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March 13, 2026 Get Citation Alerts Download PDF Add Note

Great Point, LLC v. Austin Wilkerson

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0275
• Precedential Status: Non-Precedential
• Judges: L. Jones

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

                        by [Allison Jones](https://www.courtlistener.com/person/7333/allison-jones/)

RENDERED: MARCH 13, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2025-CA-0272-MR

LEXINGTON-FAYETTE
URBAN COUNTY PLANNING
COMMISSION AND ITS MEMBERS,
ZACHARY DAVIS, JANICE MEYER,
IVY BARKSDALE, WILLIAM
WILSON, LARRY FORESTER,
GRAHAM POHL, BRUCE NICHOL,
JUDY WORTH, ROBIN MICHLER,
AND MICHAEL OWENS, IN THEIR
OFFICIAL CAPACITIES APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE MUTH GOODMAN, JUDGE
ACTION NO. 23-CI-03158

AUSTIN WILKERSON; DONN
CHICKERING; GREAT POINT, LLC;
SHAWN BERRY; AND TOTH
AND ASSOCIATES, INC. APPELLEES

AND NO. 2025-CA-0275-MR

GREAT POINT, LLC; SHAWN BERRY;
AND TOTH AND ASSOCIATES, INC. APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE MUTH GOODMAN, JUDGE
ACTION NO. 23-CI-03158

AUSTIN WILKERSON; DONN
CHICKERING; AND LEXINGTON-FAYETTE
URBAN COUNTY PLANNING
COMMISSION AND ITS MEMBERS,
ZACHARY DAVIS, JANICE MEYER,
IVY BARKSDALE, WILLIAM
WILSON, LARRY FORESTER,
GRAHAM POHL, BRUCE NICHOL,
JUDY WORTH, ROBIN MICHLER,
AND MICHAEL OWENS, IN THEIR
OFFICIAL CAPACITIES APPELLEES

OPINION
AFFIRMING

---

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND L. JONES, JUDGES.

JONES, L., JUDGE: The general background of this matter is as follows. On

September 14, 2023, the Lexington-Fayette Urban County Planning Commission

and its above-captioned members in their official capacities (collectively, the

Commission) took “action” regarding an “Amended Final Development Plan”

(Plan) submitted by Great Point, LLC; Shawn Barry; and Toth & Associates, Inc.

(collectively Great Point). The Plan was for the construction of a “retail coffee

shop with drive-through” on property located at 2400 Versailles Road in

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Lexington, Kentucky. The Commission insists that the “action” it took was a

“conditional approval” of the Plan. Afterward, Austin Wilkerson and Donn

Chickering contested the Commission’s action by filing an original proceeding in

Fayette Circuit Court pursuant to Kentucky Revised Statute (KRS) 100.347.

At issue in this consolidated matter is the circuit court’s February 23,

2025 order of reversal. In sum, the circuit court found the Commission’s action

was outside the scope of its authority and noncompliant with Lexington’s zoning

ordinances. While the Commission and Great Point have separately appealed the

circuit court’s order (in Appeal Nos. 2025-CA-0272-MR and 2025-CA-0275-MR,

respectively), both contend – for roughly the same reasons which will be discussed

below – that the circuit court erred in reversing the Commission.1 Upon review,

we affirm.

1
The Commission filed an ostensible appellee brief in Great Point’s separate appeal (Appeal No.
2025-CA-0275). We use the word “ostensible” because the Commission fundamentally
misunderstood its role as an appellee in filing that brief. An appellee is only entitled to argue
that the lower tribunal reached the correct result for the reasons expressed in its judgment or for
any other reasons that were appropriately brought to the lower tribunal’s attention. Carrico v.
City of Owensboro, 511 S.W.2d 677, 679 (Ky. 1974). Rather than making such arguments,
however, the Commission simply reasserted the arguments it posed in its separate appeal
regarding why, in its view, the circuit court’s judgment was incorrect.

Considering the Commission’s separate appeal and the collective disposition of this
consolidated matter, it would be pointless to strike the Commission’s ostensible appellee brief as
an unauthorized filing. Rather, it is enough to simply point out the obvious: The Commission’s
effort to have this Court consider its same appellate arguments twice was needlessly redundant.

-3-
STANDARD OF REVIEW

This appeal originates from an original action filed in circuit court by

persons claiming to be injured or aggrieved by final action of a planning

commission. See KRS 100.347(2). The circuit court’s dispositive judgment made

no findings of fact, no material issues of fact existed, and it resolved only questions

of law. Accordingly, the circuit court rendered what was essentially a summary

adjudication, and our review is de novo. See CR2 56.03; see also Patton v.

