Hennessy v. Bischoff
| Decision Date | 25 May 1951 |
| Citation | 240 S.W.2d 71 |
| Parties | HENNESSY et al. v. BISCHOFF et al. |
| Court | United States State Supreme Court — District of Kentucky |
Samuel B. Kirby, Jr., William F. Trusty, Louisville, for appellants.
J. W. Jones and Nicholson & Hubbs, all of Louisville, for appellees.
CULLEN, Commissioner.
On an appeal by adjoining property owners, from a decision of the Louisville and Jefferson County Planning and Zoning Commission, adjusting the master zoning plan for unincorporated territory in Jefferson County so as to change the classification of a particular tract of land from a one-family residence classification to a commercial classification, the Jefferson Circuit Court entered judgment reversing and setting aside the decision of the commission. From that judgment an appeal has been taken to this Court, by the commission and by the owner of the tract of land in question.
The appeal to the circuit court, from the decision of the planning and zoning commission, was taken by the adjoining property owners pursuant to KRS 100.057, which provides that the appealing party shall file with the circuit court clerk a statement of appeal, setting forth the action or decision appealed from, the date thereof, and the reasons for the appeal, attaching thereto a certified copy of the action or decision, and asking that an order to show cause be issued against the planning and zoning commission. The statement of appeal followed the statutory directions as to form and contents, and designated as defendants the members of the planning and zoning commission, and the owner of the tract of land.
The defendants filed a special demurrer to the statement of appeal, on the ground that the statement showed that the court had no jurisdiction of the subject matter of the action. The basis for the demurrer was that the statement of appeal showed on its face that the appeal was not filed within the time required by the statute. The special demurrer was overruled, and the first contention by the appellants on the appeal to this Court is that the lower court erred in overruling the demurrer. If the appellants are correct in this contention, the judgment must be reversed, and it will be unnecessary to consider the other contentions of the parties.
KRS 100.057 provides that the statement of appeal must be filed within 30 days after notice of the decision of the planning and zoning commission has been given, 'as herein provided'. The quoted phrase clearly refers to subsection (3) of KRS 100.056, which provides that when the commission has finally approved an adjustment in the zoning plan, 'it shall immediately notify in writing all parties of record in such proceeding of its action or decision.' The question we must decide, then, is whether the statement of appeal showed on its face that the appeal was not taken within 30 days after notice of the final decision of the planning and zoning commission was given in writing to the parties.
The statement of appeal alleges that on June 16, 1949, the planning and zoning commission held a hearing on the application of the owner of the tract of land in question, for change of zoning classification; that after the hearing was concluded, and on the same day, the commission adopted a resolution changing the classification; that on July 11, 1949, the plaintiffs (the adjoining property owners), through their attorney, addressed a letter to the commission requesting the commission to rehear and reconsider its action of June 16; that the request for a rehearing was supported by a petition signed by approximately 125 residents of the area; that on July 21, 1949, the commission, at a regular meeting, considered the request for a rehearing and adopted a resolution denying the request; and that the plaintiffs were present or represented at the mettings of June 16 and July 21 and were parties of record at those meetings. Attached to the statement of appeal, as exhibits, were copies of the minutes of the meetings of the commission on June 16 and July 21. The statement of appeal was filed in the circuit court on August 19, 1949.
It is apparent upon the face of the statement of appeal that...
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Cary v. Pulaski Cnty. Fiscal Court, s. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR.
...required procedural steps and have performed certain ministerial duties unless the record establishes otherwise. See Hennessy v. Bischoff, 240 S.W.2d 71, 73 (Ky.1951); see also Shanks v. Northcutt, 223 Ky. 138, 3 S.W.2d 208, 209 (1928). This presumption has been applied in the context of co......
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Yount v. City of Frankfort
...contend make the time for filing answer mandatory. They cite such cases as Bischoff v. Hennessy, Ky., 251 S.W.2d 582; Hennessy v. Bischoff, Ky., 240 S.W.2d 71; Keathley v. Town of Jenkins, 194 Ky. 156, 238 S.W. 377 and Allen v. Haddix, 178 Ky. 389, 198 S.W. 1155. None of these authorities s......
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Meredith v. Sears
...in the absence of express statutory authority an administrative agency has no authority to set up a rehearing procedure. See Hennessy v. Bischoff, Ky., 240 S.W.2d 71. Also, it has been held that an officer has no authority to revoke or retract a completed executive act. Martin v. Chandler, ......
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