American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission

Citation379 S.W.2d 450
CourtUnited States State Supreme Court (Kentucky)
Decision Date13 March 1964
PartiesAMERICAN BEAUTY HOMES CORPORATION, Appellant, v. LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellees.

Robert L. Sloss, David A. Jones, Louisville, for appellant.

Homer Parrent, Jr., James L. Taylor, Mark Davis, Jr., Louisville, for appellees.

CLAY, Commissioner.

This is a zoning case which raises a very important question of administrative appeal procedure. Appellant, the owner of a tract of land in Jefferson County, sought to have the zoning classification changed from a one family residential district to a 'D-1' commercial district. The Zoning Commission denied the request. The circuit court, on a trial 'de novo' under KRS 100.057(2), upheld the ruling of the Commission.

The property involved is a 2 1/2 acre tract of land located on the north side of Blue Lick Road in Jefferson County, approximately 780 feet west of Preston Highway. There are but a few residences already built in the immediate vicinity but it is in the middle of an area originally zoned residential. Across the road are a volunteer fire station and recreational playground. A substantial area at the intersection of Blue Lick Road and Preston Highway to the east is presently zoned commercial. About one-half mile in a southwesterly direction from the property is another commercial zone.

Appellant proposes to use its property for a community shopping center. Neighboring property owners raised no objection to the zoning reclassification. The trial court found it would be a community advantage; that the property generally in this immediate area would not be adversely affected; and that it would not result in substantial detriment to others. However, the court decided these considerations were outweighed by others.

In support of the Commission's ruling there was evidence appellant's tract was more suitable for residential use than commercial development; that the particular location did not fit with the planned development of community shopping centers in Jefferson County; that there was an ample sufficiency of additional property in the general area zoned commercial; that there were no peculiar characteristics of this tract that would prevent its development for residential purposes; and that this was a clear case of 'spot zoning'. There was no evidence of a substantial change in the character of the neighborhood which would justify special treatment of this particular tract.

The Chancellor, relying principally upon Hodge v. Luckett, Ky., 357 S.W.2d 303, upheld the integrity of the original zoning plan in adjudging that the decision of the Commission was neither arbitrary nor unreasonable and that there was no tenable basis for reclassifying this property. The Chancellor's opinion understandably indicates some uncertainty as to the court's role in deciding the issues on a 'de novo' hearing. We will subsequently in this opinion dispose of this difficulty.

Appellant first contends the trial court improperly required it to introduce evidence first, thereby imposing upon it the burden of proof. It may be observed the court's order related only to the order of proof, not the burden. Under CR 43.02(3) the court has discretion in this matter and we find neither abuse of discretion nor prejudice. The same procedure was followed in Jenkins v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 357 S.W.2d 846.

The question of the burden of proof has impelled us to re-examine comprehensively our administrative appeal procedure and former decisions. This re-appraisal has convinced us that one phase of the procedure provided by KRS 100.057 not only is impractical and unworkable, but is unconstitutional.

Section (2) of KRS 100.057 provides that 'Hearings in the circuit court shall be de novo * * *.' (Our emphasis) We wrestled with this concept in Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563. When coupled with our decision in Boyd v. Louisville and Jefferson County Planning and Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, which involved the burden of proof, we find the circuit court confronted with almost insurmountable difficulties. These involve not only the procedural method of trial but the scope of review in properly disposing of the appeal on its merits. The root of the trouble is that this statute undertakes to impose on the court a nonjudicial administrative function. See Davis, Administrative Law Text (1959), section 29.10 (page 535). It thereby violates section 27 of the Kentucky Constitution which provides for the separation of powers. 1

