RENDERED: AUGUST 14, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0904-MR
K.F.F. ENTERPRISES, LLC APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 24-CI-00603
CITY OF WALTON BOARD OF
ADJUSTMENT AND ITS MEMBERS,
BARB FARROW, CAITLYN
FUGATE, DAVID HINCKS,
EDWARD SEDOR, AND STEVEN
TURNER; BAILEY JAYNE’S
BAKERY & CAFE, LLC; AND PFLP,
LLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO; AND KAREM, JUDGES.
KAREM, JUDGE: Bailey Jayne’s Bakery & Café, LLC (“the Bakery”), erected a
storage building on its property belatedly obtaining a necessary zoning permit. The neighboring business, KFF, LLC (“KFF”), challenged the zoning permit
before both the Walton Board of Adjustment (“the Board”) and ultimately the
Boone Circuit Court. The trial court dismissed both the appeal of the Board’s
decision and the declaratory judgment action brought by KFF. This appeal
followed.
FACTUAL AND PROCEDURAL BACKGROUND
The property located at 5 North Main Street, Walton, Kentucky, is
within the boundaries of Boone County. The Bakery has been a continuous tenant
of the property since prior to the onset of litigation in this case. At some point
during its tenancy, the Bakery erected a storage building (“the shed”) at the rear of
the property within one foot of the property line shared with KFF. At the time the
shed was erected, the property was owned by Hudson Properties, LLC (“Hudson”)
but was subsequently acquired by PFLP, LLC (“PFLP”).
Prior to the construction of the shed, the Bakery did not obtain a
required zoning permit. The Boone County Planning Commission, acting as local
zoning administrator, communicated with Hudson by letters dated May 23, 2023,
and July 13, 2023, respectively, directing that the shed be removed or the Bakery
should contact the zoning enforcement officer to discuss the proper plans and
process to have the structure on the property. A zoning permit was approved on
February 6, 2024. By this time, PFLP owned the property. KFF filed an appeal to
-2-the Board citing Kentucky Revised Statute (“KRS”) 100.261,1 claiming to be
“injuriously affected or aggrieved” by the approval of the Bakery’s zoning permit.
On March 27, 2024, the Board held a public hearing to review the
decision by the enforcement officer to grant the permit. To begin the discussions,
a staff member for the Board made a presentation explaining the procedural
process for the Bakery’s zoning permit request. He stated that there is no set-back
requirement for structures, “so if the shed is on the subject property, we are
obligated to approve the zoning permit based on the code.” He further noted that
the Bakery, as applicant for a zoning permit, was not seeking a variance from the
Board for its shed because the shed met all the building set-back requirements.
Upon completion of the staff member’s comments, KFF was allowed
to present its argument supporting its request that the Board overrule the
administrator’s decision to grant the Bakery’s permit. Notably, KFF began its
presentation by acknowledging the shed was located exclusively on the Bakery’s
property, albeit seven-tenths of a foot from the property line.2 KFF’s sole
1
KRS 100.261 Procedure for all appeals to board.
Appeals to the board may be taken by any person, or entity
claiming to be injuriously affected or aggrieved by an official
action, order, requirement, interpretation, grant, refusal, or decision
of any zoning enforcement officer.
2
The distance from the shed to the Bakery’s property line is described in the record as both “seven-tenths of a foot” and “seven inches.”
-3-argument focused on the timing of the building of the shed as it related to the
request for a zoning permit. Specifically, the shed was built sometime in 2022,3
and the zoning permit was not obtained until February 6, 2024, after completion of
the building. KFF maintained, “you cannot build something and ask for
permission later.” Although KFF’s appeal never asserted any other basis for their
request, they went on to expound on other issues such as the size of the shed, the
perceived safety concerns of the structure itself, and the timeline of the process
which exceeded the seven days allowed by the zoning code. Following the
presentation by KFF, the floor was open for comments from the public. Lastly,
KFF was allowed the opportunity to cross-examine a witness. At the completion
of the hearing, finding no basis to reverse the decision to grant the Bakery a zoning
permit, the Board denied KFF’s appeal.
