JOSEPH HAGEN ET. AL. V. JESSAMINE COUNTY-CITY OF WILMORE JOINT BOARD OF ADJUSTMENT ET. AL. — NOT TO BE PUBLISHED - OPINION OTHER

RENDERED: OCTOBER 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0527-MR JOSEPH HAGEN AND NATALIE HAGEN APPELLANTS v. APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE HUNTER DAUGHERTY, JUDGE ACTION NO. 23-CI-00674 JESSAMINE COUNTY-CITY OF WILMORE JOINT BOARD OF ADJUSTMENT; ALSTON BOONE; BONNIE BAKER; CENTRAL KENTUCKY AGRICULTURAL CREDIT ASSOCIATION; CUE THI LE; DUNG CONG VAN; IRINA NESENCHUK; JEREMY YOUNG; JESSAMINE COUNTY CITY OF WILMORE JOINT PLANNING COMMISSION; JOHN SLUGANZ; ROGER BROCK; SERGEY NESENCHUK; SHELBY STEIN SHEERAN; VINCENT VAN LEE; WEBSTER RUSSELL; WESLEY METCALF; AND WILLIAM CODY SHEERAN APPELLEES AND

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-2- NO. 2025-CA-0529-MR JESSAMINE COUNTY-CITY OF WILMORE JOINT BOARD OF ADJUSTMENT; ALSTON BOONE; BONNIE BAKER; JEREMY YOUNG; JESSAMINE COUNTY CITY OF WILMORE JOINT PLANNING COMMISSION; JOHN SLUGANZ; ROGER BROCK; WEBSTER RUSSELL; AND WESLEY METCALF CROSS-APPELLANTS v. CROSS-APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE HUNTER DAUGHERTY, JUDGE ACTION NO. 23-CI-00674 JOSEPH HAGEN; CENTRAL KENTUCKY AGRICULTURAL CREDIT ASSOCIATION; CUE THI LE; DUNG CONG VAN; IRINA NESENCHUK; NATALIE HAGEN; SERGEY NESENCHUK; SHELBY STEIN SHEERAN; VINCENT VAN LEE; AND WILLIAM CODY SHEERAN CROSS-APPELLEES OPINION AFFIRMING IN PART AND REVERSING IN PART WITH RESPECT TO APPEAL NO. 2025-CA-0527-MR; AFFIRMING WITH RESPECT TO CROSS-APPEAL NO. 2025-CA-0529-MR ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; L. JONES AND TAYLOR, JUDGES.

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-3- JONES, L., JUDGE: The controversy before us can be condensed to a pair of overarching issues. First: whether Joseph and Natalie Hagens’ attempt through the use of an “agricultural division Plat” (Plat) to separate their tract of farmland into a series of (for lack of a better term) “mini-farms” for sale to the public for residential construction qualified as an improper “subdivision” within the meaning of Kentucky Revised Statute (KRS) 100.111(22). In a February 25, 2025 order, the Jessamine Circuit Court determined the Plat was improper, and the Hagens’ attempted subdivision did not comport with the law applicable to subdivisions. Therefore, the circuit court concluded that the Hagens’ subdivision, including their Plat and some of the conveyances made from it, was void. In Appeal No. 2025-CA-0527-MR, the Hagens contest the circuit court’s determination that their Plat and some of the conveyances based upon it were void. In Cross-Appeal No. 2025-CA-0529-MR, the above-captioned cross- appellants contest the circuit court’s determination that some of the conveyances made based upon the Plat were valid. As will be discussed, we disagree with the circuit court that the Hagens attempted an improper and therefore void “subdivision.” We reverse that aspect of the circuit court’s order and affirm with respect to the cross-appeal. The second issue before us focuses on an administrative appeal the Hagens initiated before the circuit court, asking whether construction of a dwelling

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-4- on one of the tracts should have been prohibited as a non-agricultural use of the property. The Hagens contest the refusal of the Jessamine County City of Wilmore Joint Planning Commission (PZ), and the administrative affirmance of that refusal by the Jessamine County-City of Wilmore Joint Board of Adjustment (BOA), to grant them a residential building permit with respect to one of the tracts from their Plat. PZ and BOA based their refusal on the premise that, by constructing a “dwelling” on one of the mini-farms, the Hagens would have engaged in something other than an “agricultural use” of the property within the meaning of KRS 100.111(2)(a). The circuit court affirmed. We likewise affirm, although our rationale differs from that espoused below. I. BACKGROUND On March 17, 2023, Joseph and Natalie Hagen purchased a 68.66-acre tract in an A-1 agricultural zone located on Clear Creek Road in Jessamine County, Kentucky. Afterward, they submitted an “agricultural division plat” relating to the property to the county clerk to effectuate a division of their tract into eight smaller ones. The county clerk recorded the Plat on July 13, 2023. Undisputedly, each of the eight tracts resulting from the division consisted of at least five contiguous acres; fronted Clear Creek Road, a pre-existing public road; and was subject to the following restriction which was signed and adopted by the Hagens:

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-5- AGRICULTURAL LOT RESTRICTIONS: NEW TRACTS 1-8 ARE RESTRICTED TO AGRICULTURAL USE PURSUANT TO KRS 100.111(2) AND KRS 100.203(4) AND THE RESTRICTION IS PERPETUAL AND RUNS WITH THE LAND. THESE TRACTS HAVE NOT BEEN REVIEWED BY THE PLANNING COMMISSION FOR ANY SUBDIVISION REGULATION COMPLIANCE.[1] At some point shortly before or after the Plat was recorded, the Hagens began advertising these “agricultural lots” for sale to the public through Zillow, a real estate marketing website. Their advertisement stated in relevant part as follows: Conveniently located about 10 minutes to Lexington, 15 to Versailles, and 5 minutes to Nicholasville. Stop by and take a look and [sic] the very gently laying landscape. This is an agricultural lot adjacent to other farm land and will provide the perfect opportunity to build a beautiful home in the midst of a gorgeous farm setting. Horses, cattle, or crops, and barns are permitted. Plat is not yet recorded, but an approximately 5 acre area is finish mowed to provide an understanding of size and rough location. Proposed deed restrictions include: 1) Four board fencing; 2) Single family dwelling must be 3000 square feet or more, exclusive of basement; 3) No mobile or modular home. No campers, rv’s, trailers, etc being used as permanent dwellings. 4) Electrical lines must be buried. Owner/agent. Listed by: Joseph E.C. Hagen[2] 1 Trial Record (TR) at 135. 2 Joseph Hagen acknowledged at the November 16, 2023 BOA hearing that he is a realtor.

