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March 27, 2026 Get Citation Alerts Download PDF Add Note

Southpointe Partners, LLC v. louisville/jefferson County Metro Government

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2023-CA-0358
• Precedential Status: Non-Precedential
• Judges: Combs

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (532)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

RENDERED: MARCH 27, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0014-MR

SOUTHPOINTE PARTNERS, LLC
AND 9402 BARTLEY HOMESTEAD,
LLC APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 20-CI-007221

LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; AARON
JENKENS; ANDREW BOLYARD;
BRITTNEY J. BOLYARD;
CHRISTIAN B. JENKENS;
COURTNEY E. JENKENS; DERRICK
AYERS; EVANSVILLE TEACHERS
FEDERAL CREDIT UNION, D/B/A
LIBERTY FINANCIAL; GARY W.
JENKENS REVOCABLE TRUST;
GARY W. JENKENS REVOCABLE
TRUST DATED MAY 6, 1999; GARY
W. JENKENS, IN HIS CAPACITY AS
TRUSTEE OF THE GARY W.
JENKENS REVOCABLE TRUST, IN
HIS CAPACITY AS THE TRUSTEE
OF THE GARY W. JENKENS
REVOCABLE TRUST DATED MAY
6, 1999; GARY W. JENKENS, IN HIS
INDIVIDUAL CAPACITY; HEATHER
J. AYERS; LEGISLATIVE BODY OF
THE LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT,
A/K/A METRO COUNCIL;
LOUISVILLE AND METRO
PLANNING COMMISSION;
SUSANNE W. JENKENS
REVOCABLE TRUST; SUSANNE W.
JENKENS REVOCABLE TRUST
DATED MAY 5, 1999; SUSANNE W.
JENKENS, IN HER CAPACITY AS
TRUSTEE OF THE SUSANNE W.
JENKENS REVOCABLE TRUST, IN
HER CAPACITY AS TRUSTEE OF
THE SUSANNE W. JENKENS
REVOCABLE TRUST DATED MAY
5, 1999; SUSANNE W. JENKENS, IN
HER INDIVIDUAL CAPACITY; AND
SUZANNE JENKENS APPELLEES

AND

NO. 2023-CA-0358-MR

SOUTHPOINTE PARTNERS, LLC
AND 9402 BARTLEY HOMESTEAD,
LLC APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 20-CI-007221

LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; AARON
JENKENS; ANDREW BOLYARD;
BRITTNEY J. BOLYARD;

-2-
CHRISTIAN B. JENKENS;
COURTNEY E. JENKENS; DERRICK
AYERS; EVANSVILLE TEACHERS
FEDERAL CREDIT UNION, D/B/A
LIBERTY FINANCIAL; GARY W.
JENKENS REVOCABLE TRUST;
GARY W. JENKENS REVOCABLE
TRUST DATED MAY 6, 1999; GARY
W. JENKENS, IN HIS CAPACITY AS
TRUSTEE OF THE GARY W.
JENKENS REVOCABLE TRUST, IN
HIS CAPACITY AS TRUSTEE OF
THE GARY W. JENKENS
REVOCABLE TRUST DATED MAY
6, 1999, AND IN HIS INDIVIDUAL
CAPACITY; HEATHER J. AYERS;
LEGISLATIVE BODY OF THE
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT, A/K/A
METRO COUNCIL; LOUISVILLE
AND METRO PLANNING
COMMISSION; SUSANNE W.
JENKENS REVOCABLE TRUST;
SUSANNE W. JENKENS
REVOCABLE TRUST DATED MAY
5, 1999; SUSANNE W. JENKENS, IN
HER CAPACITY AS TRUSTEE OF
THE SUSANNE W. JENKENS
REVOCABLE TRUST, IN HER
CAPACITY AS TRUSTEE OF THE
SUSANNE W. JENKENS
REVOCABLE TRUST DATED MAY
5, 1999, AND IN HER INDIVIDUAL
CAPACITY; AND SUZANNE
JENKENS APPELLEES

AND

-3-
NO. 2024-CA-0841-MR

SOUTHPOINTE PARTNERS, LLC
AND 9402 BARTLEY HOMESTEAD,
LLC APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 20-CI-007221

LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; AARON
JENKENS; ANDREW BOLYARD;
BRITTNEY J. BOLYARD;
CHRISTIAN B. JENKENS;
COURTNEY E. JENKENS; DERRICK
AYERS; EVANSVILLE TEACHERS
FEDERAL CREDIT UNION, D/B/A
LIBERTY FINANCIAL; GARY W.
JENKENS; GARY W. JENKENS
REVOCABLE TRUST; GARY W.
JENKENS REVOCABLE TRUST
DATED MAY 6, 1999; GARY W.
JENKENS, IN HIS CAPACITY AS
TRUSTEE OF THE GARY W.
JENKENS REVOCABLE TRUST, IN
HIS CAPACITY AS THE TRUSTEE
OF THE GARY W. JENKENS
REVOCABLE TRUST DATED MAY
6, 1999; HEATHER J. AYERS;
LEGISLATIVE BODY OF THE
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT A/K/A
METRO COUNCIL; LOUISVILLE
AND METRO PLANNING
COMMISSION; SUSANNE W.
JENKENS; SUSANNE W. JENKENS

-4-
REVOCABLE TRUST; SUSANNE W.
JENKENS REVOCABLE TRUST
DATED MAY 5, 1999; SUSANNE W.
JENKENS, IN HER CAPACITY AS
TRUSTEE OF THE SUSANNE W.
JENKENS REVOCABLE TRUST AND
TRUSTEE OF THE SUSANNE W.
JENKENS REVOCABLE TRUST
DATED MAY 5, 1999; AND
SUZANNE JENKENS APPELLEES

OPINION
AFFIRMING

---

BEFORE: COMBS, L. JONES, AND MCNEILL, JUDGES.

COMBS, JUDGE: This is an appeal of several orders of the Jefferson Circuit

Court. The dispute concerns the unanimous decision of the Legislative Body of

the Louisville/Jefferson County Metro Government to approve a zone change

application. Approval of the application authorized construction of a branch of a

credit union on property adjoining the eastern terminus of Bartley Drive and the

west side of Bardstown Road south of the Gene Snyder Freeway. The

development plan included public access across the site to an existing signalized T-

intersection at Bardstown Road and Southpointe Boulevard. After our review, we

affirm.

-5-
On February 17, 2020, Evansville Teachers Federal Credit Union (the

credit union) filed a zone change pre-application for several tracts of real property

located directly across Bardstown Road from SouthPointe Commons. SouthPointe

Commons is a commercial development composed of more than 360,000 square

feet of retail space. Entrance to the development from Bardstown Road is accessed

by a T-intersection with SouthPointe Boulevard. Its developers are referred to

herein as “SouthPointe.”

The credit union proposed a zone change from R-4 (residential) to C-

1(commercial) to facilitate construction of its branch. It advised Louisville Metro

Planning & Design Services that a neighborhood meeting to discuss its plans was

scheduled for March 2, 2020.

A summary of the neighborhood meeting was submitted with the

credit union’s application for zone change. The lengthy summary reported that the

credit union’s representatives discussed with neighbors its proposed access from

the site to Bardstown Road by means of construction of a drive joining the existing

T-intersection at SouthPointe Commons. The summary related that neighbors

asked whether the developer would allow them to cross the property to access

Bardstown Road at the signalized intersection rather than at the existing terminus

of Bartley Drive at a point on Bardstown Road closer to the I-265 interchange -- a

point of access to Bardstown Road not governed by a traffic signal.

-6-
The credit union explained that it had not anticipated or considered

that residents would want another connection to Bartley Drive from Bardstown

Road. Residents indicated that they wanted access to the signalized intersection

both for safety and convenience and that they would support closure of the eastern-

most portion of Bartley Drive (crossing the site north of the signalized intersection)

in favor of direct access (across the south side of the development site) to the

traffic signal at Bardstown Road and SouthPointe Boulevard. The credit union’s

representatives indicated that they would consider whether the credit union could

accommodate the neighbors’ preference for a right-of-way accessing the signalized

intersection.

