Fowler v. Obier

• Decision Date: 29 May 1928
• Citation: 7 S.W.2d 219,224 Ky. 742
• Parties: FOWLER v. OBIER, City Building Inspector, et al.
• Court: Kentucky Court of Appeals

7 S.W.2d 219

224 Ky. 742

FOWLER v. OBIER, City Building Inspector, et al.

Court of Appeals of Kentucky

May 29, 1928

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Mandamus by J. W. Fowler to compel J. Lynn Obier, City Building Inspector, and another, to take action relative to issuing a building permit. From the judgment, plaintiff appeals. Affirmed.

J. L Richardson, of Louisville, for appellant.

W. T Baskett and Wm. G. Dearing, both of Louisville, for appellees.

LOGAN J.

The appellant, J. W. Fowler, in his petition filed in the lower court alleged that he was the owner in fee simple of a certain lot in the city of Louisville which is described, and the description shows that it fronts 50 feet on Third street, and 200 feet on Woodlawn avenue. There are two buildings on the lot, a residence fronting on Third street, and a business house fronting on Woodlawn avenue. Appellant alleged in his petition that he had entered into a contract for the sale of a part of his lot, that is, 100 feet fronting on Woodlawn avenue, and that the sale was made for the purpose of having erected thereon a gas and oil service station which was to be constructed strictly in accordance with the requirements of the building code. After having entered into the contract for the sale of a portion of the lot, appellant alleged that he made an application to the building inspector of the city of Louisville, the appellee, J. Lynn Obier, in the manner and form required by the ordinances of the city at the time. But the building inspector refused his application and denied him a permit on the ground that the granting of the permit would be in violation of the zoning ordinances. Feeling aggrieved by the decision of the building inspector, appellant alleged that he appealed to the board of public safety, and, upon a hearing before that board, his appeal was denied and the building inspector was directed not to issue the permit applied for.

Appellant alleged in his petition that the General Assembly of Kentucky in 1922 enacted a law known as the City Planning and Zoning Act (Acts 1922, c. 99), whereby cities of the first and second class were granted the power to create a city planning commission with power to make survey and plan of the city and the land contiguous or related thereto, and further to provide for the regulation of the height, area, and use of buildings, and for zoning of the city, together with such other power as was necessary to enable any city within either of the classes mentioned to adopt a zoning plan. He alleged that the General Assembly of Kentucky in 1924 (Acts 1924, c. 87) repealed the Act of 1922 referred to, and for that reason the city of Louisville, a city of the first class, was without power or authority to enact an ordinance in March, 1927, to create a city planning commission to make plans and surveys of the city of Louisville in order to enable the general council to divide the city into zones and to regulate the erection, alteration, and use of industrial or business property, and to exclude such business property from residence neighborhoods, so as to promote the health, safety, morals, and general welfare of the city. He alleged that in June, 1927, the general council of the city of Louisville passed another ordinance prohibiting for a period of two years the erection, construction, alteration, or use of property or buildings for business and industrial purposes in residence neighborhoods without the approval of the board of safety; defining residence neighborhoods; making certain exceptions and providing penalties for the violation of any of the provisions of the ordinance.

He alleged that the last-mentioned ordinance was unconstitutional because it denied the board of public safety any discretion upon an appeal to it by one feeling himself aggrieved by the refusal of the building inspector to grant a permit; that the board of public safety was compelled to follow literally the terms of the ordinance and deny a permit if by the provisions of section 2 of the ordinance of June, 1927, the permit was not allowable. Another ground on which he alleged the invalidity of the June, 1927, ordinance was that it suspended for a period of two years the laws and ordinances of the city in violation of section 15 of the Bill of Rights of the Constitution of Kentucky.

The alleged cause of action set out by appellant in his petition is bottomed on his allegations that the property which he describes as his is in truth and fact absolutely his, and that as long as he does not establish or allow a nuisance thereon, the city, under its police power, may not in any way interfere with his use of his own property; and that the city was therefore without power or authority to adopt or enforce the zoning ordinance or the emergency ordinance, as each interferes with the full and free enjoyment of appellant of that which he alleges to be absolutely his own. It is his contention, well set out in his petition, that the ordinances deprive him of the full control and use of his property without compensation therefor first made, and that they provide for a taking of his property without due process of law and deny him the equal protection of the laws, in violation of his constitutional rights both state and federal.

The relief which he sought was that the board of public safety and the building inspector should be compelled by mandamus to issue to him a permit authorizing the construction of a gas and oil service station on his property. To conform with another contention of his that the board of public safety had arbitrarily refused him a permit and denied his appeal when it should have exercised a reasonable discretion, he prayed in the alternative that, if the court should be of the opinion that the ordinances are constitutional, the board of public safety should be compelled to hear his appeal and exercise a reasonable judgment in the determination thereof.

In their answer the board of public safety and the building inspector after joining issue on some of the allegations in the petition; particularly that one where it was alleged that the board of public safety did not exercise a reasonable judgment in determining the appeal of appellant, planted their defense squarely on the two ordinances referred to above and claimed the authority in the city to enact the ordinances and to conduct the affairs of the city covered by the ordinances in the manner therein provided.

Upon hearing before Judge Thomas R. Gordon, then judge of common pleas branch, Second division of the Jefferson circuit court, a demurrer interposed by the appellant to the answer of appellees was overruled, and as was also the motion for a writ of mandamus. The appellant refused to further plead, whereupon his petition was dismissed. The opinion of the learned judge of the lower court is exhaustive and fully covers all the questions raised on this appeal.

The ordinance creating a city planning commission of March, 1927, confers upon that commission power to make a survey and plan of the city and surrounding territory which bears relation to the planning of the city; to provide for the regulation of the height, size, and use of buildings, and for zoning of the city and surrounding territory which bears relation to the zoning thereof, and provides for the appointment and employment of persons to carry out the purposes of the ordinance and makes an appropriation to defray the necessary expenses.

Section 2 of the city planning commission ordinance is as follows:

"Sec. 2. For the purpose of promoting the health, the safety, the morals, or the general welfare of the city and surrounding territory in the county, bearing relation to the planning or zoning of the city, the commission, created by this ordinance, is hereby empowered in the manner and upon the conditions hereinafter prescribed;

(A) To make, establish and adopt plans and maps of the whole or any portion of the city and of any land outside the limits of the city and within the limits of the county, which, in the opinion of the commission, bears relation to the planning or zoning of the city.

In such maps or plans and descriptive matter the commission may show its recommendations for the development of said territory including among other things such matters as the general location, character, and extent of streets, viaducts, subways, bridges, waterways, water fronts, boulevards, parkways, playgrounds, squares, parks, aviation fields, and other public ways, grounds and open spaces; the general location of public buildings and other public property; and the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power, and other purposes; and the removal, relocation, widening, narrowing, vacating, abandonment, change of use, or extension of any of the foregoing ways, grounds, open spaces, buildings, or utilities, with the view to the systematic planning of the city and its environs.

It shall have power to make, establish and adopt plans for the controlling, development, preservation and care of historical landmarks, for the design and location of statuary and other works of art which are, or may become the property of the city or the county, and make recommendations to any public authorities or to any corporations or individuals in such city and its surrounding territory, bearing relation to the planning and zoning of such city, concerning the location of any buildings, or works to be erected or constructed by them.

(B) Such commission may provide for regulations to be made in accordance with comprehensive plan and designed to lessen congestion in the...