Smith v. Selligman
| Decision Date | 05 October 1937 |
| Citation | 270 Ky. 69,109 S.W.2d 14 |
| Parties | SMITH et al. v. SELLIGMAN et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.
Petition by Al. M. Smith and John B. Smith, partners doing business under the firm name of Gran W. Smith & Sons, against Bernard Selligman and others, members of the Board of Adjustment and Appeals of the City of Louisville. From a judgment dismissing the petition, plaintiffs appeal.
Affirmed.
Eugene Mosley, Jr., and Allen P. Dodd, both of Louisville, for appellants.
Mark Beauchamp and Lawrence S. Poston, both of Louisville, for appellees.
Al. M Smith and John B. Smith, partners doing business under the firm name of Gran W. Smith & Sons, owned and operated an undertaking establishment at 1029 South Sixth street, in the city of Louisville. On October 2, 1936, they applied to the proper authorities of the city for a permit to establish their business at 1359 South Third street, in Louisville. The application was refused by the building inspector, and also by the Board of Adjustment and Appeals, to which an appeal was prosecuted. On November 11, 1936, and after the decision of the board, the Smiths paid $200 for a one-year option to purchase the property at 1359 South Third street for $15,000. Within the required time the Smiths filed in the Jefferson circuit court their petition for a review of the decision of the board. Though of the opinion that the action of the board was valid, the court dismissed the petition on the ground that the Smiths from the very beginning had no such property right as entitled them to maintain the proceeding either before the board or in the court. The Smiths have appealed.
The statute authorizes appeals to the Board of Adjustment and Appeals "by any person aggrieved," and also provides that "any person or persons jointly or severally aggrieved by any decision of the board of adjustment and appeals *** may present to the circuit court of the county, a petition, duly verified, setting forth that such decision is illegal," etc. Ky. St. § 3037h-122. Clearly one whose application for a permit is refused is "aggrieved" within the meaning of the statute, and though he may not be entitled to any relief, he may by appeal challenge the action of the board as well as the action of the circuit court.
Taking up the case on the merits, it may be stated at the outset that zoning ordinances enacted pursuant to statutory authority are generally upheld, Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Fowler v. Obier, 224 Ky 742, 7 S.W.2d 219; and we do not understand that appellants are contending that the ordinance in question, or any provision thereof, is invalid as applied to them. On the contrary, attention is called to...
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Arant v. Board of Adjustment of City of Montgomery
...was entitled to apply for a variance as the agent and with the consent of the holder of the legal title. See also Smith v. Selligman, 270 Ky. 69, 109 S.W.2d 14. We are of opinion that the above cited cases follow the better rule. To hold that the owner at the time a zoning ordinance is adop......
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Selligman v. Von Allmen Bros., Inc.
... ... the protection of the health, morals, safety and general ... welfare of the people. It is only where such ordinances are ... related in some way to the health, safety, morals and general ... welfare that they are valid. Fowler v. Obier, 224 ... Ky. 742, 7 S.W.2d 219; Smith v. Selligman, 270 Ky. 69, 109 ... S.W.2d 14; ... [179 S.W.2d 209] Bosworth v. City of Lexington, 277 Ky. 90, 125 ... S.W.2d 995; Village of Euclid v. Ambler Realty Co., ... 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. The ... complexity of urban life accompanied by the human ... ...
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Selligman v. Von Allmen Bros., Inc.
...to the health, safety, morals and general welfare that they are valid. Fowler v. Obier, 224 Ky. 742, 7 S.W. (2d) 219; Smith v. Selligman, 270 Ky. 69, 109 S.W. (2d) 14; Bosworth v. City of Lexington, 277 Ky. 90, 125 S.W. (2d) 995; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. C......
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Richards v. Planning and Zoning Commission of Town of Wilton
...owner. Other jurisdictions have recognized the right of one holding an option to buy to apply for a variance; see, e.g., Smith v. Selligman, 270 Ky. 69, 109 S.W.2d 14; In re Zoning Variance of Gillen, 21 Ohio Misc. 84, 255 N.E.2d 313; Board of Adjustment v. Board of Education, 326 P.2d 800 ......