Bickford, 529 S.W.3d 717, 723 (Ky. 2016). As to the merits of the Commission’s

action, our review is for arbitrariness. Arbitrariness concerns “(1) action in excess

of granted powers, (2) lack of procedural due process, and (3) lack of substantial

evidentiary support[.]” Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty.

Plan. & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). Nonetheless, “[i]t is

possible that other apparently unrelated matters of law may be considered. Judicial

review of legal questions cannot be impaired by the legislature.” Id. at 456-57

(footnote omitted).

ANALYSIS

As indicated, this consolidated matter arises from “action” the

Commission took during a September 14, 2023 administrative hearing after

considering its Subdivision Committee’s recommendations regarding Great Point’s

2
Kentucky Rule of Civil Procedure.

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Plan to build a retail coffee shop with a drive-through at 2400 Versailles Road in

Lexington, Kentucky. To properly frame what we deem the most important issue

presented – namely, what “action” the Commission took – we turn first to the

relevant language of what was the operative version of Lexington-Fayette Urban

County Government (LFUCG) Ordinance § 21-4, which delineated the mutually

exclusive “actions” the Commission could, in its discretion, have taken at that

time:3

The following shall be the procedure for Planning
Commission consideration of any development plan.

---

(d) Commission Action.

---

The Commission will review the Subdivision
Committee’s recommendation and then act for approval,
conditional approval with conditions noted,
postponement, or disapproval. The Commission may
modify or disapprove the development plan if it finds the
plan does not comply with the requirements of this
Zoning Ordinance, and when applicable, the Land
Subdivision Regulations or if it finds there are existing or
potential flood, drainage, traffic, topographic, health,
safety, nuisance or other similar problems relating to the
development of the subject property. In addition to these
items, development plans which seek to amend the
original development plan or its approved amendments

3
We have quoted the version of LFUCG Ordinance § 21-4 effective when the Commission took
its “action.” The ordinance was subsequently amended and is currently worded differently, but
that point is not germane to our analysis.

-5-
shall also be subject to the provisions of Section 21-7(e)
hereinbelow. Reasons for action of postponement or
disapproval shall be fully incorporated in the
Commission’s minutes. The following actions by the
Commission shall have the meanings so stated:

(1) Approval. Means the development plan is ready to be
certified by the Commission’s Secretary with no further
corrections or revisions of the plan required by the
developer.

(2) Conditional Approval. Means the development plan
cannot be certified by the Commission’s Secretary until
the developer has complied with the conditions of
approval set forth in the Planning Commission’s action
on the plan.

(3) Postponement. Means that the Commission has
deferred action until some future Commission meeting in
order that certain clarifications can be made in regard to
the development plan. No completely new re-submittal
is required of the developer as is the case for disapproval.

(4) Disapproval. Means disapproval of the plan. To
request new review and action, the developer must file a
new application along with a filing fee, plan copies, and
other material as required under Subsection (b) of this
section. . . .

With the above in mind, there appears to be no dispute among the

parties that if the Commission had given its approval to the Plan pursuant to

LFUCG Ordinance § 21-4(d)(1) at the September 14, 2023 hearing, then doing so

would have been improper because sixteen outstanding conditions needed to be

satisfied before the Plan could have been properly certified. Those sixteen

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conditions, which the Commission enumerated before the circuit court and now

this Court, included (in the Commission’s words):

1. Urban County Engineer’s acceptance of drainage,
   storm and sanitary sewers, and flood plain
   information.

2. Urban County Traffic Engineer’s approval of street
   cross-sections and access.

3. Landscape Examiner’s approval of landscaping and
   landscaping buffers.

4. Addressing Office’s approval of street names and
   addresses.

5. Urban Forester’s approval of tree preservation plan.

6. Department of Environmental Quality’s approval of
   environmentally sensitive areas.

7. Bike & Pedestrian Planner’s approval of bike trails
   and pedestrian facilities.

8. Greenspace planner’s approval of the treatment of
   greenways and greenspace.

9. Division of Fire, Water Control Office’s approval of
   the locations of fire hydrants, fire department
   connections, and fire service features.

10. Division of Waste Management’s approval of refuse
    collection locations.

11. Documentation of Division of Water Quality’s
    approval of Capacity Assurance Program
    requirements, prior to plan certification.

-7-
12. United States Postal Service Office’s approval of
kiosk locations or easement.

1. Addition of existing and proposed easements.

2. Depict access into the structure of interior order
   point.

3. Denote: Access to the property from Versailles Road
   is subject to the approval by the Kentucky
   Transportation Cabinet.

4. Remove proposed benches and statue from floodway.

See Commission’s Br. at 2.