KFF next appealed the Board’s decision to the Boone Circuit Court.
In addition to its appeal, KFF asserted a declaratory action against the Board
challenging its jurisdiction to hear the appeal based on the alleged failure of Board
members to complete required training.
In the declaratory judgment action, KFF motioned for summary
judgment. The Board in turn argued KFF had no standing to sue. The trial court
3
During the hearing the Bakery stipulated that the shed was built in June 2022, and the permit was approved February 6, 2024.
-4-agreed with the Board’s denying KFF’s motion for summary judgment and
dismissing the declaratory judgment claim.
In the direct appeal of the Board’s decision to uphold the grant of the
zoning permit, KFF again filed a motion for summary judgment. Subsequently,
the Board filed a motion to dismiss noting KFF’s failure to identify any injury it
sustained as a result of the Board’s decision. The trial court agreed with the Board
and dismissed the remainder of KFF’s claims pursuant to Kentucky Rule of Civil
Procedure (“CR”) 12.02 for KFF’s failure to state a claim upon which relief can be
granted. This appeal followed.
PRELIMINARY ISSUE
In reading both the Appellant’s and Appellee’s briefs, we note in the
Statement of Points and Authorities, and at various points scattered throughout, the
parties use the term “passim.” Ironically, the word itself is an antiquated Latin
word meaning “here and there: used in bibliographic references to indicate that the
writer has drawn upon material scattered throughout the source cited.”4 Microsoft
Word, by default, inserts passim in the Statement of Points and Authorities if a
citation is used more than five times in a brief.5 Generally, use of this type of
4
Passim, Dictionary.com, https://www.dictionary.com/browse/passim (last visited Aug. 13, 2026).
5
TableOfAuthorities.Passim property (Word), Microsoft Learn, https://learn.microsoft.com/enus/office/vba/api/Word.TableOfAuthorities.Passim (last visited Aug. 13, 2026)
-5-software is not objectionable, however, failing to edit a brief and insert proper page
citations leaves this Court thumbing through briefs in a frustrating game of seek
and find. Such casual adherence to briefing rules is unacceptable.
Our Rules of Appellate Procedure dictate the organization and
contents of appellate briefs. Specifically, Kentucky Rule of Appellate Procedure
(“RAP”) 32(A)(2) states:
A statement of points and authorities, which shall set
forth, succinctly and in the order in which they are
discussed in the body of the argument, the appellant’s
contentions with respect to each issue of law relied upon
for a reversal, listing under each the authorities cited on
that point and the respective pages of the brief on which
the argument appears and on which the authorities are
cited.
RAP 32(A)(2) (emphasis added).
“Appellate procedural rules, including those for briefing, cannot be
ignored by appellate advocates.” White v. Fowler, 717 S.W.3d 176, 180 (Ky. App.
2025). Indeed, we have held that:
Competency is the very first rule of professional conduct.
And there is no more basic element of competency in the
practice of appellate advocacy than knowing and simply
following the Court’s rules of procedure and brief
writing. Failure in that regard has only two explanations:
(1) an ignorance of the rules, or (2) an impertinent refusal
to follow them.
J.P.T. v. Cabinet for Health & Fam. Servs., 689 S.W.3d 149, 152 (Ky. App. 2024).
Thus, we expect that any briefs submitted by counsel in the future will strictly
-6-adhere to the Rules of Appellate Procedure and provide every page number on
which counsel has cited a case as legal authority.
ANALYSIS
1. Denial of Summary Judgment.
KFF appeals the trial court’s denial of its motions for summary
judgment; however, these are not properly before the Court. “Outside of the
context of immunity, appellate courts only have jurisdiction to review grants of
summary judgment; a denial of summary judgment is in most cases unreviewable
until a final judgment is rendered at the trial court.” Erie Ins. Exch. v. Johnson,
647 S.W.3d 198, 202 (Ky. 2022). We thus cannot review the court’s denial of
summary judgment. Our review will therefore be limited to the trial court’s
dismissal of both the direct appeal of the Board’s decision and the declaratory
judgment claim.