A staff report was filed on March 4, 2020, indicating that the credit

union’s proposed rezoning conformed to land use and development policies.

Specifically, it advised that the proposed use of the property “allows for a

continuation of the commercial corridor from I-265 to serve a growing population”

and “introduces neighborhood serving goods and services to fill gaps in

commercial services and on vacant land along the corridor.” A further report,

prepared on April 13, 2020, indicated that “a 50’ public right-of-way from the

signalized intersection to Bartley Drive is needed.” It recommended connectivity

from the credit union site to the proposed right-of-way along the southern portion

-7-
of the tract. “This allows Bartley Drive to be closed between tracts 1 and 2 and

consolidated development of those tracts.”

On April 13, 2020, the credit union filed its statement of compliance

and development plan. The compliance statement provided a detailed and

comprehensive narrative of exactly how the proposed rezoning and development

complied with the Comprehensive Plan. It also referred specifically to “the

proposed roadway dedication through the site with the requested separate road

closure providing low intensity uses in an area of a traffic signal.”

On May 11, 2020, the credit union filed a street closure application. It

requested closure of that eastern-most portion of Bartley Drive that now joined

Bardstown Road north of the T-intersection with Southpoint Boulevard. It

proposed to reconfigure the right-of-way to cross the south side of its site to align

with the signalized intersection of SouthPointe Boulevard and Bardstown Road.

This realignment would allow residents of Bartley Drive to access the traffic signal

on Bardstown Road and to safely execute northbound left turns toward the I-265

interchange. The credit union explained that “[t]he prior proposed development

plan showed just the subject property having access to the traffic signal.” But in

order to accommodate the request of the Bartley Drive residents, the credit union

was willing to dedicate a public right-of-way across its site. However, the redesign

would require the original right-of-way across the northerly portion of the site to be

-8-
closed, permitting the credit union to retain “enough area to still locate a branch

bank on the subject property.” The credit union assured Louisville Metro Planning

& Design Services that it had “received 100% consent from the adjoining property

owners and would ask that the street closures move forward in conjunction with

the zone change [application submitted on April 13, 2020.]”

On June 25, 2020, the Land Development and Transportation

Committee conducted a hearing with respect to the zone change request.

Southpointe representatives appeared at the meeting and opposed the credit union’s

application for a zone change. SouthPointe objected to construction of an

additional leg of traffic at the intersection, arguing that the intersection would no

longer function as originally intended. Its representatives noted that when

Southpointe had sought approval for its development in May 2010, Commissioner

Tom Stockton opined that the intersection would fail if an additional leg of traffic

were added. The Committee voted unanimously to continue the matter to July

2020, giving the credit union time to gather information about the traffic impact of

an additional leg of traffic at the T-intersection.

At the July 2020, hearing, the credit union presented an updated plan

(including a raised median between in-coming and out-going traffic at the signal to

prevent drivers from turning onto Bartley Drive just to head south again) and a

traffic impact study prepared by Diane Zimmerman, a Louisville-based traffic

-9-
engineer. Zimmerman’s testimony included a discussion of the timing of the

traffic signal at the disputed intersection. She indicated that even if an additional

leg of traffic were added to the intersection, drivers would not likely have to wait

through an additional cycle of the signal before exiting SouthPointe Commons.

Zimmerman remarked that changes to the timing of the traffic signal would be

required in any event given the continued development at SouthPointe Commons

and issues concerning the safety of pedestrians crossing the wide intersection. The

credit union’s prospective neighbor to the north testified that access to the T-

intersection from Bartley Drive would be essential to the orderly development of

the west side of Bardstown Road.

SouthPointe representatives reiterated their objections to an additional

leg of traffic at the T-intersection. SouthPointe contended that approval of the

change in zoning application would be arbitrary, capricious, and unreasonable

because rezoning the subject property did not meet requirements of the

Comprehensive Plan. In rebuttal, the credit union referenced a 2017 traffic impact

study demonstrating that the disputed intersection could accommodate more

intense development on the west side of Bardstown Road. Despite SouthPointe’s

opposition, the committee decided to forward the zoning application to the

Louisville and Metro Planning Commission for consideration.