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-6- Imperium Real Estate Group, LLC[3] On August 1, 2023, the Hagens conveyed a 6.71-acre tract from their Plat to Sergey and Irina Nesenchuk (Tract 4). The deed, like the other deeds that will be discussed, referenced the Plat and incorporated its restrictions. It recited a consideration of $275,000. On August 15, 2023, Joseph Hagen applied to PZ for a permit to construct, on a 5.01-acre tract of the Plat (Tract 7), what he described as a “dwelling for self/farmer & my family who are engaged in the agricultural use on the tract.”4 In response to the application’s question, “Are any business operations taking place on this property?” Hagen answered, “Yes,” and added, “Agricultural operations in accordance with KRS 100.111(2) and KRS 100.203(4).”5 On September 20, 2023, the Hagens received a letter from PZ, signed by its director, Jeremy Young, rejecting their application for a building permit on Tract 7. In support of PZ’s decision, the letter explained: Agricultural division plats like yours are exempt from Planning and Zoning fees and review in order to facilitate and encourage agricultural uses. In exchange for decreased regulation, the sub-divider agrees to place certain restrictions on the property, these restrictions are 3 TR at 140 (emphasis added). 4 TR at 14. 5 TR at 15.

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-7- reflected in the “Agricultural Lot Restrictions” on your plat. The note states that the tracts are restricted to agricultural uses pursuant to KRS 100.111(2). That regulation explicitly defines ‘agricultural uses’ as a category statutorily excluding residential development for sale or lease to the public as detailed in KRS 100.111(2)(a). Apparent residential development, on your property, for sale or lease to the public, is prohibited by the Agricultural Lot Restrictions. This constitutes one ground for denial of the building permit. Furthermore, KRS 100.203(4)(c) states that dwellings may be permitted but “shall have regulations imposed which are applicable, such as zoning, building, and certificates of occupancy[.]” Per the plat note labeled “Agricultural Lot Restrictions” the plat was recorded without any review or approval from the Jessamine County-City of Wilmore Joint Planning Commission. Jessamine County Subdivision regulations require the sub-divider to widen the road to no less than 22 feet in total width along the entirety of the parent tract when more than three lots are created. This requirement would be applicable to the plat in question. Although the plat creating these lots does not contain a road cross-section, other plats along Clear Creek Road show a road width of 18’, four feet less than a minimum. The failure to follow the subdivision regulations and widen the road also renders the property ineligible for residential construction, and this constitutes a second ground for denial of a building permit. Tract 7, as well as all other lots created by the above- mentioned plat, are ineligible for residential construction due to failure to comply with the plat restrictions.[6] 6 TR at 18-19.

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-8- In summary, PZ denied the Hagens’ residential building permit application for two reasons. First, while acknowledging that KRS 100.203(4)(c) indicates that “dwellings” are permitted on tracts restricted to agricultural uses, and that the Hagens’ Plat and tract were restricted to agricultural uses only, PZ viewed the proposed construction of a dwelling on the tract as “residential development for sale or lease to the public,” which is not considered an “agricultural use.” Thus, it found the Hagens ineligible for a permit to build a residence on their tract. Second, because, as it reasoned, the dwelling would not qualify as an “agricultural use,” an undefined range of subdivision regulations needed to be satisfied before the Hagens could receive a residential building permit – including regulations that required the Hagens to re-plat their agricultural division into a residential subdivision, secure PZ’s approval for the re-platting, and widen part of Clear Creek Road to 22 feet. On October 2, 2023, the Hagens conveyed a 10-acre tract from their Plat to Cue Thi Le, Dung Cong Van, and Vincent Van Lee (Tract 2). The deed recited a consideration of $395,000. On October 12, 2023, because PZ’s denial of their residential building permit application constituted an official and appealable act,7 the Hagens petitioned the BOA for review. In their October 12, 2023 petition, the Hagens 7 See KRS 100.257 and KRS 100.261.

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-9- explained they were entitled to a residential building permit because they were not, in their view, engaging in what PZ claimed was the non-agricultural use, per KRS 100.111(2)(a), of “residential building development for sale or lease to the public.”8 Instead, the Hagens insisted they wanted to engage in the agricultural use, recognized by KRS 100.111(2)(a), of building a “dwelling for persons and their families who are engaged in the agricultural use on the tract.”9 To that end, they added that the “dwelling” would only be for themselves, and “the property in question is being used for agricultural purposes as defined under KRS 100.111(2). Mr. Hagen’s family intends to use the farm for raising cattle, planting an orchard and growing hay.”10 On November 16, 2023, the BOA held an administrative hearing regarding the Hagens’ petition. Joseph Hagen and Sergey Nesenchuk appeared in support of the Hagens’ position. Joseph, for his part, acknowledged that his and his family’s current residence was located at 2787 High Bridge Road in Jessamine County. Through his attorney, Joseph explained it was his intention to move his family onto one of the five-acre lots he divided on the Clear Creek Road property, 8 TR at 21. 9 TR at 21. 10 TR at 20 (emphasis added).

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-10- that “he would like to farm that land,”11 that “he wants to build a house on that property for his family to live in while they farm that land,”12 and that, accordingly, he would be engaging in an “agricultural use” on the tract by constructing a dwelling upon it. He also asserted that because the tract he wished to build upon had been created through an agricultural division plat, and because agricultural divisions are not considered “subdivisions” under Kentucky law, his Plat did not require PZ’s approval, and his tract and the dwelling he wished to construct upon it were exempt from subdivision regulations such as the county’s 22-foot road widening requirement. Thus, he reasoned, his failure to secure PZ’s approval or widen Clear Creek Road to 22 feet was not a valid reason to deny him a residential building permit. Regarding the other seven lots that his Plat had divided from the Clear Creek Road property, Hagen acknowledged he had already sold two of them to the public (one of them to Nesenchuk) and that he intended to sell the remainder, but that each of his purchase contracts incorporated the agricultural use restrictions set forth on the Plat. Nesenchuk, for his part, informed the BOA that his “full intention is to build a house and pretty much use it for farm [sic],” and that Joseph 11 TR at 77 (emphasis added). 12 TR at 77.

