Boyd et al. v. Louisville & Jefferson Co. P. & Z.
| Decision Date | 23 June 1950 |
| Citation | 313 Ky. 196 |
| Court | Supreme Court of Kentucky |
| Parties | Boyd et al. v. Louisville & Jefferson County Planning & Zoning Commission et al. Raidt-Barnett, Inc. v. Kesselring et al. |
The Court of Appeals, Stanley, C., held that the Circuit Court erroneously ruled that the burden of proof was on complainants to show the unreasonableness of the change and reversed the judgment and remanded the case with directions.
Cammack, J., dissented 1. Motion. — A "show cause" order requires a party to appear and show cause why a certain thing should not be done or permitted and requires that party to meet the prima facie case made by the applicant's verified complaint or affidavit.
2. Administrative Law and Procedure; Counties. — Under statute providing for appeals from orders of county zoning commission by filing of statement of appeal setting forth decision of commission and reasons of appeal and requiring that statement pray that an order to show cause issue against and be served on commission and providing that hearings in circuit court shall be de novo and heard by judge, burden is on zoning commission to show in court that public welfare requires the subordination of public rights and that board has constitutionally exercised police power granted in accordance with statutory authority. KRS 100.052, 100.057(1, 2), 100.056, 100.066.
J.W. Jones and Jones & Jones for appellants.
Sam Steinfeld for appellees.
Before B.H. Farnsley, Judge.
STANLEY, COMMISSIONER.
Reversing.
The Louisville and Jefferson County Planning and Zoning Commission on February 7, 1947, made a number of adjustments in the original master of plan of zoning areas of the unincorporated St. Matthews region. KRS 100.052. The order was made over the vigorous protest of many property owners. There had been a previous comprehensive adjustment and reclassification in 1945 affecting some, if not all, of this territory. The original zoning seems to have been made in 1943. Two appeals were taken to the circuit court from so much of the order as changed the classification of a part of what is called the "Triangle," which is in the business section of St. Matthews, and an area containing about 170 acres a mile or so to the northeast. The former was changed from "E-1, Light Industrial" to "D-2, Commercial" and the latter from "A — Residence" to "E-1, Light Industrial" zones. The action was taken under KRS 100.066, 100.052 and 100.056.
The respective statements of appeal set forth several reasons why the action should not have been taken and should not be confirmed by the court. They prayed that "an order be issued and served upon the Commission to show cause why the property described" should not remain zoned as it was and that such order be revoked and the previous zoning classification continued. KRS 100.057. The cases were tried together leisurely, much evidence being heard, and judgments were rendered eighteen months after their filing. The judgments confirmed the adjustment and changes adopted by the Commission and dismissed the appeals.
Several grounds are urged in this court for a reversal of the judgments. One is that the circuit court erroneously ruled that the burden of proof was upon the appellants. We address ourselves to that point only.
The provision for resort to the court by parties "claiming to be injuriously affected or aggrieved by any action or decision by the commission" is by filing "a statement of appeal" setting forth the action or decision of the Commission, the date thereof and the reasons for the appeal, a certified copy of the action or decision being attached as part of the statement. It is required only that the statement ask or pray "that an order to show cause be issued against and served upon the commission." The court is given jurisdiction "to hear and determine all questions and issues properly brought before it on such appeal." The appeal "shall stay all action by all parties of record in the matter appealed from." KRS 100.057(1). The statute further provides that the "procedure shall be the same as in common law actions." Further, "Hearings in the circuit court shall be de novo and heard by the judge." Appeals to this court follow the course of other common law cases. KRS 100.057(2).
The question of burden of proof is important. Its importance is signified by the opinion of the trial court in this case "that the changes effected by the resolution are not violative of or harmful to the public health or safety or morals or the general welfare of the whole territory." It was, therefore, held the protesting property owners had failed to prove the changes were harmful to the public health, safety, morals or general welfare. Its importance is likewise manifested with respect to presumptions to be regarded by both the trial and the appellate court. Thus, we are impressed with the absence from the record of any authority of the Commission to take the challenged action. It is provided by the statute that adjustments in the original or master plan "shall become effective only by and through the approval of such proposed adjustments by the legislative body of such city or the fiscal court of such county, or both, as the case may be, or by the commission if and when authorized to do so by general ordinance and order of said legislative body and said fiscal court, and by recording same in the office of the clerk of the county court of such county." KRS 100.052. No action by the fiscal court in respect of this extensive adjustment, either specially or generally, was proven. Unless the Commission's order or resolution was adopted as provided by this enabling statute, it is invalid.
It is to be noted that a proceeding for judicial review of orders or regulations of zoning commissions in cities of the second class is upon the record made before the board, and the statute restricts the scope of the review and determination. KRS 100.480. Also, the procedure for appeals from decisions of such similar commissions in cities of the other classes is different. KRS 100.590. And in the former zoning statute pertaining to cities of the first class, an appeal to the court was by obtaining a writ of certiorari and the case was considered on the record made before a Board of Adjustment and Appeals, supplemented by evidence if the court directed it. The matter of burden of proof was not mentioned. Acts of 1930, Chapter 86, Sec. 3037h-122, Ky. Stats. Likewise, different from the present mode are appeals from findings of administrative commissions and boards, such as the Workman's Compensation Board (KRS 342.285) and the Division of Motor Transportation. KRS 281.420. And a review of action of the Public Service Commission is obtained by bringing a suit in equity, the statute expressly placing the burden of proof upon the parties seeking to set aside the order or decision of the Commission "to show by clear and satisfactory evidence" that its action was unreasonable or unlawful. KRS 278.410, 278.430. But, as we have related, by the terms of this statute enabling the zoning and planning of property in cities of the first class and counties containing such cities an order is issued against and served upon the Commission "to show cause." The case is then heard de novo. KRS 100.058. Regard must be...
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