-10-
On August 20, 2020, the planning commission conducted a public

hearing to consider the credit union’s application. Commissioners considered a

detailed development plan; live testimony; a power-point presentation; renderings

of the proposed credit union branch; a description of proposed landscaping and

privacy fencing for adjoining property owners; sewage and drainage control

measures; pedestrian and bicycle accessibility; Zimmerman’s traffic impact study

that included the proposal to move the eastern-most portion of Bartley Drive

farther south to align with the signalized T-intersection at Southpoint Boulevard

and Bardstown Road; remarks both in favor of and opposed to the zone change;

and its staff’s analysis of the application.

The staff report explained to the planning commission that realigning

Bartley Drive with the signalized intersection would provide residents with safe

access to Bardstown Road and that a street closure application for a portion of

Bartley Drive had been submitted and was in the review process. Commissioners

were aware that the Kentucky Transportation Cabinet would require a permit for

the proposed construction of access to the existing intersection at Bardstown Road

and Southpoint Boulevard and that the Cabinet would dictate the design of any

additional leg of traffic. Commissioners noted that the credit union branch would

be a “very small trip generator” when compared to the immense development

-11-
directly across Bardstown Road at SouthPointe Commons and “will not generate a

lot of traffic.”

SouthPointe presented evidence in opposition. A representative stated

that he was “limit[ing] my comments to traffic, that’s the only reason that we are

here today, traffic and traffic infrastructure. . . and the signalization of the proposed

fourth leg into the Bartley Drive and Bardstown Road intersection.” SouthPointe

presented the testimony of Jeff Weller, a traffic engineer from North Carolina.

Weller did not perform a traffic impact study. Instead, his testimony focused on

the perceived shortcomings in Zimmerman’s study. Finally, a Southpointe

representative wondered in passing if “it’s appropriate to apply a closure of a

public right-of-way to what might be a private street. . . .”

As it deliberated, the Commission specifically observed that

commercial development in the district served nearby residents as well as those

utilizing the Bardstown Road corridor and the nearby interstate -- and that roadway

improvements could realign Bartley Drive to the signalized intersection so as to

provide for safe, convenient access for residents to Bardstown Road and

SouthPointe Boulevard. The Commission approved the development plan and

voted unanimously to recommend that the zone change application be approved.

However, the development plan included a binding element that prohibited

-12-
changes to the current configuration of Bartley Drive until a new section of road

was built to link Bartley Drive to the signalized T-intersection.

On November 19, 2020, the Legislative Council of the

Louisville/Jefferson County Metro Government read and -- by unanimous

agreement -- passed an ordinance approving the proposed zone change subject to

the binding elements included in the planning commission’s recommendation. The

Legislative Council indicated that “any changes in use on the property, and/or any

amendments to the binding elements shall be reviewed before the Planning

Commission with final action to be determined by Metro Council.” The credit

union’s road closure application pertaining to the eastern-most portion of Bartley

Drive remains pending.

On December 16, 2020, Southpointe and 9402 Bartley Homestead,

LLC (referred to collectively, hereinafter, as “Southpointe”), filed a civil action in

Jefferson Circuit Court against Louisville/ Jefferson County Metro Government;

Louisville and Metro Planning Commission; the Legislative Body of the

Louisville/Jefferson County Metro Government (referred to collectively hereinafter

as “Metro Government”); the credit union; and each of the owners of the subject

real property. In the complaint, 9402 Bartley Homestead, LLC, is identified as

owners of property “underlying, abutting and/or adjacent to Bartley Drive” and the

right-of-way itself. It was allegedly organized as a result of the purchase by a

-13-
member of Southpointe of a $25,000 vacant lot for the sole purpose of establishing

standing in order to oppose the rerouting of the eastern-most section of Bartley

Drive. Following a ten-page recital outlining the benefits of its development of

SouthPointe Commons, Southpointe alleged that approval of the credit union’s

application for a zone change was arbitrary because the decision was not supported

by substantial evidence; exceeded Metro Government’s authority; and deprived

Bartley Drive residents of due process.

