Smith v. Howard

• Decision Date: 14 October 1966
• Citation: 407 S.W.2d 139
• Parties: Paul M. SMITH, Appellant, v. Vernon HOWARD et al., Appellees.
• Court: Supreme Court of Kentucky

Page 139

407 S.W.2d 139

Paul M. SMITH, Appellant, v.Vernon HOWARD et al., Appellees.

Court of Appeals of Kentucky.

Oct. 14, 1966.

Robert S. Miller, Miller, Griffin & Marks, Lexington, for appellant.

Edward A. Marye, Jr., Versailles, for appellees.

HILL, Judge.

The judgment from which this appeal is prosecuted upheld the action of the Building Inspector and the Board of Adjustment of the City of Versailles denying appellantPaul M. Smith the right to continue using his property under a nonconforming use provision of the zoning ordinance of the City.

It is provided in a zoning ordinance passed November 1, 1955, for the City of Versailles that:

'Any use of land or structure existing at the time of enactment or subsequent amendment of this ordinance, but not in conformity with its provisions, may be continued with the following limitations.

'33.3 No non-conforming use may be reestablished after it has been discontinued for one year.Vacating of premises or building or nonoperative status shall be evidence of a discontinued use.'

The ordinance follows KRS 100.069 pertaining to 'nonconforming' uses of property within the zoned territory.

Since about 1940appellant, or his predecessor in title, has either operated or leased the property involved herein, located at 161 Virginia Avenue, Versailles, Kentucky, for light manufacturing activities.The business conducted on the property from 1940 to 1960 involved the reconstruction and repair of tractors.

Following the termination of the tractor repair and reconstruction business in 1960, the building and premises were leased to a plumbing supply business, which was perhaps a little less noisy in activity.This business continued until September 1961.During the occupancy of the plumbing supply business, a part of the property was used by the Woodford Manufacturing Company.

During the last half of July 1962, the East Side Screw Company leased and occupied the property.It is the use by the screw company that has been denied by appellees.

Appellant takes the position the 'nonconforming' use has not been discontinued, while appellees argue the converse.Appellees say the change of the use is unauthorized and that appellant should be estopped to continue the 'nonconforming' use of the property by reason of a letter from appellant to appellees concerning permission for the lease to the screw company.

In Darlington v. Board of Councilmen of City of Frankfort, 282 Ky. 778, 140 S.W.2d 392(1940), this court said:

'It would seem, therefore, that the right to utilize one's property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes 'vested' within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.'

The right of appellant to continue the use of his property as it was being operated at the time of the enactment of the zoning ordinance in question is a 'vested' property right protected by law.

Now to the question of whether that right has been lost by the discontinuation of the business for one year as stated in the zoning ordinance.

Zoning ordinances containing provisions in derogation of common law property rights are strictly construed.Rathkopf's Law of Zoning and Planning, volume 1, chapter 8, section 1.

What is meant by: 'Discontinued for one year?'Appellees contend that cessation of the activities of the business for three hundred sixty-five days constitutes a discontinuation 'for one year' within the meaning of the ordinance.Appellant argues there must be not only an overt discontinuation of activities but some evidence of intention to discontinue.The ordinance provides that 'vacation of premises or building or non-operative status shall be evidence of discontinued use.'

We conclude that the discontinuation of use sufficient to forfeit a nonconforming use must either be intentional or fraught with such lack of diligence as to amount to an abandonment for the required period.

It is written in Rathkopf's Law of Zoning and Planning, volume 2, chapter 61, section 5, that:

'A temporary cessation, even for a lengthy period, caused by circumstances over which the property owner had no control, is generally held not to constitute proof of a discontinuance in the sense of abandonment within the meaning of zoning ordinance provisions since the circumstances themselves negate an inference of the necessary intention to abandon the use.

'Similarly, where there is a period of non-use because of the financial inability of the owner to continue in business or to find a tenant desirous of using the premises for a purpose permissible as a non-conforming use the requisite intent to abandon is lacking, and the right to resume the non-conforming use when opportunity presents itself is not lost.'

In the present case, the record indicates appellant exercised due diligence to lease his property.There is no evidence of an intention to abandon it.The business of the last lessee was less obnoxious than the one operated at the time of the adoption of the ordinance, although both are considered by the litigants and by this court as light industry.

It is concluded appellant did not forfeit his right to continue the 'nonconforming' use of his property by his inability to lease it for approximately one year.

Appellees rely heavily on City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1(1960).Appellant also cites Miller.In the Miller case, the original use involved the 'display, storage and delivery of furnaces,' but the owner sought to change the use to 'storage of plumbing fixtures...