Kentucky Adopts the Livingston “Substantial Burden” Framework for RLUIPA Land‑Use Claims: Commentary on Missionaries of Saint John the Baptist, Inc. v. Frederic

Kentucky Adopts the Livingston “Substantial Burden” Framework for RLUIPA Land‑Use Claims

Commentary on Missionaries of Saint John the Baptist, Inc. v. Frederic, Supreme Court of Kentucky (Dec. 18, 2025)

I. Introduction

In Missionaries of Saint John the Baptist, Inc. v. Frederic, the Supreme Court of Kentucky addressed, for the first time, the application of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) to a local zoning dispute. The case arose from a Catholic community’s attempt to build a Marian grotto adjacent to an existing church in the City of Park Hills, Kentucky, and neighboring residents’ challenge to the zoning approvals that were granted.

The decision is doctrinally significant in two primary respects:

  • It formally adopts, “henceforth,” the Sixth Circuit’s Livingston Christian Schools v. Genoa Charter Township framework for defining “substantial burden” in RLUIPA land-use cases; and
  • It clarifies that an equal-terms challenge under RLUIPA fails where the zoning ordinance does not textually treat religious assemblies less favorably than comparable secular assemblies.

Procedurally, the Court also confirmed that a RLUIPA defense, though not pleaded in the answer, was nevertheless properly before the courts under Kentucky’s Civil Rule 15.02, because it was effectively “tried by implied consent” at the summary judgment stage.

The Court ultimately affirmed the Court of Appeals’ conclusion that RLUIPA was not violated, though on different grounds, and left standing (unchallenged on discretionary review) the Court of Appeals’ separate holding that the local Board of Adjustment exceeded its statutory authority in granting the conditional use permit and variances.

II. Factual and Procedural Background

A. The Property and the Proposed Grotto

The appellant, Missionaries of Saint John the Baptist, Inc. (“St. John”), is a Catholic religious organization that owns property in Park Hills, Kentucky, on which sits the church building known as Our Lady of Lourdes. The church building dates from 1930, predating the city’s current zoning ordinance, and functions as a nonconforming use in a single- and two‑family residential zone.

St. John entered into a perpetual lease with the Sheila Burke Trust (“Burke Trust”) for an adjacent parcel on Alhambra Court. The mutual intent behind the lease was to construct an outdoor Marian grotto consisting of:

  • a shrine to the Virgin Mary;
  • a plaza;
  • a walking path; and
  • a retaining wall.

The grotto footprint was approximately 16 feet by 39 feet, to be built into a small hill next to the church’s existing parking lot. The church property fronts Amsterdam Road, classified in the city code as a “collector street,” not an “arterial street.”

B. The Zoning Framework

The church is located in a residential zone where churches are not “permitted uses” but may be allowed as “conditional uses.” Section 10.4(C) of the Park Hills zoning ordinance provides, in relevant part, that:

  • “Churches and other buildings for the purpose of religious worship” are conditional uses, but only “provided they are located adjacent to an arterial street.”
  • Numerous other institutional uses—including institutions of higher education, hospitals, convalescent homes, nursing homes, police and fire stations—are also conditional uses that must be “located adjacent to an arterial street.”

The ordinance also incorporates state law constraints on nonconforming uses and variances:

  • KRS 100.253 and the local analogue (Section 19.6(D)(3)): A nonconforming use may continue but may not be “enlarged or extended… beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted.”
  • KRS 100.243: Variances may be granted only under specified conditions (no adverse effect on public health, safety, welfare; no change to essential character of the area; no unreasonable circumvention of zoning requirements).

C. Proceedings Before the Park Hills Board of Adjustment

In March 2021, architect Justin (Jordan) Odor submitted a letter on behalf of St. John and the Burke Trust to the Park Hills Board of Adjustment (“Board”), requesting:

  • a conditional use permit for a “customary accessory structure” (the grotto) associated with the church; and
  • rear and side yard setback variances for that accessory use.

Odor explicitly acknowledged in the application letter that:

  • the church itself was already a conditional use; and
  • “the creation of any type of accessory space to the existing church is not directly permitted by the current local zoning ordinance” because churches must be adjacent to an arterial street to qualify for a conditional use permit.

Planning and Development Services of Kenton County (“PDS”) produced a staff report recommending denial of the application:

  • PDS concluded that the project satisfied Section 9.13(A)(1) and (2)—benefit to the community and no detriment to health, safety, or welfare;
  • but it could not find compliance with Section 9.13(A)(3), because churches in this zone must be located on an arterial street, and Amsterdam Road is only a collector street.

