RENDERED: AUGUST 22, 2024

TO BE PUBLISHED

1

Supreme Court of Kentucky

2022-SC-0476-DG 

BOONE DEVELOPMENT, LLC; VIA 

VITAE DEVELOPMENT, LLC D/B/A

JAMES MONROE HOMES

APPELLANTS

ON REVIEW FROM COURT OF APPEALS

NO. 2021-CA-0099

V. JESSAMINE CIRCUIT COURT

NO. 20-CI-00494

NICHOLASVILLE BOARD OF 

ADJUSTMENT; HAROLD E. SMITH, 

ACTING CHAIRMAN; ALEX LYTTLE, 

MEMBER; JENNIFER CARPENTER, 

MEMBER; JIM PARSONS, MEMBER;

JIMMY WELLS, MEMBER; MICHAEL 

EAKINS, IN HIS OFFICIAL CAPACITY AS 

ACTING/INTERIM PLANNING 

DIRECTOR/ADMINISTRATIVE OFFICER 

FOR THE CITY OF NICHOLASVILLE 

PLANNING COMMISSION; PAULA ELDER, 

MEMBER; TANYA BOLTON, MEMBER; THE 

CITY OF NICHOLASVILLE PLANNING 

COMMISSION; TIM CROSS IN HIS 

INDIVIDUAL CAPACITY AND OFFICIAL 

CAPACITY AS ENGINEER FOR THE CITY 

OF NICHOLASVILLE PLANNING 

COMMISSION; WILLIAM WAYNE HAYDEN, 

MEMBER

APPELLEES

AND

2022-SC-0477-DG

BOONE DEVELOPMENT, LLC; VIA VITAE

DEVELOPMENT, LLC D/B/A JAMES 

MONROE HOMES

APPELLANTS
2

ON REVIEW FROM COURT OF APPEALS

NO. 2021-CA-0411

V. JESSAMINE CIRCUIT COURT

NO. 20-CI-00494

COMMONWEALTH OF KENTUCKY EX REL. 

RUSSELL COLEMAN, ATTORNEY 

GENERAL; TANYA BOLTON, IN HER 

OFFICIAL CAPACITY AS A MEMBER OF 

THE NICHOLASVILLE BOARD OF 

ADJUSTMENT; JENNIFER CARPENTER, IN 

HER OFFICIAL CAPACITY AS A MEMBER 

OF THE NICHOLASVILLE BOARD OF 

ADJUSTMENT; CITY OF NICHOLASVILLE 

PLANNING COMMISSION; TIM CROSS, IN 

HIS INDIVIDUAL CAPACITY AND IN HIS 

OFFICIAL CAPACITY AS ENGINEER FOR 

THE CITY OF NICHOLASVILLE PLANNING 

COMMISSION; MICHAEL EAKINS, IN HIS 

OFFICIAL CAPACITY AS INTERIM/ACTING 

PLANNING DIRECTOR/ADMINISTRATIVE 

OFFICER FOR THE CITY OF 

NICHOLASVILLE PLANNING COMMISSION; 

PAULA ELDER, IN HER OFFICIAL 

CAPACITY AS A MEMBER OF THE 

NICHOLASVILLE BOARD OF 

ADJUSTMENT; WM. WAYNE HADEN, IN 

HIS OFFICIAL CAPACITY AS A MEMBER OF 

THE NICHOLASVILLE BOARD OF 

ADJUSTMENT; ALEX LYTTLE, IN HIS 

OFFICIAL CAPACITY AS A MEMBER OF 

THE NICHOLASVILLE BOARD OF 

ADJUSTMENT; JIM PARSONS, IN HIS 

OFFICIAL CAPACITY AS A MEMBER OF 

THE NICHOLASVILLE BOARD OF 

ADJUSTMENT; HAROLD E. SMITH, IN HIS 

OFFICIAL CAPACITY AS ACTING 

CHAIRMAN AND MEMBER OF THE 

NICHOLASVILLE BOARD OF 

ADJUSTMENT; NICHOLASVILLE BOARD 

OF ADJUSTMENT; AND JIMMY WELLS, IN 

HIS OFFICIAL CAPACITY AS A MEMBER OF 

THE NICHOLASVILLE BOARD OF 

ADJUSTMENT

APPELLEES
3

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING IN PART AND REVERSING IN PART

We granted discretionary review to consider the constitutionality of the 

appeal bond requirement set forth in KRS1 100.3471. For purposes of oral 

argument, we consolidated this appeal with two others presenting a similar 

constitutional challenge. Bluegrass Trust v. Lexington-Fayette Urban County 

Government, ___ S.W.3d ___ (Ky. 2024); RAZ, Inc. v. Mercer County Fiscal Court, 

___ S.W.3d ___ (Ky. 2024). In Bluegrass Trust, rendered contemporaneously 

with this opinion, a majority of this Court held KRS 100.3471 imposed an 

unconstitutional burden on the right to appeal. The reasoning of Bluegrass 

Trust applies equally to this matter and interested parties should refer to that 

opinion. Consequently, the Court of Appeals’ determination that it lacked 

jurisdiction to consider the merits of the appeal was in error.

