Missionaries of Saint John the Baptist, Inc. v. Joel Frederic

• Court: Kentucky Supreme Court
• Decided: December 18, 2025
• Docket: 2024-SC-0006
• Status: Published

Opinion

RENDERED: DECEMBER 18, 2025 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0006-DG

MISSIONARIES OF SAINT JOHN THE APPELLANT BAPTIST, INC.

ON REVIEW FROM COURT OF APPEALS v. NO. 2022-CA-0867 KENTON CIRCUIT COURT NO. 21-CI-00766

JOEL FREDERIC; CATHLEEN APPELLEES MATCHINGA; CHARLES MEYERS; CITY OF PARK HILLS BOARD OF ADJUSTMENT; ELIZABETH FREDERIC; JUSTIN ODOR; MARK KOENIG; ROBERT SWEET; SHEILA BURKE TRUST; SHELIA BURKE, IN HER CAPACITY AS TRUSTEE FOR THE SHEILA BURKE TRUST; AND THOMAS MICHAEL

OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT

AFFIRMING

The Protection of Religious Exercise in Land Use and by Institutionalized

Persons Act (RLUIPA) is a federal law enacted to protect individuals and

religious institutions from substantially burdensome or discriminatory land

use regulations and to protect the religious rights of institutionalized persons.

In this case, this Court must address as a matter of first impression whether

the enforcement of a zoning ordinance to deny a church the ability to build a

religious shrine constituted a violation of RLUIPA. After review, we affirm the Court of Appeals’ ruling that RLUIPA was not violated under the facts of this

case, although we do so on different grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

a. Park Hills Board of Adjustment

In March 2021, Jordan Odor 1 submitted an application letter to Chris

Schneider, the Principal Planner for the Planning and Development Services of

Kenton County (PDS). 2 The letter was submitted by Odor on behalf of the

Sheila Burke Trust (the Burke Trust) and Missionaries of Saint John the

Baptist, Inc. (St. John). St. John is a non-profit organization that owns real

property in Park Hills, upon which sits Our Lady of Lourdes, a diocesan

Catholic church.

Odor’s letter requested that the Park Hills Board of Adjustment (the

Board) issue a conditional use permit and setback variances so that St. John

could build an outdoor grotto into a small hill next to its parking lot. The

grotto was to consist of a shrine to the Virgin Mary, a plaza, a walking path,

and a retaining wall. St. John sought to build the 16 ft. by 39 ft. grotto on a

portion of land adjacent to the church’s lot that was then-subject to a

perpetual lease agreement between the Burke Trust and St. John; the lease

1 It appears that Odor is the architect that created or took part in creating

renderings of the grotto, though it is unclear from the record. 2 PDS is an area planning commission created pursuant to Kentucky Revised

Statutes (KRS) 147.610 – 147.710. It provides planning and zoning services to the Park Hills Board of Adjustment and other governmental entities in Kenton and Campbell Counites within the meaning of KRS Chapters 100 and 147. PDS is not authorized to take any “final action” within the meaning of KRS 100.347 as it relates to the issuance of conditional use permits or variances.

2 was entered into with the mutually agreed intent to construct the grotto. St.

John’s property was located on Amsterdam Road, a collector street, 3 while the

land owned by the Burke Trust on which the grotto would be built was on

Alhambra Court, a local street. 4

The Odor letter acknowledged that the church was already classified as a

“conditional use” because it was zoned in a district for single and two-family

residential buildings; the church was constructed prior to the adoption of the

Park Hills zoning code and has been used as a church for various

denominations ever since. The letter further acknowledged that “the creation

of any type of accessory space to the existing church is not directly permitted

by the current local zoning ordinance” because the ordinance required that

churches be located adjacent to an arterial street 5 in order to obtain a

conditional use permit. Specifically, Section 10.4 of the Park Hills zoning

ordinance states, in relevant part:

A. PERMITTED USES:

1. Single - family residential dwellings (detached). 2. Two - family residential dwellings. 3. Planned Unit Development (PUD), as regulated by ARTICLE XI of this Ordinance.

3 Section 7.0 of the Park Hills’ zoning code defines collector street as a “[p]ublic

[thoroughfare] which [serves] to collect and distribute traffic, primarily from local residential streets to arterial streets.” 4 Section 7.0 of the Park Hills zoning code defines local street as “[f]acilities

which are designed to be used primarily for direct access to abutting properties and leading into the collector street system.” 5 Section 7.0 of the Park Hills zoning code defines arterial street as “[p]ublic

thoroughfares which serve the major movements of traffic within and through the community[.]”

3 ...

C. CONDITIONAL USES: No building or occupancy permit shall be issued for any of the following, nor shall any of the following uses or any customary accessory buildings or uses be permitted until and unless the location of said use shall have been applied for and approved of by the Board of Adjustment, as set forth in SECTION 9.13:

...

2. Churches and other buildings for the purpose of religious worship, provided they are located adjacent to an arterial street.

Notwithstanding the plain language of the ordinance, Odor requested

that the Board approve: “the installation of a customary accessory structure

(i.e. grotto) to the existing conditional use for a place of religious worship”; “the

installation of a customary accessory structure (i.e. grotto) at a site located off

a collector street rather than an arterial street”; and “variances . . . for

conditionally permitted uses[.]” In addition to his letter, Odor submitted a site

plan and drawings detailing the proposed grotto and several letters in support

of the project from members of the community.

On April 8, 2021, Schneider sent the Board a one-page letter and five-

page PDS staff report recommending that St. John’s request for a conditional

use permit and variances be denied. PDS’s recommendation was based on the

proposed project’s failure to satisfy the requirements of Section 10.4 of the

zoning code which, as noted, permitted for conditional use “[c]hurches and

other buildings for the purpose of religious worship, provided they are located

4 adjacent to an arterial street.” (Emphasis added). In addition, Section 9.13 of

the zoning code directs:

A. The Board of Adjustment may authorize a conditional building and use to be located within any zone in which the particular conditional use is permitted by the use regulations of this ordinance, if the evidence presented by the applicant is such as to establish, beyond any reasonable doubt:

1. That the proposed building and use at the particular location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community; and 2. That such building and use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity; and 3. That the proposed building and use will comply with any regulations and conditions specified in this ordinance for such building and use.

