RENDERED: JUNE 14, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0690-MR

STEPHEN E. WAGLER AND ROSIE 

M. WAGLER APPELLANTS 

v. 

APPEAL FROM MASON CIRCUIT COURT

HONORABLE JAY B. DELANEY, SPECIAL JUDGE

ACTION NO. 21-CI-00181

MASON COUNTY FISCAL COURT APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, GOODWINE, AND A. JONES, JUDGES.

GOODWINE, JUDGE: Stephen E. Wagler and Rosie M. Wagler (“the Waglers”) 

appeal from a Mason Circuit Court order affirming the Mason County Fiscal 

Court’s decision to deny a zone map amendment and granting the Mason County 

Fiscal Court’s motion for an injunction. The Waglers claim the circuit court erred 

in affirming the fiscal court’s decision, and finding they were afforded adequate 
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due process. The Waglers make no argument regarding the injunction. Based on 

our review, finding no error, we affirm. 

BACKGROUND

According to the Mason Circuit Court’s order, “[i]n 2005, the 

[Waglers] established a local furniture store on their farm property abutting U.S. 

68 just south of May’s Lick, Kentucky at 5895 U.S. 68 which consisted of 

approximately five acres.” Record (R.) at 94. The five-acre furniture store tract is 

part of a 130.74-acre tract owned by the Wagers and is zoned as “A-2 

Agricultural.” Id. Use of land zoned A2-Agricultural for retail furniture trade is 

specifically prohibited by the Mason County Land Use Ordinance. However, “[i]n 

2015, the furniture business, Pleasant View Furniture, became ‘grandfathered’ in 

under the zoning code as it had been in existence for more than ten (10) years” and 

became a legal non-conforming use, to which the fiscal court stipulated below. Id. 

In 2019, the Waglers “applied for, and were granted a building permit 

to construct a new [building] on three (3) acres adjacent to their present five (5) 

acre site. Said new building was originally intended only for feed/seed/garden

/farm supplies.” Id. at 95. A gardening/farm supply store is an agricultural use 

that is protected by the “zoning regulation, but [the fiscal court] did not authorize 

the operation of a retail furniture store on the site.” Id. 
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In 2020, construction of the new building was completed. During the 

COVID-19 pandemic, the Waglers “changed the new building’s use to furniture 

sales to be more economically feasible, expanding their existing furniture sales”

from the existing building on the original five-acre tract. Id. The Waglers 

conceded “that the new building’s use did not conform with the current zoning 

code.” Id. However, in May 2020, they began advertising the new building “as 

their new 11,000 square foot showroom with their expanded inventory of 

furniture.” Id. (internal quotation marks omitted). 

On May 28, 2020, the fiscal court sent the Waglers “a letter informing 

them of the zoning violation and demanding the return of any retail furniture retail 

operation to its smaller footprint” in the original building. Id. Though the parties 

attempted negotiation, ultimately Mr. Wagler was charged with a misdemeanor for 

violating a county ordinance. 

On April 13, 2021, the Waglers filed an application for a zoning map 

amendment seeking to rezone the eight acres “of their farm road frontage from ‘A2 Agricultural” to “B-2 Highway Business.’” In the application, the Waglers 

argued that because they had an existing business on the property for more than ten 

years, rezoning would be an extension of the existing business and would not alter 

the character of the property. R. at 96. 
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On June 2, 2021, the Mason County Joint Planning Commission held 

a hearing on the Waglers’ rezoning application. Administrative Officer George 

Larger submitted his staff report to the planning commission, and it was made part 

of the record. Larger’s report summarized the Waglers’ application, the mandatory 

procedure for the Waglers’ application to be heard on the merits, and Larger’s 

assessment of rezoning the area from A-2 Agricultural to B-2 Highway Business. 

The report concluded that rezoning would be “inappropriate and undesirable 

without the installation of adequate infrastructure.” Id. Additionally, the report 

noted that “there is no public sewer available to it, and the chance of having public 

sewer access on the property in the near future is extremely low.” Id. 

