Lville. & Jeff. Co. Plng. & Zng. Comm. v. Ogden
| Decision Date | 26 March 1948 |
| Citation | 307 Ky. 362 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & Jefferson County Planning & Zoning Commission et al. v. Ogden et al. |
1. Administrative Law and Procedure; Counties; Municipal Corporations. — The Louisville and Jefferson County Planning & Zoning Commission's function is partly quasi judicial, and while proceeding before commission may be informal, its decisions carry presumption of fairness and correctness.
2. Administrative Law and Procedure; Counties; Municipal Corporations. — While Zoning Law vests broad discretionary power in Louisville and Jefferson County Planning and Zoning Commission, method prescribed by statute for exercising such power is measure of commission's power to act.
3. Administrative Law and Procedure; Constitutional Law; Counties; Municipal Corporations. — Publication of notice of public hearing before Louisville and Jefferson County Planning and Zoning Commission on question of adjusting comprehensive zoning plan and creating new classification in manner and form prescribed by statute is jurisdictional and necessary to satisfy requirements of due process. KRS 100.048.
4. Administrative Law and Procedure; Counties; Municipal Corporations. — Publication of notice in one issue of newspaper that hearing would be had before Louisville and Jefferson County Planning and Zoning Commission to adjust comprehensive Zoning plan and create new classification on certain day, which was legal holiday, and in next week's issue that hearing would be held on day following that originally stated, was insufficient as not conforming to law, and posting of placards, announcing postponement of hearing, at customary places on night before or morning of day specified in first notice, did not remedy defect. KRS 2.110, 100.048.
5. Counties. — The Louisville and Jefferson County Planning and Zoning Commission's order, changing zoning classification of parcel of land outside city limits, from "A One-Family Residence District" to "B-3 Multi-Family Residence District," established by commission's previous order adjusting comprehensive zoning plan after hearing without proper statutory notice, was invalid as placing property in nonexisting classification. KRS 100.048, 100.052, 100.053, 100.058, 100.066.
6. Administrative Law and Procedure. — Ex officio members of public body are members for all purposes and must be counted in determining presence of quorum thereof.
7. Administrative Law and Procedure; Counties; Municipal Corporations. — The statute requiring that words giving authority to three or more public officers or other persons construed as giving authority to majority thereof controls in determining whether quorum of administrative body, such as city and county zoning commission, was present at time of vote on question before it, unless contrary intention is indicated in particular law by express words or clear implication. KRS 100.036, 446.050.
8. Administrative Law and Procedure. — The action of less than a quorum of a public body is void.
9. Administrative Law and Procedure; Counties. — The Louisville and Jefferson County Planning and Zoning Commission's order, changing the zoning of parcel of land outside city limits from "A One-Family Residence District" to "B-3 Multi-Family Residence District" by vote of three of ten members of commission when only five members were present, was void, though commission's by-law provided that quorum should consist of five members and zoning statute authorized commission to adopt rules and regulations for transaction of its business. KRS 100.036, 100.037, 446.050.
Appeal from Jefferson Circuit Court.
Woodward, Dawson, Hobson & Fulton and Samuel Steinfeld for appellants.
J. Verser Conner and Ogden, Tarrant, Galpin & Street for appellees.
Before Wm. H. Field, Judge.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Affirming.
The judgment invalidated an order of the Louisville and Jefferson County Planning & Zoning Commission entered November 20, 1947, changing the zoning of a parcel of land on the East side of Zorn Avenue, outside the city limits, from classification "A" One-Family Residence District to that of "B-3" Multi-Family Residence District. The purpose of the change was to permit the erection of a series of apartment houses of substantial character and size on the property. The order was challenged upon several grounds by the appellees for themselves and as representatives of other residents of the community.
Underlying the particular action taken in this case is an order of the Commission entered on June 4, 1947, which made an adjustment of the classification of property situated in unincorporated territory of the county. It established what is designated as "B-3" Multi-Family Residence District. This adjustment afforded a classification into which the Commission could allocate any given locality, further action in relation to the assignment of a particular area being required. When so assigned or classified the erection of "Group houses — large scale developments," and "Apartment houses — large scale developments" was permissible. That was the action taken in this case on November 20, 1947. The adjustment in the original master zoning plan is authorized by KRS 100.066, and the procedure is defined in KRS 100.052, 100.058. The Commission is required to conduct a public hearing and to give notice thereof as required in KRS 100.048. That is done "by publishing a notice at least once weekly for two consecutive weeks in a daily newspaper, having general circulation throughout such city and county, and by such other means as the commission may determine." The character of the notice is described.
Notice of the hearing to adjust the comprehensive zoning plan and create a new classification was published on May 26, 1947. It advised the public that the hearing would be held on June 3d. In the next week, on June 2d, the notice advised the public that it would be held on June 4th. The reason for the change in date was the discovery that June 3d was a legal holiday, Confederate Memorial Day. KRS 2.110. In an effort to correct the inadequate publication, the Commission caused placards to be posted at the customary places at the Court House that the hearing had been postponed from the 3d to the 4th. These signs were put up the night of the 2d or the morning of the 3d.
The statute, quite naturally, gives the right to be heard to any person or governmental agency interested or affected by a proposed adjustment. KRS 100.053. Obviously, an opportunity to be heard is the purpose of the notice. That imports time to get ready. Probably newspaper publication is the best and most expedient proceeding of this kind; yet, as a matter of reality, citizens most seriously affected often never learn anything about the proposed action. The indefinite phrase, "once a week for two consecutive weeks" has given rise to several judicial interpretations. Some of these are that it requires an interval of fourteen days between the first publication and the meeting, while other interpretations are that it means one time in each week, irrespective of the days intervening between each publication or between the first or the last before the day of action. 29 Words and Phrases, Perm. Ed., Once a Week. See Bowles v. Bowles, 250 Ky. 73, 61 S.W. 2d 1062; Scott v. A. Arnold & Sons Transfer & Storage Company, 273...
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