Arkenberg v. City of Topeka

• Decision Date: 10 December 1966
• Docket Number: No. 44563,44563
• Citation: 421 P.2d 213,197 Kan. 731
• Parties: John H. ARKENBERG et al., Appellants, v. The CITY OF TOPEKA, Kansas, a municipal corporation, the Mayor and Board of Commissioners of the City of Topeka, Kansas, the Topeka-Shawnee County Regional Planning Commission, and First Christian Church, a not-for-profit corporation, Appellees.
• Court: Kansas Supreme Court

Page 213

421 P.2d 213

197 Kan. 731

John H. ARKENBERG et al., Appellants, v. The CITY OF TOPEKA, Kansas, a municipal corporation, the

Mayor and Board of Commissioners of the City of Topeka,

Kansas, the Topeka-Shawnee County Regional Planning

Commission, and First Christian Church, a not-for-profit

corporation, Appellees.

No. 44563.

Supreme Court of Kansas.

Dec. 10, 1966.

Syllabus by the Court

In a suit to enjoin enforcement of a city ordinance granting a change in zoning, the record of trial is examined and it is held, the action of the zoning authorities was lawful and reasonable and the trial court did not err in entering summary judgment in their behalf.

Robert S. Johnson, Topeka, argued the cause, and Beryl R. Johnson, Topeka, was with him on the brief for appellants.

Donald S. Simons, Topeka, argued the cause, and John W. Lewis, Topeka, was with him on the brief for appellee City of Topeka, the mayor and board of commissioners of City of Topeka, and Topeka-Shawnee County regional planning commission.

David H. Fisher, Topeka, argued the cause, and Donald Patterson, C. K. Sayler, and Edwin D. Smith, Topeka, were with him on the brief for appellee First Christian Church.

HARMAN, Commissioner.

This as an appeal by plaintiff John H. Arkenberg from an adverse judgment in an injunction action arising out of a zoning controversy. At issue are the legality and reasonableness of a rezoning order.

The First Christian Church of Topeka, Kansas, owns an unplatted tract of ground about four blocks square in the southwest part of Topeka bounded by West Eighteenth Street, Stone Avenue, West Nineteenth Street, and Gage Boulevard. It purchased this property following the destruction by fire of its near downtown church building. Prior to this controversy it had erected some structures for church school purposes on the tract and it contemplates eventual construction thereon of a permanent church santuary and youth building. For zoning purposes the property has been classified 'A' single family dwelling. Under the zoning regulations of the city of Topeka churches are permitted to build upon property so classified.

On October 29, 1964, the church filed its application with the Topeka-Shawnee County Regional Planning Commission seeking a change in the zoning classification on a part of this property from 'A' single family dwelling to 'E' multiple dwelling high rise. The application was numbered by the commission Z 64-71. The particular property on which the change was sought was a tract 126 feet wide along the entire east side of the tract. Justification for the requested change was the contemplated construction of a thirteen-story 145 unit apartment building to provide low cost living quarters for senior citizens, the same to be financed through the Community Facilities Administration and operated by a separate nonprofit corporation directed by officers of the church. The planning commission gave due notice of the application and hearing thereon which was set for December 18, 1964. A hearing was had before the planning commission and approximately fourteen persons who were owners of homes within the neighborhood appeared in protest. This group included plaintiff and one of his attorneys who is likewise such an owner. Various objections were raised and considered, the principal one being based on increased traffic. At the hearing one of the members of the planning commission, an architect, questioned the suitability of the particular location which had been chosen for the apartment building as compared with other sites on the four block tract. By a vote of seven to zero, with one abstention, the planning commission voted to disapprove the requested change because of the 'facts found under Unique Conditions,' which were stated as follows:

'1. This request is in conflict with the Preliminary Land Use Plan and Preliminary Zoning Regulations.

'2. Approval of this request would promote the placing of an intense multiple dwelling in a single family dwelling area.