In light of those outstanding conditions, the Commission has

maintained since the inception of this litigation that the “action” it intended to take

(and believes it took) at the September 14, 2023 hearing regarding the Plan was a

conditional approval pursuant to LFUCG Ordinance § 21-4(d)(2). The Appellees,

on the other hand, have argued:4

[T]he Planning Commission did not vote to conditionally
approve the Final Development Plan. The Commission
voted to “approve” the plan. There is nothing in the
record to indicate that the vote was to approve subject to
the conditions recommended by the Subdivision
Committee. The vote was for approval.

See Wilkerson and Chickering’s May 16, 2024 Reply Br., Record at 358.

4
While the appellees presented this argument below, it was not a basis of the circuit court’s
ultimate decision to reverse the Commission’s decision to approve the Plan, and they have not
reasserted it in their appellee briefs. That said, we may affirm for any reason sustainable in the
record. See Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky. App.
1991).

-8-
Parenthetically, we agree with the parties that the sixteen conditions

enumerated above, which remained outstanding at the September 14, 2023 hearing,

were indeed conditions that needed to be satisfied before the Plan could have

properly secured the Commission’s approval. See, e.g., Triad Dev./Alta Glyne,

Inc. v. Gellhaus, 150 S.W.3d 43, 46 (Ky. 2004) (“The Planning Commission

approved the plan subject to certain conditions. It delegated to the MSD [5] and the

County Works Department the responsibility for evaluating the drainage and

construction plans.”). As such, the difference between an approval and an

approval with conditions of the Plan is not simply a matter of semantics here.

Which of those actions the Commission actually took is a matter that must be

resolved because the Commission would have abused its discretion if it had

unconditionally approved the Plan at that point in time. The Commission is

required to ensure that development plans comply with Lexington’s zoning

ordinance, and it acts outside the scope of its authority when it unconditionally

approves a noncompliant development plan.

As for how we must resolve this issue, an important rule applies. The

Commission’s decision under review is a form of legislative action. The judiciary

has no authority to rewrite laws or other legislative actions for the purpose of

improving them, or for the purpose of restructuring them in accordance with what

5
Louisville and Jefferson County Metropolitan Sewer District.

-9-
might have been the subjective hopes of the legislative body. In other words, our

role is one of judicial interpretation, not judicial legislation. An important

safeguard against judicial legislation is our principle that when interpreting

legislation, we must look first to its plain language, and:

if the language is clear, our inquiry ends. We hold fast to
the rule of construction that the plain meaning of the
statutory language is presumed to be what the legislature
intended, and if the meaning is plain, then the court
cannot base its interpretation on any other method or
source.

Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) (internal

quotation marks and citations omitted).

Accordingly, we must resolve whether the Commission’s approval

was conditional by determining whether, pursuant to LFUCG Ordinance § 21-

4(d)(2), those sixteen conditions of approval were indeed “set forth in the Planning

Commission’s action on the plan.” (Emphasis added.) To do so, we turn to the

only two sources of record capable of answering that question: (1) the

Commission’s minutes from the September 14, 2023 hearing, where the

Commission memorialized what transpired regarding the Plan and what its action

ultimately was; and (2) the video record of that administrative hearing. In relevant

part, the Commission’s minutes provide:

c. PLN-MJDP-23-00047: FOX PROPERTY, LOT
(AMD) (11/5/2023) – located at 2400 VERSAILLES
ROAD, LEXINGTON, KY

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...

The Subdivision Committee Recommended: Approval,
subject to the following conditions:

1. Urban County Engineer’s acceptance of drainage,
   storm and sanitary sewers, and floodplain
   information.

2. Urban County Traffic Engineer’s approval of street
   cross-sections and access.

3. Landscape Examiner’s approval of landscaping and
   landscaping buffers.

4. Addressing Office’s approval of street names and
   addresses.

5. Urban Forester’s approval of tree preservation plan.

6. Department of Environmental Quality’s approval of
   environmentally sensitive areas.

7. Bike & Pedestrian Planner’s approval of bike trails
   and pedestrian facilities.

8. Greenspace planner’s approval of the treatment of
   greenways and greenspace.

9. Division of Fire, Water control Office’s approval of
   the locations of fire hydrants, fire department
   connections, and fire service features.

10. Division of Waste Management’s approval of refuse
    collection locations.

11. Documentation of Division of Water Quality’s
    approval of Capacity Assurance Program
    requirements, prior to plan certification.

-11-
12. United States Postal Service Office’s approval of
kiosk locations or easement.

1. Addition of existing and proposed easements.

2. Depict access to the structure for interior order point.

3. Denote: Access to the property from Versailles Road
   is subject to the approval of the Kentucky
   Transportation Cabinet.

4. Remove proposed benches and statue from floodway.

...

Action – Mr. Wilson made a motion, seconded by Mr.
Nicol, and carried 5-3 (Worth, Michler, and Meyer
opposed, Bell, Pohl, and Owens absent) to approve
PLN-MJDP-23-00047: FOX PROPERTY, LOT 4
(AMD).

