Fritts v. City of Ashland

• Decision Date: 16 June 1961
• Citation: 348 S.W.2d 712
• Court: United States State Supreme Court — District of Kentucky
• Parties: Howard L. FRITTS et al., Appellants, v. CITY OF ASHLAND, a Municipal Corporation, et al., Appellees.

Page 712

348 S.W.2d 712

Howard L. FRITTS et al., Appellants, v. CITY OF ASHLAND, a Municipal Corporation, et al Appellees.

Court of Appeals of Kentucky.

June 16, 1961.

Creech & Cox, Ashland, for appellants.

J. W. McKenzie, A. W. Mann, Arthur T. Bryson, Jr., Bunyon S. Wilson, Jr., Ashland, for appellees.

CULLEN, Commissioner.

The Board of Commissioners of the City of Ashland rezoned from R-2 Residential to I-1 Light Industrial a tract of four acres which was in single ownership. A group of neighboring property owners brought action attacking the rezoning ordinance on the ground that it was arbitrary, capricious and unreasonable. The circuit court entered judgment upholding the ordinance and the plaintiffs have appealed.

Ashland adopted a comprehensive zoning ordinance in 1955, following a study with the assistance of state experts that began in 1951. The city bounds on the Ohio River on the northeast and extends to the south and west. The area along the river was zoned for industrial and commercial uses. Aside from this area only two other districts were zoned for light industry, one in the northwest quarter of the city and the other near the west boundary. The rest of the city was zoned residential, except for appropriately located small commercial districts and for necessary educational, institutional and recreational areas. The tract here in question, which is called the Wilson tract, is located near the geographical center of the city in a neighborhood that is residential in character. The tract is two blocks from a grade school accommodating 350 children and three blocks from the presently being constructed senior high school which will have an enrollment of some 1200 students. The nearest industrially zoned property is one and one-half miles away.

In 1959, following a study by an employed firm of consultants, the city adopted a master plan. This plan, in accordance with KRS 100.350(1) (which refers to KRS 100.046), 100.352, 100.353 and 100.354, dealt with public facilities and made no changes in the zoning districts as related to private uses.

The Wilson tract was rezoned in September 1960. It is clear from the record that the zoning change was made because the owners of a garment factory, which had outgrown its existing location in the city, desired to build a new factory on the Wilson tract, and threatened to leave the city unless this tract was made available. There is no pretense that the zoning change was a step in any coordinated plan for establishment of industrial districts.

The contention of the appellants is, of course, that this is a case of spot zoning.

There was no evidence of any change in the neighborhood since the enactment of the original zoning ordinance in 1955, nor was there proof that the Wilson tract was by its situation distinguishable in character from the surrounding or adjoining property. Therefore, under the decision in Byrn v. Beechwood Village, Ky., 253 S.W.2d 395, the zoning change on its face was arbitrary, capricious and unreasonable, and the burden was on the city authorities to justify the change.

The city authorities have attempted to justify their action on two grounds. One is that the 'general welfare' of the city will be promoted by reason of employment being provided for some 400 citizens in the relocated garment factory. The other is that zoning in Ashland was still in a formative state and therefore the city should be entitled to great latitude in modifying the original plan.

The argument with respect to the first ground points up a common fallacy that seems to exist in the minds of zoning agencies. It is that the particular use that a particular owner says he intends to make of a particular tract of land is a controlling factor. Here the Wilson tract was rezoned because the Wilsons said they intended to convey it to the owners of the garment factory who said they intended to build a new garment factory there. However, the ordinance did not rezone the tract for use by the Ashland Crafts Garment Factory but for any appropriate light industry use. There was no guaranty that either the Wilsons or the garment factory people would not change their minds, resulting in the tract being occupied by some light industry that would not have the appealing features of the proposed garment factory. In fact, one of the...