Richlawn, City Of, v. McMakin

• Decision Date: 14 March 1950
• Citation: 313 Ky. 265,230 S.W.2d 902
• Parties: CITY OF RICHLAWN et al. v. McMAKIN et al.
• Court: United States State Supreme Court — District of Kentucky

Page 902

230 S.W.2d 902

313 Ky. 265

CITY OF RICHLAWN et al. v. McMAKIN et al.

Court of Appeals of Kentucky.

March 14, 1950.

As Modified on Denial of Rehearing June 23, 1950.

Lawrence G. Duncan, Louisville, H. Bemis Lawrence, Louisville, for appellants.

C. Maxwell Brown, Louisville, for appellee.

HELM, Justice.

The City of Richlawn is a city of the sixth class, located in Jefferson County east of St. Matthews and north of the Shelbyville road--Highway 60. The City of Richlawn, by ordinance, classified the land of Richlawn, including the land of appellees which extends for 1,000 feet along the Shelbyville road and is 150 feet deep, as a one-family residence district.

On February 18, 1949, appellees filed a 'petition in equity and statement of appeal,' an action to restrain and enjoin the City from enforcing its zoning ordinance classifying appellees' property in an A-1 one-family residence district, to set aside and hold for naught the action of the Planning and Zoning Commission of the City denying appellees' application for a rezoning of their property for commercial uses, to compel the City authorities to readjust their zoning plan to provide a commercial zone classification for appellees' property, and for a binding declaration of rights of the plaintiffs and defendants.

Appellants filed a special and a general demurrer, and an answer denying the allegations of appellees' petition; pleading that the City of Richlawn was formerly an unincorporated area of Jefferson County; that the Louisville and Jefferson County Planning and Zoning Commission, on May 10, 1943, classified that area as an A-1 one-family district; that in January, 1948, the City of Richlawn was duly incorporated; that on or about January 26, 1948, the Zoning and Planning Commission of the City of Richlawn was duly organized; that in February, 1948, its Zoning Commission recommended to the Board of Trustees of Richlawn that the land within the City be retained in an A-1 or B-1 one-family residential classification; that the land owned by appellees was retained in the A-1 one-family zoning district, and that the recommendation of the Commission was duly adopted by the Board of Trustees of the City of Richlawn on March 4, 1948.

Proof was taken. On March 25, 1949, the Chancellor filed an opinion saying:

'The problems here to be considered are: First, would zoning the territory described in the plaintiffs' petition in such a manner so that it might be used in any manner other than residential purposes create a health, moral, or safety hazard, and Second, if using the territory described as a commercial center does not create a hazard, then did the Commission, in refusing to change the zoning of said territory, act in an arbitrary and an unreasonable manner? * * *.

'* * * the legislature in creating the various Planning and Zoning Commissions throughout the State in the various classes of cities, did so in the exercise of a police power, and since no health, safety or moral hazard would be raised by the creation of a commercial center at the location described in the plaintiffs' petition, it necessarily follows that the Planning and Zoning Commission of the City of Richlawn were acting in an arbitrary manner in refusing to change the regulations so as to permit a commercial center at the location described.'

On April 1, 1949, the court entered judgment as follows: '* * * it is now ordered and adjudged that the tract of the plaintiffs' land, * * * described in the pleadings herein, which was by the Ordinance of the defendant, City of Richlawn, classified as a single family A-1 zone use, be set aside, adjudged void and held for naught; that the action and decision of the Planning and Zoning Commission of the defendant, City of Richlawn, of February 4, 1949, denying the plaintiffs' request to change the zoning and land use of said property to D-1 commercial use, as defined by Zoning regulations, be adjudged void and set aside and held for naught; * * *.'

It was also adjudged: 'The defendants * * * members composing the Planning and Zoning Commission * * * the City of Richlawn, and its ministerial officers, be restrained and enjoined from enforcing the Ordinance of the City of Richlawn classifying the plaintiff's property as single family residence A-1 use.' Appellants appeal from that judgment.

Appellants assign as errors: (1) The special demurrer should have been sustained because there was a defect of parties defendant; (2) appellants' general demurrer to the petition should have been sustained; (3) the court should have refused to consider that part of the suit asking for a declaration of rights: (4) the adoption by the municipality of a zoning ordinance should have been sustained; (5) there was no impairment of an obligation of a contract; and (6) appellees are estopped.

The decisive question in this case is whether the Chancellor has properly held the zoning ordinance of the City of Richlawn and the refusal by its Planning and Zoning Commission to change the classification of the land in question to D-1 commercial to be void. We think not. The legislature, by KRS 100.500 to 100.600, has authorized cities of the sixth class to enact ordinances setting up zoning restrictions. KRS 100.500 provides: 'The legislative body of any city of the third, fourth, fifth and sixth class may regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.'

KRS 100.520 provides: 'Regulation shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulation shall be made with reasonable consideration of the character...