In the interest of judicial economy, we decline to remand this matter to 

the Court of Appeals for further consideration, and exercise our supervisory 

authority under Section 110(2)(a) of the Kentucky Constitution to resolve the 

underlying merits of this appeal.

I. Facts

In 2002, the G.N. Miles Estate in Jessamine County, totaling 208 acres 

of property, was divided into four separate parcels. In 2004, the owner of 

Parcel 2 submitted plans for residential development on that parcel, including 

1 Kentucky Revised Statutes.
4

the building of a bridge over a creek located on Parcel 2 and extension of 

Williams Road up to the property line separating Parcels 2 and 3. This plan 

was approved by the Nicholasville Planning Commission (NPC). The NPC 

acknowledged in 2005 that the bridge and road extension had not been built, 

but nonetheless recorded the final plat for Parcel 2.

At some point afterward, LPW Redevelopment, LLC (“LPW”) became the 

owner of both Parcels 2 and 3. In 2017, LPW sought and received a zone 

change for Parcels 2 and 3. A Final Development Plan/Preliminary Plat was 

submitted by LPW, approved by the NPC, and subsequently approved by the 

Nicholasville City Commission. This Final Development Plan showed a bridge 

over the creek on Parcel 2 and Williams Road being extended to connect with 

Parcel 3. A Certificate of Land Use Restriction was recorded for Parcel 3, but 

the Final Development Plan was not included in that Certificate, merely 

referenced. No explicit language exists on the Final Development Plan map

that indicates the owner of Parcel 3 would be obligated to build the Williams 

Road extension and bridge which are located almost entirely on Parcel 2.

In 2018, LPW offered to sell Parcel 3 to Boone Development, LLC 

(“Boone”). The sale was completed that same year. Significant construction 

activity was conducted on Parcel 3, which had been redesignated Unit 1 and 

Unit 2 for development purposes. At this point, according to the testimony of 

James Monroe, owner of Boone, the City of Nicholasville and its representatives 

informed him that Boone was responsible for building the Williams Road 
5

extension and bridge on Parcel 2. Boone disputed this obligation and the 

parties engaged in further discussion.

Central to this litigation, the NPC informed Boone it required a letter of 

credit which included, among numerous other items, coverage for the road 

extension and bridge. A letter of credit is required, when deemed necessary, to 

ensure the developer will be responsible for the construction of improvements, 

rights-of-way, and any other items the city considers to be required.2 Tim 

Cross, Nicholasville’s City Engineer, prepared and sent Boone a spreadsheet 

setting forth the various improvements to be made on Unit 2 and the letter of 

credit amounts the NPC required to cover those improvements. Boone 

informed Cross the spreadsheet erroneously included improvements which had 

already been completed and incorrectly set out surety amounts based on 

figures which were grossly different from those shown on the “as-built”

construction plans. Boone also protested the inclusion of amounts for the road 

extension and bridge as it continued to insist it was under no obligation to 

construct either.3

When Boone sought to correct the perceived errors in the NPC’s letter of 

credit requirements, especially the inclusion of the road extension and bridge, 

2 See KRS 100.281(4) which requires “provision of good and sufficient surety to 

insure proper completion of physical improvements[.]” A surety is required for the 

protection of the local government and to “guarantee a developer does not start and 

stop construction, leaving an unfinished, deteriorating and dangerous site[.]” Western 

Surety Company v. City of Nicholasville, 552 S.W.3d 101, 109 (Ky. App. 2018).

3 Cross subsequently admitted the spreadsheet contained flaws, but remained 

steadfast that the road extension and bridge were properly included.
6

Cross told Boone that any letter of credit which did not include those two items 

simply would not be considered by the NPC. Boone attempted to contact 

various members or representatives of the NPC regarding the mistakes in the 

letter of credit requirements but received no response.

Boone filed a declaratory action in Jessamine Circuit Court seeking a 

declaration of rights that it did not have to build the Williams Road extension 

and bridge. The NPC argued Boone had failed to exhaust administrative 

remedies by not appealing its decision to the Board of Adjustment. Boone 

countered that the NPC had not decided anything, and the subsequent lack of 

communication necessitated the declaratory action. The trial court agreed with 

Boone and instructed the NPC to make a decision. In compliance with this 

order, the NPC issued a Notice of Decision that affirmed its letter of credit

requirements. The Board affirmed the NPC and issued a decision setting forth

12 findings of facts.

Boone appealed and the Jessamine Circuit Court affirmed the Board.