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-11- “had me sign a paper saying that I-I know that it’s farm-intended only.”13 One of the BOA members suggested it might be permissible for an owner to place a home on a five-acre tract if the remaining balance of the tract was otherwise used for farming.14 However, when Hagen was asked whether he believed the agricultural use restriction would permit an owner of one of the divided tracts to build a 3000- square-foot dwelling, “set a bunch of beehives in the back,” and call it a “farm,” Hagen (by and through his attorney) responded, “I think that’s accurate, based on the law.”15 Director Young provided opposing arguments and a written report on behalf of PZ, recommending the BOA affirm PZ’s rejection of the Hagens’ residential building permit application. In summary, Director Young reiterated the substance of PZ’s September 20, 2023 letter to the Hagens, and also asserted that the Hagens’ Zillow advertisement was additional evidence that the Hagens’ true intended purpose for dividing the Clear Creek Road property was to create lots for sale to the public for residential building development – an intended purpose that did not comport with agricultural use as reflected in KRS 100.111(2)(a). The Jessamine County Attorney, who was representing PZ, then added: 13 TR at 87. 14 TR at 81. 15 TR at 82.

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-12- COUNTY ATTORNEY: [Hagen] said that a farmer would not have to widen the road. Well, a developer would. I see the neat distinction dividing this between Mr. Hagen’s use of the property where he intends to build, and the broader implications of this development. To me, the building permit is inseparable from the fact of this illegal division that’s taken place. You know, whether he’s using it for a farm or not, the division is improper, and thus it would be improper to give a building permit for the lot that’s created by that division. Furthermore, if you’re building a home, then you meet with a specific exclusion from Chapter 100.203’s ag exception. Says, “Mobile homes and other dwellings may be permitted, but shall have regulations imposed which are applicable, such as zoning, building, certificates of occupancy.” I want to point out where we’ve talked about how maybe this wasn’t import – enforced so rigidly in the past. You’ve heard me say before that there’s case law that failure to enforce by a previous administrator does not mean that the current administrator can’t enforce. Where we’ve had discussion tonight of whether Planning and Zoning has picked and choose [sic], and enforced here, but not there. But I’ll tell you, the whole point of agricultural plats is that they kind of escape Planning and Zoning’s review. It’s a difficult matter to stop misuse, and really, it only becomes evident when you have what you have here, which is evidence of residential development for sale or lease to the public. The board went down the correct route with this, the activity, chickens, bees, crops. That’s not the question. It’s the fact of development for sale or lease to the public. Mr. Boone, you were correct that if you want to preserve agricultural use on all of these properties, that can be done by deed restrictions, covenants. We had some questions about the ad that was put in the staff report. What’s wrong with the ad? Is it just the listing of Imperium? Is it price? Because it’s the rest of the ad that demonstrates the intent for residential development for

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-13- sale or lease to the public. That’s the part that’s damning. A farmer, can he give his children land? If the statute doesn’t say that, the statute still does directly prohibit residential development for sale or lease to the public. . . . MEMBER HORSTMAN: With regard to the intent to sell full residential development, need there be structures on the lots prior to the point of sale? COUNTY ATTORNEY: I don’t think that you’re going to find any authority that answers that question. And that’s the kind of gray area that has made this such a difficult enforcement matter. Mr. Young felt that he had enough to go on here to determine that this was being sold and advertised and marketed. And that’s what says it. And if you waited for a structure, that creates a whole different set of enforcement difficulties. Once there’s been investment in the property along the lines of building a structure, that’s a lot tougher.[16] At the conclusion of the meeting, the BOA unanimously voted to adopt PZ’s recommendations and their decision to deny the residential building permit requested by the Hagens. On December 6, 2023, the Hagens conveyed another tract from their Plat to Sergey and Irina Nesenchuk; this time, the tract was 16.28 acres (Tract 1). The deed recited a consideration of $569,800. The Nesenchuks, in turn, sold Tract 16 TR at 245-46.

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-14- 4 to William Cody Sheeran and Shelby Stein Sheeran. The deed recited a consideration of $395,000. On December 12, 2023, the Hagens then filed an original action in Jessamine Circuit Court appealing the BOA’s final action and naming PZ and BOA as defendants. In their petition, the Hagens maintained they were entitled to a permit to build a residence on Tract 7 because “dwellings” are permitted on agricultural tracts that serve an agricultural use, their tract was an agricultural tract, and their tract was serving an agricultural use, i.e., they “intended to raise cattle and chickens and grow a large vegetable garden on the land among other agricultural uses” and “did not intend to lease or sell this dwelling to the public.”17 PZ and BOA answered, insisting the Hagens were entitled to no relief. They also counterclaimed against the Hagens and filed third-party claims against the individuals who had acquired an interest in some of the Clear Creek tracts (i.e., appellees Central Kentucky Agricultural Credit Association (AgCredit),18 Cue Thi Le, Dung Cong Van, Irina Nesenchuk, Sergey Nesenchuk, Vincent Van Lee, William Cody Sheeran, and Shelby Stein Sheeran. PZ and BOA sought a determination of rights and injunctive relief. In sum, they asked the circuit court to 17 TR at 7 (emphasis added). 18 AgCredit is the mortgagee of record for the Clear Creek Road property, with exception of certain released lots.

