Louisville & Jefferson County Planning & Zoning Commission v. Fortner
| Decision Date | 02 November 1951 |
| Citation | 243 S.W.2d 492 |
| Parties | LOUISVILLE & JEFFERSON COUNTY PLANNING & ZONING COMMISSION v. FORTNER. |
| Court | United States State Supreme Court — District of Kentucky |
Lawrence G. Duncan, Sam B. Kirby, Jr., Louisville, for appellants.
Lawrence S. Grauman, Louisville, for appellee.
CULLEN, Commissioner.
This is an appeal by the Louisville and Jefferson County Planning and Zoning Commission from a judgment directing the commission to enter an order changing the zoning classification of a certain lot owned by A. B. Fortner, Jr., from B-1, Family Residence, to D-1, Commercial.
In April 1950, Fortner made application to the Louisville and Jefferson County Planning and Zoning Commission for a change in the zoning classification of his lot, which at that time was located in unincorporated territory in Jefferson County. The commission denied the application, and Fortner appealed to the Jefferson Circuit Court, pursuant to KRS 100.057. The petition of appeal was filed in July 1950. The commission filed a general demurrer, a motion to strike part of the petition of appeal, and an answer. The demurrer and motion to strike were overruled, and the case was set for trial on February 6, 1951. On that day the commission tendered an amended answer, alleging that since the filing of the petition of appeal the lot in question had been annexed to the City of Louisville, that the board of aldermen of the city has exclusive jurisdiction regarding zoning within the city limits, and that by reason thereof the case is moot as to the commission. The circuit court would not permit the amended answer to be filed. Evidence then was taken and judgment was entered directing that the lot be rezoned.
On the appeal to this Court the first contention of the commission is that the trial court erred in not permitting the amended answer to be filed. It is obvious that if this contention is upheld, the judgment must be reversed, and we will not reach the question as to whether the circuit court properly found that the action of the commission in refusing to rezone the lot was arbitrary and unreasonable.
Under the statutes relating to planning and zoning in Louisville and Jefferson County, KRS 100.031 to 100.098, the joint city-county planning and zoning commission has authority to recommend a zoning plan and restrictions for the incorporated and unincorporated areas of the entire county, KRS 100.044. This plan is not effective in the city until adopted by the board of aldermen, and is not effective in the county until adopted by the fiscal court, KRS 100.066, 100.048, 100.049. After the plan has been adopted, the board of aldermen and the fiscal court may delegate full authority to the planning and zoning commission to approve...
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...to apply to territory which has become part of a city.' (101 C.J.S. Zoning § 134, p. 892) Louisville & Jefferson County Planning & Zoning Commission v. Fortner, 243 S.W.2d 492 (Ky.App.1951); City of South San Francisco v. Berry, 120 Cal.App.2d 252, 260 P.2d 1045 (1953); Ellish v. Village of......
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