Union Quarries, Inc. v. Board of County Com'rs of Johnson County

• Decision Date: 12 December 1970
• Docket Number: No. 45874,45874
• Citation: 478 P.2d 181,206 Kan. 268
• Parties: UNION QUARRIES, INC., and Magdalen E. Tobin, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, and the Zoning Board of Aubry Township, Johnson County, Kansas, Appellants.
• Court: Kansas Supreme Court

Page 181

478 P.2d 181

206 Kan. 268

UNION QUARRIES, INC., and Magdalen E. Tobin, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas and the Zoning Board of Aubry Township, Johnson County, Kansas, Appellants.

No. 45874.

Supreme Court of Kansas.

Dec. 12, 1970.

Syllabus by the Court

1. A district court has jurisdiction to hear and determine de novo whether a nonconforming use has been discontinued for a particular period of time so as to effect its loss under a zoning regulation enacted pursuant to K.S.A. 19-2901 to 19-2913. Where controversy exists, an action for declaratory judgment under K.S.A. 60-1701 is a proper proceeding for such determination.

2. A property owner having the right to continue a nonconforming use is entitled to enjoin enforcement of a zoning action directed against such use.

3. Abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use.

4. Mere cessation of use does not of itself amount to abandonment although the duration of nonuse may be a factor in determining whether the nonconforming use has been abandoned.

5. The employment of modern and more effective instrumentalities, not previously used, in a nonconforming business or use does not constitute a prohibited expansion or enlargement of the business or use. However, the instrumentalities must be ordinarily and reasonably adapted to make the use in question available to the owner, and the original nature and purpose of the undertaking must remain unchanged.

6. In an action for declaratory judgment and injunctive relief by landowners asserting their continuing right to a nonconforming use of property sought to be made subject to zoning regulations terminating the use, the record is examined and held: The trial court had jurisdiction in such action to determine in a de novo inquiry whether the nonconforming use had been discontinued for a particular period of time so as to effect its loss, and its findings that such use had not been discontinued for the requisite period of time or impermissibly enlarged and expanded are supported by substantial evidence.

Marion W. Chipman, Special Asst. County Atty., argued the cause, and James W. Bouska, County Atty., and Lyndus A. Henry, County Counselor, were with him on the brief for appellants.

Robert F. Bennett, of Bennett, Lytle & Wetzler, Prairie Village, argued the cause and was on the brief for appellee Union Quarries, Inc.

David R. Gilman, Overland Park, was on the brief for appellee Magdalen E. Tobin.

HARMAN, Commissioner.

This is an action seeking declaratory judgment of property rights under zoning regulations sought to be applied to plaintiffs' property and for injunctive relief against interference with the property. Plaintiffs prevailed and defendants have appealed.

The record reveals the following: In 1949 plaintiff Magdalen E. Tobin and her husband, Patrick Tobin, acquired property near Stanley in Aubry township, Johnson county, Kansas, for use as a rock quarry. Thereafter, and until May, 1961, Mr. Tobin conducted a small rock quarrying operation on the premises, selling rock to neighboring farmers and others and to the city of Olathe. During this period Mr. Tobin would employ from one to five persons to assist him in the operation. On May 31, 1961, the Tobins leased the property for quarrying purposes to the Union Construction Company for a period of five years with option to renew for two like periods. Union carried on substantial quarrying, selling a large volume of rock, until October, 1963, at which time it removed its quarrying and crushing equipment from the premises. It left thereon a highloader and about 20,000 tons of crushed rock. It had other quarrying locations where it used its portable quarrying and crushing equipment as the demand for rock required. Mr. Tobin died January 5, 1965. On May 18, 1965, Mrs. Tobin commenced an action against Union in the Johnson county district court for cancellation of the lease on the ground of abandonment. This suit was dismissed with prejudice on August 15, 1965. On January 1, 1966, Union Construction assigned its interest in the lease to plaintiff Union Quarries, Inc., who in turn subleased to J. A. Tobin Construction Company, which immediately commenced to quarry rock in larger volume and intensity than had been initially conducted on the premises.

