Appeal of City of Lenexa to Decision of Bd. of County Com'rs of Johnson County, 54422

• Decision Date: 14 January 1983
• Docket Number: No. 54422,54422
• Citation: 657 P.2d 47,232 Kan. 568
• Parties: In re the Appeal of the CITY OF LENEXA TO the DECISION OF the BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Denying a Petition to Annex Certain Lands, Pursuant to K.S.A. 12-521.
• Court: Kansas Supreme Court

Page 47

657 P.2d 47

232 Kan. 568

In re the Appeal of the CITY OF LENEXA TO the DECISION OF the BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Denying a Petition to Annex Certain Lands, Pursuant to K.S.A. 12-521.

No. 54422.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

1. In carrying out its functions under K.S.A. 12-521, a board of county commissioners has two roles: When it determines the advisability of an annexation, it acts in a legislative capacity, but when it determines whether the annexation will cause manifest injury to landowners, it acts in a quasi-judicial capacity.

2. In reviewing a determination of advisability, made by a board of county commissioners in an annexation proceeding under K.S.A. 12-521, the duty of the district court and of an appellate court is limited to a determination of whether the board has the statutory authority to enter the order which it made.

3. The wisdom, propriety, necessity or advisability of annexing territory to cities is not a matter for consideration by the courts.

4. When a district court is called upon to review a quasi-judicial determination by a board of county commissioners, the reviewing court is limited to considering whether, as a matter of law, (1) the board acted fraudulently, arbitrarily, or capriciously, (2) the board's order is supported by substantial evidence, and (3) the board's action is within the scope of its authority.

5. In reviewing the judgment of a district court which has reviewed a quasi-judicial determination of a board of county commissioners, an appellate court must first determine whether the district court observed the requirements and restrictions placed upon it, and then make the same review of the board's action as does the district court.

6. The doctrine of prior jurisdiction, simply stated, is that a city which takes the first valid step toward annexation of territory has priority over any other city which later seeks to annex the same or a part of the same territory, as long as the original proceeding is pending. Once the proceeding is terminated adversely to the first city, however, the priority which accompanied the original valid proceeding vanishes.

7. The "fairly debatable" rule, adopted in some jurisdictions to guide courts which are called upon to review annexation proceedings, has no application in this state.

8. A board of county commissioners, in making a determination of the advisability of annexation pursuant to K.S.A. 12-521, has a duty to see that the rights of the public are protected; it is not obligated to defer to a city's determination of the same issue.

9. The term "manifest injury," as used in K.S.A. 12-521, implies the imposition of material or substantial burdens upon landowners within territory sought to be annexed, without accompanying material or compensating benefits.

10. Substantial evidence is that which possesses relevance and substance and which furnishes a substantial basis of fact from which an issue can reasonably be resolved.

11. Specific findings of fact by an administrative agency are desirable in contested matters, but are not indispensable to a valid decision in the absence of a statute or rule requiring them. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. p 9, 539 P.2d 1 (1975).

12. Ordinarily, an issue not raised in or presented to the trial court cannot be raised on appeal.

13. The command of the Fourteenth Amendment to the Constitution of the United States that a State shall not deprive any person of property without due process of law has no application to the annexation of territory to a municipality.

Richard W. Byrum, of Schnider, Shamberg & May, Chartered, Shawnee Mission, and Robert H. Freilich, of University of Missouri-Kansas City, Mo., argued the cause and were on brief, for appellant City of Lenexa.

Bruce F. Landeck, Asst. County Counselor, Overland Park, argued the cause and Lyndus A. Henry, County Counselor, and Philip S. Harness, Asst. County Counselor, Olathe, were with him on brief, for appellee Bd. of County Com'rs of Johnson County, Kansas.

John Anderson, Jr., Overland Park, argued the cause and was on brief, for appellee John Anderson, Jr.

Byron J. Beck, of Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, argued the cause and was on brief, for appellee Byron J. Beck.

Leonard A. Hall, Asst. Municipal Counsel, and Thomas A. Glinstra, Municipal Counsel, Olathe, were on brief, for intervenor City of Olathe, Kansas.