The planning commission’s findings of fact and Larger’s report stated 

their concerns about traffic and whether granting the application would increase 

threats to highway safety. The report stated:

Also, US 68 consists of two lanes at the property and for 

miles in either direction. Without a second lane on each 

side of US 68 in which other vehicles can pass, vehicles 

slowing down or stopping in order to enter or leave the 

property present a potential public safety hazard, 

especially when considering the commercial traffic that 

uses the highway. B-2 Highway Business is an intensive 

land use classification, so there should be adequate travel 

lanes to prevent traffic collisions due to the potentially 

high volume of patrons coming from and going to 

businesses located in such commercial zones. 

R. at 97.
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Then the planning commission heard the Waglers’ argument in 

support of their application. The commission also heard questions and testimony 

from a few members of the general public, both in favor of and opposing the 

amendment. At the close of the hearing, the planning commission discussed the 

application in open session. The commission discussed:

issues concerning traffic and whether granting the 

application would increase threats to highway safety. 

They compared the current application to a prior 

application of Dollar General for re-zoning just north of 

May’s Lick that was denied in large part due to traffic 

concerns. They discussed prior re-zonings that were 

initiated by the Commission for property located on both 

sides of the AA highway west of Maysville and how 

those compared to the current application.

R. at 65. After discussion, the planning commission voted 5-2 to recommend 

approving the zoning amendment. 

In its written findings of fact, conclusions of law, and 

recommendation, the planning commission concluded:

That the requested map amendment is in conformity with 

the Comprehensive Plan in that the property in question 

sits on an urban corridor and is thus appropriate for 

commercial use. Additionally, there have been major 

changes of an economic, physical or social nature in the 

immediate area which were not anticipated in the adopted 

comprehensive plan and which have substantially altered 

the basic character of such area. The applicant’s existing 

business, which is substantial, along with other new 

businesses in the area, have made what was once an 

agricultural area only more of a mixed use area. 
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R. at 65-66.

On July 13, 2021, the fiscal court held its first meeting regarding the 

Waglers’ application for rezoning. The fiscal court limited its consideration of the 

proposed map amendment to the planning commission’s record but allowed 

argument. At the first reading of Ordinance 21-06 regarding the application, the 

fiscal court rejected the planning commission’s recommendation and denied the 

Waglers’ request to rezone their property. 

On August 10, 2021, the fiscal court held a second meeting regarding 

the application for rezoning. Again, the fiscal court heard no evidence, but

arguments were presented in favor of and against rezoning. The fiscal court voted 

3-1 against the Waglers’ rezoning application and entered findings of fact and 

conclusions of law reflecting its decision to deny the rezoning application. 

On August 30, 2021, the Waglers filed an appeal in the circuit court. 

The fiscal court filed a timely counterstatement and a counterclaim for temporary 

injunction. The circuit court noted that it did not receive notice that the case was 

ready for adjudication until October 20, 2022. 

On January 2, 2023, the circuit court entered an order dismissing the 

Waglers’ appeal and granting the fiscal court’s motion for a temporary injunction. 

The injunction required the Waglers “to cease and desist the operation of a retail 
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furniture operation from the expanded site and to return such retail furniture 

operation to its earlier and ordinary use.” R. at 104. 

On January 4, 2023, the Waglers moved to alter, amend, or vacate the 

circuit court’s order dismissing their appeal and granting temporary injunction. 

The Waglers argued their appeal constituted an original action, so they should have 

been permitted to conduct discovery. Additionally, they argued the fiscal court 

and circuit court erred in relying on the unsupported claims that there was a lack of 

infrastructure and traffic safety concerns in denying the rezoning application and 

affirming it. On May 10, 2023, the circuit court entered an order denying the 

Waglers’ motion. The court found “discovery is not appropriate in this zoning 

appeals case,” and the fiscal court’s denial of the Waglers’ application “was not 

arbitrary.” R. at 115. This appeal followed. 

