Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., Inc.

• Decision Date: 10 May 1984
• Citation: 669 S.W.2d 922
• Parties: ., Movants, v. DON RIDGE LAND DEVELOPING COMPANY, INC., Respondent. Supreme Court of Kentucky
• Court: United States State Supreme Court — District of Kentucky

Page 922

669 S.W.2d 922

FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Movants, v. DON RIDGE LAND DEVELOPING COMPANY, INC., Respondent.

Supreme Court of Kentucky.

May 10, 1984.

Alex F. Talbott, Louisville, for movants.

John G. Carroll, Louisville, for respondent.

Lawrence Jude Clark, Jr., Louisville, amicus curiae.

STEPHENS, Chief Justice.

The broad issue to be decided on this appeal is whether there are time limitations on the filing of independent actions which attack the alleged arbitrariness of zoning decisions.

Respondent, Don Ridge Land Developing Company, Inc., filed a formal request before the Louisville and Jefferson County Planning Commission seeking that certain property be rezoned. On April 17, 1980, the Planning Commission recommended to movants Fiscal Court that the zone change request be denied. On October 28, 1980, the Fiscal Court upheld the recommendation of the Planning Commission and denied the request for a zone change.

Nearly eight and one-half months later Don Ridge filed a suit in the Jefferson Circuit Court attacking the action of the Fiscal Court in denying its zone change request and alleging that such action was illegal as being arbitrary, unreasonable, capricious, and erroneous. The Fiscal Court moved to dismiss the complaint as not being timely filed. The trial court granted the motion and dismissed the complaint. The Court of Appeals, in a split decision, reversed the trial court holding that the action was timely filed.

The Fiscal Court argues: (1) that KRS 100.347 requires that a judicial review of a rezoning decision made by a legislative body be filed within thirty (30) days of that body's action; (2) that a Fiscal Court ordinance, which requires judicial review of such decisions within thirty (30) days is valid and is applicable hereto, and (3) that this Court should, by judicial fiat, establish a time limit for the filing of such actions. We do not agree, and accordingly affirm the opinion of the Court of Appeals.

To begin, it must be noted that the action filed by Don Ridge is not a statutory appeal. It is, rather, an independent action, attacking the legality of the decision of the legislative body, the Fiscal Court. Its legal basis lies in Section 2 of the Kentucky Constitution which prohibits the arbitrary exercise of power over property. See American Beauty Homes Corporation v. City of Louisville, Ky., 379 S.W.2d 450 (1964) and its long line of progeny. Movants' argument that KRS 100.347 is controlling fails. KRS 100.347 is as follows:

KRS 100.347. Appeals from commission or board of adjustment.

Any appeal from commission action may be taken in the following manner:

(1) Any person or entity claiming to be injured or aggrieved by any final action of the planning commission or board of adjustments may appeal from the action to the circuit court of the county in which the land lies. (Such appeal shall be taken within thirty (30) days after the final action of the commission or board. (Emphasis added.)

Under the plain wording of the statute, the authorized appeal can only be taken from the final action of the planning commission or the board of adjustment. No appeal is provided from an action of a legislative body. In the present case, the action filed by Don Ridge was filed against the Jefferson County Fiscal Court, a legislative body. KRS 100.347 is not applicable to the present case. Johnson v. Lagrew, Ky., 447 S.W.2d 98 (1969).

Movants argue that Musser v. Leon Coal Processing Company, Ky.App., 560 S.W.2d 833 (1978) is controlling. In that case, Leon Coal applied to the City of Ashland Planning Commission to rezone a tract of land from light industrial to heavy industrial. At a hearing on May 21, 1974, no one appeared in opposition to the zone change, and the request was approved. On May 23, 1974, the recommendation was forwarded to the City Commission which enacted and adopted an appropriate ordinance changing the zone. The ordinance became effective on May 28, 1974. In December of 1974, and April of 1975, Leon Coal received its building permit to proceed under the new zone. The appellant appeared before the Board of Adjustment to protest the issuance of the permit and the Board of Adjustment declared that the permit was proper under the new zone classification.

