Becker v. City of Wichita

• Decision Date: 08 May 1982
• Docket Number: No. 53373,53373
• Citation: 644 P.2d 436,231 Kan. 322
• Parties: Robert H. BECKER, Appellant, v. The CITY OF WICHITA and the Board of City Commissioners of Wichita, Kansas, Appellees, and Bernard J. ALBERTS, Gerald J. Kathol, and Robert L. Williams, Appellants, v. The CITY OF WICHITA and the Board of City Commissioners of Wichita, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 436

644 P.2d 436

231 Kan. 322

Robert H. BECKER, Appellant, v. The CITY OF WICHITA and the Board of City Commissioners of

Wichita, Kansas, Appellees,

and

Bernard J. ALBERTS, Gerald J. Kathol, and Robert L.

Williams, Appellants, v. The CITY OF WICHITA and the Board of City Commissioners of

Wichita, Kansas, Appellees.

No. 53373.

Supreme Court of Kansas.

May 8, 1982.

Syllabus by the Court

1. Special assessments are charges imposed upon property owners specially benefited by a local public improvement. The assessments are levied against property in proportion to the benefits conferred.

2. The extent to which property has received special benefits from a public improvement is a question of fact legislative or administrative in nature for determination by the authorized governing body.

3. To overcome the presumption of validity which attaches to the determination of the governing body, the property owner must show the assessment entirely disproportionate to the benefit received.

4. Valuation of land without regard to improvements is generally accepted as a method of estimating benefits to individual tracts and specifically authorized by K.S.A. 12-6a08.

5. Property owners seeking reassessment of special improvement costs for street paving or, in the alternative, an order enjoining the city from apportioning the street costs are not obligated to post a bond to secure damages that might be sustained by the city as a result of the litigation.

Gary W. Davis, of Martin, Pringle, Fair, Davis, Oliver & Triplett, Wichita, argued the cause, and William E. Dakan, Wichita, of the same firm was with him on the briefs for the appellants.

Thomas R. Powell, Wichita, argued the cause, and John Dekker, Wichita, was with him on the brief for the appellees.

SCHROEDER, Chief Justice:

The plaintiffs, as landowners, brought an action in the District Court of Sedgwick County, Kansas, seeking an order directing the defendant City of Wichita to reassess special improvement costs for street repaving within the Forest Hills Special Improvement District or, in the alternative, an order enjoining the city from apportioning costs for the street improvements within the district under City of Wichita Ordinance No. 36-697. The lower court denied both the reassessment and the injunction. Plaintiffs appeal.

The facts are stipulated. Residents of the Forest Hills Addition petitioned the city for a repaving of the street in their area in 1975, but the City Commission disapproved the petition. In 1976 the Commission approved a repaving plan and set about implementing it. Plaintiffs' single objection is to the manner in which costs were apportioned among properties within the improvement district as drawn; therefore, only the details relative to assessment are pertinent to this inquiry.

The Forest Hills Special Improvement District, a residential area in Wichita, Kansas, contains a relatively few large lots in the western portion of the district and many substantially smaller lots throughout the rest of the district. Many of the lots, both large and small, are irregularly shaped. Plaintiffs' residences are located in what we will designate as Block 1 on four of the larger lots in the western part of the district. Many of the lots in Block 1 extend through the block, abutting Linden Drive on the east and West Parkway on the west.

The total improvement cost for the district was $1,045,297.32, allocated 64.9% to the benefit district and 34.1% to the city at large. Plaintiffs do not challenge this percentage allocation. To determine the special assessment of each landowner in the district, three appraisers were appointed to determine the fair market value of the land in the improvement district without regard to improvements thereon as authorized by K.S.A. 12-6a08 which provides in pertinent part:

"The portion of the cost of any improvement to be assessed against the property in the improvement district as determined in K.S.A. 12-6a04, shall be apportioned against said property in accordance with the special benefits accruing thereto by reasons of such improvement. Said cost may be assessed equally per front foot or per square foot against all lots and pieces of land within such improvement district or assessed against such property according to the value of said lots and pieces of land therein, such value to be determined by the governing body of said city with or without regard to the buildings and improvements thereon or said cost may be determined and fixed on the basis of any other reasonable assessment plan which will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited."

