Seligman v. Belknap
| Decision Date | 28 October 1941 |
| Citation | 288 Ky. 133,155 S.W.2d 735 |
| Parties | SELIGMAN et al. v. BELKNAP et al. |
| Court | Kentucky Court of Appeals |
Appeal from Common Pleas Court, Third Division, Jefferson County William H. Field, Judge.
Action by Walter K. Belknap and others against Bernard Seligman and others for a writ of mandamus to compel the Louisville Board of Adjustment and Appeals to hear and decide an appeal from the action of the City Planning and Zoning Commission in approving a plat of a suburban subdivision, outside the limits of the city. Writ of mandamus was issued, and the defendants appeal.
Reversed.
Hal O Williams and T. A. Luman, both of Louisville, for appellants.
Hardy & Logan, of Louisville, for appellees.
STANLEY Commissioner.
The case involves the interpretation of the city and regional planning and zoning statute pertaining to cities of the first class. Section 3037h-111 et seq., Statutes, Chapter 86, Acts of 1930. The City of Louisville has adopted a series of ordinances in accord therewith. Gen.Ordinances, 1939 Compilation, No. 454 et seq. These include a major street plan proposed by the City Planning and Zoning Commission (No. 468) and regulations to govern subdivisions in harmony therewith, No. 469. A separate ordinance deals with zoning, No. 470. The sole question before us is the existence of authority in the Board of Adjustment and Appeals (Section 3037h-122) to review the approval and certification for recording by the City Planning and Zoning Commission (Section 3037h-113) of a plat of a suburban subdivision called "Rolling Fields" on the Brownsboro Road just outside the eastern limits of Louisville. Secs. 3037h-124, 3037h-125. The appellees herein, a number of owners of property adjacent to and in proximity of the tract, seasonably filed an appeal with the Board from the action of the Commission. They contended the plat ought not to have been approved because no provision had been made for an adequate sewerage disposal system. Particularly, this was because the burden of sewerage from proposed septic tanks added to those existing in the adjoining territory would be a serious menace to the health of the whole community. The Board declined to entertain the appeal upon the advice of counsel that they did not have the authority to do so. The circuit court upon the petition of the complainants issued a writ of mandamus directing the Board to hear and decide the appeal from the Commission's action. The members of the Board and the Board as a unit prosecute this appeal from that judgment.
Undoubtedly, influenced by the need for the promotion of public health and the obvious design of the entire act to protect and improve that aspect of public welfare, the circuit court found in the act as an entirety the intent to have the action of the Commission in the particular respect involved reviewed by the Board of Adjustment and Appeals. The construction achieves an end which the statute may or may not reach, namely, the control by the Commission of the sewerage disposal system of any new subdivision of the city. We express no opinion on the power of the Commission in this respect and confine ourselves to the sole question of authority of the Board to review its action. The statute recognizes the distinction between regional planning and municipal zoning. This recognition is not only by the mechanical structure of the act but by its terms as well. "Planning" and "Zoning" are closely related, for, in a general way, planning embraces zoning and zoning may not entirely exclude planning. However, they do not cover identical fields of municipal endeavor for the protection of the common interest and the promotion of general welfare. Broadly speaking, "planning" connotes the systematic development of an area with particular reference to the location, character and extent of streets, squares, parks and to kindred mapping and charting. "Zoning" relates to the regulation of the use of property--to structural and architectural designs of buildings; also the character of use to which the property or the buildings within classified or designated districts may be put. Words and Phrases, Perm.Ed., "Planning," "Zoning"; Mansfield & Swett v. Town of West Orange, 120 N.J.L. 145, 198 A. 225; Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479.
Logically, the one statute enables the municipal government to provide for the two related regulations and places the right of recommending and the power of administering them in one body, subject to prescribed limitations. But the act of the legislature sets forth the powers in separate divisions, quite independent one from the other.
Title I grants appropriate powers to the city and defines the personnel of the "City Planning and Zoning Commission" (which is the Mayor and certain other officers and five persons appointed by the Mayor) and prescribes their functions. The powers and duties provided in this Title are general and relate both to planning and zoning. Sec. 2 et seq., Acts 1930, Sec. 3037h-112 et seq.
Title II relates exclusively to zoning. Sec. 11 et seq., Acts 1930; Section 3037h-121 et seq., Statutes. In this Title (Section 12, Acts 1930, section 3037h-122, Statutes) the city council is directed to provide for the appointment of a Board of Adjustment and Appeals, to be composed of a structural engineer, an architect, a real estate dealer, a member of the commission, and one without any specified professional qualifications. This Board is given power "in cases where it is exceptionally difficult if not impossible to comply with the exact provisions of the ordinance (manifestly pertaining to the zoning provided for in the Title) [to] make such variations as will prevent unwarranted hardship or injustice and at the same time most nearly accomplish the purpose and intent of the regulations of the zoning plan." It does not mention "planning." To this Board appeals may be had by any aggrieved...
To continue reading
Request your trial
-
Seven Hills, LLC v. Chelan Cnty.
... ... " Shelton v. City of Bellevue , 73 Wash.2d 28, 35, 435 P.2d 949 (1968) (emphasis omitted) (quoting Seligman v. Belknap , 288 Ky. 133, 135, 155 S.W.2d 735 (1941) ). Washington Practice explains that selecting an acceptable location for a project depends ... ...
-
Town of Lebanon v. Woods
... ... 1-7 (quoting from Seligman v. Belknap, 288 Ky. 133, 135, 155 S.W.2d 735). "Zoning' is a technical term broadly signifying a scheme of regulation of land uses, in exercise of ... ...
-
Marx v. Zoning Bd. of Appeals of Village of Mill Neck
... ... Koenig, 12 Mass.App. 1009, 429 N.E.2d 81; Noonan v. Zoning Board of Review, 90 R.I. 466, 159 A.2d 606; Seligman v. Belknap, 288 Ky. 133, 155 S.W.2d 735) ... Accordingly, in this case, the judgment appealed from, which confirmed the ... ...
-
Shelton v. City of Bellevue
... ... rev. 1965), and in C. Rhyne, Municipal Law § 32--59, at 976, 977 (1957). It is succinctly spelled out in Seligman v. Belknap, 288 Ky. 133, at 135, 155 S.W.2d 735, at 736 (1941) as follows: ... 'Planning' and 'Zoning' are closely related, for, in a general way, ... ...
-
CHAPTER 8 COUNTY REGULATION OF MINERAL DEVELOPMENT
...certain activities, power to plan, and power to zone. The difference between zoning and planning was explained in Seligman v. Belknap [288 Ky. 133, 155 S.W.2d 735 (1941)], where the court stated: Broadly speaking, "planning" connotes the systematic development of an area with particular ref......