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ALLEN REALTY, INC. v. CITY OF LAWRENCE

April 20, 1990.

ALLEN REALTY, INC., Appellant,
v.
THE CITY OF LAWRENCE, KANSAS, A Municipal Corporation; GENE SHAUGHNESSY, Building Inspector for the City of Lawrence; and RAMON POWERS, State Historic Preservation Officer for the State of Kansas, Appellees.



Allen Realty, Inc., appeals from an order by the district court granting summary judgment to the City of Lawrence and dismissing plaintiffs appeal from a determination by Ramon Powers, the State Historic Preservation Officer for the State of Kansas (SHPO), recommending denial of a demolition permit.

Plaintiff has owned a lot at 1040 New Hampshire Street in Lawrence since 1976. Situated on the lot is an old building known as the English Lutheran Church (the Building). New Hampshire Street runs north/south and dead-ends into Eleventh Street, which runs east/west. Massachusetts Street runs north/south parallel to and one block west of New Hampshire Street. The Douglas County Courthouse (Courthouse), which is listed on the National Register of Historic Places, is situated south of Eleventh Street and fronts on the 1100 block of Massachusetts Street.

For about eight years prior to March 1988, the Building had been leased to the Lawrence Baptist Temple but was vacated during March 1988 because of its deteriorated and unsafe condition. An inspection of the Building by the Lawrence Fire Department, also during March 1988, found numerous violations of the Lawrence fire code and instructed plaintiff to correct such

[14 Kan. App. 2d 363]

      violations. Plaintiff employed an architect and obtained estimates of the cost of necessary repairs and/or renovation of the Building. Subsequently, plaintiff applied to the City for a permit to demolish the Building.

  Because of the Building's proximity to the Courthouse, a registered historic site, the SHPO was notified of plaintiff's application for a demolition permit.

  Initially, the SHPO determined that the proposed demolition would not affect any registered historic property. The SHPO withdrew that determination by letter of June 1, 1988. On June 29, 1988, the SHPO recommended by letter that the City deny the demolition permit because it "will encroach upon, damage or destroy a historic building in the environs of the Douglas County Courthouse, a property listed on the National Register of Historic Places." (Emphasis added.)

  Plaintiff, by letter of July 6, 1988, requested the City to issue the demolition permit, alleging in effect that the SHPO's determination of June 29, 1988, referred to the Building, which was not a registered historic building. Thereafter on July 13, 1988, the SHPO wrote the City a third letter, stating that the demolition "would encroach upon, damage or destroy the environs of the Douglas County Courthouse" (emphasis added), and again recommended that the demolition permit be denied.

  Once that determination was made by the SHPO, the City could not issue a demolition permit until the governing body of the City determined, after considering all relevant factors, "that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from such use." K.S.A. 75-2724(a).

  The City put the matter on its commission agenda for July 19, 1988, and invited plaintiff to appear and show cause why the demolition permit should not be denied. Following such hearing, the permit was denied. Plaintiff appealed the SHPO's determination pursuant to K.S.A. 77-601 et seq. and the City's denial of the demolition permit pursuant to K.S.A. 75-2724(b) and K.S.A. 1989 Supp. 60-2101(d) to the district court. The district court dismissed plaintiff's appeal from the SHPO's determination and

[14 Kan. App. 2d 364]

      granted summary judgment to the City on plaintiffs appeal from the City's denial of the permit.

  Plaintiffs instant appeal emanates from the implementation of the provisions of the Kansas Historic Preservation Act. K.S.A. 75-2715 et seq. K.S.A. 75-2715 reads:
"The legislature hereby finds that the historical, architectural, archeological and cultural heritage of Kansas is an important asset of the state and that its preservation and maintenance should be among the highest priorities of government. It is therefore declared to be the public policy and in the public interest of the state to engage in a comprehensive program of historic preservation and to foster and promote the conservation and use of historic property for the education, inspiration, pleasure and enrichment of the citizens of Kansas."
  Since 1977, Kansas law has placed the burden on the state and its political subdivisions to provide notice of projects which might have an adverse impact upon historic properties. K.S.A. 75-2724 provides the procedure for determining whether a proposed project threatens a historic property. In pertinent part, K.S.A. 75-2724(a) provides:
 
"The state or any political subdivision of the state, or any instrumentality thereof, shall not undertake any project which will encroach upon, damage or destroy any historic property included in the national register of historic places or the state register of historic places or the environs of such property until the state historic preservation officer has been given notice, as provided herein, and an opportunity to investigate and comment upon the proposed project. Notice to the state historic preservation officer shall be given by the state or any political subdivision of the state when the proposed project, or any portion thereof, is located within 500 feet of the boundaries of a historic property located within the corporate limits of a city, or within 1,000 feet of the boundaries of a historic property located in the unincorporated portion of a county."
The proposed demolition of the Building clearly qualifies as a "project" as that term is defined in K.S.A. 75-2716(c): "`Project' includes: . . . (3) activities involving the issuance of a lease, permit, license, certificate or other entitlement for use, to any person by the state or any political subdivision of the state, or any instrumentality thereof."

  If the SHPO determines that a project would encroach upon, damage, or destroy a historic property or its environs, the project is halted and can only proceed if the governing body makes certain determinations. K.S.A. 75-2724(a) continues in part:

[14 Kan. App. 2d 365]

     

 
"If the state historic preservation officer determines, with or without having been given notice of the proposed project, that such proposed project will encroach upon, damage or destroy any historic property included in the national register of historic places or the state register of historic places or the environs of such property, such project shall not proceed until: (a) The governor, in the case of a project of the state or an instrumentality thereof, of the governing body of the political subdivision, in the case of a project of a political subdivision or an instrumentality thereof, has made a determination, based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such historic property resulting from such use and (b) five days' notice of such determination has been given, by certified mail, to the state historic preservation officer."
  In this case, the SHPO made a determination that the project (demolition of the Building) would encroach upon, damage, or destroy the environs of the Douglas County Courthouse (historic place). The governing body of the City failed to find that there was no feasible and prudent alternative to demolition and denied plaintiffs application for a permit.

  Plaintiff raises several issues on appeal. Among such issues are a claim that plaintiff was denied due process and that K.S.A. 75-2724 is unconstitutional. We shall consider these together.

  In support of such claim, plaintiff points out that K.S.A. 75-2724(a) authorizes the SHPO to investigate and make a determination, in whatever manner he/she might see fit, that a project would damage a historic property. No input is required from any specific party, including the landowner. No hearing of any type is required, and there is no time limit by which the SHPO must conclude an investigation and make a determination. Plaintiff contends that this determination affects a landowner's property rights because, if the SHPO determines that a project will damage a historic property, the project must come to a halt pending a further determination by the governing body. In the case at bar, plaintiff alleges that he sought, but was denied, a predetermination hearing by the SHPO.

  In addition, plaintiff argues that K.S.A. 75-2724 contains no provision for notice to a landowner proponent of a project of any scheduled or proposed hearing by the governing body to determine whether there are feasible and prudent alternatives to the project when the SHPO has determined that such project will

[14 Kan. App. 2d 366]

      damage a historic property. Plaintiff also asserts that K.S.A. 75-2724 provides no procedure that the governing body must follow other than a consideration "of all relevant factors." In the instant case, plaintiff acknowledges that he did receive a five-day notice inviting him to appear and "show cause" why the City should determine that there was no feasible and ...


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