RENDERED: MARCH 22, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0144-MR

JIMMY CALHOUN; DAVID ALLEN; 

DAVID GRAVES; JACQUELINE 

KEARNS; KERRY KEARNS; MARK 

ANDERS; PAULA CALHOUN; 

PAULA DAMRON; ROBERT 

DAMRON; ROBIN ALLEN; 

SAUNDRA ANDERS; AND WALT 

JOURDAN APPELLANTS 

v. 

APPEAL FROM JESSAMINE CIRCUIT COURT

HONORABLE C. HUNTER DAUGHERTY, JUDGE

ACTION NO. 20-CI-00316

TALL OAK, LLC; ALEX CARTER, IN 

HIS OFFICIAL CAPACITY AS A 

MEMBER OF THE NICHOLASVILLE 

CITY COMMISSION AND/OR 

NICHOLASVILLE BOARD OF 

COMMISSIONERS; BETTY BLACK, 

IN HER OFFICIAL CAPACITY AS A 

MEMBER OF THE NICHOLASVILLE 

CITY COMMISSION AND/OR 

NICHOLASVILLE BOARD OF 

COMMISSIONERS; DOUG 

BLACKFORD, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

NICHOLASVILLE CITY 
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COMMISSION AND/OR 

NICHOLASVILLE BOARD OF 

COMMISSIONERS; MAYOR PETE 

SUTHERLAND, IN HIS OFFICIAL 

CAPACITY; PATTY TEATER, IN 

HER OFFICIAL CAPACITY AS A 

MEMBER OF THE NICHOLASVILLE 

CITY COMMISSION AND/OR 

NICHOLASVILLE BOARD OF 

COMMISSIONERS; THE CITY OF 

NICHOLASVILLE; AND THE 

NICHOLASVILLE CITY 

COMMISSION AND/OR THE 

NICHOLASVILLE BOARD OF 

COMMISSIONERS APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.

ACREE, JUDGE: Appellants, who reside adjacent to a former country club in 

Nicholasville, Kentucky, appeal the Jessamine Circuit Court’s December 22, 2021 

Order affirming the Nicholasville City Commission’s decision to rezone the former 

country club to allow for residential development. Appellants argue the circuit 

court erred in concluding the City Commission’s decision complied with 

applicable provisions of both Kentucky statutes and the Nicholasville Code of 

Ordinances. Finding no error, we affirm.
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BACKGROUND

The land which used to be the Lone Oak Country Club is located in 

Nicholasville, Kentucky. The club opened in 1968 and, due to decline in 

membership and revenue, was sold to Appellee, Tall Oak, LLC. The property is 

surrounded by residential homes; Appellants are individual residents who live next 

to what was the country club. 

Tall Oak sought to develop its purchase into a residential subdivision. 

However, it could not do so because all 130 acres were zoned as agricultural. Tall 

Oak submitted a zoning map amendment application to the Nicholasville Planning 

Commission and the Nicholasville City Commission, seeking to construct 345 

homes. On June 10, 2019, the City Commission passed Ordinance 1053-2019 

expressing its intent to annex the former country club.

The Planning Commission conducted a hearing on Tall Oak’s 

application on September 23, 2019, which was continued to October 28, 2019. 

The Planning Commission voted to deny the application, and Tall Oak withdrew it.

Tall Oak submitted a second application for zone amendment on 

January 6, 2020, which requested the City of Nicholasville to annex the property. 

Three acres of the property including some of the Appellants’ residences were 

already within the city limits. The application further sought rezoning of the 

proposed annexed portion of the land so that Tall Oak could construct 316 homes, 
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reduced from the original proposal of 345. More specifically, Tall Oak wanted the 

land to be rezoned from “A-1 (County) Agriculture” and “A-1 (City) Agriculture” 

to a mix of city single family residential, city multi-family residential, and city 

business zoning.

The Planning Commission held a public hearing on the application on 

February 24, 2020. Tall Oak presented evidence of the need for the zoning change

and of compliance with both the Nicholasville Comprehensive Plan and Code of 

Ordinances. Appellants stated their objections to the proposed zoning change. 

Among other reasons, they said the already overburdened sanitary sewer system

could not handle the additional homes, and that development would exacerbate 

traffic problems in the area. Following the hearing, the Planning Commission 

voted to reject Tall Oak’s application.