At the public hearing on April 15, 2021:

  • PDS’s planner, Chris Schneider, presented the staff recommendation to deny;
  • Father Sean Kopczynski spoke in favor on behalf of St. John;
  • neighbors spoke for and against the project; principal objections concerned traffic and parking impacts on the residential street network.

The Board nevertheless voted 4–1 to:

  • grant the conditional use permit for an accessory structure associated with a church; and
  • grant the requested variances, subject to the condition that the portion of 917 Alhambra Court containing the grotto be deeded to 1101 Amsterdam Road (the church parcel) within six months.

The Board issued brief, largely boilerplate findings parroting the Section 9.13(A) criteria and KRS 100.243 variance standards, concluding that the proposed use was desirable, non-injurious to neighbors, and compliant with regulations.

D. Litigation in Kenton Circuit Court

Joel and Elizabeth Frederic, who live directly across from the church, filed a two-count complaint in Kenton Circuit Court:

  1. Statutory zoning appeal (KRS 100.347)
    They alleged the Board:
    • violated the zoning ordinance by approving a conditional use when the church was not on an arterial street;
    • lacked authority under KRS 100.247 to grant variances for a use not permitted in the zone;
    • violated KRS 100.253 and the local analogue by allowing expansion of a nonconforming use (the church) onto the Burke parcel.
  2. Declaratory and injunctive relief
    They sought declarations of illegality and an injunction to prevent construction of the grotto.

The defendants (St. John, the Burke Trust, the trustee, Odor, and the Board) filed a joint answer. Notably:

  • They did not plead RLUIPA as an affirmative defense at that stage.

About nine months later, the Frederics moved for summary judgment, reiterating their statutory arguments. The defendants cross‑moved for summary judgment and radically shifted tactics:

  • They argued that, because the church predated the zoning code and (they claimed) Amsterdam Road had once been considered an “arterial,” the church was “grandfathered” and exempt from current restrictions. No supporting evidence or governing authority was supplied for this theory.
  • For the first time, they invoked RLUIPA, contending that preventing construction of the grotto lacked a compelling justification and exceeded the “scope” of permissible governmental regulation.

The Frederics did not object that RLUIPA had been waived by failing to plead it as an affirmative defense. Instead, they responded on the merits, arguing:

  • the arterial-street requirement was a reasonable traffic-management measure;
  • the church was a nonconforming use that could be continued but not expanded; and
  • enforcement of the ordinance did not violate RLUIPA.

The circuit court granted summary judgment to the defendants. Applying American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450 (Ky. 1964), it concluded the Board had not acted arbitrarily because:

  • the church was “grandfathered in” and accessory structures and variances “are to be considered accordingly,” relying—incorrectly and somewhat opaquely—on Wells v. Fiscal Court of Jefferson County, 457 S.W.2d 498 (Ky. 1970);
  • procedural due process was satisfied by the public hearing; and
  • substantial evidence supported the Board’s decision.

The circuit court did not address RLUIPA at all.

E. Court of Appeals: Board Exceeded Statutory Authority; No RLUIPA Violation

On appeal, the Court of Appeals unanimously reversed:

  • It held that the Board acted arbitrarily because it exceeded its statutory authority by effectively enlarging a nonconforming use in violation of KRS 100.253 and the local ordinance (Section 19.6(D)(3)). Building the grotto on the Burke Trust property was deemed a prohibited expansion beyond the “scope and area” of the church’s preexisting use.
  • It therefore set aside the conditional use permit and the variances.

Turning to RLUIPA, the Court of Appeals:

  • did not treat RLUIPA as waived; the Frederics had litigated it on the merits without objecting to preservation; and
  • relied on federal district court authority—particularly Episcopal Student Foundation v. City of Ann Arbor, 341 F. Supp. 2d 691 (E.D. Mich. 2004)—to hold that only regulations that are “inherently inconsistent” with religious beliefs (or that coerce violation of belief) amount to a “substantial burden.”

The panel concluded that Park Hills’ ordinance merely made religious practice “somewhat more difficult” but did not coerce anyone to violate beliefs or prevent religious exercise altogether, and therefore no substantial burden under RLUIPA existed.