2. Standing and Jurisdiction – Affirmative Defenses.
The trial court dismissed KFF’s claims due to lack of standing.
Before we address the substance of this issue, we must first address the timeliness
of its assertion. KFF maintains that the Board belatedly raised the issue of
standing in its motion for summary judgment. And, if that were in fact the case,
KFF would prevail on this issue.
-7-In Harrison v. Leach, the Supreme Court adopted the “use-it-or-loseit” approach to standing. Harrison v. Leach, 323 S.W.3d 702, 708 (Ky. 2010) (the
defendant did not raise the issue of standing before the trial court and thus the
defense was waived). The Supreme Court further expounded on this concept in its
affirmation of this Court’s decision in Corner v. Popplewell, wherein it held that
defendants must raise the defense of standing in their initial answer.
[U]nless defendants in the future can make a colorable
showing of why it is unjust or unworkable to raise
statutory standing in their initial answer, our adoption of
this rule will lead to a prompt disposition of cases so that
the parties with proper standing can be determined and
do so without the appearance of gamesmanship which so
often tarnishes the reputation of our profession.
Corner v. Popplewell, 701 S.W.3d 519, 522 (Ky. 2024).
However, KFF’s claim that the Board raised standing as a defense for
the first time in its motion for summary judgment is unfounded. The third defense
listed in the Board’s answer states, “[KFF’s] Complaint should be dismissed as
[KFF] has not suffered any cognizable injury or suffered any damages to support
standing or jurisdiction.” Thus, KFF’s argument that the Board’s assertion that
KFF lacked standing was not timely, is without merit and exposes either an intent
to deceive the Court or the failure of counsel to read the Board’s answer.
It is most concerning to the Court that KFF again misstates the record
when alleging in its reply that the Board never raised particular-case jurisdiction as
-8-a defense, thereby waiving it. We agree that particular-case jurisdiction, unlike
subject-matter jurisdiction, can be waived if not asserted in a timely manner. See
Goodlett v. Brittain, 544 S.W.3d 656, 660 (Ky. App. 2018). As noted above
however, the Board included jurisdiction as its third defense in its answer. We
caution counsel to read the record more carefully when making arguments to this
Court.
Ultimately, whether KFF had standing to bring the action is not
dispositive of the case. And the issues of both standing and jurisdiction will be
more thoroughly discussed below.
3. Strict Statutory Compliance, Standing, and Jurisdiction.
The trial court granted the Bakery’s motion to dismiss the declaratory
action specifically on the grounds that KFF lacked standing to bring the claim. As
noted by both parties, the Supreme Court tackled this same question in an almost
identical case, Kenton County Board of Adjustment v. Meitzen, 607 S.W.3d 586
(Ky. 2020).
In Meitzen, property owners Jessica Swope and Aimee Glover were
granted approval to open a nursery school in a residential zone. Adjoining
property owners, Ian Meitzen and Donald Nageleisen, initiated an administrative
appeal pursuant to KRS 100.347(1) just as KFF did in the case sub judice.
Any person or entity claiming to be injured or aggrieved
by any final action of the board of adjustment and that
-9-owns real property within the same zone where the
property that is the subject of the final action is located
shall appeal from the action to the Circuit Court of the
county in which the property that is the subject of the
action of the board of adjustment lies.
KRS 100.347(1).
In their complaint, Meitzen and Nageleisen claimed the zoning board
should not have granted approval because the location was dangerous for both the
children and the general public and that the action of granting the request did not
meet certain statutory requirements. Meitzen, 607 S.W.3d at 590. The trial court,
concluding it lacked jurisdiction, dismissed the appeal finding the appellants failed
to allege in their complaint that they were injured or aggrieved by the final action
of the board. Id. The Supreme Court agreed with the trial court and went on to
provide a tutorial on the topics of strict statutory compliance, standing, and
jurisdiction.
