Marion Bischoff v. Harold Byrd ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1131-MR
MARION BISCHOFF; PHILLIP
BISCHOFF; AND TRADEMARK
EXCAVATING COMPANY, LLC APPELLANTS
APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 17-CI-00456
HAROLD BYRD; EARTHWORKS,
LLC; JERRY ST. CLAIR; SHANNON
GENTRY; SHELBY WOLF; AND THE
NELSON FISCAL COURT APPELLEES
OPINION
AND ORDER DISMISSING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.
CLAYTON, CHIEF JUDGE: Marion Bischoff, Phillip Bischoff, and Trademark
Excavating Company, LLC (hereinafter “Appellants”) appeal the Nelson Circuit
Court’s order reversing the Nelson Fiscal Court decision approving a zoning map
amendment. After careful review, we grant the motion of Harold Byrd,
Earthworks, LLC, Jerry St. Clair, Shannon Gentry, Shelby Wolf, and the Nelson
Fiscal Court (hereinafter “Appellees”) to dismiss this appeal.
This case originated when Marion and his son Phillip applied on
March 17, 2017, to the Joint City-County Planning Commission of Nelson County
(the “Commission”) to have a five (5) acre tract of their property re-zoned A-1
(Agricultural District) to I-1M (Moderate Impact Industrial District). The
Commission decided to transfer the application to the Nelson Fiscal Court for a
final determination. The Nelson Fiscal Court ultimately approved the application
and adopted an ordinance amending the zoning map and the property’s zoning
classification to I-1M.
Thereafter, Appellees filed an appeal to the Nelson Circuit Court on
August 3, 2017, challenging the propriety of the Nelson Fiscal Court’s actions.
The Nelson Circuit Court entered an order reversing the Nelson Fiscal Court on
June 26, 2019, on the grounds that its decision was arbitrary. Appellants filed a
notice of appeal in this matter on July 25, 2019. Appellees subsequently moved
for the circuit court to set an appeal bond on August 14, 2019, under Kentucky
Revised Statute (“KRS”) 100.3471. The parties briefed the issue, and the circuit
court held a hearing and entered an order requiring Appellants to post a $5,000.00
appeal bond on December 2, 2019. Appellants posted the bond on January 7,
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2020, and Appellees filed a motion to dismiss this appeal on January 30, 2020,
based on Appellants’ failure to pay the bond required under KRS 100.3471 within
fifteen (15) days of the circuit court’s determination of the bond amount. See KRS
100.3471(3)(f). Additionally, on June 22, 2020, this Court entered an order
directing Appellants to show cause why the constitutionality of KRS 100.3471
should not be excluded from the issues on appeal based on Appellants’ purported
failure to give notice to the Attorney General under KRS 418.075. On December
17, 2020, both the show cause order and the motion to dismiss were subsequently
passed to this merits panel to determine whether Appellants had preserved their
constitutional arguments and whether the appeal should be dismissed under KRS
100.3471(3)(f).
Concerning the show cause order, KRS 418.075 states that:
(1) In any proceeding which involves the validity of a
statute, the Attorney General of the state shall, before
judgment is entered, be served with a copy of the
petition, and shall be entitled to be heard, and if the
ordinance or franchise is alleged to be
unconstitutional, the Attorney General of the state
shall also be served with a copy of the petition and be
entitled to be heard.
(2) In any appeal to the Kentucky Court of Appeals or
Supreme Court or the federal appellate courts in any
forum which involves the constitutional validity of a
statute, the Attorney General shall, before the filing of
the appellant’s brief, be served with a copy of the
pleading, paper, or other documents which initiate the
appeal in the appellate forum. This notice shall
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specify the challenged statute and the nature of the
alleged constitutional defect.
In this case, Appellants produced proof that they served the Kentucky
Attorney General with a copy of Appellants’ response to Appellees’ motion for
bond – which raised the constitutional question at issue – on October 8, 2019.
Additionally, on October 9, 2019, the Nelson Circuit Court entered a calendar
order postponing a hearing on the matter until the Attorney General had an
opportunity to respond pursuant to the statute. There is no evidence of a response
from the Attorney General.
