Petition for Writ of Certiorari — Missionaries of Saint John the Baptist, Inc., Petitioner v. Joel Frederic, et ux.

Supreme Court briefMar 18, 2026

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APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Appendix A: Opinion, Supreme Court of

Kentucky (Dec. 18, 2025)............................

Appendix B: Opinion, Court of Appeals of

Kentucky (Dec. 1, 2023) .............................

40a

Appendix C: Order, Kenton Circuit Court

Fourth Division (June 29, 2022) ................

56a

Appendix D: Park Hills Board of Adjustment’s April 19, 2021 Letter.......................

62a

Appendix E: 42 U.S.C. § 2000cc ...................

65a

Appendix F: Ky. Rev. Stat. Ann. § 100.247 ....

67a

Appendix G: Ky. Rev. Stat. Ann. § 100.253 ...

68a

Appendix H: Park Hills Zoning Ordinance

§ 9.13 ...........................................................

70a

Appendix I: Park Hills Zoning Ordinance

§ 10.4 ...........................................................

74a

Appendix J: Park Hills Zoning Ordinance

§ 19.6 ...........................................................

78a

Appendix K: Brief

the

Appellees/

Defendants in Support of Their Motion for

Summary Judgment, Frederic v. City of

Park Hills Bd. of Adjustment, No. 21-CI00766 (Ky. Cir. Ct. May 28, 2022) .............

84a

APPENDIX TABLE OF CONTENTS

Page

Appendix L: Plaintiffs’ Complaint/Petition/

Appeal Pursuant to KRS 100.347(1) and

for Declaratory and Injunctive Relief,

Frederic v. City of Park Hills Bd. of

Adjustment, No. 21-CI-00766 (Ky. Cir. Ct.

May 13, 2021)..............................................

98a

APPENDIX A

727 S.W.3d 400

SUPREME COURT OF KENTUCKY.

————

2024-SC-0006-DG

————

MISSIONARIES OF

SAINT JOHN THE BAPTIST, INC.,

Appellant,

JOEL FREDERIC; CATHLEEN 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,

Appellees.

————

December 18, 2025

————

Attorneys and Law Firms

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.

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, Covington, Daniel R.

Braun, PSC.

COUNSEL FOR AMICUS CURIAE, ADVOCATES

FOR FAITH & FREEDOM: J. Tyler Ward,

Whitesburg, 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,

Louisville, L. Katherine Boren, Stoll Keenon Ogden

PLLC, Joan M. Mannix, Thomas More Society.

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, Owingsville, 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.

OPINION

Opinion of the Court by Chief Justice Lambert

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

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.

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.

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 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

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.”

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.”

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.

...

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:

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[.]”

...

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 onepage 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 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 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 the

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.

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:

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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).

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

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.

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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.

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

United States Code Annotated.

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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 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

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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 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

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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

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

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.”

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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 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.

16a

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.

St. John thereafter sought discretionary review of

the Court of Appeals’ ruling from this Court, which

we granted.

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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 defense10

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.”).

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

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[.]”).

Kentucky Rule of Civil Procedure.

18a

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 GreenWarren 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 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

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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, 135 S.Ct. 853, 190 L.Ed.2d 747 (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).

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, 117 S.Ct.

2157, 138 L.Ed.2d 624 (1997), the United States

Supreme Court held that Congress exceeded its

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

RFRA is still applicable 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, 135 S.Ct. 853.

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 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.

We note that this Court has never been called upon to

define “substantial burden” under KRFRA.

21a

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—

...

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 government to make, individualized

assessments of the proposed uses for the

property involved.

42 U.S.C.A. § 2000cc(a).

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).

22a

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 jurisprudence as delineated in Livingston Christian

Schools v. Genoa Charter Twp., 858 F.3d 996 (6th

Cir. 2017) should be our polestar.

23a

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 effectivebar 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 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

24a

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 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

25a

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 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

26a

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 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

27a

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 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

28a

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:

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.

29a

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 consequently hold that the

Park Hills ordinance does not violate 42 U.S.C.A.

§ 2000cc(b) of RLUIPA.

30a

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.

31a

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.

32a

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

been no excavation or blasting, foundations being

33a

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 “nonconforming 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 enlargement or an extension of a nonconforming use? The

34a

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 propertyowning 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”

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.

35a

and KRS 100.253(2) 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 nonconforming

use, did not create an “impermissible extension or

enlarge-ment of a non-conforming use” in violation of

36a

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, 250 Ky. 462, 63 S.W.2d 493, 497 (1933),

our predecessor Court determined:

The extending the walls of the building so as

to enclose space for the relocating the canwashing 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.

(Emphasis added).

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

37a

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 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:

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.

38a

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 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

39a

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 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, 47 S.Ct. 114, 71

L.Ed. 303 (1926). See also Darlington v. Board of

Councilmen, 282 Ky. 778, 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.

40a

APPENDIX B

2023 WL 8286391

COURT OF APPEALS OF KENTUCKY

————

No. 2022-CA-0867-MR

————

JOEL FREDERIC AND ELIZABETH FREDERIC,

Appellants,

CITY OF PARK HILLS BOARD OF ADJUSTMENT;

CATHLEEN MATCHINGA; CHARLES MEYERS; JUSTIN

ODOR; MARK KOENIG; MISSIONARIES OF SAINT JOHN

THE BAPTIST, INC.; ROBERT SWEET; SHEILA BURKE

TRUST; SHEILA BURKE, IN HER CAPACITY AS TRUSTEE

FOR THE SHEILA BURKE TRUST; AND THOMAS MICHAEL,

Appellees.

————

December 1, 2023; 10:00 A.M

————

Discretionary Review Granted

by Supreme Court June 5, 2024

————

Attorneys and Law Firms

BRIEFS FOR APPELLANTS: Christopher Wiest,

Crestview Hills, Kentucky.

BRIEF FOR APPELLEES:

Covington, Kentucky.

Daniel

Braun,

41a

BEFORE: ACREE, DIXON,1 AND TAYLOR, JUDGES.

OPINION

ACREE, JUDGE:

Appellants, Joel and Elizabeth Frederic, appeal the

Kenton Circuit Court’s June 29, 2022 Order affirming

the decision of the City of Park Hills Board of

Adjustment (Board) granting both a conditional use

permit and a setback variance to enable Appellee,

Missionaries of Saint John the Baptist, Inc. (Saint

John), to construct a grotto behind the Our Lady of

Lourdes church. Appellants argue the conditional use

permit and setback variance are impermissible under

the city’s zoning ordinance. We agree, and reverse.

BACKGROUND

Saint John owns property on Amsterdam Road in

the City of Park Hills, Kentucky and there operates

Our Lady of Lourdes, a Catholic church. Appellants

own a residence on Park Drive in the City of Park

Hills, and one side of their property is across the

street from Saint John’s property. Appellees Sheila

Burke and the Sheila Burke Trust owned land

adjacent to the church.

On March 18, 2021, Appellees Jordan Odor, acting

on behalf of Saint John, and the Sheila Burke Trust

applied to Kenton County Planning and Development

Services for a conditional use permit for the construction of a grotto behind the church. In their briefs,

Appellants describe the proposed grotto as “large”;

Appellees describe it as “small.” The grotto would

include a shrine, plaza, walking path, and retaining

Judge Donna Dixon concurred in the Opinion prior to her

retirement effective November 20, 2023. Release of this Opinion

was delayed by administrative handling.

42a

wall. The church also requested a variance for its

rear and side yard setbacks.

The City of Park Hills Board of Adjustment held a

public hearing on the application on April 15, 2021.

The Board approved both the conditional use permit

and the setback variances on the condition that a

portion of the land owned by Appellees Sheila Burke

and the Sheila Burke Trust be deeded to the church.

Burke and the Burke Trust deeded the land to Saint

John on June 22, 2021.

Appellants appealed the Board’s decision to the

circuit court pursuant to KRS 2 100.347. The circuit

court affirmed, concluding Appellants “have not met

their burden of persuading this court that the [Board]

acted arbitrarily or in any way outside of its regulatory authority.” Appellants appealed the circuit

court’s decision, which is now before us for our

review.

STANDARD OF REVIEW

“[J]udicial review of administrative action is

concerned with the question of arbitrariness.” Am.

Beauty Homes Corp. v. Louisville & Jefferson Cnty.

Plan. & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky.

1964) (emphasis original). An administrative agency’s

decision is arbitrary if the agency acted in excess of

its statutory power, if a party affected by an administrative action was not afforded procedural due process, or if the administrative decision was not supported by substantial evidence. Id. (citations omitted).

“Substantial evidence has been conclusively defined

by Kentucky courts as that which, when taken alone

or in light of all the evidence, has sufficient probative

Kentucky Revised Statutes.

43a

value to induce conviction in the mind of a reasonable

person.” Bowling v. Nat. Res. & Env’t Prot. Cabinet,

891 S.W.2d 406, 409 (Ky. App. 1994) (citing Kentucky

State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308

(Ky. 1972)).

ANALYSIS

First, we must determine whether the Board acted

in excess of its statutory authority in granting the

requested conditional use and variances. We conclude

that it did.

Appellants argue that, because boards of adjustment are prohibited by statute from both granting

variances which contradict zoning regulations and

from enlarging or extending a previously existing

nonconforming use, the Board exceeded its statutory

authority in granting Appellees’ requests.

As Appellees note, KRS 100.237 authorizes the

board to “approve, modify, or deny any application for

a conditional use permit.” KRS 100.237(1). However,

this power is not without limitation. Variances are

not permitted where such variance would violate

applicable zoning regulations. KRS 100.247 prohibits

the board from exercising “power to grant a variance

to permit a use of any land, building, or structure

which is not permitted by the zoning regulation in

the zone in question, or to alter density requirements

in the zone in question.” KRS 100.247. This means

“one cannot obtain a variance for the use if the

property is not permitted by the zoning regulation

or alters the density requirements.” Louisville &

Jefferson Cnty. Plan. Comm’n v. Schmidt, 83 S.W.3d

449, 451 (Ky. 2001) (citing KRS 100.247).

Additionally, while nonconforming uses which predate applicable zoning regulations may continue once

44a

the regulations are adopted, a board of adjustment

may not enlarge or expand that nonconforming use.

KRS 100.253 is determinative of the issue and says:

(1) The lawful use of a building or premises,

existing at the time of the adoption of any

zoning regulations affecting it, may be continued, although such use does not conform to

the provisions of such regulations, except as

otherwise provided herein.

