Smeltzer v. Messer
225 S.W.2d 96
Court of Appeals of Kentucky.
Dec. 9, 1949.
ACTION: Affirmed

Leonard H. Smeltzer and another sued Theodore F. Messer and wife for a mandatory injunction requiring defendants to remove a dwelling house from their land on ground of violation of a city zoning ordinance.

From a judgment of the Boone Circuit Court, Ward Yager, J., dismissing the petition, plaintiffs appealed.
The Court of Appeals, Clay, C., affirmed the judgment, holding that the ordinance was invalid and unenforceable to the extent that it it imposed zoning restrictions on defendant's property outside the city limits in another county than that in which the city was located.

CLAY, Commissioner.
This suit was brought by neighboring property owners for a mandatory injunction requiring appellees (husband and wife) to remove a dwelling house on their own property, because its type and size violated the provisions of a zoning ordinance of the City of Erlanger. A general demurrer to plaintiffs' petition was sustained and it was dismissed.

In 1947 the municipality enacted an ordinance restricting the use and regulating the capacity of structures erected in the area where appellees' property is located. Erlanger is in Kenton County; the land which the ordinance attempted to zone is outside of the city limits and in the adjoining county of Boone, though within 3 1/2 miles of the city.

The facts are not in dispute, and the issue presented is one of law involving the construction of statutes. The question is whether or not, the legislative body of a city of the fourth class, such as Erlanger, has the power to zone an area beyond its city limits lying in a county other than that in which the city, or a part thereof, is located. This problem requires us to examine closely the apparent purpose and intent of the applicable statutes.

In this particular case it is not necessary to determine the broad question of whether or not a city of the fourth class has been granted authority to impose zoning restrictions beyond its boundaries. The issue can be narrowed to whether or not it may zone not only beyond its corporate limits but in a county other than the one in which it is situated.

In Town of Elsmere v. Tanner, 245 Ky. 376, 53 S.W.2d 522, it was held that a sixth class municipality did not have power to annex territory lying in another county. The statute there under consideration is very similar to the one providing for annexation by cities of the fourth class. In the face of this limitation, we are confronted with a situation where a city has attempted to control the use and development of land located in a territory which it is not authorized to annex. The future growth of the city cannot invade this particular surrounding territory. The city cannot be developed over the county line in that direction. The adjoining area, under our present laws, cannot become a part of the civic design.

While it may be said that any municipality has an interest in its approaches, we can find nothing in the statutes which grants the power to control the use of such outlying territory unless it may reasonably be contemplated that such territory will eventually become a part of the city. The future expansion of its territorial limits is a basic consideration the legislature apparently had in mind when enacting the planning and zoning statutes. Since appellees' land cannot be absorbed under annexation proceedings by the City of Erlanger, its use is not so reasonably related to the city's development as to fall within the purposes shown by the statutes.

We must bear in mind that we are dealing with a police power. As a general rule, the exercise of this power, delegated to a municipality, should be strictly construed, particularly where it encroaches upon the rights of an individual. Ordinarily, unless a statute expressly provides otherwise, the exercise of a police power by a municipality is limited to its territorial boundaries. A further settled principle is that if there is a reasonable doubt concerning the power of a city, the doubt should be resolved against its existence. The above principles are significant in this case because the city's action, if sustained, seriously impairs the rights of a person owning property beyond its limits who has no voice in its legislative policies, and who receives no legally recognizable benefit to such property from the city government.

Under all the circumstances, we are convinced the ordinance of the City of Erlanger, to the extent it imposed zoning restrictions on the property of appellees, went beyond its granted powers, and the provisions of this ordinance are unenforceable against them and may not be invoked by appellants in this action.

For the reasons stated, the judgment is affirmed.



225 S.W.2d 96, 311 Ky. 692


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