218 S.W.2d 641 | Ky. Ct. App. | 1949
Affirming. *627
On December 17, 1928, the City of Paducah, a city of the second class having a Commission-Manager form of government, enacted a general zoning ordinance pursuant to the provisions of Chapter 80, Acts of 1928, now KRS
The property involved in this litigation is described as being generally located south of 21st Street, west of Mayfield Road, east and west of "C" Street and north of Seitz Street in the City of Paducah. It belongs to Wells Heath and Bennie C. Seaton, wife of Wayne C. Seaton who was mayor of Paducah when this litigation began. The property is described in appellee's brief as "outlying vacant unimproved and neglected blocks of land, being for the most part covered by a dense growth of weeds and bushes, some of which has been platted for sale as residence lots but has never been used for any purpose." It has never been specifically zoned but is located in the general residential zone under the above ordinance.
The Paducah Baseball Association, Inc., recently organized, entered into an agreement to purchase this property from Heath and Seaton for the purpose of constructing a modern baseball park provided the property could be used for that purpose under the zoning laws. After its tentative purchase, the Association filed with *628 the City Planning and Zoning Commission an application requesting that the property be zoned for business use. Pursuant to the notice required by law, the Zoning Commission met on December 23, 1947, and at that time adopted a resolution zoning for business purposes the property heretofore referred to. Appellants and their counsel appeared at that meeting and protested against the change from residential to business. Present at that meeting were four members of the seven member Zoning Commission, to wit, T.A. Bradley, Wayne C. Seaton, then also mayor, S.J. Craig and Schultz Riggs, appellees in the first appeal shown in the caption, all of whom voted for the resolution. The Board of Commissioners, which is the legislative body of the City of Paducah, adopted by ordinance the resolution of the Zoning Commission thus zoning the property involved for business which would enable the Association to use the site for its ballpark. The procedure followed by the Zoning Commission and the legislative body of the City complied in all respects with KRS 100.390 and 100.400.
A demurrer was sustained to the petition and all amended petitions and plaintiffs declining to plead further the court dismissed all of them. The appeal first listed in the caption above is prosecuted from that order.
If the property in question had once been zoned by the Zoning Commission and the legislative body as provided by KRS 100.390 and 100.400, then the procedure outlined in KRS
As we see it, the property involved is for the first time being specifically zoned and in doing so KRS *631
100.390 and 100.400, rather than KRS
The second question raised by appellants is that Wayne C. Seaton, then mayor and ex-officio a member of the Zoning Commission, was disqualified to sit as a member of the Commission when the zoning of the block was under consideration because his wife was the owner of part of the property involved and, being her agent, he had a financial interest which disqualified him. While much may be said as to the impropriety of Mayor Seaton sitting as a member of the Zoning Commission under the circumstances of this case, we have been cited to no law or decision which would render his action in doing so illegal. Section 57 of the Constitution of Kentucky, which refers only to members of the General Assembly, is cited as analogous, though not controlling. Conceding for the sake of argument that he was disqualified to vote on this question, we do not think he was disqualified to sit on the Zoning Commission as a quorum member. His vote was not necessary under the procedure under which this property was zoned, that is under KRS 100.390 and 100.400, which does not require a unanimous vote of the Commission. Therefore common law principles are applicable. The rule is that in the absence of an express statute, if a quorum is present, the vote of the majority of those present is sufficient for the adoption of a resolution, by-law, ordinance or other similar action. McQuillin on Municipal Corporations, VI. 2, Sec. 624, Morton v. Youngerman,
In their brief on this phase of the case appellants give no reason why the decision of the lower court should be reversed and we see no reason why it should be. For the Board of Adjustment to have granted the appeal from the action of the Zoning Commission of December 23, 1947 zoning a section for business purposes, would have meant that the Board of Adjustment was exercising powers of planning and zoning it was never intended it should have. The powers of the Board of Adjustment are set out in KRS 100.470 and in general they are confined to a review of an order or decision of an administrative official, to hear and decide appeals and applications for special exceptions and to authorize variations from the terms of an ordinance where literal enforcement of its provisions would result in unnecessary hardship. Under the pleadings in this case the appeal to the Board of Adjustment was for a special exception because of unnecessary hardship. We do not think the application of appellants which, if allowed, would in effect rezone this district from business to residential, *633 is within the special exception power of the Board of Adjustment.
As was said by this court in the case of Bray v. Beyer,
The judgment in each case is affirmed.