Louisville and Jefferson County Planning and Zoning Commission v. Cope

• Decision Date: 12 December 1958
• Citation: 318 S.W.2d 842
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMMISSION et al., Appellants, v. Gertrude F. COPE, Appellee.

Page 842

318 S.W.2d 842

LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMMISSION et al., Appellants, v. Gertrude F. COPE, Appellee.

Court of Appeals of Kentucky.

Dec. 12, 1958.

James L. Taylor, Louisville, for appellants.

Robert L. Sloss, Gordon B. Davidson, Wyatt, Grafton & Grafton, Louisville, for appellee.

EBLEN, Judge.

The appellee, Mrs. Cope, is the owner of an unimproved tract of land in Jefferson County, which fronts some 749 feet on the southwest side of Bardstown Road and extends south between Springdale Drive and Fegenbush Lane. There is a smaller rectangular shaped tract at the intersection of Springdale Drive and Bardstown Road, not owned by appellee, and containing two lots fronting on Bardstown Road and four lots fronting on Springdale Drive.

Mrs. Cope made application to the Louisville and Jefferson County Planning and Zoning Commission, the appellant, to have some 20 acres of her tract adjacent to Bardstown Road rezoned from 'residential' to 'commercial' in order that a shopping center might be constructed thereon. After a public hearing, at which no resident from the affected area appeared to object to the rezoning, the appellant rejected the application.

Pursuant to the provisions of KRS 100.057, Mrs. Cope appealed to the Jefferson Circuit Court and a trial de novo was had there. The evidence for the Commission, presented by its community planner, a Highway Department traffic engineer, realty brokers and dealers, and an owner of residential property directly across Bardstown Road from the property in question, was to the effect that the present zoning of the Cope property as residential would accomplish harmonious development, conserve the value of neighboring residential property, avoid traffic congestion and promote the public safety. For the appellee a Highway Department right-of-way engineer, persons engaged in real estate business, owners of neighborhood property, and the son of the appellee gave testimony substantially contradictory to that of the Commission. Judge Jones visited the area and viewed the property.

From his consideration of the evidence, Judge Jones made the following findings of fact and conclusions of law:

'Findings of Fact.

'The subject property is located on the south side of the Bardstown Road and the west side of Fegenbush Lane. There is a dedicated street, known as Springdale Drive, on the west side of the property, which extends back about 350 feet from the Bardstown Road. The eastern end of the Buechel Bypass joins the Bardstown Road west of the subject property. Buechel Terrace is directly across the Bardstown Road from it.

'The subject property was zoned as residential in the original master plan. Since that date, there have been many and extensive changes in the properties on both sides of Bardstown Road from the Henry Watterson Expressway on the west, to the subject property on the east. A vast amount of this property was rezoned commercial in 1951. At that time it was known that the General Electric plant would be constructed in that area. The Commission 'drew the line' at Richland Avenue at a later date. Following, under the opinion of the Court of Appeals in the Grady case, the line was extended to Alpha Avenue, the Bardstown Road entrance to Buechel Terrace. All of the property east of Gerald Court on the south side of Bardstown Road, up to the subject property, is now zoned commercial, except for one residence fronting the Bardstown Road immediately to the west of the subject property, and owned by one Edward Wirotzious. A number of residence and land...