Applying a standard that required Boone to show the evidence before the Board 

was so compelling that the Board’s decision was clearly unreasonable, the trial 

court held the Board was exercising its proper legislative powers in hearing the 

appeal, and there was no denial of due process. The court then found the 

Board’s findings were not clearly unreasonable. As to Finding 6, it held the 

“stream crossing”—which is a more cumbersome phrase for bridge—was “offsite storm infrastructure,” and the easement allowed Boone to enter Parcel 2 to

build the bridge. The trial court also concluded that, aside from the road 
7

extension and bridge, “Defendants concede that no accurate bond 

requirements were ever provided.” Or in other words, the other items on the 

letter of credit aside from the road extension and bridge were conceded to be 

inaccurate. The trial court deemed this to be unimportant because the road 

extension and bridge were the main divisive issues; Boone insisted that a letter 

of credit be issued without them, and the NPC refused to consider that 

potentiality.

Boone appealed to the Court of Appeals which, after concluding KRS 

100.3471 was constitutional, dismissed the appeal upon determining it was 

without jurisdiction to adjudicate the matter as Boone had not posted the 

required appeal bond in the appropriate time. Boone sought discretionary 

review, which we granted.

We now address the merits of the appeal and further facts will be 

developed as necessary.

II. Standard of Review

“Basically, judicial review of administrative action is concerned with the 

question of arbitrariness.” American Beauty Homes Corp. v. Louisville & 

Jefferson Cnty. Planning & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). 

To determine arbitrariness, a reviewing court looks for “(1) action in excess of 

granted powers, (2) lack of procedural due process, and (3) lack of substantial 

evidentiary support[.]” Id. “As a general rule the yardstick of fairness is 

sufficiently broad to measure the validity of administrative action.” Id. at 457.
8

III. Analysis

As noted at the outset, this opinion is primarily concerned with resolving 

the merits of the underlying dispute. Insofar as a dispute is raised as the 

constitutionality of the appellate bond requirement set forth in KRS 100.3471, 

we direct the reader to our opinion in Bluegrass Trust, holding that the statute 

impermissibly burdens the constitutional right to an appeal. Bluegrass Trust, 

___ S.W.3d at ___ (“By applying to good faith assertions of legal rights and 

failing to preserve the status quo, the bond of KRS 100.3471 admits to being 

nothing other than a price of admission to the Court of Appeals, and its only 

effect is to penalize Kentuckians wishing to challenge land-zoning decisions 

beyond the circuit court by exercising their constitutional right of appeal[]”). 

We adopt that holding to resolve the constitutional claim here.

The primary point of contention remaining between the parties is 

whether Boone is responsible for constructing the bridge and Williams Road 

extension. Because the NPC’s determination was not clearly unreasonable, we 

affirm the decision of the Jessamine Circuit Court.

Our review entails consideration of the Board’s decision to uphold the 

NPC’s determination to require a letter of credit to include the cost of the bridge

to connect two parts of Williams Road. Boone raises three issues in seeking 

relief: (1) the Board acted in excess of its legislatively granted powers; (2) Boone 

was denied procedural due process; and (3) the evidence presented by Boone to 

the Board was so strong that denial was clearly unreasonable. The first issue
9

is easily resolved: KRS 100.257 and KRS 100.261 provide a clear grant of 

power to the Board to hear appeals of the NPC.

As to the second issue, we discern no arbitrariness of the part of the 

Board. “Procedural due process is not a static concept, but calls for such 

procedural protections as the particular situation may demand.” Kentucky 

Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 590 (Ky. 1995). “As a general 

rule, in an administrative setting, procedural due process merely requires ‘a 

hearing, the taking and weighing of evidence if such is offered, a finding of fact 

based upon a consideration of the evidence, [and] the making of an order 

supported by substantial evidence[.]’” Friends of Louisville Public Art, LLC v. 

Louisville/Jefferson Cnty. Metro Historic Landmarks & Pres. Dists. Comm’n, 671 

S.W.3d 209, 213 (Ky. 2023) (quoting Hilltop Basic Res., Inc. v. Cnty. of Boone, 

180 S.W.3d 464, 469 (Ky. 2005)). Although Boone believes the Board was 

deficient in the amount explanation it provided, no dispute exists that the 

Board gave Boone a hearing, took and weighed evidence, made a finding based 

upon that evidence, and issued an order supported by that evidence. While we 

agree with the trial court that the Notice could have included more 

comprehensive detail, it nevertheless sufficed to make Boone aware of the 

Board’s position relative to the bridge. The standard for procedural due 

process was satisfied in this instance.

