Hodge v. Luckett

• Decision Date: 09 March 1962
• Citation: 357 S.W.2d 303
• Parties: Thomas H. HODGE et al., Appellants, v. T. D. LUCKETT et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 303

357 S.W.2d 303

Thomas H. HODGE et al., Appellants, v. T. D. LUCKETT et al., Appellees.

Court of Appeals of Kentucky.

March 9, 1962.

Rehearing Denied June 8, 1962.

J. W. Jones, Louisville, for appellants.

James L. Taylor, Boehl, Stopher, Graves & Deindoerfer, E. R. Johnson, Louisville, for appellees.

PALMORE, Judge.

This is a 'spot zoning' controversy in which a group of residents and property owners in the unincorporated community of Lyndon in Jefferson County appeal from a circuit court judgment affirming the rezoning of an 18 1/2 acre tract, owned by the appellee Foeman, from a residential to light industrial classification.

A comprehensive zoning plan for the unincorporated areas of Jefferson County has been in effect since 1943. No property within about 4 miles of Lyndon has ever been zoned as industrial. Naturally, therefore, no industrial development has since occurred in the area. There are, however, several nonconforming uses carried over from pre-zoning days. The land in question is within and completely surrounded by an area that is zoned residential. The nearest non-residential zone is the commercial property at the main business corner of Lyndon some 2 or 3 blocks away.

The main trouble with this 18 1/2 acres is that it is low land which receives surface waters from a large area and does not drain well. It is 'crawfish' ground on which water frequently stands. There are no public sanitary sewer facilities in the vicinity, and percolation tests made on the tract in 1957 indicated much of it to be unsuitable for septic tanks. Only the westernmost portion of the property, variously estimated from 20% to 50%, could possibly be developed for residential use under existing circumstances. There was testimony, however, that as a whole it probably could be adapted to certain types of industrial use, though even this would require remedial measures against the drainage problems.

Aside from the drainage situation there are other reasons why this property may be better suited (or, at least, less unsuited) for industrial than residential development. It is bounded on the north by the right-of-way of the L & N Railroad Company, on the east by an unimproved dead-end street or lane called Ormsby Road, on the south by an unimproved street named Violet Avenue, and on the west by the rear of several residential lots of considerable depth which front on Grant Avenue, a street running from Violet Avenue to the railroad. The railroad tracks are situated on a fill 12 to 15 feet high, which detracts from the desirability of adjacent property for residential purposes. (Nevertheless, the property along the railroad from Crescent Hill in Louisville to Anchorage, on the other side of Lyndon, has continued to develop residentially.) A large high-tension electric power line runs across the easternmost portion of the property in question, just west of Ormsby Road, and across the street on the east side of Ormsby Road are a substation of the Louisville Gas & Electric Company and an old building that houses a woodworking concern, a plumbing contractor and a small trucking company. The electric substation is a permissive use under zoning laws. The other activities constitute an 'inherited' non-conforming use.

Foeman bought the property in 1957. Almost at once he optioned it to the Kentucky Rural Electric Cooperative Company and applied to the Louisville and Jefferson County Planning and Zoning Commission for a rezoning that would permit the contemplated use of the tract by the prospective purchaser. Between then and now this deal has fallen through, but that was the genesis of the proceeding before us today. Concededly, it was privately initiated for private purposes and did not grow out of any public planning.

Since 1955 some 50 to 60 homes in the $15,000 to $20,000 class have been built along two streets intersecting Violet Avenue from the south in the proximity of the Foeman tract. Owners of these homes are prominent among the objectors to the instant rezoning. They invested in their property on the strength of the prevailing pattern of zoning, and they invoke the protection of the law against a change they contend will be a detriment to them and a benefit to no one but Foeman.

The trial court made findings of fact that (1) the Foeman property is 'unsuitable for residential use,' (2) it is 'best suited' for industrial development as provided by the action of the zoning commission, and (3) retention of the residential restriction upon it would be 'unwise and unsound.' Strictly speaking, these are opinions rather than facts, but they fall within the category of factual determinations that are conclusive on appeal if supported by substantial evidence, which is to say, if they are not clearly erroneous. CR 52.01; Louisville & Jefferson County Planning and Zoning Commission v. Cope, Ky., 1958, 318 S.W.2d 842.

The conclusions of law reached by the court were that the residential classification of the Foeman property constituted an unreasonable and arbitrary restriction on its use, not reasonably related to the public health, safety, morals or general welfare, and that the zoning commission had properly exercised its power in changing the classification.

Much has been written on the subject of 'spot zoning,' and we shall not attempt any further definition here. See Yokley, Zoning Law ...