(dissenting).
I cannot agree with the majority opinion and will give my reasons in this dissent.
The first error of the majority is they say the variance granted by the Board of Adjustment amounts to a rezoning, hence the Board was legislating. The statute, KRS 100.470, authorizes the Board to decide appeals and applications for special exceptions where a literal enforcement of the zoning regulations would result in unnecessary hardship. The majority opinion in denying the right of the Board to make this variance emasculates this statute, as well as others relating to the powers of the Board, and leaves it with no authority. In effect the opinion abolishes the Board.
The powers of the Board are to be found in the statutes, and the city cannot limit those powers or impose restrictions or conditions on their exercise. Rathkopf, The Law of Zoning and Planning, Vol. 1, page 609. Whatever may be the terms of an ordinance or regulation of the Commission in respect to the power of the Board, they must yield to the terms of the enabling statute where there is conflict. City of Somerset v. Weise, Ky., 263 S.W.2d 921. It is a simple and elementary principle that an ordinance cannot forbid what a statute expressly permits or authorizes. City of Ashland v. Ashland Supply Co., 225 Ky. 123, 7 S.W.2d 833; City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8.
In the exercise of these powers, the Board may “reverse, affirm or modify an order, decision or determination of an administrative official.” KRS 100.470(2, 3). Its decision or order is made conclusive as to all questions of fact, where there is substantial evidence to support it. KRS 100.480. We held in Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W.2d 782, that courts will not disturb decisions of the Board in granting a variance unless it acted arbitrarily. In Fried v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 258 S.W.2d 466, it was said that a court will not substitute its judgment for that of the *98zoning authority when the decision is based upon reason and logic. True, the Fried opinion was questioned in Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563, but not on the point now under discussion.
These statutes clearly and explicitly define the powers of the Board of Adjustment and, as indicated above, any attempt to limit them or restrict their reasonable exercise by an ordinance or regulation of the zoning commission is without effect. As stated in Rathkopf, The Law of Zoning and Planning, Vol. 1, page 667, “The purpose of the powers granted to the Board of Appeals is to provide a way of flexibility in the administration of zoning ordinances, to permit a variance when the enforcement of the law would be to create unnecessary, hardship. The jurisdiction of the board to exercise the corrective powers conferred upon it by statute, indispensable to the statutory purpose, is, of course, not limited or modified by the failure of the ordinance to include a similar flexible provision, conferring powers upon the Board of Appeals similar to that contained in the village, city or town law.” Yokley, Zoning Law and Practice, § 129 et seq., and 58 Am.Jur., Zoning, §§ 196, 198, are to the same effect. See also 168 A.L.R. 102 et seq.
In the case before us we have a single city lot in the midst of industry with the rear three-fourths portion thereof zoned for heavy industry, while the front one-fourth is zoned for general business. This is the only instance that I can recall where a single city lot has been put into two different zones. It is apparent this works a great hardship on the owner of the lot and the Board was acting clearly within the power given it by statute to grant a variance so that the owner may construct oil storage tanks on the front quarter of the lot similar to those now on the rear three quarters of the lot.
The majority rest their decision on Bray v. Beyer, 292 Ky. 162, 166 S.W.2d 290. As I read the Beyer opinion, the facts there are quite different from those here. Beyer asked the Board to exempt his lot from the restrictions of the zoning ordinance while here the property owner only asked for a variance allowing a use of the front one-fourth of the lot which was permitted on the rear three-fourths of it. Beyer asked for a rezoning of his property and when his application was refused, he erected a filling station thereon and the Board entered an order exempting his property from the restrictions of the zoning ordinance. We rightfully held this amounted to legislation by the Board. No specific variance was sought by Beyer on the ground that a literal enforcement of the zoning ordinance would result in an unnecessary hardship on him. In the case at bar the property owner sought a variance on the ground of unnecessary hardship, and the Board specifically found on the evidence adduced that a literal compliance with the zoning ordinance would work such hardship. Under the Schloemer and Fried opinions neither the circuit court nor this court should disturb the Board’s decision.
The majority opinion again falls into error, in my judgment, when it says “it is difficult to understand how Gulf could suffer a hardship in the restriction on the use of a property it does not yet own.” The hardship is not on Gulf for it will refuse to purchase the property unless the variance is granted. The hardship is on the present owner which has practically a worthless piece of property if the variance is not granted to enable it to put the front one-fourth of the lot to the same use the zoning commission allowed the owner to make of the rear three-fourths of the lot.
For the reasons given, I most respectfully dissent.