Darlington v. Board of Councilmen of Frankfort

• Decision Date: 03 May 1940
• Citation: 282 Ky. 778
• Parties: Darlington v. Board of Councilmen of City of Frankfort et al. (two cases).
• Court: United States State Supreme Court — District of Kentucky

282 Ky. 778

Darlington

v.

Board of Councilmen of City of Frankfort et al. (two cases).

Court of Appeals of Kentucky.

May 3, 1940.

1. Municipal Corporations. — A municipal ordinance which did not attempt to establish zones in which buildings for business purposes might or might not be constructed, and which, by its terms, referred only to buildings and land on certain avenue was invalid (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10).

2. Municipal Corporations. — A zoning ordinance, whatever the source of its authorization, in order to be valid, must apply to a city as a whole, and not alone to particular streets (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10).

3. Municipal Corporations. — A city ordinance prohibiting the use or alteration for commercial purposes of buildings on certain avenue or facing on any street intersecting that avenue, and the site of which abuts on such avenue, and prohibiting the erection or display of advertising signs, was totally invalid and could not operate to prevent one owning realty on avenue from remodeling building for conducting business as a retail florist (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10).

4. Municipal Corporations. — Where city had enacted ordinance pursuant to statute dealing with zoning commissions in third, fourth, fifth and sixth class cities, and setting up the machinery for the carrying out of the provisions of the statute, the city had ample power to enact emergency ordinance to maintain status quo until general zoning ordinance could become operative (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10).

5. Constitutional Law. — Where owner of residence had begun to convert her residence into a florist shop prior to enactment of zoning ordinance, she acquired a vested right under the Fourteenth Amendment (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10; U.S.C.A. Constitution, Amendment 14).

6. Municipal Corporations. — The mere ownership of property which could be utilized for the conduct of a lawful business, does not constitute a right to utilize it, which cannot be terminated by the enactment of a valid zoning ordinance by a city (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10; U.S.C.A. Constitution, Amendment 14).

7. Constitutional Law. — The right to utilize one's property to conduct a lawful business not inimicable to the health, safety or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality by city's zoning ordinance, or becomes "vested" within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of a series of acts necessary to the accomplishment of the end intended (Ky. Stats. Supp. 1939, secs. 2741z-1 to 2741z-10; U.S.C.A. Constitution, Amendment 14).

8. Constitutional Law. — The due process clause of the Fourteenth Amendment protects vested rights from encroachment by the state (U.S.C.A. Constitution, Amendment 14).

9. Constitutional Law. — The Fifth Amendment protects vested rights from destruction by the federal government (U.S.C.A. Constitution, Amendment 5).

Appeal from Franklin Circuit Court.

Edward C. O'Rear and William A. Young for appellants.

Charles N. Hobson and Guy H. Briggs for appellee.

Before William B. Ardery, Judge.

OPINION OF THE COURT BY JUDGE TILFORD.

Reversing.

This litigation involves the validity of the asserted right of the City of Frankfort to prevent the appellant from remodeling, and thereafter utilizing as a florist shop, a one story brick-stucco residence situated on a lot constituting the southwest corner of Second Street and Capitol Avenue. The lot extends 50 feet on Second Street and 139 feet on Capitol Avenue, and the residence which fronts on Second Street is located approximately 6 feet west of the sidewalk on Capitol Avenue and about 35 feet south of the sidewalk on Second Street. Capitol Avenue, with the exception of a lumber manufacturing plant located at its northern end and a dry cleaning establishment located in a garage some 75 feet north of appellant's property, is exclusively a residential street, but Second Street is not, although on the particular block on which appellant's property is located there are no commercial establishments except a filling station. Capitol Avenue is a two lane concrete boulevard constructed at the expense of the State, and extends a distance of five city blocks from a concrete and steel bridge over the Kentucky River to the State Capitol. The boulevard was constructed in 1937, and in September of that year the City Council of Frankfort enacted an ordinance designed to prohibit the construction, alteration, or use of buildings on Capitol Avenue for business purposes. This ordinance, hereinafter referred to as the Capitol Avenue Ordinance, was clearly invalid, because it did not attempt to establish zones in which such buildings might or might not be constructed, and, by its terms, referred only to buildings and land "on Capitol Avenue from the south end of the bridge to the property line of said Capitol." City of Covington v. Summe & Ratermann Co., 210 Ky. 520, 276 S.W. 534; City of Utica v. Hanna, 202 App. Div. 610, 195 N.Y.S. 225; Miller v. Los Angeles Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479; Hecht-Dann Construction v. Burden, 124 Misc. 632, 208 N.Y.S. 299.

