Doug Daniel v. Henry County Fiscal Court

• Court: Court of Appeals of Kentucky
• Decided: May 1, 2026
• Docket: 2024-CA-0920
• Status: Unpublished

Opinion

RENDERED: MAY 1, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0920-MR

DOUG DANIEL APPELLANT

APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE JERRY CROSBY, II, JUDGE ACTION NO. 23-CI-00064

HENRY COUNTY FISCAL COURT; HENRY COUNTY PLANNING AND ZONING COMMISSION; JESS MALIN; KRISTIAN MALIN; AND ROBERT MALIN APPELLEES

OPINION REVERSING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellant, an aggrieved landowner, challenges the decision of

the Henry Circuit Court with respect to approval of Appellee Malins’ zoning map

amendment. Because Appellee Henry County Fiscal Court failed to comply with

the statutory requirement that a zoning map amendment be enacted through a

written ordinance, we reverse. BACKGROUND

On April 14, 2021, the Malins filed an application with the Henry

County Planning and Zoning Board of Adjustments for a conditional use permit

(CUP) pursuant to Henry County Zoning Ordinance (HCZO) Art. VI, §

640(I)(C)(13) for their sixty-seven- (67) acre property on Lacie Road in Turners

Station, Henry County, Kentucky, where they sought to operate a wedding and

event barn, outdoor amphitheater, and a farm building where local produce and

products could be sold. The property was zoned A-1 (Agricultural – Farming

Oriented) at the time of the Malins’ application. They sought a CUP, as opposed

to rezoning, because their plans were quasi-agricultural by promoting agritourism

pursuant to HCZO Art. VI, § 640(I)(C)(13).

Following a hearing, the Board of Adjustments denied the application

due to inadequate traffic infrastructure and adverse impacts to adjacent

landowners. (Record (R.) at 470). The Malins appealed to Henry Circuit Court on

August 8, 2021, and the matter was held in abeyance pending the parties’

settlement.

The Malins submitted a different application, Application 2023-02Z,

to the Henry County Planning and Zoning Commission on January 9, 2023. This

application was for a joint zone map amendment and CUP. The Malins sought a

zoning change from A-1 to B-2 (Business – Highway/General) for 8.5 acres of the

-2- property and a CUP for the remaining 58.5 acres of the property. The B-2 zone

would include an agricultural related store where farm-grown and Kentucky Proud

products would be sold alongside other related products. The CUP for the

remaining portion of the Malin property would permit agritourism activities which

complement the retail store, including U-pick fields, field mazes, holiday

celebrations and events, a petting zoo, an amphitheater, and an event barn for

weddings and other events. The application claimed “substantial new development

in the area” warranted the zone change to B-2.

The Planning Commission held a public hearing regarding

Application 2023-02Z on February 8, 2023. At the hearing, counsel for the Malins

acknowledged the Malins’ 2021 CUP application and explained that the matter was

on appeal in Henry Circuit Court, pending settlement of the parties “once this

[Application 2023-02Z] is approved.” He also claimed the purpose of the new

application was because the Malins had “decided to go a different direction” with

the property: while the farm building proposed in the 2021 CUP application was

strictly agricultural in nature, Application 2023-02Z seeks to establish a retail store

that is commercial in nature.

The Planning Commission spent nearly three hours collecting

evidence during the hearing, including a presentation from the Malins, testimony in

support and in opposition of the proposal, questioning with the Malins, and

-3- questioning from the public. The Planning Commission confirmed that the

applicants were agreeable to certain binding elements for the CUP: limit of one

special event per weekend for a total of thirty weekends; maintain at least twenty

five percent of the property as agricultural; no outdoor storage of entertainment

equipment; construct all structures at least two hundred feet from adjoining

property lines; construct the amphitheater facing away from the nearest adjoining

property line; shut down all outdoor entertainment by 10:00 p.m. on Fridays and

Saturdays and by 8:00 p.m. on all other nights; and only one firework event

permitted during the week of the Fourth of July and New Year’s Eve.

At the conclusion of the hearing, the Planning Commission

recommended approval of Application 2023-02Z, finding the proposal and its

required safeguards to be consistent with the Henry County Comprehensive Plan.

