Taylor v. Coblin
| Decision Date | 27 November 1970 |
| Citation | 461 S.W.2d 78 |
| Parties | Mrs. George W. TAYLOR, Appellant, v. William G. COBLIN, Chairman, etc., et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
William A. Young, Young & Williams, Frankfort, for appellant.
Herbert D. Liebman, Allen Prewitt, Jr., Frankfort, for appellees.
This appeal is from a judgment upholding the action of the city council which upon recommendation of the Frankfort-Franklin County Planning Commission rejecting the appellant's application for rezoning from R--1 to C--2 the rear portion of a vacant lot owned by her.
The lot in question is situated on the south side of East Main Street (U.S. Highway 60) where the highway intersects U.S. Highway 460 and the Thornhill Bypass. The lot is a triangular one with frontage of 500 feet on the south side of East Main Street. The east side of the lot runs back a distance of 535 feet, and the west side extends southwardly 662 feet. The lot is only 79 feet wide at the rear or south end. It is bounded on the west by the Greenhill Cemetery and on the east by a number of lots on which are situated small residences. The only means of ingress and egress the lot enjoys is by way of East Main Street. No other street or alley is available to the rear of the lot.
In 1952, the entire lot in question, including other adjoining property, was classified R--1.
In 1954, a change was made in the classification of a portion of appellant's lot along with other property on the south side of East Main Street from Myrtle Avenue extending as far east as Atwood Street. The reclassification involved a strip of land 300 feet in width along the south side of East Main Street. This resulted in the classification of the front 300 feet of appellant's lot to C--2, leaving the rear portion of appellant's lot in a R--1 classification. This part of the lot is 362 feet in depth on the west side, 235 feet deep on the east side, and 79 feet wide on the rear.
A topographical map filed on the hearing in this case shows that the front of appellant's lot at the entrance to East Main Street has an elevation of 502 and that the rear of the lot has an elevation of 460, which means that the lot is 42 feet higher at the front than at the rear, or a grade of about 9 percent.
At the time appellant filed her application for a change in classification, she had a prospective buyer for her whole lot who desired to purchase the lot for the purpose of constructing a shopping center thereon. Appellant filed with the Commission a plan for such shopping center. A hearing was held pursuant to notice to the public, at which time the Commission heard evidence pro-and-con on the issue of whether appellant was entitled to have the rear of her lot rezoned as aforesaid. Some of the residents along the east boundary of appellant's lot appeared at this hearing, some of whom testified formally in opposition to the request to rezone. Others voiced their protest more in the nature of a town hall devate. The sum and substance of the evidence protesting the desired reclassification was (1) increased traffic in the area would be hazardous to children; (2) there would be nuisances from drag races; (3) it would result in decreased values to home-owners; (4) decreased opportunity to build homes; (5) zoning commercial would cause residential property to become run down; (6) the litter would increase resulting in roaches, rodents, and other pests; (7) commercial zoning would increase the possibility of housebreaking and other criminal acts; (8) since police protection is already inadequate, zoning this area commercial would mean this protection would be zero; (9) the area is among four food stores; and (10) the area is already midway between two shopping centers--Eastwood Shopping Center and Winn-Dixie Shopping Center.
The appellant filed an aerial photograph, a topography map, and a number of photographs of the lot and of the general area. Appellant also introduced C. N. Hoover, a Frankfort real estate broker of 20 years' experience, who testified that the rear of appellant's lot had no access to any street or alley and that if it had access, the few residential building lots that could be obtained therefrom would not exceed $1,000 each in value. He stated, however, in his judgment, the cost of developing the rear portion of the lot would be prohibitive. He testified that in his opinion the best-use classification of appellant's lot was C--2; that such reclassification would enhance the value of the adjacent property; that no residence had been constructed on East Main Street between Myrtle Avenue and Eastwood Shopping Center, approximately one-half mile, for more than 15 years; and that 20 new business establishments had come into existence in this limited area in the past 16 years.
Another real estate broker with 10 years' experience who testified for appellant was Don Hulette. He testified that it would cost approximately $7,500 to develop the rear portion of appellant's lot; that only six lots could be obtained as a result of such development; and that the top value of the lots after such development would be $1,200 each. He also testified that the best use to which this property could be put would be achieved under a C--2 classification.
During the hearing, the executive director of the Commission, Allan Alsip, frankly made the following potent comment, 'I don't think it should be R--1 anyway.'
As indicated above, the city council denied the application of the appellant to rezone. The Franklin Circuit Court affirmed the council. First let us mention the question of appellate review. Prior to this court's opinion in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964), appeals in decisions in zoning change cases were tried 'de novo,' but in American Beauty Homes this court held 'de novo' trials to be in violation of Section 27 of the Constitution of Kentucky.
It was pointed out in American Beauty Homes that there are three and perhaps other grounds for judicial review of administrative action: (1) where the action is in excess of granted power; (2) lack of...
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