Jenkins v. Louisville and Jefferson County Planning and Zoning Commission

• Decision Date: 25 May 1962
• Court: United States State Supreme Court — District of Kentucky
• Parties: Minna W. JENKINS et al., Appellants, v. LOUISVILLE & JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellees.

Page 846

357 S.W.2d 846

Minna W. JENKINS et al., Appellants, v. LOUISVILLE & JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellees.

Court of Appeals of Kentucky.

May 25, 1962.

Henry J. Burt, Jr., Louisville, for appellants.

James L. Taylor, Louisville, for appellees.

MONTGOMERY, Judge.

Minna W. and Edward G. Jenkins, Sr., sought to have changed from residential to commercial the zoning classification of the northeast corner of their tract of land located at Wood Avenue and LaGrange Road in Lyndon. They have a lease agreement for the construction and operation of a service station contingent on the reclassification of the property. The Louisville & Jefferson County Planning and Zoning Commission denied the request for a change. The circuit court upheld the denial and the Jenkinses appeal.

Appellants contend, in substance, that: (1) The trial court erroneously placed the burden of proof on the property owners and disregarded the trial de novo requirement; and (2) there was a failure by appellees to show that there would be a substantial adverse effect upon the health, safety, morals, or general welfare of the community attributable to the requested change.

By a pretrial order, the appellants were required to produce their evidence first in order to expedite the trial and to enable the trial judge to obtain a clear view of the whole of the evidence. At the beginning of the trial, appellants sought to change the order of proof so that the commission would be required to introduce its proof first. In the order overruling such motion, the trial judge indicated his familiarity with Boyd v. Louisville & Jefferson County Planning & Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, and Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563. The pertinent rule obtained from those cases is that the hearing de novo in the circuit court means trying the dispute anew as if no decision had been previously rendered, with the commission having the burden of proof. The hearing is by the judge without the intervention of a jury. KRS 100.057(2).

There is nothing in this record to indicate that the trial judge did not understand the principles of the Boyd and Grady cases. The order complained of regulated the order of the proof as distinguished from the burden of proof. CR 43.02(3) permits the court in a jury trial to regulate the order of proof in order 'to expedite the trial and to enable the court and jury to obtain a clear view of the whole evidence.' More certainly, it could be done in a trial without a jury. This is in the discretion of the trial judge. Clay, CR 43.02, Comment 2(c). While appellants insist that the court's ruling constitutes reversible error, nowhere do they point out in what way they were prejudiced. In the absence of such showing, there is no reversible error. Simmons v. Willis, 9 Ky.Law Rep. 406; Straney v. Smith, Ky., 255 S.W.2d 653.

On the hearing the trial judge heard testimony from witnesses produced by both parties and, as stated in his memorandum of findings and conclusions, visited the premises. It is clearly apparent that he made his own determination of the matter, independently of the decision by the commission. There is no merit to the argument that the requirements of de novo trial were violated.

The rule is stated in Hamilton Company v. Louisville & Jefferson County Planning and Zoning Commission, Ky., 287 S.W.2d 434, relied on by appellants, to be:

'As an extension of the...