F. Supreme Court Review

St. John sought discretionary review in the Supreme Court of Kentucky, but only as to the RLUIPA issues. It did not challenge the Court of Appeals’ conclusion that the Board exceeded its statutory authority under Kentucky zoning law.

The Supreme Court:

  • affirmed that no violation of RLUIPA occurred (on a different rationale from the Court of Appeals);
  • expressly left undisturbed (and therefore binding) the Court of Appeals’ judgment that the Board had exceeded its authority; and
  • vacated the Board’s grant of the conditional use permit and variances.

Justice Thompson dissented in part, agreeing there was no RLUIPA violation but sharply criticizing the majority’s inclusion of the Court of Appeals’ nonconforming-use reasoning, which he feared could be misread as endorsing an overly restrictive view of what constitutes an expansion of a nonconforming use and as unduly constraining local boards’ discretion.

III. Summary of the Supreme Court’s Opinion

  1. Preservation / Procedural Posture
    Although St. John failed to plead RLUIPA as an affirmative defense in its answer, the Court held that the RLUIPA defense was properly before the courts under CR 15.02. Because the Frederics did not object when RLUIPA was raised at summary judgment and instead argued it on the merits, the issue was “tried by the implied consent of the parties.”
  2. Scope of Review
    The Court treated the Court of Appeals’ holding—that the Board lacked authority to grant the permit and variances—as uncontested and final, because St. John did not challenge that aspect of the decision in its motion for discretionary review. The Supreme Court therefore confined its analysis to RLUIPA.
  3. RLUIPA “Substantial Burden” Provision (42 U.S.C. § 2000cc(a))
    The Court:
    • recognized that construction of a Marian grotto is an exercise of religion under RLUIPA, even if not “compelled” by doctrine;
    • held that a claimant bears the initial burden to show a “substantial burden” on religious exercise; only then does strict scrutiny (compelling interest / least restrictive means) apply;
    • expressly adopted the Sixth Circuit’s framework in Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017), as Kentucky’s standard for determining when a land-use regulation imposes a “substantial burden” under RLUIPA.
    Applying Livingston, the Court concluded that denying the grotto did not impose a substantial burden on St. John’s religious exercise.
  4. RLUIPA Equal-Terms Provision (42 U.S.C. § 2000cc(b))
    The Court rejected St. John’s claim that the ordinance treated religious uses worse than secular uses by requiring churches, but not other assemblies, to be on arterial streets. A careful reading of Section 10.4(C) showed that multiple secular institutional uses are subject to the same arterial-street requirement, and that some religious uses (parochial schools) are not. Therefore, there was no facial “less-than-equal-terms” treatment.
  5. Outcome
    The Court:
    • affirmed the Court of Appeals’ “no RLUIPA violation” conclusion, but on the basis of Livingston rather than Episcopal Student Foundation’s “inherently inconsistent with beliefs” approach;
    • expressly designated Livingston and its progeny as the controlling standard in Kentucky RLUIPA land-use cases going forward; and
    • vacated the Board’s grant of the conditional use permit and variances for the grotto.

IV. Detailed Legal Analysis

A. Preservation and Implied Consent Under CR 15.02

Under Kentucky Rule of Civil Procedure 8.03, affirmative defenses—including statutory defenses such as RLUIPA—must generally be pleaded in the answer. St. John did not do this. It introduced RLUIPA only in its motion for summary judgment.

Ordinarily, failure to plead an affirmative defense can result in waiver. However, CR 15.02 provides a powerful safety valve:

“When 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.”

The Court relied on several precedents:

  • Kroger Co. v. Jones, 125 S.W.3d 241 (Ky. 2004) – Emphasizes that CR 15.02 is a tool to resolve cases on their merits rather than through procedural “gamesmanship.”
  • Nucor Corp. v. General Electric Co., 812 S.W.2d 136 (Ky. 1991) – Clarifies that implied consent turns on whether the opposing party is actually prejudiced in its ability to present its case, not on whether it ultimately wins or loses.
  • Bowling Green–Warren County Airport Board v. Long, 364 S.W.2d 167 (Ky. 1962) – Confirms that CR 15.02 can be invoked even at the appellate stage.

Applying those principles, the Court held:

  • The Frederics’ failure to object when RLUIPA was first raised, and their choice to engage the issue on the merits in the circuit court and Court of Appeals, constituted implied consent.
  • The case had been fully briefed on RLUIPA with no prejudice to the Frederics’ ability to present their arguments.
  • Though there was no trial in the conventional sense, resolution by summary judgment is functionally comparable for CR 15.02 purposes; similar reasoning has been applied in administrative contexts (e.g., workers’ compensation) where there are hearings but not traditional trials.

