Hofgesang v. McMakin
| Decision Date | 06 June 1969 |
| Citation | 457 S.W.2d 950 |
| Parties | Joseph C. HOFGESANG, Joseph C. Hofgesang Sand Company, the Estate of Myrtle S. Hofgesang and James Fisher, Appellants, v. M. J. McMAKIN, D. F. Parrot, Edwin F. Shaver, Ernest F. Worfel, John P. Sawyer, Rufus C. King, Sammie F. Lee, Jack Quick, Marlow W. Cook, William O. Cowger, Members of and constituting the Louisville and Jefferson County Planning and Zoning Commission, E. P. Sawyer, County Attorney, Jefferson County, Kentucky, Elmer N. Norrington and Joseph L. Soper, Zoning Enforcement Officers of Jefferson County, Kentucky, and its Fiscal Court, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Henry A. Triplett and Hogan, Taylor, Denzer & Bennett, Hardy & Hardy, Louisville, for appellants.
Mark Davis, Jr., Louisville, for appellees.
This litigation began in December, 1964, when Louisville and Jefferson County Planning and Zoning Commission, the County Attorney, and other zoning enforcement officers sued Joseph C. Hofgesang, Joseph C. Hofgesang Sand Company, the Estate of Myrtle S. Hofgesang and James Fisher, appellants, claiming that they were carrying on an illegal operation on ten acres of ground located in Jefferson County on the north side of Lee's Lane and between a floodwall and the Ohio River. Specifically, it was charged that appellants were operating a borrow pit, an earth excavation operation and a dump. $The statutes involved are KRS 100.031 through 100.097, repealed and replaced in 1966 by KRS 100.111 through 100.991. The local laws involved are the city-county zoning regulations, adopted by the City of Louisville by ordinance and by the Jefferson County Fiscal Court by resolution and, more specifically, Section 30 of these regulations entitled 'Special Uses.' Also involved is a provision that any use of property existing prior to adoption of the zoning regulations (1943 originally) may continue as a 'nonconforming use.'
Appellants contend that (1) there is no authority which permits counties containing cities of the first class to adopt specific use planning and zoning regulations; (2) Section 30 of the regulations is void because the standards are so vague and indefinite as to vest arbitrary power in the local zoning officials; (3) the evidence does not sustain the chancellor's finding of the absence of a nonconforming use; (4) appellants attempted to comply with the regulations, and (5) the chancellor acted in excess of authority in requiring the appellants to refill the excavation with materials similar to those which had been excavated.
Appellants insist that there is no statutory authority under which Section 30 of the Commission's Regulations may be justified. In Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219, the City of Louisville zoning ordinance was upheld as a proper exercise of the police power although the statutory authority was couched in broad language authorizing the city to enact any ordinance 'for the government of the city' not in conflict with constitutional limitations or other statutes. Fowler has recently been approved in Blancett v. Montgomery, Ky., 398 S.W.2d 877, 10 A.L.R.3d 1220.
The exercise of the police power by the City of Louisville had previously been upheld in City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, 25 Ky.Law Rep. 995, and Buchanan v. Warley, 165 Ky. 559, 177 S.W. 472, Ann.Cas. 1917B, 149. Cf. Puryear v. City of Greenville, Ky., 432 S.W.2d 437. More recently, in 1942, the Commission was authorized to adopt Planning and Zoning Regulations by Chapter 100, Kentucky Revised Statutes. Nonconforming uses of land were specifically recognized by KRS 100.068. Section 30 defines nonconforming use in conformity with the statute. It was inherent in KRS 100.067 authorizing the regulation of the 'use of land for trade, industry or residence, or other purposes' that regulations covering special or nonconforming uses are justified. There is ample statutory authority for the 'special uses' section of the regulations. Pierson Trapp Co. v. Peak, Ky., 340 S.W.2d 456, and Thomas v. Barnett Ky., 397 S.W.2d 781, do not support appellants' contention. Under the statutes here the final action under the Regulations on a special or nonconforming use is reserved to the Board of Aldermen and the Fiscal Court.
It is claimed that the standards in Section 30, the Special Uses Regulations, are so vague and indefinite as to vest arbitrary power in the local zoning officials. The regulations consist of eighteen pages, mostly single-space typewritten, setting forth general standards and specific standards relating to various types of special uses.
In general, it is provided that the special 'uses will not have an adverse effect on neighboring property, are not in conflict with the elements and objective of the Master Plan, and will not adversely affect the public health, safety, morals, and the general welfare.'
The request for a 'Special Uses Permit' must contain the 'provisions for, and guarantees to assure, the protection of the public health, safety, morals, general welfare, surrounding property and neighborhood values.'
Excavation and filling operations including borrow pits and earth excavations are governed by detailed subsections including general and specific provisions concerning special use in order to conform to the general standards already mentioned. All of these are copied in length in twelve and one-half pages of the chancellor's opinion.
Without discussing the safeguards provided by the standards set forth as mentioned, it is concluded that Section 30 contains specific standards to meet the requirements of Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584, and Jasper v. Commonwealth, Ky., 375 S.W.2d 709. Schneider v. Wink, Ky., 350 S.W.2d 504, is not dispositive of this case, as appellants insist, since the ordinance there was definitely lacking in the required standards.
The chancellor found that the appellants did not have a nonconforming use. KRS 100.068 recognized...
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Bellemeade Co. v. Priddle
...this state special uses have been allowed for many years under ordinances or regulations providing therefor. We held in Hofgesang v. McMakin, Ky., 457 S.W.2d 950 (1969), that 'There is ample statutory authority for the 'special uses' section of the regulation .' How could we then say that f......