The final issue is whether Boone presented such strong evidence to the 

Board that the record compels a conclusion the Board’s decision was 

unreasonable and arbitrary. Where a party asserts the administrative decision 
10

lacked substantial evidentiary support, the burden is upon the moving party to 

show that the record compels relief in its favor. See Gentry v. Ressnier, 437 

S.W.2d 756, 758 (Ky. 1969) (explaining issue in circuit court was not whether 

substantial evidence supported board’s decision to deny permit, but whether 

evidence presented by applicants “was so strong that the denial of the permit 

was clearly unreasonable[]”); Bourbon Cnty. Bd. of Adjustment v. Currans, 873 

S.W.2d 836, 838 (Ky. App. 1994) (holding denial of administrative relief to 

party carrying burden is arbitrary if the record contains compelling evidence 

mandating a contrary decision, and “[t]he argument should be that the record 

compels relief[]”); REO Mech. v. Barnes, 691 S.W.2d 224, 226 (Ky. App. 1985), 

overruled on other grounds by Haddock v. Hopkinsville Coating Corp., 62 

S.W.3d 387 (Ky. 2001) (from board of adjustment denial of a conditional use 

permit, “[f]or evidence to compel a different result, the proof in [applicant’s] 

favor must be so overwhelming that no reasonable person could reach the 

conclusion of the Board[]”).4

As noted, the Board made 12 findings of fact:

1. Various zone changes and a Final Development Plan were

recommended and adopted by the [NPC] on October 23, 2017, 

for the development of the land formerly known as the G.N. 

Miles Estate Property–Phase 3, now known as Eastgate 

Subdivision (“Property”). The Final Development Plan (“FDP”) 

4 This slight variation in the review of an administrative agency’s factual 

findings is no different from our decisions in worker’s compensation cases: See 

Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in 

favor of the person having the burden of proof, the burden on appeal is only to show 

that there was some substantial evidence to support the decision); cf. Gray v. 

Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ finds against the party having 

the burden of proof, the appellant must “show that the ALJ misapplied the law or that 

the evidence in her favor was so overwhelming that it compelled a favorable finding[]”).
11

controls the development of the Property and includes a stream 

crossing as part of the design. 

2. Thereafter, the Nicholasville City Commission duly 

adopted the NPC’s zone change recommendation and the FDP 

for to the Property by city ordinance.

3. A Certificate of Land Use Restriction, disclosing the zone 

changes and the existence of the FPD (sic) imposed on the 

Property, was recorded in the Jessamine County Clerk's office 

on January 24, 2018.

4. [Boone] purchased the Property on September 18, 2018. 

James Monroe, Boone’s owner, was advised of the obligation to 

build a stream crossing before the purchase.

5. Boone’s engineer submitted Construction Plans which were 

approved by NPC staff on or before February 5, 2019 and which 

included specifications for the construction of the stream crossing 

as part of the development of Eastgate that were consistent with 

and required by the FDP.

6. The stream crossing to be constructed will permit the 

extension of Williams Road from its current terminus in Phase 2 of 

the G.N. Miles Estate Property across Eastgate to its intersection 

with Sulphur Well Road. The stream crossing will be located 

partially on the Property and partially on land not owned by Boone 

(Phase 2), but within a platted drainage and utility easement on 

Phase 2.

7. On September 30, 2019, Boone, through James Monroe, 

announced its refusal to construct the stream crossing and/or 

bond a plat of a portion of the Property (Eastgate, Unit 2) which 

included the stream crossing as part of its development.

8. Boone was advised at a September 30, 2019 meeting, by Tim 

Cross and Dean Anness, that refusal to build and/or bond the 

stream crossing would result in the disapproval of the Eastgate, 

Unit 2 plat for recording.

9. Boone’s owner, James Monroe, was notified by email on 

October 10, 2019, of the amount of the bond which had to be 

posted for the Eastgate, Unit 2 plat to cover the cost of the stream 

crossing.

10. The plat for Eastgate, Unit 2, submitted by Monroe on 

behalf of Boone, to the NPC staff was defective in that the bond 

amount did not include the cost of the stream crossing and the 

plat gave no indication of the area on the plat where the stream 

crossing would be situated.
12

11. The decisions, by Cross and Anness, to refuse 

recommending the recording of the Eastgate, Unit 2 plat and to 

fix the amount of the bond were later confirmed in writing by 

Cross’s letter to Boone and Via Vitae Development, LLC’s owner, 

James Monroe, dated July 7, 2020.

12. The decisions, by Cross and Anness, with regard to the 

Eastgate, Unit 2 plat were dictated by the Final Development 

Plan. For Cross and Anness to have approved the Unit 2 plat 

for recording with an inadequate bond would have been in 

direct contravention of the NPC’s and the NCC’s decision to 

adopt such plan.