In order that the independence of the three distinct departments of government be preserved, it is a fundamental principle that the legislature cannot invade the province of the judiciary. II Am.Jur., Constitutional Law, section 206 (page 908); 16 C.J.S. Constitutional Law, § 104, page 483. It cannot take away judicial power. Commonwealth ex rel. Tinder v. Werner, Ky., 280 S.W.2d 214; Austin v. Lambert, 11 Cal.2d 73, 77 P.2d 849, 115 A.L.R. 849; State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118. Nor may it impose upon the judiciary nonjudicial duties. 11 Am.Jur., Constitutional Law, section 225 (page 937); 2 Am.Jur.2d, Administrative Law, section 579 (page 402); Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804; State v. Huber, 129 W.Va. 198, 40 S.E.2d 11, 168 A.L.R. 808; State ex rel. Richardson v. County Court of Kanawaha County, 138 W.Va. 885, 78 S.E.2d 569. In short, the legislature can neither reduce nor enlarge the scope of the judicial function.

The duties of functions which the legislature may not transfer to the judiciary have been characterized as either legislative 2 or executive. 3 That many of these may be delegated to administrative agencies has long been acknowledged. 4 Their descriptive classification is not, however, the significant point. The vice lies in the fact that the duties or functions sought to be conferred upon the courts lie beyond the scope of judicial power. 5

If the legislature cannot impose upon the courts the administrative duty or function of making an initial discretionary decision, it cannot do so by the fiction of an appeal which requires the court to adjudicate upon administrative rather than judicial considerations. 16 C.J.S. Constitutional Law § 164, page 838.

In a recent opinion of the Alabama Supreme Court this precise question was carefully examined. Ball v. Jones, 272 Ala. 305, 132 So.2d 120. The statute involved was similar to KRS 100.057, and prescribed a 'de novo' trial in the circuit court upon an appeal by an aggrieved person from a decision, order or act of the legislative body of a city on the subject of zoning. The opinion points out that zoning is a legislative matter and the legislature could not delegate to or confer upon the courts this function. Since authorizing the circuit court on appeal to try the matter 'de novo' has this effect, the act was held unconstitutional as imposing upon the court a nonjudicial function.

We accept as sound the reasoning of this opinion on the general principle involved. Let us examine its application to the present case.

The subject matter of this controversy is a proposed adjustment to a master zoning plan. 6 It is clear under our statutes that the Planning and Zoning Commission, when acting on a proposed adjustment, performs the identical legislative function involved in promulgating the master zoning plan. KRS 100.055 is entitled in part 'Delegation to commission of power to approve adjustments; controlling factors;'. Section (2) of this statute provides that the Commission shall be guided and governed by the purposes and provisions of certain zoning statutes (enumerating them) and shall be 'particularly in accordance with' the purposes and provisions of other statutes (enumerating them), '* * * to the end that said master plan, or part or parts thereof, as the case may be, as so adjusted shall accomplish a coordinated and harmonious development of the incorporated and unincorporated area of the entire county.'

Here obviously is a delegation of legislative power to an administrative agency (whether characterized as a part of the legislative or executive branch of the government) to be exercised in conformity with a legislative policy and in a discretionary manner in the light of prevailing local conditions. It calls for policy decisions by a body with specialized training and experience in this field. In no sense does the Commission perform a judicial function.

The legislature has undertaken to confer upon the judiciary the identical duties and powers of the Commission. This is accomplished by requiring a 'de novo' trial on appeal to the circuit court. KRS 100.057(2). The futility of the initial proceedings is obvious when we recognize that all the steps taken before the Commission are nullified by taking an appeal. The detailed administrative process is a mockery. This procedural absurdity may be traced directly to the unconstitutional character of the 'de novo' provision. See California Co. v. State Oil and Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120. Some courts avoid this difficulty by construing 'de novo' as meaning no more than judicial review on generally accepted grounds. See Davis, Administrative Law Text (1959), section 29.10 (page 535). We do not see the advantage in so distorting the accepted meaning of the term. See Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563.

If a court is required to try out independently the propriety of an adjustment in a zoning plan, then the court is simply substituted for the Commission in determining and applying legislative policy to local conditions which require the expertise of an administrative agency. The legislature cannot, by directing a method of...

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