dissenting.
I respectfully dissent from the majority opinion.
This case raises the age-old question, are we a nation of laws or of men? Thus far the score is men seven, law one. The seven are the trial judge twice, the first panel and two of the three members of this panel. As the lone dissenter, I would uphold and enforce the law which Morris and the Board were sworn to enforce.
Appellant has done everything he can to get Morris and the Board to obey the law, but to no avail. Appellant’s wife first talked to Morris, and obviously pointed out that the property having been previously zoned R-2, that his permits purporting to give the builders permission to construct multi-family structures constituted a violation of the zoning ordinance. KRS 100.271 expressly denied Morris the authority which he purported to exercise. The pertinent portion of this statute provides “... and the administrative official (Morris) may be designated to issue building permits or certificates of occupancy ... but may not have the power to permit any construction or to permit any use which does not conform to the literal terms of the zoning regulations.” [Emphasis added.]
Appellants then sought a declaratory judgment adjudging the building permits to be void. This action was dismissed, and affirmed on appeal because appellant failed to comply with the review and appeal provisions of KRS 100.257, 261 and 347.
The Board obviously approved of Morris’ actions. The court in dismissing the complaint not only ignored the statutory prohibition against Morris’ action, but also ignored KRS 100.247 which prohibited the Board from approving his action. The pertinent part of that statute provides “the board shall not possess the power to grant a variance to permit the use of any ... building ... which is not permitted by the zoning regulations in the zone in question.” [Emphasis added.] For his efforts in this first action appellant was rewarded with an injunction. This judgment was affirmed by another panel of this court in Case No. 85-CA-243-MR.
Appellant then sought a Writ of Mandamus seeking to restrict the use of the structures to two families as provided by the zoning ordinance. Again, the trial court dismissed their complaint and cited him for contempt of court. In so doing the court held:
5. Plaintiff, Don Burns in this action is requesting the defendants to render a determination concerning “use” of the buildings on the property described in the complaint. The question concerning the building permits was disposed of in Mercer Circuit Court Civil Action No. 83-CI-192.
6. In Mercer Circuit Court Civil Action No. 83-CI-192, by order dated December 19, 1983 this court ruled, and later up*719held on appeal, that the plaintiff there and here, Don Burns, was estopped from contesting the decision of the Greater Mercer County Planning and Zoning Commission. That decision allowed the construction of multi-family dwellings, specifically, buildings containing eight separate living areas, or an eight-plex. Inherent in that decision was the use to use those buildings for their intended purpose i.e., eight separate living areas. The attempt by plaintiff here to separate “structure” and “use” in this case is obviously a thinly veiled attempt to circumvent the clear order of this court enjoining him and all concerned from “appealing, protesting, questioning or otherwise contesting” (emphasis added) the original decision of the Mercer County Planning and Zoning Commission.
7. Plaintiff may be held in contempt of this court for what appears to be a willful violation of this court’s orders.
Throughout both cases all members of the judiciary have assumed that the act of Morris in issuing the building permit was nothing more than an “error” which had to be challenged by timely review to the Board of Adjustment as provided by KRS 100.257, or that it was an “official action or decision” which had to be appealed to the Board of Adjustment within thirty days as required by KRS 100.261, or that appellant was a person who was injured or aggrieved by a “final action” that had to be appealed to the circuit court as required by KRS 100.347.
The words “erroneous” and “final action” contemplated by these statutes presuppose the existence of lawful authority which the Board and Morris lacked. Lacking any lawful authority their acts were ultra vires and void, ab initio. Therefore, their actions could not be characterized as erroneous, as contemplated by KRS 100.-257, or an official or final action within the meaning of 261 and 357. These three statutes simply had no application whatever to appellant in his efforts to seek compliance with the law.
But, right or wrong, the question of the issuance of the building permit has now been decided and that decision is the law of the case. It does not, in my opinion, estop appellant from challenging the use of the property for multi-family dwellings. It must be remembered that planning and zoning involves two separate and distinct aspects. The first aspect being the building permit which has now been decided. The second is the use aspect which was not, and could not have been decided in the earlier case. KRS 100.271 and 247 treat these aspects separately and each requires that the terms of the zoning regulations be literally complied with.
To permit this decision to stand, the courts will have to ignore the above-cited statutes which we are forbidden from doing by virtue of § 28 of our constitution, and would pave the way for the complete emasculation of our zoning statutes and ordinances.
Appellees would still have recourse under the law, if it were applied. They could permit the occupancy of their structures by two families while they petitioned, pursuant to notice and hearing, the Board for conditional use or a variance.
By stretching the imagination I can understand the majority’s affirmance on this case. However, under all the circumstances, I cannot comprehend their affirmance of the injunction or the threat of contempt.