MILLER, Justice:

This is an appeal by the City of Lenexa from the denial of its petition to annex an area of approximately twenty square miles lying to the west of its present city limits. Lenexa's petition for permission to annex the territory was filed with the Board of County Commissioners of Johnson County pursuant to K.S.A. 12-521. After a hearing, the Board denied the petition. Lenexa appealed to the District Court of Johnson County. The court approved the Board's denial of the proposed annexation. Lenexa then appealed the matter to the Court of Appeals, and we transferred the case to this court. Many issues are raised. We will separately state and discuss them later in this opinion.

The parties appearing in this court are the City of Lenexa, appellant, the Board of County Commissioners and landowners John Anderson, Jr., and Byron J. Beck, appellees, and the intervenor, City of Olathe, appellee.

The facts giving rise to this appeal were before us in an interlocutory appeal, Board of Johnson County Comm'rs v. City of Lenexa, 230 Kan. 632, 640 P.2d 1212 (1982), where we held that the Board was a proper party to the pending appeal before the district court. We remanded, with directions to permit the Board to participate in further proceedings in the district court. The case has now been heard and fully decided below. Rather than restate the background facts, we repeat Justice Prager's succinct summary of the facts from our earlier opinion "On July 2, 1979, the city of Lenexa filed with the Board of County Commissioners of Johnson County a petition for authority to annex to the western limits of the city 12,800 acres of unincorporated territory covering an area of approximately 20 square miles. The petition was filed pursuant to K.S.A. 12-521. A notice of the time and place of the public hearing was published pursuant to the statute. There is no dispute that the city of Lenexa substantially complied with the requirements of K.S.A. 12-521 in all matters of procedure. The board held a public hearing on the petition on September 4, 1979.

"On September 19, 1979, the board denied Lenexa's petition for annexation. In its order, the board commented on its review of certain standards and factors, including but not limited to:

"(1) Population density per square mile of the territory proposed to be annexed;

"(2) future growth patterns of the area and the capability of planning thereof;

"(3) drainage basins and concern for storm and sanitary sewers;

"(4) conditions of roads;

"(5) degree of platted and unplatted lands;

"(6) extent of residential, business, commercial, and industrial development and other aspects of economic interaction;

"(7) the urban or rural nature of the area;

"(8) the effect of city expenses upon the area;

"(9) the ability or inability to supply within a reasonable time for the extension of city service;

"(10) the probability of consent annexations and other statutory annexations in the future; and

"(11) the exhibits, maps, briefs, and documentation presented. The board in its order further found that the proposed territory sought to be annexed by Lenexa was under the planning jurisdictions of certain township zoning boards and Johnson County through the Johnson County Planning Commission; further that the proposed territory was within the corporate shadow of the cities of Lenexa and Olathe; further, that other annexation statutes (K.S.A. 12-520, 12-520a, 12-520b and 12-520c) provided the city of Lenexa adequate opportunity to proceed with orderly municipal growth as future residential, commercial, and industrial demands unfold and, further, that present zoning safeguards will be maintained so that the future of the municipalities and the county interests will not be jeopardized.

"The board specifically found and concluded that the granting of Lenexa's petition would result in obvious impairment to the real estate involved in that the landowners would not share within a reasonable time the municipal services and benefits now afforded to the landowners in other portions of the municipality upon a footing of substantial equality, and that the granting of Lenexa's petition would cause and result in manifest injury to the landowners of the proposed area sought to be annexed." 230 Kan. at 632-34, 640 P.2d 1212.

The district judge filed a memorandum decision in which he made extensive findings of fact and conclusions of law. His factual findings parallel the facts stated above, but also include the following:

"Apart from three small areas of residential development ... substantially all of the 20 square miles is agricultural in use and is so zoned.

"At the public hearing [before the Board] on September 4, 1979 a great crowd of landowners in the area attended and protested the annexation. Representatives of the City of Olathe attended and protested the annexation for the reason the proposed area included land already annexed by the City of Olathe, and for the further reason the annexation would annex all the unincorporated land lying North of Olathe and adjoining the City of Olathe....

"The Mayor of Olathe denominated the proceedings an annexation war between the cities.

"In the presentation made by the officials of the City of Lenexa, it was stated that the 20 square mile area was divided by Mill Creek and the Santa Fe Railroad running North and South through the tract and that only as to the easterly half of the tract was Lenexa realistically...