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Friends of Bethany Place, Inc. v. City of Topeka

Supreme Court of Kansas

August 23, 2013

FRIENDS OF BETHANY PLACE, INC., Appellee,
v.
CITY OF TOPEKA, Appellant, and GRACE CATHEDRAL and THE EPISCOPAL DIOCESE OF KANSAS, INC., Intervenors/Appellants

Page 1256

[Copyrighted Material Omitted]

Page 1257

Review of the judgment of the Court of Appeals in 43 Kan.App.2d 182, 222 P.3d 535 (2010).

Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge.

SYLLABUS

BY THE COURT

1. Standing is a jurisdictional issue. An objection based on lack of subject matter jurisdiction may be raised at any time, whether it is for the first time on appeal or even upon the appellate court's own motion. The existence of jurisdiction and standing are both questions of law over which an appellate court's scope of review is unlimited.

2. To have standing, a party must satisfy any statutory standing requirements and meet the traditional tests for standing.

3. By enacting the Historic Preservation Act, the legislature declared that it is this state's policy 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. K.S.A. 75-2715.

4. K.S.A. 2012 Supp. 75-2724(b) authorizes any person aggrieved by the determination of a governing body under K.S.A. 2012 Supp. 75-2724(a) to seek the district court's review under K.S.A. 60-2101.

5. The term " person aggrieved" as used in K.S.A. 2012 Supp. 75-2724(b) may include residents or property owners within 500 feet of a historic property depending upon the factual circumstances in a particular case.

6. An association has standing to sue on behalf of its members when (a) the members have standing to sue individually; (b) the interests the association seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires participation of individual members.

7. Under K.S.A. 60-2101(d), a district court's scope of review is limited to determining: (a) if the political subdivision's decision fell within the scope of its authority; (b) was supported by substantial competent evidence; or (c) was fraudulent, arbitrary, or capricious.

8. In reviewing a governing body's determination under K.S.A. 2012 Supp. 75-2724(a) that there are no feasible and prudent alternatives to a proposed project which might affect historic property and that the project program includes all possible planning to minimize harm to such historic property, the ultimate question for appellate review is whether the governing body took a hard look at all relevant factors and based its determination upon the evidence using plain common sense.

9. Under K.S.A. 2012 Supp. 75-2724(a) the governing body is required to determine whether any alternatives are feasible and prudent and if all possible planning has been done to minimize harm resulting from the proposed project. This carries with it the obligation to obtain the information necessary to make that determination.

10. The Court of Appeals' analysis in Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990), placing the burden of proof on the project proponents as to all relevant factors to be considered by the governing body is rejected and overruled.

Shelly T. Starr, assistant city attorney, argued the cause, and Eric B. Smith, assistant city attorney, Mary Beth Murdock, chief of litigation, and Jackie Williams, city attorney, were on the briefs for appellant City of Topeka.

Nathan D. Leadstrom, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, argued the cause, and H. Philip Elwood, of the same firm, was with him on the briefs for intervenors/appellants Grace Cathedral and The Episcopal Diocese of Kansas, Inc.

Pedro L. Irigonegaray, of Irigonegaray & Associates, of Topeka, argued the cause, and Shelley Hickman Clark, of University of Kansas School of Law, of Lawrence, was with him on the briefs for appellee Friends of Bethany Place, Inc.

Sandra Jacquot, general counsel, and Donald L. Moler, Jr., executive director, of League of Kansas Municipalities, of Topeka, were on the brief for amicus curiae League of Kansas Municipalities.

Derenda J. Mitchell and Michael J. Smith, assistant attorneys general, and Steve Six, attorney general, were on the brief for amicus curiae Kansas State Historical Society.

BILES, J. NUSS, C.J., not participating. TIMOTHY G. LAHEY, District Judge, assigned. [1] LAHEY, J., dissenting.

OPINION

Page 1258

[297 Kan. 1114] Biles, J.