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-15- declare the Hagens’ Plat and all conveyances of tracts made from the Plat void, and to declare that the purported owners of those tracts could never obtain permits to build residences on those tracts based upon those conveyances. PZ’s and BOA’s claims then led the other parties to file claims against PZ, BOA, and each other. Specifically, the Hagens sued PZ and BOA for abuse of process, claiming PZ and BOA brought actions for declaratory and injunctive relief as a means of “accomplish[ing] the ulterior purpose of coercing the Hagens into complying with the Jessamine County-City of Wilmore Joint Planning Commission decision to reject the Hagens’ building permit,” and not because PZ and BOA actually believed the Plat was deficient.19 Appellees Lee, Van, and Le, for their part, sued the Hagens for fraudulent inducement, breach of contract, and negligence, claiming that the Hagens’ misrepresentations had caused them to enter a contract and pay the Hagens valuable consideration for a lot they could not legally own or construct a residence upon.20 On February 25, 2025, the circuit court entered an order disposing of this matter as follows. With respect to PZ’s and BOA’s declaratory and injunctive action regarding the validity of the Hagens’ Plat, the circuit court determined the Plat was valid for any “buyers who bought, and lenders who loaned, in reliance 19 TR at 355. 20 TR at 534-36.

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-16- upon [it,]”21 but void so far as anyone else was concerned. Based upon that determination, the circuit court held: The Nesenchuk’s [sic] purchase on August 4, 2023, the Lee’s [sic] purchase on October 4, 2023, and AgCredit’s mortgage [of] October 4, 2023, all occurred prior to the case being heard by the BOA. All of those transactions survive. Mr. Nesenchuk, who was present at the BOA meeting on November 16, 2023, had actual knowledge of Planning and Zoning’s position as of that date, if not sooner, so he cannot be a bona fide purchaser as to the purchase of Tract 1 on December 12, 2023, so that transaction is void. Finally, even though the BOA meeting was held on November 16, 2023 and this suit was filed on December 12, 2023, the Sheerans were not joined as Third-Party Defendants until February 23, 2024, and no lis pendens was ever filed in this case. There is nothing in the record to indicate that the Sheerans had either actual or constructive knowledge of Planning and Zoning’s policy when they bought Tract 4 from the Nusenchuks [sic] on December 8, 2023, so their transaction survives. To effectuate this ruling it is hereby ordered that Planning and Zoning is directed to take whatever steps are necessary in the county clerk’s record to reflect that the Plat is valid as to Tract 4 (the tract owned by the Sheerans) and Tract 2 (the tract owned by the Lees), but void as to all other tracts. The only exception is that the Plat shall remain valid as to Tract 1 for sufficient time to allow the Nesenchuks to convey Tract 1 back to the Hagens. The Nesenchuks shall convey Tract 1 back to the Hagens in exchange for the full purchase price within 30 days. Because the Nesenchuks were not bona fide purchasers, they shall not be entitled to interest on their purchase money so long as the transition occurs within the 30 day period. If the transaction occurs more than 30 21 TR at 579.

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-17- days from the date this [sic] Opinion and Judgment becomes final, the Nesenchuks shall be entitled to interest at the legal rate, beginning at the end of the 30 day period, on any unpaid balance. Planning and Zoning shall immediately file a lis pendens to that effect pending the outcome of any appeal.[22] As for the BOA’s disposition of the Hagens’ administrative appeal regarding the denial of their residential building permit application, the circuit court affirmed on the premise – originating from its resolution of the declaratory action – that the Plat was void, and that the Hagens had prior notice of that fact. To that end, the circuit court reasoned “the BOA acted within its statutory authority in upholding the denial of the Hagens’ building permit on the grounds that their Plat violated KRS 100.211(2)(a) [sic23], and that because the division was not an ‘agricultural use’ it was required to comply with the subdivision regulations, one of which mandated widening of Clear Creek Road.”24 Lastly, the circuit court held that, given its above rulings, “any claims of the Lees, AgCredit, and the Sheerans[25] are dismissed as moot. The [Hagens’] Counterclaim for abuse of 22 TR at 579-80. 23 The circuit court’s reference to “KRS 100.211(2)(a)” is an apparent typo: KRS 100.111(2)(a) is the statutory provision that prohibits “residential building development for sale or lease to the public” from being considered an “agricultural use.” 24 TR at 574. 25 AgCredit and the Sheerans filed no claims in this case.

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-18- process and demand for attorneys fees is dismissed as being unsupported by the facts and the law.”26 These appeals followed. II. ANALYSIS The Hagens have not addressed the circuit court’s dismissal of their abuse of process claims against PZ and BOA. Likewise, Le, Van, and Lee did not appeal the dismissal of their breach of contract, negligence, and fraud claims against the Hagens. Accordingly, those points are not at issue. What remains at issue is: (1) the validity of the Hagens’ Plat; and (2) the propriety of PZ’s and BOA’s refusal to grant the Hagens a residential building permit for Tract 7. We will address those issues in turn. A. The Hagens’ Plat was valid. The circuit court’s determination that the Hagens’ Plat and some of their conveyances were void resulted from its resolution of PZ’s and BOA’s declaratory action. “In a declaratory action, findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are reviewed de novo.” Big Sandy Company, L.P. v. EQT Gathering, LLC, 545 S.W.3d 842, 844 (Ky. 2018) (citation omitted). Here, the circuit court’s determination that the Hagens’ Plat and any of their conveyances were void was incorrect. 26 TR at 580.

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-19- In explanation we begin with an overview of the applicable law, which was summarized in Nash v. Campbell County Fiscal Court, 345 S.W.3d 811 (Ky. 2011): Any authorized political subdivision that wants to adopt zoning regulations (land use) and subdivision regulations (divisions of land) must comply with Chapter 100 of the Kentucky Revised Statutes (Planning and Zoning). “When the state has preempted a field, the city must follow that scheme or refrain from planning.” Under KRS 100.273(1), the planning commission has initial authority to adopt subdivision regulations. Those counties that do not have planning commissions can adopt subdivision regulations through the fiscal court. KRS 67.083(3)(k) does authorize fiscal courts to adopt planning, zoning, and subdivision regulations “according to the provisions of KRS Chapter 100[.]” Subdivision plats are approved by the planning commission as a ministerial function to insure compliance with the subdivision regulations. KRS 100.111(22) exempts, from the definition of “subdivision”, divisions of land which are restricted to agricultural uses and not involving a new street. Agricultural uses in both the zoning ordinances and in subdivision regulations are defined in KRS 100.111(2), and for purposes herein, usually require a parcel of at least five contiguous acres. Id. at 814-15 (footnotes omitted). The fact that a property owner does not need planning commission approval of divisions of land under the agricultural exemption of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4), does not mean that any deed (of a proposed agricultural division of land) that recites that it is exempt from planning commission approval under said statute(s) is automatically entitled to