(R. at 205-11).

Daniel, an adjacent property owner, then submitted a letter to the

Henry County Fiscal Court seeking legislative review of the recommendation. The

matter came before the Fiscal Court for review on March 21, 2023. The Fiscal

Court members were given the Planning Commission’s meeting minutes, their

Findings and Recommendations, and the Certificate of Land Use Restriction.

County Attorney Kassidy Dees informed the Fiscal Court of its options on review:

uphold the findings of the Planning Commission to approve; make new findings

-4- based on the record; or hold an independent hearing from the same evidence

originally presented or with the introduction of new evidence. After reviewing the

evidence, a motion for approval pursuant to the Planning Commission’s

recommendation was passed by a 5-1 vote.

Following the Fiscal Court’s approval, Daniel filed a Complaint in the

Henry Circuit Court seeking declaratory relief and pursuing an administrative

appeal. The Fiscal Court and Planning Commission filed the certified record on

appeal, which prompted Daniel to file a motion to supplement the record with the

following: (1) a copy of all Planning Commission staff reports associated with the

Malins’ application; (2) a copy of the Ordinance passed by the Fiscal Court

adopting the zone map amendment; (3) evidence of a second reading of ordinance

by the Fiscal Court; (4) correspondence between the Fiscal Court members and

Planning Commission members as well as the applicants and their designated

representatives with the entities listed; and (5) a copy of the notice or motion to

enter closed session made by the Fiscal Court members with the applicable open

meetings exemption from the March 21, 2023 meeting held by the Fiscal Court, as

well as a log of the general topics discussed from the March 21, 2023 closed

session along with the applicable Open Meetings Exemption. (R. at 356). The

court denied Daniel’s motion to supplement after holding oral arguments on the

issue. Daniel then filed for summary judgment, which the Circuit Court denied

-5- and instead affirmed the approval of Application 2023-02Z. Daniel now appeals

the Circuit Court’s order denying supplementation of the record and its order

denying summary judgment.

STANDARD OF REVIEW

Effective June 27, 2025, a court shall apply de novo review of an

agency’s final order on questions of law, and an agency’s interpretation of a statute

or administrative regulation shall not be entitled to deference. KRS1 446.084.

ANALYSIS

I. Use of the word “required” in KRS 100.203(5) is not to be strictly construed. Appellant argues the trial court erred as a matter of law when it held

the joint application was proper and the zone map amendment “required” the CUP.

He argues the Planning Commission was not authorized to hear and decide

Application 2023-02Z because the application did not “require” a CUP, and

instead, the application should have been separated into two applications because

the retail farm building requiring a zone change “is for a separate parcel and for a

separate use.” (Appellant’s Br. at 11).

KRS 100.203 authorizes cities and counties to enact zoning

regulations through a text. The statute provides that a text “may empower the

1 Kentucky Revised Statutes.

-6- planning commission to hear and finally decide applications for variances or

conditional use permits when a proposed development requires a map amendment

and one (1) or more variances or conditional use permits[.]” KRS 100.203(5). The

HCZO has a similar statute enabling the same: “When an application for a zoning

map amendment also requires one (1) or more variances or conditional use permits,

the applicant may elect to have [them] heard and finally decided by the planning

commission at the same public hearing[.]” HCZO Art. III, § 325. Generally,

however, CUP applications are to be heard by local zoning boards when there is no

map amendment involved. See KRS 100.237. This Court has previously

recognized the affinity toward local expertise over zoning matters, having noted

Kentucky courts have routinely construed KRS Chapter 100 as giving wide latitude

to the planning body. See Bellemeade Co. v. Priddle, 503 S.W.2d 734, 738 (Ky.

1973) (construing statutory language to authorize floating zones); see also Ward v.

Knippenberg, 416 S.W.2d 746, 748 (Ky. 1967) (zoning body not bound to follow

every detail of land use plan).