(Emphasis added). While PDS believed that the proposed project satisfied

Section 9.13(A)1. and 2., it could not conclude that subsection 3.’s requirement

had been met because “[c]hurches are required to [be] located adjacent to an

arterial street[,]” and “Amsterdam Road is a collector street[.]” It advised the

Board that being located on an arterial street was “a minimum requirement of

the zoning ordinance for conditional use.”

As PDS recommended that the conditional use permit be denied, it

further recommended that the variances be denied. However, it noted that if

the Board wished to grant the variances, it must first find that granting the

variances “will not adversely affect the public health, safety or welfare, will not

alter the essential character of the general vicinity, will not cause a hazard or a

5 nuisance to the public, and will not allow an unreasonable circumvention of

the requirements of the zoning regulations.” KRS 100.243(1).

On April 15, 2021, the Board held a public hearing regarding St. John’s

requests. Schneider gave a presentation and explained PDS’s position that the

requests should be denied consistent with the reasons provided in the PDS

staff report. Father Sean Kopczynski presented his own presentation on behalf

of St. John. When the hearing was opened to the public several members of

the community voiced support for the project while several, including Joel

Frederic, voiced their opposition. The most common reason raised in

opposition was that traffic and parking in the neighborhood, which were

already a problem, would be exacerbated.

The Board voted 4-1 to grant both the conditional use permit and the

setback variances conditioned on the property being deeded to St. John’s

within six months. 6 The sole member that voted against granting St. John’s

requests did so on the basis that the church was not located on an arterial

street and concerns about increased traffic.

Four days after the public hearing, Schneider sent Odor, St. John, and

the Burke Trust a barebones letter memorializing the Board’s decision to grant

6 During the hearing the Board’s chairman expressed that he would be “much

more comfortable” if the property was deeded to St. John “to eliminate a lot of controversy about what if.” Father Kopczynski stated that the Burke Trust intended to transfer the property in fee simple to St. John regardless of whether the project was approved and that they had already begun that process. The property was ultimately deeded to St. John on June 22, 2021.

6 the conditional use permit and variances. The Board’s findings were, in their

entirety:

Request 1 Decision: To approve the conditional use permit for an accessory structure associated with a church.

Basis: 1. The proposed building and use at this particular location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community. 2. The proposed building and use will not, under the circumstances of this particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity. 3. The proposed building and use will comply with any regulations and conditions specified in this ordinance for such building or use. 4. Based on testimony heard at the April 15, 2021 public hearing.

Request 2 Decision: To approve the variance requests to the rear and side yard setback requirements for an accessory use associated with a church with the condition that the portion of 917 Alhambra Court which contains the proposed accessory structure. . . is deeded over to 1101 Amsterdam Road within six months.

Basis: 1. The requested variances will not adversely affect the public health, safety [or] welfare, will not alter the essential character of the general vicinity, will not cause a hazard or nuisance to the public, and will not allow an unreasonable circumvention of the zoning regulations. 2. Based on testimony heard at the April 15, 2021 public hearing.

(Emphasis added).

7 b. Kenton Circuit Court

Thereafter, Joel Frederic and his wife Elizabeth, who live directly across

the street from the church, filed a complaint against the Board; Odor; the

Burke Trust; Shelia Burke, as trustee of the Burke Trust; and St. John

(collectively, the defendants) 7 in Kenton Circuit Court. We note here that any

recorded proceedings that may have occurred before the circuit court were not

included in the record now before us.

Count one of the complaint was an appeal pursuant to KRS 100.347

under which the Frederics asserted that the Board violated the applicable

ordinances in granting St. John’s conditional use permit because the church’s

property was not adjacent to an arterial street. It further contended that the

Board lacked the authority to grant variances to St. John pursuant to KRS

100.247 (“The board shall not possess the power to grant a variance . . . which

is not permitted by the zoning regulation in the zone in question[.]”), and that

the Board failed to consider that the expansion of a nonconforming use was

implicated under KRS 100.253 (“The board of adjustment shall not allow the

enlargement or extension of a nonconforming use beyond the scope and area of

its operation at the time the regulation which makes its use nonconforming

was adopted[.]”). Count two of the complaint sought declaratory and injunctive

relief.

7 The complaint also named PDS as a defendant, but it was later dismissed

from the suit by agreed order as it was an unnecessary party.

8 The defendants filed a joint answer to the complaint asserting various

defenses. Pertinent to our purposes herein, the defendants’ answer did not

assert that the Board was compelled to grant St. John’s request under RLUIPA,

42 U.S.C.A. 8 §§ 2000cc – 2000cc-5.

Roughly nine months later, the Frederics filed a motion for summary

judgment which asserted identical arguments to those raised in their

complaint. The defendants thereafter filed their own joint motion for summary

judgment. Despite their initial acknowledgement before the Board that the

church was not located on an arterial street, their motion for summary

judgment changed course. They instead noted that the construction of the

church pre-dated the zoning code and asserted, without any supporting

evidence, that at the time the church was constructed Amsterdam Road was an

arterial street. Based on this they argued, without any supporting case law or

statutes, that an existing structure within a zone is not affected by subsequent

zoning changes and are therefore “grandfathered in” until the existing use is

abandoned. They further argued, again without any supporting law, “that

since the church predated the zoning regulations it is exempt from the current

restrictions.” Or, stated differently, the zoning code simply did not apply to it.

The defendants further argued, for the first time, that RLUIPA applied.

Their only argument was that there was no compelling reason to prevent the

grotto’s construction and that the issue was “beyond the scope of government

8 United States Code Annotated.

9 regulation.” The motion for summary judgment also asserted that the Board

did not act arbitrarily in granting the conditional use permit or variances; that

the Frederics failed to show they were aggrieved or injured by the Board’s

ruling; and that the circuit court lacked the authority to grant the Frederics’

requested injunctive relief.

The Frederics’ reply did not assert that the defendants were precluded

from raising RLUIPA due to their failure to assert it as an affirmative defense in

their answer to the Frederics’ complaint. Instead, they responded to the

argument on the merits and asserted that the zoning ordinance was a

reasonable restriction that keeps traffic from churches to arterial streets in

order to prevent non-arterial neighborhood streets from being overburdened,

and thus that enforcement of the ordinance did not violate RLUIPA. As for the

church’s existence pre-dating the zoning code, the Frederics argued that this

simply made the church a non-conforming use which may be continued but

cannot be expanded. KRS 100.253. They further argued that they had

asserted an actual injury; that they were denied due process by the Board

because they were not permitted to cross-examine anyone during the public

hearing; and that injunctive relief could be issued to prevent the government

from violating the law.

