Davis v. City of Leavenworth, 63277

• Decision Date: 07 December 1990
• Docket Number: No. 63277,63277
• Citation: 247 Kan. 486,802 P.2d 494
• Parties: Clifford F. DAVIS and Iva L. Davis, Appellees, v. CITY OF LEAVENWORTH, Kansas, Appellant, and Greenamyre Rentals, Inc., Defendant.
• Court: Kansas Supreme Court

Page 494

802 P.2d 494

247 Kan. 486

Clifford F. DAVIS and Iva L. Davis, Appellees, v. CITY OF LEAVENWORTH, Kansas, Appellant, and Greenamyre Rentals, Inc., Defendant.

No. 63277.

Supreme Court of Kansas.

Dec. 7, 1990.

Syllabus by the Court

1. Under the facts of this case, a city zoning ordinance requiring that the Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), factors be given consideration when taking action on an application for a specific tract rezoning ordinance is determined to have been complied with.

2. The Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), factors were meant to aid both cities and the courts in addressing zoning decisions and are not to be rigidly applied as the only basis for zoning determinations.

3. The record is reviewed and found adequate to enable the trial court to make a reasonableness determination under K.S.A. 12-712.

4. If, in the view of the trial court, a city's or county's finding of fact and conclusions of law are deficient under Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), and inadequate for a "reasonableness" determination, the trial court may, a in exercising its discretion, select the alternative of remanding the case to the local governing authority for further findings and conclusions. (Modifying Landau v. City Council of Overland Park, 244 Kan. 257, Syl. p 9, 767 P.2d 1290 [1989].)

5. This court has inherent authority to summarily dispose of a matter on its own motion where: (1) no genuine issue as to any material fact remains, and (2) giving the benefit of all reasonable inferences drawn from the evidence, the judgment must be for one of the parties as a matter of law.

6. Rules governing the scope of judicial review of zoning matters characterize a city's action as unreasonable only when such action is so arbitrary that it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.

7. In an action challenging the reasonableness of a specific tract rezoning decision, whether action is reasonable is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority. An appellate court must make the same review of the zoning authority's action as did the district court.

8. Under the facts of this case, the Planned Unit Development rezoning ordinance adopted by the City of Leavenworth is reasonable. The reasoning of Landau v. City Council of Overland Park, 244 Kan. 257, 767 P.2d 1290 (1989), and Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), is applied to the instant record and judgment is entered for the City as a matter of law.

Robert D. Beall, of Davis, Beall, McGuire & Thompson, Chartered, Leavenworth, argued the cause, and was on the briefs for appellant.

Rod L. Richardson, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause and was on the briefs, for appellees.

SIX, Justice:

This is a specific tract rezoning action initiated under K.S.A. 12-712. The two issues are whether: (1) the record is adequate to permit a determination of reasonableness; and (2) if the record is adequate for such a determination, whether the defendant acted reasonably in approving the zoning ordinance. The defendant City of Leavenworth (the City) appeals the trial court's granting summary judgment to plaintiffs, Clifford F. Davis and Iva L. Davis, the landowners objecting to the rezoning. Greenamyre Rentals, Inc., a defendant below, did not join in the City's appeal.

The trial court found the City's zoning decision to be unreasonable because the record was inadequate to make a reasonableness determination.

In an unpublished opinion filed March 9, 1990, the Court of Appeals reversed the summary judgment ruling and remanded to the trial court for its remand to the City. 788 P.2d 1344. The City was to make findings and conclusions upon which to base a possible judicial determination of reasonableness if the City chose to rely upon the ordinance as valid. We granted the Davises' petition for review.

We find that: (1) the record contains sufficient evidence to determine whether the City acted reasonably; and (2) the City did act reasonably. We enter summary judgment for the City. The rezoning ordinance is valid.