See Minutes, Record at 99-101 (emphasis added).

To be clear, the Subdivision Committee’s recommendation of

conditions is a matter quite distinct from a legislative declaration by the

Commission itself. Those recommendations were noted in the minutes, but they

were not set forth in the Commission’s action on the Plan. The video record of the

September 14, 2023 hearing is also consistent with the minutes: The Subdivision

Committee recommended the sixteen conditions; there was a staff presentation

about the conditions; the applicants and citizens (both opposing and in favor of the

applicants) answered questions from the Commission and provided comments; the

Commission discussed the application; Commission member Wilson thereafter

-12-
made a motion to approve the Plan; and Wilson’s motion to approve the Plan was

carried by a majority vote of the Commission. As stated, if the language of a

legislative pronouncement is unambiguous, then we cannot base our interpretation

of it upon any other method or source. Rothstein, 532 S.W.3d at 648. That is the

case here: The Commission unambiguously voted to approve the Plan, and there is

nothing in the record to indicate that the vote was to approve subject to the

conditions recommended by the Subdivision Committee.

To the extent the Commission is arguing it intended to incorporate or

believes that it nevertheless incorporated those conditions into its approval, it is

incorrect. As indicated, the Commission’s subjective intentions and beliefs are

irrelevant if they conflict with the plain language of its legislation. To the extent

the Commission is arguing its mere recital of the Subdivision Committee’s

recommendations in its minutes equated to some form of substantial compliance

with LFUCG Ordinance § 21-4(d)(2), it is likewise incorrect. Nothing in the

Commission’s enabling legislation permitted it to comply with LFUCG Ordinance

§ 21-4(d)(2) in that manner; and as a creature of ordinance, the Commission must –

like any other administrative agency – find within its enabling legislation warrant

for the exercise of any authority which it claims. See, e.g., Dep’t for Nat. Res. &

Env’t Prot. v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473 (Ky. 1978).

-13-
Furthermore, either of those arguments would be disingenuous at best.

Immediately preceding the Commission’s unconditional approval of the Plan at the

September 14, 2023 hearing, the Commission evinced its firm understanding of

how to approve a development plan with conditions. To that point, roughly the

same conditions were “recommended” by the Subdivision Committee and noted in

the minutes in relation to another development plan for an entirely different

property (i.e., located at 673 Kennedy Road, Lexington, Kentucky); following

commentary and discussion, Commission Member Barksdale made a motion to

approve that other plan subject to those recommended conditions; her motion

carried; and, consistently therewith, the minutes memorialized the Commission’s

action as follows:

Action – Ms. Barksdale made a motion, seconded by Ms.
Worth, and carried 7-0 (Meyer abstained, Owens, Bell,
and Pohl absent) to approve PLN-MJDP-23-00037:
NEWTOWN CORPORATION INDUSTRIAL PARK
(ABC STORAGE) (AMD) with the revised conditions.

See Minutes, Record at 99 (emphasis added).

In sum, the Commission acted outside its authority and thus abused its

discretion by unconditionally approving Great Point’s Plan, and the circuit court

achieved the correct result by reversing the Commission’s decision as arbitrary.

It is therefore unnecessary to address the circuit court’s two

alternative bases for reversal as we may affirm for any reason sustainable in the

-14-
record. See Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930

(Ky. App. 1991). Whether the circuit court’s alternative reasoning is correct or in

error is immaterial. The Commission’s “approval” was in error and was properly

rescinded by the circuit court’s reversal.

CONCLUSION

Considering the foregoing, we AFFIRM with respect to Appeal Nos.

2025-CA-0272-MR and 2025-CA-0275-MR.

ALL CONCUR.

-15-
BRIEFS FOR BRIEFS FOR APPELLEES AUSTIN
APPELLANTS/APPELLEES WILKERSON AND DONN
LEXINGTON-FAYETTE URBAN CHICKERING:
COUNTY PLANNING
COMMISSION; AND ZACHARY Jessica Winters
DAVIS, JANICE MEYER, IVY Lexington, Kentucky
BARKSDALE, WILLIAM WILSON,
LARRY FORESTER, GRAHAM
POHL, BRUCE NICHOL, JUDY
WORTH, ROBIN MICHLER,
MICHAEL OWENS IN THEIR
OFFICIAL CAPACITIES:

Tracy W. Jones
William D. Razor
Lexington, Kentucky

BRIEFS FOR
APPELLANTS/APPELLEES GREAT
POINT, LLC, SHAWN BERRY,
AND TOTH AND ASSOCIATES,
INC.:

Jonathan T. Salomon
P. Branden Gross
Will E. Messer
Lexington, Kentucky

-16-