Practical effect: litigants in Kentucky must object promptly when a new defense—such as RLUIPA—is raised late. Failure to do so risks the court treating the issue as “tried by consent,” eliminating the preservation objection on appeal.

B. The RLUIPA Framework and Federal Context

RLUIPA was enacted in 2000 after the U.S. Supreme Court held, in City of Boerne v. Flores, 521 U.S. 507 (1997), that Congress lacked authority under the Fourteenth Amendment to apply the Religious Freedom Restoration Act (RFRA) to the states. RFRA still governs the federal government, but no longer binds state and local governments directly.

To fill that gap, Congress used its Spending and Commerce Clause powers to enact RLUIPA, which:

  • applies to states and localities in narrow contexts, including land use regulations and the religious rights of institutionalized persons; and
  • requires strict scrutiny where a “land use regulation” (defined broadly to include zoning and landmarking laws and their application) imposes a “substantial burden” on “religious exercise.”

Relevant statutory provisions include:

  • 42 U.S.C. § 2000cc(a) – “Substantial burdens”
    Prohibits imposing or implementing a land-use regulation that imposes a substantial burden on religious exercise, unless:
    • it furthers a compelling governmental interest; and
    • is the least restrictive means of doing so.
    The subsection applies where the regime involves “individualized assessments” of proposed land uses—such as discretionary conditional use permitting, which is plainly the case here.
  • 42 U.S.C. § 2000cc(b) – “Equal terms” and related provisions
    Provides that a government may not implement land-use regulations in a manner that:
    • treats a religious assembly on “less than equal terms” with a nonreligious assembly; or
    • discriminates against religious institutions based on religion or denomination (not directly at issue in this case).
  • 42 U.S.C. § 2000cc-5(7) – Religious exercise defined
    Defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” This is deliberately broad and rejects any judicial inquiry into theological centrality.
  • 42 U.S.C. § 2000cc-2(b) – Burden of proof
    Initially places on the plaintiff the burden of proving that the government practice “substantially burdens” religious exercise. Only if that showing is made does the burden shift to the government to justify the action under strict scrutiny.

Kentucky has its own Religious Freedom Restoration Act (KRFRA), KRS 446.350, which:

  • applies to all “government” (state and local);
  • forbids substantial burdens on religious freedom absent a compelling interest advanced by the least restrictive means; and
  • uses the term “substantially burden” but has not yet been construed by the Kentucky Supreme Court.

Although KRFRA could have been invoked in this dispute, St. John did not raise KRFRA or any constitutional (state or federal) free exercise claims. The Court accordingly confined itself to RLUIPA and explicitly noted that it was not defining “substantial burden” under KRFRA, though its RLUIPA analysis will undoubtedly be persuasive in future KRFRA cases.

C. Substantial Burden Analysis: Adoption and Application of Livingston

1. Why the Court Rejected the Court of Appeals’ Approach

The Court of Appeals relied on Episcopal Student Foundation v. City of Ann Arbor, which framed “substantial burden” in terms of:

  • regulations that either force adherents to violate their beliefs under threat of sanctions or loss of significant benefits; or
  • regulations that are “inherently inconsistent” with religious beliefs.

The Kentucky Supreme Court signaled that this approach was not the best fit for land-use disputes. It instead turned to the Sixth Circuit’s more developed RLUIPA jurisprudence, particularly two cases:

  • Living Water Church of God v. Charter Township of Meridian, 258 F. App’x 729 (6th Cir. 2007) – An unpublished decision that articulated a two-pronged question:
    “[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?”
    Judge Moore’s concurrence criticized the “effective-bar” prong as so broad that it would essentially equate any denial of a proposed religious use with a substantial burden.
  • Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017) – A published decision that revisited and refined the approach to “substantial burden” in the land-use context.

2. The Livingston Factors

In Livingston, the Sixth Circuit sought to define “substantial burden” in a way that:

  • imposed a meaningful threshold (so that not every zoning setback would trigger strict scrutiny); but
  • still protected religious institutions from genuinely onerous interference.

