Historic Licking Riverside Civic Ass'n v. City of Covington

STEPHENS, Chief Justice,

dissenting.

I respectfully dissent.

As the majority opinion indicates, the critical question on this appeal is whether the two challenged zoning ordinances, and the possible use of the land under their aegis, violate the dedicatory language in the 1815 plat.

The majority states that the trial court’s findings of fact and judgment have “reduced the impact of this restrictive language beyond the vanishing point.” This is where I part company with the majority. It is not the trial court’s decision that reduced the efficacy of the dedication, i.e., the use of the land as a “common.” Rather, it is the evidence in the record before us, the only evidence we may consider, that not only defines the meaning of “common” as used in the plat, but also reflects changes in said definition over time.

Whatever the original meaning of the word “common” may now be determined to be, the evidence in this case shows that the proposed land use in the two contested zoning ordinances is consistent with the actual use of this riverfront property since 1815. On the basis of this evidence and the trial court’s extensive and thorough discussion of it, I would hold that the proposed use of the land — as expressed in the two zoning ordinances is: (1) consistent with the intent of the donors of the land, and/or (2) is consistent with the actual original and continuous use of that land since 1815.

The grantors reserved to themselves the right to conduct a ferry boat operation on the land. This was a commercial activity, with public access. In the early and mid-1800’s the land was used as a coal dock, which was also a commercial use, with public access. As Covington grew and developed, the land was used as a boat landing area, to which the public had access.

Part of the land was actually sold for the construction of a pier upon which a commercially operated toll bridge was built. The public had, and has, access to this bridge. For the past twenty years, the land has been leased to a privately owned, but publicly accessible restaurant. On a substantial part of the “common” area, a floodwall was constructed. This clearly restricted in a substantial manner the public access that the majority urges.

The present and the proposed uses of the land in question, while outwardly different because of the changing times, are the same in essence as the use of the land in 1815. Under Covington City Ordinances, Nos. 0-57-87 and 0-72-87, the property will be used for commercial and business purposes which reflect the commerce and business needs of the changing times.

The public has consistently had access to the commercial activities conducted on the “common.” Moreover, the public will continue to have access to the businesses permitted under the two ordinances. I conclude that the use proposed is in the modern day nature of accessible riverside commercial activity contemplated by the donors of the land.

Additionally, if one does not agree with this thesis, and believes instead that the land should be totally reserved for noncommercial public use, the evidence described above, which only cursorily summarizes the extensive findings of fact by the trial court, indisputably shows that from the very beginning such a use has never been the actual practice. The land has been continuously used for business and commercial purposes. We have recognized *444that the original purposes of dedicated land change with the times. In City of Hazard v. Eversole, 313 Ky. 254, 230 S.W.2d 921 (1950), we said,

“Dedication is not confined to the usages known at the time. It includes the right of the public to use the property in such a way as is convenient and comfortable, according to changed conditions ...” Id. at p. 924.

In the present case, the land has always been used for commercial purposes and not as a green area or park. By the very nature of such commercial activity, the use of the land by the public as a whole has been limited and restricted. For nearly 20 years the land has been used restrictively by a privately owned, public restaurant. But, the public has had access to the restaurant.

The proposed “change” in the land use is only an update of the historic, continuing use of the land for commercial and business purposes. Total public access to the land has always been restricted by its actual use — running livestock across the land to waiting barges; building a bridge on the land; shipping coal, and other products; and selling food and drink on the land. Appellants have failed to convince me that the general nature of the use of the land in question will change under the new zoning ordinances.

I find it a unnecessary and improper to remand this case to the circuit court. The use of the land under the ordinances, will be in principle and in practice, consistent with the use of the land for the past 174 years.

One further point remains. The majority states that a substantial portion of this lawsuit has been “mooted.” The appellants, adjacent property owners, have conceded that any proposed development west of their property, beginning at the Suspension Bridge, may proceed with their permission. The appellants have conceded, and the majority agrees, that although the requirement of a “common” applies to all the land in question, that a violation of the restriction is proper on some of the land, albeit not on the land in front of their property.

I believe that if the restrictive language is efficacious, it is so as regards to all the land. I am unaware of any authority or precedent which would permit this Court to approve an illegal act. If the ordinances, and the use of the land thereunder, violate the dedication, we should hold that it is violative as to all the land. As a corollary to that premise, it can be argued that if the proposed use of the land is proper west of the Suspension Bridge, it is also proper east of that structure.

It is my belief that the concession of appellants with respect to part of the land should be made applicable to all of the land. In law, one should not pick and choose what is proper or what is improper, based solely on one’s own personal interest.

I would affirm the judgement of the trial court.

GANT, J., joins this dissent.