Board of Adjustments of City of Richmond v. Flood
Decision Date | 21 November 1978 |
Citation | 581 S.W.2d 1 |
Parties | BOARD OF ADJUSTMENTS OF the CITY OF RICHMOND, Kentucky, et al., Movants, v. Charles Bracelen FLOOD et al., Respondents. |
Court | United States State Supreme Court — District of Kentucky |
Foster Ockerman, Martin, Ockerman & Brabant, Lexington, John D. Sword, Sword & Floyd, Richmond, for movants.
John F. Lackey, Lackey & Lackey, Richmond, for respondents.
The issue presented for decision is whether the circuit court has jurisdiction of an appeal from a final action of the board of adjustments if the planning commission was not made a party to the appeal within thirty days of the final action. We answer the question in the negative.
Exxon and Cracker Barrel filed an application before the Board of Adjustments of the City of Richmond seeking a height variance for a sign. The application was heard by the Board on June 17, 1976. The application was granted and the Floods and the Burnams appealed to the Madison Circuit Court on July 14, 1976 naming as appellees the Board, Exxon and Cracker Barrel. On July 30, 1976, Exxon and Cracker Barrel filed a motion to dismiss the appeal to the circuit court asserting the failure to include the Richmond, Kentucky, Planning and Zoning Commission as a party.
On August 24, 1976, sixty-eight days after the final action of the Board on June 17, the Floods and the Burnams joined the Commission as a party and had summons issued for it. The Madison Circuit Court held that the failure to make the Commission a party within thirty days was a fatal jurisdictional fault and dismissed the appeal. The Court of Appeals reversed with one member of the panel dissenting.
There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy. Kentucky Utilities Co. v. Farmers Rural Electric Corporative Cooperation, Ky., 361 S.W.2d 300 (1962); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953).
KRS 100.347 provides:
It is as plain as a billboard that the legislature has granted to persons aggrieved by the final action of the board of adjustments the grace of appeal to the circuit court provided they perfect that appeal by filing it in the circuit court...
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