The Court first noted, “[w]e must emphasize yet again, ‘an appeal
from an administrative decision is a matter of legislative grace and not a right.’
When the grace to appeal a decision of [an administrative agency] to a circuit court
is granted by statute, strict compliance with the statute’s terms is required.” Id. at
595 (citations omitted). The Court expounded that the trial court’s dismissal was
justified because Meitzen and Nageleisen failed to strictly comply with KRS
-10-100.347(1) because they did not claim to be injured or aggrieved in some way by
the board’s action of granting the zoning permit. Id.
However, the Court’s analysis did not end there. Rather, the Court
provided a detailed overview of the concept of statutory standing in relation to a
court’s jurisdiction.
Standing and jurisdiction are two distinct concepts,
and the distinction is particularly important in this case.
“‘Standing,’ of course, in its most basic sense, refers to
an integral component of the ‘justiciable cause’
requirement underlying a trial court’s jurisdiction. To
invoke the court’s jurisdiction, the plaintiff must allege
an injury caused by the defendant of a sort the court is
able to redress.” Lawson v. Office of Atty. Gen., 415
S.W.3d 59, 67 (Ky. 2013) (citing Ky. Const. § 112; Rose
v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989)).
More specifically in this case,
“Statutory standing” refers to whether a statute
creating a private right of action authorizes a
particular plaintiff to avail herself of that right of
action. Statutory standing is simply statutory
interpretation: the question it asks is whether [the
legislature] has accorded this injured plaintiff the
right to sue the defendant to redress his injury.
Lexington-Fayette Urban Cty. Human Rights Comm’n v.
Hands on Originals, 592 S.W.3d 291, 296 (Ky. 2019).
Jurisdiction, on the other hand, “. . . is the power of
the court to decide an issue in controversy. The courts’
power to inquire into facts, apply the law, make
decisions, and declare judgment between parties is both
constrained by and a function of their jurisdiction.”
Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007)
(citing Black’s Law Dictionary 867 (8th ed. 2004)). “It is
-11-fundamental that a court must have jurisdiction before it
has authority to decide a case. Jurisdiction is the
ubiquitous procedural threshold through which all cases
and controversies must pass prior to having their
substance examined.” Wilson v. Russell, 162 S.W.3d 911,
913 (Ky. 2005).
Id. at 597.
In applying the concepts of strict statutory compliance, standing, and
jurisdiction to Meitzen’s and Nageleisen’s claims, it affirmed the trial court’s
decision dismissing the action.
Simply put, in order to have statutory standing,
Meitzen and Nageleisen must be “injured or aggrieved”
by a final action of the Board, but in order for the circuit
court to have jurisdiction, Meitzen and Nageleisen must
also strictly comply with KRS 100.347(1). Because
Meitzen and Nageleisen did not comply with one of the
conditions precedent, i.e. claiming that they were injured
or aggrieved by the Board’s action, the circuit court was
required to dismiss the action.
Id. at 598.
Notably, the Supreme Court in Meitzen never specified which type of
jurisdiction was at the heart of their decision. And, “[t]here are actually three
separate types of jurisdiction, all of which must be met before a court may hear a
case. See [Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997)]; Covington Trust
Co. of Covington v. Owens, 278 Ky. 695, 129 S.W.2d 186, 190 (1939).” Nordike,
231 S.W.3d at 737. The three types of jurisdiction include: 1) personal
jurisdiction; 2) subject-matter jurisdiction; and, 3) particular-case jurisdiction.
-12-Personal jurisdiction hinges on the court’s ability to compel a person to appear
before it. Id. Subject-matter jurisdiction concerns the court’s power to hear and
rule on a specific type or class of controversy. Id. And lastly, particular-case
jurisdiction refers to the court’s authority to decide a specific case based on its
facts. Id. at 738.