Tall Oak appealed the Planning Commission’s denial to the City 

Commission. On May 18, 2020, the City Commission adopted Ordinance 004-

2020, which rezoned Tall Oak’s land from agricultural to residential.

Appellants filed their complaint with the Jessamine Circuit Court on 

June 17, 2020, both appealing the City Commission’s decision and seeking a 

declaratory judgment. The circuit court affirmed the City Commission’s adoption 

of the ordinance in an order entered December 22, 2021. The circuit court 

concluded the City Commission did not act beyond its authority, that Appellants 
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were not denied their due process rights, and that the City Commission’s decision 

to approve the zoning change was not arbitrary, capricious, or unsupported by 

substantial evidence. This appeal followed.

STANDARD OF REVIEW

As the circuit court did, we treat Appellant’s action as an appeal from 

an administrative agency.1 “Basically, judicial review of administrative action is 

concerned with the question of arbitrariness.” Am. Beauty Homes Corp. v. 

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

1964) (emphasis original). An administrative agency’s decision is arbitrary if the 

agency acted in excess of its statutory power, if a party affected by an 

administrative action was not afforded procedural due process, or if the 

administrative decision was not supported by substantial evidence. Id. (citations 

omitted). “Substantial evidence has been conclusively defined by Kentucky courts 

1

In Molyneaux v. City of Bardstown, the City of Bardstown Historic Review Board voted to 

approve, by voice vote, the appellant’s Certificate of Appropriateness (COA) for appellant’s 

proposed renovations to two townhouses subject to the city’s historic building requirements, upon 

the condition that currently existing exterior elements be replaced with material currently on the 

side of the buildings – appellant wanted to cover wood trim with vinyl siding – and that work be 

completed within six months of the COA. Molyneaux v. City of Bardstown, 656 S.W.3d 232, 235 

(Ky. App. 2022). Appellants filed both a notice of appeal and a petition for declaration of rights; 

we noted that, though it was unclear whether an appealable event actually occurred and thus it was 

appropriate for appellants to have pursued both their appeal and original declaration of rights 

action, the circuit court properly treated the action as if it were an appeal from an administrative 

agency. Id. at 244. This Court engaged in review accordingly. Id. In the instant case, there is 

clearly an appealable administrative action – the City Commission’s approval of Tall Oak’s 

rezoning request – and, therefore, as in Molyneaux, we perform our analysis through the 

administrative appeal lens.
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as that which, when taken alone or in light of all the evidence, has sufficient 

probative value to induce conviction in the mind of a reasonable person.” Bowling 

v. Nat. Res. & Env’t Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citing 

Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)). 

ANALYSIS

Appellants argue two reasons for declaring the City Commission’s 

decision arbitrary. First, they argue the circuit court erred because it should have 

determined the zoning amendment was not processed in accordance with KRS2

Chapter 100 and, therefore, the City Commission acted beyond its statutory 

authority. Second, Appellants argue the circuit court erred by ruling Tall Oak was 

not required to submit a storm water management plan alongside its rezoning 

proposal, which Appellants argue is required by Nicholasville’s Code of 

Ordinances, and, accordingly, that the City Commission acted outside its authority 

in approving Tall Oak’s application.

KRS Chapter 100.

Appellants first argue the circuit court erred by failing to hold the City 

Commission’s process in rezoning did not comply with KRS 100.209. Appellants 

argue that, though the City Commission adopted “An Intent to Annex 

2 Kentucky Revised Statutes.
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Ordinance[,]” it did not attempt to amend the comprehensive plan or hold a hearing 

on any proposed amendment to the comprehensive plan.

The circuit court determined Appellants waived this argument because 

they did not raise it before the Planning Commission. We agree. 

Citing Nicholasville Road Neighborhood Consortium, Inc. v. 

Lexington-Fayette Urban County Government, 994 S.W.2d 521 (Ky. App. 1999)

and Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Co., Inc., 969 

S.W.2d 691 (Ky. 1998), Appellants argue “provisions of KRS Chapter 100 cannot 

be waived” even by agreement. (Appellants’ brief, p. 6.) These cases, however, 

have nothing to do with, and do not negate, the rule that “failure to raise an issue 

before an administrative body precludes a litigant from asserting that issue in an 

action for judicial review of the agency’s action.” O’Dea v. Clark, 883 S.W.2d 

888, 892 (Ky. App. 1994). That is the rule that governs here, and it precludes this 

Court from reversing on a ground which the administrative board was never given 

the opportunity to address.