(2) 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, nor shall the board permit a change

from one (1) nonconforming use to another

unless the new nonconforming use is in the

same or a more restrictive classification,

provided, however, the board of adjustment

may grant approval, effective to maintain

nonconforming-use status, for enlargements

or extensions, made or to be made, of the

facilities of a nonconforming use, where the

use consists of the presenting of a major

public attraction or attractions, such as a

sports event or events, which has been

presented at the same site over such period

of years and has such attributes and public

acceptance as to have attained international

prestige and to have achieved the status of a

public tradition, contributing substantially

to the economy of the community and state,

of which prestige and status the site is an

essential element, and where the enlargement or extension was or is designed to

45a

maintain the prestige and status by meeting

the increasing demands of participants and

patrons.

KRS 100.253(1)-(2).

The church is located in an R-1EE zone, which is

governed by Section 10.4 of the Park Hills Zoning

Ordinance. Section 10.4 says:

A. PERMITTED USES:

Single-family residential dwellings

(detached).

Two-family residential dwellings.

Planned Unit Development (PUD),

as regulated by ARTICLE XI of this

Ordinance.

B. ACCESSORY USES:

Customary accessory buildings

and uses.

Fences and walls, as regulated

by ARTICLE XVI of this

Ordinance.

Home occupations, subject to

the restrictions and limitations

established in SECTION 9.23 of

this Ordinance.

Signs, as regulated by ARTICLE

XV of this Ordinance.

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

46a

said use shall have been applied for and

approved of by the Board of Adjustment, as

set forth in SECTION 9.13:

....

Churches and other buildings

for the purpose of religious

worship, provided they are

located adjacent to an arterial

street.

Park Hills, Ky., Zoning Ordinance § 10.4(A)-(C).

Section 19 of the Zoning Ordinance governs the

Board, and Section 19.6 provides the Board’s powers

with respect to dimensional variances and nonconforming uses. Section 19.6, Subsection B provides:

B. DIMENSIONAL

VARIANCE

CANNOT

CONTRADICT ZONING REGULATIONS:

The Board of Adjustment shall not possess

the power to grant a dimensional variance

to permit a use of any land, building, or

structure which is not permitted by this

Ordinance in the zone in question, or to alter

the density requirements in the zone in

question.

Park Hills, Ky., Zoning Ordinance § 19.6(B). Further,

Subsection D provides:

D. CHANGE FROM ONE NONCONFORMING

USE TO ANOTHER: No change from one

nonconforming use to another will be

granted by the Board of Adjustment, unless

and until:

The Board of Adjustment shall

find that the new nonconforming use is in the same or more

47a

restrictive classification of use

as the prior nonconforming use.

In the determination of the

same or more restrictive classification of use, the applicant

shall establish and the Board of

Adjustment shall find:

a. That the new nonconforming use shall generate

less vehicular traffic (automobile and truck) than the

prior nonconforming use;

b. That the new nonconforming use is of a nature which

will emit less noise and air

pollution than the prior

nonconforming use;

c. That the new nonconforming use will be more in

character with the existing

neighborhood than the prior

nonconforming use, in that

it is more in conformance

with the area – wide comprehensive plan as adopted

by the Kenton County and

Municipal Planning and

Zoning Commission, and

also, more in conformance

with the uses permitted in

the zone in which the use is

located, than the prior nonconforming use.

....

48a

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.

Park Hills, Ky., Zoning Ordinance § 19.6(D)(1), (3).

The Zoning Ordinance defines an “arterial street”

as “[p]ublic thoroughfares which serve the major

movements of traffic within and through the community, as identified in the adopted comprehensive plan

for the city of Park Hills.” Park Hills, Ky., Zoning

Ordinance § 7.

As relevant to this appeal, the Zoning Ordinance

also defines “collector streets” as “[p]ublic thoroughfares which serve to collect and distribute traffic,

primarily from local residential streets to arterial

streets.” Id. It also defines “local streets” as

“[f]acilities which are designed to be used primarily

for direct access to abutting properties and leading

into the collector street system.” Id.

According to a report zoning staff provided to the

Board, Amsterdam Road is a collector street. Therefore, the church is not located on an arterial street as

the Zoning Ordinance requires. Because the church

came into existence prior to implementation of the

Zoning Ordinance, it constitutes a preexisting nonconforming use.3

Appellees argue in their brief that, because the church is a

preexisting nonconforming use, Park Hills’ Zoning Ordinance is

not violated because the church is not located next to an arterial

street. However, Appellant does not contest the church's status

as such or argue that the nonconforming use must be discont-

49a

We agree with Appellants that the Board failed to

follow Park Hills’ zoning ordinances and, therefore,

acted outside the bounds of its statutory authority.

First, Appellant is correct that construction of the

grotto in the rear of the church property would

constitute either a change or an expansion of the

church’s preexisting nonconforming use. If construction of the grotto constitutes a change in the nonconforming use, under Section 19.6(D)(1) of the Zoning

Ordinance, the Board was required to find that the

new nonconforming use – in this case, the grotto –

would generate less vehicular traffic, create less noise

and air pollution, and be more in line with the

character of the neighborhood than the previous

nonconforming use.

Expansion of preexisting nonconforming uses is

plainly prohibited by Section 19.6(D)(3) of the Zoning

Ordinance, which says, “[t]he 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.” Construction of a grotto – large or small –

in the rear of the church property, for both the church

membership and the public to use, constitutes an

expansion of both the scope and area of the nonconforming use. KRS 100.253(2) prohibits the church

from doing so.

Additionally, a majority portion of the planned

grotto is to be constructed on the former Sheila Burke

Trust property. This land was residential property

prior to the church acquiring it. This land was not

used previously for the preexisting nonconforming

inued. The continued operation of the church is not a subject of

this appeal.

50a

use of a church. And the fact that acquisition of this

land was necessary to construct the grotto further

illustrates the grotto would constitute an enlargement of the church’s preexisting nonconforming use

in terms of both scope and area, which KRS

100.253(2) prohibits.

Appellees offer Board of Adjustments, Bourbon

County v. Brown, 969 S.W.2d 214 (Ky. App. 1998), to

support the notion that minor or modest expansions

of preexisting nonconforming uses have been upheld

by reviewing courts. In Brown, we determined the

enclosure of a porch to construct restroom facilities

for auction house patrons, as well as an increase of

weekly auctions from two to three, did not constitute

an impermissible enlargement of a nonconforming

use. Id. at 217. However, the auction house proprietors in Brown also sought to construct a parking lot

on nearby land, which the Bourbon County Board of

Adjustments determined was not a permissible use

under the county’s zoning ordinance; the Board’s

determination as to the parking lot was affirmed by

the circuit court, but not challenged on subsequent

appeal. Id. at 215.

However, the construction of the grotto is unlike

the expansions of preexisting nonconforming uses in

Brown. In that case, the square footage of the auction

house’s operations was not increased, id. at 217,

while the construction of the grotto will require such

increase. The grotto – which would largely be constructed on adjacent land which was never used for a

nonconforming purpose – is more akin to the parking

lot in Brown than the construction of restrooms or

the increased weekly auctions. We do not agree with

Appellees that construction of the grotto would con-

51a

stitute the same sort of minor or modest expansion as

was present in Brown.

Appellees also cite to A. L. Carrithers & Son v. City

of Louisville, 250 Ky. 462, 63 S.W.2d 493 (1933),

again for the proposition that minor expansions of

preexisting nonconforming uses can be permissible.

However, circumstances in that case are distinct from

the current case. In A. L. Carrithers & Son, the

appellant, a corporation, had operated a milk business since 1909, and in 1931 a health inspection

required the business to either cease manufacturing

butter or to enlarge its plant in order to relocate a

component of the operation into the enlarged space.

Id. at 494-95. This expansion violated a section of

Louisville’s zoning code prohibiting structural alterations to buildings constituting preexisting nonconforming uses, and so the board of adjustments denied

the appellant’s application. Id. As the then-highest

Kentucky court concluded, extending the building’s

walls for relocation of parts of the butter production

process was not “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. at 497 (citations omitted). And because

the zoning code did permit such structural alterations when required by law or ordinance, and the

milk business was required to expand its building

following an inspection, the expansion of the building’s walls was a permissible enlargement of a preexisting nonconforming use. Id.

We believe the grotto to be unlike the expansion of

the plant in A. L. Carrithers for several reasons.

First, the church was under no requirement pursuant

to law or ordinance to construct the grotto in the

same way the milk plant in A. L. Carrithers was

52a

required to expand following a government inspection. Id. at 494. Further, unlike the building expansion in A. L. Carrithers, construction of the grotto

would fundamentally affect the realty and its use.

Though the square footage of the preexisting nonconforming use in A. L. Carrithers did increase, the

construction of the grotto is too dissimilar for A. L.

Carrithers to provide an applicable rule.

Appellants also argue the Board’s decision was

arbitrary because they were denied due process during the administrative action. Specifically, they argue

they were denied due process because they were

not permitted to cross-examine Odor, the church’s

representative. “When making a zoning decision, the

legislative body must provide a party whose constitutional interest is at stake ‘the opportunity to be heard

at a meaningful time and in a meaningful manner.’”

Huxol v. Daviess Cnty. Fiscal Ct., 507 S.W.3d 574,

580 (Ky. App. 2016) (quoting Mathews v. Eldridge,

424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18

(1976)). Ordinarily, all that is required is that the

legislative body conduct a hearing, take and weigh

evidence, consider the evidence, create findings of

fact, enter an order supported by substantial evidence, and respect subsequent judicial review of its

decision. Id. (citing Hilltop Basic Res., Inc. v. Cnty. of

Boone, 180 S.W.3d 464, 468 (Ky. 2005)). “However, in

zoning cases where a decision is made following a

trial-type adjudicatory hearing, the parties also have

the additional right to cross-examine witnesses.” Id.

(citing Kaelin v. City of Louisville, 643 S.W.2d 590,

591-92 (Ky. 1982)).

As Appellees note, Appellant Joel Frederic was

present at the hearing and commented on the

application. Though Frederic did not attempt to ask

53a

questions of Odor himself, other hearing attendees

did. The Board never barred anyone from asking

questions, and each attendee was given the opportunity to question testimony. In our view, Appellants

are unable to demonstrate that they were denied the

opportunity to cross examine Odor.

