Musser v. Leon Coal Processing Co., Inc.
| Decision Date | 06 January 1978 |
| Citation | 560 S.W.2d 833 |
| Parties | Charles H. MUSSER, Appellant, v. LEON COAL PROCESSING CO., INC., City of Ashland Building Inspector, Kenneth Staten, Ashland Board of Zoning Adjustment, Charles Frasure, Paul W. Miller, John Artis, Jr., Homer Adams, and Karl Bradley, members, Appellees. Charles H. MUSSER, Appellant, v. KENTUCKY HIGHLANDS RIVER COAL COMPANY, INC., Leon Coal Processing Company, Inc., City of Ashland, Kentucky, James J. Webb, Mayor, William Mordica, Jerry Clark, Myron Bates, Donald Wade, Kenneth Staten, respectively the Board of Commissioners and Building Inspector, City of Ashland, the Ashland Planning Commission, Ashland, Kentucky, Board of Zoning Adjustment, Ashland, Kentucky, Mr. and Mrs. George Arrington and Mr. and Mrs. Sam Picklesimer, Appellees. |
| Court | Kentucky Court of Appeals |
C. B. Creech, Creech, Hogg & Williams, Ashland, for appellant.
Michael D. Johnson, Ashland Corporate Counsel, Ashland, Vanantwerp, Hughes, Monge & Jones, Ashland, White, Peck & Carrington, Mount Sterling, for appellees.
Before GANT, HOWERTON and WHITE, JJ.
Appellee, Leon Coal Processing Co., through an agent applied to the City of Ashland Planning Commission to rezone a tract of land in that city from I-1 (light industrial) to I-2 (heavy industrial) in order to construct a coal loading facility. This application was duly advertised, complying with the public notice requirements of Chapter 424 of the Kentucky Revised Statutes, giving notice that a hearing on the application would be held on May 21, 1974. At that hearing the application was considered and no one appeared in opposition to the application. The agent presented the application, the accompanying plats indicating that the contiguous property was already zoned I-2. The minutes of the hearing further reflect that the failure to previously so zone the tract in question was an oversight, as other areas in the vicinity had been changed. The application was unanimously approved.
On May 23, 1974, the Planning Commission notified the Mayor and Board of Commissioners of their action and that group adopted Ordinance 17-1974 rezoning the property and directing that the zoning map be changed accordingly. This ordinance was enacted May 28, 1974, again with no one appearing in opposition. In December, 1974, and April, 1975, appellee Leon Coal Processing Co. received building permits to construct its coal loading facility, at which time appellant went before the Board of Zoning Adjustment to complain, which body denied relief, finding that the permits were proper under the I-2 classification.
Appellant brought these two actions in May of 1975, urging (1) that the land use change was made without adjudicative hearing and thus void; and (2) that no building permit should be issued under a void ordinance. Appellees rely on KRS 100.347 as a bar to (1) and further state that the statutes requiring hearing and findings were substantially complied with.
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Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., Inc.
...is not applicable to the present case. Johnson v. Lagrew, Ky., 447 S.W.2d 98 (1969). Movants argue that Musser v. Leon Coal Processing Company, Ky.App., 560 S.W.2d 833 (1978) is controlling. In that case, Leon Coal applied to the City of Ashland Planning Commission to rezone a tract of land......
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McCulley v. City of Owensboro
...must strictly follow the applicable procedures. [Burns v. Peavler, 721 S.W.2d 715, 717 (Ky. App. 1986)]; Musser v. Leon Coal Processing Co., Ky.App., 560 S.W.2d 833 (1978) [overruled on other grounds by Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., Inc., 669 S.W.2d 922 ......
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Leslie v. City of Henderson
...the ordinance was definitively enacted. As support for her position, appellant cites KRS 83A.060(4) and Musser v. Leon Coal Processing Company, Ky.App., 560 S.W.2d 833 (1978); ovr'ld by Fiscal Court of Jefferson County, Kentucky v. Don Ridge Land Developing Company, Inc., Ky., 669 S.W.2d 92......
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Taylor v. Duke
...that one seeking review of administrative decisions must strictly follow the applicable procedures. Id. at 717; Musser v. Leon Coal Processing Co., Ky.App., 560 S.W.2d 833 (1978). Since an appeal from an administrative decision is a matter of legislative grace and not a right, the failure t......