Oertel v. Louisville and Jefferson County Planning and Zoning Commission

• Decision Date: 09 May 1952
• Citation: 251 S.W.2d 275
• Parties: OERTEL et al. v. LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al.
• Court: United States State Supreme Court — District of Kentucky

Page 275

251 S.W.2d 275

OERTEL et al. v. LOUISVILLE AND JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al.

Court of Appeals of Kentucky.

May 9, 1952.

Rehearing Denied Oct. 17, 1952.

Lawrence S. Grauman, Grover G. Sales, Louisville, for appellants.

Albert F. Reutlinger, Lawrence G. Duncan, and J. W. Jones, all of Louisville, for appellees.

COMBS, Justice.

The appellees, Baylor O. Hickman and Helen H. Rodes, applied to the Louisville and Jefferson County Planning and Zoning Commission to have the classification of their property changed from 'A-1 Residential' to 'D-1 Commercial.' The Commission, by resolution of February 2, 1950, reclassified the property as requested and the interested parties were so notified as directed by KRS 100.056(3). The appellants, who had protested the proposed change before the Commission, filed in the office of the Jefferson Circuit Court on March 2, 1950, a statement of appeal. In the statement of appeal the resolution of the Commission was set forth in haec verba. The appeal was dismissed on motion of appellees because a certified copy of the resolution was not filed as required by KRS 100.057. From that order the appellants prosecute this appeal.

The applicable part of the statute reads:

'* * * Such appeals shall be taken within thirty days after notice of such action or decision has been given, as herein provided, by filing in the office of the clerk of the circuit court of such county a statement of appeal, setting forth the action or decision of the commission appealed from, the date thereof, the reasons for said appeal, and attaching thereto as a part thereof a certified copy of such action or decision, * * *.'

It is shown by affidavits filed by appellants that they requested a certified copy of the action of the Commission within the 30-day period, and were informed this would not be available until the proceedings of February 2 were approved by the Commission. The proceedings of February 2 were approved by the Commission on the afternoon of March 2, 1950, the same day appellants filed their appeal in the Jefferson Circuit Court. According to our calculations, the 30-day period within which appellants had the right of appeal expired on March 4. They make some contention that the failure to file certified copy of the resolution is excusable by reason of the Commission's delay in formally approving its proceedings. We find no merit in the argument: first, because appellants had sufficient time after the proceedings were approved to perfect their appeal; and second, no affirmative action was taken by appellants to have the proceedings approved at an earlier date. Even if it should be conceded that appellants had 30 days from the date the Commission's proceedings were formally approved, a certified copy of the resolution was not filed within that time. Consequently, the only question before us is whether the failure to file a certified copy of the resolution is fatal to the appeal.

We have found no Kentucky case directly in point, although it was held in Hennessy v. Bischoff, Ky., 240 S.W.2d 71, that the provision of KRS 100.057 as to the time in which the appeal must be filed is mandatory and not directory. Several cases from other jurisdictions are cited by appellees.

In the case of Kravitz v. Director of Division of Employment Security, 326 Mass. 419, 95 N.E.2d 165, 166, the petitioner filed an appeal from the administrative board of the Division of Employment Security. The applicable statute required the petitioner to file as many copies of the...