The trial court rejected Appellant’s argument that the zone map

amendment did not “require” the CUP because each applied to different sections of

the Malin property. As was similarly lacking before the trial court, Appellant

failed to provide any authority to support this argument. He merely asserts the

CUP application is “incidental” to the zone map amendment, though such a claim

-7- is incompatible with the fact that had either (1) the zoning map amendment for the

retail store or (2) the CUP for the U-pick farm, petting zoo, etc., been denied, the

application as a whole could not have proceeded. The Malins filed one application

for one development which proposed both a zoning change and a CUP.

Kentucky courts have yet to address the function of the word

“requires” in either KRS 100.203(5) or HCZO Art. III, § 325, so we take this

opportunity to decline Appellant’s narrow interpretation of the word. We hold that

where, as here, an application for the same development on a single parcel

proposes a zoning map amendment in addition to one or more CUPs, and it is

necessary for both to be granted in order to approve the proposal in entirety, an

applicant may elect the planning commission to have them heard and finally

decided pursuant to KRS 100.203(5) and/or HCZO Art. III, § 325.

II. A zoning map amendment cannot be effectuated without a valid written ordinance, passed after having been read twice. Appellant next asserts that the Fiscal Court failed to introduce and

pass a written ordinance after two readings, in violation of KRS 67.076 and

67.077(1).

Both statutes are within a section governing fiscal courts. KRS

67.076 permits “[o]ther official actions, including but not limited to approvals

required by the fiscal court, [to] be taken by resolution, order, or motion.”

However, “[n]o action embraced in the term ‘county ordinance’ may be taken

-8- except by passage of a county ordinance,” which must be introduced in writing.

Id. KRS 67.077(1) requires an ordinance to be read on two (2) separate occasions

prior to passage.

Appellant argues the trial court erred in determining the Malins’

application fell into the category of “other official actions” able to be taken by

motion. The effect of a re-zoning proposal being “approved” as an “other official

action,” as opposed to an ordinance, would enable a fiscal court to entirely bypass

KRS 67.077(1)’s two-reading requirement.

It is undisputed that the Fiscal Court, on March 21, 2023, approved

the Planning Commission’s recommendations as to Application No. 2023-02Z,

without a written ordinance and without a second reading. Appellee claims that

KRS 67.076 and 67.077(1) do not govern the Fiscal Court’s action such that a

valid, twice-read written ordinance is not required to effectuate a zoning map

amendment. They instead point to KRS 100.211(2)(i), claiming the provision

enables a fiscal court to approve a re-zoning application pursuant to a

commission’s recommendation, at which point “the re-zoning amendment is no

longer proposed but is deemed to have passed by operation of law.” (Appellee’s

Br. at 10). This misstates the statute.

The whole statute reads as follows:

Unless a majority of the entire legislative body or fiscal court votes to override the planning commission’s

-9- recommendation, such recommendation shall become final and effective and if a recommendation of approval was made by the planning commission, the ordinance of the fiscal court or legislative body adopting the zoning map amendment shall be deemed to have passed by operation of law.

KRS 100.211(2)(i) (emphasis added). The Fiscal Court did not effectuate a valid

ordinance. Appellee cannot cherry-pick favorable language from a statute that

omits its essence.

Our case law has been clear that KRS 100.211(2)(i) requires a valid

written ordinance for zoning map amendments: Appellant directs us to City of

Lyndon v. Proud, an earlier case from this Court. 898 S.W.2d 534, 535 (Ky. App.

1995). Although Proud addressed a city’s denial of the Planning Commission’s

recommendation for a re-zoning proposal, wherein the landowner asserted “the

only method by which a [c]ity can refuse the recommendation of the planning

commission is by ordinance,” we were tasked with interpreting KRS 100.211(2)(i).

Id. We wrote that “[i]t is apparent from the statutory language, and existing case

law, that an ordinance is required to effectuate a map amendment.” Id. We do not

read KRS 100.211(2)(i) as providing a channel which allows a fiscal court to

bypass the twice-read written ordinance requirement.

Appellees alternatively seek shelter under KRS 67.076(6), which

provides that “[n]o action of a fiscal court shall be invalidated because of improper

denomination of a county ordinance or other written document, if the procedures

-10- required for taking the action have otherwise been observed.” (Emphasis added.)

