Davis v. City of Leawood, 71925

• Decision Date: 21 April 1995
• Docket Number: No. 71925,71925
• Citation: 893 P.2d 233,257 Kan. 512
• Parties: William R. DAVIS and Fern Stultz, Appellees, v. CITY OF LEAWOOD, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 233

893 P.2d 233

257 Kan. 512

William R. DAVIS and Fern Stultz, Appellees, v. CITY OF LEAWOOD, Kansas, Appellant.

No. 71925.

Supreme Court of Kansas.

April 21, 1995.

Syllabus by the Court

1. The standards governing summary judgment are stated and applied.

2. Rules of statutory construction are stated and applied.

3. The interpretation of a statute is a question of law and is subject to unlimited appellate review.

4. The language of K.S.A. 12-689 and K.S.A. 12-690, when construed together, does not require that all costs for improvement to a street designated a main trafficway pursuant to K.S.A. 12-685 must be paid by the city at large from general funds or general improvement bonds.

5. The questions of the existence and to what extent properties are specially benefited from improvements to a street for which a special assessment is to be made are questions of fact to be determined by the city. That is true notwithstanding that the primary purpose of the street improvement is to benefit the city as a whole.

6. Under the facts of this case, the City of Leawood's designation of State Line Road as a main trafficway under K.S.A. 12-685 did not preclude the City from financing, in part, improvements to State Line Road by special assessments under K.S.A. 12-6a01 et seq.

Richard S. Wetzler of Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, argued the cause, and Patricia A. Bennett, of the same firm, was with him on the briefs for appellant.

Thomas S. Busch of Holbrook, Heaven & Fay, P.A., Merriam, argued the cause, and Lewis A. Heaven, Jr., and John D. Tongier, of the same firm, was with him on the briefs for appellees.

Donald L. Moler, Jr., Gen. Counsel, of Topeka, was on the brief for amicus curiae League of Kansas Municipalities.

Mary F. Carson, Sp. Asst. Atty. Gen., and Rebecca E. Floyd, Asst. Atty. Gen., were on the brief for amicus curiae Robert T. Stephan, Kansas Atty. Gen.

ALLEGRUCCI, Justice:

William Davis and Fern Stultz sued to enjoin the City of Leawood (Leawood) from imposing special assessments on their properties for the purpose of financing the improvement of State Line Road. On cross-motions for summary judgment, the district court granted the injunction on the ground that only city-at-large funds, not special assessments, may be used to improve a designated main trafficway, and Leawood appeals. The appeal was transferred to this court pursuant to K.S.A. 20-3017.

The following facts are not in dispute: William R. Davis resides on property he owns at 11316 State Line Road in Leawood. Fern Stultz resides on property she owns at 11420 State Line Road in Leawood. In 1988, Leawood enacted an ordinance which designated 14 streets, including State Line Road, as "main trafficways" pursuant to K.S.A. 12-685. In March 1993, Hallbrook Farms Associates, L.P., (Hallbrook) pursuant to K.S.A. 12-6a01 et seq., filed a petition with Leawood for the improvement of State Line Road from approximately 112th Terrace to 119th Street. Leawood created the improvement district requested by Hallbrook. The properties of Hallbrook, Davis, and Stultz comprise the improvement district, and State Line Road is being improved where it abuts their properties. At the time the parties' cross-motions for summary judgment were considered, no assessments had been made to the Davis or Stultz properties.

We first determine if Leawood's designation of State Line Road as a main trafficway under K.S.A. 12-685 precludes its financing improvements to State Line Road by special assessments under K.S.A. 12-6a01 et seq. The district court decided that special assessments may not be used to improve a designated main trafficway. The decision rests on the district court's construction of state statutes which govern financing of city street improvements.

Among the statutes at issue are K.S.A. 12-685 through K.S.A. 12-690, the Main Trafficway Act, which was enacted in 1959 to authorize cities to designate and improve main trafficways. The pertinent provisions of the Main Trafficway Act state:

"The governing body of any city is hereby authorized and empowered to designate and establish, by ordinance[,] as a main trafficway any existing or proposed street, boulevard, avenue or part thereof, within such city, the primary function of which is or shall be, the movement of through traffic between areas of concentrated activity within the city or between such areas within the city and traffic facilities outside the city performing the function of a major trafficway. Such designation by the governing body shall be final and conclusive." K.S.A. 12-685.