Even if Appellants had raised the argument in a timely manner while 

the administrative board still had jurisdiction, and presuming the same outcome, 

we would not be persuaded to reverse anyway. We find no error in the circuit 

court’s conclusion that the City Commission complied with KRS Chapter 100. 

KRS 100.209 allows a city to amend its comprehensive plan and official zoning 
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map in the event it annexes or accepts transfer of territory, provided it follows 

these steps first:

When a city which has adopted zoning or other land use 

regulations pursuant to this chapter proposes to annex 

unincorporated or accept the transfer of incorporated 

territory, it may amend its comprehensive plan and official 

zoning map to incorporate and establish zoning or other 

land use regulations for the property proposed for 

annexation or transfer prior to adoption of the ordinance 

of annexation or transfer. If the city elects to follow this 

procedure, the planning commission shall hold a public 

hearing, after the adoption of the ordinance stating the 

city’s intention to annex or transfer property and prior to 

final action upon the ordinance of annexation or transfer, 

for the purpose of adopting the comprehensive plan 

amendment and making its recommendations as to the 

zoning or other land use regulations which will be 

effective for the property upon its annexation or transfer. 

Notice setting forth the time, date, location, and purpose 

of the public hearing shall be published as required by 

KRS Chapter 424 and shall be given to the owners of all 

properties within the area proposed for annexation or 

transfer and to adjoining property owners in accordance 

with KRS 100.212(2). The city legislative body shall take 

final action upon the planning commission’s 

recommendations prior to adoption of the ordinance of 

annexation or transfer and shall include in the ordinance 

of annexation or transfer a map showing the zoning or 

other land use regulations which will be effective for the 

annexed or transferred property. If the city elects not to 

follow the procedure provided for in this section prior to 

the adoption of the ordinance of annexation or transfer, the 

newly annexed or transferred territory shall remain subject 

to the same land use restrictions, if any, as applied to it 

prior to annexation or transfer until those restrictions are 

changed by zoning map amendments or other regulations 

in accordance with this chapter.
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KRS 100.209(1). Appellants argue that, because the city annexed and rezoned real 

property and did not amend the comprehensive plan, the previous agricultural 

zoning still applies to the land. Accordingly, they argue the City Commission 

acted in excess of its powers.

We detect no error in the circuit court’s conclusion that the City 

Commission processed the zoning map amendment in accordance with KRS 

100.209(1). On June 10, 2019, the City Commission adopted Ordinance 1053-

2019 expressing its intention to annex the former country club. Accordingly, it did 

so prior to a public hearing on Tall Oak’s application on February 24, 2020. 

Lastly, the City Commission took final action by adopting Ordinance 018-2020, 

reversing the decision of the Planning Commission and annexing the land.

Appellants argue the statutory procedure was not followed because no 

attempt was made to amend the comprehensive plan. As the statute states, a city 

“may amend its comprehensive plan and official zoning map to incorporate and 

establish zoning or other land use regulations for the property proposed for 

annexation or transfer prior to adoption of the ordinance of annexation or transfer.” 

KRS 100.209(1) (emphasis added). However, the word “and” in the statute does 

not operate to require amendment to a comprehensive plan where, as here, no 

amendment to the comprehensive plan was required to bring the zoning 

amendment into conformity with it.
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“As a matter of application, all statutes are to be liberally construed to 

promote the objects and carry out the intent of the General Assembly.” 

Richardson v. Louisville/Jefferson Cnty. Metro Gov’t, 260 S.W.3d 777, 779 (Ky. 

2008) (citing KRS 446.080(1)). If a statute is unambiguous, courts do not need to 

resort to extrinsic evidence to determine the General Assembly’s intent. Id. (citing 

Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 94 (Ky. 2005)). However, 

a “statute is generally open to construction only where the language used requires 

interpretation or may be reasonably considered ambiguous.” Overnite Transp. Co. 

v. Gaddis, 793 S.W.2d 129, 131 (Ky. App. 1990) (citing 73 AM.JUR. 2D Statutes

§§ 145 & 194 (1974)). “We presume, of course, that the General Assembly did not 

intend an absurd or manifestly unjust result.” Richardson, 260 S.W.3d at 779 

(citing Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky. 2004)). 