In May of 1975, suit was filed against the mayor, city commission, planning commission, building inspector, and board of adjustment, urging that the hearing before the planning commission was void.

Leon Coal argued that KRS 100.347 was applicable and that the suit was filed too late. The trial court dismissed the complaint and the Court of Appeals affirmed. Following a description of KRS 100.347, the Court of Appeals declared that the "final action" described in Section (1) is "... the passing of the ordinance effecting the change by the legislative body .." In effect, Musser made KRS 100.347 applicable not only to the action of planning commissions and boards of adjustment, but also to that of legislative bodies. The Court reasoned that only the legislative body could take final action, in that the action of the planning commission was recommendatory in nature. The Court of Appeals reasoned that since the "final action" was taken by the City Commission on May 28, 1974 (the adoption of the ordinance), and since the suit was filed on May 30, 1975 (nearly a year later), the limitations set out in KRS 100.347 (as extended by the Court) applied. We do not agree and we herein overrule Musser, to the extent that it extends the appeal time limitation in KRS 100.347 to include actions of the legislative bodies. The statute is plain and simple. It applies only to the action of planning commissions and boards of adjustments. Whether the action is technically "final" or not, if a party is aggrieved by the action of either body the party can attack it by an appeal to the circuit court. The statute thus makes the action of those two bodies effectively final by allowing an aggrieved party the right to appeal. The General Assembly has provided in clear terms a remedy at a particular point in time in the zoning process. We will not infer an additional meaning to plain and simple words, particularly when the rights of the parties to raise questions are otherwise provided. As has been indicated, this Court in the American Beauty Homes case has provided a remedy against alleged illegal actions of legislative bodies. We conclude that KRS 100.347 only applies to appeals from actions of planning commissions and boards of adjustment.

Movant urges us to uphold the validity and alleged applicability of the ordinance of the Jefferson Fiscal Court which deals with judicial review of its action for zone changes. It provides:

Judicial review of an action of a legislative body pursuant to this section must be initiated by an aggrieved party within thirty (30) days from the time such action becomes effective.

The Court of Appeals declared this ordinance to be invalid because it goes beyond the grant of powers given to local governments by Chapter 100. We agree.

The power to enact zoning regulations and procedures has its genesis in the police power and the exercise of that power is limited by the statutory grant thereof. Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219 (1928); Southeastern Displays, Inc. v. Ward, Ky., 414 S.W.2d 573 (1967). In Ward, we said, "The City cannot exercise police power in enacting a zoning ordinance unless the right has been given by the legislature". Id., at 575. It is true and it is not seriously argued to the contrary that there is no authority in Chapter 100 that even inferentially would grant the right of a local legislative body to limit judicial review of an action of local boards or commissions. Land use regulation is the subject of the grant of powers to local governments by the state. We conclude that the Fiscal Court ordinance referenced above, is invalid.

Finally, movants urge this Court to establish a limited time in which this type of suit may be filed against the decisions of legislative bodies. We decline to do so because we believe that each case should be considered on its individual merits. The equities of all parties, and the rights of the public should be balanced on an individual case-by-case basis. Suffice it to say that in this case, the allegations raised by appellee in his independent action raise sufficiently important issues, in a timely manner, that we decline to rule that the action was filed too late.

The decision of the Court of Appeals is affirmed.

All concur, except GANT, J., who dissents in a separate opinion.

GANT, Justice, dissenting.

The reasons for my dissent are twofold. The first is well stated in Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of K.R.S. Chapter 100, 56 Ky.L.J. 556, 624 (1968), as follows:

The legislation provides a uniform procedure for appeals to the circuit court.... Section 100.347 provides that "[a]ny person claiming to be injured or aggrieved by any final action of the planning commission or boards of adjustment" may appeal to the circuit court of the county in which the land lies thirty days after any...