Adopting reasoning from other circuits (Second, Fourth, Seventh, Ninth, and Eleventh), Livingston identified several non-exclusive factors:

  1. Feasible alternative locations or methods
    Whether the religious institution has alternative locations or ways to carry out its religious mission.
  2. Delay, uncertainty, and expense
    Whether the government’s actions impose substantial delay, uncertainty, and expense in pursuing religious use.
  3. Self-imposed burdens
    Whether the claimant effectively imposed the burden on itself—e.g., by purchasing land with clear zoning restrictions that make the proposed religious use highly unlikely.
  4. Arbitrariness or discrimination
    Whether the government’s decision-making was arbitrary, capricious, or discriminatory.

The Kentucky Supreme Court expressly endorsed these factors and the underlying principle that a substantial burden must have “some degree of severity.” Mere inconvenience, added cost, or frustration of preferences does not automatically constitute a substantial burden.

The Court approvingly cited:

  • International Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059 (9th Cir. 2011) – A substantial burden must impose a “significantly great restriction or onus” on religious exercise.
  • San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004) – Similar emphasis on significant hardship.
  • Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) – A burden must be “more than an inconvenience.”

3. Application to St. John’s Grotto

Applying Livingston to these facts, the Court focused primarily on the first three factors.

(a) Feasible Alternatives

The Court held that St. John had not shown that denial of the grotto on the Burke parcel foreclosed religious exercise or left it without viable alternatives:

  • St. John did not argue, much less prove, that it could not construct some form of shrine or smaller grotto on land it already owned (i.e., within the footprint of the existing parcel where the nonconforming use is already established).
  • Construing KRS 100.253, the Court noted that the statute prohibits only “enlargement or extension” beyond the preexisting area of operation—not all improvements on the existing parcel. A smaller shrine within the old boundaries might well be permissible.

The Court characterized the inability to build this particular grotto configuration on this particular adjacent parcel as, at most, an inconvenience rather than a severe restriction on religious exercise.

(b) Delay, Uncertainty, and Expense

St. John invoked the Sixth Circuit’s recent decision in Catholic Healthcare Int’l, Inc. v. Genoa Charter Township, 82 F.4th 442 (6th Cir. 2023), where a township:

  • treated a “stations of the cross” prayer trail as the equivalent of a church building;
  • forced Catholic Healthcare through multiple, expensive permitting rounds; and
  • ultimately ordered removal of religious displays.

In Catholic Healthcare, the Sixth Circuit found a likely substantial burden because:

  • after two years of administrative proceedings and considerable expense, Catholic Healthcare still could not restore its religious displays; and
  • nothing in the zoning ordinance would have led them to expect that a largely invisible prayer trail would be treated as a “church” requiring special land-use permissions.

By contrast, in St. John, the Kentucky Supreme Court emphasized:

  • St. John produced no concrete evidence of substantial expense directly attributable to government compulsion—only its own voluntary modification of the grotto design;
  • there was relatively little procedural delay tied to the zoning decisions, at least on the record presented; and
  • critically, unlike Catholic Healthcare, St. John had every reason to know, from the face of the zoning ordinance, that the proposed use was not permitted.

The Court noted that in 2021, St. John itself acknowledged in writing that “any type of accessory space to the existing church is not directly permitted by the current local zoning ordinance” due to the arterial-street requirement. This undermined any claim that the subsequent denial of the grotto was a “surprising” or unduly uncertain regulatory burden.

(c) Self-imposed Burden

The self-imposition factor, as articulated in Livingston and its cited authorities (e.g., Andon, LLC v. City of Newport News, 813 F.3d 510 (4th Cir. 2016); Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (7th Cir. 2007)), looks at whether:

  • the claimant acquired or developed property knowing that zoning made the desired religious use unlikely; or
  • the burdens complained of flow from the claimant’s own strategic choices rather than governmental action.

Here, the Court found that:

  • St. John knowingly entered a lease (and later accepted a deed) for the Burke parcel with the intent to expand a nonconforming church use, fully aware that the zoning ordinance disallowed church-related uses there because the site was not on an arterial street; and
  • its decision to pursue a conditional use permit and variances despite these known legal constraints made any adverse result at least partly self-imposed.

Accordingly, the second and third Livingston factors weighed against St. John: the delay and expense were not shown to be substantial in the RLUIPA sense, and the burden was largely self-created by taking on property that the zoning framework made doubtful for the desired use.

