Davis v. Richardson

507 S.W.2d 446, 1974 Ky. LEXIS 703
CourtCourt of Appeals of Kentucky
DecidedMarch 22, 1974
StatusPublished
Cited by7 cases

This text of 507 S.W.2d 446 (Davis v. Richardson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Richardson, 507 S.W.2d 446, 1974 Ky. LEXIS 703 (Ky. Ct. App. 1974).

Opinion

REED, Justice.

The appellant, William H. Davis, applied under the provisions of Louisville zoning regulations for a permit to locate a private social club on property owned by him and located in a residential zone. His application sought issuance of what the regulations (which were not filed in the record and are not properly before us) evidently denominated a “conditional use permit.” Several residents in the concerned residential zone whose residences, in some instances, were in full view of the proposed club facilities, and including appellee, Cross, who owns adjacent and confronting-property to Davis, protested the issuance of the conditional use permit. The Louisville Board of Zoning Adjustment held an evidentiary hearing and decided to grant the permit.

The protesting property owners appealed to the circuit court where the judge held that the board’s order granting the permit was invalid and directed that new proceedings would have to be conducted before the board and a new determination made of Davis’s entitlement to a permit to operate a private social club on his property. Davis thereupon appealed that decision to this court.

Davis advances two principal contentions in support of his argument that the circuit judge’s determination was erroneous. First, Davis claims that the protesting property owners had no standing to secure judicial review of the board’s decision. Second, he claims that the circuit court’s determination was contrary to the applicable statutory law and the evidence presented at the board’s hearing.

Since the applicable zoning regulations were not filed as a part of the record and we know of no rule that would permit us to take judicial knowledge of them, we are relegated to considering the case so far as the issues of law are concerned on the basis of the applicable statute.

Chapter 100 of the Kentucky Revised Statutes sets forth the legislative authorization and general scheme for local planning and zoning and applies to the City of Louisville. “Conditional use” is statutorily defined in the chapter in this language:

“ ‘Conditional use’ means a use which is essential to or would promote the public health, safety, or welfare in one or more zones, but which would impair the integrity and character of the zone in [448]*448which it is located, or in adjoining zones, unless restrictions on location, . size, extent, and character of performance are imposed in addition to those imposed in the zoning regulation;”. KRS 100.111(5). (Italics supplied).

“Conditional use permit” is defined in the same statute as meaning:

“Legal authorization to undertake a conditional use, issued by the administrative official pursuant to authorization by the board of adjustments, consisting of two (2) parts;
(a) A statement of the factual determination by the board of adjustments which justifies the issuance of the permit; and
(b) A statement of the specific conditions which must be met in order for the use to be permitted.” See KRS 100.111 (6).

KRS 100.237 provides that the board of adjustments has the power to “hear and decide applications for conditional use permits to allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone only if certain conditions are met.” (Italics supplied).

From representations made in the transcript of evidence of the proceedings before the board of adjustments, it appears that a social club can be located in any zone provided for in the Louisville plan by employment of the conditional use permit route. If that be so, as we assume it must, then the board of adjustments rather than the zoning commission or the legislative body makes the only effective determination concerning whether the particular land use at the particular location is consistent with and promotes the public health, safety or welfare in the overall zoning scheme. Hence, in the instance of a “conditional use” there is a single administrative adjudicatory proceeding subject to judicial review by express statutory provision. See KRS 100.347.

In the instance of the conditional use permit procedure, where the particular use is made permissible in any zone, the board of adjustment is required to make an ad hoc determination on a case-by-case basis of the effect of permitting the use on the public health, safety or welfare in one or more zones, and also to determine the degree of impairment upon the integrity and character of the zone in which it is located or in adjoining zones. The board is also directed and empowered to impose restrictions in addition to those imposed in the applicable zone regulation in order to relieve the degree of impairment upon the integrity and character of the affected zone and adjoining zones.

From the foregoing, it is our conclusion that Davis’s contention that the protesting property owners in this case have no standing as persons claiming to be “injured or aggrieved by the decision of the board of adjustments,” as those words are used in the judicial review section of the statute, has no merit. The repetition in the statutory scheme of the concept of an area called a zone wherein will be located a use not permitted by the regulations applicable to that area unless evidence relevant to considerations of public health, safety, morals, or welfare justifies it and conditions are imposed upon its exercise seems to us to require the conclusion that property owners within the affected zone to whom the same regulations are applicable are sufficiently interested in preserving the character and integrity of the zone so that they must be considered to possess sufficient standing to secure judicial review of the grant of a conditional use permit within the particular zone. Therefore, we hold that the protesting property owners whose residences are located within this particular affected zone [449]*449in which it sought to engage in a “conditional use,” including a property owner whose residential property directly confronts the site of the proposed conditional use, are within the definition of “injured or aggrieved parties” and the circuit judge correctly so held.

The factual findings on which the board of adjustments rested its conclusion to grant the permit were: (1) The property had been used sometime in the past for a use similar to the one proposed by Davis, (2) comparable uses are located in the same general large area of the county, (3) the property is subject to flooding and not conducive to development for more permanent residential use, (4) the proposed use would not have an adverse effect on the surrounding property, (5) the property is a suitable location for the use proposed.

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Bluebook (online)
507 S.W.2d 446, 1974 Ky. LEXIS 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-richardson-kyctapp-1974.