On appeal, the Waglers argue the circuit court erred in: (1)

disallowing discovery and (2) affirming the fiscal court’s arbitrary decision. The 

Waglers make no argument regarding the injunction.

ANALYSIS

First, the Waglers argue the circuit court erred in dismissing the action 

without allowing discovery because this was an original action. We disagree. “A 

challenge to a fiscal court’s action must be designated an ‘original action,’ because 

the fiscal court is not a judicial court, which precludes an “appeal” per se. 
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Nonetheless, calling the proceeding an original action does not convert the review 

of a local legislative body’s decision into a trial de novo.” Trimble Fiscal Court v. 

Snyder, 866 S.W.2d 124, 127 (Ky. App. 1993) (citations omitted). Thus, “the

circuit court was confined to the record made before the [planning] commission 

and before the legislative body.” City of Louisville v. Kavanaugh, 495 S.W.2d 

502, 505 (Ky. 1973).

Second, the Waglers argue the fiscal court’s decision to deny their 

rezoning application was arbitrary and unsupported by substantial evidence. The 

fiscal court chose to rely on the planning commission’s record and did not take 

further testimony or evidence. Instead, the fiscal court only heard argument. The 

Waglers take issue with the fiscal court’s reliance on the planning commission’s 

record. In their view, the fiscal court’s findings regarding issues with the area’s 

roadways, sewer, and other infrastructure were based on the planning 

commission’s discussion. Still, the Waglers argue no actual evidence on these 

issues was presented to the planning commission. Thus, the Waglers argue the 

fiscal court’s decision was not based on substantial evidence.

Because “zoning determinations are purely the responsibility and 

function of the legislative branch of government,” our review is limited to whether 

the fiscal court’s denial of the Wagler’s zone map amendment application was 

arbitrary. Hilltop Basic Resources, Inc. v. Cnty. of Boone, 180 S.W.3d 464, 467 
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(Ky. 2005). “Arbitrariness review is limited to the consideration of three basic 

questions: (1) whether an action was taken in excess of granted powers, (2) 

whether affected parties were afforded procedural due process, and (3) whether 

determinations are supported by substantial evidentiary support.” Id. 

The Waglers do not argue that the fiscal court acted in excess of its 

granted powers, so we begin our review with whether they were afforded 

procedural due process. “[P]rocedural due process requires at least that the local 

legislative body in rezoning matters act on the basis of a record and on the basis of 

substantial evidence.” City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky. 

1971). “So long as the staff report is composed of competent evidence, all 

interested parties are given an opportunity to study and respond to the report, and 

the party preparing the report is available for examination, then the Planning 

Commission’s use of its staff report does not violate due process.” Warren Cnty. 

Citizens for Managed Growth, Inc. v. Board of Com’rs of City of Bowling Green, 

207 S.W.3d 7, 18 (Ky. App. 2006). Due process is satisfied at the planning 

commission level when “the staff report [is] introduced into the record,” the 

administrative or executive officer is “subject to cross-examination at the public 

hearings[,]” and “[a]ll interested parties [are] permitted to introduce evidence and 

speak at the hearings.” Id. 
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After the planning commission makes a recommendation, the fiscal 

court “may review the record made before the commission and determine from that 

evidence adjudicative facts which differ from those found by the commission.” 

McDonald, 470 S.W.2d at 179. The fiscal court is not required to “hold its own 

trial-type hearing.” Id. If “the legislative decision is simply a refusal to rezone” 

we must determine “whether or not the evidence shows a compelling need for the 

rezoning sought or clearly demonstrates that the existing zoning classification is no 

longer appropriate.” Id.; KRS1 100.213(1)(a). “If the legislative body does not 

follow the recommendations of the planning and zoning commission, the 

legislative body must make its own findings of adjudicative facts. Any decision to 

grant or deny an application for zone map amendment must be supported by a 

finding of adjudicative facts.” McKinstry v. Wells, 548 S.W.2d 169, 174 (Ky. App. 