The Topeka City Council granted Grace Episcopal Cathedral and The Episcopal Diocese of Kansas, Inc. (the Church) a building permit for a parking lot on Bethany Place, a registered state historic site owned by the Church, despite complaints that the construction would adversely impact that historic site. As a matter of first impression, we must determine who is obligated under the Historic Preservation Act, K.S.A. 75-2715 et seq., to establish that (1) there are no feasible and prudent alternatives to the project and (2) the project program includes all possible planning to minimize harm to the historic property as required by K.S.A. 2012 Supp. 75-2724(a)(1).

We hold that the governing body--in this case the Council--must make those determinations and that it failed in its statutory responsibility to obtain the information necessary to discharge its duties. We hold further that the Council did not take what the caselaw characterizes as a " hard look" at all relevant factors that must be reviewed before authorizing a project that encroaches upon, damages, or destroys historic property. And because the proceedings below did not follow this rubric, we reverse and remand for a rehearing after the Council makes the proper inquiries. We also reject and overrule the Court of Appeals' analysis in

Page 1259

Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990), which purports to place the burden of proof in these matters on the project's proponent.

Factual and Procedural Background

The Church owns land known as Bethany Place at 833-835 Polk [297 Kan. 1115] in Topeka. The site is included on the Register of Historic Kansas Places, which is a designation that shields Bethany Place from further development unless the statutory protections within the Historic Preservation Act are satisfied. The Church's cathedral building and current 89-space parking lot are adjacent to Bethany Place but are not considered part of the historic site. The property is in a residential neighborhood next to Topeka High School.

In 2007, the Church requested a city building permit for a parking lot on Bethany Place along Polk Street. The proposed project includes 10 handicap and 33 standard parking stalls. A Church representative testified at a Council hearing that the Church was " critically short of disabled access space" and estimated its true parking needs at 194 spaces. The work proposed included not only the removal of trees and shrubs, but also the laying of a parking lot across what was formerly some of the historic site's green space.

As required by K.S.A. 2012 Supp. 75-2724(a), the State Historic Preservation Officer (SHPO) was notified of the permit request and given an opportunity to investigate and comment. In the SHPO's first letter to the Topeka Planning Department, the SHPO concluded the parking lot would encroach upon, damage, or destroy the Bethany Place site and noted further that the project would " require the demolition of several historic trees that characterize the property." The SHPO concluded the construction " drastically changes the relationship between the two historic buildings on the site with the public street of Polk." The SHPO recommended altering the project to take advantage of the City of Topeka's right-of-way by designing parking stalls directly adjacent to Polk Street and possibly 8th Street if needed.

The day after receiving the SHPO's letter, the Topeka Planning Department submitted its own letter recommending that the Council deny the building permit " in light of alternative and feasible alternatives that will not encroach upon or damage the listed property." The Planning Department cited the SHPO's determination that the parking lot would encroach on Bethany Place and also the Topeka Traffic Engineering Division's determination that " angled 'cut-back' parking along S.W. Polk Street, adjacent to the Bethany Place property[,] would be a feasible alternative to the [297 Kan. 1116] proposed parking lot." Notably, the Planning Department's letter contained no additional information detailing economic, technical, or design issues related to its recommendation to add angled cutback parking. See K.A.R. 118-3-1(e) (listing factors to consider when determining whether there are feasible and prudent alternatives). The appellate record does not contain a report from the Traffic Engineering Division.

The Church asked the SHPO to reconsider its findings. It also attacked those findings and requested that the Council issue the permit anyway. The matter was scheduled for hearing at an August Council meeting.

In a second letter to the Planning Department prompted by the request for reconsideration, the SHPO provided a more detailed analysis and reached the same conclusion that the proposed project would encroach upon, damage, or destroy Bethany Place. But the Planning Department staff decided not to forward this second SHPO letter to the Council, although some of its contents were referred to during the hearing.

One day before the hearing, a nonprofit organization, Friends of Bethany Place, Inc. (FOB), was formed to oppose the project.