Appellants additionally argue the Board’s decision

was arbitrary because it was not supported by

substantial evidence. As the circuit court determined,

the administrative record demonstrates substantial

evidence supported the Board’s decision, including

findings that the grotto “will comply with any

regulations and conditions specified in the applicable

ordinances and will not allow an unreasonable circumvention of the zoning regulations.” However, as

discussed above, the Board acted beyond the bounds

of its statutory authority in granting the church’s

application. Therefore, we do not need to examine

whether the evidence relied upon by the Board in

making its decision was substantial.

Finally, Appellees argue the Religious Land Use

and Institutionalized Persons Act (RLUIPA), 42

U.S.C. 4 § 2000cc et seq., prohibits the Board from

preventing the construction of the grotto. We note

that the circuit court made no reference to RLUIPA

in its Order.

As a “general rule,” the statute provides:

No government shall impose or implement a

land use regulation in a manner that imposes a substantial burden on the religious

exercise of a person, including a religious

assembly or institution, unless the govern4

United States Code.

54a

ment demonstrates that the 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 government

interest.

42 U.S.C. § 2000cc(a)(1). However, as the 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) (citing Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 449, 108 S.

Ct. 1319, 99 L. Ed. 2d 534 (1988)).

“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 (citing Wisconsin v. Yoder, 406 U.S. 205, 92

S. Ct. 1526, 32 L. Ed. 2d 15 (1972)). In the second,

“courts have been far more reluctant to find a

violation where compliance with the challenged regu-

55a

lation 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 (citing Braunfeld v. Brown, 366 U.S. 599, 81

S. Ct. 1144, 6 L. Ed. 2d 563 (1961)).

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. Accordingly, we find the Park Hills Zoning

Ordinance imposes no substantial burden on the

religious exercise of any Appellee and, therefore, the

ordinance does not constitute a violation of RLUIPA.

CONCLUSION

For the foregoing reasons, we reverse the Kenton

Circuit Court’s June 29, 2022 Order affirming the

decision of the City of Park Hills Board of Adjustment.

ALL CONCUR.

56a

APPENDIX C

COMMONWEALTH OF KENTUCKY

KENTON CIRCUIT COURT

FOURTH DIVISION

————

Case No. 21-CI-766

————

ELIZABETH FREDERIC & JOEL FREDERIC

Plaintiffs,

CITY OF PARK HILLS, KENTUCKY, BOARD OF

ADJUSTMENT & JORDAN ODOR & SHEILA BURKE TRUST

& SHEILA E. BURKE & PLANNING AND DEVELOPMENT

SERVICES OF KENTON COUNTY & MISSIONARIES OF

ST. JOHN THE BAPTIST, INC.

Defendants.

————

ORDER

This matter is before the court on appeal, pursuant

to KRS §100.347, from a decision of the Park Hills

Board of Adjustment. The court has reviewed the

pleadings of the parties, the applicable law and the

entire record of the case.

The Frederics own property and reside at 1001

Park Drive. The side of their property is across the

street from property owned by the Missionaries of

Saint John the Baptist at 1101 Amsterdam Road on

which is located a church known as Our Lady of

Lourdes. All of the relevant property is in Park Hills,

Kenton County.

57a

The Church, through Jordan Odor acting on their

behalf, applied for a conditional use permit for an

accessory structure associated with a church and for

variances to the rear and side yard setback requirements to accommodate the accessory structure, a

proposed grotto. The Board approved both requests,

upon the condition that a small portion of land

behind and adjacent to the church property which

was then owned by Sheila Burke and the Sheila

Burke Trust be deeded over to the Church. That land

was transferred to the Missionaries of St. John the

Baptist, Inc., on June 22, 2021.

The court will first address the issue of standing as

it was raised by the defendants. The Frederics assert

that allowing the building of the grotto at the rear of

the parking lot of the church will cause additional

noise and parking problems in the neighborhood. It is

impossible to say with certainty whether or not these

nuisances will occur, however unlikely they may

seem, but that is not for this court to determine. KRS

§100.347(1) provides, “Any person or entity claiming

to be injured or aggrieved by any final action of the

board of adjustment shall appeal from the action to

the Circuit Court of the county in which the property,

which is the subject of the action of the board of

adjustment, lies.” Neighboring property owners who

assert that a zoning action would result in immediate

and irreparable injury—loss or damage by being

deprived of the use, value and enjoyment of their

property — are generally considered to have standing

under this statute. Seiller Waterman, LLC v. Bardstown Capital Corp., 643 S.W.3d 68, 82 (Ky. 2022).

In an appeal of an administrative action by an

agency, the circuit courts are to provide review, not

reinterpretation. Kentucky Unemployment Insurance

58a

Commission v. King, 657 S.W.2d 250 (Ky.App. 1983).

Thus, when substantial evidence exists in the record

to support an administrative agency’s action, the

circuit court has no authority to overturn it. Kentucky

State Racing Commission v. Fuller, 481 S.W.2d 298

(Ky. 1972). This court’s review of the action of the

Board is limited to a determination of whether

the administrative body acted arbitrarily in making

its determination. Prestonia Area Neighborhood Association v. Abramson, 797 S.W.2d 708, 709 (Ky. 1990);

City of Henderson Civil Service Commission v. Zubi,

631 S.W.2d 632 (Ky. 1982). The test for arbitrariness

is based on the absence of substantial evidence to

support the action in question, or on the presence of

proof so overwhelming that relief must be granted

to the claimant. Williams v. Cumberland Valley

National Bank 569 S.W.2d 711 (Ky.App. 1978);

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418

(Ky. 1985). The court is not to “reinterpret or to

reconsider the merits of the claim, nor to substitute

its judgment for that of the agency.” Curd v.

Kentucky State Board of Licensure for Professional

Engineers & Land Surveyors, 433 S.W.3d 291, 303

(Ky. 2014), citing Louisville/ Jefferson County Metro

Government v. TDC Grp., LLC, 283 S.W.3d 657, 663

(Ky. 2009).

The three prongs of this issue are whether the

action was in excess of the power of the board,

whether the parties were afforded procedural due

process and whether substantial evidence supports

the decision. American Beauty Homes Corp. v.

Louisville and Jefferson County Planning and Zoning

Commission, 379 S.W.2d 450 (Ky. 1964); Hougham v.

Lexington-Fayette Urban Co. Govt, 29 S.W.3d 370

(Ky. App. 1999).

59a

The Frederics argue that the action was in excess

of the power of the Board in that the Church itself is

a non-conforming use because it is a church not

adjacent to an arterial street and, therefore, no variance can be given to the land use requirements. The

church building has existed on the property since

1930, at which time Amsterdam Road was an arterial

street. Amsterdam Road was reconstructed and rightof-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 rightof-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 the 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)

Procedural due process by an administrative body

such as the Board includes “a hearing, the taking and

weighing of evidence if such is offered, a finding

of fact based upon a consideration of the evidence,

the making of an order supported by substantial

evidence, and, where the party’s constitutional rights

are involved, a judicial review of the administrative

60a

action.” Morris v. City of Catlettsburg, 437 S.W.2d

753, 755 (Ky. 1969). A hearing before an administrative agency that has investigative, prosecutorial and

adjudicative functions is not violative of due process.

Jones v. Cabinet for Human Resources, Division for

Licensure & Regulations, 710 S.W.2d 862, 865

(Ky.App. 1986), citing Board of Education of Pulaski

County v. Burkett, 525 S.W.2d 747 (Ky. 1975) and

Winthrow v. Larkin, 421 U.S. 35 (1975). The Board

provided the requisite notices and held a public

hearing on the matter with the required functions,

and the record reflects that due process was afforded

to the plaintiffs.

In making its findings, the Board is not held to

strict judicial standards. McKinstry v. Wells, 548

S.W.2d 169 (Ky. App. 1977). However, it must make

adjudicative findings of fact, sufficient to afford a

basis for judicial review, that are based on substantial evidence, that is, evidence which has sufficient probative value to induce conviction in the

minds of reasonable people. Bourbon County Board of

Adjustment v. Curran, 873 S.W. 2d 836 (Ky. App.

1994). The record before this court contains the

application including detailed plans of the proposed

use, and the notice of the decision of the Board based

upon testimony at a public hearing held on April 15,

2021. The notice specifically states that the bases for

the decisions were; that the proposed use is necessary

or desirable to provide a service or facility which will

contribute to the general well being of the neighborhood or the community; that the proposed use will

not adversely affect the public health, safety, or

general welfare of persons residing or working in the

vicinity, nor be injurious to the property or improvements in the vicinity, nor alter the essential character of the general vicinity, nor cause a hazard or

61a

nuisance to the public; that the proposed use will

comply with any regulations and conditions specified

in the applicable ordinances and will not allow an

unreasonable circumvention of the zoning regulations. Upon review of the record as a whole, the court

determines that the decision of the Board is

supported by substantial evidence

Plaintiffs have not met their burden of persuading

this court that the Park Hills Board of Adjustment

acted arbitrarily or in any way outside of its

regulatory authority. Allen v. Woodford County

Board of Adjustments, 228 S.W.3d 573, 577 (Ky.App.

2007), as modified (July 13, 2007).

IT IS, THEREFORE, ORDERED AND

ADJUDGED that the decision of the City of Park

Hills Board of Adjustment rendered on April 19,

2021, is hereby AFFIRMED. This is a final and

appealable order and there is no just cause for delay.

SO ORDERED this the _29th_ day of June 2022.

/s/ Patricia M. Summ

PATRICIA M. SUMME, JUDGE

Copies to:

Daniel R. Braun

526 Greenup Street

Covington, KY 41011

Christopher Wiest

25 Towne Center Boulevard #104

Crestview Hills, KY 41017

Thomas R. Nienaber

Skees, Wilson & Nienaber

7699 Ewing Boulevard

Florence, KY 41022

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APPENDIX D

Planning and Development

Services of Kenton County

Serving the community of communities since 1961

April 19, 2021

Jordon Odor

Elevar Design Group

555 Carr Street

Cincinnati, OH 45203

RE: BOA2103-0003

The Park Hills Board of Adjustment heard your

request for the noted case on Thursday, April 15,

2021. After considering the testimony provided, members of the Board acted as detailed on the following

page.

Thank you for your cooperation through this process.

Feel free to contact me if you have any questions

about the Board’s action or steps you may want to

take now.

If you choose, you may file an appeal of the Board’s

action with the Circuit Court within 30 days according to Kentucky Revised Statutes 100.347.