The circuit court granted summary judgment in favor of the defendants.

It is not clear from the record whether the circuit court held a hearing on the

competing motions for summary judgment, or whether it issued its ruling

based solely on the parties’ filings. While the court found that the Frederics

10 had standing and had alleged an actual injury, it further found that they failed

to demonstrate the Board acted arbitrarily pursuant to Am. Beauty Homes

Corp. v. Louisville & Jefferson Cty. Planning and Zoning Comm’n, 379 S.W.2d

450 (Ky. 1964). American Beauty provides a tripart test to determine whether

an administrative body acted arbitrarily, namely: whether the body acted in

excess of its granted powers, whether the litigants before the body were

afforded procedural due process, and whether the body’s decision was

supported by substantial evidence. Id. at 456. First, regarding whether the

Board acted in excess of its powers, the circuit court found:

The church building has existed on the property since 1930, at which time Amsterdam Road was an arterial street. Amsterdam Road was reconstructed and right-of-way acquired by the Commonwealth Department of Highways in 1955 but the road was never officially designated as being in the State Primary Road

System. Park Hills zoning ordinance adopted in 1974 provides in § 10.4 that churches are permitted in the relevant zone provided they are adjacent to an arterial street, which is defined in § 7.0 as a public thoroughfare which serves the major movements of traffic within and through the community as identified in the comprehensive plan for the city. The right-of-way was transferred from the state back to the City of Park Hills, for that portion of the road within the city limits, in 2007. The Missionaries of St. John the Baptist obtained the property in 2015. At some point it appears that Amsterdam Road lost its designation as an arterial street, although it still meets that definition, but the church is grandfathered in as an accepted conditional use and any permits for accessory structures or variances are to be considered accordingly. Wells v. Fiscal Court of Jefferson County, 457 S.W.2d 498, 502 (Ky. 1970). 9

9 Wells upheld a decision of the Jefferson County Fiscal Court to re-zone a

parcel of land from single-family residential to multi-family residential under KRS 100.213 and held that a parking garage was a valid accessory structure for the proposed apartment buildings. Id. at 502-03. It said nothing regarding the concept of “grandfathering in.”

11 It further held that the Board provided procedural due process via the public

hearing and that substantial evidence supported its decision. The circuit court

ruled in the defendants’ favor, and it did not address RLUIPA.

c. Court of Appeals

The Frederics appealed the circuit court’s ruling to the Court of Appeals,

and a unanimous panel reversed. Frederic v. City of Park Hills Bd. of

Adjustment, 2022-CA-0867-MR, 2023 WL 8286391 (Ky. App. Dec. 1, 2023).

The court held that the Board acted arbitrarily under the American Beauty test

because while it afforded the Frederics procedural due process, id. at *6, it

exceeded its statutory authority in granting St. John a conditional use permit

and variances. Id. at *4. It reasoned that the construction of the grotto on the

Burke Trust property “would constitute either a change or an expansion of the

church’s preexisting nonconforming use[,]” and that the expansion of a

preexisting nonconforming use is plainly prohibited by Section 19.6(D)(3) of the

zoning code, which states: “The Board of Adjustment shall not allow the

enlargement or extension of a nonconforming use beyond the scope and area of

its operation at which time its use became nonconforming.” Id. It further held

that KRS 100.253 likewise prohibited the expansion. Id. Based on this

holding, the court declined to address whether the Board’s decision was

supported by substantial evidence. Id. at *6.

As for RLUIPA, we first highlight that neither the Frederics’ appellant

brief nor its reply brief before the Court of Appeals argued that the RLUIPA

12 claim was not properly before the court due to the defendants’ failure to assert

it affirmatively in their answer before the circuit court, and instead argued the

issue on the merits at the summary judgment phase. The Court of Appeals

accordingly addressed the defendants’ RLUIPA claim and held:

[T]he Sixth Circuit notes, there is “no substantial burden when, although the action encumber[s] the practice of religion, it d[oes] not pressure the individual to violate his or her religious beliefs.” Living Water Church of God v. Charter Tp. of Meridian, 258 F. App'x 729, 734 (6th Cir. 2007)

“RLUIPA's history demonstrates that Congress intended to leave intact the traditional ‘substantial burden’ test, as defined by the Supreme Court's free exercise jurisprudence.” Episcopal Student Found. v. City of Ann Arbor, 341 F. Supp. 2d 691, 701 (E.D. Mich. 2004) (citations omitted). Federal courts have identified two categories of alleged substantial burden upon free exercise of religion. Id. at 701. As to the first, “courts routinely find substantial burdens where compliance with the statute itself violates the individual's religious beliefs and noncompliance may subject him to criminal sanctions or the loss of a significant government privilege or benefit.” Id. at 701-02. In the second,

“courts have been far more reluctant to find a violation where compliance with the challenged regulation makes the practice of one's religion more difficult or expensive, but the regulation is not inherently inconsistent with the litigant's beliefs.” Id. at 702.

The Park Hills Zoning Ordinance falls squarely within the second category. The application of the ordinance to prohibit construction of the grotto may make practice of religion somewhat more difficult for the church's congregation or the adherents of the Catholic faith broadly, but the Zoning Ordinance is not inherently inconsistent with their religious beliefs.

Id. at *6-*7 (internal citations omitted). The Court of Appeals accordingly

concluded that enforcement of the Park Hills zoning ordinance did not

constitute a violation of RLUIPA. Id. at *7.

13 St. John thereafter sought discretionary review of the Court of Appeals’

ruling from this Court, which we granted.

II. ANALYSIS

As a preliminary point of clarification, despite the majority of the

proceedings below focusing on whether the Board acted arbitrarily under

American Beauty, before this Court St. John has not challenged the Court of

Appeals’ holding that the Board exceeded its statutory authority in granting St.

John’s requested conditional use permit and variances. Accordingly, that

holding must stand and we will address only the arguments raised by St. John

concerning the application of RLUIPA.

A. Preservation

This Court must first address as a threshold matter whether St. John’s

RLUIPA claims were properly preserved for our review. The Frederics assert,

for the first time in this litigation, that St. John’s claims under RLUIPA were

not properly preserved because it failed to raise it as an affirmative defense 10 in

its answer to the Frederics’ circuit court complaint. CR 11 8.03 (“In pleading to

a preceding pleading, a party shall set forth affirmatively. . . any . . . matter

constituting an avoidance or affirmative defense.”).

