cases. Seiller Waterman, 643 S.W.3d at 80. Because any appeal in these

matters exists only as a result of legislative grace, and not of right, id., the

legislature’s decision to impose an appeal bond does not implicate a

fundamental right. Strict scrutiny does not apply.

The second level of review, heightened rational basis scrutiny, applies to

quasi-suspect classes, such as gender or illegitimacy. Id. Under this standard,

“discriminatory laws survive equal protection analysis only ‘to the extent they

are substantially related to a legitimate state interest.’” Id. (quoting City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)). No quasi-suspect

class is involved in these cases.

Finally, the third level of review is for those classifications which impact

social or economic policy. These statutes are subject to a less searching form

of judicial scrutiny, i.e., the “rational basis” test. Codell, 127 S.W.3d at 575

(citation omitted). No one can possibly argue that KRS 100.3471 impacts

anything more than social or economic policy, through land-use planning and

41 zoning. Under the bill as enacted, the legislature included the following

emergency clause:

Whereas it is desirable 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, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

Act of Apr. 11, 2017, ch. 181 § 2, 2017 Ky. Acts 1448.

The challenger to a statutory distinction based on equal protection has

the burden “to establish that the statutory distinction is without a rational

basis.” Mobley v. Armstrong, 978 S.W.2d 307, 309 (Ky. 1998). And, “[a] person

challenging a law upon equal protection grounds under the rational basis test

has a very difficult task because a law must be upheld if . . . any reasonably

conceivable state of facts . . . could provide a rational basis for the

classification.” Commonwealth ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621,

624 (Ky. 2005). Statutes are presumed to be constitutional and the

Commonwealth has no burden to produce evidence supporting the rationality

of any statutory classifications. Commonwealth v. Howard, 969 S.W.2d 700,

703 (Ky. 1998).

The distinction or classification which forms the basis for the equal

protection challenge is not exactly clear, as different challengers argue different

classifications: wealthy or indigent appellants; developers; governmental units;

land use appeals; landfills. While the emergency clause, quoted above, seems

to benefit a property developer, the statute is not so written. Any and all

42 parties appealing a land-use or zoning decision, whether neighboring property

owner, non-profit organization or even developer, will bear the possible

financial risk of an appeal.

The statute generally exempts governmental entities and landfills from its

provisions. KRS 100.3471(5). As to governmental entities, KRS 100.3471(5) is

essentially the same as CR 81A, RAP 63(E) and KRS 454.190, all of which

exempt such entities from posting any bonds. See DAVID V. KRAMER, 7 KY.

PRACTICE (Thomson Reuters 2023 ed.) Rule 81A, Comment 1 (stating “[t]hese

sources recognize the impracticality of having the Commonwealth of Kentucky

and the United States execute bonds as private litigants in order to follow some

course of proceeding in a lawsuit[]”). As to landfills, two chapters of the

Kentucky Revised Statutes contain extensive regulation of such use. See

generally KRS Chapter 109 (Local Solid Waste Management) and 224

(Environmental Protection). The potential hazards due to the creation or

expansion of landfills thus justifies their being treated differently than more

routine land use and zoning matters.

Elk Horn Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408 (Ky.

2005), overruled on other grounds by Calloway Cnty. Sheriff’s Dep’t v. Woodall,

607 S.W.3d 557 (Ky. 2020), does not compel a different result. At issue in Elk

Horn, was the constitutionality of KRS 26A.300 which imposed a 10% penalty

on the appellant for a second unsuccessful appeal as to a judgment for the

collection of money. The penalty was automatically applied in the event the

43 judgment was affirmed or the appeal dismissed after being docketed in the

appellate court. 14

This Court discussed the history of appeals penalties in this

Commonwealth, noting that at one time they applied to all cases upon

affirmance or dismissal of any appeal from a superseded judgment for the

payment of money. Id. at 412-13. As to KRS 26A.300, 15 the Court noted its

applicability “only to unsuccessful appellants in second appeals from

superseded money judgments.” The Court then stated,

Notably, a penalty is not assessed against other unsuccessful appellants in second appeals, e.g., unsuccessful plaintiff- appellants, unsuccessful defendant-appellants who do not supersede a money judgment awarded against them, and unsuccessful appellants from non-money judgments. Clearly KRS 26A.300 does not treat all unsuccessful appellants in second appeals the same, and, as such, it is discriminatory.

Id. at 413. The Court recognized that rational basis review applied to its

analysis, and held that the only purpose behind the 10% penalty was to

discourage frivolous appeals. Id. at 414-15. It stated “[p]enalty statutes like

KRS 26A.300, are not intended to compensate an appellee for delay in receiving

a money judgment; rather, such statutes are intended to discourage frivolous

appeals.” Id. at 414. This distinguished that purpose from compensating a

14 KRS 26A.300(2), states in full,

When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an appellate court. 15 Notwithstanding the decision in Elk Horn Coal, KRS 26A.300 has not been

repealed.

44 judgment creditor for the delay since post-judgment interest “more than

adequately compensates for the delay.” Id. at 414.

