Dwayne Douglas Conken v. Nicholas County Fiscal Court

── Dwayne Douglas Conken v. Nicholas County Fiscal Court ── Court: Court of Appeals of Kentucky Date: May 22, 2026 Author: Taylor Category: General RENDERED: MAY 22, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0350-MR DWAYNE DOUGLAS CONKEN APPELLANT APPEAL FROM NICHOLAS CIRCUIT COURT v. HONORABLE JAY B. DELANEY, JUDGE ACTION NOS. 22-CI-00036 & 23-CI-00078 NICHOLAS COUNTY FISCAL COURT; DGS DEVELOPMENT, LTD; JAY SCHELL; JEFF RANDOLPH; KENNY HOLBROOK; MATT HUGHES; MIKE WEBB; STEVE HAMILTON; AND WAYNE SHIELDS APPELLEES AND NO. 2025-CA-0351-MR DWAYNE DOUGLAS CONKEN APPELLANT APPEAL FROM NICHOLAS CIRCUIT COURT v. HONORABLE JAY B. DELANEY, JUDGE ACTION NOS. 23-CI-00078 & 22-CI-00036 NICHOLAS COUNTY FISCAL COURT; DGS DEVELOPMENT, LTD; JAY SCHELL; KENNY HOLBROOK; MATT HUGHES; RODNEY MATTHEWS; ROSS HANEY; STEVE HAMILTON; AND TOMMY CRAWFORD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, EASTON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Dwayne Conken appeals orders entered on February 14, 2025, and on March 14, 2025, by the Nicholas Circuit Court. The orders affirmed a decision of the Nicholas County Fiscal Court (Fiscal Court) to approve a subdivision plat submitted by DGS Development, LTD (DGS), in 2023 over Conken’s objections and further held that a 2022 plat submitted by DGS in July of 2022, that was also approved by the Fiscal Court, to be arbitrary and unenforceable.1 For the reasons stated, we affirm. 1 Dwayne Conken filed Action No. 22-CI-00036 in 2022 in Nicholas Circuit Court challenging a subdivision plat submitted by DGS Development, LTD (DGS) that was approved by the Nicholas County Fiscal Court (Fiscal Court) on July 8, 2022. While that action was pending, DGS filed another plat for the same property that the Fiscal Court also approved on September 8, 2023. Conken also appealed that plat approval to the circuit court in Action No. 23-CI-00078. In Action No. 23-CI-00078, the circuit court entered an order on February 14, 2025, affirming the Fiscal Court’s ruling on the 2023 plat and effectively reversing the Fiscal Court’s approval of the 2022 plat, which was the subject matter of Action No. 22-CI-00036. By order entered on March 14, 2025, the circuit court, nunc pro tunc, consolidated the two actions and further -2-  Factual and Procedural Background In April of 2000, the Fiscal Court adopted subdivision regulations pursuant to Kentucky Revised Statutes (KRS) 100.273(2). DGS submitted an application for approval of a subdivision plat that was heard by the Fiscal Court in April of 2022. Conken, who owns a farm near the proposed subdivision, attended the meeting, objected to approval of the plat, and argued myriad ways the plat was non-compliant with the subdivision regulations. DGS subsequently withdrew the proposed plat. In June of 2022, the Fiscal Court Amended its subdivision regulations (first amended regulations) to essentially give the Fiscal Court the discretion to waive mandatory provisions of said subdivision regulations. DGS then resubmitted its plat, which was approved on July 8, 2022. Conken filed an appeal in the Nicholas Circuit Court on August 6, 2022 (Action No. 22-CI-00036). While the action was pending in the circuit court, the Fiscal Court again amended its subdivision regulations (second amended regulations). DGS then submitted a new plat application for the same proposed subdivision on August 29, 2023. The Fiscal Court approved the application after a public meeting on September 8, 2023. Conken again appealed this action of the Fiscal Court