In a recent Supreme Court decision, Louisville Historical League, Inc.
v. Louisville/Jefferson County Metro Government, 709 S.W.3d 213 (Ky. 2025), the
Court made it clear that compliance with statutory requirements as promulgated in
KRS 100.347(1) will always be an issue of particular-case jurisdiction. Id. at 227.
In other words, in the case sub judice, the trial court has the jurisdiction to hear
cases brought by “aggrieved or injured” plaintiffs. However, in order to meet
particular-case jurisdiction, a plaintiff must specify how it is injured or aggrieved.
In the case sub judice, KFF claimed to have been injured first by the
“bureaucratic approval” of the zoning permit and, second, when it was forced to
appear before an “unlawfully constituted government agency.” KFF filed suit
under two different legal theories, a direct appeal of the Board’s decision per KRS
100.347(1) and, in a collateral attack against the Board, its declaratory judgment
claim.
-13-a. Direct Appeal.
The trial court granted the Board’s motion to dismiss KFF’s direct
appeal of the Board’s affirmation of the zoning permit pursuant to CR 12.02(f).
Specifically, the trial court decided KFF lacked standing to bring the appeal. “[A]
motion to dismiss for failure to state a claim upon which relief may be granted is a
pure question of law, a reviewing court owes no deference to a trial court’s
determination; instead, an appellate court reviews the issue de novo.” Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010).
KFF alleges many grounds upon which it has been aggrieved by the
Board’s decision to uphold the granting of the Bakery’s zoning permit, some of
which are: 1) the Board failed to make substantial findings to support its decision;
2) the Board lacked jurisdiction to hear the appeal; 3) the zoning permit was not
approved within seven days as required by the zoning code; and, 4) the shed is
unsafe. The trial court, citing to Meitzen, subsequently found “[KFF] has not
demonstrated or even speculated any cognizable interest of which it has been
deprived . . . a minimum threshold to establish constitutional standing.” KFF
argues the trial court must be reversed because Meitzen’s holding relies on the
prerequisite of jurisdiction, not standing.
As outlined above, the Supreme Court in Meitzen expends great effort
to explain the interaction of strict statutory compliance, standing, and jurisdiction.
-14-And, as the Supreme Court opined, these concepts are thresholds a plaintiff must
cross to bring a justiciable claim, the first of which is jurisdiction.
It is fundamental that a court must have
jurisdiction before it has authority to decide a case.
Jurisdiction is the ubiquitous procedural threshold
through which all cases and controversies must pass prior
to having their substance examined.
Wilson, 162 S.W.3d at 913. And, while KFF is correct that the trial court bypassed
the issue of jurisdiction making its decision based on KFF’s lack of standing, that
fact is not a basis for reversal of the trial court.
[A]n appellate court may affirm a lower court’s decision
on other grounds as long as the lower court reached the
correct result. See e.g. McCloud v. Commonwealth, 286
S.W.3d 780, 786 n.19 (Ky. 2009) (“[I]t is well-settled
that an appellate court may affirm a lower court for any
reason supported by the record.”) (citing Kentucky Farm
Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky.
App. 1991)); see Fischer v. Fischer, 197 S.W.3d 98, 102-03 (Ky. 2006) (“Appellee’s failure to raise the issue in
the Court of Appeals does not prevent Appellant from
presenting it here as he had no duty to present it to the
Court of Appeals since he defended the trial court
decision and it had to be affirmed if it was sustainable on
any basis.”) (citing Commonwealth Transp. Cabinet
Dept. of Highways v. Taub, 766 S.W.2d 49 (Ky. 1988));
Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543,
549 n.11 (Ky. 2008).
Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky. 2009).