In our view, it would yield an absurd result if the word “and” in the 

first sentence of KRS 100.209 were read to require amendment of a city’s 

comprehensive plan in every instance a city wanted to change its zoning map, even 

if the proposed change already aligned with the comprehensive plan. We have 

recognized that “and” is not used as a necessary connection in every instance and, 

therefore, may be ambiguous. In Duncan v. Wiseman Baking Company, we noted 

that, because “the popular use of the words ‘or’ and ‘and’ is loose and frequently 

inaccurate, the courts may and should change ‘and’ to ‘or,’ and vice versa, 
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whenever such conversion is required[.]” 357 S.W.2d 694, 698 (Ky. 1961) 

(citations omitted). While the use of “and” at issue in KRS 100.209 does not 

require that we read “and” to mean “or,” we avoid an absurd result here by reading 

the statute as not requiring amendment to a comprehensive plan every time a city’s 

zoning map is amended.

Indeed, this outcome is contemplated elsewhere in KRS Chapter 100. 

As KRS 100.213 provides, “[b]efore any map amendment is granted, the planning 

commission or the legislative body or fiscal court must find that the map 

amendment is in agreement with the adopted comprehensive plan[.]” KRS 

100.213(1). The City Commission explicitly determined as much in its findings of 

fact. When read in light of KRS 100.213(1), it cannot be the case that KRS 

100.209 requires amendment to a comprehensive plan in every instance. 

Accordingly, the City Commission complied with applicable law and, therefore, 

the manner by which it approved the zoning map amendment did not exceed its 

statutory powers.

Nicholasville Code of Ordinances Chapter 26.

Second, Appellants argue the Code of Ordinances requires a 

developer to submit a storm water management plan before real estate 

development can be approved, which Tall Oak did not do. However, we agree 

with the circuit court that Appellants misread the applicable ordinances.
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Nicholasville Code of Ordinances Chapter 26, titled “STORM 

WATER MANAGEMENT[,]” provides detailed instructions for storm water 

management plan proposals and when such plans are required. See

NICHOLASVILLE, KY., CODE OF ORDINANCES ch. 26 (2019). Article II, Division 6 

of Chapter 26 is titled “REQUIREMENTS FOR STORM WATER 

MANAGEMENT PLAN APPROVAL[,]” NICHOLASVILLE, KY., CODE OF 

ORDINANCES ch. 26, art. II, div. 6 (2019). Appellants argue two sections of 

Division 6 – Sec. 26-270 and Sec. 26-271 – required Tall Oak to submit storm 

water management plan alongside its development plan.

Division 6, Sec. 26-270, titled “Storm water management plan 

required for all developments[,]” provides:

(a) No application for development will be approved 

unless it includes a storm water management plan 

detailing in concept how runoff and associated water 

quality impacts resulting from the development will be 

controlled or managed. This plan must indicate 

whether storm water will be managed on site or off site 

and, if on site, the general location and type of 

practices. 

(b) The storm water management plan(s) shall be referred 

for comment to all other interested agencies, and any 

comments must be addressed in a final storm water 

management plan. This final plan must be signed by 

a licensed professional engineer (PE), who will verify 

that the design of all storm water management 

practices meet the submittal requirements outlined in 

the BMP manual. No building permit, approved 

construction plans, or grading permit shall be issued 
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until a satisfactory final storm water management 

plan, or a waiver thereof, shall have undergone a 

review and been approved by the planning 

commission after determining that the plan or waiver 

is consistent with the requirements of this article.