Chris Schneider, AICP

Principal Planner

Attach

cc: Sheila Burke Trust

Missionaries of Saint John the Baptist, Inc.

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BOA2103-0003

Location:

917 Alhambra Court and

Amsterdam Road, Park Hills

1101

Requests:

1) A conditional use permit for an accessory use associated with a church.

2) Variance requests to the rear and side

yard setback requirements for a conditional use.

Request 1

Decision:

Basis:

To approve the conditional use permit

for an accessory structure associated

with a church.

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.

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Request 2

Decision:

Basis:

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 as identified in the submitted plans

is deeded over to 1101 Amsterdam Road

within six months.

1. The requested variances will not adversely affect the public health, safety

of 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.

Result of

BOA Action: The applicant is permitted to construct a grotto on the site as identified

in their submitted plans subject to the

stated condition and required building

and zoning permits.

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APPENDIX E

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 21C. Protection of Religious Exercise in

Land Use and by Institutionalized Persons

42 U.S.C.A. § 2000cc

§ 2000cc. Protection of land use as religious

exercise

(a) Substantial burdens

(1) General rule

No government shall impose or implement a land

use regulation 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-(A) the substantial burden is imposed in a

program or activity that receives Federal

financial assistance, even if the burden results

from a rule of general applicability;

(B) the substantial burden affects, or removal of

that substantial burden would affect, commerce

with foreign nations, among the several States,

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or with Indian tribes, even if the burden results

from a rule of general applicability; or

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

government to make, individualized assessments

of the proposed uses for the property involved.

(b) Discrimination and exclusion

(1) Equal terms

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.

(2) Nondiscrimination

No government shall impose or implement a land

use regulation that discriminates against any

assembly or institution on the basis of religion or

religious denomination.

(3) Exclusions and limits

No government shall impose or implement a land

use regulation that-(A) totally excludes religious assemblies from a

jurisdiction; or

(B) unreasonably limits religious assemblies,

institutions, or structures within a jurisdiction.

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APPENDIX F

Baldwin’s Kentucky Revised Statutes Annotated

Title IX. Counties, Cities, and Other Local Units

Chapter 100. Planning and

Zoning Board of Adjustment

KRS § 100.247

100.247. Variance cannot contradict zoning

regulation

The board shall not possess the power to grant a

variance to permit a use of any land, building, or

structure which is not permitted by the zoning

regulation in the zone in question, or to alter density

requirements in the zone in question.

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APPENDIX G

Baldwin’s Kentucky Revised Statutes Annotated

Title IX. Counties, Cities, and Other Local Units

Chapter 100. Planning and

Zoning Board of Adjustment

KRS § 100.253

100.253 Existing nonconforming use, continuance; change; effect of nonconforming use of

ten years’ duration; application

(1) The lawful use of a building or premises, existing

at the time of the adoption of any zoning regulations affecting it, may be continued, although

such use does not conform to the provisions of

such regulations, except as otherwise provided

herein.

(2) 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, nor shall the board permit

a change from one (1) nonconforming use to

another unless the new nonconforming use is in

the same or a more restrictive classification,

provided, however, the board of adjustment

may grant approval, effective to maintain nonconforming-use status, for enlargements or

extensions, made or to be made, of the facilities of

a nonconforming use, where the use consists of

the presenting of a major public attraction or

attractions, such as a sports event or events,

which has been presented at the same site over

such period of years and has such attributes and

public acceptance as to have attained international prestige and to have achieved the status

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of a public tradition, contributing substantially to

the economy of the community and state, of which

prestige and status the site is an essential

element, and where the enlargement or extension

was or is designed to maintain the prestige and

status by meeting the increasing demands of

participants and patrons.

(3) Any use which has existed illegally and does not

conform to the provisions of the zoning regulations, and has been in continuous existence for

a period of ten (10) years, and which has not been

the subject of any adverse order or other adverse

action by the administrative official during said

period, shall be deemed a nonconforming use.

Thereafter, such use shall be governed by the

provisions of subsection (2) of this section.

(4) The provisions of subsection (3) of this section

shall not apply to counties containing a city of the

first class, a consolidated local government, an

urban-county government, or a city with a population equal to or greater than twenty thousand

(20,000) based upon the most recent federal

decennial census.

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APPENDIX H

Park Hills Zoning Ordinance § 9.13

SECTION 9.13 CONDITIONAL USES:

A. DETERMINATION: 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.

B. CONDITIONAL USE PERMITS: In accordance

with KRS 100.237, the Board of Adjustment shall

have the power to hear and decide applications for

conditional use permits to allow the proper

integration into the community of uses which are

specifically named herein which may be suitable

only in specific locations in the zone only if certain

conditions are met.

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1. The Board of Adjustment may approve, modify,

or deny any application for a conditional use

permit. If it approves such permit, it may

attach necessary conditions such as time limitations, requirements that one or more things

be done before the request can be approved, or

conditions of a continuing nature. Any such

conditions shall be recorded in the Board’s

minutes and on the conditional use permit,

along with a reference to the specific section in

the zoning regulation listing the conditional

use under consideration. In addition, said

conditional use permit shall be recorded in the

office of the County Clerk and one copy of said

permit attached to the deed for the property

for which it is issued. The Board shall have the

power to revoke conditional use permits, or

variances for noncompliance with the condition

thereof. Furthermore, the Board shall have a

right of action to compel offending structures

or uses removed at the cost of the violator and

may have judgment in personam for such cost.

2. Granting of a conditional use permit does not

exempt the applicant from complying with all

of the requirements of this Ordinance, the

building code, housing code, and other regulations of the city of Park Hills.

3. In any case where a conditional use permit has

not been exercised within twelve (12) consecutive calendar months from date of issuance, if

no specific time limit has been set, such conditional use permit shall not revert to its original

designation, unless there has been a public

hearing. Exercised as set forth in this section,

shall mean that binding contracts for the

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construction of the main building or other

improvement has been let; or in the absence of

contracts that the main building or other

improvement is under construction to a substantial degree, or that prerequisite conditions

involving substantial investment shall be

under contract, in development, or completed.

When construction is not a part of the use,

exercised shall mean that the use is in operation in compliance with the conditions as set

forth in the permit.

4. The Zoning Administrator shall review all

conditional use permits, except those for which

all conditions have been permanently satisfied,

at least once annually and shall have the

power to inspect the land or structure where

the conditional use is located in order to ascertain that the landowner is complying with all

of the conditions which are listed on the

conditional use permits.

If the landowner is not complying with all of

the conditions listed on the conditional use

permit, the Zoning Administrator shall report

the fact in writing to the chairman of the

Board of Adjustment. The report shall state

specifically the manner in which the landowner is not complying with the conditions on

the conditional use permit, and a copy of the

report shall be furnished to the landowner at

the same time that it is furnished to the

chairman of the Board of Adjustment.

The Board shall hold a hearing on the report

within a reasonable time, and notice of the

time and place of the hearing shall be

furnished to the landowner at least one week

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prior to the hearing. If the Board of

Adjustment finds that the facts alleged in the

report of the Zoning Administrator are true

and that the landowner has taken no steps to

comply with them between the date of the

report and the date of the hearing, the Board

of Adjustment may authorize the Zoning

Administrator to revoke the conditional use

permit and take the necessary legal action to

cause the termination of the activity on the

land which the conditional use permit authorizes.

5. Once the Board of Adjustment has completed a

conditional use permit and all the conditions

required are of such type that they can be

completely and permanently satisfied, the Zoning Administrator, upon request of the applicant, may, if the facts warrant, make a determination that the conditions have been satisfied, and enter the facts which indicate that

the conditions have been satisfied and the

conclusion in the margin of the copy of the

conditional use permit which is on file with the

county clerk, as required in KRS 100.344.

Thereafter, said use, if it continues to meet the

other requirements of this Ordinance, will be

treated as a permitted use.

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APPENDIX I

Park Hills Zoning Ordinance § 10.4

SECTION 10.4 R-1EE (SINGLE AND TWO FAMILY RESIDENTIAL - ONE EE) ZONE

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.

B. ACCESSORY USES:

1. Customary accessory buildings and uses.

2. Fences and walls, as regulated by ARTICLE

XVI of this Ordinance

3. Home occupations, subject to the restrictions

and limitations established in SECTION 9.23 of

this Ordinance.

4. Signs, as regulated by ARTICLE XV of this

Ordinance.

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.

75a

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.

D. AREA AND HEIGHT REGULATIONS FOR

PERMITTED USES: No building shall be erected

or structurally altered hereafter, except in accordance with the following regulations:

1. Minimum Lot Area:

Single - family - Seven thousand five hundred

(7,500) square feet.

Two - family - Eleven thousand five hundred

(11,500) square feet.

2. Minimum Lot Width at Building Setback Line:

Single - family - Sixty (60) feet.

Two - family - Eighty (80) feet.

76a

3. Minimum Front Yard Depth:

Single and two - family - Thirty (30) feet.

4. Minimum Side Yard Width on Each Side of Lot:

Single and two - family - Seven (7) feet.

5. Minimum Rear Yard Depth:

Single and two - family - Twenty - five (25) feet.

6. Maximum Building Height:

Single and two - family - Thirty - five (35) feet.

E. AREA AND HEIGHT REGULATIONS FOR

CONDITIONALLY PERMITTED USES: No

conditional building and/or use shall be erected or

structurally

altered

hereafter,

except

accordance with the following regulations:

1. Minimum Lot Area - Twenty - two thousand five

hundred (22,500) square feet.

2. Minimum Lot Width at Building Setback Line One hundred fifty (150) feet.

3. Minimum Front, Side (on each side of lot), and

Rear Yard Depths - Fifty (50) feet.

4. Maximum Building Height - Thirty - five (35)

feet or two and one - half (2-1/2) stories.

F. OTHER DEVELOPMENT CONTROLS:

1. Off - street parking and loading and/or

unloading shall be provided in accordance with

ARTICLE XIII and ARTICLE XIV of this

Ordinance.

2. No outdoor storage of any material (usable or

waste) shall be permitted in this zone, except

within enclosed containers.

77a

3. No lighting shall be permitted which would

glare from this zone onto any street, road,

highway, deeded right-of-way, or into any

residential zone.

4. Screening and landscaping shall be provided, as

regulated by SECTION 9.16 of this ordinance.

In no case shall the minimum planting strip be

required to exceed the minimum setback requirement established for this zone.