The trial court extensively reviewed the Board’s factual findings, the most 

significant of which was that LPW had submitted a Preliminary Subdivision 

Plat and Final Development Plan for the G.N. Miles Estate Subdivision, Unit 3 

(Parcel 3) as part of a zone change request for the property. The trial court and 

the Board correctly held that when a final development plan is incorporated as 

a part of a zone change, “this development plan shall be followed.” KRS 

100.203(2) (emphasis added). Furthermore, the zone change and the final 

development plan were matters of public record. As noted by the Board’s 

finding number 3: “A Certificate of Land Use Restriction, disclosing the zone 

changes and the existence of the FDP imposed on the Property, was recorded in 

the Jessamine County Clerk’s office on January 24, 2018.” The trial court 

noted Zoning Ordinance for the City of Nicholasville, Kentucky at Article 15,

“Amendments,” states, consistent with KRS 100.203(2): “[t]he approval of a 

development plan shall limit and control the issuance of all building and 

occupancy permits, and restrict the construction location and use of all land 

and structures to the conditions set forth in the plan.”

Based on its analysis, the trial court further aptly concluded:
13

The FDP for Phase 3 of the G.N. Miles Estate Property (referenced 

herein as “Eastgate Subdivision” or “Eastgate”) requires the 

construction of a stream crossing that permits Williams Road to 

extend from the Phase 2 portion of the G.N. Miles Estate Property 

into Eastgate Subdivision, continuing on to an intersection with 

Sulphur Well Road. The FDP cannot be “followed” unless the 

stream crossing is built. It thereby controls the construction of 

this particular part of the infrastructure designed for Eastgate. 

Despite [Boone’s] assertion, no regulation requires the FDP to be 

signed, and they cite no authority supporting their assertion. A 

zone change applicant submits the FDP with the zone map 

amendment application as an “agreed” condition; it is adopted by 

the NPC with the zone changes; and its existence in the NPC

records and as part of the [Nicholasville City Commission]’s

ordinance is all that is needed to validate it. If [Boone] had any 

proof that the FDP on record with the NPC was not what was 

agreed to by LPW as a condition of the zone change, he should 

have presented it to the Board at the hearing.

The trial court then noted KRS 100.3681(1) requires public filing—and 

hence notice—of Certificates of Land Use restrictions, which “shall indicate the 

type of land use restriction adopted or imposed upon the subject property . . . , 

including variances, conditional use permits, conditional zoning conditions, 

unrecorded preliminary subdivision plats, and development plans[.]” 

(Emphasis added). It further observed, based on testimony from Monroe, 

Boone’s principal, and Jerry Woodall, a member of LPW (Boone’s immediate 

predecessor), the Board had found Boone had, in fact, been advised of the need 

to construct the bridge. Not only did Boone have constructive knowledge of its 

obligation, it had actual knowledge.

Next, the trial court evaluated the Board’s finding number 5, that Banks

Engineering, the engineering firm hired by LPW for the property’s development, 

had been continued in that role by Boone. When Banks, on its principal’s 

(Boone’s) behalf, submitted construction plans for the project, those plans 
14

recognized and provided for the bridge on multiple occasions. Boone admitted 

seeing the construction plans which included the bridge but did not seek to 

amend the plans or question their accuracy before they were reviewed and 

approved by the Planning Commission’s staff.

Finally, the fundamental issue concerns Boone’s refusal to build 

infrastructure—the bridge—not wholly contained within its property. The trial 

court considered the Board’s finding number 6, which included, “[t]he stream 

crossing will be located partially on the Property and partially on land not 

owned by Boone (Phase 2), but within a platted drainage and utility easement 

on Phase 2.” The foregoing analysis, that the FDP controls and Boone 

purchased the property subject to its requirements, would seem to conclusively 

resolve this matter. But, to the point that a portion of the bridge was located 

on land Boone did not own, the trial court correctly reasoned that the bridge is 

covered by an easement dedicated to public use, specifically a public roadway, 

like water lines and sanitary sewer lines.

Requiring construction of public facilities is a reasonable cost of 

developing land. See Lampton v. Pinaire, 610 S.W.2d 915, 919 (Ky. App. 1980) 

(holding “[p]ublic policy nevertheless requires that the one who develops his 

land for a profit also may be required to bear the cost of additional public 

facilities made necessary by the development[]”). The rationale behind this 

policy is that “[l]ocal governments are not obligated to develop private property, 

and indeed, developers must construct streets and other public improvements 

in a proper manner in order to hold the local government’s maintenance costs 
15

to a minimum once the dedicated property has been accepted for public 

purposes.” Id. Furthermore, the required bridge is partially located on Boone’s 

property and property immediately adjacent thereto.5

The only question which initially puzzled the trial court was why the NPC

did not initially require LPW to post the letter of credit for the bridge as a 

condition of its initial approval for Parcel 2. The answer, as the trial court 

observed, was that the NPC agreed to let LPW, as owner of both Parcel 2 and 3, 

defer that required construction to Parcel 3. Boone, as successor to LPW, 

explicitly assumed that obligation when it purchased the property.

Because Boone’s proof was not “so overwhelming that no reasonable 

person could reach the same decision as the Board,” REO Mechanical, 691 

S.W.2d at 226, the decision of the Jessamine Circuit Court on the merits of the 

underlying dispute is affirmed.