10 Although RLUIPA is most commonly asserted as a cause of action, the Act

itself contemplates that it may be raised as a defense. 42 U.S.C.A. § 2000cc-2(a) (“A person may assert a violation of this chapter as a claim or defense in a judicial proceeding[.]”). 11 Kentucky Rule of Civil Procedure.

14 St. John argues in response that the Frederics did not challenge its

assertion of RLUIPA in either the circuit court or the Court of Appeals and

instead responded to its arguments on the merits. Therefore, it contends, its

RLUIPA defense was tried by the implied consent of the Frederics pursuant to

CR 15.02, which provides that “[w]hen issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings.” We agree.

The appropriate time for the Frederics to challenge St. John’s use of

RLUIPA as a defense was in their reply after St. John raised it for the first time

in its motion for summary judgment. They did not. This Court has previously

“determined that CR 15.02 is a tool for deciding cases on their merits rather

than on the basis of gamesmanship.” Kroger Co. v. Jones, 125 S.W.3d 241,

246 (Ky. 2004) (citing Nucor Corp. v. Gen. Elec. Co., 812 S.W.2d 136, 145–46

(Ky. 1991)). And, CR 15.02 “may be invoked even though the appellate level

has been reached.” Bowling Green-Warren Cty. Airport Bd. v. Long, 364 S.W.2d

167, 171 (Ky. 1962). To dismiss St. John’s RLUIPA claims at this juncture

would in effect allow the Frederics to, whether intentionally or unintentionally,

hold their lack of preservation card in their back pocket until the eleventh hour

and prevail on a technicality. Civil Rule 15.02 was clearly intended to prevent

such an outcome.

Moreover, although no “trial” occurred, the circuit court’s grant of

summary judgment was a resolution of the matter comparable to a trial, and

CR 15.02 has been previously invoked in workers’ compensation cases, which

15 never involve a jury or bench trial, but rather a hearing before an

administrative law judge. See, e.g., Kroger Co. v. Jones, 125 S.W.3d 241, 246

(Ky. 2004). Finally, we perceive no prejudice to the Frederics by St. John’s

invocation of CR 15.02: St. John’s intent to assert RLUIPA has been in the

background of this litigation since its motion for summary judgment, and the

Frederics have asserted their arguments in opposition throughout these

proceedings. See Nucor, 812 S.W.2d at 146 (“[T]he theory of implied consent

does not turn on actual consent but on actual prejudice. The concept of actual

prejudice is not related to winning or losing, but to being unable to present a

defense which would have been otherwise available.”).

Accordingly, we hold that St. John’s RLUIPA defense was tried by the

implied consent of the parties and is properly before us for decision.

B. Merits

The United States Congress enacted The Religious Freedom Restoration

Act (RFRA), 42 U.S.C.A. §§ 2000bb – 2000bb-4., in 1993 and its sister statute

RLUIPA in 2000 “in order to provide very broad protection for religious liberty.”

Holt v. Hobbs, 574 U.S. 352, 356 (2015). RFRA’s protections are much broader

than RLUIPA’s, as it commands that the “[g]overnment shall not substantially

burden a person's exercise of religion even if the burden results from a rule of

general applicability” unless the government demonstrates that the application

of the burden “is in furtherance of a compelling governmental interest” and “is

the least restrictive means of furthering that compelling governmental interest.”

41 U.S.C.A. § 2000bb-1.(a)-(b).

16 Congress initially intended for RFRA to apply to both state governments

pursuant to the Fourteenth Amendment and the federal government. However,

in City of Boerne v. Flores, 521 U.S. 507 (1997), the United States Supreme

Court held that Congress exceeded its authority under the Fourteenth

Amendment in making RFRA appliable to the states. Accordingly, while RFRA

is still appliable to the federal government, it has no authority over the

sovereign states. In response to Flores, Congress passed RLUIPA, which

applies to the states and their subdivisions pursuant to Congress’ authority

under the Spending and Commerce Clauses. Hobbs, 574 U.S. at 357.

Consequently, it has a very narrow application in only two areas: land use

regulations that impose substantial burdens on religious exercise or otherwise

discriminate against or place a religious entity on non-equal footing with a non-

religious entity, and government practices that impose a substantial burden on

the religious exercise of institutionalized individuals.

Kentucky has since enacted its own religious freedom statute, the

Kentucky Religious Freedom Restoration Act (KRFRA) that is nearly identical in

its broad application to RFRA as it states that “[g]overnment shall not

substantially burden 12 a person's freedom of religion” unless “the government

proves by clear and convincing evidence that it has a compelling governmental

interest in infringing the specific act or refusal to act and has used the least

restrictive means to further that interest.” KRS 446.350. However, although

12 We note that this Court has never been called upon to define “substantial

burden” under KRFRA.

17 KRFRA would be applicable to the facts of this case, St. John has not raised

any claims under KRFRA nor has it asserted any claims under the Kentucky or

the United States Constitution. Our focus herein is therefore limited to

RLUIPA.

This Court has not yet had occasion to address RLUIPA. We therefore

begin with the language of the Act which provides, in relevant part:

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land use regulation 13 in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

(2) Scope of application This subsection applies in any case in which—

(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the

13 The Act defines “land use regulation” as “a zoning or landmarking law, or the

application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership . . . interest in the regulated land[.]” 42 U.S.C.A. § 2000cc-5(5).

18 government to make, individualized assessments of the proposed uses for the property involved.

42 U.S.C.A. § 2000cc(a).

Accordingly, a RLUIPA claimant first bears the burden of demonstrating

that a governmental land use regulation, such as a zoning ordinance, imposes

a substantial burden on his, her, or its exercise of religion. If, and only if, a

claimant demonstrates that a substantial burden exists does the burden shift

to the government to demonstrate that the imposition of that burden furthers a

compelling government interest and is the least restrictive means of furthering

that interest. See also 42 U.S.C.A. § 2000cc-2.(B).

Thus, the first question we must address is whether St. John has

demonstrated that a denial of its request for a conditional use permit and

variances pursuant to the Park Hills zoning code constitutes a substantial

burden on its religious exercise. The action St. John wishes to take—building

a grotto that honors the Virgin Mary’s appearance at a grotto in Lourdes,

France—constitutes a religious exercise. 42 U.S.C.A. § 2000cc-5.(7)(A) (“The

term ‘religious exercise’ includes any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.”). The dispositive issue,

then, is whether the prevention of that pursuit constitutes a substantial

burden.