On October 9, 1939, appellant applied to the City Council for a permit to remodel her property so as to enable her to use the residence in the conduct of a retail florist business. The original application for the permit was accompanied by plans which disclosed the contemplated use of a large portion of the front yard in the extension of the remodeled structure. The plans also disclosed that the front entrance to the florist shop would be on Second Street and indicated that two large windows were to face Capitol Avenue, which, it is stipulated, the City Council understood would be used for the display of flowers. The application was on a printed form supplied by the City for that purpose and set out all the requirements concerning the character of the structure and the materials to be used. Several of the adjoining property owners signed the application, but several others who had been asked to do so, refused. At a regular meeting of the City Council on October 23, 1939, the application was referred to the Building Committee, and, at the next regular meeting of the Council on November 13, 1939, was rejected, the Committee having reported unfavorably. Thereupon, appellant revised the plans which had accompanied her first application to the extent of moving the front line of the proposed building so as to make it conform to the front line of the adjoining and nearby buildings on Second Street; but the Council deferred action on the application until its next regular meeting which was scheduled to be held on November 17th. It should here be noted that appellant's application for a building permit was made pursuant to the requirements of a previously enacted building ordinance which was manifestly invalid because it failed to prescribe any standards, reasonable or otherwise, governing the discretion of the Council in granting or refusing a permit, or by which the applicant's right to a permit could be determined, and to some extent made that right dependent upon the consent of neighboring property owners. Boyd v. Board of Councilmen of City of Frankfort, 117 Ky. 199, 77 S.W. 669, 111 Am. St. Rep. 240; Commonwealth v. House, 177 Ky. 829, 198 S.W. 218; Board of Trustees of Town of Bloomfield v. Bayne, 206 Ky. 68, 266 S.W. 885; City of Monticello v. Bates, 169 Ky. 258, 183 S.W. 555; Dallas v. Mitchell, Tex. Civ. App., 245 S.W. 944; People ex rel. Russell v. Andrews, 339 Ill. 157, 171 N.E. 137; Eubank v. City of Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156, 42 L.R.A., N.S., 1123, Ann. Cas. 1914B, 192.

Evidently anticipating an attack on the validity of the ordinances above referred to should it refuse to grant the amended application of the appellant, action on which had been referred until the regular meeting of November 17, 1939, the Council, on November 16th, at a special meeting enacted an ordinance amending and re-enacting the Capitol Avenue Ordinance so as to prohibit the use or alteration for commercial purposes of buildings "facing on any street intersecting Capitol Avenue, the side of which abuts on Capitol Avenue," and also prohibiting the erection or display of advertising signs. This ordinance as amended and re-enacted contained the recital that it was in conformity with and under the authorization of Section 2741z-1 to 2741z-10 of the Kentucky Statutes Supplement 1939, Acts of 1938 of the Kentucky Legislature. However, Paragraph 6 of that Act provides:

"In order to avail itself of the powers conferred by this act, such legislative body shall appoint a commission, to be known as the zoning commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. Where a city planning commission already exists, or later is set up, it shall be appointed as the zoning commission."

As heretofore intimated, a zoning ordinance, whatever the source of its authorization, in order to be valid must apply to the city as a whole and not alone to particular streets. Hence, it is obvious that the amended and re-enacted Capitol Avenue Ordinance of November 16, 1939, was totally invalid for any purpose, and could not have operated to prevent the appellant from obtaining...