Cetrulo v. City of Park Hills

• Citation: 524 S.W.2d 628
• Parties: Ann CETRULO et al., Appellants, v. CITY OF PARK HILLS, Kentucky et al., Appellees.
• Decision Date: 20 June 1975
• Court: United States State Supreme Court — District of Kentucky

Page 628

524 S.W.2d 628

Ann CETRULO et al., Appellants, v. CITY OF PARK HILLS, Kentucky et al., Appellees.

Court of Appeals of Kentucky.

June 20, 1975.

J. Gregory Wehrman, Wehrman & Wehrman, Covington, for appellants.

Martin W. Mitchell, Adams, Brooking, Stepner & Mitchell, Covington, for appellees.

Robert E. Ruberg, O'Hara, Ruberg, Cetrulo & Osborne, Covington, for appellee Martha F. Butler.

CULLEN, Commissioner.

The Kenton County and Municipal Planning and Zoning Commission approved a proposal by W. P. Butler Company for a 'Planned Unit Development' (PUD), consisting of a seven-story condominium, on a 7 1/2-acre tract of land owned by Martha F. Butler, in an R--1E zone in the City of Park Hills. Neighboring property owners who had protested the proposal brought suit in the circuit court to stop the project, on the grounds (1) that the action of the zoning authorities was invalid and (2) that the Butler tract was subject to deed restrictions limiting the use of the tract to residential use in the form of single-family dwellings. The circuit court dismissed the action by a summary judgment, from which the plaintiffs appeal.

The appellants argue that the approval of the PUD use of the Butler tract amounted to a map amendment within the meaning of KRS 100.213, which involved adjudicatory action and which required properly supported findings of the facts set forth in KRS 100.213. The appellants maintain that the action of the zoning commission is invalid because it was not based on the required findings of fact supported by substantial evidence.

The appellants' contention is not sustainable because the zoning action in question was not a map amendment but was an approval of a use specifically authorized by the terms of a text amendment of the zoning ordinance. The zoning ordinance of the City of Park Hills, as it existed prior to the adoption of the amendment in question, authorized PUDs in various zoning districts (not including the R--1E district) if found by the zoning commission to meet designated standards. The use of this type of zoning regulation was approved by this court in Bellemeade Company v. Priddle, Ky., 503 S.W.2d 734. The Butler company made application to have the ordinance amended to permit PUDs in the R--1E district also, which would mean that the zoning commission then could consider a specific proposal for a specific PUD in that district. The application was given full consideration by the zoning commission at a public hearing, at which the protestants were heard,...