478 P.2d 181 (Kan. 1970), 45874, Union Quarries, Inc. v. Board of County Com'rs of Johnson County

Docket Nº:45874.
Citation:478 P.2d 181, 206 Kan. 268
Party Name: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.
Case Date:December 12, 1970
Court:Supreme Court of Kansas
 
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Page 181

478 P.2d 181 (Kan. 1970)

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

December 12, 1970

Page 182

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.

[206 Kan. 269] 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

Page 183

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.

[206 Kan. 270] 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.'

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