While the foregoing evidence may satisfy KRS 418.075(1), it does not
satisfy KRS 418.075(2), which deals with appeals to this Court. Here, we have
found no evidence that Appellants served the Attorney General with the notice of
appeal, which is the “document[] which initiate[d] the appeal in the appellate
forum.” See KRS 418.075(2). The Attorney General is not listed on the certificate
of service of Appellants’ notice of appeal, and Appellants provided no evidence to
prove the Attorney General received notice of the appeal. Strict compliance with
the notification provision is required. Benet v. Commonwealth, 253 S.W.3d 528,
532 (Ky. 2008); see also A.H. v. Louisville Metro Government, 612 S.W.3d 902,
912-13 (Ky. 2020). In keeping with this case law and noting Appellants failed to
present any proof that the Attorney General was notified of this appeal, we decline
to address the constitutionality of KRS 100.3471(3)(f).
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As previously discussed, on January 30, 2020, Appellees moved to
dismiss the appeal based on Appellants’ purported failure to timely post an appeal
bond pursuant to KRS 100.3471. The statute states that “[a]ny party that appeals
the Circuit Court’s final decision made in accordance with any legal challenge
under this chapter shall, upon motion of an appellee as set forth in subsection (2)
of this section, be required to file an appeal bond as set forth in this section.” KRS
100.3471(1) (emphasis added). Appellees moved for a bond in accordance with
KRS 100.3471(2) on August 14, 2019. Under KRS 100.3471(3), the Nelson
Circuit Court granted that motion and set a bond of $5,000.00 by order entered
December 2, 2019. However, Appellants did not post the bond with the Nelson
Circuit Court until January 7, 2020. Therefore, we must grant Appellees’ motion
to dismiss this appeal.
Appellants argued in their response to the motion to dismiss that,
because this Court entered an order on October 9, 2019, holding this appeal in
abeyance and did not enter an order reinstating the appeal to the Court’s active
docket until January 7, 2020, all deadlines associated with the appeal were on hold
– including the deadline for posting the bond under KRS 100.3471. As previously
discussed, we decline to address the constitutionality of KRS 100.3471. Moreover,
“we must look first to the plain language of a statute and, if the language is clear,
our inquiry ends.” University of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky.
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2017) (citation omitted). In this case, the specific language of KRS 100.3471
provides that it is the circuit court, not the Court of Appeals, that retains the
jurisdiction to order an appellant to post an appeal bond. Thus, any deadlines
associated with the bond are set forth in KRS 100.3471 and are not governed by
the rules governing the abeyance of an appeal. Therefore, such argument is not
applicable.
Moreover, even if Appellants had posted a bond with the Nelson
Circuit Court under KRS 100.3471, their appeal still fails because the Nelson
Fiscal Court failed to make the findings required to grant any map amendment.
Under KRS 100.213(1), a fiscal court is required to make the following findings
before it approves a zoning change:
a. That the zoning change is in agreement with the
adopted comprehensive plan;
b. That there have been major changes in the economic,
physical or social nature within the area involved which
were not anticipated in the adopted comprehensive plan
and which have substantially altered the basic character
of such area; or
c. That the existing zoning classification given to the
property is inappropriate and that the proposed zoning
classification is appropriate.
Further, when making “a zoning change, [a fiscal court] must make a finding of
adjudicative facts necessary to support the change. These findings must be made
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from (and supported by) the evidence heard by the Planning Commission[.]”
Manley v. City of Maysville, 528 S.W.2d 726, 728 (Ky. 1975).
Indeed, the Fiscal Court recited only three findings: (1) that a
distillery operated on the Bischoff Property at one point in the past, (2) a statement
on the width of the road and describing it as being common throughout the county,
and (3) that a statement was made “under oath” that “if the property was I-1 at the
time, even though Planning and Zoning was not in existence, it should be I-1. It
runs with the property, not the owner, so it would be I-1 forever.” The first two
findings are factual in nature but are not relevant to the findings required under
KRS 100.213. The fact that a distillery once operated on the property years before
or a recitation of the measurements of the road in front of the property does not
indicate a “major change” that altered the “basic character of such area” or “[t]hat
the existing zoning classification … [was] inappropriate.” Additionally, the third
finding does not even address the existing A-1 designation, let alone establish how
the A-1 designation is inappropriate. Because the Nelson Fiscal Court’s written
findings do not conform with KRS 100.213, the Nelson Circuit Court properly
determined that they cannot constitute sufficient evidence to support approving the
zoning change and related ordinance, rendering the Nelson Fiscal Court’s actions
arbitrary.
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Therefore, we dismiss Appellants’ appeal for failure to post the bond
required under KRS 100.3471.
ALL CONCUR.
ENTERED: _August 19, 2022__
CHIEF JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
John M. Sosbe S. Thomas Hamilton
Georgetown, Kentucky Bardstown, Kentucky
Jake K. Michul
Lauren R. Nichols
Lexington, Kentucky
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