Kindred Homes, Inc. v. Dean

605 S.W.2d 15, 1979 Ky. App. LEXIS 538
CourtCourt of Appeals of Kentucky
DecidedAugust 3, 1979
StatusPublished
Cited by3 cases

This text of 605 S.W.2d 15 (Kindred Homes, Inc. v. Dean) 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
Kindred Homes, Inc. v. Dean, 605 S.W.2d 15, 1979 Ky. App. LEXIS 538 (Ky. Ct. App. 1979).

Opinion

WHITE, Judge.

Kindred Homes, Inc. appeals that portion of a Jessamine Circuit Court judgment upholding the validity of the Jessamine County-City of Wilmore zoning regulations. The remaining parties appeal that portion of the judgment declaring the 1977 amendments to the comprehensive plan invalid and granting Kindred Homes a requested zone change.

In 1969, the Jessamine Fiscal Court and governing body of the City of Wilmore, Kentucky, created the Jessamine County-City of Wilmore Joint Planning Commission.

On December 10, 1970, upon recommendation of the Joint Planning Commission, the Jessamine Fiscal Court adopted goals and objectives, interim zoning regulations, and a zoning map. All areas of the county outside the city limits of Nicholasville and Wilmore were zoned agricultural.

On May 6, 1971, the Jessamine Fiscal Court adopted a comprehensive plan and interim subdivision regulations. The 1971 plan recognized that residential growth would occur outside the county’s urban service areas. Particular mention was made to anticipated development in the northern portion of Jessamine County in the vicinity of the Lexington urban area.

In July 1975, the Jessamine Fiscal Court rejected proposed new zoning ordinances offered by the Planning Commission to replace the interim zoning ordinance. No permanent zoning regulations, have been adopted since approval of the comprehensive plan in 1971. The only amendments to the zone map have been to specific tracts of land following applications for such amendment.

In 1973, Kindred Homes purchased a 95-acre tract' of land in Jessamine County, located on the east side of Harrodsburg Road and on the south side of Brannon Road. At the same time, Kindred Homes also took an option to purchase an additional 252-acre tract directly north across Bran-non Road from the 95-acre tract.

Kindred Homes, in March 1974, applied for a zone map amendment of the 95-acre tract from A-l to R-l. The Joint Planning Commission recommended denial of the application but the Jessamine Fiscal Court granted the zone change. The Jessamine Circuit Court affirmed the action of the Fiscal Court. The judgment was appealed to the Kentucky Supreme Court, which affirmed by opinion entered May 28, 1976.

In 1976, Kindred Homes exercised its option to purchase the 252-acre tract and then sought to have that tract rezoned from A-l to R-l. The application was denied and no appeal taken.

In January 1977, the Joint Planning Commission held a hearing to consider proposed deletions from the 1971 comprehensive plan. The deletions were approved by the Joint Planning Commission but were never submitted to nor approved by the Jessamine Fiscal Court.

In July 1977, Kindred Homes again filed an application for a zone amendment on the 252-acre tract. The Planning Commission, after hearings on the proposed zone change, recommended denial of the application in January 1978. In March 1978, the Jessamine Fiscal Court adopted the findings of fact and recommendations of the Joint [17]*17Planning Commission and denied the application.

An appeal to the Jessamine Circuit Court was taken and the Circuit Court reversed the Fiscal Court and ordered the application to be granted. Hence this appeal.

The first question presented to this court is whether the Jessamine County-City of Wilmore interim zoning regulations adopted in 1970 are valid. Counsel for Kindred Homes advanced a number of arguments as to why these regulations should be declared invalid. The Jessamine Circuit Court, in its memorandum opinion, noted a number of irregularities concerning the regulations but concluded that they were valid and enforceable. We disagree.

Interim zoning regulations were adopted concurrently with the goals and objectives on December 10,1970. On May 6,1971, the comprehensive plan and interim subdivision regulations were adopted. No permanent zoning regulations have ever been adopted.

KRS 100.367 provides that within five years from June 16,1966 “all organizations, plans, and regulations will be in conformance with the provisions of this chapter.”

KRS 100.334(2) anticipated the need for interim regulations before formulation of a comprehensive plan. However, in Daviess County v. Snyder, Ky., 556 S.W.2d 688 (1977), the Supreme Court recognized that goals and objectives must first be approved, even before interim regulations. It is the goals and objectives which provide the basis for interim zoning. It appears naturally to follow that the comprehensive plan provides the basis for permanent zoning.

Although KRS 100.201 mentions interim and permanent zoning, we think the inclusion of interim in lieu of permanent regulations was not to sanction interim zoning but merely to show what any zoning regulation purports or is authorized to accomplish. We find this view strengthened by the court’s language in Manley v. City of Maysville, Ky., 528 S.W.2d 726, 728 (1975): “[T]he purpose of KRS 100.213 is to require zoning to conform to the basic scheme of prior planning and to prohibit indiscriminate, piecemeal attempts to rezone.”

In the case of City of Erlanger v. Hoff, Ky., 535 S.W.2d 86 (1976), the City of Erlanger had adopted a comprehensive plan but no zoning ordinances. In an attempt to comply with the time limits of KRS 100.367, Erlanger adopted existing zoning ordinances as interim regulations, as provided in KRS 100.334. The court held that the existing ordinances were not compatible with the comprehensive plan and therefore invalid. At page 88 the court stated:

Chapter 100 was completely revised in 1966 in an attempt to provide workable procedures for handling the very complicated problems inherent in zoning. It is clear that the legislature considered careful planning as a prerequisite of good zoning. It was stated in Fritts v. City of Ashland, Ky., 348 S.W.2d 712 (1961), “It is to be hoped that in the future zoning authorities will give recognition to the fact that an essential feature of zoning is planning.” The court lamented in City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), “That statement made in 1961 has had little discernible effect.” Erlanger’s failure to implement the comprehensive plan with a compatible zoning ordinance within the five-year period left the city without zoning regulations.

Like the court in Erlanger, we find no zoning regulations compatible to the comprehensive plan.

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Related

Hardin County v. Jost
897 S.W.2d 592 (Court of Appeals of Kentucky, 1995)
City of Lakeside Park v. Quinn
672 S.W.2d 666 (Kentucky Supreme Court, 1984)
Chandler v. Kindred Homes, Inc.
606 S.W.2d 165 (Kentucky Supreme Court, 1980)

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Bluebook (online)
605 S.W.2d 15, 1979 Ky. App. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kindred-homes-inc-v-dean-kyctapp-1979.