The Act itself does not define substantial burden, and the United States

Supreme Court has yet to define it under RLUIPA within the land use

regulation context. This leaves us to look to the federal circuit courts for

guidance, and we agree with the Frederics’ assertion that the Sixth Circuit’s 19 jurisprudence as delineated in Livingston Christian Schools v. Genoa Charter

Twp., 858 F.3d 996 (6th Cir. 2017) should be our polestar.

In Livingston, the Sixth Circuit’s primary focus was formulating a

workable standard to determine when a substantial burden had been imposed

on the exercise of religion within the land use regulation context. It began that

endeavor by discussing the only two cases from its circuit that addressed that

inquiry, both of which were unpublished. Id. at 1002. One of those cases was

Living Water which, the Livingston Court explained, “‘decline[d] to set a bright

line test’ to determine whether a substantial burden exists,” and instead

announced a “framework to apply to the facts before [it].” Id. at 1002 (quoting

Living Water, 258 Fed.Appx. at 737). That framework asked: “[D]oes the

government action place substantial pressure on a religious institution to

violate its religious beliefs or effectively bar a religious institution from using its

property in the exercise of religion?” Livingston, 858 F.3d at 1002 (quoting

Living Water, 258 Fed.Appx. at 737).

In her concurring opinion in Living Water, Judge Moore cautioned that

the framework established by the opinion was inadvisable “because the

effective-bar prong was ‘so broad as to swallow the substantial-burden

inquiry.’” Livingston, 858 F.3d at 1003 (quoting Living Water, 258 Fed.Appx. at

742 (Moore, J., concurring)). The Livingston Panel agreed with this

assessment, as “the effective-bar prong would mean that, any time that a land

use regulation completely barred the religious use of a property, a substantial

burden would automatically exist.” Livingston, 858 F.3d at 1003. The court

20 further noted that no other circuit had adopted the effective bar test, and that

the test failed to consider factors that other circuits had considered under the

substantial burden inquiry “such as whether a religious institution has ready

alternatives to carry out its mission, or whether the religious institution’s

inability to use available land was self-imposed.” Id. The Livingston court

accordingly declined to follow the Living Water framework and sought to

establish its own. Id.

In doing so, it began from the principle that “not just any imposition on

religious exercise will constitute a violation of RLUIPA,” and that the burden

must have “some degree of severity to be considered ‘substantial.’” Id. It

reasoned that “taking seriously the requirement that a burden be ‘substantial’

is necessary in order to avoid an interpretation of RLUIPA that would exempt

religious institutions from all land-use regulations.” Id. Relying on opinions

from its sister circuits, the Livingston court then adopted several factors to be

considered in determining whether a substantial burden exists. Id. at 1004-

05.

The first factor is “whether the religious institution has a feasible

alternative location from which it can carry on its mission.” Id. at 1004 (citing

Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir. 2007)).

The second is “[w]hether the religious institution will suffer substantial delay,

uncertainty, and expense due to the imposition of the regulation[.]” Livingston,

858 F.3d at 1004 (internal quotation marks omitted) (quoting Westchester, 504

F.3d at 349). The third is whether “a plaintiff has imposed a substantial

21 burden upon itself. . . [f]or example when an institutional plaintiff has obtained

an interest in land without a reasonable expectation of being able to use that

land for religious purposes[.]” Livingston, 858 F.3d at 1004 (citing Andon, LLC

v. City of Newport News, Va., 813 F.3d 510, 515 (4th Cir. 2016); Petra

Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007)).

And the fourth factor was “whether there is evidence that the municipality’s

decisionmaking (sic) process was arbitrary, capricious, or discriminatory.”

Livingston, 858 F.3d at 1004.

In this case, St. John asserts arguments under the first three Livingston

factors. It first makes several conclusory statements that it has no other

feasible alternative locations for construction of the grotto. It has not asserted

that it could not construct a smaller grotto or shrine on the property it already

owned, i.e., not on the acquired Burke Trust property. Doing so would prevent

St. John from running afoul of KRS 100.253, which only prevents “the

enlargement or extension of a nonconforming use beyond the scope and area of

its operation at the time the regulation which makes its use nonconforming

was adopted[.]” (Emphasis added). Moreover, we conclude that St. John’s

ability to build a smaller shrine or grotto than what it desires falls more into

the category of a mere inconvenience than a burden with “some degree of

severity[.]” Livingston, 858 F.3d at 1003 (citing Int'l Church of the Foursquare

Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (explaining

that a substantial burden “must impose a significantly great restriction or onus

22 upon [religious] exercise” (quoting San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024, 1034 (9th Cir. 2004))); Midrash Sephardi, Inc. v. Town of

Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (concluding that a substantial

burden is “more than an inconvenience”). We cannot conclude this factor

weighs in St. John’s favor.

Relying on Catholic Healthcare Int’l, Inc. v. Genoa Charter Twp., Michigan,

82 F.4th 442 (6th Cir. 2023), St. John next contends that denial of its

requested conditional use permit and variance would cause it to suffer

substantial delay, uncertainty, and expense and that it has not imposed a

substantial burden upon itself. In Catholic Healthcare, Catholic Healthcare,

Inc. created a prayer trail with fourteen “stations of the cross” depicting the

story of Jesus’ crucifixion on its 40-acre property; the trail could not be seen

from outside the property. Id. The Township chose to treat the trail as the

zoning equivalent of a church building and demanded that Catholic Healthcare

apply for a special land use permit. Id. At a considerable expense, Catholic

Healthcare submitted two such applications, both of which were denied. Id.

The Township further demanded that the stations of the cross be removed from

the trail, along with a stone altar and mural. Id. at 444-45. Catholic

Healthcare sought a preliminary injunction from the Sixth Circuit pursuant to

RLUIPA to allow it to restore all removed items from its prayer trail. Id. at 445.

Applying Livingston, the Catholic Healthcare Court first held that the

religious institution had suffered substantial delay, uncertainty, and expense

23 due to the imposition of the Township’s regulations. Id. at 449. It reasoned

that “after two years of administrative proceedings and considerable expense,

they remain unable to place the religious displays on their prayer trial.” Id. It

further held that Catholic Healthcare had not placed the burden on itself. Id.