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-20- be recorded. There is no presumption under the statutes that tracts of five or more acres are for agricultural use. A planning commission that believes a division of land is not exempt from its review and approval (under KRS 100.111(22) and KRS 100.111(2)) can seek injunctive relief or otherwise litigate. In the event land is sold in violation of the subdivision regulations, the attempted conveyances are void. Also, a county clerk has the obligation to record recordable deeds and plats (within a reasonable time) after they are tendered at the county clerk’s office. KRS 100.277 requires all subdivisions have planning commission approval and no plat or conveyance of a subdivision of land shall be recorded until approved by the planning commission. Any such instrument of transfer not receiving planning commission approval is void, and shall not be recorded. A proposed transfer under the agricultural exemption of KRS 100.111(22) would have no stamp of approval, because such transfers are exempt from planning commission approval. But, without a review by the planning commission, how is a clerk to know whether a proposed division is a subdivision needing planning commission approval, or an agricultural division which is exempt from planning commission approval? That is the clerk’s call, and if the clerk has a question about the validity or recordability of a deed, he/she can always request a review of the tendered documents by private counsel, the county attorney, or even the planning commission. An owner whose tendered divisions is refused recording by a county clerk may bring a declaration of rights action under KRS 418.040[.] Id. at 815-16 (footnotes omitted). The Nash Court then explained how to determine whether a proposed division or conveyance requires planning commission approval, or whether it is

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-21- exempt from subdivision regulations under the agricultural exemption of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4). Synthesizing those provisions, the Court stated: Three things must exist for the proposed divisions to be exempt from subdivision regulations under the agricultural supremacy clause. First, the use of the parcel(s) conveyed out must be restricted to agricultural uses. Second, usually, the parcel(s) being conveyed out, as well as the remaining parcel, must contain five or more contiguous acres. Third, the original parcel, and those conveyances out, must not involve the construction of a new street (all parcels must have frontage on an existing street). Nash, 345 S.W.3d at 818 (footnotes omitted). In Nash, a purported agricultural division plat and associated conveyances were voided because they did not comply with all three of those criteria. Here, by contrast, there is no dispute that the eight tracts resulting from the Hagens’ Plat each consisted of at least five contiguous acres; that the eight tracts fronted Clear Creek Road, a pre-existing public road; and that the Plat and deeds of conveyance restricted all of the tracts at issue to agricultural uses. Accordingly, they were exempt from subdivision regulations under the agricultural supremacy clause. They did not require PZ’s approval, and they were valid agricultural divisions. That is and should have been the end of the analysis.

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-22- We now turn to where the circuit court erred. In support of its conclusion that the Plat and some of the conveyances in this matter were void, the circuit court explained: It is not enough for an agricultural division plat to simply be comprised of five acre tracts with adequate road frontage and a note on the plat restricting the tracts to agricultural use. It is also subject to the requirement that the division be for a legitimate ‘agricultural use.’ That determination is to be made by the trier of fact.[27] Before discussing how the circuit court arrived at this conclusion, we note that in Nash, the Kentucky Supreme Court identified three – not four – criteria for assessing whether a proposed division or conveyance requires planning commission approval, or whether it is exempt from subdivision regulations under the agricultural exemption of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4). Nash has not been overruled, and the circuit court was not at liberty to add to its holding. That aside, the circuit court arrived at its conclusion by misreading two cases: McCord v. Pineway Farms, 569 S.W.2d 690 (Ky. App. 1978), and Green v. Bourbon County Joint Planning Commission, 637 S.W.2d 626 (Ky. 1982). Each of those cases involved the filing of a purported agricultural division plat that created parcels of five or more contiguous acres, and which did not 27 TR at 568.

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-23- involve the construction of a new street; however, the plats and conveyances at issue in those cases were not restricted to only agricultural uses. Instead, the proponents of the plats and conveyances in each case insisted that a “presumption of agricultural use” – a “presumption” created by either a local ordinance or a bald recital on the plat that the division was for agricultural use – was all that was required to qualify their plats (which divided agriculturally zoned tracts) as agricultural division plats. Disputes then erupted over what the developers were attempting to achieve by filing their plats, and resolving those disputes required fact-finding. Specifically, in McCord, The plat recited that it was a division of land for agricultural purposes, with the said purpose to include, but not be limited to, one dwelling per tract. The plat indicated that the land would be divided into eighteen separate units. Seventeen of the tracts ranged in size from five acres to six acres, with the eighteenth tract containing 53.2 acres. Most of the large lot lies behind the smaller lots. The plat provides for eighteen new driveways with access to Scotts Ferry Road and Kentucky Highway 33. McCord, 569 S.W.2d at 691 (emphasis added). When McCord was rendered, there existed no statutory definition of the phrase, as used in KRS 100.111(22), “a division of land for agricultural purposes.” That presented a problem: unless “one dwelling per tract” (a recited “agricultural purpose” of the tendered plat) qualified as an “agricultural purpose,” it could not be determined that the plat effectively

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-24- qualified as an “agricultural division plat” – a plat which could only be recorded for agricultural purposes. When the case was ultimately appealed to this Court, we explained that merely constructing a dwelling on land zoned for agricultural use is not, in and of itself, an agricultural purpose. Instead, what the law contemplated was: farm dwellings, occupied by farm owners. If the proposed division is not composed of farms, then the residences constructed thereon are not farm dwellings, and the developers cannot convert residential tracts into farms by simply calling them farms. McCord, 569 S.W.2d at 693. Considering our holding, we directed the circuit court to determine what the developer meant by stating on its plat that the “division of land [was] for agricultural purposes, with the said purpose to include, but not be limited to, one dwelling per tract.” If the developer meant to convert the divided tract into “a high priced residential subdivision, composed of large country estates,” then its plat was simply an “attempt to use the agricultural purpose exemption in the statute as a loophole to skirt the intent of Chapter 100[.]” Id. We also noted that evidence of record conflicted on that point, explaining: [T]he appellees offered affidavits of persons who were considering purchasing a tract of Pineway Farms. This alone created the first question of fact concerning the purpose of the land division, since three of the prospective purchasers stated that they planned to purchase lots in order to build a house. The other

