Hatch v. Fiscal Court of Fayette County

• Decision Date: 19 October 1951
• Citation: 242 S.W.2d 1018
• Parties: . Court of Appeals of Kentucky
• Court: Supreme Court of Kentucky

Page 1018

242 S.W.2d 1018

HATCH et al. v. FISCAL COURT OF FAYETTE COUNTY et al.

Court of Appeals of Kentucky.

Oct. 19, 1951.

Scott Reed and Job D. Turner, Jr., Lexington, for appellants.

Stoll, Keenon & Park, and Paul H. Mansfield, all of Lexington, for appellees.

STEWART, Justice.

This is a 'class suit' whereby appellants, plaintiffs below, attack the final report of the City of Lexington and Fayette County Planning and Zoning Commission, hereafter called Zoning Commission, in rezoning a tract of undeveloped land on the southernmost edge of Lexington from Residence 'B' to Business 'A' classification. Action before the Zoning Commission was initiated by one George Young who had contracted to buy the land for the erection thereon of a shopping center, provided the property could be reclassified for that purpose. Appellants are lot owners in a subdivision that, together with the tract in controversy, had previously been placed in a residential category by the Zoning Commission. They objected to the proposed change and presented before the Zoning Commission a petition signed by the owners of more than twenty per cent of the number of lots in the area and located within 200 feet of the tract, protesting against any variance. After a hearing, the Zoning Commission unanimously approved the reclassification of the property for business purposes and referred its finding to the Fayette County Fiscal Court for approval or disapproval, as the property is located outside the city limits of Lexington. The Fiscal Court approved the final report of the Zoning Commission by a three to one vote and entered a resolution to that effect.

Appellants then filed in the circuit court a petition against the Zoning Commission and the Fiscal Court for a declaration of rights. George Young, who had made the original application for the change, intervened by petition. Appellees, defendants below, demurred generally to the petition and appellants filed special and general demurrers to the intervening petition of Young. The demurrer to the petition was sustained and the special and general demurrers to the intervening petition were overruled. The objectors to the rezoning, declining to plead further, appeal from the judgment adverse to them.

The principal question to be decided is whether the petition states ultimate facts and not mere conclusions. The terminal line between a conclusion of law and a question of fact is not always easy to draw, as was said in 41 Am.Jur., Pleading, Sec. 18, p. 302: 'The line of demarcation between questions of fact and conclusions of law, is not easy to draw in all cases, and it is difficult to formulate a definition that will always describe a conclusion of law so as to distinguish it from a pleadable, ultimate fact. In many cases, it is the means by which the result is to be reached that is determinative of the question whether a given allegation is one or the other.'

Appellants first allege that the action of the Zoning Commission in approving the application of George Young 'was illegal, arbitrary and capricious in that there was no substantial evidence to support the application for the change, and further that the applicant, George Young, did not show that a change of zone was to the best interest of the public generally, and did not establish that the proposed change had any substantial relation, or any relation whatsoever to the public health, morals, safety and welfare of the community * * *.' Continuing, they next aver that 'by the illegal, arbitrary and capricious granting of the application by the defendants, the defendants encouraged congestion in the streets and increased the danger of fire in the community, and promoted the overcrowding of land, and the plaintiffs state that there are no adequate facilities for transportation, water, gas and sewage to serve a business area in this locality.'

KRS 100.360(3) provides as follows: 'All plans, maps, regulations, and restrictions adopted by the commission shall be made in accordance with a comprehensive design to promote the public health, safety, morals or general welfare * * *, by securing safety from fire, panic or other dangers, or by providing adequate light and air, or by preventing overcrowding of land, or by avoiding the undue concentration of population, or by facilitating the adequate provision of transportation, water, sewerage, schools, parks, playgrounds or other public requirements. All regulations and restrictions shall be made with reasonable consideration of the character of each zone or district affected, and its peculiar suitability for particular uses.'

When we compare the above quoted allegations with the foregoing statutory provision, we note the...