Bowling Green-Warren County Airport Bd. v. Long, GREEN-WARREN

• Decision Date: 09 November 1962
• Docket Number: GREEN-WARREN
• Citation: 364 S.W.2d 167
• Parties: BOWLINGCOUNTY ALRPORT BOARD et al., Appellants, v. L. K. LONG et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 167

364 S.W.2d 167

BOWLING GREEN-WARREN COUNTY ALRPORT BOARD et al., Appellants, v. L. K. LONG et al., Appellees.

Court of Appeals of Kentucky.

Nov. 9, 1962.

Rehearing Denied Feb. 15, 1963.

G. D. Milliken, Jr., B. G. Davidson, Marshall Funk, Bowling Green, for appellants.

Bell, Orr & Reynolds, Coleman, Harlin & Orendorf, Parker Duncan, Bowling Green, for appellees.

WADDILL, Commissioner.

On July 30, 1957, the Bowling GreenWarren County Airport Board instituted this proceeding against appellees to condemn, from their three farms, land needed for the construcrtion of a 1200 foot extension of the airport's north-south runway. Upon trial in the circuit court the aggregate verdicts were $39,024.00 for about 49 acres taken and $35,400.00 for consequential damages. As grounds for reversal it is urged that the court erred in permitting the jury to consider incompetent evidence and in excluding competent evidence and that the damages are excessive.

There were differences in the estimates of value of appellees' property. The principal source of the disagreement was that the witnesses for the appellants considered the property as only unimproved farm land while those for the appellees regarded all the land as adaptable for division into residential lots. In this connection appellants contend that the court over objection permitted incompetent testimony concerning the estimates of value of the land being taken on the basis of its susceptibility for use as a subdivision. Adaptability for particular purposes for which the land may reasonably be used is a proper element for the witnesses to consider in arriving at their estimates of the value of the land. East Kentucky Rural Electric Cooperative Corporation, Inc. v. Smith, Ky., 310 S.W.2d 535. Since there was testimony that appellees' land in its entirety was adaptable for subdivision purposes and there was a reasonable expectation that in the near future it could have been divided into lots, appellees were entitled to have the probative value of this evidence considered by the jury. Commonwealth Dept. of Highways v. Vincent, Ky., 357 S.W.2d 678.

Appellants also contend that testimony relating to the sale prices of several lots located near appellees' property was incompetent because they were not shown to be comparable to appellees' land. While the court's failure to exclude this testimony constituted error, it does not require reversal of these judgments. We reach this conclusion for the reason that upon a consideration of the whole case the testimony in question did not have enough significance to be prejudicial.

Appellants further assert that the court erred in excluding certain airport zoning ordinances which had been adopted by the Fiscal Court of Warren County and by the General Council of Bowling Green. The proffered exhibits are not in the record. However, the proved resolution of the fiscal court recites that its order was to regulate and restrict the height of structures and create airport or approach zones and transition boundaries in the vicinity of the Bowling Green Municipal Airport. The obvious purpose of the offered evidence was to show that appellees' land in the immediate vicinity of the proposed runway was already subject to restrictions and thus to minimize incidental damages. The ground of exclusion of the ordinances was that in their enactment the terms of the enabling statute had not been complied with. The statute in effect at the time, KRS 183.754 (1953 edition), authorized the legislative body of a county or any political subdivision to adopt airport zoning regulations after a public hearing in relation thereto upon at least fifteen days' newspaper notice thereof.

The Court heard evidence in chambers that upon a diligent search of the local newspapers no legal notice of a public hearing on the proposed adoption of the ordinances could be found. There was no countervailing evidence nor evidence that public hearings were held. The evidence overcame the presumption of validity of the ordinances.

Provisions in a statute outlining the procedure by which a zoning ordinance may be adopted are generally mandatory, and such ordinance if adopted is invalid where it was not passed as provided in the enabling statute. Failure to meet the prerequisite statutory requirement as to notice and a public hearing renders the ordinance invalid. City of Somerset v. Weise, Ky., 263 S.W.2: 921; cf. Louisville and Jefferson County Planning & Zoning Comm. v. Ogden, 307 Ky. 362, 210 S.W.2d 771; 8 McQuillin, Sections 25.251, 25.58; 58 Am.Jur., Zoning, Sections 9, 10; 101 C.J.S. Zoning Secs. 11, 45, 47; 1 Yokley, Zoning Law. & Pct., Sections 72, 87. An invalid zoning enactment or regulation does not affect the right of owners to use their property within the alleged zone as they see fit. 101 C.J.S. Zoning Sec. 22.

Appellants maintain the ordinances may not be collaterally attacked and the appellees were estopped to question their validity.

The validity of an ordinance usually can be attacked only directly and not collaterally. But if an ordinance is void in the sense that the legislative body had no constitutional or statutory power to pass it or it was never legally enacted, it may be collaterally attacked. 6 McQuillin, Section 20.14.

It is a generally accepted rule that one who recognizes an ordinance and treats it as in force for a period of years may,...