'3. However, there are several nonresidential uses within the immediate area.

'4. It appears that the parking lot is intended to serve both the church and proposed apartment.

'5. 'E-1' Multiple could logically be permitted within this immediate area, however, it appears based upon the site plan as submitted that an extreme intensity of land use would occur.

'6. The most significant problem is that of the required yards relationship to the existing development.

'7. It would appear that a relocation of the proposed structure on the site in question could resolve or reduce any inherent objections.

'8. Building relocation would also tend to reduce the existing traffic problem within the immediate area.

'9. An additional 10 of R.O.W. for Gage Blvd. is required to satisfy additional intensity on the property in question.'

The planning commission forwarded the application to the board of commissioners of the city of Topeka for final disposition.

On January 12, 1965, the matter came on for hearing before the city commission. A protest petition signed by owners of more than twenty per cent of the land within two hundred feet of the area proposed to be altered, as authorized by K.S.A. 12-708, was presented. At this hearing the church requested that action be delayed for the reason it was considering changing the location and reducing the size of the proposed building. Two protestors, including counsel for plaintiff, objected to action being taken on any change in the application which had not been before the planning commission. Upon request of the church the city commission then referred the matter back to the planning commission for further study in view of the proposed changes. By letter dated January 26, 1965, the church amended its application to provide for the construction of a 135 unit apartment building not to exceed ten stories in height located on a tract approximately 350 feet in length along West Eighteenth Street and 175 feet wide on Gage Boulevard, thus being in the northwest portion of the entire tract. The letter included a request for a permit for a parking lot adjoining the building area on the east. The planning commission treated this letter as an amendment to the original application assigning it the number Z 64-71A.

Due notice of hearing on the amended application was again given, including notice to owners whose property was not in the protest area of the first proposed site, and a second hearing had on February 19, 1965. The church expressed its willingness to convey to the city an easement for parking purposes consisting of a ten foot strip of land along Gage Boulevard between Eighteenth and Nineteenth Streets. Protest was again made by nine property owners appearing at this hearing, including plaintiff and his attorney, based on the fact the application was being acted upon a second time contrary to city ordinance, and that increased traffic, deprivation of light and air, and spot zoning would result. The application to rezone was unanimously approved by the planning commission and forwarded again to the city commission for final disposition. On March 16, 1965, the city commission held another hearing upon the matter, both proponents and opponents appearing although no formal protest petition was filed; the commission unanimously approved the application and an ordinance was duly enacted rezoning the property as requested.

Thereafter plaintiff John H. Arkenberg filed this action against the zoning authorities and the First Christian Church requesting that the authorities be enjoined from changing the zoning classification and issuing a building permit for the proposed construction of the apartment building. Plaintiff alleged in his petition he brought the action for himself as an owner of property in the area and for the benefit of other persons similarly situated. Through answers by plaintiff to interrogatories these others are disclosed to be eleven owners of property in the neighborhood, six of whom are within the statutory protest area of 200 feet. Plaintiff recited the history of the proceedings together with his contentions as to the adverse effect of the rezoning, and further that the property surrounding the Christian Church property was primarily devoted to family homes with several churches and elementary schools nearby; he alleged that the action of the zoning authorities in permitting the rezoning was unlawful, arbitrary and capricious.

Defendants answered attaching thereto copies of a transcript of the entire proceedings before the planning commission and the city commission together with all exhibits, site plans and orders made with respect thereto. They alleged that the action taken was lawful and reasonable. Thereafter each side of the lawsuit propounded interrogatories to the other and the Christian Church made request of plaintiff for admissions of fact, to all of which responses were made. Upon this state of the record each side moved the court for summary judgment, each stating the record disclosed there was no fact in dispute in the action which was material to a disposition thereof. These motions were extensively briefed and argued before the trial court and on July 1, 1965, that of the defendants was sustained and judgment rendered for them. Plaintiff appeals from that judgment.

We...