For reasons which do not appear in the record, the Commission found the method used to assign values to the lots in the benefit district invalid and rejected the proposed assessments. New appraisers were appointed and their proposed assessments approved by the City Commission over objection by some landowners. The plaintiffs then challenged those assessments in the district court. As noted above, the district court ruled adversely to the plaintiffs, denying reassessment and denying an injunction against the assessment as approved. On appeal, the plaintiffs contend the assessment plan violates the legal requirement that assessments for special improvement costs be fairly and substantially related to benefits accruing to assessed properties by reason of the special improvements. By virtue of that alleged violation, plaintiffs contend the assessment constitutes arbitrary and capricious action and an abuse of discretion requiring that the assessment plan be set aside. The defendant City of Wichita raises an issue on cross-appeal, alleging the trial court erred in overruling the city's motion for an order compelling plaintiffs to post a bond with one or more sufficient sureties securing to the city damages it might sustain.

Special assessments are often challenged in the courts. As a result, we deal with a well-developed body of law in this area although much depends on the facts of the individual case.

Special assessments are charges "imposed by a local government upon the owners of property specially benefited by a 'local' public improvement." 2 Antieau, Municipal Corporation Law § 14.00 (1982). The assessments are levied against property in proportion to the benefits conferred. Davies v. City of Lawrence, 218 Kan. 551, 557-58, 545 P.2d 1115 (1976); Mullins v. City of El Dorado, 200 Kan. 336, 341, 436 P.2d 837 (1968); Gilmore, County Clerk v. Hentig, 33 Kan. 156, 167, 5 P. 781 (1885). The extent to which property has received special benefits from a public improvement is a question of fact legislative or administrative in nature for determination by the authorized governing body, in this instance the Wichita City Commission. Board of Education v. City of Topeka, 214 Kan. 811, 819, 522 P.2d 982 (1974); Mullins v. City of El Dorado, 200 Kan. at 342, 436 P.2d 837; 70 Am.Jur.2d, Special or Local Assessments § 23. That determination of benefit is presumed equitable and just and is ordinarily conclusive on the property owners and the courts. Bell v. City of Topeka, 220 Kan. 405, 420, 553 P.2d 331 (1976); Mullins v. City of El Dorado, 200 Kan. at 342, 436 P.2d 837; 70 Am.Jur.2d, Special or Local Assessments § 23. Only if it can be shown so arbitrary and capricious that assessments are entirely disproportionate to benefits received will courts grant relief. Board of Education v. City of Topeka, 214 Kan. at 819, 522 P.2d 982; Mullins v. City of El Dorado, 200 Kan. at 342, 436 P.2d 837; Giddings v. City of Pittsburg, 197 Kan. 777, 783, 421 P.2d 181 (1966); Schulenberg v. City of Reading, 196 Kan. 43, 52, 410 P.2d 324 (1966); Hurley v. Board of County Commissioners, 188 Kan. 60, 65, 360 P.2d 1110 (1961); Note, Municipal Corporations-Special Assessments-Assessment Plan Levying Special Assessments for Sidewalk Construction Against Non-Abutting Property Ruled Invalid, 25 Kan.L.Rev. 286 (1977). To overcome the presumption of validity which attaches to the determination of the governing body, the plaintiff shoulders a heavy burden. Snyder Realty Co. v. City of Overland Park, 208 Kan. 273, 276, 492 P.2d 187 (1971); Mullins v. City of El Dorado, 200 Kan. at 342, 436 P.2d 837; 70 Am.Jur.2d, Special or Local Assessments § 82.

The theory underlying the special assessment is that an owner does not pay in excess of what he receives by virtue of the...