Polk v. Axton

• Decision Date: 06 February 1948
• Citation: 306 Ky. 498
• Parties: Polk v. Axton et al.
• Court: Supreme Court of Kentucky

306 Ky. 498

Polk v. Axton et al.

Court of Appeals of Kentucky. Chancery Branch, First Division.

February 6, 1948.

1. Nuisance. — Generally, private individual cannot maintain action to abate public nuisance by injunction unless he has sustained an injury special and peculiar to himself.

2. Injunction. — Property owners residing in the same block in which was located a lot upon which defendant maintained four family apartment house were proper parties in action to prevent by injunction the impairment or destruction of benefits to be derived from zoning restriction permitting only two family residences in the block. KRS 100.010 — 100.098.

3. Municipal Corporations. — The failure to file copy of validly enacting zoning ordinance in county clerk's office, if required by statute, did not invalidate ordinance as against landowner who received actual notice of ordinance when he applied for building permit, notwithstanding that construction work had then been started, where city building code required issuance of building permit before commencement of construction work. KRS 100.010 — 100.098, 100.051.

4. Municipal Corporations. — The sole purpose of statutory requirement that master zoning plan be filed in office of clerk of county court is to furnish to the public additional constructive notice of zoning ordinance. KRS 100.051.

5. Municipal Corporations. — The broad powers of Louisville city council in respect to zoning do not authorize council to single out one lot in an amendatory zoning ordinance and arbitrarily remove therefrom restrictions imposed upon remaining lots in the zoning district, but there must be reasonable ground or basis for discrimination, and spot zoning ordinances must be related in some way to the health, safety, morals and general welfare to be valid. KRS 100.010 — 100.098.

6. Municipal Corporations. — A spot zoning ordinance permitting one lot in two family residential district to be used for a four family apartment house was arbitrary, unreasonable and discriminatory and without substantial relation to public welfare, so as to be invalid, where there was no substantial change of conditions in the district warranting change of classification of one lot alone. KRS 100.010 — 100.098.

Appeal from Jefferson Circuit Court.

Wallis Downing and Davis W. Edwards for appellant.

Woodward, Dawson, Hobson & Fulton, Gilbert Burnett and Lawrence G. Duncan amicus curiae.

Before Lawrence F. Speckman, Judge.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

This is an appeal from a judgment enjoining the enforcement of an amendatory zoning ordinance of the City of Louisville which changed the use of a single lot owned by appellant, James G. Polk, from a 2-family residence use to a 4-family apartment use.

The lot in question fronts 100 feet on South Birchwood Avenue and has a depth of 175 feet. On the lot was an old dwelling which had been damaged by fire when appellant purchased it in January, 1946. Appellant, an experienced contractor and builder, began remodeling the old dwelling on the lot without securing the building permit required by the Building Code of the City of Louisville, and a "stop work order" sign was posted on the premises on March 16, 1946, when it was discovered that a 4-family apartment was contemplated. On March 21, 1946, the chief building inspector refused to issue a building permit because the lot was located in a 2-family residence zone and the proposed construction did not conform to existing zoning regulations. Mr. Polk then made application to the Board of Adjustment and Appeals for a variation from the requirements of the zoning ordinance so as to permit conversion of a residence in a 2-family district into a 4-family apartment. The application was denied on April 10, 1946. Thereafter appellant requested a rehearing which was denied by the Board on July 24, 1946. During all of this time he continued the construction work which was completed in October, 1946. After rejection by the Board of Adjustment and Appeals of his application for a variation, he went before the Board of Aldermen of the City of Louisville and requested the passage of an ordinance so as to permit him to construct a 4-family apartment on his lot. The Board of Aldermen passed such an ordinance on October 8, 1946. The ordinance was vetoed by the Mayor, and was passed over his veto on October 22, 1946, by a vote of 9 to 3. The ordinance, which is Ordinance No. 180, Series 1946, is entitled: "An ordinance to change the zoning district map so that certain property in the City of Louisville now in the `B' two-family district shall be in the `C' apartment district."

Section 1 of the ordinance reads in part:

"That the zoning classification of the below described property, as shown on the District Map accompanying and made a part of Zoning Ordinance No. 194, Series 1931, as amended by Zoning Ordinance No. 25, Series 1945, be and the same is hereby changed from a `B' Two-Family District to a `C' Apartment District as shown by the plat hereto attached. Said property is in the City of Louisville and is described as follows:

"`Beginning at a point on the east side of Birchwood Avenue 927 feet south of what formerly was the right-of-way of the Crescent Hill Street Railway; thence southwardly along the east side of Birchwood Avenue 100 feet and extending back eastwardly of that width throughout between lines at right angles to Birchwood Avenue 175 feet more or less to an alley.'"

The property described is appellant's lot. On October 24, 1946, five property owners who reside on South Birchwood Avenue in the same block in which appellant's lot is located brought this suit to have Ordinance No. 180, Series 1946, declared void, and to enjoin appellant from maintaining his premises as a 4-family apartment house and from renting the premises to more than two families. The chancellor held the ordinance void, and granted the injunction.

It is first argued by appellant that appellees failed to establish that irreparable injury will result to them or that they will suffer any damage distinct from that suffered by the general public, and therefore cannot maintain this action. The general rule is that a private individual cannot maintain an action to abate a public nuisance by injunction unless he has sustained an injury special and peculiar to himself, York v. Chesapeake & O. Ry. Co., 240 Ky. 114, 41 S.W. 2d 668, Taylor v. Barnes, 303 Ky. 562, 198 S.W. 2d 297, but here the appellees have an interest in the continuance as a 2-family district of the zoned territory in which they reside and in the enforcement of the zoning restrictions. They are entitled to the benefits to be derived from the observance of the zoning regulations, and are proper parties in an action to prevent, by injunction, the impairment or destruction of those benefits by the violation of the regulations by another. Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852; Snow v. Johnston, 197 Ga. 146, 28 S.W. 2d 270; Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30; Wilcox v. City of Pittsburgh, 3 Cir., 121 F. 2d 835; Welton v. Forty E. Oak Street Building Corporation, 7 Cir., 70 F. 2d 377, 381. In the Welton case property owners in a zoned district brought an action in which they sought a mandatory injunction to compel the reconstruction of a building to conform to the requirements of the zoning ordinance. The District Court denied the prayer for injunction on the ground that without a showing of special damage the individuals had no right to have the zoning ordinance enforced. The United States Circuit Court of Appeals for the Seventh Circuit reversed the judgment, and, in the course of the opinion said: "There can be no doubt but that appellants suffered a damage different from that suffered by the public. Their damage might well be called special, even though material financial loss was not involved." In O'Bryan v. Highland Apartment Co., 128 Ky. 282, 108 S.W. 257, 15 L.R.A., N.S., 419, this court held that a property owner may sue to enjoin the erection of a building in violation of the building regulations of a city.

Appellant next argues that Zoning Ordinance No. 25, Series 1945, which zoned a large area including the property on South Birchwood Avenue as a 2-family district, is invalid because no copy of the ordinance was ever recorded in the Jefferson County Clerk's office nor were any of the maps or data which were parts of the ordinance ever recorded in the Clerk's office as provided by KRS 100.051. The General Assembly, at its 1942 session, passed an act authorizing any city of the first class and the county in which such city is...