In 1959 Aubrey township enacted certain zoning regulations which were approved by the Board of County Commissioners of Johnson county. These regulations provided for three separate use districts: Residence, retail business and light industrial, and heavy industrial. The Tobin property was in a residential area. The business of rock quarrying was designated under retail business and light industrial. Section 13 of these regulations recognized their inapplicability to nonconforming uses then in existence and contained this further proviso:

'When a non-conforming use itself has been discontinued for a period of six months, it shall not be restablished and future use shall be in conformity with the provisions of this enactment notwithstanding the purpose for which the premises were erected or used.'

On April 16, 1966, the zoning board of Aubry township adopted a resolution finding the Tobin property was zoned for residential use and that its nonconforming use as a rock quarry had been lost. The board further found such use was in violation of its zoning regulations and it requested the Johnson county board of commissioners to take appropriate action to enforce the zoning regulations and prevent continuation of a rock quarrying business on the property. On April 20, 1966, plaintiffs appealed from the township board action to the Johnson county board of commissioners.

On June 16, 1966, the board of county commissioners conducted a hearing on the matter. Plaintiffs received due notice of and appeared at this hearing. A stenographic record of the proceedings was kept. The board found that plaintiffs had lost the nonconforming use by discontinuance thereof for a period of mor than six months, and that their property was being used in violation of the township's zoning regulations. Plaintiffs then commenced this suit.

The trial court held a full de novo hearing. Its ultimate findings and conclusions on contested issues were that Aubry township was empowered by statute to enact Section 13 of its zoning regulations; that the board of county commissioners, as an administrative body, was not authorized to make a binding decision that a nonconforming use had been lost by discontinuance; the trial court's jurisdiction was not limited to a review of the evidence presented to the board of county commissioners to determine whether the board's action was reasonable; under the provisions of K.S.A 19-2912 the board has authority to maintain suits in a court of competent jurisdiction to enforce zoning regulations and to abate nuisances maintained in violation thereof and its remedy for determination of the loss of nonconforming use was by filing such a suit; and that the provisions of our declaratory judgmnt act (K.S.A. 60-1701) authorize plaintiffs to bring the type of action they filed. The court further found plaintiffs had not discontinued the nonconforming use so as to lose it; that they had not unlawfully enlarged or extended it, and the court rendered judgment accordingly. The court did enjoin operation of an asphalt plant which had at one time been in use on the premises after they had been zoned.

Defendants have appealed from the judgment adverse to them. Plaintiffs have cross-appealed from the ruling that Aubry township had authority to enact the quoted proviso in Section 13 of its zoning regulations. We first consider defendants' appeal.

Our legislature has enacted three separate sets of statutes authorizing counties to zone (see Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P.2d 798). The parties here agree the zoning action in question was undertaken pursuant to and must be governed by the provisions of K.S.A. 19-2901 to 19-2913 inclusive. This set of statutes contains no provision for amortization of nonconforming uses as does that which was the subject of consideration in Spurgeon; however, for purposes of discussion at this point, we assume, without deciding, that the zoning body here had authority to enact regulations providing for the voluntary loss by the owner of a nonconforming use, such as contained in Section 13.

Appellants contend the board of county commisioners has the power to hear evidence and to make determinations as to whether a nonconforming use has been altered, discontinued, abandoned or enlarged upon, subject only to review by the district court under K.S.A. 19-2913. They cite the familiar rule that upon such review the court may not substitute its judgment for that of the administrative agency but is limited to determining whether the action was reasonable and lawful. They assert the only issue before the trial court was the reasonableness of the board's order declaring loss of the nonconforming use and that to hold otherwise would result in the trial court becoming the zoning body. They argue the trial court had no power beyond that authorized by 19-2913.

Appellees, on the oither hand, assert that whether a nonconforming use has been discontinued, abandoned or enlarged upon is a judicial question reserved for determination by a court of law and not by an administrative body; that there is no statutory procedure prescribed for determination of the existence or nonexistance of a nonconforming use and the only way zoning bodies may challenge the maintenance of an alleged violation of zoning orders in such an instance is by bringing an action under K.S.A. 19-2912 in which event the court would make de...