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APPENDIX J

Park Hills Zoning Ordinance § 19.6

SECTION 19.6 DIMENSIONAL VARIANCES; CHANGE

FROM ONE NONCONFORMING USE TO ANOTHER; CONDITIONS GOVERNING APPLICATIONS; PROCEDURES:

A. DIMENSIONAL VARIANCES: Before any dimensional variance is granted, the Board of Adjustment must find all of the following, which shall be

recorded along with any imposed conditions or

restrictions in its minutes and records and issued

in written form to the applicant to constitute proof

of the dimensional variance. Such dimensional

variance shall not be granted by the Board of

Adjustment unless and until:

1. A written application for a dimensional variance (including the required fee per SECTION

20.0 of this Ordinance) is submitted demonstrating:

a. That specific conditions and circumstances

exist which are unique to the applicant’s

land and do not exist on other land in the

same zone.

b. That the manner in which the strict application of the provisions of this Ordinance

would deprive the applicant of a reasonable

use of the land in the manner equivalent to

the use permitted other land owners in the

same zone.

c. That the unique conditions and circumstances are not the result of actions of

the applicant taken subsequently to the

adoption of this Ordinance.

79a

d. Reasons that the dimensional variance will

preserve, not harm the public safety and

welfare, and will not alter the essential

character of the neighborhood.

e. That granting the dimensional variance

requested will not confer on the applicant

any special privilege that is not conferred

by this Ordinance to other lands, structures

or buildings in the same zone. No nonconforming use of neighboring lands, structures, or buildings in the same zone shall be

considered grounds for the issuance of a

dimensional variance.

2. Notice of public hearing shall be given in

accordance with SECTION 19.2 of this

Ordinance.

3. The public hearing shall be held. Any person

may appear in person, or by agent, or by

attorney.

4. Prior to granting a variance:

a. The Board of Adjustment shall make findings that the requirements of this section

have been met by the applicant for a

variance.

b. The Board of Adjustment shall further

make a finding that reasons set forth in the

application justify the granting of a variance and that the variance is the minimum

variance that will make possible the reasonable use of the land, building, or

structure.

5. In granting any dimensional variance, the

Board of Adjustment may prescribe appro-

80a

priate conditions and safeguards in conformity

with this Ordinance. Violation of such conditions and safeguards, when made a part of the

terms under which the dimensional variance is

granted, shall be deemed a violation of this

Ordinance and punishable under SECTION

17.9 of this Ordinance.

B. DIMENSIONAL VARIANCE CANNOT CONTRADICT ZONING REGULATIONS: The Board of

Adjustment shall not possess the power to grant a

dimensional variance to permit a use of any land,

building, or structure which is not permitted by

this Ordinance in the zone in question, or to alter

the density requirements in the zone in question.

C. DIMENSIONAL VARIANCE RUNS WITH LAND:

A dimensional variance applies to the property for

which it is granted and not to the individual who

applied for it. A dimensional variance also runs

with the land is transferable to any future owner

of land, but it cannot be transferred by the

applicant to a different site.

D. CHANGE FROM ONE NONCONFORMING USE

TO ANOTHER: No change from one nonconforming use to another will be granted by the Board of

Adjustment, unless and until:

1. The Board of Adjustment shall find that the

new nonconforming use is in the same or more

restrictive classification of use as the prior

nonconforming use. In the determination of the

same or more restrictive classification of use,

the applicant shall establish and the Board of

Adjustment shall find:

a. That the new nonconforming use shall

generate less vehicular traffic (automobile

81a

and truck) than the prior nonconforming

use;

b. That the new nonconforming use is of a

nature which will emit less noise and air

pollution than the prior nonconforming use;

c. That the new nonconforming use will be

more in character with the existing neighborhood than the prior nonconforming use,

in that it is more in conformance with the

area - wide comprehensive plan as adopted

by the Kenton County and Municipal Planning and Zoning Commission, and also,

more in conformance with the uses permitted in the zone in which the use is

located, than the prior nonconforming use.

2. Any change of nonconforming use granted,

permitted, or allowed by the Board of Adjustment shall conform to and be governed by this

Ordinance, including, but not limited to, parking requirements, sign regulations and yard

requirements, and all other pertinent ordinances of the city of Park Hills.

3. 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.

4. The Board of Adjustment, in granting, permitting, or allowing a change of nonconforming

uses, may attach such conditions thereto as it

may deem necessary and proper and the action, limitations, and conditions imposed, if any,

shall be in writing, directed to the applicant,

with a copy to be furnished to the city clerk,

Building Inspector, and Administrative Of-

82a

ficer. Violations of any of the conditions, as

may be set for by the Board of Adjustment,

shall be deemed a violation of this chapter and

subject to the penalties described in this

Ordinance.

5. The change of nonconforming use, as may be

granted, permitted, or allowed by the Board of

Adjustment, applies to the subject property

and not to the individual who applied and,

therefore, cannot be transferred by the applicant to a different property.

6. Unless otherwise specified at the time the

change of nonconforming use is granted, permitted, or allowed, it applies to the subject property for an indefinite period of time. However,

in the case where the change of nonconforming

use has not occurred within a year after the

date of granting thereof, then, without further

action, the change of nonconforming use permit shall be null and void and reapplication to

the Board of Adjustment shall have to be

made.

7. The procedures for applying to the Board of

Adjustment for a change in nonconforming use

and the fees charged for such applications

shall be the same as provided by SECTION

20.0, A., 2. of this Ordinance.

8. Notice of public hearing shall be given in

accordance with SECTION 18.2 of this

Ordinance.

9. The public hearing shall be held. Any person

may appear in person, by agent, or by

attorney.

83a

10. Prior to granting a change from one nonconforming use to another, the Board of Adjustment shall make findings that the requirements of this and other applicable sections of

this Ordinance have been met by the applicant.

84a

APPENDIX K

COMMONWEALTH OF KENTUCKY

KENTON CIRCUIT COURT

DIVISION NO. FOUR

————

Case No. 21-CI-00766

————

ELIZABETH FREDERIC AND JOEL FREDERIC,

Appellants/Plaintiffs,

vs.

CITY OF PARK HILLS BOARD OF ADJUSTMENT,

CHARLES MEYERS, MARK KOENIG, ROBERT SWEET,

CATHLEEN MATCHINGA AND THOMAS MICHAEL, ET AL.,

Appellees/ Defendants.

————

BRIEF OF THE APPELLEES/DEFENDANTS:

IN SUPPORT OF THEIR MOTION

FOR SUMMARY JUDGMENT

Now come the Appellees/Defendants, City of Park

Hills Board of Adjustment; Charles Meyers, Mark

Koenig, Robert Sweet, Cathleen Matchinga and

Thomas Michael, all in their official capacities as

members of the City of Park Hills Board of

Adjustment (herein referred to collectively as the

Board); Jordan Odor (herein referred to as Odor); the

Sheila Burke Trust; Sheila E. Burke as Trustee

(herein referred to jointly as the Burke Trust); and,

Missionaries of Saint John the Baptist, Inc. (herein

referred to as St. John’s); by and through the City

Attorney for the City of Park Hills (herein referred to

as the City), and hereby submit their Brief in support

85a

of the their Motion for Summary Judgment, as

follows:

Nature of Appeal

This is an appeal from the determination of the

Board granting and approving a conditional use

permit for an accessory use associated with a church

(herein referred to as the “grotto”) and a variance

request associated therewith, pursuant to Section

10.4 of the City’s zoning code regarding Conditional

Uses, for the property owned by St. John’s at 1101

Amsterdam Road and the property owned by the

Burke Trust located at 917 Alhambra Court, both

adjacent to the other and located within the City of

Park Hills.

On March 18, 2021, Odor, on behalf of St. John’s

and the Burke Trust, filed an application with Planning and Development Services of Kenton County

(PDS) which undertakes planning and zoning related

matters on behalf of the City of Park Hills and

appeals for the Board. PDS makes recommendations

only (a copy of their Staff Report is made a part of the

record herein) to the Board which acts upon the same

at a public hearing which was held, with proper

notice having been provided, on April 15, 2021. In

essence, the request was made for a conditional use

permit to construct a “grotto” (shrine, plaza, walking

path, retaining wall) upon the Burke Trust property

as a permissible accessory use associated with a

church (Le. St. John’s) and a variance request for

rear and side yard setbacks. If approved it was

agreed that the triangular portion of 917 Alhambra

Court would be consolidated with the St. John’s

property, which it subsequently was, by deed dated

June 22, 2021. (See attached Exhibit “A”). Such

fulfilled that condition of PDS.

86a

Inaccurate Recommendation of PDS

In its recommendation, PDS acknowledged that the

Board could authorize the conditional use after

considering various determinations which were

assessed and found to be acceptable by the Board and

completely within their prerogative However, PDS’s

eventual overall unfavorable recommendation was

partially based upon the more simplistic assumption

that the location of the church was not adjacent to an

arterial street, asserting it is a zoning requirement

herein, and not upon the actual crux of the request.

This assumption was incorrect and does not form a

basis for its adverse recommendation. Note that

thereafter, PDS clearly indicated that although their

recommendation was unfavorable, the Board could

still approve and grant the conditional use request,

along with the variances, if they found the other

factors to be accordance with the request and zoning

code, which the Board ultimately did. (See under

Additional Information, page 5 of the PDS Staff

Report filed of record.) Thus, pursuant to Section

9.13, Conditional Uses, of the City’s zoning code, the

proper determination was made to allow the same.

The use is not expressly prohibited.

For the Plaintiffs/Appellants (herein referred to as

the Frederics’) to argue that the arterial connection

was not established has no factual validity herein

and purports to be more of a mere grasping at straws.

PDS may have indicated such in its recommendation

but such was mistakenly based upon the current

status of the law not applicable in this instance.

Historically, according to the Kenton County

Property Valuation records, the church building was

originally built in 1930. (See attached Exhibit “B”). It

was undertaken in two stages. The basement level

87a

first which acted as the church. The old cornerstone

of the building indicates the “Zion Ev. Lutheran

Church” was established in 1937. (See attached

Exhibit “C”). The next level was completed in the

1950’s. The building was later sold but remained in

continuous use as a church. St. John’s acquired the

property in 2015. The current Section 250.01 of the

official zoning code of the City was adopted on March

10, 2012. Its predecessor dates from 1974, both well

beyond the existence of the church.