Conclusion on Substantial Burden

Having evaluated the Livingston factors, the Court concluded that denial of the permit for the grotto did not impose a “substantial burden” on St. John’s religious exercise. Because the threshold requirement of § 2000cc(a) was not satisfied, the Court did not reach the strict-scrutiny step (compelling interest/least restrictive means). The RLUIPA claim failed at the front end.

D. Equal-Terms Analysis Under 42 U.S.C. § 2000cc(b)

The “equal terms” provision provides:

“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.”

Importantly, this provision does not require a showing of “substantial burden” and is analytically separate from § 2000cc(a). In many federal cases, it has been used to attack ordinances that, for example, permit secular clubs or assembly halls in a zone but prohibit houses of worship.

St. John’s equal-terms theory was relatively narrow: it argued that Section 10.4(C) required churches to be adjacent to an arterial street while purportedly allowing secular assemblies—such as cemeteries, nursery schools, parks, playgrounds, golf courses, and country clubs—without that arterial requirement.

The Court rejected this as a misreading of the ordinance. Section 10.4(C) lists multiple categories of conditional uses. Some of them explicitly carry the arterial-street requirement:

  • Churches and other buildings for the purpose of religious worship;
  • Institutions for higher education;
  • Hospitals and similar medical-care institutions;
  • Police and fire stations.

Others do not mention arterials, including:

  • Cemeteries;
  • Nursery schools;
  • Public and parochial schools;
  • Public parks, playgrounds, libraries, and community recreation centers;
  • Private recreational uses such as golf courses and country clubs.

Two points were critical:

  1. Several nonreligious institutional uses (e.g., hospitals, higher-education institutions, police and fire stations) are subject to the same arterial-street condition as churches. Therefore, churches are not singled out for harsher treatment relative to all secular institutions.
  2. Parochial schools—undeniably religious institutions—are not subject to the arterial requirement, undermining any claim that the ordinance systematically disfavors religious entities as such.

Under these circumstances, the Court found no facial “less-than-equal-terms” treatment of religious assemblies compared with similarly situated secular assemblies. The equal-terms claim accordingly failed.

E. Relationship to Kentucky RFRA and Constitutional Claims

The Court briefly noted Kentucky’s Religious Freedom Restoration Act, KRS 446.350, which imposes strict scrutiny on any state or local law that “substantially burdens” religious freedom. While the statute is textually very similar to RFRA and functionally overlaps with RLUIPA in many respects, it is broader in scope because it is not limited to land-use and institutionalized-persons contexts.

However:

  • St. John did not plead or argue KRFRA; and
  • the Court declined to define “substantial burden” under KRFRA, explicitly reserving that question for a case where it is squarely presented.

Nonetheless, the Court’s adoption of the Livingston standard under RLUIPA will almost certainly influence future KRFRA litigation, given the shared “substantial burden” language and the Court’s desire to anchor its analysis in established federal precedent.

F. Zoning Context: Nonconforming Uses, Conditional Uses, and Variances

While the Supreme Court did not revisit the substance of the Court of Appeals’ zoning-law analysis, that analysis remains in effect and has practical consequences:

  • The church is a longstanding nonconforming use in a residential district (because it predates the zoning code and the change in Amsterdam Road’s classification).
  • KRS 100.253 and the matching local ordinance prohibit enlarging or extending a nonconforming use beyond its existing “scope and area” of operation.
  • The Court of Appeals concluded that building the grotto on the Burke parcel amounted to such an enlargement or extension and therefore was beyond the Board’s statutory power, rendering its permit and variances ultra vires.

The Supreme Court noted that St. John did not contest this in its petition for discretionary review; thus, that ruling stands.

The appropriate test for administrative arbitrariness remains American Beauty Homes:

  1. Did the administrative body act within its statutorily granted powers?
  2. Did it afford procedural due process?
  3. Is its decision supported by substantial evidence?

The Court of Appeals and the Supreme Court both accepted that due process was afforded and substantial evidence supported the Board’s factual findings. The dispositive issue was, and remains, the Board’s legal authority to approve an expansion of a nonconforming use.

G. The Dissent: Limits on “Enlargement” of Nonconforming Uses and Deference to Local Boards

Justice Thompson’s dissent is not about RLUIPA—he agreed with the majority that no RLUIPA violation occurred. His concern lies with the zoning-law consequences of the Court of Appeals’ reasoning and the majority’s extensive recitation of them.