In its complaint, SouthPointe explained that it did not oppose

commercial development on the west side of Bardstown Road. Nor did it oppose

the proposal to realign Bartley Drive to have it “plug in” to the T-intersection at

SouthPointe Boulevard. Instead, it “firmly oppose[s] any such action unless and

until it is supported by sufficient evidence showing that the action will not put the

Intersection [and its investment in SouthPointe Commons] at risk of failure.”

SouthPointe explained further that it had been required to “(a) demonstrate the

impact of its development on traffic at the Intersection, the corridor, and the

community as a whole, and (b) pay for the traffic improvements needed to ensure

that traffic would move efficiently and effectively through the corridor.” It

contended that Metro Government “must now likewise require anyone seeking to

plug in . . . to this critical Intersection to do the same. . . .” It alleged that Metro

“did not perform the required comprehensive planning. . . .”

-14-
Along with its statutory appeal of the zone change approval filed

pursuant to the provisions of KRS1 100.347, SouthPointe included a petition for

declaratory judgment and a request for injunctive relief. SouthPointe argued that

neither the zone change application, nor the road closure application could be

approved because a fatal flaw tainted them both: namely the nature of Bartley

Drive as a private road -- not a public right-of-way. It sought a declaration that

approval of the zone change application (with a development plan that allowed

reconfiguration of Bartley Drive to realign it with the T-intersection at Bardstown

Road and SouthPointe Boulevard) was a nullity because Metro Government could

not, as a matter of law, authorize the closure of the end of Bartley Drive joining

Bardstown Road. It averred that according to the Land Development Code,

Chapter 6.3.3., only a “public right-of-way” may be closed.

It alleged that the private road was jointly owned and maintained by

all of the property owners and could only be closed by unanimous consent of all its

owners. It also alleged that Metro Government could not obtain the required

approval. It pointed out that a street sign at the far eastern end of Bartley Drive

labelled the road as “private.” Furthermore, Metro Government’s online resource

identified all of Bartley Drive as “non-metro” -- and not state owned. SouthPointe

sought an injunction:

1
Kentucky Revised Statutes.

-15-
prohibiting [Metro Government] from arbitrarily
approving any rezoning or related development plans
allowing the addition of a fourth leg to the Intersection.
This injunction should include, but not be limited to, a
requirement that any applicant seeking to add a fourth leg
to the Intersection must perform an extensive traffic
analysis and includes, but is not limited to, the nearby
Bardstown Road corridor, surrounding neighborhoods,
SouthPointe Boulevard, and Bates Elementary School so
that [Metro Government] can determine what, if any,
improvements to the Intersection or related roadway it
will need to require of the developer to ensure that the
Intersection does not fail, and to ensure that mobility and
air pollution in the area are adequately addressed in
compliance with the Comprehensive Plan -- just as
SouthPointe Commons was required to do when it
applied to rezone the land across the street.

And, they petitioned that because Bartley Drive is private:

this Court should enter a declaration and injunction
prohibiting [Metro Government] from approving any
zoning, development plan, street closure, or any other
development application premised upon the rerouting of,
closure of, or development on any portion of Bartley
Drive unless all landowners who own Bartley Drive have
first unanimously consented to the proposed rerouting,
closure, or development.

The credit union answered the complaint. Metro Government also

filed its timely answer along with a motion to dismiss and a petition for a

declaratory judgment. In its motion to dismiss, Metro Government summarized

the declaratory judgment action as a request to prohibit it from approving the credit

union’s zoning change request (which had already been done) and any related

development plan authorizing access to the signalized T-intersection from the west

-16-
side of Bardstown Road (which had also already been done). Furthermore, the

declaratory judgment action asked the court to require Metro Government to deny

the street closure request and/or realignment of Bartley Drive before it had even

considered the credit union’s application filed May 8, 2020. It noted that the

provisions of KRS 100.347 provide the exclusive remedy for an appeal from the

actions of the planning commission and that a declaratory judgment action could

not be substituted for that statutorily mandated procedure.

In an opinion and order entered on March 26, 2021, the Jefferson

Circuit Court dismissed SouthPointe’s request for declaratory judgment and

injunctive relief. The court observed that the road closure application was still

pending and that a public hearing concerning Bartley Drive had not yet occurred.

