Boron Oil Co. v. Cathedral Foundation, Inc.

434 S.W.2d 640, 1968 Ky. LEXIS 239

• Court: Court of Appeals of Kentucky
• Decided: November 15, 1968
• Status: Published

Opinions

OSBORNE, Judge.

The Boron Oil Company sought a change in the zoning map of the City of Covington pursuant to the provisions of KRS 100.213 in order to use a lot at 12th and Scott streets for the erection of a service station. This required a map changefrom R-5 to C-2 for the lot involved:

Appellant appeared before the Kenton County Municipal Planning and Zoning Commission and was denied the relief sought by a vote of 4-4. It, then went to the city commissioners and procured the adoption of an ordinance making the desired change. Shortly after the adoption of the ordinance by the city commission, appellees sought and were granted an injunction prohibiting the erection of the station on the grounds that the ordinance adopted by the commission, in the absence of a favorable vote by the Planning and Zoning Commission, was invalid. Boron Oil Company now claims that approval of the Planning and Zoning Commission was not necessary and the action of the city commission was sufficient in itself to grant the requested change. We disagree. KRS 100.213 reads in part: “* * * the planning commission and the legislative body * * * must find * * * ” that certain facts exist prior to granting a map change. (Emphasis added.)

Appellant argues that we should substitute in this statute the word “or” for the word “and.” Appellant’s first argument is that the 1968 General Assembly amended the statute to this effect thereby indicating that the statute was in error when originally passed and the amendment was in the form of a correction. We believe the ready answer to this contention is that the 1968 amendment could as well have been one designed to change the law as to correct it. Therefore, we do not believe the statutory change indicates a prior intent one way or the other.

Appellant next contends the provision as written with an “and” is inconsistent with the other provisions of the zoning law in that under other provisions much more extensive changes can be made by the legislative body in face of a disapproval by the planning body. And, therefore, it is inconceivable that the legislature meant to give the planning body a veto in the matter of map changes. They, therefore, conclude that this indicates that the legislature really meant an “or.” We are not prone to analyze all of the reasons that a legislature may have for actions it takes or fails to take, however, it can be readily understood that the legislature might give to the city council alone power to adopt an overall plan without first obtaining the approval of the planning commission and still limit their power to make small changes. The adoption of an overall plan is one in which the entire community is interested and would require by the very nature of the act long-term study and deliberate determination whereby minor changes would not entail this kind of reflective consideration but might be dictated by pressures of the moment. Therefore, the legislature could well have meant to require that such changes must be approved by the zoning commission as well as by the legislative body.

Appellant cites certain cases indicating that the words “or” and “and” can be easily interchanged. In response to this we point out that to make such interchange it must be obvious that the intent of the legistature would be thwarted if the change were not made. Duncan v. Wiseman Baking Co., Ky., 357 S.W.2d 694; Asher v. Stacy, 299 Ky. 476, 185 S.W.2d 958. We do not find such a situation to exist here. We believe the circuit court was correct in restraining appellant from the building of the service station on the lot as rezoned.

The judgment is affirmed.

MONTGOMERY, €. J., and EDWARD P. HILL and WILLIAMS, JJ., concur. MILLIKEN, PALMORE and STEIN-FELD, JJ., dissent.