As in Meitzen, KFF’s enumerated grievances in its appeal amount to a
mere disagreement with the Board’s decision. Nowhere in its pleadings or briefs
-15-does KFF identify any damages it incurred as a result of the Board’s actions. In
fact, KFF conceded that the shed rested solely on the Bakery’s property. Without
allegations it had been “injured or aggrieved” by the action of the Board, the trial
court had no particular-case jurisdiction to hear the appeal. Like Meitzen and
Nageleisen, KFF must have been “injured or aggrieved” by a final action of the
Board to have statutory standing, but in order for the trial court to have
jurisdiction, KFF must also strictly comply with KRS 100.347(1). Because KFF
did not comply with the condition precedent, the trial court was required to dismiss
the action making any other arguments in KFF’s direct appeal moot.
b. Declaratory Judgment.
In addition to the direct appeal of the Board’s decision, KFF asserted
a declaratory judgment action challenging the jurisdiction of the Board due to its
members’ failure to complete required training/continuing education. KFF
claimed this failure rendered their decision as to the zoning permit arbitrary and
filed a motion for summary judgment. In response, the Board argued KFF lacked
standing to sue due to its lack of specified injury. KFF countered, “the [B]oard
argues a citizen or corporate entity affected by administrative agency action cannot
collaterally attack it’s [sic] jurisdiction and authority . . . . [A]s a corporate entity
owning property and operating a business adjacent to the property at issue, . . .
[KFF has] standing to bring this action.” However, the trial court found that KFF
-16-was not a party to the original action (the request for a zoning permit by the
Bakery) and, thus, no adverse action was taken against KFF. Summary judgment
was denied, and the declaratory judgment was dismissed due to KFF’s lack of
standing to bring the action. KFF appealed.
“Whether Appellants have standing is a jurisdictional question of law
that is reviewed de novo.” Ward v. Westerfield, 653 S.W.3d 48, 51 (Ky. 2022)
(citation omitted).
KRS 418.045 provides that any person “whose rights are affected by
statute, municipal ordinance, or other government regulation . . . may apply for and
secure a declaration of his right or duties, even though no consequential or other
relief be asked.” However, a prerequisite condition to the justiciability of any
claim is standing. Commonwealth Cabinet for Health & Fam. Servs., Dep’t for
Medicaid Servs. v. Sexton by & through Appalachian Reg’l Healthcare, Inc., 566
S.W.3d 185, 194-95 (Ky. 2018). KFF maintains there are two types of standing –
constitutional and statutory – and that their claims satisfy both. We disagree.
The Supreme Court in Sexton provided an overview of the differences
between statutory and constitutional standing invoking the reasoning of the federal
courts.
To clarify the differences among the standing concepts,
we find helpful this explanation offered by the U.S. Court
of Appeals for the Third Circuit:
-17-Though all are termed “standing,” the
differences between statutory, constitutional,
and prudential standing are important.
Constitutional and prudential standing are
about, respectively, the constitutional power
of a . . . court to resolve a dispute and the
wisdom of so doing. Statutory standing is
simply statutory interpretation: the question
it asks is whether [the legislature] has
accorded this injured plaintiff the right to
sue the defendant to redress his injury.
Put differently, “The question whether a plaintiff can sue
for violations of [a statute] is a matter of statutory
standing, ‘which is perhaps best understood as not even
standing at all.’ . . . Dismissal for lack of statutory
standing is properly viewed as dismissal . . . for failure to
state a claim [upon which relief may be granted].”
Id. at 191.
As outlined above, KFF does not have statutory standing to bring their
claim, and we decline to engage in further analysis of the issue.
As to the existence of constitutional standing, KFF specifically argues
it was injured by being compelled to appear before a board whose members failed
to comply with KRS 100.3466 requiring members to complete training “on the
impact of planning and zoning policies and procedures on housing supply and
accessibility.” KFF theorizes that such failure on the part of some Board members
6
KFF cites to KRS 147A.027 for this proposition. However, effective June 27, 2025, KRS 147A.027 was renumbered as KRS 100.346 – “Orientation and continuing education training for planning and zoning officials and staff.” We will refer to the updated numerology.
-18-renders the Board an “unlawfully constituted government agency.” As supporting
authority, KFF cites Cameron v. EMW Women’s Surgical Center, P.S.C., 664
S.W.3d 633 (Ky. 2023). However, Cameron litigates the question of when a
plaintiff can have third-party standing to assert the constitutional rights of another.