The church predates the zoning code and existed at

a time when Amsterdam Road was an arterial street

being one of the main thoroughfares through the

City. The subsequent designation as a collector street

and the later adoption of the City zoning code,

occurring long after the original establishment of

both, stands to invalidate the initial recommendation

made by PDS.

Under Kentucky zoning law, an existing structure

(i.e. church) within a zone and the conditions thereon

are not affected by subsequent changes thereto and is

thus “grandfathered” in (the appropriate language for

and a common occurrence in zoning law) until such

time that the use may be abandoned. The church has

always operated under one denomination or another

since the time of construction. Thus, having been

“grandfathered” in, there is no violation of the City’s

zoning code for failure to be adjacent to an arterial

street. Section 10.4, 2. of the City’s zoning code has

no applicability. The only remaining determination

then is whether or not the grant of the conditional

use permit for the “grotto” as a permissible accessory

use associated with a church (being St. John’s) along

with the variances granted in accordance therewith,

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is based upon the proper findings of the Board. The

answer is simply “yes.”

The City’s zoning code does not classify roads as

arterial or collector though a definition exist in the

current code which did not exist at the time of the

church’s construction. By its nature as a main

thoroughfare in the City it was arterial. As a point of

fact, in 1955 the Kentucky Transportation Cabinet

performed highway improvements which it would not

otherwise undertake to a non-arterial roadway

despite it having never actually being furnished a

state route number or designation, yet clearly acted

as such. (See reference in attached Exhibit “D”). Only

in late 2006, by virtue of Park Hills Resolution No.

13-2006 when the Kentucky Transportation Cabinet

transferred ownership a Amsterdam Road to the

City, did its character change. (See attached Exhibit

“E”). Therefore, it did not become a collector street

until such time, again well after the church had been

established and “grandfathered” in. The bottom line

is that since the church predated the zoning regulations it is exempt from the current restrictions.

There are no violations of the provisions of KRS

Chapter 100.

Standard of Judicial Review

Having failed to indicate any legal basis for the

Board having acted in contradiction to the zoning

code, it is for this Court to determine, based upon the

record submitted, whether or not the Board acted

arbitrarily or capriciously in rendering its overall

decision being appealed herein. Failing such, its

decision must stand and the Court must uphold the

same.

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All due process was afforded, the matter is not “de

novo” and must be based solely upon the Record as

submitted. The Board asserts that the Frederics’

failed to present any evidence that the Board acted

arbitrarily or capriciously in rendering its decision. It

was clearly within their prerogative to do so based

upon the testimony presented and upon which they

based their decision.

It is well established that a court’s review of the

action of an administrative agency is limited to

review. Jones v. Cabinet fort Human Resources,

Division for Licensure & Regulations, Ky. App., 710

S.W.2d 862 (1986). A reviewing court may not

substitute its judgment for that of an administrative

agency even though it might have reached a different

result. Kentucky State Racing Commission v. Fuller,

Ky., 481 S.W. 2d 298 (1972). The decision that the

request for conditional and accessory use is a

legislative one and as such, may not be overturned on

review by this Court absent such a finding. Prestonia

Area Neighborhood Ass’n. v. Abramson, Ky., 797

S.W.2d 708 (1990). The Frederics’ have failed to meet

the burden of demonstrating that the Board’s

decision was either unlawful nor supported by

substantial evidence. The Court must act solely upon

the Record provided which, due to its length alone, is

replete with sufficient indications that all parties

were afforded the opportunity to properly address the

underlying issues and the Board had ample

testimony and evidence to properly and reasonably

render its decision. Thus, the actions of the Board

were not arbitrary or capricious and clearly met the

requirements set forth in the seminal case of

American Beauty Homes Corp. v. Louisville &

Jefferson Co. Planning and Zoning Comm., Ky., 379

S.W.2d 450 (1964). This is the standard of review by

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the Court. The scope of judicial review of a zoning

action taken by a public body is limited to determining whether the action was arbitrary, which ordinarily involves the considerations of (1) whether the

action under attack was in excess of the powers

granted to the public body; (2) whether the parties

were deprived of procedural due proves by the public

body; and, (3) whether there is a lack of evidentiary

support in the findings of the public body. The

Appellees/Defendants assert there was not. Allen v.

Woodford County Board of Adjustment, Ky.App., 228

S.W.3d 573 (2007) in citing Fuller.

The actions and determination of the Board were

within the scope of their granted powers; procedural

due process was afforded; an administrative hearing

was held; testimony and evidence presented; a record

kept; and, based upon the same there is a clear

determination that the administrative action taken

by the Board had substantial evidentiary support. As

such, the Board could not have acted arbitrarily or

capriciously and its decision must be upheld. It was

therefore legally and properly rendered and this

appeal must fail and the Appellees/Defendants be

granted summary judgment. Courts generally avoid

weighing the evidence considered by the agency

(herein, the Board (and uphold agency determinations if there is no evidence of arbitrary conduct. See

Puryear v. Greenville, Ky., 432 S.W.2d 437 (1968).

The City and the Board continue to assert there is no

arbitrary conduct evidenced herein.

Judicial review of an administrative action is

“concerned with, the question of arbitrariness” as

established in the American Beauty Homes case. The

Court must further determine whether the decision

of the administrative agency was arbitrary or clearly

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erroneous, which is defined as “unsupported by

substantial evidence.” Danville-Boyle County Planning and Zoning Comm’n v. Prall, Ky., 840 S.W.2d

205, 208 (1992). Substantial evidence is “evidence of

substance and relative consequence having the fitness to induce conviction in the minds of reasonable

men.” Owens-Corning Fiberglass Corp. v. Golightly,

Ky., 976 S.W.2d 409.414 (1998). “If there is any

substantial evidence to support the action of the

administrative agency, it cannot be found to be

arbitrary and will be sustained. Taylor v. Coblin, Ky.,

461 S.W 2d 78, 80 (1970).

The Board of Adjustment Findings and

Determination Were Proper

The hearing conducted before the Board lasted well

over 2 hours. After the initial presentation the

general public was afforded the opportunity to make

comment. There were several persons who did, both

pro and con, though more in the former. Through the

testimony presented, the Board determined, as a

requirement, that the granting of the variance did

not adversely affect anyone in the community. The

Board’s determination was clearly supported by

substantial evidence. It considered all factors in play

in granting the conditional use permit and the

“grotto” as an accessory use to the church with the

variances. And it in no way exhibited favoritism

towards the applicant property owners or their status

as the Frederics’ would have this Court believe.

Finally, at the conclusion the Board made comment,

deliberated and considered all matters presented.

Then, by a majority vote of 4-1, the Board approved

the request and the applicant allowed to proceed,

pending this appeal which has temporarily halted all

measures at construction. But again, absent the

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Board having been arbitrary or capricious in their

ruling, the decision must stand.

Religious Claim

Both federal and state laws protect the

Appellees/Defendants when it comes to religious

shrines erected on their property. The Religious Land

Use and Institutionalized Persons Act (RLUIPA) has

application herein. The RLUIPA, codified as 42 USC

Sec. 2000 et. seq., was created to address the

inequities of subjective law use decisions by local

communities who routinely deny religious entities

the right to use land for religious purposes. It

prevents discrimination in zoning laws that

substantially interfere with religious exercise. Thus,

to rule against the Board’s determination herein

would be volitive thereof. Part of its purpose is to

prohibit zoning laws that discriminate against

churches and burden their ability to exercise

religious beliefs. Again, in this instance, the “grotto”

would qualify. There was “no compelling reason” to

prevent the “grotto” from proceeding to construction

upon land now owned by St. John’s as all issues were

addressed before the Board. There was no impact

upon any laws which existed for its prevention. The

Board could not have limited via local land use

regulations the land use for a religious purpose and it

is a legitimate.

The issues attempted to be brought upon appeal

are benign and thus allowable. There were no

substantial issues of real concern. The church building was not being expanded; the property was

acquired; it is not being utilized for any commercial,

purpose; it is not going to be operated as a tourist

attraction; parking was addressed; it is open to the

93a

public of any denomination; and, any increase in

traffic is speculative and without foundation.

One queries that if this were a park, or secular,

would this land use impact be as much of a concern if

a religious belief (in particular the nature of St.

John’s) wasn’t involved? It is merely beyond the scope

of governmental regulation. There must be a balance

between governmental interest and religious practice. What is the degree of interference or impact

herein as a result of the Board’s determination?

Appellees/Defendants assert is it very limited. (By

way of analogy the Court’ attention is directed to the

decision in Islamic Center of Mississippi, Inc. v. City

of Starkville, 840 F.2d 293 (5th Cir., 1988.)

Failure to Claim Actual Injury/Lack of Standing

Under KRS 100.347(3) it has been determined that

it is mandatory for a party to allege in its complaint

on appeal to the circuit court that the party has been

injured or aggrieved by the final action of the

legislative body. A mere allegation as to such should

not suffice. An appeal from an administrative decision such as the one herein is a matter of legislative

grace, not a right. Therefore, failure to follow strictly

the statutory guidelines for the appeal is fatal. Under

KRS 100.347(3) a party must claim in the complaint

to be injured or aggrieved and allege facts supporting

such a claim. The failure to do so requires dismissal

of the case. Spencer County Preservation, Inc. v.

Beacon Hill, Ky. App., 214 S.W.3d 327 (2007).

Although surmised from their pleadings that the

Frederics’ allege to have been injured or aggrieved by

virtue of not liking the Board’s determination, there

is no actual assertion that they have suffered the

same.

94a

Other Issues

To address other issues raised by the Frederics’ in

their brief, which have no bearing or basis for

inclusion herein.

All due process procedures were properly followed.

There is no permissible cross-examination of the

applicant during the hearing. The conduct of the

meeting is to have the applicant (or PDS) indicate the

request, state its position, for the Board to then

solicit comments from the public on either side of

the issue, ask questions, deliberate and make a

determination. This is not a trial.

Bias or conflicts of interest amongst any of the

Board members were addressed during the hearing

and having no legal basis for recusal were not plead

in the Complaint.

This Court cannot grant injunctive relief. It

shall either affirm the Board’s determination or

set it aside. Nothing would prevent the Appellees/

Defendants from re-filing.

Statements or indications of alleged facts or legal

assertions made by Odor in his application were just

that, statements of his belief in support of his

application and not necessarily of actual fact. He

cannot be held to that standard. He is free to allege

whatever he desires without being bound by the

same. The actual determinations and applicability of

the law is for the Board to decide.