NICHOLASVILLE, KY., CODE OF ORDINANCES ch. 26, art. II, div. 6, § 26-270 (2019) 

(emphasis added). Division 6, Sec. 26-271, titled “Storm water management 

concept plan requirements,” provides:

(a) A storm water management concept plan shall be 

required with all permit applications and will include 

sufficient information (e.g., maps, hydrologic 

calculations, etc.) to evaluate the environmental 

characteristics of the project site, the potential impacts 

of all proposed development of the site, both present 

and future, on the water resources, and the 

effectiveness and acceptability of the measures 

proposed for managing the storm water generated at 

the project site. The intent of this conceptual planning

process is to determine the type of storm water 

management measures necessary for the proposed 

project, and ensure adequate planning for management 

of storm water runoff from future development. To 

accomplish this goal the following information shall 

be included in the storm water management concept 

plan;

(1) A map (or maps) indicating the location of 

existing and proposed buildings, roads, parking 

areas, utilities, structural storm water 

management and sediment control facilities. 

The map(s) will also clearly show proposed 

land use with tabulation of the percentage of 

surface area to be adapted to various uses; 

drainage patterns; locations of utilities, roads 

and easements; the limits of clearing and 

grading; a written description of the site plan 
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and justification of proposed changes in natural 

conditions may also be required.

(2) Sufficient engineering analysis to show that the 

proposed storm water management measures 

are capable of controlling runoff from the site in 

compliance with this article and the 

specifications of the BMP manual.

(3) A written description of the required 

maintenance burden for any proposed storm 

water management facility.

(b) For development or redevelopment occurring on a 

previously developed site, an applicant shall be 

required to include within the storm water 

management concept plan measures for controlling 

existing storm water runoff discharges from the site in 

accordance with the standards of this article to the 

maximum extent practicable.

NICHOLASVILLE, KY., CODE OF ORDINANCES ch. 26, art. II, div. 6, § 26-271 (2019) 

(emphasis added).

The circuit court determined that the applicable ordinances, 26-270 

and 26-271, do not apply at this stage of the development process, in view of other 

provisions of Chapter 26 of the Nicholasville Code of Ordinances. We find no 

error in this conclusion.

Chapter 26, Article II, Division 2 is titled “PERMIT PROCEDURES 

AND REQUIREMENTS[,]” and Sections 26-220 and 26-221 reveal when in the 

development process a developer is required to submit a storm water management 

plan. Division 2, Sec. 26-220, titled “Permit required[,]” provides:
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No land owner or land operator shall receive any of the 

building, grading or other land development permits 

required for land disturbance activities without first 

meeting the requirements of this article prior to 

commencing the proposed activity.

NICHOLASVILLE, KY., CODE OF ORDINANCES ch. 26, art. II, div. 2, § 26-220 (2019) 

(emphasis added). Division 2, Sec. 26-221, titled “Application requirements”

provides as relevant:

(a) Unless specifically excluded by this article, any land 

owner or operator desiring a permit for land disturbance 

activity shall submit to the planning commission a permit 

application. A copy of the building or grading permit 

application form can be obtained from the planning 

commission office.

(b) Unless otherwise exempted by this article, a building 

permit, approved construction plans, or grading permit 

application must be accompanied by the following in 

order that the permit application be considered: a storm 

water management plan (SWMP); a maintenance 

agreement; and all applicable nonrefundable permit 

review fees.

NICHOLASVILLE, KY., CODE OF ORDINANCES ch. 26, art. II, div. 2, § 26-221(a) & 

(b) (2019) (emphasis added). 

Reading Chapter 26 as a whole, we agree with the circuit court’s 

determination that a storm water management plan is not required at the rezoning 

stage of the development process. Instead, a developer is required to submit their 

plan later in the process; specifically, the plan is a prerequisite for land disturbance 

activity, rather than initial approval of a development plan or approval of a 
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rezoning request. See id. We agree with the circuit court that the City 

Commission’s decision was not arbitrary. 

CONCLUSION

Based on the foregoing, we affirm the Jessamine Circuit’s December 

22, 2021 Order affirming the Nicholasville City Commission.

ALL CONCUR.

BRIEF FOR APPELLANTS:

T. Bruce Simpson, Jr.

Lexington, Kentucky

BRIEF FOR APPELLEES 

NICHOLASVILLE BOARD OF 

COMMISSIONERS, AND THE CITY 

OF NICHOLASVILLE:

Clifford H. Ashburner

Suzanne M. Marino

Louisville, Kentucky

BRIEF FOR APPELLEE TALL OAK, 

LLC:

Bruce E. Smith

Nicholasville, Kentucky