He fears that, because Kentucky has relatively little precedent on nonconforming uses, the Court’s opinion may be misread as implicitly endorsing the Court of Appeals’ broad interpretation of “enlargement or extension” under KRS 100.253 and the local ordinance. In his view:

  • The proposed grotto is more akin to a modest patio or garden feature than to a structural expansion of the church building or its core operations.
  • There would be no excavation for a building, no expansion of interior worship space, and no significant change to the nature of the church’s operations.
  • As such, the grotto should not be treated as an “enlargement or extension” of a nonconforming use “beyond the scope and area of its operation” as that phrase is reasonably understood.

He rooted his reading in:

  • Board of Adjustments, Bourbon County v. Brown, 969 S.W.2d 214 (Ky. App. 1998) – Allowed enclosing a porch and adding a bathroom at a nonconforming auction house, and even increasing the frequency of auctions, without deeming it an impermissible enlargement under KRS 100.253(2).
  • A.L. Carrithers & Son v. City of Louisville, 63 S.W.2d 493 (Ky. 1933) – Held that “structural alterations” prohibited by a zoning rule are those that convert an old building into a “new or substantially different structure,” not modest enclosures or internal relocations that do not materially alter the building’s fundamental character or its impact on health, morals, or the general welfare.
  • Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) and Darlington v. Board of Councilmen, 140 S.W.2d 392 (Ky. 1940) – Recognize that nonconforming uses are vested property rights entitled to significant constitutional protection; they may be phased out cautiously, not extinguished through aggressive readings of zoning statutes.

Justice Thompson also emphasized:

  • The core political function of boards of adjustment: to grant variances and conditional use permits that make rigid zoning codes workable in particular local contexts.
  • Boards are accountable to local electorates and better positioned than appellate courts to balance competing neighborhood interests.
  • Statutory limits on boards’ powers should therefore be read conservatively, so as not to disable them from providing reasonable accommodations to longstanding landowners, including churches.

In his view, building a small grotto fell comfortably within the Board’s discretionary authority and did not unlawfully enlarge the church’s nonconforming use. He regarded contrary readings as “unreasonably broad” and cautioned against letting this dispute become a template for neighbors to litigate every minor church improvement.

V. Clarifying Key Legal Concepts

  • Conditional use – A land use not permitted “as of right” in a zoning district, but allowed if approved under specified conditions by a board of adjustment or similar body. Here, churches are conditional uses in the residential zone, subject to the arterial-street requirement.
  • Variance – A limited exception from the literal terms of the zoning ordinance (such as setbacks), granted where strict enforcement would cause “practical difficulties or unnecessary hardship” and specified statutory criteria are satisfied. Variances cannot authorize uses that are otherwise prohibited in the zone.
  • Nonconforming use – A use of land or structures that was lawful when established but later becomes inconsistent with new or amended zoning regulations. Such uses may generally continue, but statutes (like KRS 100.253) often prohibit enlargement or extension beyond their then-existing boundaries.
  • Arterial vs. collector vs. local streets – Functional categories in transportation planning:
    • Arterial street: carries major traffic flows through and within the community.
    • Collector street: collects and distributes traffic between local streets and arterial streets.
    • Local street: primarily provides direct access to abutting properties.
    Park Hills’ ordinance uses these classifications to keep high-traffic uses (such as churches, hospitals, and schools) on streets designed to carry more traffic.
  • Substantial burden (RLUIPA) – A land-use regulation imposes a “substantial burden” on religious exercise when it places a significantly great restriction or onus on the religious institution’s ability to act in accordance with its beliefs—more than mere inconvenience or higher costs. Under Livingston, courts consider alternative means, delay/expense, self-imposed burdens, and government arbitrariness.
  • Equal-terms (RLUIPA) – A government violates the equal-terms clause if it treats religious assemblies worse than comparable secular assemblies under land-use regulations. The focus is on comparators: are similarly situated secular uses allowed what religious uses are denied?
  • Implied consent under CR 15.02 – When a party introduces an unpleaded issue (claim or defense) and the opposing party litigates it on the merits without objection, the issue is treated as if properly pleaded. This doctrine prevents parties from strategically withholding technical objections to late-pled defenses until appeal.

