Barclay v. Mitchum
| Citation | 186 Kan. 463,350 P.2d 1109 |
| Decision Date | 09 April 1960 |
| Docket Number | No. 41731,41731 |
| Parties | Blanche BARCLAY, Appellee, v. Paul F. MITCHUM, Mayor; Earl Swarner, Commissioner of Finance and Public Property; Joseph Regan, Commissioner of Boulevards and Parks; Board of City Commissioners of the City of Kansas City, Kansas; The City of Kansas City, Kansas; and John McDermott, Building Inspector of the City of Kansas City, Kansas, Appellants. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
1. The petition and findings of the trial court in an action seeking the rezoning of property in Kansas City wherein rezoning had been denied by both the city planning commission and the board of city commissioners, as is more fully narrated in the opinion, are examined, and it is held, the trial court did not err in its findings of fact that the decision of the board of city commissioners was arbitrary and unreasonable, and its judgment ordering rezoning is affirmed.
2. Failure to file a motion for new trial limits the scope of appellate review to the single proposition that if the petition and the findings support the trial court's judgment, it will be affirmed on appeal.
Leo J. Moroney, City Counselor, Kansas City, argued the cause, and C. W. Brenneisen, Jr., City Atty., and Joseph A. Bukaty and Francis J. Donnelly, Deputy City Attys., Kansas City, were with him on the briefs, for appellants.
Edward H. Powers, Kansas City, argued the cause and was on the briefs, for appellee.
This is an appeal by defendants, the board of city commissioners of Kansas City, from the trial court's judgment and order that the action of defendants denying plaintiff's rezoning application was unreasonable, and ordering defendants to change the zoning on the real property from 'A' single-family district to 'E' apartment district.
Summarized, the petition alleged that on March 9, 1959, appellee presented to the Kansas City planning commission her petition for change of zone of her 3.6 acres of land, situated at the southeast corner of Twenty-seventh and Farrow streets, from zoning district 'B', single family, to zoning district 'E', apartment. She had contracted to sell the land to Wendell Robbins and the change of zone would permit construction of garden type apartment buildings which would contain sixty-six dwelling units. Plans and specifications were submitted. On April 6, 1959, the commission's recommendation denying the application was transmitted to the board of city commissioners. On April 13, 1959, the board heard evidence in support of and in opposition to appellee's application. Her evidence supported her position that the failure to grant the change of zone would constitute unreasonable action by both the the commission and board for the reason that it would create a situation of discrimination against her; would result in actual damage to her; would not result in damage to adjacent owners; would constitute failure of the board to assume its obligation in providing needed housing by virtue of the Gateway Redevelopment Authority and the zone change would not cause difficulty in school or sewer facilities or deprive adjoining property owners of free and uninterrupted use thereof.
On May 12, 1959, the board denied appellee's application and under G.S.1949, 12-712, she filed this action in the trial court on the ground the board's action in denying her petition was unreasonable because it constituted direct injury, damage and loss to appellee; it constituted discrimination against her in the use and development of her property as shown during the hearing; no injury to the adjoining owners was proved and there was no showing of injury or damage to them in regard to the use of school or sewer facilities.
In addition to a general denial, the board's answer admitted the recommendation of the commission and the board's denial of the zone change for the reasons that the predominant character of the neighborhood was single-family dwellings, an apartment development would adversely affect the value of those dwellings, and the zone change would create a spot zone inconsistent with the plan in the area.
After the introduction of the testimony of a number of witnesses for both sides, and exhibits (including a map showing location of appellee's land, numerous commercial enterprises, churches, a school, the properties of the protestants and a property larger than appellee's located at Thirty-first and Farrow which had recently been rezoned in the same manner as appellee requested), the trial court voluntarily made findings of fact, in...
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Andrews v. Hand
...the findings of fact (Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233; Andrews v. Hein, 183 Kan. 751, 332 P.2d 278; Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109). Attention must be directed to another point. In the instant case, the petitioner did not prepare and file an abstract of the e......
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Houston v. Board of City Com'rs of City of Wichita
...their property 'B' while at the same time rezoning the Huff property 2 1/2 blocks away 'c.' The argument is based on Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109, where a finding of arbitrariness was upheld because of unassailed findings by the trial court that similarly situated propert......
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Moyer v. Board of County Com'rs of Lyon County
...unreasonable. (Konitz v. Board of County Commissioners, 180 Kan. 230, 236, 303 P.2d 180. The appellants rely heavily on Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109 in support of the trial court's judgment. The case is hardly a precedent for the determination of the case now before us on......
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Jack v. City of Olathe
...as was done in this case. See, e.g., Security National Bank v. City of Olathe, 225 Kan. 220, 589 P.2d 589 (1979); Barclay v. Mitchum, 186 Kan. 463, 350 P.2d 1109 (1960). However, there appear to be no cases decided at the appellate level in which monetary damages were awarded against the ci......