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-25- prospective buyer was a real estate salesman who was interested in selling to other potential buyers. The record also indicates the possible factual dispute relative to the advertising of the lots as residential building sites. The appellees argue that, without exception, the prospective buyers indicated their intention to live on the land and to grow crops. Id. at 692. Importantly, there was no indication in McCord that the plat contained any restrictions regarding agricultural purposes; nor did McCord address whether a valid restriction to statutorily defined agricultural purposes would have rendered what the developer meant to achieve a wholly irrelevant issue. In Green, a developer caused his 107.91-acre farm in Bourbon County to be platted and laid off into 15 tracts ranging in size from 4.25 acres to 20.43 acres. The plat reflected that each of the tracts was subject to utility easements, each had individual access to a public road, and 14 of the 15 tracts contained five acres or more. As in McCord, at the time the Green developer filed his plat, there was no applicable statutory definition of the phrase, as used in KRS 100.111(22), “a division of land for agricultural purposes.” Unlike the plat at issue in McCord, however, there is no indication that the developer’s plat in Green recited that its division of land was for any purpose. Nevertheless, the Green developer’s plat was accepted for filing based upon a local ordinance that provided, in relevant part,

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-26- that “[l]and in residential lots of five (5) acres or more in agricultural zones shall be presumed devoted to agricultural use.” Green, 637 S.W.2d at 628. The developer’s plat was challenged as being nothing more than an “attempt[] to create a residential subdivision without complying with the planning and zoning requirements, but merely by having the small tracts take on the statutory and ordinance presumption of being agricultural.” Id. at 628. The challengers lost on summary judgment. Id. at 627. However, the Kentucky Supreme Court reversed on appeal, finding that evidence of record undercut, rather than supported, summary judgment in favor of the developer. Id. at 629. To that end, the Court invalidated the ordinance and its presumption of “agricultural use” as violative of KRS Chapter 100. See id. at 628-29. And, irrespective of that presumption, the Court held that the plat and the details displayed thereon “were sufficient in and of themselves to disclose that the subdivision, and each individual lot thereof, in truth and in fact, was for residential, not agricultural purposes.” Id. at 629. Importantly, the Court added: [T]he uninhibited division of farm land into five-acre tracts, as herein sought, circumvents and emasculates rather than promotes the orderly development of a community by established planning and zoning requirements. Id. (emphasis added).

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-27- As in McCord, there was no indication in Green that the plat at issue contained any restrictions regarding agricultural purposes; nor did Green address whether a valid restriction to statutorily defined agricultural purposes would have rendered what the developer meant to achieve a wholly irrelevant issue. But, the Green Court suggested by negative inference that the inhibited (i.e., restricted) division of farmland into five-acre tracts would not circumvent and emasculate planning and zoning requirements. Id. Here, the Plat and conveyances at issue are distinguishable from those in McCord and Green because they contain specific and undisputedly valid restrictions to “agricultural purposes” – a term that is now statutorily defined in KRS 100.111(2). And, while McCord and Green are silent regarding the operative effect of a valid restriction to only agricultural purposes, Nash – our highest Court’s most recent pronouncement on the subject – is not. If, as here, (1) the use of the parcels(s) conveyed out is restricted to agricultural uses, (2) the parcel(s) contain five or more contiguous acres, and (3) the original parcel and the conveyances from it have frontage on an existing street then there is no issue for a “trier of fact” to resolve, much less one involving the parol intentions of those attempting to file the plat – regardless of their advertisements. Nash, 345 S.W.3d at 818. Therefore, the Hagens’ Plat is exempt from subdivision regulations as an agricultural division plat.

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-28- If PZ and BOA believe the Hagens and their grantees are engaging in activity prohibited by the restrictions of the Plat, their recourse is not the voiding of the Plat and some of its associated conveyances. Instead, PZ and BOA have the power to enforce regulations and restrictions pertaining to agricultural use.28 Because the Plat was not void, there was no basis for the circuit court to void any of the conveyances at issue in this matter. We reverse these aspects of the circuit court’s judgment. Before departing from this issue, we pause to reiterate that PZ and BOA have cross-appealed the circuit court’s February 25, 2025 judgment. Their cross-appeal takes issue with the circuit court’s judgment that only some of the conveyances are void. They argue the circuit court should have found all the conveyances void because the Plat was void. However, as we have declared the Plat valid, we affirm with respect to Appellees’ cross-appeal. B. The Hagens were not entitled to a building permit. PZ and BOA denied the Hagens a building permit because, in their view, the Hagens’ Zillow advertisement was evidence the Hagens were engaging in “residential building development for sale or lease to the public,” an activity that 28 This is a tactic PZ and BOA have utilized, and which another panel of this Court recently approved in Abbott Family Dynasty Trust v. Jessamine County-City of Wilmore Joint Planning Commission, No. 2025-CA-0403-MR, 2026 WL 71108 (Ky. App. Jan. 9, 2026) (affirming circuit court’s permanent injunction prohibiting the construction and occupancy of a home on agricultural property situated in Jessamine County until such time as the landowner obtained a building permit and certificate of occupancy).