The City Council Hearing

In preparation for the scheduled hearing, City personnel submitted to the Council: (1) the Topeka Planning Department's letter; (2) the SHPO's first letter; and (3) an e-mail from the City forester describing trees that would need to be removed. A City representative did not address the Council at the hearing.

Page 1260

The Church submitted the following additional documents: (1) a description of the buildings on Bethany Place; (2) the Church's 1983 plans for a conference center on Bethany Place, which was never built due to funding issues, along with a letter written at the time from the SHPO approving that project; (3) an engineering report comparing the cost of 40 parking spaces made from asphaltic concrete with the cost if made of Portland concrete; and (4) an engineering report describing the total area owned by the Church and the percentage to be occupied by the proposed parking lot.

[297 Kan. 1117] FOB submitted: (1) a petition containing 95 electronic signatures predominately from persons opposed to the project; (2) documents explaining Bethany Place's historical significance; (3) a copy of statutes from the Historic Preservation Act; (4) the Topeka Historic Old Town Neighborhood Plan, which emphasized promoting the neighborhood's historic character; (5) a document entitled " alternative parking lot sites" containing an aerial photograph of the Church grounds with three notes suggesting the use of vacant lots on 8th Street and angled cut-back parking along 8th and Polk Streets; and (6) letters urging the permit's denial.

A letter by FOB to the Council represented that the Topeka Landmarks Commission, created by Topeka Municipal Code Ordinance 2.60.010 to advise the Council on local historical assets, concluded " there are alternative feasible options." But again, there is no direct evidence in the record that the Topeka Landmarks Commission provided any information to the Council establishing what these alternatives were or what information the commission had that might demonstrate their feasibility.

In addition to the angled cut-back parking along Polk Street recommended by the City's Traffic Engineering Division and Planning Department, FOB advocated expanding handicap parking in the existing west lot and adding parking spaces directly east of the Church, with care given to existing trees. FOB also recommended reconfiguring an existing lot to create five additional accessible parking spots, expanding parking along 8th and Polk Streets, where the Church currently had a circle drive, and converting two nearby vacant Church-owned lots for parking.

Another letter opposing the project was submitted by the former president of the Shawnee County Historical Society, which described how the City developed a neighborhood plan emphasizing a need for green space. This letter referenced a previous Council determination denying a construction permit for parking just east of Grace Cathedral on 8th Street because it contradicted the neighborhood plan. The only additional alternative from those already described was a suggestion to convert the Church's current surface parking lot into a parking garage. Church representatives presented reasons why they did not believe any suggested alternative was [297 Kan. 1118] feasible or prudent and argued that all possible planning had been done to minimize harm to Bethany Place.

The proposed permit was hotly disputed during the hearing. Hearing testimony is summarized at length in the Court of Appeals decision, Friends of Bethany Place v. City of Topeka, 43 Kan.App.2d 182, 187-93, 222 P.3d 535 (2010). When the testimony concluded, the Council unanimously passed the following motion, as stated by a Councilmember:

" I'd like to make a motion to approve the communication to override the recommendation of the [SHPO] and issue the parking lot permit.
" I base this on the City Council's consideration of all relevant factors, that there are no feasible and prudent alternatives of the proposal, and that all possible planning has been undertaken to minimize harm to the historic property."

The next day, FOB appealed to the district court under K.S.A. 2012 Supp. 75-2724 and K.S.A. 60-2101(d).

District Court Proceedings

The City filed a motion to dismiss FOB's appeal, arguing the organization lacked standing. FOB opposed the motion, arguing it was a " person aggrieved" by the Council's determination under the terminology stated in K.S.A. 2012 Supp. 75-2724 and, therefore,

Page 1261

entitled to seek judicial review of the Council's decision. FOB attached numerous affidavits from members claiming either an economic or aesthetic interest in the historic property.