It wrote: “[t]he issues are not ripe for appeal and must be addressed pursuant to

prescribed statutory procedure. . . .” It declined to issue what it viewed as an

essentially advisory opinion.

In July 2022, the credit union filed a motion for summary judgment

with respect to the statutory appeal. It argued that Metro Government’s decision to

approve its application for zone change -- including access to the T-intersection at

Bardstown Road and SouthPointe Boulevard -- was supported by substantial

evidence. It also observed that the question of whether Bartley Drive is a private

road or a public right-of-way had been raised by SouthPointe in a separate

-17-
proceeding -- in another petition for declaratory judgment filed in yet another

division of the Jefferson Circuit Court. The credit union cautioned the court that

hypothesizing about an abstract disagreement among the parties in this rezoning

matter “would possibly render a decision that is contrary to a future decision in

[the separate civil action filed by SouthPointe”].

In August 2022, Metro Government joined the credit union’s motion

for summary judgment and filed its own memorandum in support. Thereafter,

SouthPointe filed a response and a cross-motion for summary judgment. Metro

Government and the credit union filed their separate responses.

In its opinion and order entered on November 17, 2022, the

Jefferson Circuit Court concluded that the Planning Commission relied upon

substantial evidence in reaching its decision and that it did not act arbitrarily. In an

order entered on December 6, 2022, the court affirmed the decision of Metro

Government to approve the credit union’s application for zone change and granted

the credit union’s motion for summary judgment. SouthPointe filed its notice of

appeal.

Our review of the substantive issues presented in the parties’ briefs

has been delayed by prolonged and extensive practice in the circuit court

addressing the good faith basis for the appeal and the requirements of an appeal

bond. Additionally, the briefing schedule before us was interrupted by issues

-18-
arising with respect to newly discovered evidence concerning the fee-simple

ownership of a portion of Bartley Drive by either the Commonwealth or Metro

Government. At this juncture, the appeal is at last ready for adjudication.

The appellants stipulate that SouthPointe Commons, LLC, and 940

Bartley Homestead, LLC, have common ownership “and are pursing this appeal in

lockstep.” On appeal, SouthPointe argues that the circuit court erred by failing to

conclude that Metro Government’s approval of the rezoning application was

arbitrary, capricious, and outside its statutory authority. First, it contends that the

approval was premised upon Metro Government’s mistaken impression that

Bartley Drive can be closed through its administrative process. Secondly, it

contends that Metro Government illegally “flip-flopped” on the planning

commission’s 2010 view that the disputed intersection could not effectively

accommodate an additional leg of traffic.

SouthPointe also argues that the trial court erred by dismissing its

petition for declaratory judgment because it did indeed present the court with a

justiciable issue. It argues that the credit union’s street closure application is

“inextricably intertwined” with its zone change application and that the

applications should have been considered and decided together. Instead,

SouthPointe argues, Metro Government let the credit union “put the cart before the

horse” -- “deciding the rezoning application before deciding the street closure

-19-
application upon which the rezoning application was premised.” While

SouthPointe acknowledges that binding elements of the approval require that the

street closure application be granted before any project construction actually

begins, it contends that the circuit court should have allowed the parties to litigate

and fully develop the facts surrounding the status of Bartley Road immediately --

and in court, rather than through the administrative process.

We are persuaded that the circuit court did not err by concluding that

this issue was not yet ripe for adjudication. Kentucky’s Declaratory Judgment Act,

codified in KRS Chapter 418, is intended to be remedial in nature. Mammoth

Medical, Inc. v. Bunnell, 265 S.W.3d 205, 209–10 (Ky. 2008). Its purpose is to

make courts more serviceable to citizens by way of settling controversies and

affording relief from uncertainty and insecurity with respect to rights and duties.

KRS 418.080. In light of its purpose, the Act’s provisions are to be liberally

interpreted and administered. Id.