There is also a myriad of self-serving statements in

the Affidavit of Joel Frederic not addressed in the

brief or the Complaint and should be disregarded.

The Appellees/Defendants could have merely done

the same. It is not for the Court to consider. The

Record herein speaks for itself.

95a

Finally, a regurgitation of all the applicable zoning

code sections (as properly set forth) in question and

the alleged violations thereof do not necessarily

comport that the actions of the Board were unlawful

or in violation thereof. Each was considered in making its determination, which is a permissible action

and the purpose undertaken by this administrative

body. The Board thoroughly vetted the comments and

request and, as is their duty, made findings and

determinations which were not inconsistent therewith based upon the lengthy hearing process and

then made a sound and reasonable conclusion based

upon substantial evidence submitted.

Conclusion

The idea argued by the Frederics’ (and others at

the hearing) that the construction of the “grotto”

would lend itself to a potentially commercial tourist

attraction is absurd. From review of the diagrams it

is clearly small in character and size; meant to be a

simple, quiet place for mediation and worship; nondisruptive to the neighborhood; no flashing lights or

music; and, in keeping with the church grounds. The

“grotto” will provide a home to the statute of the

Blessed Virgin Mary that has been on the upper

porch of the house at 1107 Amsterdam Road for years

and will only move about 100 feet further into a more

fitting setting. Without sounding blasphemous the

idea that it could become the next Fatima or Lourdes

is preposterous. In addition, there is nothing to

substantiate that the “grotto” would create any increase in traffic detrimental to the neighborhood. As

such no violation of Section 19.6 of the City’s zoning

code concerning dimensional variances has occurred.

As for parking, St. John’s has spaces available and

in order to seek appeasement both St. John’s and the

96a

City agreed to undertake other measures in the

unlikely event of any overflow parking ever occurred

(outside of their normally conducted masses weddings or other events based upon what the Frederics’

would have you believe is “grotto” visitation related),

which were rejected. This is merely that of a disgruntled neighbor that doesn’t like the outcome and

has no actual legal basis to challenge. This is simply

an emotionally charged situation with no foundation

for reversal of the Board’s determination under the

law.

The Frederics’ advance no rational basis other than

neighborhood opposition to deny St. John’s request.

“Private biases may be outside the reach of the law

but the law cannot directly or indirectly give them

effect”. (Quoted from Islamic Center). The Frederics’

have simply not met the burden of persuading this

Court that the Board acted outside of its authority,

nor arbitrarily or capriciously. As a result, the

decision and determination of the Board must stand.

Respectfully submitted,

/s/

DANIEL R. BRAUN #07255

City Attorney, City of Park Hills, Kentucky

526 Greenup Street, Covington, KY 41011

859-491-5055

braunnkylaw@aol.com

Attorney for Appellees/Defendants:

City of Park Hills Board of Adjustment;

Charles Meyers, Mark Koening, Robert Sweet,

Cathleen Matchinga and Thomas Michael,

Members of the City of Park Hills Board of

Adjustment; Jordan Odor;

Sheila Burke Trust and Sheila E. Burke, as Trustee;

and, Missionaries of Saint John the Baptist, Inc.

97a

CERTIFICATION

I hereby certify that I have this _24_day of March,

2022 mailed or e-mailed a true copy of the foregoing

to:

Attorney for the Appellants/Plaintiffs

Mr. Christopher Wiest

Attorney at Law

25 Town Center Blvd., Suite 104

Crestview Hills, KY 41017

/s/

DANIEL R. BRAUN

98a

APPENDIX L

IN THE KENTON CIRCUIT COURT

KENTON COUNTY, KENTUCKY

CASE NO: 21-CI-____

Electronically Filed

————

ELIZABETH FREDERIC AND

JOEL FREDERIC

1001 Park Drive

Park Hills, KY 41011

APPELLANTS/PLAINTIFFS

CITY OF PARK HILLS BOARD OF ADJUSTMENT,

CHARLES MEYERS, MARK KOENIG, ROBERT

SWEET, CATHLEEN MATCHINGA, AND THOMAS

MICHAEL In their official capacities as members of

the City of Park Hills Board of Adjustment

AND

JORDAN ODOR

Elevar Design Group

555 Carr Street

Cincinnati, OH 45203

AND

SHEILA BURKE TRUST c/o Sheila E. Burke,

Trustee 917 Alhambra Court

Park Hills, KY 41011

AND

SHEILA E. BURKE, in her capacity as

Trustee for the SHEILA BURKE TRUST

917 Alhambra Court

Park Hills, KY 41011

99a

AND

PLANNING AND DEVELOPMENT

SERVICES OF KENTON COUNTY

c/o Sharmili Reddy

1840 Simon Kenton Way, Suite 3400

Covington, KY 41011-2999

AND

MISSIONARIES OF SAINT

JOHN THE BAPTIST, INC

c/o Father Shannon M. Collins (Agent)

1101 Amsterdam Road

Our Lady of Lourdes Parish

Park Hills, KY 41011

DEFENDANTS/APPELLEES

————

PLAINTIFFS’ COMPLAINT/PETITION/APPEAL

PURSUANT TO KRS 100.347(1) AND FOR

DECLARATORY AND INJUNCTIVE RELIEF

This action is, primarily, an appeal under KRS

100.347(1).

Parties

The Plaintiffs/Appellants are Joel Frederic and

Elizabeth Frederic, a married couple who reside

at 1001 Park Drive, Park Hills, KY 41011. Mr.

and Mrs. Frederic own the property at 1001 Park

Drive, Park Hills, KY 41011.

The Defendants/Appellees include the City of

Park Hills Board of Adjustments, in its official

capacity, and the individual board members,

Charles Meyers, Mark Koenig, Robert Sweet,

Cathleen Matchinga, and Thomas Michael, the

current incumbent board members, in their

100a

official capacities (all collectively denoted the

“Board of Adjustment Defendants”).

The Defendants/Appellees also includes Jordan

Odor (“Odor”), the applicant, acting on behalf of

the affected property owners.

The Defendants/Appellees include the Sheila

Burke Trust (“Burke Trust”), and Sheila Burke

in her capacity as Trustee for the Burke Trust,

which owns 917 Alhambra Court, Park Hills,

Kentucky (“917 Alhambra”), one of the two

properties subject to the Board of Adjustment

action challenged herein, and Missionaries of St.

John the Baptist, Inc. (“St. Johns”), which owns

1101 Amsterdam Road, Park Hills, Kentucky,

(“1101 Amsterdam”) the second property subject

to the Board of Adjustment action herein.

The Defendant Planning and Development

Services of Kenton County (“PDS”) is the authorized administration and coordinating agent for

the City of Park Hills for the processing and

management of the zoning ordinance, as well as

the Board of Adjustment Process, and, while it

may not be a necessary party, its inclusion in

this action is helpful in implementing any

decision of the Court.

The Park Hills Zoning Ordinance, Comprehensive

Plan, Factual Background of the Board of Adjustment

Process in this matter, and Aggrieved Party Status

Zoning Background

Both 917 Alhambra and 1101 Amsterdam are

zoned R1-EE under the City of Park Hills zoning

map.

101a

A copy of the entire Park Hills, Kentucky zoning

ordinance is available online, at https://www.pd

skc.org/portals/pdskc/documents/zoning.pdf/park

hills/phord.pdf .

Section 10.4 of the Park Hills, Kentucky zoning

ordinance, governing R1-EE zones, provides the

following conditional use:

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.

E. AREA AND HEIGHT REGULATIONS FOR

CONDITIONALLY PERMITTED USES: No conditional building and/or use shall be erected or

structurally altered hereafter, except in accordance with the following regulations:

1. Minimum Lot Area - Twenty - two thousand

five hundred (22,500) square feet.

2. Minimum Lot Width at Building Setback

Line - One hundred fifty (150) feet.

3. Minimum Front, Side (on each side of lot),

and Rear Yard Depths - Fifty (50) feet.

4. Maximum Building Height - Thirty - five (35)

feet or two and one - half (2-1/2) stories.

102a

Section 7.0 of the Park Hills, Kentucky zoning

ordinance, governing definitions, provides

the following definition for arterial streets:

STREET, ARTERIAL: Public thoroughfares

which serve the major movements of traffic

within and through the community, as identified

in the adopted comprehensive plan for the city of

Park Hills.

10. Neither 917 Alhambra, nor 1101 Amsterdam are

located adjacent to an arterial street.

11. Section 9.13 of the Park Hills Zoning Ordinance

provides:

SECTION 9.13 CONDITIONAL USES:

A. DETERMINATION: 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.

103a

12. Section 19.6 of the Park Hills Zoning Ordinance

provides, in relevant part:

B. DIMENSIONAL VARIANCE CANNOT CONTRADICT ZONING REGULATIONS: The Board of

Adjustment shall not possess the power to grant a

dimensional variance to permit a use of any land,

building, or structure which is not permitted by this

Ordinance in the zone in question, or to alter the

density requirements in the zone in question.

13. Section 19.6 of the Park Hills Zoning Ordinance

further provides that non-conforming uses may

not be expanded, or changed unless the use

causes less vehicular traffic, less noise, and is

more in character with the neighborhood. It

further provides that: “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.”

The Conditional Use and Variance Request

14. On or about March 18, 2021, Odor, on behalf of

St. Johns and the Burke Trust, caused an

application for a Conditional Use Permit and

Variance requests to be made to PDS for 917

Alhambra and 1101 Amsterdam, which handles

administrative matters on behalf of the City of

Park Hills, Kentucky, related to planning and

zoning, including the handling and coordination

of Board of Adjustment appeals for the City of

Park Hills Board of Adjustments. A true and

accurate copy of same is attached as Exhibit 1,

as part of the PDS staff report, and is incorporated into this Complaint in full.

104a

15. In that application, Odor, for himself as the

applicant, and on behalf of the Burke Trust and

St. Johns as property owners, acknowledges the

non-compliance, stating: “Regarding the property’s location being adjacent to a ‘collector

street’ versus an ‘arterial Street’, we believe that

this requirement should be waived due to the

facts that this church’s existence predates the

1974 official zoning ordinance and official map.”

16. Odor likewise acknowledges non-compliance with

the Zoning Ordinance’s requirements for the

conditional use: “We also believe that granting

variances for the area and height regulations will

not adversely affect anyone in the community.”

17. The staff report from PDS, concerning the

conditional use request, notes that the use does

not comply:

c. That the proposed building and use will

comply with any regulations and conditions

specified in this ordinance for such building and

use.