"The governing body of such city shall have power to improve or reimprove or cause to be improved or reimproved, any main trafficway or trafficway connection designated and established under the provisions of this act. Such improvement or reimprovement may include grading, regrading, curbing, recurbing, guttering, reguttering, paving, repaving, macadamizing, remacadamizing, constructing, reconstructing, opening, widening, extending, rounding corners, straightening, relocating, building any necessary bridges and approaches thereto, viaducts, overpasses, underpasses, culverts and drainage, trafficway illumination, traffic control devices, pedestrian ways, or other improvements, or any two (2) or more of such improvements or reimprovements and the acquisition of right-of-way by purchase or condemnation when necessary for any of such purposes. The governing body may also employ highway and traffic engineering assistance when necessary to the proper development and planning of such improvement or reimprovement." K.S.A. 12-687.

"All costs of improvements or reimprovements authorized under the provisions of this act, including acquisition of right-of-way, engineering costs, and all other costs properly attributable to such projects shall be paid by the city at large from the general improvement fund, general revenue fund, internal improvement fund, or any other fund or funds available for such purposes, or by the issuance of general improvements bonds." K.S.A. 12-689.

"This act shall be supplemental to all other acts relating to the improvement of streets, and shall not prevent the use of other statutes for the improving of any such street, boulevard or avenue." K.S.A. 12-690.

Also at issue is the General Assessment and Improvement Law, K.S.A. 12-6a01 et seq., enacted in 1957. K.S.A. 12-6a02 provides in pertinent part:

"As a complete alternative to all other methods provided by law, the governing body of any city is hereby authorized to make, or cause to be made, municipal works or improvements which confer a special benefit upon property within a definable area of the city and may levy and collect special assessments upon property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property by any such municipal work or improvement and to provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments as hereinafter provided. Such work or improvements may include the following without limitation because of enumeration:

(a) Acquisition of property or interest in property when necessary for any of the purposes authorized by this act.

(b) To open, widen and extend streets and otherwise to improve paving and other surfacing, gutters, curbs, sidewalks, crosswalks, driveway entrances and structures, drainage works incidental thereto, and service connections from sewer, water, gas and other utility mains, conduits, or pipes necessarily lying within curb lines."

The method used by Hallbrook for requesting improvement of State Line Road is set out in K.S.A. 12-6a04(2), which provides for the filing of a petition by a majority of the resident owners within a proposed improvement district. "Improvement district" is defined in K.S.A. 12-6a01(f) as "an area deemed by the governing body to be benefited by an improvement and subject to special assessment for all or a portion of the cost of the improvement." Leawood authorized the improvement of State Line Road from approximately 112 Terrace to 119th Street pursuant to K.S.A. 12-6a06, which provides in pertinent part:

"The governing body may, by a majority vote of the entire members-elect thereof at any time within six (6) months after the final adjournment of the hearing on the advisability of making the improvements, adopt a resolution authorizing the improvement in accordance with the finding of the governing body upon the advisability of the improvement, as provided in K.S.A. 12-6a04, which shall be effective upon publication once in the newspaper...."

Apportionment of improvement costs is the subject of K.S.A. 12-6a07:

"(a) The city may pay such portion of the cost of the improvement as the governing body may determine, but not more than ninety-five percent (95%) of the total cost thereof. The share of the cost to be paid by the city at large shall be paid in the manner provided by K.S.A. 12-6a14.

"(b) If any property deemed benefited shall by reason of any provision of law be exempt from payment of special assessments therefor, such assessment shall, nevertheless, be computed and shall be paid by the city at large."

The pertinent provisions which control financing of improvement costs are found in K.S.A. 12-6a08(a):

"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, and amendments thereto shall be apportioned against the property in accordance with the special benefits accruing thereto by reasons of such improvement. The 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 the lots and pieces of land therein. The value of such property shall be determined by...