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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Floor Amendment Does Not Fix Unfair, Unconstitutional Developers Dream Bill  Posted: March 8, 2017

SENATE FLOOR AMENDMENT DOES NOT CURE UNFAIR, UNWORKABLE, UNNECESSARY, AND UNCONSTITUTIONAL ZONING APPEAL BOND BILL

House Bill 72, imposing a mandatory appeal bond requirement for zoning appeals from Circuit Courts to the Court of Appeals, is a blatantly unconstitutional slap in the face of neighbors and neighborhood groups.

It is a “solution in search of a problem,” since the Court of Appeals already has the ability under Civil Rule 73.02(4) to assess damages and 1 to 2 times costs if it determines a zoning appeal (or any other appeal for that matter) to have been brought that was frivolous and in bad faith.

What does Senate Floor Amendment 1 to HB 72 change?

SFA 1 to SCS HB 72 replaces and restates most of the text of the original bill, with these changes:

• Removes the general reference in Subsection 1 to Kentucky Rules of Civil Procedure
• Adds in subsection 2 that the motion filed by the appellee in Circuit Court within 30 days after the Notice of Appeal is “pursuant to the jurisdictional authority established in Rule 73.06 of the Kentucky Rules of Civil Procedure”
• Provides that the bond amount that the Circuit Court is obligated to set in all cases when requested is “upon good and sufficient surety”
• Adds that if the bond isn’t posted within 15 days of the Circuit Court’s determination of the bond amount, the appeal “shall be dismissed.”
• Incorporates exemption for governments and for a “person challenging the creation, operation, or expansion of a landfill.”

What is the effect of the new language in SFA 1?

The only substantive difference is the inclusion of a specific reference to CR 73.06. That reference is an attempt to shoehorn this mandatory zoning appeal bond into rules for supersedeas bonds. CR 73.06 provides that the Circuit Court has continuing jurisdiction over “supersedeas bonds” during the appeal process, but this is not a supersedeas bond. A supersedeas bond is a mechanism used when an appellants wants a stay of a money judgment that has been entered in a circuit court action. Here, the appellant is not seeking a stay, and the Circuit Court has no continuing jurisdiction once the Notice of Appeal has been filed.

How does SFA 1 and HB 72 violate the Kentucky Constitution?

The Senate Floor Amendment and the original bill:

• Violate Section 115 of the Constitution by imposing a mandatory financial burden on all zoning appeals, frivolous or meritorious. Section 115 guarantees that “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court[.]” Section 115 also provides that “Procedural rules shall provide for expeditious and inexpensive appeals.” This Floor Amendment and the Bill intrude on that right of appeal by imposing a disparate financial burden on both “presumptively frivolous” and “meritorious” appeals.
• Violate the Court of Justice’s obligation to establish procedural rules that provide for “inexpensive” appeals.
• Intrude on the powers of the Judiciary in Section 116, which provides that “The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction…and rules of practice and procedure for the Court of Justice.”
• Violate the separation of powers in Sections 27 and 28 of the Constitution by attempting to legislate matters of judicial practice and procedure.
• Violate Section 2 of the Kentucky Constitution, which prohibits arbitrary government action and has been construed to encompass equal protection of laws. By excluding governmental entities from having to post appeal bonds, the bill creates disparate treatment of similarly situated parties.
• Violate Section 59 of the Constitution by creating “special” legislation. By imposing a mandatory appeal bond on one subset of appeals from Circuit Court to the Court of Appeals, those being appeals under KRS Chapter 100, and by exempting local governments and those challenging zoning cases involving landfills from the bond requirement, the bill twice treats a class of like-situated persons (appellants) in a disparate manner, imposing on some but not others a mandatory appeal bond requirement.

What’s the bottom line?

SFA 1 doesn’t fix this “developers dream bill,” which remains the “un” bill:

Unconstitutional: violating the right to appeal guaranteed by Section 115 of the Kentucky Constitution, violating equal protection because it exempts local governments from having to post appeal bonds, and violating Section 116 of the Kentucky Constitution by intruding into the powers of the judiciary;

Unfair: because it requires posting of an appeal bond of up to $100,000 even where the Circuit Court finds the appeal to have merit, pricing appeals out of reach for neighborhood groups and neighbors;

Unneeded: because the Court of Appeals already has the power to impose sanctions if it deems a zoning appeal (or any other appeal) to be frivolous or in bad faith; and

Unworkable: because it requires a Circuit Judge to hold a hearing after a Notice of Appeal has been filed, on whether that appeal is "presumptively frivolous," even though the Circuit Judge has no jurisdiction over the appeal once the Notice is filed, and also because at that point the Circuit Court would not know what issues would be raised on appeal, and thus couldn't know whether the appeal was or wasn't "presumptively" frivolous.

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