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
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.
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
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.
"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
"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
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 ...