On cross-appeal, the Board argues CR6 4.04(7), which requires service of 

process on a public board be accomplished by serving a member of that board, 

was not satisfied in this matter. It contends Boone’s service of process at the 

Board’s listed government address rather than the personal residences of the 

Board members was not undertaken in good faith as required by CR 3.01, 

5 Lexington-Fayette Urban County Government v. Schneider, 849 S.W.2d 557 (Ky. 

App. 1992), does not compel the result argued by Boone. In Schneider, the planning 

commission attempted to require a developer to build a bridge which would benefit 

other properties. By contrast, in this case, the Williams Road connection and stream 

crossing were proposed by and agreed to by LPW as a condition of the zone change. 

As stated by the trial court, “[f]uture owners, including Boone, were put on notice of 

the Development Plan by way of the Certificate of Land Use Restrictions filed in the 

county clerk’s office . . . and were required to follow it.”

6 Kentucky Rules of Civil Procedure. 
16

thereby depriving this Court of jurisdiction. We discern no merit to this 

argument because “[t]he civil rules do not apply in this type of litigation until 

after the appeal has been perfected.” Bd. of Adj. of City of Richmond v. Flood, 

581 S.W.2d 1, 2 (Ky. 1978). Thus, “the issuance of a summons cannot under 

the statute constitute an essential element in the filing of the appeal. It is a 

condition subsequent to the filing; it is procedural and not jurisdictional.”

Green v. Bourbon Cnty. Joint Planning Comm’n, 637 S.W.2d 626, 631 (Ky. 

1982). Even if we were inclined (and we are not) to rule that service of process 

on a public board member in his or her official capacity at the publicly listed 

address of the board did not constitute a good faith attempt at service of 

process, it would not divest this Court of jurisdiction.

The Board next contends Michael Eakins, the interim Planning Director

at the time the action was filed, should have been dismissed as an unnecessary

party. The trial court determined Eakins was a necessary party and refused to 

grant the dismissal. The Board argues Eakins was not a necessary party 

because he took no part in the underlying events and his participation in the 

appeal as acting director was superfluous since the Board was a party. CR 21 

allows for the dismissal of misjoined parties “on such terms as are just.” This 

rule allows for dismissal of unnecessary parties when appropriate. But such a 

dismissal is a discretionary decision, distinct from a legal conclusion that there 

is no claim upon which relief can be granted under CR 12.02. KRS 100.347(1) 

and (2) do not require individual members, in their official capacities, of boards 

or commissions be made a party to an appeal; only the board or commission 
17

itself is required to be a party.7 We agree Eakins is an unnecessary party but 

perceive no harm in the trial court failing to dismiss him as such. Thus, the 

trial court is affirmed. See Drinkard v. George, 237 Ky. 560, 36 S.W.2d 56, 58 

(1930) (holding no harm in trial court’s failure to hold Next Friend was 

unnecessary party). 

IV. Conclusion

For the foregoing reasons, the Court of Appeals is reversed as to the 

constitutional question. Although the Court of Appeals did not reach the 

underlying merits, in the interest of judicial economy, we have chosen to 

exercise our supervisory authority to do so based on the record and the parties’ 

briefs. The judgment of the Jessamine Circuit Court is affirmed in all respects 

as to the merits and the constitutional question.

All sitting. VanMeter, C.J., concurs in part and dissents in part by 

separate opinion, in which Bisig and Keller, JJ., join. Conley, J., concurs in 

part and dissents in part by separate opinion, in which Lambert and 

Thompson, JJ., concur.

VANMETER, C.J., CONCURRING IN PART AND DISSENTING IN PART: In 

this matter, I respectfully dissent from so much of the majority opinion as 

holds KRS 100.3471 unconstitutional, as expressed fully in my dissent in 

7 Boone’s argument that the trial court erred in dismissing the NPC was not 

preserved in its motions for discretionary review and, therefore, is not considered. 

RAP 44(c)(5); Indiana Ins. Co. v. Demetre, 527 S.W.3d 12, 41 (Ky. 2017) (citing Ellison 

v. R & B Contracting, Inc., 32 S.W.3d 66, 71 (Ky. 2000)). That is of little consequence, 

however, because we agree with the Board that its presence as a party is sufficient to 

afford Boone relief in these cases. 
18

Bluegrass Trust for Historic Preservation v. Lexington-Fayette Urban County 

Government, ___ S.W.3d ___ (Ky. 2024). Procedurally, my view is that we 

should remand to the Jessamine Circuit Court for it to set the required appeal 

bond so that the Court of Appeals could then review the merits of the matter. 

That noted, I acknowledge the majority of the Court has determined the 

constitutional issue otherwise, which leaves us with the decision whether to 

remand to the Court of Appeals to decide the merits. Since the record before 

us is sufficiently developed and presented, I agree that, in interests of judicial 

economy, we appropriately should resolve the merits of this case. I concur in 

so much of the majority opinion as affirms the decision of the trial court in 

upholding the Nicholasville Board of Adjustment’s decision with respect to the 

letter of credit requirements. 