It expounded that “[t]his factor reflects that, when a plaintiff has good reason to

know in advance that its proposed usage will be subject to an onerous review

process, the burdens of that process are not likely to count as substantial for

the purposes of [RLUIPA,]” and that “here, the Township’s zoning ordinance

gave plaintiffs little reason to expect the treatment they have received.” Id. In

particular, Catholic Healthcare would have had no reason to anticipate that the

Township would consider the trail of religious displays a church building. Id.

Here, St. John—which bears the burden of proof—has presented no

evidence of any expenses it incurred due to any mandate from the Board.

Indeed, it concedes that in 2021 it “voluntarily” submitted an application for a

grotto that was smaller in size than it originally intended. And, while it asserts

that its saga to build the grotto began in 2017, the evidence before us begins

with its 2021 application to the Board. Additionally, there can be no serious

contention that St. John was uncertain of the likelihood that its applications

would be denied pursuant to the applicable zoning ordinance. St. John’s own

application letter to the Board acknowledged that “the creation of any type of

accessory space to the existing church is not directly permitted by the current

local zoning ordinance” because the ordinance required it to be located adjacent

to an arterial street to obtain a conditional use permit. (Emphasis added). For

24 the same reason, it cannot be said that St. John has not imposed a burden

upon itself under Catholic Healthcare. Unlike the claimants in that case, St.

John had every reason to know, and in fact explicitly acknowledged, that

building the grotto was not permitted by the ordinance.

We accordingly hold that prohibiting St. John’s request to build the

grotto does not impose a substantial burden on St. John and accordingly does

not run afoul of 42 U.S.C.A § 2000cc(a) of RLUIPA.

St. John further asserts that the ordinance is invalid on its face because

it violates the “equal terms” provision of RLUIPA, which directs: “No

government shall impose or implement a land use regulation in a manner that

treats a religious assembly or institution on less than equal terms with a

nonreligious assembly or institution.” 42 U.S.C.A § 2000cc(b). Unlike

subsection (a) of 42 U.S.C.A § 2000cc, subsection (b) does not require St. John

to prove a substantial burden was imposed. Rather, St. John need only prove

that the Park Hills ordinance treats a religious assembly or institution on less

equal terms with a nonreligious assembly or institution.

St. John’s sole argument under the equal terms provision of RLUIPA is

that Section 10.4(C) of the Park Hills zoning ordinance requires churches and

other buildings for the purpose of religious worship to be on an arterial street

“while not requiring the same for cemeteries, nursery schools, public and

parochial schools, public parks, playgrounds, golf courses, community

recreation centers, libraries, and country clubs.” This assertion is not correct.

Section 10.4(C) states in its entirety:

25 C. CONDITIONAL USES: No building or occupancy permit shall be issued for any of the following, nor shall any of the following uses or any customary accessory buildings or uses be permitted until and unless the location of said use shall have been applied for and approved of by the Board of Adjustment, as set forth in Section 9.13:

1. Cemeteries. 2. Churches and other buildings for the purpose of religious worship, provided they are located adjacent to an arterial street. 3. Institutions for higher education, provided they are located adjacent to an arterial street. 4. Institutions for human medical care - hospitals, clinic sanitariums, convalescent homes, nursing homes, homes for the aged, provided they are located adjacent to an arterial street. 5. Nursery school. 6. Police and fire stations, provided they are located adjacent to an arterial street. 7. Public and parochial schools. 8. Publicly owned and/or operated parks, playgrounds, golf courses, community recreational centers, including libraries. 9. Recreational uses other than those publicly owned and/or operated, as follows:

a. Golf courses. b. Country clubs.

(Emphasis added). Clearly, the ordinance does not put churches and other

buildings for the purpose of religious worship “on less than equal terms with a

nonreligious assembly or institution.” 42 U.S.C.A. § 2000cc(b). Institutions for

higher education, hospitals, sanitariums, convalescent homes, nursing homes,

police stations, and fire stations must also be on an arterial street. Moreover,

one of the categories St. John identifies as not being required to be on an

arterial street are parochial schools, which are religious institutions. We

26 consequently hold that the Park Hills ordinance does not violate 42 U.S.C.A. §

2000cc(b) of RLUIPA.

As a final note, we clarify that while this Court agrees with the outcome

reached by the Court of Appeals in this case—that no RLUIPA violation

occurred—we disagree with its application of Episcopal Student to conclude

that the reason no violation occurred was that while “application of the

ordinance to prohibit construction of the grotto may make practice of religion

somewhat more difficult for the church's congregation or the adherents of the

Catholic faith broadly. . . the Zoning Ordinance is not inherently inconsistent

with their religious beliefs.” Frederic, 2022-CA-0867-MR, 2023 WL 8286391 at

*7. Instead, we reiterate that henceforth Livingston and its progeny will be the

applicable standard for determining whether a substantial burden was imposed

on the exercise of religion within the land use regulation context.

III. CONCLUSION

Based on the foregoing, the Court of Appeals’ holding that the Park Hills

Board of Adjustment acted arbitrarily in granting St. John a conditional use

permit and variances, which was unchallenged by St. John’s appeal, stands.

In addition, the Court of Appeals’ holding that no violation of RLUIPA occurred

is affirmed, albeit on different grounds. The Board’s grant of a conditional use

permit and variances to St. John for the construction of a grotto is hereby

vacated.

All sitting. Bisig, Conley, Goodwine, Keller and Nickell,

JJ., concur. Thompson, J. dissents by separate opinion.

27 Thompson, J., DISSENTING. While I agree with the majority opinion’s

conclusion that the Protection of Religious Exercise in Land Use and by

Institutionalized Persons Act (RLUIPA) was not violated, this issue was the only

issue presented by the motion for discretionary review filed by Missionaries of

Saint John the Baptist, Inc. (the Church) and the only matter which should

have been considered by this Court.

Since the singular issue to be determined by this Court was whether a

RLUIPA violation had occurred, that is where all discussion should have been

confined. I therefore must dissent with regard to the majority’s repetition of the

Court of Appeals’ erroneous analysis of, and criticism of, the determinations

made by the Park Hills Board of Adjustment (the Board) to authorize a variance

and issue a conditional use permit.

I must write separately out of my real concern that the majority opinion’s

recitation of the procedural history in this matter—which should be understood

as nothing more than dicta—will give even more litigious neighbors the false

impression that this Court agreed with the Court of Appeals’ erroneous,

unnecessary and unreasonably broad determination of what constitutes an

unlawful “enlargement or expansion of a nonconforming use” under Kentucky

Revised Statutes (KRS) 100.253(2) or the identical local ordinance at issue. The

majority opinion should in no way be read or interpreted as to restrict the

authority of local boards of adjustment to exercise their discretionary authority

in a manner that is both consistent with their authorizing ordinances and

enabling statutes, and the overall will of the local citizenry they serve.

