City of Louisville v. Kavanaugh
| Decision Date | 04 May 1973 |
| Citation | 495 S.W.2d 502 |
| Parties | CITY OF LOUISVILLE et al., Appellants, v. James E. KAVANAUGH et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Herbert VanArsdale, II, Assistant Director of Law, Louisville, for appellants.
William W. Lawrence, Louisville, for appellees.
In this zoning case the legislative body (Board of Aldermen) of the City of Louisville refused to rezone a parcel of real property from single family residential use to a zoning category that permitted multifamily or apartment use. When the applicants for the zone change, who are owners of the subject property, sought judicial review of the refusal, the judge of the circuit court declared the legislative body's action to be arbitrary and directed that the property be rezoned for the multifamily residential use category recommended by the Planning and Zoning Commission. The city legislative body thereupon appealed from the circuit court's decision and seeks reversal.
Although the applicant property owners moved us to dismiss the appeal for a claimed inexcusable failure of the appellants to comply with our time rules for the filing of briefs, we declined to dismiss the appeal. The appellees later sought a reconsideration of this ruling. In view of our disposition of the appeal on its merits and the lack of timelessness in seeking the requested reconsideration, we adhere to our former decision not to dismiss the appeal. Based upon our consideration of the record, we have decided to direct a modification of the circuit court's judgment and affirm the disposition made by the circuit judge as modified.
The appellees, H. Bemis Lawrence and his wife, Mildred, Gaines P. Wilson, Jr., and his wife, Louise, and Ben J. Ritchey, Jr., and his wife, Marjorie, are the owners of a parcel of real estate in Louisville, Kentucky, located contiguous and adjacent to the Watterson Expressway near its intersection with Newburg Road. This busy intersection is the site of heavy automobile traffic.
The subject property is directly across the Watterson Expressway from the Commercial Watterson City Complex, which contains highway service use zoning, high-rise apartment use zoning, a 16-story office building, a 10-story apartment building, a Holiday Inn motel, a 4-story research building and a number of other commercial establishments. The appellees' property had for some time been zoned R--5, residential. This category permits only single family dwelling use. In April 1970, the Louisville and Jefferson County Planning Commission and the Board of Aldermen of the City of Louisville adopted a comprehensive land use plan for development of property in the community as required by the provisions of Chapter 100 of the Kentucky Revised Statutes. According to this comprehensive plan, the property of the appellees was designated for development for multifamily apartment use and a zoning category called R--6 was recommended for the subject property in the plan. Another zoning category under which apartment use is permitted is called R--7. Under category R--7, less restrictions are provided and high density multifamily use is permissible. Under the R--6 category there are specific restrictive provisions that control size of buildings and density of occupancy. It appears, therefore, that R--6 is the most restrictive category under the zoning scheme applicable to multifamily residential use.
In July 1971, appellees applied to the planning commission to change the zoning of their property from R--5 to R--7. The commission held a hearing, took evidence and made findings. The commission found that the proposed change sought by appellees was not in agreement with the comprehensive plan but that an R--6 apartment classification was appropriate. The planning commission recommended to the appellant city legislative body that the zoning classification of the property of appellees be changed from R--5, single family residential, to the R--6 classification, on a condition 'for provision of drainage satisfactory to the city engineers.' The specific language of the planning commission's recommendation was: ' . . . does hereby recommend to the Board of Aldermen of the City of Louisville that the proposed amendment of the zoning district map of Jefferson County, Kentucky, from R--5, Residential, to R--7, Apartment, on the following described property be DENIED but that this property be given an R--6 apartment classification, on condition for provision of drainage satisfactory to the city engineers.' The city legislative body held a public hearing on the recommendation. Although it purported to follow the recommendation of the planning and zoning commission, the legislative body refused to effect any change in the zoning classification assigned to the...
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...Oil & Rfg. Co., supra, 283 So.2d at 793-95; Cf. City of Louisville v. McDonald, Ky., 470 S.W.2d 173, 179 (1971); City of Louisville v. Kavanaugh, Ky., 495 S.W.2d 502, 505 (1973). In this case, there is no dispute respecting what matters were considered by the board. Consequently, whether th......
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...these affidavits were not properly before it and any reliance thereon would have been wholly improper. See City of Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky. 1973) (circuit court confined to record made before planning commission and legislative body). [Footnote 4 in original.] 3. Ba......
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