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 B OARD OF COMMISSIONERS; DOUG BLACKFORD, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE NICHOLASVILLE CITY- 2

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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 MEMBE R 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 Nicholasvi lle 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 s tatutes and the Nicholasville Code of Ordinances. Finding no error, we affirm.- 3

- 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 re venue , 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 Commi ssion 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 ,- 4

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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
F ebruary 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 reason s, t hey sa id 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 Jessamin e 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
conclu ded the City Commission did not act beyond its authority, that Appellants- 5

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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 t he 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 appellan ts 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 instan t 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.- 6

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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 process ed in accordance with KRS 2 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 re zoning 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 cou rt 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.- 7

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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.

T he circuit court determined Appellants waived this argument because they did not raise it before the Planning Commission. We agree.

Citing Nicholasville R oad Neighborhood Consortium, Inc. v. Lexington

- Fayette Urb an C ounty Gov ernment , 994 S.W.2d 521 (Ky. App. 1999)
and Evangelical Lutheran Good Samaritan Soc iety , Inc. v. Albert Oil Co., Inc. , 969 S.W.2d 691 (Ky. 1998) , Appellants argue “provisions of KRS Chapte r 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 o pportunity to address.

E ven 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. W e 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- 8

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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 establis h 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, aft er 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 recomme ndations 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 t he 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.- 9

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KRS 100.209(1). Appellants argue that, because the city annexed and rezoned real property and did no t amend the comprehensive plan, the previous a gricultural 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 processe d 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 appl ication on February 24, 2020. Lastly, the City Commission took final action by adopting Ordinance 0 18

- 2020, reversing the decision of the Planning Commission and annexing the land.

Appellants argue the statutory procedure was not followed because no

atte mpt 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 pr ior 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.- 10

- “As a matter of application, all statutes are to be li berally 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

r esort 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 interpret ation or may be reasonably considered ambiguous.” Overnite Transp. Co.
v. Gaddis , 793 S.W.2d 129, 131 (Ky. App. 1990) (citing 73 A M
. J UR
. 2 D Statutes §§ 145 & 194 (1974)). “We presume, of course, that the General Assembly did not
intend an absurd or mani festly 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 o f 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,
the refore, may be ambiguous . I n Duncan v. Wiseman Baking Co mpany , 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,- 11

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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 requir ing amendment to a co mprehensive 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 cour t must find that the map amendment is in agreement with the adopted comprehensive plan[.]” KRS 100.213(1). The City Commission explicitly determined as m uch in its findings of fact. When read in light of KRS 100.213(1), it cannot be the case that KRS
10 0.209 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 C

ode of Ordinances Chapter 26. Second, Appellants argue t he 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.- 12

- 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
N ICHOLASVILLE , K Y ., C ODE OF O RDINANCES ch. 26 (2019). Article II, Division 6 of Chapter 26 is titled “REQUIREMENTS FOR STORM WATER
MANAGEMENT PLAN APPROVAL [,] ” N ICHOLASVILLE , K Y ., C ODE OF O RDINANCES 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 deve lopments [ , ] ” 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- 13

- until a satisfactory final storm water manag ement 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.
N ICHOLASVILLE , K Y ., C ODE OF O RDINANCES 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 impact s 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- 14

- and j ustification 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 requ ired 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.
N ICHOLASVILLE , K Y ., C ODE OF O R DINANCES ch. 26, art. II, div. 6, § 26

- 271 (2019) ( e mphasis 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 Nic holasville 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 subm it a storm water management plan. Division 2, Sec. 26

- 220 , titled “Permit required [ , ] ” provides:- 15

- No land owner or land operator shall receive any of the building, grading or other land development permits required for land disturbance activities without f irst meeting the requirements of this article prior to commencing the proposed activity.
N ICHOLASVILLE , K Y ., C ODE OF O RDINANCES ch. 26, art. II, div. 2, § 26

- 220 (2019) ( e mphasis added). Division 2, Sec. 26

- 221 , titled “Application requirements” provide s 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 t he permit application be considered: a storm water management plan (SWMP); a maintenance agreement; and all applicable nonrefundable permit review fees.
N ICHOLASVILLE , K Y ., C ODE OF O RDINANCES ch. 26, art. II, div. 2, § 26

- 221(a) & (b) (2019) ( e mphasis ad ded).

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; specif ically, the plan is a prerequisite for land disturbance activity, rather than initial approval of a development plan or approval of a- 16

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rezoning request. See id . We agree with the circuit court that the City Commission’s decision was not arbitrary.
CONCL USION Based on the foregoing, we affirm the Jessamine Circuit’ s December 22, 2021 Order affirming the Nicholasville City Commission.

ALL CONCUR

.

BRIEF FOR APPELLANT S : T. Bruce Simpson, Jr. Lexington, K entucky BRIEF FOR APPELLEE S NICHOLASVILLE BOARD OF COMMISSIONERS, AND THE CITY OF NICHOLASVILLE : Clifford H. Ashburner Suzanne M. Marino Louisville, K entucky
BRIEF FOR APPELLEE TALL OAK, LLC:
Bruce E. Smith Nicholasville, K entucky