1977).

Based on our review of the record, the Waglers are incorrect that no 

evidence was presented to the planning commission. Their argument combines the 

procedural due process and substantial evidence factors for determining whether 

the fiscal court’s decision was arbitrary. As to procedural due process, the 

planning commission considered Larger’s staff report, Larger was subjected to 

cross-examination, and testimony was presented at the hearing. Though the fiscal 

1 Kentucky Revised Statutes.
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court did not hold its own trial-type hearing and declined to follow the planning 

commission’s recommendation, it relied on the planning commission’s record in 

denying the rezoning application. Reliance on the record is all that is required. 

Thus, the Waglers were afforded procedural due process. 

Finally, the fiscal court’s denial of the rezoning application was 

supported by substantial evidence. “[T]he failure to grant administrative relief to 

one carrying the burden is arbitrary if the record compels a contrary decision in 

light of substantial evidence therein.” Bourbon Cnty. Bd. of Adjustment v. 

Currans, 873 S.W.2d 836, 838 (Ky. App. 1994). “The rule in Kentucky is that if 

there is substantial evidence in the record to support an agency’s findings, the 

findings will be upheld, even though there may be conflicting evidence in the 

record.” Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 

(Ky. 1981).

Larger’s staff report contains statements regarding a lack of 

infrastructure and potential traffic concerns. Conversely, the Waglers argued the 

rezoning application conforms to the comprehensive plan because the property is 

along an urban corridor. The A-2 Agricultural zoning classification is no longer 

appropriate because the land is already being used for the furniture business, and 

there are other commercial businesses nearby along US 68. 

Based on the record before it, the fiscal court reasoned:
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[T]he Fiscal Court finds that the entire area is zoned A-2 

Agricultural and that the property subject to the 

application is two miles from the nearest commercial 

zoning classification, eight miles from the nearest B-1 

General Business zone, and 11 miles from the nearest B2 Highway Business zone. The Fiscal Court finds that 

the applicants’ proposal of an operation equivalent to 

Wheat Ridge is not appropriate for the site, and the 

present classification as A-2 Agricultural is consistent 

with the Comprehensive Plan. Indeed, the surrounding 

area is zoned entirely agricultural, and to approve the 

map amendment as requested would constitute 

impermissible spot zoning. The Fiscal Court finds that 

the Comprehensive Plan requires any such rezoning to 

occur only “once infrastructure is improved.’” Pertinent 

infrastructure includes public water, sewer, and suitable 

roadways. The Fiscal Court finds that the site has public 

water but will not have public sewer for the foreseeable 

future. The Fiscal Court finds the current two-lane 

highway inadequate to support the higher volume of 

traffic anticipated with a zone change to B-2 Highway 

Business while ensuring the safety of the public. The 

Fiscal Court has grave concern over the danger created 

by the increase in traffic in the area and the hazards 

posed by any vehicle, let alone a large commercial 

vehicle, making direct entry to and exit from the site, 

particularly given the grade of the existing entrance. 

R. at 101.

The circuit court found, and we agree, that the fiscal court complied 

with its obligation under KRS 100.213 to write separate adjudicative findings as to 

why it denied the Waglers’ application and declined to follow the planning 

commission’s recommendation. Thus, based on our review of the record, it does 

not compel a contrary result. Though there was conflicting evidence in the record, 
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substantial evidence supported the fiscal court’s denial of the rezoning application 

based on its concerns about a lack of infrastructure and traffic safety. 

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Mason 

Circuit Court. 

ALL CONCUR.

BRIEF FOR APPELLANTS:

Alex D. Smith

Maysville, Kentucky

BRIEF FOR APPELLEE:

Robin David Rice

Assistant Mason County Attorney

Maysville, Kentucky