28 My fear is that, due to the dearth of caselaw in the Commonwealth on

this issue, this Court’s opinion may be viewed as an adoption of the Court of

Appeals’ erroneous analysis and henceforth serve to: (a) improperly limit the

effectiveness and discretion of boards of adjustment to grant necessary and

proper conditional use permits that are beneficial to the communities they

serve; and (b) unlawfully restrict the vested property rights of landowners

whose churches, residences, or businesses predate the adoption of, or

amendments to, local zoning ordinances.

It is my conclusion that the Court of Appeals’ determination that the

planned grotto constituted an “enlargement or expansion” of “the church”

mischaracterizes the nature of the intended walkway, path, patio, and statue

as a matter of law and impermissibly limits both the legal authority granted to,

and inherent discretion of, local boards of adjustment to grant conditional use

permits and variances.

The genesis of the Court of Appeals’ error was its obvious confusion

regarding the true nature of the proposed grotto vis-à-vis our statutes and the

Park Hills zoning ordinance. To begin, there are differences between a structure

that serves as “a church” in the traditional sense of a building for worship with

pews, a sanctuary and an altar, and “a church” in the broader sense which

may incorporate a litany of additional separate or attached structures

commonly found on many church campuses such as Sunday School

classrooms, libraries, gyms, fellowship halls, staff offices and even private

schools. Here, there was no structure to be constructed. There would have

29 been no excavation or blasting, foundations being poured, beams laid, framing

constructed, trusses mounted, walls erected, heating and air-conditioning

installed, or waste and water services dug and connected.

In this case, Missionaries of Saint John the Baptist, Inc., owns certain

structures that have operated as “a church” in Park Hills since 1930, predating

the creation of Park Hills’s zoning code. Those church buildings only became a

“non-conforming use,” (a) after Park Hills adopted its zoning code, and (b) after

Amsterdam Road on which the church is situated was designated a “collector

street” instead of an “arterial street.”

Having become a “non-conforming use” through no fault or action of its

own, the church could not thereafter be “expanded or extended” per KRS

100.253(2) which reads in relevant part, “the board of adjustment shall not

allow the enlargement or extension of a nonconforming use beyond the scope and

area of its operation at the time the regulation which makes its use

nonconforming was adopted[.]” (Emphasis added).

The Court of Appeals decided that construction of a grotto “would

constitute a change or an expansion of the church’s nonconforming use,”

seemingly deciding that any new garden with a statue installed by the

church—regardless of use, size or impact—equates with an impermissible

“expansion.” No reasonable reading of the plain language of the statute

supports such an overly broad interpretation.

First, a mere “change” is not prohibited by the statute. The statute

specifically uses the terms “enlargement or extension.” So, what is an

30 enlargement or an extension of a nonconforming use? The statute offers no

additional guidance, 14 but I posit that the obvious answer lies in the degree to

which a new structure or renovations would effectively “enlarge” the

commercial utilization of the property in such a way that tangibly changes the

property-owning entity itself which, in this case, has been a congregation’s

meeting and worship place for the last ninety-five years. Adding a grotto should

never be considered an enlargement of a church any more than the addition of

a sandbox would be considered a statutory “enlargement” of a daycare facility.

The Courts of our Commonwealth should not entertain the notion that

additions of yard art, statues, patios, porches, picnic areas, outdoor seating

and the like are outlawed by statute despite a landowner obtaining permission

from his or her local zoning authority.

Here, we are talking about a grotto that is dimensionally more akin to a

patio and would take up less area than that encompassed by a modest

children’s playground. The proposed grotto was not going to significantly, or in

any way, alter the core use of “the church” by its presently existing

congregation by changing or expanding the church’s function or altering its

breadth of operations. Therefore, there would be no “enlargement or extension

of [the church] beyond the scope and area of its operation” and KRS 100.253(2)

14 Without the General Assembly offering a clear definition for this language, its

interpretation and application should be left to the sound discretion of the agencies who are vested, by the local citizenry, with its implementation. Absent proof of a clear abuse of discretion, clear illegality or fraud, local Board of Adjustments’ determinations should be recognized as purely local/political matters into which our Courts should not, and are not allowed to, delve.

31 should not be viewed as an impediment to the Board’s decision to allow for its

construction.

My interpretation of what does not constitute an “enlargement or

extension” of a nonconforming use is grounded in both our rules for statutory

construction and our caselaw.

To discern the meaning of a statute, Courts are to construe “[a]ll

words and phrases . . . according to the common and approved usage of

language, but technical words and phrases, and such others as may have

acquired a peculiar and appropriate meaning in the law, shall be construed

according to such meaning.” KRS 446.080(4). We also must “accord to words of

a statute their literal meaning unless to do so would lead to an absurd or

wholly unreasonable conclusion.” Cosby v. Commonwealth, 147 S.W.3d 56, 58–

59 (Ky. 2004) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984)).

I assert the Court of Appeals reached just such an “unreasonable

conclusion” and the construction of a mere grotto, by the Church, was no more

prohibited by operation of KRS 100.253(2) than would the building of a gazebo,

playground, or patio for the congregation’s use and enjoyment.

A proper determination that the planned grotto is not an unlawful

extension or enlargement of the Church is synchronous with published

precedent in our Commonwealth. In Board of Adjustments, Bourbon Cnty. v.

Brown, 969 S.W.2d 214, 215 (Ky. App. 1998), our Court of Appeals determined

that an auction house, which was a non-conforming use, did not create an

“impermissible extension or enlargement of a non-conforming use” in violation

32 of KRS 100.253(2), when it enclosed the front porch of its building with siding

to add a bathroom for its customers and increased the number of auctions

from two each week to three.

More pointedly, in A.L. Carrithers & Son v. City of Louisville, 63 S.W.2d

493, 497 (Ky. 1933), our predecessor Court determined:

The extending the walls of the building so as to enclose space for the relocating the can-washing and by-products rooms is not a vital and substantial change of the building in its characteristic or of the fundamental purpose of its creation, nor is it a change of such a nature as materially affects the

realty itself, or its use, or the health, morals, or general welfare of the zoned district. (citations omitted) . . . “Structural alterations” intended to be prohibited by the zoning ordinance are the changing an old building in such a way as to convert it into a new or substantially different structure.