VI. Practical Implications and Future Impact

A. For Religious Institutions and Land-Use Planning in Kentucky

  • Religious organizations must be prepared to prove, with evidence, that land-use denials or conditions impose severe constraints on their religious exercise—mere preference for a particular design or parcel will not suffice.
  • Knowledge of zoning constraints at the time of acquisition or lease will be highly relevant. If the ordinance clearly disallows the desired use, courts may treat resulting burdens as at least partially self-imposed.
  • Accessory religious structures (shrines, prayer gardens, etc.) that can be reasonably reconfigured within existing lawful footprints will rarely support a “substantial burden” claim under RLUIPA.

B. For Local Governments and Boards of Adjustment

  • Boards should ensure that their records reflect:
    • awareness of statutory limits on nonconforming use expansions; and
    • reasoned application of conditional-use and variance criteria.
  • Where RLUIPA is potentially implicated, boards and their counsel should:
    • document the availability of alternative locations or configurations for religious use;
    • clarify the extent (if any) of regulatory delay and expense; and
    • avoid any suggestion of religious animus or unequal treatment relative to comparable secular uses.
  • This decision also underscores the need for precise drafting in zoning codes regarding nonconforming uses and accessory religious structures, to avoid inadvertently creating plausible RLUIPA claims.

C. For Litigation Strategy

  • Defendants (governments or boards) should plead RLUIPA and KRFRA defenses (where relevant) from the outset to avoid preservation disputes, even though this opinion shows that CR 15.02 can sometimes rescue late-raised issues.
  • Plaintiffs (religious institutions) should:
    • develop a full evidentiary record of actual burden—costs, delays, unavailability of alternatives, and the religious significance of the particular use or site;
    • identify specific secular comparators for equal-terms claims (e.g., clubs, theaters, fraternal lodges) that are treated more favorably in the same zoning district;
    • consider pleading both RLUIPA and KRFRA, as well as state and federal constitutional claims, to give courts a full range of tools.

D. For the Development of Kentucky Religious-Liberty Law

  • This is the Kentucky Supreme Court’s first major RLUIPA land-use decision; it brings Kentucky squarely in line with the Sixth Circuit and many other federal circuits on the meaning of “substantial burden.”
  • While KRFRA remains un-interpreted by the Court, it is highly likely that future KRFRA cases will look to Livingston and this opinion for guidance, at least absent legislative clarification.
  • The Court’s emphasis on severity and self-imposed burdens suggests that Kentucky courts will resist attempts to turn every zoning setback, design disagreement, or denial of preferred expansion into a strict‑scrutiny religious-freedom case.

E. Property Rights, Nonconforming Uses, and Local Deference

  • The dissent signals an ongoing tension between:
    • protection of vested property rights and deference to local boards’ discretion; and
    • enforcement of statutory limits on nonconforming use expansions.
  • Because the majority did not expressly endorse the Court of Appeals’ nonconforming-use analysis—only left it standing unchallenged—there remains room in future cases to:
    • argue for a narrower reading of “enlargement or extension” under KRS 100.253; and
    • distinguish between major expansions of commercial or institutional operations and modest accessory features (gardens, patios, small outbuildings).
  • Boards should be mindful of Justice Thompson’s warning that reading “expansion” too broadly could:
    • invite more litigation over minor improvements; and
    • unnecessarily constrain their ability to grant locally appropriate relief.

VII. Conclusion

Missionaries of Saint John the Baptist, Inc. v. Frederic is a foundational decision for Kentucky’s approach to religious land-use disputes. It does not expand RLUIPA protections; rather, it aligns Kentucky with the mainstream federal understanding that “substantial burden” in the land-use context requires more than inconvenience, increased cost, or denial of a preferred configuration.

The Court’s adoption of the Livingston framework, and its emphasis on factors such as feasible alternatives, delay and expense, and self-imposed burdens, sets a relatively demanding threshold for RLUIPA claimants. At the same time, its careful equal-terms analysis underscores that facial equality in zoning text can defeat claims of religious discrimination, even where religious institutions perceive unfairness in practical application.

Procedurally, the Court’s use of CR 15.02 to deem the RLUIPA defense tried by implied consent reinforces a broader principle: Kentucky courts will favor deciding religious-freedom questions on their merits rather than on technical pleading defaults when both sides have fully engaged the issue.

The case thus serves as a roadmap—for religious institutions, local governments, and courts alike—on how religious exercise, land-use regulation, and statutory religious-liberty protections will interact in Kentucky. Future litigation under both RLUIPA and KRFRA will inevitably build on the doctrinal foundations laid here.

Case Details

Year: 2025
Court: Supreme Court of Kentucky

Judge(s)

Lambert

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