
    Mulkern v. Louisville & Jefferson County Planning & Zoning Commission et al.
    March 26, 1948.
    Wilbur Fields and C. Maxwell Brown for appellant.
    Gilbert Burnett, Lawrence Duncan, Samuel iSteinfeld, Peter, Hey-burn & Marshall and Gavin Cochran for appellee.
   Opinion of the Court by

Stanley, Commissioner

Reversing.

The suit tests the validity of an order of the Louisville & Jefferson County Planning & Zoning Commission, entered on June 4, 1947, changing the zoning of a. tract of about 15 acres, known as the Wetstein tract, in the suburbs of Louisville. It is on the TaylorsvilleRoad about one-half mile from the city limits. The territory had been originally classified as “A One-Family Residence area.” By the challenged order it was put into the classification, “B-3 Multi-Family Residence-District.” The circuit court on appeal from the order made separate findings of law and fact and disposed of' a number of contentions of the parties and confirmed the-order of the Commission. The appeal to the circuit' court and to this court is by Roy Y. Mulkern, the owner of nearby property, against the Zoning Commission, its members, certain county officers, and a building construction company. However, amici curiae briefs have-been filed by interested parties, both in opposition and-in support of the judgment.

The tract of land rezoned has been acquired by per- - sons who propose to organize a corporation and improve ■ it with the construction of a “garden type” multi-family residence development, comprised of 43 buildings ■ and designed to house 184 families.

The court found that the proposed construction conforms to the comprehensive master plan of the Commission for the physical development of the county outside the city and to regulations and restrictions of the “B-3” classification of the Commission. And, further, that the rezoning of the territory will cause no undue hardship or invasion of the rights of the property owners with respect to the sewer- and other public facilities serving the community generally.

The question of validity of the order of the Zoning Commission, made on the same day, June 4, 1947, which established the classification of “B-3, Multi-Family Residence District” was raised in this ease before it was in Louisville & Jefferson Planning & Zoning Commission v. Ogden, 307 Ky. 362, 210 S. W. 2d 771, an opinion delivered today, but the trial court held the issue to have been raised too late. We have held in the Ogden case that the order is invalid, therefore, the conclusion follows that the rezoning and placing of the parcel of land in this case was not authorized. It too was assigned to a non-existent classification.

The judgment is accordingly reversed.  