Louisville and Jefferson County Planning and Zoning Commission v. Grady

• Decision Date: 10 December 1954
• Citation: 273 S.W.2d 563
• Parties: LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellants, v. G. C. GRADY, Jr. et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 563

273 S.W.2d 563

LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellants, v. G. C. GRADY, Jr. et al., Appellees.

Court of Appeals of Kentucky.

Dec. 10, 1954.

James L. Taylor, Louisville, for appellants.

R. Davis McAfee, Louisville, for appellees.

CAMMACK, Justice.

This appeal is from a judgment of the Jefferson Circuit Court which directed the Louisville and Jefferson County Planning and Zoning Commission, after a hearing de novo in that court, to approve the appellees' application for a change in the zoning classification of the property in question from B-1 One Family Residence to D-1 Commercial.

G. C. Grady, Jr., is the owner of the lot on the northeast corner of Bardstown Road and Richland Avenue in Buechel. Richland Avenue stops at Bardstown Road, making a T intersection. The lot fronts 168.33 feet on Bardstown Road and 163.67 feet on Richland Avenue and is now occupied by an old two-story frame residence. It is located in an area zoned B-1 One Family Residential. Immediately to the south of the property there is a hardware store, a new building; to the east there is an antique shop and a real estate office; to the north there is a plumbing shop; and a short distance northeastwardly there is a large printing shop. All of the places named constitute non-conforming usage. Across Bardstown Road, southwardly, there is an industrial plant which manufactures and sells grave markers and monuments.

A new subdivision has been created a quarter of a mile south of the Grady property, where a large number of new houses have been constructed, and there are a number of other subdivisions to the south which have recently been approved by the Planning and Zoning Commission. A short distance south and westwardly, the Commission has approved a large industrial area. The General Electric Company's mammoth model factory is now under construction in that area.

There has been filed a proposed plan of the Highway Department to construct a bypass which will route the southbound traffic around a part of Buechel beginning at the Old Shepherdsville Road and intersecting the existing Bardstown Road approximately at Richland Avenue (where the Grady property is located). The plan shows, however, that southbound traffic will not be permitted to make left turns across traffic at Richland.

A number of the residents of the community around the Grady property do not want to go to the shopping center north of the Southern Railway crossing because of congestion and parking problems. They expressed a desire that a shopping center be developed where they would not have to cross the railroad track twice.

All of Grady's abutting and adjacent property owners testified in circuit court, with the exception of one man, that they believed the change would be beneficial to the neighborhood and to their property. There are only two corners where the property is located. The other corner is used by a plumbing shop, a nonconforming use, which has existed for a number of years.

Grady entered into a contract with the Ohio Oil Company whereby the Oil Company agreed to purchase his property for $27,000.00 and construct thereon an automobile service station. The contract was contingent upon their efforts to obtain a commercial zoning use for the property. On July 3, 1952, Grady and the Oil Company made application to the Zoning Commission for a change in the zoning classification. After a public hearing on August 7, 1952, the Commission adopted a resolution which denied the application. The Commission's chief objection to the change was that it was not in conformity with a comprehensive plan adopted by the Commission on January 3, 1952, which contemplated that all future commercial development in the Buechel area should be north of the Southern Railroad.

Grady and the Oil Company prosecuted an appeal to the circuit court where, after a hearing de novo, it was ordered that the change be made. The Zoning Commission is appealing from that judgment.

It is contended that the lower court erroneously substituted its judgment for that of the Zoning Commission. The Commission's theory is that the only question properly reviewable by the courts is whether the action of the Commission is unrelated to the public health, safety, morals and general welfare. If the court so found, its action would be arbitrary and unreasonable. On the other hand, it is the appellees' theory that, since KRS 100.057(2) provides for a hearing de novo on appeal to the circuit court from an order of the Zoning Commission, the court is not restricted solely to a consideration of the correctness of the Commission's ruling from the evidence before it, but that the hearing is held and decision reached as if no previous trial or hearing had been held. The lower court adopted this view of the case.

The statute in question, KRS 100.057(2), reads in part:

'After the appeal is taken the procedure shall be the same as in common law actions, and all parties to the proceeding shall have the right to any and all processes, including subpoena, allowed in other cases in said circuit court. * * * Hearings in the circuit court shall be de novo and heard by the judge, and appeals may be taken from the decision of said circuit court to the Court of Appeals of Kentucky in the same manner as common law cases are appealed.'

Judge Lawrence S. Grauman prepared a very able opinion in the case. He discussed fully the de novo question. Since we concur in the conclusions reached by him on this question, we quote with approval parts of his opinion dealing therewith

'A hearing de novo means 'trying the dispute anew as if no decision had been previously rendered.'

'In the case of Howard v. Howard, 300 Ky. 60, 187 S.W.2d 276, Section 726 of the Civil Code with reference to appeals to the Circuit Court from inferior courts was interpreted to mean that the appeal should be docketed in the Circuit Court and tried in the same manner as it would have been had it been instituted in the Circuit Court (the Court to which the appeal had...