Nothing proposed by the Church in its application to construct a grotto

constituted a “vital and substantial change of the [Church] in its characteristic[,]

or of the fundamental purpose of [the Church’s] creation, nor is it a change of

such a nature as materially affects the realty itself, or its use, or the health,

morals, or general welfare of the zoned district.” Id. (emphasis added).

In this matter, the Board correctly interpreted Section 9.11(B)(1) of its

ordinance, which mirrors KRS 100.253(2), to not prohibit a grotto. Its ultimate

decision to grant a permit for the grotto was also based upon its sound findings

of fact; findings which were accepted by the circuit court and which the Court

of Appeals was in no position to question. Specifically, the Board determined

that “the proposed building and use at this particular location is necessary or

33 desirable to provide a service or facility which will contribute to the general

well-being of the neighborhood or the community,” and “the proposed building

and use will not, under the circumstances of this particular case, be

detrimental to the health, safety, or general welfare of persons residing or

working in the vicinity, or injurious to property or improvements in the

vicinity.”

It is my position that any restriction on the powers of local boards of

adjustment, alleged to be found in our statutes, must be read conservatively

and strictly in order to give proper deference the boards who are making

determinations within their expertise on matters of purely local interest,

enforcement, and control. The very purpose of boards of adjustment is the

ability to allow local property owners, upon application and after review, to

“vary” from strict enforcement of the terms of local ordinances “when it finds

that there are ‘practical difficulties or unnecessary hardships in the way of

carrying out the strict letter of such ordinance.’” 15

This discretionary authority is the whole raison d’etre of a board of

adjustment:

As in the case with many other administrative agencies, the board’s creation resulted from legislative recognition that it is almost impossible to draft an ordinance of this type which will deal fairly and equitably with all situations. The board’s function is to handle ‘hard cases’ in such a way as to minimize the possibility of their reaching the courts (and endangering the

15 Phillip P. Green Jr., The Power of the Zoning Board of Adjustment to Grant

Variances from the Zoning Ordinance, 29 N.C. L. Rev. 245, 246 (1951), http://scholarship.law.unc.edu/nclr/vol29/iss3/2.

34 ordinance as a whole) or being turned into requests for amendment of the ordinance.”

Id. The overall purposes of local zoning ordinances, the interests of

petitioning landowners and the interests of affected neighbors, are all much

better served by locally controlled boards of adjustment than our Courts. The

overarching goal of our statutes, when read as a whole instead of piecemeal, is

to give boards of adjustment the flexibility, discretion and authority to address

local issues just like the one presented here without litigating all the way

through our circuit courts, the Court of Appeals and the Kentucky Supreme

Court. This case presents us with an example of exactly what is not supposed

to occur. The Park Hills Board of Adjustment agreed that the Church could

build a grotto. Next, the Kenton Circuit Court (wherein Park Hills is situated)

agreed that the Board could make that determination. Both the Board and the

Circuit Court were, are, and remain answerable to local voters who are the final

arbiters of what should and should not be built in their localities. The Park

Hills Board of Adjustment is far more responsive to the residents of Park Hills

and knows far better than the Court of Appeals or this Court what serves the

best interests of its city as a whole.

Boards of adjustment were, by their very nature, designed to make

zoning ordinances “work” by allowing for appointed local bodies to readily make

necessary and warranted “adjustments” via variances and conditional use

permits, when strict adherence to an ordinance’s specific language would make

35 for unworkable or arbitrary results, such as here when a church is not allowed

to build a grotto.

Lastly my determination is further supported by the deference our

Courts must give to the rights of owners of real property whose land-interests

and long-standing activities pre-date later zoning regulations: specifically,

those like the church here which has existed for almost one hundred years. As

recognized by the United States Supreme Court, while a nonconforming use

may be deemed to be undesirable by a portion of the community, that same

use constitutes a legitimate, vested property right that clearly enjoys broad

constitutional protection. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). See

also Darlington v. Board of Councilmen, 140 S.W.2d 392 (1940).

Accordingly, I dissent as I cannot agree with the Court of Appeals’

determination that the Park Hills Board of Adjustment’s actions were either

unlawful or unauthorized.

COUNSEL FOR APPELLANT:

Thomas W. Breidenstein Breidenstein Legal Services, LLC

COUNSEL FOR APPELLEES, JOEL AND ELIZABETH FREDERIC:

Christopher David Wiest Chris Wiest, Attorney at Law, PLLC

Steve Doan Steve Doan Attorney at Law

36 COUNSEL FOR APPELLEES, SHEILA BURKE, SHELIA BURKE TRUST, CITY OF PARK HILLS BOARD OF ADJUSTMENT, MARK KOENIG, CATHLEEN MATCHINGA, CHARLES MEYERS, THOMAS MICHAEL, ROBERT SWEET, JUSTIN ODOR:

Daniel Raymond Braun Daniel R. Braun, PSC

COUNSEL FOR AMICUS CURIAE, ADVOCATES FOR FAITH & FREEDOM:

J. Tyler Ward Ward + Associates

Deborah J. Dewart Advocates for Faith & Freedom

COUNSEL FOR AMICUS CURIAE, LINDSAY AND MATT MOROUN RELIGIOUS LIBERTY CLINIC:

Stephanie M. Bruns Dentons Bingham Greenebaum LLP

Meredith H. Kessler Lindsay and Matt Moroun Religious Liberty Clinic

COUNSEL FOR AMICUS CURIAE, THOMAS MORE SOCIETY:

John O. Sheller Steven T. Clark L. Katherine Boren Stoll Keenon Ogden PLLC

Joan M. Mannix Thomas More Society

37 COUNSEL FOR AMICUS CURIAE, CROSS & CROWN CITY CHURCH:

James B. Lind Vorys, Sater, Seymour and Pease LLP

Daniel P. Dalton Dalton & Tomich, PLC

COUNSEL FOR AMICUS CURIAE, MR. DANIEL CAMERON:

Roger Byron First Liberty Institute

Brian Pandya Duane Morris LLP

COUNSEL FOR AMICUS CURIAE, COMMONWEALTH OF KENTUCKY:

Matthew F. Kuhn Solicitor General

John H. Heyburn Principal Deputy Solicitor General

Daniel J. Grabowski Assistant Solicitor General