Bisig and Keller, JJ., join. 

CONLEY, J., CONCURRING IN PART AND DISSENTING IN PART: I 

concur with the Court’s reversal of the Court of Appeals on the constitutional 

issue presented by this case, which is explained in depth in the 

contemporaneously rendered Bluegrass Trust for Historic Preservation v. 

Lexington-Fayette Urban County Government Planning Commission, ___ S.W.3d

___ (Ky. 2024). I dissent, however, on the underlying question of whether the 

Nicholasville Planning Commission (NPC) and Board of Adjustment acted 

arbitrarily. 

KRS Chapter 100 is a comprehensive statute regarding the authority of 

local governments to regulate land within their jurisdiction. Nicholasville 
19

exercised its prerogative under this statute to create a comprehensive plan, as 

well as passing a general zoning ordinance and subdivision zoning regulations. 

The zoning ordinance, in pertinent part, states, that the contents of a Final 

Development Plan must be “of an exact nature, rather than approximate or 

general.” Zoning Ordinance for the City of Nicholasville, KY (Adopted June 

1980; Amended thru January 2024) Art. XV, § 1540.2(1)). Importantly, 

however, the ordinance recognizes that “development plans are not subdivision 

plans[.]” Id. at § 1560.1. When a development plan indicates a “need or intent” 

to subdivide property then “the Subdivision Regulations shall be applied to 

proposals contained on the development plan.” Id. It is indisputable that the 

plans at issue here, though always referred to as a development plan, disclose 

an intent to subdivide the subject property thus, the subdivision regulations 

are controlling so long as they do not offend a statute or the constitution. 

Murphy v. City of Lake Louisvilla, 303 S.W.2d 307, 309 (Ky. 1957). 

The Subdivision Regulations do allow the Planning Commission to 

require “additional conditions, such as covenants or specific notes which it 

feels necessary to assure conformity to and achievement of the proposed 

subdivision plan.” Subdivision Regulations for the City of Nicholasville, KY 

(Adopted June 1, 1980; Amended thru November 28, 2022) Art. II, § 225. These 

regulations also include a list of Final Plat Requirements that must be adhered 

to prior to approval unless waived. Id. at Art. III, § 345.1. Among them are two 

of particular application here: first, “[l]ocation and dimensions of all easements 

or right-of-way when provided for or owned by public utilities, with the 
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limitations of the easement rights definitely stated on the plat.” Id. at Art. III, § 

345.1(G) (emphasis added). Second, “[l]ocation and dimensions of all property 

which is offered for dedication for public use or reserved by deed restrictions or 

covenant for the common use of property owners of the subdivision. The 

intended purpose of such use shall be stated on the plat.” Id. at § 345.1(H) 

(emphasis added). Moreover, the supplementary section requires additional 

information to be listed on the plat, including: “[d]eed restrictions and 

protective covenants shall either be placed on the Final Plat or attached thereto 

in form for recording. (If recorded separately, reference to the restrictions shall 

be made on the final plat).” Id. at § 345.2(C). 

In this case, it is undisputed that no document whatsoever exists plainly 

stating in writing that Parcel 3 has upon that land a restriction, covenant, or 

encumbrance—however it is denominated—as a condition precedent to 

developing that parcel, that the owner must build a road extension and bridge 

situated almost entirely on Parcel 2. The road extension and bridge are a rightof-way. Their entire purpose is to provide a connection to Sulphur Well Road to 

allow for public automobile traffic. The sketch of the road and bridge are 

insufficient because they do not conform to the Subdivision Regulations. The 

limitation of easement rights are not “definitely stated on the plat[,]” which I 

interpret to require written English, not just an image of a proposed, hoped-for, 

or believed-to-exist easement. And, as the Board found a small portion of the 

road lay directly on Boone’s property, the plat needed to include a statement of 
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the intended purpose of the right-of-way. The Board cites no document with 

the requisite language. 

To the extent it might be argued I am applying final plat standards to a 

preliminary plat approved in 2017, I note that the plat still fails to adhere to 

preliminary requirements for the same reasons as the final requirements. The 

preliminary standards require the location and size of existing and proposed 

easements, Id. at § 333.1(K); and statements of deed restrictions and 

covenants, Id. at § 333.2(D). Once again, no such statement is on the 

document regarding the road and bridge. Moreover, the topographic contours 

and existing streets within 500 feet of the property boundary have to be 

included on the preliminary plat, Id. at § 333.1(F) and (G); and all proposed 

streets. Id. at (J). Thus, it can hardly be said that the inclusion of the road and 

bridge on the plat constitutes adequate notice that there is an encumbrance on 

Parcel 3 to build the road and bridge, because the preliminary plat 

requirements would have required their inclusion under any set of 

circumstances. 