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-29- KRS 100.111(2)(a) precludes. The Hagens argue the circuit court should not have affirmed the denial because it was arbitrary. We disagree. However, our rationale differs from that of PZ, BOA, and the circuit court. Judicial review of administrative action asks whether that action was arbitrary. Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty. Plan. & Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). A determination of arbitrariness “is comprised of three elements: 1) whether the agency acted in the exercise of its statutory powers; 2) whether a party affected by an administrative order received procedural due process; and 3) whether the agency action is supported by substantial evidence.” Friends of Louisville Pub. Art, LLC v. Louisville/Jefferson Cnty. Metro Historic Landmarks & Pres. Districts Comm’n, 671 S.W.3d 209, 213 (Ky. 2023). “A reviewing court assesses whether the agency correctly applied the law under a de novo standard of review. If the court finds that the agency applied the correct rule of law to facts supported by substantial evidence, the court must affirm the agency’s final order.” Smith v. Teachers’ Ret. Sys. of Kentucky, 515 S.W.3d 672, 675 (Ky. App. 2017) (citation omitted). We will assume without deciding that the Hagens’ conduct with respect to other tracts was relevant to whether they were entitled to receive a residential building permit on Tract 7. With that in mind, we disagree with the notion that the Hagens’ Zillow advertisement evinced that the Hagens were

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-30- engaging in “residential building development for sale or lease to the public.” “Residential building development” and even the word “development” are not defined in KRS Chapter 100, but the plain meaning of “development” in this sense is: 1. A human-created change to improved or unimproved real estate, including buildings or other structures, mining, dredging, filing, grading, paving, excavating, and drilling. 2. An activity, action, or alteration that changes undeveloped property into developed property. BLACK’S LAW DICTIONARY 462 (7th ed. 1999). Here, according to the Zillow advertisement, the most the Hagens have done relative to the divided tracts – apart from restricting them to agricultural use29 – is “finish mowed” an “approximately 5 acre area” to “provide an understanding of size and rough location,” and suggest restrictive covenants for potential homebuilding. That did not meaningfully alter the property, obligate anyone to build a home on the property, or hinder anyone from engaging in solely agricultural uses of the tracts; and it is a far cry from any of the “development” activities set forth above. The Hagens are also only attempting to construct a residence for themselves, not for any members of the public. And, while the 29 PZ and BOA also suggest the Hagens have engaged in “residential building development for sale or lease to the public because “[t]he Hagens have, by platting the property, made it more suitable for the residential purposes of eight different landowners.” Appellees’ Brief at 22. However, we are unpersuaded that filing a plat restricting the land to agricultural use only facilitates non-agricultural use.

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-31- advertisement clearly demonstrates the Hagens intend for the purchasers of their tracts to have the “opportunity” to use the tracts to construct residences for themselves, residences can qualify as an “agricultural use” under KRS 100.111(2)(a).30 However, that opportunity is subject to “regulations imposed which are applicable, such as zoning, building, and certificates of occupancy[.]”31,32 Parenthetically, we acknowledge (as PZ and BOA emphasize in 30 While PZ and BOA acknowledge that “single family dwellings are a permitted use in Jessamine County’s A-1 zone,” Appellees’ Brief at 14, we explained in Grannis v. Schroder, 978 S.W.2d 328, 330 (Ky. App. 1997), that “[t]echnically, it is not necessary” for a local ordinance to list a single-family farm residence as a permitted agricultural use of agricultural property “because of the agricultural supremacy clause[.]” 31 KRS 100.203 provides in relevant part that cities and counties may enact zoning regulations which shall contain: (4) Text provisions to the effect that land which is used for agricultural purposes shall have no regulations except that: (a) Setback lines may be required for the protection of existing and proposed streets and highways; (b) All buildings or structures in a designated floodway or flood plain or which tend to increase flood heights or obstruct the flow of flood waters may be fully regulated; (c) Mobile homes and other dwellings may be permitted but shall have regulations imposed which are applicable, such as zoning, building, and certificates of occupancy; and (d) The uses set out in KRS 100.111(2)(c) may be subject to regulation as a conditional use; . . . (Emphasis added.) In Abbott, 2026 WL 71108, at *3, we explained that while land used for agricultural purposes is exempt from many local zoning regulations, those exemptions are not absolute, and that KRS 100.203(4):

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-32- their brief before this Court) that in 1972, the Kentucky Attorney General reviewed KRS 100.111(22) and opined: [T]he fact that the land owner intends to lease a number of ten acre lots, presumably upon which a family residence will be constructed [though the primary purpose would be to farm the remaining acres within the lots], would constitute, in effect, a subdivision within the meaning of the term as defined in KRS 100.111(22) and thus not come within the exception of land being divided solely for agricultural purposes. See Ky. OAG32 72-409 (Jun. 20, 1972). However, as the Kentucky Attorney General also acknowledged in that same opinion, and as we have discussed here at length, there was no statutory definition of “agricultural use” at that time. We now have such a definition which provides that a family residence constructed on an agricultural tract can be considered an agricultural use. PZ and BOA also argue the Hagens were impermissibly engaging in a non-agricultural use by merely selling those other tracts to the public. We disagree with that premise as well. Their argument stems from a misinterpretation of KRS 100.111(22), which provides: [D]irectly provides cities and counties with authority to enact and enforce local regulations. It expressly provides that dwellings on agricultural land can be subject to land use regulations, building codes, and requirements for certificates of occupancy. This statutory latitude harmonizes with the purpose of regulations, ordinances, codes, and requirements enacted to protect public health and safety – particularly as they pertain to construction of a dwelling. 32 Opinion of the Attorney General of Kentucky.

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-33- “Subdivision” means the division of a parcel of land into three (3) or more lots or parcels except in a county containing a city with a population equal to or greater than eight thousand (8,000) based upon the most recent federal decennial census or in an urban-county government or consolidated local government where a subdivision means the division of a parcel of land into two (2) or more lots or parcels; for the purpose, whether immediate or future, of sale, lease, or building development, or if a new street is involved, any division of a parcel of land; provided that a division of land for agricultural use and not involving a new street shall not be deemed a subdivision. The term includes resubdivision and when appropriate to the context, shall relate to the process of subdivision or to the land subdivided; any division or redivision of land into parcels of less than one (1) acre occurring within twelve (12) months following a division of the same land shall be deemed a subdivision within the meaning of this section[.] (Emphasis added.) True, KRS 100.111(22) states that the division of a parcel of land into two or more lots or parcels for the immediate or future purpose of sale qualifies as a “subdivision” (which is subject to subdivision regulations). However, the ensuing phrase, “provided that,” indicates the rule overlaps with, is governed by, and is subordinate to33 the additional rule that “a division of land for agricultural use and not involving a new street shall not be deemed a subdivision.” It follows that sale or lease of agricultural land for agricultural use, or building development 33 See BLACK’S LAW DICTIONARY 1240 (7th ed. 1999) (defining “provided” as “On the condition or understanding (that)”).