KRS 418.040 provides that in any action in a court of record wherein

it is made to appear that an actual controversy exists, the plaintiff may ask for a

declaration of rights, either alone or with other relief, and the court may make a

binding judgment. The party seeking relief must show that an actual, justiciable

controversy exists; i.e., proceedings for a declaratory judgment must not merely

seek advisory answers to abstract questions. Mammoth Medical, Inc., 265 S.W.3d

-20-
at 209–10 (Ky. 2008) (citing Axton v. Goodman, 205 Ky. 382, 265 S.W. 806

(1924)). To determine whether a justiciable controversy exists, the court must

consider “both the appropriateness of the issues for decision and the hardship of

denying judicial relief.” Combs v. Matthews, 364 S.W.2d 647, 648 (Ky. 1963).

Even where a justiciable controversy is shown to exist, the court

enjoys discretion under the Act’s provisions to postpone adjudication. W.B. v.

Commonwealth, Cabinet for Health & Family Servs., 388 S.W.3d 108, 112 (Ky.

2012) (“KRS 418.065 clearly anticipates that there will be occasions when it will

not be best to address the controversy at the time of the petition”). The Act

provides as follows:

The Court may refuse to exercise the power to declare
rights, duties or other legal relations in any case where a
decision under it would not terminate the uncertainty or
controversy which gave rise to the action, or in any case
where the declaration or construction is not necessary or
proper at the time under all the circumstances.

KRS 418.065. As a matter of judicial policy, the court should decline to exercise

its jurisdiction where “proper judicial administration requires that action be

deferred by the court until the agency has acted and the court may then review its

action.” Preston v. Meigs, 464 S.W.2d 271, 274–75 (Ky. 1971).

We review de novo a court’s determination of whether an “actual

controversy” exists. Bingham Greenebaum Doll, LLP, v. Lawrence, 567 S.W.3d

127, 129 (Ky. 2018). The court’s use of its discretion as to whether it should

-21-
exercise jurisdiction is reviewed by the standard of abuse of discretion. Gwaltney

v. Commonwealth Bd. of Soc. Work, 644 S.W.3d 270, 274 (Ky. App. 2022).

While the conflict in these proceedings concerning the anticipated re-

routing of Bartley Drive may seem inevitable on the facts before us, there is no

reason to conclude that it is, in fact, unavoidable. Metro Government has not yet

decided to authorize the closure of the terminus of Bartley Drive. It has merely

required that the road be realigned as envisioned by the credit union’s development

plan. A road closure is not required to facilitate construction of the credit union

branch or access to Bardstown Road. In its resolution, the legislative council

anticipated and recognized the possibility that the binding-elements portion of the

approval might require amendment; thus, it expressly provided that further review

by the Planning Commission might be required. It specifically retained authority

to amend the approval’s requirements and to take final action with respect to

decisions concerning Bartley Drive.

We agree with SouthPointe that the dispute concerning Bartley Drive

may well be resolvable by application of law to facts as they might be developed

though litigation. Nevertheless, we cannot conclude that an actual claim requiring

judicial relief exists at this point. This is true because no claim has arisen against

SouthPointe’s property interests. The credit union’s road closure application

remains pending. Metro Government has not authorized the proposal to reroute

-22-
Bartley Drive; instead, it has specifically retained authority to amend the character

of its approval for the requested zone change. Moreover, a separate civil action to

determine whether any portion of Bartley Drive is a private road or public right-of-

way is pending in another division of the circuit court.

Under these circumstances, it does not appear that SouthPointe’s

interests in its real property and the disputed intersection are affected by the circuit

court’s decision to deny adjudication of the underlying issue -- especially where it

appears that the contested portion of the roadway may, in fact, be owned in fee

simple either by the Commonwealth or Metro Government. Consequently, the

court was justified in exercising discretion not to entertain the declaratory

judgment action since SouthPointe would suffer no hardship if injunctive relief

were denied. The court did not err by concluding that the matter is non-justiciable,

and we affirm its decision to dismiss SouthPointe’s request for declaratory

judgment and injunctive relief. The matter is simply not yet ripe for adjudication.

Next, SouthPointe argues that the circuit court erred by failing to

conclude that Metro Government’s approval of the rezoning application was

arbitrary and capricious. It argues that the circuit court erred by granting summary

judgment because Metro Government’s decision to alter the T-intersection at

Bardstown Road and SouthPointe Commons Boulevard was not supported by

substantial evidence. We disagree.