KRS 100.3471 is different in kind. In the context of planning and

zoning, no party typically seeks or possesses a monetary judgment. A

developer seeks to develop property for business, industrial or residential

purposes. Adjacent property owners may object, but normally, other than

attorney fees, they may have no direct pecuniary interest at stake. As argued

by the Attorney General, and beyond the purpose expressed by the legislature’s

emergency clause, the statute requires the appellants to have some “skin in the

game.” This is true whether the appeal is presumptively frivolous or not

presumptively frivolous. Furthermore, that “skin” is not determined by means

of an automatic penalty, but is to be thoughtfully determined by a circuit judge

who is already familiar with the facts, is based on costs that an appellee may

suffer or incur during the appeal, and is statutorily limited. KRS

100.3471(3)(c)-(d).

And even after an unsuccessful appeal, an appellant does not necessarily

suffer the repercussions of an automatic sanction. KRS 100.3471(4)(a)

requires a motion and a hearing in the circuit court for that court “to determine

the actual costs and damages to be paid to the appellee under the appeal

bond.” The court is required to hold the requested hearing within 30 days and

issue findings of fact within 30 days; costs and damages are limited to the

amount of the appeal bond. KRS 100.3471(4)(b)-(c). Because the legislature

has required factual findings, a party aggrieved by the results of the hearing

45 and order has a right of appeal. Finally, if neither party moves the circuit court

within 60 days, the court may release the appeal bond. KRS 100.3471(4)(d).

Another possibility, of course, is that an appellant prevails on its appeal.

The appellant complains that the effect of the statute is that if it appeals and

prevails, it will still bear the risk of paying the appellee’s costs and damages.

While I am somewhat dubious that a circuit court will award costs and

damages against a prevailing appellant, a better course is to await deciding this

question until it is ripe for adjudication. See Bingham Greenebaum Doll, LLP v.

Lawrence, 567 S.W.3d 127, 129-30 (Ky. 2018) (stating “a fundamental tenet of

Kentucky jurisprudence [is] that courts cannot decide matters that have not

yet ripened into concrete disputes[]”). All other questions regarding the

application and interpretation of this statute, such as hardship to an indigent

appellant who has no means to post an appeals bond, 16 the standard of review,

or resolution of any number of issues that might arise, can await another day.

C. KRS 100.3471 is Authorized Under Section 111(2) and Therefore Does Not Violate Sections 115 and 116 of the Kentucky Constitution. Another claim is that the statute violates Sections 115 and 116. Section

115 provides “[i]n all cases, civil and criminal, there shall be allowed as a

matter of right at least one appeal to another court[,]” and that “[p]rocedural

rules shall provide for expeditious and inexpensive appeals.” Section 116

grants this Court “the power to prescribe rules governing its appellate

16 In the three cases decided today involving the constitutionality of KRS

100.3471, no appellant demonstrated an inability to post the appeals bond set by the circuit courts.

46 jurisdiction . . . and rules of practice and procedure for the Court of Justice.”

However, as aptly argued, these sections must be balanced against Kentucky

Constitution Section 111(2):

The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the Commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as provided by law.

In Commonwealth v. Farmer, 423 S.W.3d 690, 692 (Ky. 2014), this Court

held “[t]he ‘as provided by law’ language in the second sentence of Section

111(2) authorizes the legislature to prescribe the appellate jurisdiction of the

Court of Appeals.” The legislature has provided generally for the Court of

Appeals appellate jurisdiction in KRS 22A.020. This general grant, however, is

subject to specific limitations. One such limitation appears in KRS 22A.020(3)

that “there shall be no review by appeal or by writ of certiorari from that

portion of a final judgment, order or decree of a Circuit Court dissolving a

marriage.” And another specific limitation is KRS 100.3471. Along these same

lines, the legislature has enacted KRS 446.190, that “[w]here a statute grants a

right of appeal to the Court of Appeals in special civil cases, the Rules of Civil

Procedure shall govern the taking of the appeal, unless in conflict with a

specific provision of the statute[.]” (emphasis added). And, as previously

noted, CR 1(2) and RAP 1(A) contain exceptions for special statutory

proceedings. Section 111(2)’s authority, as well as our own rules recognizing

the primacy of the legislature in special statutory proceedings, resolves any

47 claim that the legislature is infringing on our rule-making authority under

Section 116, or is somehow violating Section 28’s strict requirement of

separation of powers.

Planning and zoning matters are special statutory proceedings, and the

legislature may validly impose reasonable conditions or restrictions on the right

of appeal in such matters. In this case, the legislature did not prohibit review

from a local planning/zoning decision, or require a blanket prohibition on post-

circuit court review, or set a punitive appeal bond amount which appears

patently excessive or arbitrary. Instead, it provided a mechanism for the

circuit court judge to review the proceeding anew to determine whether the

filed appeal is presumptively frivolous or not frivolous. The statute requires the

circuit judge to conduct a hearing and make findings of fact, KRS

100.3471(3)(a), and consider, among other non-listed factors, whether the

appeal is of a ministerial or discretionary decision, and whether a reasoned

interpretation supports the appellant’s position. KRS 100.3471(3)(b). Either

way, the circuit judge then sets a reasonable appeal bond based on evidence

up to the statutory maximum limit, either $250,000 (presumptively frivolous)

or $100,000 (not presumptively frivolous). The appellee bears the burden of

proving its costs and damages by sufficient evidence in order for the circuit

court to set the appeal bond. KRS 100.3471(3)(e). The appellant, as a party,

obviously has the ability to appear at that hearing and contest the appellee’s

proof. And, after the final and nonappealable decision in the matter, costs and

damages are limited to the amount of the appeal bond. KRS 100.3471(4)(c).

