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Circuit Court Judge Daugherty sided with the Jessamine County Planning Commission on a local construction dispute. That dispute will soon be taken to the Court of Appeals. 

Malinda Abbott’s dream once she retired was to have her own farm. She bought a 16.87-acre farm in 2021. “I want to run some cattle, an orchard, a big garden, possibly some bees, sell some honey. I want to contribute to my community; I don’t want to suck. I want to help the people,” Abbott said. 

Abbott’s farm on Bethany Road in Jessamine County has a small dwelling, but she wanted to build a house for herself separate from what she calls the “tenant house.” She had planned on living at the original dwelling on the property until she finished building an individual dwelling. By December 2023, she said she had the funds to start building. 

Before starting to build, Abbott said she did her research with the state of Kentucky. She said she called the Department of Housing, Building, and Construction and the Division of Building Code Enforcement and that an official told her as long as she was outside of the urban boundaries of Nicholasville and Wilmore, she was building on a farm in an Agricultural Zone, and had her septic system inspected, that she was good to build. “The way I read the law, I did not need a permit. I wanted to verify it,” she said. 

But, in January 2024, Jessamine County hung up a cease and desist order on her fence post. According to Henry Smith, the Planning Commission’s attorney, on its own, the cease and desist requires no court appearance. When Abbott continued construction, she was then called into court. 

The Jessamine-County-City of Wilmore Joint Planning Commission filed a civil action lawsuit against Abbott in March 2024. The action claimed Abbott was violating permit requirements and was subject to fines if she continued building. 

The county asked a judge to order construction be stopped in the absence of a building permit; and to order either deconstruction of what they alleged was illegal construction, or that measures be taken to bring the new building in compliance with the laws.

Abbott said Judge Daugherty still allowed her to complete the new home’s exterior to keep wildlife and winter weather out. 

On March 14, 2025, Director of Planning and Zoning, Jeremy Young, resigned from his position. 

Smith explained the exemption he heard be used regarding this case. Kentucky Revised Statutes 100.203 states that County Planning and Zoning can’t do anything to regulate agricultural lands with exceptions. 

Smith said that one of those exemptions is that in the case of dwellings, the county can apply regulations like building and zoning regulations and certificates of occupancy. 

“Our initial position was if we can apply building regulations, let’s do it. Some of the pushback we have gotten is that if you apply these building regulations, you have to apply them with all of their exemptions, which includes that exemption for farm dwellings. However, the regulations that adopt these codes say that a municipality, by local ordinance, can extend building permits to all dwellings,” Smith said. “So I think one of the things the courts are going to have to clarify in this case is whether that regulation, which gives authority to the building codes, supersedes the exemptions within the building codes, and that’s a question for the courts.”

Abbott and other residents counter that KRS 100.203 is only for Urban County Merged governments, which Jessamine County is not. 

“They say I violate KRS 100.203. But it does not apply to me; that applies to urban county government; Jessamine County is not an urban county government,” Abbott said. In response to this argument, Smith noted that the Urban County Government piece of the statute only applies to one subsection, and not to provisions concerning agricultural lands

“I don’t think you’ll find anyone– a judge or the housing building construction cabinet in Frankfort who thinks that 100.203 is only applicable to urban county governments. We don’t think we are one, and we don’t think we have to be in order to use that carveout for agricultural dwelling regulation,” Smith said. 

In January of this year, Department of Housing, Building, and Construction Commissioner Max Fuller released a bulletin clarifying KRS 100.203, also known as the “agricultural supremacy clause” and the corresponding county farmstead exemption forms.

The regulatory guidance in the bulletin reads, “State or local building officials shall not require buildings or structures that meet the elements of the agricultural exemption set forth above to obtain building permits or comply with any provision of the Kentucky Building Code (KBC) or Kentucky Residential Code (KRC). Further, buildings or structures properly claiming an agricultural exemption are not issued a certificate of occupancy.’ The agricultural exemption is narrow in scope, and local governments may require residents to prove their eligibility for the exemption. Importantly, the agricultural exemption is specific to the KBC and KRC and does not exempt the qualifying building or structure from compliance with applicable planning and zoning ordinances.”

Smith explained that although this bulletin argues that building permits shouldn’t be required for farm dwellings, “[the state] is acknowledging that where zoning has jurisdiction over land use, density, setbacks and things like that, that they can apply that jurisdiction,” he said. “I think our director has said before that it’s kind of like an insurance policy checking in with planning and zoning first.”

According to the Jessamine County-Wilmore Planning Commission, even if Abbott had gone to Planning and Zoning to confirm her exemption and ability to build on the property, she couldn’t build the house anyway due to a “longstanding interpretation of [the county’s] Zoning Ordinance,” that restricts individuals to one house per lot, with limited exceptions for zones permitting multi-family living. 

Today, Abbott and her attorney, Ethan Johnson, are waiting to take this case to the Court of Appeals. Still, Abbott has spent tens of thousands of dollars and months of her life in dispute with Jessamine County. 

“My case has gone on so long, most people give up. My attorney researched it. He said Ms. Abbott, you’re the only one that’s hung in there this long, and I said well, that’s part of the game, isn’t it? People give up because they’re worn out or run out of money and can’t find it. The more I prayed about it and agonized over it, I was like, this isn’t right,” Abbott said.