Fatal to Appellees’ argument, the re-zoning procedures have not been otherwise

observed and their theory of “sufficient compliance” is moot for several reasons.

Relying on this statute, the trial court determined that although it is

“undisputed” the Fiscal Court failed to conduct a second reading of the Malins’

proposed amendment prior to passage, Appellant “failed to articulate how this

procedural error resulted in any material substantive prejudice[.]” (Circuit Court

Order at 15). The trial court quoted Minton v. Fiscal Court of Jefferson County

that “noncompliance with procedural requirements may be excusable or curable,

such as when there has been . . . no material prejudice,” particularly when the

Plaintiff “actively participated at the hearing level and beyond” and simply pointed

to Daniel’s attendance at the singular public hearing on the matter as precluding

material prejudice. 850 S.W.2d 52, 54 (Ky. App. 1992). What the court omitted

from this quote alters it significantly. Minton says the following: “However, it is

recognized that noncompliance with procedural requirements may be excusable or

curable, such as when there has been actual notice and no material prejudice.” Id.

(emphasis added). It is undisputed that the notice requirements here were not met

by the Fiscal Court.

While KRS 67.076(6) requires this Court to consider valid any action

of a fiscal court if the procedures required for taking the action have otherwise

-11- been observed, such is not the case here, and Minton does not require this Court to

excuse or cure substantive noncompliance, only procedural noncompliance.

This Court rejected application of Minton to the enactment of

ordinances. Helm v. Citizens to Protect the Prospect Area, Inc., 864 S.W.2d 312,

314 (Ky. App. 1993). In Helm, the Planning Commission recommended zoning

changes proposed by the appellant landowner. The Commission hand-delivered

notice of its action to the proper authority in the City of Prospect, along with

“unofficial minutes” of the Commission’s meeting. The first reading of the

ordinance was scheduled for several days later at the City Council’s next regular

meeting. The Council met as scheduled, the proposed ordinance was given its first

reading, and a special meeting was scheduled for the second reading of the

ordinance. Prior to the second reading, but after the first, the Commission met and

approved the “unofficial minutes” following minute corrections. We held “it was

incumbent upon the Council to wait until they had received the Planning

Commission’s minutes before they made any attempt to decide whether to adopt

the ordinance.” Id.

The appellant landowner asked that we apply Minton’s rule of

substantial compliance to prevent the defective ordinance from being voided. We

rejected that argument, explaining: “While the substantial compliance rule has its

place in administrative law, it has no place in the enactment of ordinances by local

-12- legislative bodies. A local legislative body to enact a valid ordinance must observe

all legal requirements, including those they impose upon themselves.” Id. (citing

Glazier v. City of Newport, 116 S.W. 262 (Ky. 1909)). We find Helm instructive.

At issue in this case is not a minor procedural oversight. It is a

significant defect, such that no written ordinance was ever prepared to effectuate

the passage of Application 2023-02Z. Simply signing a document titled “Zone

Change Approval” as the Fiscal Court did here does not promote the clarity and

notice otherwise afforded to the public by a written ordinance. We hold that the

rule of substantial compliance does not apply to a fiscal court or legislative body’s

failure to conduct two readings on a zoning map amendment as required by KRS

67.076. Because the Fiscal Court did not comply with this requirement when

seeking to approve the application, the passage of Application No. 2023-02Z is

hereby void.

In view of this decision, we need not address Appellant’s remaining

arguments regarding due process violations or denial of his motion to supplement

the record. The order of the circuit court is reversed and remanded for further

proceedings consistent with this Opinion.

ALL CONCUR.

-13- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE HENRY COUNTY FISCAL COURT AND Randal A. Strobo HENRY COUNTY PLANNING AND Timothy J. Mayer ZONING COMMISSION: Julia D. Taylor Louisville, Kentucky Carol Schureck Petitt Tess M. Fortune Pewee Valley, Kentucky

BRIEF FOR APPELLEES ROBERT MALIN, KRISTIAN MALIN, AND JESS MALIN:

Jake A. Thompson Carrollton, Kentucky

-14-