48 KRS 100.3471 is no different from other special statutory proceedings in

which the legislature conditioned court access on the ability of parties to post

bonds or bear costs. See KRS 120.185(1)(e) (requiring election challenger to

post bond with approved surety for costs of recount); Moore v. Roberts ex rel.

Roberts, 684 S.W.2d 276, 278 (Ky. 1982) (rejecting insurer’s argument that

assessment of damages or attorney’s fees from first appeal violated KY. CONST. §

115 as a penalty on its right of appeal, but instead was “an item of monetary

damages allowed by legislature due to continuing representation upon issue of

reasonableness[]”). As succinctly stated by this Court in Moore, “[a]n appeal is

always at one’s peril.” Id.

Finally, KRS 100.3471, the statute does not constitute local or special

legislation in violation of Sections 59 and 60.

II. Merits of Underlying Dispute

With respect to the underlying dispute, the Lexington-Fayette Urban

County Planning Commission determined to issue a demolition permit, which

was affirmed by the circuit court. While I would affirm the Court of Appeals’

opinion dismissing the Bluegrass Trust’s appeal, I agree, in the interest of

judicial economy, that we can and should determine the merits, since the

parties have adequately presented the record and their arguments to us. I

therefore concur with the majority’s opinion which affirms the Fayette Circuit

Court’s judgment.

Bisig and Keller, JJ., join.

49 COUNSEL FOR APPELLANT, BLUEGRASS TRUST FOR HISTORIC PRESERVATION:

Jessica Katherine Winters The Winters Law Group, LLC

COUNSEL FOR APPELLEE, LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT PLANNING COMMISSION:

Emilee Ann Buttrum The City of Georgetown

Tracy Webb Jones LFUCG, Department of Law

COUNSEL FOR APPELLEE, COMMONWEALTH OF KENTUCKY, EX REL. RUSSELL COLEMAN:

Matthew Franklin Kuhn Elizabeth Themins Hedges Office of the Attorney General

COUNSEL FOR APPELLEE, THE RESIDENCES AT SOUTH HILL, LLC:

William M. Lear, Jr. George “Nick” Edward Nicholson III Stoll Keenon Ogden PLLC

Nealy Ranell Williams University of Kentucky Law

COUNSEL FOR APPELLEE, WILLIAM WILSON:

Tracy Webb Jones LFUCG-Department of Law

50 COUNSEL FOR AMICUS, KENTUCKY CHAMBER OF COMMERCE:

Brent Robert Baughman Phillip Branden Gross Aaron William Marcus Job Darbin Turner, III Dentons Bingham Greenbaum, LLP

COUNSEL FOR AMICUS, KENTUCKY RESOURCES COUNSIL, INC.:

Thomas Joseph FitzGerald Ashley Dye Wilmes Kentucky Resources Council

COUNSEL FOR AMICUS: ASBURY PARK HOA, INC.; BERRYTOWN NEIGHBORHOOD ASSOCIATION, INC.; BONNYCASTLE HOMESTEAD ASSOCIATION, INC.; CEDAR CREEK GARDENS HOMEOWNERS ASSOCIATION, INC.; CITIZEN COALITION FOR LDC REFORM; FISHERVILLE AREA NEIGHBORHOOD ASSOCIATION, INC.; FRIENDS OF FLOYDS FORK LLC; FRIENDS OF LOUISVILLE PUBLIC ART; HURSTBOURNE TOWNEHOMES RESIDENTS ASSOCIATION, INC.; INDIAN SPRINGS COMMUNITY ASSOCIATION, INC.; IRISH HILL NEIGHBORHOOD ASSOCIATION, INC.; LOUISVILLE HISTORICAL LEAGUE, INC.; MURRAY HEIGHTS NEIGHBORHOOD CONNECTION; OPEN LOUISVILLE, INC.; RIDGEWAY NEIGHBORS AND FRIENDS; SCOTT COUNTY NEIGHBORS FOR SAFETY AND HEALTH; SIERRA CLUB INC. KENTUCKY; TUCKER STATION NEIGHBORHOOD ASSOCIATION, INC.: WINDING BROOK SUBDIVISION HOA, INC.; AND WOLF PEN PRESERVATION ASSOCIATION, INC.:

Stephen T. Porter

COUNSEL FOR AMICUS, PRESERVATION KENTUCKY, INC.:

Randal Alan Strobo 51 Strobo Barkley PLLC