Next, “[a]n easement confers a right upon the dominant tenement to 

enjoy a right to enter the servient tenement.” Sawyers v. Beller, 384 S.W.3d 

107, 111 (Ky. 2012). “It is the essence of an appurtenant easement that it 

exists for the benefit of the dominant estate alone.” 25 Am. Jur. 2d Easements 

and Licenses § 9. “But the dominant is carved out of the servient estate only to 

the extent of and according to the nature of the use during the prescriptive 

period.” Lyle v. Holman, 238 S.W.2d 157, 159 (Ky. 1951). Or, in other words, 
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“an easement holder may not expand the use of the easement[.]” Sawyers, 384 

S.W.3d at 111. 

Boone does not possess an easement to enter upon Parcel 2 and build a 

road and bridge. No party has made that argument and it would be 

unsuccessful for the simple fact that Boone derives no exclusive benefit over 

against Parcel 2 from such an easement. Parcel 2 is just as much served by the 

construction of the road and bridge, and there is some evidence in the record to 

suggest that Parcel 2 has the greater benefit.8 Second, the existence of a 

drainage and utility easement is not relevant or probative evidence of a 

separate easement for a separate purpose, to the extent the Board can be 

understood as making such an argument. Finally, the use of the drainage and 

utility easement is necessarily limited to drainage and utility purposes. “It is 

ancient law that nothing passes under an easement but what is necessary for 

its reasonable use and proper enjoyment.” Farmer v. Kentucky Utilities Co., 642 

S.W.2d 579, 580 (Ky. 1982). “The use of the easement must be as reasonable 

and as little burdensome to the landowner as the nature and purpose of the 

easement will permit.” Id. It is obvious a road extension and new bridge for 

purposes of facilitating automobile traffic are neither reasonable nor proper to 

the use of a drainage and utility easement. I fail to see how allowing 

construction of a road and bridge, by virtue of the acknowledged easement, 

8 Boone submitted evidence before the Board, and the Board has not cited any 

evidence to the contrary, that only 190 lots on Parcel 3 would be served by the road 

and bridge construction, while 1,443 lots on Parcel 2 would be served. 
23

would not be an expansion of that easement and, consequently, an additional 

unnecessary burden upon the Parcel 2.

Thus, I conclude the NPC’s refusal to grant a letter of credit minus the 

road extension and bridge was arbitrary. The circuit court also noted there 

were other deficiencies in the letter of credit issued by the NPC regarding the 

calculation of costs—the court in fact noted those deficiencies were conceded to 

exist—but refused to address them because it believed the road and bridge 

were the decisive issue. 

It is a “a general rule [that] the yardstick of fairness is sufficiently broad 

to measure the validity of administrative action.” American Beauty Homes Corp. 

v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 

450, 457 (Ky. 1964). It was unfair of the NPC to insist that an encumbrance 

existed on Parcel 3 when no document in the Final Development Plan clearly 

stated in English the existence of such an encumbrance in violation of the 

Subdivision Regulations. And it was unfair to insist that Boone, as a 

subsequent purchaser, should alone bear the burden and cost of the road 

extension and bridge, when the right-of-way will be of equal or greater benefit 

to Parcel 2. Reason and justice clearly point the way to get this road and bridge 

built that is equitable to Boone, to LPW, and to the residents of Nicholasville. I 

would reverse the Court of Appeals, and remand with instructions to the Board 

of Adjustment to order the NPC issue a letter of credit that does not include 
24

construction of the road extension and bridge, as well as with other corrections 

to the concededly erroneous calculation of costs. 

Lambert and Thompson, JJ., join. 
25

COUNSEL FOR APPELLANTS,

BOONE DEVELOPMENT, LLC

AND VIA VITAE DEVELOPMENT,

LLC D/B/A JAMES MONROE

HOMES:

Carroll Morris Redford, III

Elizabeth Catesby Woodford

Miller Griffin & Marks PSC

COUNSEL FOR APPELLEES

NICHOLASVILLE BOARD OF

ADJUSTMENT; TANYA BOLTON;

JENNIFER CARPENTER;

PAULA ELDER; WM. WAYNE

HADEN; ALEX LYTTLE; JIM

PARSONS; HAROLD E. SMITH;

THE CITY OF NICHOLASVILLE

PLANNING COMMISSION; AND

JIMMY WELLS:

Bruce Evans Smith

Henry Evans Smith

Bruce E. Smith Law Offices, PLLC

COUNSEL FOR APPELLEES,

TIM CROSS AND MICHAEL EAKINS:

Darren Todd Sammons

City of Nicholasville

COUNSEL FOR APPELLEE,

COMMONWEALTH OF

KENTUCKY, EX REL.

RUSSELL COLEMAN:

Matthew Franklin Kuhn

Elizabeth Themins Hedges

Courtney Elizabeth Hightower

Brett Robert Nolan

Office of the Attorney General