Facts

Greenamyre Rentals, Inc., (Greenamyre) filed a petition in March of 1986 to rezone a 4.88 acre tract of land it owned from R1-9 single-family residential to a planned unit development (PUD). The PUD would permit retirement townhomes. The first staff report to the Leavenworth City Planning Commission (Planning Commission) recommended that the petition be denied. The Planning Commission's first consideration of Greenamyre's petition for rezoning was in April 1986. The matter was tabled without discussion. The Planning Commission, a month later, reconvened the public hearing on Greenamyre's rezoning request. Greenamyre's representative, David Greenamyre, spoke on behalf of the development. His proposed plan consisted of a 32-unit townhouse complex with 4 single family housing units to buffer the existing residences. A staff alternative of 22 townhouses and 4 single family housing units was presented. Single family homeowners residing near the Greenamyre tract spoke in opposition to the PUD. Their opposition was based on traffic congestion and reduced property values. The Planning Commission asked Greenamyre to consider extending open space buffers and reducing the number of townhomes.

A later Planning Commission staff report stated that the PUD may have a negative impact on the surrounding properties. The report cited a 41% increase in traffic and a 100% increase in density over the existing single family zoning. The report analyzed an alternative plan with 16 townhouses and 6 single family homes as buffers. The alternative plan would increase density only 40% while creating only a 4% increase in traffic. The staff report made no recommendations.

The Planning Commission met again in June 1986. Greenamyre reduced the proposal to 24 townhouses and 4 single family houses. Surrounding property owners spoke in opposition to the project. The Planning Commission voted 5 to 5 on the motion to approve the PUD rezoning proposal and forwarded the plan to the City without a recommendation.

Notice of the June 1986 planning commission meeting was improper, so the request for rezoning was heard again by the Planning Commission in July 1986. Surrounding property owners repeated their opposition, citing traffic and the single family nature of the area. Greenamyre stated that the PUD would not have an impact on the area any more than the single family houses which could be built on the tract with the current zoning. Several retired persons testified in favor of the PUD, citing the need for retirement housing. With one member absent, the Planning Commission voted 5 to 4 to recommend approval of the petition.

The City considered the Planning Commission's recommendation to rezone Greenamyre's tract in August 1986. David Greenamyre explained the proposed PUD. The proposed plan consisted of 28 townhouses and a buffer of 4 single family houses. The proposed townhouses were one- and two-bedroom units with attached garages subject to three restrictions: (1) Residents must be at least 55 years of age, (2) each unit cannot permanently house more than two tenants, and (3) the townhouses cannot permanently house children of tenants. Three persons spoke in favor of the PUD, stating that the City needed retirement housing.

Many surrounding landowners spoke against the proposed PUD. They stated general concerns centering on increased traffic, nonconformity with the present community, reduced property values, and incompatibility.

After considerable discussion, the City made two findings: (1) The PUD is not in conflict with the existing comprehensive plan (a vote of 4 to 1), and (2) the PUD will not have a substantially adverse effect on the neighborhood (a vote of 3 to 2). The City then voted 4 to 1 to accept the Planning Commission's recommendation to approve the preliminary development plan subject to final approval of architecture and density.

In September 1986, the City again considered Greenamyre's application to rezone. The minutes of the meeting reflect that the developer addressed the governing body regarding issues raised at the previous August meeting. David Greenamyre presented final architectural and density plans. The staff provided Greenamyre with a printed list of ten considerations that the City needed to address. The list was labeled "Statutory Consideration Regarding Rezoning." The ten listed questions were followed by the statement: "All ten items must be taken into consideration but any single item, if considered important enough, can be used as the reason for allowing or denying development."

The ten listed considerations were:

"1. What is the character of the surrounding land?

"2. What is the zoning of the surrounding land?

"3. Is this property suitable for the requested change?

"4. Will the change cause a detrimental effect to surrounding uses?

"5. How long has the land been vacant as zoned?

"6. Will there be any gain to the public health or safety as a result of this project?

"7. Will the project destroy surrounding property value?

"8. Does the project conform to the comprehensive plan?

"9. Are there other pertinent factors unique to this situation?

"10. What is the staff recommendation regarding the proposed change?"

The ten-item list was apparently available to the Planning and City Commission members during consideration of Greenamyre's PUD application.

The City had adopted the Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), factors in its zoning ordinance, § 21.802, Conditions of Determination. The ten-item list...