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If a legislative body decides to change the zoning classification of a

tract of land, its decision will not be considered arbitrary where it is based upon

substantial evidence. See American Beauty Homes Corp. v. Louisville and

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

Evidence is deemed substantial where it is sufficiently probative to convince a

reasonably minded person. Danville–Boyle County Planning and Zoning Comm’n

v. Prall, 840 S.W.2d 205, 208 (Ky. 1992). Upon review, we do not substitute our

judgment for that of the legislative body. City of Louisville v. McDonald, 470

S.W.2d 173, 178 (Ky. 1971).

In its brief, SouthPointe reports that in 2010, it was required to pay for

a comprehensive study of the impact that its development would have on “all

traffic in the surrounding areas and the Bardstown Road corridor.” It explains that

the traffic impact study specifically addressed the intersection of SouthPointe

Boulevard and Bardstown Road and that Metro Government “concluded that it

could only have three legs due to the impact a fourth leg would have on traffic.”

SouthPointe contends that “[t]he problem here is that the administrative record

lacks substantial evidence showing that adding a fourth leg to the Intersection in

2020 would not have the same ruinous impact on traffic that Metro feared in

2010.” It contends that the only traffic impact information included in the

administrative record before the circuit court was Diane Zimmerman’s limited

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study. It argues that the Comprehensive Plan requires Metro Government to

evaluate the impact of an additional leg of traffic at the intersection along the entire

corridor, including: the nearby freeway, elementary school, and SouthPointe

Commons.

We have reviewed the entirety of the lengthy administrative record.

As summarized above, the record indicates that Metro Government sufficiently

evaluated the impact of an additional leg of traffic at the intersection. The

Planning Commission debated the obvious traffic impact issues at length. It

reviewed the traffic impact study submitted by the credit union and the criticism

thereof. It concluded that the credit union would be required to make certain

roadway improvements to ensure traffic safety and efficiency. These

improvements included: aligning Bartley Drive with the signalized intersection;

adding a deceleration lane to southbound Bardstown Road to allow for right turns

onto Bartley Drive; and expanding Bardstown Road to add a left-turn lane to

northbound Bardstown Road at the intersection. These improvement requirements

appear proportional to the size and nature of the development of the credit union’s

branch.

Additionally, the Commission was aware that a recently awarded grant

was set to fund the tools necessary to make the traffic signals along Bardstown

Road adaptive to traffic flow both to and from the nearby expressway.

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Furthermore, as a safeguard against building significant traffic from the west side

of Bardstown Road, the Planning Commission recommended that binding elements

require a further traffic study if the subject property were to be used for any other

purpose or if the second tract was developed at some point.

Based upon relevant evidence before it, Metro Government made

extensive and detailed findings with respect to the impact that changes at the

intersection would have on traffic flow. Given the relatively small scale of the

proposed development, Metro Government was convinced by the expert testimony

that the improvements to the intersection would alleviate safety and efficiency

concerns arising from an additional leg of traffic.

We are unwilling to say that its decision not to require a more intense

analysis of traffic along the corridor was arbitrary. Nor can we say that a decision

to authorize an additional leg of traffic (where one was not authorized in the 2010

proceedings) was improper. Approval of the zone change application -- subject to

the binding elements -- was based upon substantial evidence. Metro Government’s

decision was not arbitrary or capricious -- nor did it act in an ultra vires capacity in

excess of its legitimate powers.

Accordingly, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR.

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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE
EVANSVILLE TEACHERS
Christopher W. Brooker FEDERAL CREDIT UNION
Jonathan L. Baker D/B/A LIBERTY FEDERAL
Jordan M. White CREDIT UNION:
Louisville, Kentucky
Bart L. Greenwald
James L. Adams
Louisville, Kentucky

BRIEF FOR APPELLEES
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT,
LOUISVILLE AND METRO
PLANNING COMMISSION AND
LEGISLATIVE BODY OF THE
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT:

Michael J. O’Connell
Jefferson County Attorney

Anne P. Scholtz
John F. Carroll
Assistant Jefferson County Attorneys
Louisville, Kentucky

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