The proposed grotto will not comply with all

the specified conditions for this type of

conditional use. Churches are required to

located adjacent to an arterial street.

Amsterdam Road is a collector street and

this requirement is not being met.

18. In terms of the variance requests, the PDS

Report noted that:

ii. The strict application of the provisions of the

regulation would deprive the applicant of the

reasonable use of the land or would create an

unnecessary hardship on the applicant;

105a

The strict application of the regulations

would deprive the applicant of the reasonable use of the land Without the approval of

the variances the applicant would not be

able to construct the grotto as proposed

19. The foregoing conclusion by PDS at Paragraph

18 was baseless, in that there was, has been, and

will continue to be full use of the land in question

by the property owners, and the denial of same is

not an unnecessary hardship.

20. In terms of the variance requests, the PDS

Report also concluded that:

The circumstances are the result of actions of the

applicant taken subsequent to the adoption of

the zoning regulation from which relief is sought.

The reason for this request is not the result

of action taken by the applicant prior the

adoption of the zoning regulations.

21. As opposed to appropriately applying the language and requirements of KRS 100.243, including

the requirement that “The board shall deny any

request for a variance arising from circumstances

that are the result of willful violations of the

zoning regulation by the applicant subsequent to

the adoption of the zoning regulation from which

relief is sought,” the PDS staff report inappropriately looked at whether the request was a

result of the applicants’ actions prior to the

adoption of the zoning regulations, rather than

after the adoption of the zoning regulations. This

legal error failed to recognize that the applicant

(and property owners) sought to engage in uses

expressly prohibited by the Park Hills Zoning

Ordinance, as set forth herein.

106a

22. The PDS staff recommended disapproval of the

conditional use permit, because, among other

things, such approval was unlawful.

The Plaintiffs/Appellants

23. As previously set forth, the Plaintiffs/Appellants

are residents at 1001 Park Drive, Park Hills, KY

41011. Their property sits immediately across

the street from the property that was the subject

of the Conditional Use and Variance requests by

Odor, on behalf of St. Johns and the Burke Trust.

24. On April 15, 2021, the Park Hills Board of

Adjustments held a meeting to consider the

foregoing Conditional Use and Variance requests

by Odor, on behalf of St. Johns and the Burke

Trust.

25. The Plaintiffs/Appellants spoke and gave testimony at that hearing. Plaintiffs/Appellants along

with other Park Hills residents observed at that

hearing that they would be injured and/or aggrieved by the granting of the Conditional Use and

Variance requests by Odor, on behalf of St. Johns

and the Burke Trust because: (i) the expansion of

the non-conforming use and construction proposed by the applicant and property owners

would increase traffic congestion on the streets

and parking areas, which, during services, after

services, and before services, is already congested, overflowing, and spilling over to streets,

including the streets and public parking areas

around the Plaintiffs/Appellants’ property; (ii)

the expansion of the non-conforming use and construction proposed by the applicant and property

owners would increase noise on their property,

which is already a problem during services, after

107a

services, and before services; (iii) the lighting

concerns from the construction in question would

likely affect their property as well; they observed

that all of these issues would injure and/or

aggrieve them.

26. As a factual matter, the approval of Odor’s

request for a Conditional Use and Variance will

injury and/or aggrieve Plaintiffs/Appellants Joel

Frederic and Elizabeth Frederic, because it will

cause (i) the expansion of the non-conforming use

and construction proposed by the applicant and

property owners that would increase traffic congestion on the streets and parking areas, which,

during services, after services, and before

services, is already congested, overflowing, and

spilling over to streets, including the streets and

parking areas of the Plaintiffs/Appellants’ property; (ii) the expansion of the non- conforming

use and construction proposed by the applicant

and property owners that would increase noise

on their property, which is already a problem

during services, after services, and before services; (iii) the lighting concerns from the

construction in question would likely affect their

property as well; they observed that all of these

issues would injure and/or aggrieve them.

27. At the BOA hearing, a traffic study in connection

with this proposal was requested, but the

Applicant, Odor, on behalf of St. Johns and the

Burke Trust, refused to conduct same and the

BOA likewise ignored this request.

28. That parking is already congested even without

the erection of a grotto cannot be seriously

contested as the Church operating on the St.

John’s property directs its parishioners on its

108a

website to park in the parking lot “located behind

the city hall / fire / police department right

across from the church * * * and that [t]here are

also two to three spaces at the end of the

driveway of our rectory (1107-1109 Amsterdam

Road). At the far end of Trolley Park, there are

four spaces available. * * * We hope to obtain

more property in the near future in order to

accommodate additional vehicles.” https://www.

ourladvoflourdes.info/times-location/ (last visited

5/13/21).

29. At the hearing, the Applicant, Odor, on behalf of

St. Johns and the Burke Trust in self-serving

statements with no basis in fact summarily

opined that the proposed grottos is not meant to

be a tourist attraction and that parking, traffic,

lighting, noise, hours of operation, and hill

stability would not adversely impact residents

and Plaintiff/Appellants and would not cause a

loss in property values, but the BOA failed to

implement or consider mitigation measures for

the conditional use, including, without limitation, a reduction in scope of the construction,

lighting and noise restrictions, and a limitation

on the hours the facility could be used.

30. Instead, on April 15, 2021, the Park Hills Board

of Adjustments approved Odor’s request for a

Conditional Use and Variance, a true and

accurate copy of which is attached as Exhibit 2.

It is from this approval that Plaintiffs/Appellants

take appeal.

COUNT I — Appeal, KRS 100.347

31. Plaintiffs/Appellants reincorporate the foregoing

as if fully set forth herein.

109a

32. Pursuant to KRS 100.347(1):

(1) Any person or entity claiming to be injured or

aggrieved by any final action of the board of

adjustment shall appeal from the action to

the Circuit Court of the county in which the

property, which is the subject of the action of

the board of adjustment, lies. Such appeal

shall be taken within thirty (30) days after

the final action of the board. All final actions

which have not been appealed within thirty

(30) days shall not be subject to judicial

review. The board of adjustment shall be a

party in any such appeal filed in the Circuit

Court.

33. Pursuant to KRS 100.347(4):

(4) The owner of the subject property and

applicants who initiated the proceeding shall be

made parties to the appeal. Other persons speaking at the public hearing are not required to be

made parties to such appeal.

34. Plaintiffs/Appellants are injured or aggrieved, as

set forth herein, by the final action of the Park

Hills Board of Adjustment, have taken this

appeal within the 30 days after final board

action, have named the board of adjustment as a

party, and have named the owners of the subject

properties and the applicants, all as required by

KRS 100.347. They thus bring this appeal pursuant to KRS 100.347.

35. The standard of review is set forth in American

Beauty Homes Corp. v. Louisville and Jefferson

County Planning and Zoning Commission, 379

S.W.2d 450 (Ky. 1964), which held that the

overriding concern of the reviewing court is

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whether the administrative body’s action was

arbitrary. In determining arbitrariness, the court

must determine: (1) whether the agency exceeded

its statutory authority; (2) whether the parties

were afforded procedural due process; and (3)

whether the agency decision was supported by

substantial evidence. See, also, Hilltop Basic

Resources, Inc. v. County ofBoone, 180 S.W.3d

464, 467 (Ky. 2005).

36. KRS 100.247 prohibits variances to land usage

requirements, and, instead, the zoning ordinance

must be complied with.

37. The Park Hills Board of Adjustments exceeded

its statutory authority as provided in American

Beauty Homes Corp., when it granted the Conditional Use and/or Variance to the Applicant (on

behalf of the owners), because, among other

things, the property was not located adjacent to

an arterial street as required for the Conditional

Use to be granted, and because no variance can

be given to land use requirements under KRS

100.247. Keogh v. Woodford County Bd. Of

Adjustments, 243 S.W.3d 369 (Ky. App. 2007).

38. The Park Hills Board of Adjustments further

exceeded its statutory authority as provided in

American Beauty Homes Corp., when it granted

the Conditional Use and/or Variance to the

Applicant (on behalf of the owners), because,

among other things, it inappropriately applied

the zoning ordinance and failed to give effect

to KRS 100.243, by not considering that the

expansion of a non-conforming use was implicated, and this was solely due to the actions and

desires of the Applicant and property owners to

expand the non-conforming use, all in contra-

111a

vention of the Park Hills Zoning Ordinance, and

KRS 100.253.

39. The Park Hills Board of Adjustments decision

was not supported by substantial evidence, as

required by American Beauty Homes Corp., because, among other things, there was insufficient

evidence to support any of the findings made by

the Board.

40. The Park Hills Board of Adjustments denied the

Plaintiffs/Appellants procedural due process, as

required by American Beauty Homes Corp.,

because, among other things, it did not permit

them to cross examine the applicant.

COUNT II — DECLARATORY

AND INJUNCTIVE RELIEF

41. Plaintiffs/Appellants reincorporate the preceding

paragraphs as if fully set forth herein.

42. Plaintiffs/Appellants further seek declaratory

relief that, pursuant to the City of Park Hill:

Zoning ordinances and Kentucky law, that

conditional use for churches cannot be grantee

unless the property sits adjacent to an arterial

street, that 917 Alhambra and 1101 Amsterdam

properties do not sit adjacent to a arterial street,

that the church use thereon therefore a nonconforming use, and that such use cannot be

expanded under KRS 100.253.

43. Plaintiffs/Appellants seek injunctive relief prohibiting the Board of Adjustment Defendants from

any future approvals of any conditional use

approvals for any expansion of the 917 Alhambra

and 1101 Amsterdam, absent a zoning text

amendment that would permit such use.

112a

WHEREFORE, Plaintiffs/Appellants, Joel and Elizabeth Frederic pray:



The decision of the Park Hills, Kentucky, Board of

Adjustments granting a Conditional Use Permit

and Variance to the Applicant/Property Owners,

be reversed; and



Declaratory Relief, as prayed for herein; and



Injunctive Relief, requiring compliance by the

Park Hills, Kentucky, Board of Adjustments with

the Park Hills, Kentucky, zoning ordinance and

Kentucky law; and



Such other relief as this Court may find just and

proper.

Respectfully submitted,

/s/Christopher Wiest__________

Christopher Wiest (KBA 90725)

25 Town Center Blvd, STE 104

Crestview Hills, KY 41017

513-257-1895 (v)

chris@cwiestlaw.com

Attorney for Plaintiffs/Appellants

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