Id. at 650.
In Cameron, abortion providers sued for declaratory relief from
legislation which effectively prohibited abortions in Kentucky with limited
exceptions. Id. at 640. As the Court noted,
The U.S. Supreme Court has identified five major
justiciability doctrines to ensure that only cases and
controversies are considered by the federal judiciary.
Those doctrines are: the prohibition against rendering
advisory opinions, ripeness, mootness, the political
question doctrine, and – most significant for our purposes
– standing. “As an aspect of justiciability, the standing
question is whether the plaintiff has alleged such a
personal stake in the outcome of the controversy as to
warrant his invocation of [a court’s] jurisdiction and to
justify exercise of the court’s remedial powers on his
behalf.” Indeed, this Court considers standing to be such
a fundamental requirement that we have previously
directed that “all Kentucky courts have the constitutional
duty to ascertain the issue of constitutional standing,
acting on their own motion, to ensure that only justiciable
causes proceed in court[.]”
Id. at 647 (footnotes omitted).
There exist only limited exceptions to the prohibition against asserting
a constitutional right on behalf of a third party.
-19-[I]n Kentucky, for a litigant to have third-party standing
to assert the constitutional rights of another in order to
obtain relief for himself or herself, the litigant must
demonstrate: (1) an injury in fact that gives the litigant a
sufficiently concrete interest in the outcome of the
dispute; (2) a close relationship between the litigant and
the non-party individual or individuals whose rights the
litigant seeks to assert; and (3) that there exists a genuine
obstacle or hindrance to the possessor of the right’s
ability to assert his or her own interest.
Id. at 650-51.
It is uncontroverted that KFF has no injury of its own. Instead it
invokes the general injury as a citizen of Boone County. However, this argument
fails as well.
In Ward v. Westerfield, the Supreme Court considered an appeal to a
ballot initiative that was attempting to amend the Kentucky Constitution to include
enumerated victim’s rights. 653 S.W.3d 48. Similar to the case at bar, the
plaintiffs in Ward alleged they, as taxpayers and voters, faced injury.
To have constitutional standing, a “plaintiff must
have suffered an injury in fact – an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural
or hypothetical.” The party invoking jurisdiction bears
the burden of establishing the elements of standing.
Id. at 51 (citations omitted). The Court ultimately decided that their analysis
turned on the question of whether “these Appellants” had standing based on the
specific record before them.
-20-Our analysis in this case is limited to whether these
Appellants have standing as citizens and voters on this
record. Ultimately, Appellants lack standing as citizens
and voters because they have not demonstrated a
concrete and particularized injury that is not shared with
all Kentucky citizens and voters.
Id. at 55. “[T]he allegation of a concrete and particularized injury is a
constitutional prerequisite to prosecution of any action in the courts of this
Commonwealth.” Id. at 53.
KFF maintains that, because some Board members failed to complete
statutorily required education, they have been aggrieved by the Board’s decision to
uphold the zoning decision for the Bakery. However, as outlined above, KFF
cannot show they have an interest in the right asserted that differs from that of the
general public. Put another way, KFF suffers an injury, if at all, that all Boone
County residents suffer – a Board who is delinquent in obtaining the education the
General Assembly deems necessary. Thus, the trial court was correct in its
dismissal of KFF’s declaratory judgment action for lack of standing.
We view any remaining contentions of errors as moot or without
merit.
CONCLUSION
For the foregoing reasons, we affirm the Boone Circuit Court’s order
dismissing KFF’s claims.
-21-ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES CITY OF
WALTON BOARD OF
Steven J. Megerle ADJUSTMENT AND ITS
Covington, Kentucky MEMBERS, BARB FARROW,
CAITLYN FUGATE, DAVID
HINCKS, EDWARD SEDOR, AND
STEVEN TURNER:
Jack S. Gatlin
Covington, Kentucky
-22-