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-34- on agricultural land for agricultural use, is consistent with agricultural use. Were it otherwise, it would have been unnecessary and superfluous for our General Assembly to have added the further qualification, in KRS 100.111(2)(a), that “agricultural use” does not include “residential building development for sale or lease to the public.” Lastly, PZ and BOA argue, “Practicality dictates that [PZ] should not wait for the investment/vested right/judicial remedy problem of initiated construction” before ascertaining whether the construction of a residence on agricultural land is consistent with agricultural use. Appellees’ Brief at 21. We agree. In fact, that is the dispositive point in this litigation. To elaborate, telling purchasers that they will have the “opportunity” to build a house on an agriculturally divided parcel, as the Hagens did in their Zillow advertisement, is somewhat misleading. As this case highlights, while property that is being put to an agricultural use is exempt from many regulations, it is not exempt from regulations that require residential building permits to construct residences. Additionally, entities such and PZ and BOA cannot allow the issuance of such a permit for the construction of a residence on agriculturally divided property unless the residence will qualify as an “agricultural use.” Not all residences qualify as an “agricultural use,” a point we clarified decades ago in

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-35- McCord, supra. To that point, we turn to the operative definition of “agricultural use” which (relevant to this case) is: [T]he use of . . . A tract of at least five (5) contiguous acres for the production of agricultural or horticultural crops, including but not limited to livestock, livestock products, poultry, poultry products, grain, hay, pastures, soybeans, tobacco, timber, orchard fruits, vegetables, flowers, or ornamental plants, including provision for dwellings for persons and their families who are engaged in the agricultural use on the tract, but not including residential building development for sale or lease to the public. For purposes of this subsection, “livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, and any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species; . . . KRS 100.111(2)(a) (emphasis added). There is a three-part trap for the unwary stemming from the above- emphasized language. First, before any dwelling can be established on the tract as an “agricultural use,” a condition precedent must be satisfied: An agricultural use must already exist on the tract. That much is plainly evident from the phrase, “dwellings for persons and their families who are engaged in the agricultural use on the tract” (emphasis added), which contemplates an ongoing use, utilizes present tense, and does not speak in terms of proposed, intended, or future agricultural use. Second, after any dwelling is established, it must continue to be the residence of “persons and their families who are engaged in the agricultural use on

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-36- the tract.” Otherwise, it will cease being an “agricultural use” and will instead become a “nonconforming” one – a status which limits the owner’s ability to modify or, if necessary, rebuild the dwelling. See KRS 100.111(13) (defining “nonconforming use or structure”); see also Grannis v. Schroder, 978 S.W.2d 328, 331-32 (Ky. App. 1997) (discussing limitations imposed upon the repair and alteration of nonconforming uses). Third, the existence of an ongoing agricultural use on the land, and whether a person who desires to build or is residing in a “dwelling” on the land is engaged in that ongoing use, are not issues resolved with a self-serving answer on a residential building permit application. They are issues for entities such as PZ and BOA to determine based upon evidence of record and the exercise of sound discretion. A farmhouse cannot exist without a farm; thus, an agricultural use cannot be a sideline designed to obtain an agricultural zoning exemption for a residence. Our General Assembly did not intend to allow a homeowner to avoid county zoning requirements simply by having a tomato patch, a flower bed, or a few beehives in the backyard. “[T]he production of agricultural or horticultural crops,” per KRS 100.111(2)(a), must be the first and principal use of the tract. The validity of that use should also be measured by the scope of the claimed agricultural activities relative to the tract’s size, their duration, and their productivity. In Grannis, for example, we explained that the principal use of a

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-37- thirty-acre tract was agricultural where the landowners had produced hay from it, continued to do so, and were using “twenty or so acres” of the tract for agriculture. Grannis, 978 S.W.2d at 331. With that in mind, through the determination that the Hagens were not entitled to a residential building permit for Tract 7, PZ, BOA, and the circuit court ultimately achieved the correct result.34 The Hagens were not engaged in the agricultural use of Tract 7 when they filed their application, nor when they argued their case before BOA. They merely represented their intention to do so – a point the Hagens repeatedly acknowledged before BOA, in their complaint before the circuit court, and throughout their brief before this Court. In so doing, they placed the cart before the horse. As stated, KRS 100.111(2)(a) requires an ongoing agricultural use to exist on the agricultural tract – not a proposed, intended, or future agricultural use – before it permits a “dwelling” to be constructed on the agricultural tract. On that basis, we affirm this aspect of the circuit court’s order. III. CONCLUSION We find all other arguments posed by the parties to be unpreserved, unpersuasive, moot, or without merit. Consistently with what is set forth above, we AFFIRM IN PART AND REVERSE IN PART the order and judgment of the 34 An appellate court may affirm a trial court 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).

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-38- Jessamine Circuit Court with respect to the Hagens’ appeal (No. 2025-CA-0527- MR); and we AFFIRM with respect to PZ’s and BOA’s cross-appeal (No. 2025- CA-0529-MR). ALL CONCUR.

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-39- BRIEFS FOR APPELLANTS/CROSS-APPELLEES JOSEPH AND NATALIE HAGEN: Matthew D. Henderson Lexington, Kentucky BRIEFS FOR APPELLEE/CROSS- APPELLANTS JESSAMINE COUNTY-CITY OF WILMORE JOINT BOARD OF ADJUSTMENT; ALSTON BOONE; BONNIE BAKER; JEREMY YOUNG; JESSAMINE COUNTY CITY OF WILMORE JOINT PLANNING COMMISSION; JOHN SLUGANZ; ROGER BROCK; WEBSTER RUSSELL; AND WESLEY METCALF: Henry E. Smith Nicholasville, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLEE CENTRAL KENTUCKY AGRICULTURAL CREDIT ASSOCIATION: Samuel G. Carneal Donald M. Wakefield Lexington, Kentucky BRIEF FOR APPELLEES/CROSS- APPELLEES VINCENT VAN LEE, DUNG CONG VAN, AND CUC THI LE: Joe F. Childers Lexington, Kentucky

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