The district court found FOB had standing to appeal the decision to issue the permit. It held that the Historic Preservation Act's broad preamble of legislative purpose stated in K.S.A. 2012 Supp. 75-2715 and the Act's provisions enabling the SHPO to hold a public meeting on the project suggested there was an " obviously apparent" local purpose to the statutory requirements. Construing the term " person aggrieved," the district court further held that the Act created a special category of " justiciable" interest that expanded upon traditional standing requirements that a person have a pecuniary or personal interest to bring an appeal. It also noted historic preservationists generally might be the only public oversight to the governmental process authorizing construction at historic locations.

[297 Kan. 1119] As to the merits, the district court defined the issues as: (1) whether the Council's ruling was legally adequate to support judicial review; (2) whether the record supported the Council's decision; and (3) whether the decision was limited or tainted by the format or evidentiary considerations or limitations, including any legal misperceptions as to the Council's authority and scope of review or those that might arise because the permit applicants were religious entities. It reversed the Council's decision and ordered the parking lot permit set aside.

The district court also held the record was insufficient to support the Council's findings that there were no feasible and prudent alternatives to the project and that all possible planning to minimize harm had been undertaken. The district court noted the Council appeared to consider proposed alternatives individually instead of examining whether several alternatives could be combined to satisfy the Church's parking needs. Therefore, the district court concluded the Council's decision did not satisfy the " hard look" test required by this court in Reiter v. City of Beloit, 263 Kan. 74, 94, 947 P.2d 425 (1997) (" [T]he ultimate question for appellate review [under K.S.A. 75-2724] is whether the governing body took a hard look at all relevant factors and, using plain common sense, based its determination upon the evidence." ). The City and Church appealed the district court's decision.

The Court of Appeals Decision

The Court of Appeals panel first addressed FOB's standing and unanimously agreed with the district court that the organization could pursue the appeal on its members' behalf. Friends of Bethany Place, 43 Kan.App.2d at 201. The panel based its holding on this court's decision in Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, Syl. ¶ 7, 189 P.3d 494 (2008) (An association has standing to sue on behalf of its members when: [1] the members have standing to sue individually; [2] the interest the association seeks to protect are germane to its purpose; and [3] neither the claim asserted nor the relief requested requires individual member participation.). The panel determined from the record that at least two FOB members had individual standing to [297 Kan. 1120] pursue an appeal based on their claims of injury to their properties, which were in close proximity to the project, as a result of the claimed lost historic and aesthetic value of Bethany Place. The panel noted these injuries were particularized to those individuals based on the facts and circumstances and were not injuries simply shared by all other Topeka citizens. It then found FOB's organizational purpose was to maintain Bethany Place in its present form, which was an interest compatible with the claimed injuries of FOB members and the relief sought. 43 Kan.App.2d at 200-01. But on the merits, the panel was divided as to whether the Council's decision was lawful.

The panel majority agreed with the Church and City, reversed the district court, and upheld the permit's issuance. It held none of the proposed alternatives needed to be considered by the Council as relevant factors because there was insufficient evidence to characterize them as anything more than mere suggestions. 43 Kan.App.2d at 209. And based on that decision, the majority held there was substantial

Page 1262

evidence supporting the Council's decision that there were no reasonable and prudent alternatives and that all possible planning to minimize harm had been undertaken. 43 Kan.App.2d at 209-10. The panel majority further concluded the district court improperly reweighed the evidence in order to find the evidence insufficient. 43 Kan.App.2d at 210-11.

Judge Richard Greene dissented, arguing the majority oversimplified the analysis when it held there was substantial supporting evidence and failed to determine whether the Council acted arbitrarily or capriciously. 43 Kan.App.2d at 220. He concluded that the majority's standard was too high for determining whether alternatives presented by project opponents were sufficient to warrant consideration and shifted the burden of proving there were no acceptable alternatives from the project proponent to the opponents. Judge Greene also argued the Council's permit authorization was arbitrary, capricious, and unreasonable. 43 Kan.App.2d at 221-26.

FOB petitioned this court for review, arguing in part that the majority erred in finding the district court reweighed evidence and that there was substantial evidence supporting the Council's determination. [297 Kan. 1121] Neither the Church nor the City pursued a cross-petition for review; but, in its response brief to FOB's petition, the ...


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