Friends of Bethany Place v. City of Topeka

CourtCourt of Appeals of Kansas
Citation222 P.3d 535
Docket NumberNo. 100,997.,100,997.
PartiesFRIENDS OF the BETHANY PLACE, INC., Appellee, v. CITY OF TOPEKA and Grace Cathedral and The Episcopal Diocese of Kansas, Inc., Appellants.
Decision Date22 January 2010
222 P.3d 535
CITY OF TOPEKA and Grace Cathedral and The Episcopal Diocese of Kansas, Inc., Appellants.
No. 100,997.
Court of Appeals of Kansas.
January 22, 2010.

[222 P.3d 539]

Eric B. Smith and Shelly Theis Starr, assistant city attorneys, and Mary Beth Mudrick, chief of litigation, for appellant City of Topeka.

Nathan D. Leadstrom and H. Philip Elwood, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, for appellants Grace Cathedral and The Episcopal Diocese of Kansas, Inc.

Pedro L. Irigonegaray, of Irigonegaray & Associates, of Topeka, and Shelley Hickman Clark, of University of Kansas School of Law, of Lawrence, for appellee Friends of Bethany Place, Inc.

Sandra Jacquot, general counsel, and Donald L. Moler, Jr., executive director, of League of Kansas Municipalities, of Topeka, were on the brief for amicus curiae League of Kansas Municipalities.

Derenda J. Mitchell and Michael J. Smith, assistant attorneys general, and Steve Six, attorney general, were on the brief for amici curiae Kansas State Historical Society.



This appeal centers on a contentious plan by Grace Episcopal Cathedral (Cathedral) in Topeka and The Episcopal Diocese of Kansas (collectively the Church) to construct a parking lot on a portion of Bethany Place, a tract of ground on which the Cathedral and two other buildings are located. These two other buildings and the surrounding grounds of Bethany Place (but not the cathedral itself) are listed on the Register of Historic Kansas Places. The State Historical Preservation Officer (SHPO) opposed the project.

The matter came before the Topeka City Council (Council) on the Church's application for a permit for the project. On the day before the hearing on the Church's application, a group of individuals formed Friends of Bethany Place, Inc. (FOB), in order to oppose the project. Following testimony from numerous proponents and opponents, the Council voted 9-0 in favor of the Church's application.

FOB appealed to the district court. The district court set aside the Council's approval of the project, finding the Council's decision was arbitrary, capricious, and unreasonable. The City of Topeka (City) and the Church have now appealed the district court's decision. The matter has been fully briefed and argued by the parties, and we have the added benefit of amici curiae briefs from the Kansas State Historical Society and the League of Kansas Municipalities. This appeal presents the following four main issues for us to resolve:

1. Does FOB have standing in these proceedings?

Yes. Applying statutory and traditional standards for standing, FOB is entitled to seek judicial review of the Council's approval of the Church's permit application.

2. Did the district court erroneously reweigh the evidence before the Council, evidence which (according to the Church and the City) provided substantial support for the Council's decision to grant the permit?

Yes. The district court went beyond the record and reweighed the evidence before the Council in finding what it considered to be feasible and prudent alternatives to the Church's proposed project. The proper scope of review limits a reviewing court to

222 P.3d 540

determining (1) whether the Council acted fraudulently, arbitrarily, or capriciously, (2) whether the Council's action is supported by substantial evidence, and (3) whether the Council acted within the scope of its authority. Here, the issue in dispute is whether substantial evidence supports the Council's action. Applying the requisite legal constraints on the scope of our review, we conclude that there is substantial evidence to support the decision to grant the Church's requested permit.

3. Does the district court's decision violate the Church's rights under the First Amendment to the United States Constitution or under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (2006)?

Because of our decision on Issue 2, it is unnecessary to consider this issue.

4. Did the district court err in refusing to require FOB to post a supersedeas bond for this appeal?

No. FOB prevailed before the district court and did not seek to stay enforcement of the district court's ruling. As the appellee, the provisions for a supersedeas bond do not apply to FOB.


In 1861, the Topeka city founders conveyed to the Church 20 acres of land, now known as Bethany Place, in order to establish the Sisters of Bethany Episcopal School for Girls. The property is bordered by 8th Street, Polk Street, 10th Avenue, and Western Avenue in downtown Topeka. The two historic buildings on the property were built in 1874 and 1875. One is the Diocesan offices building (formerly the school laundry), and the other is a building for meetings and lodging (formerly the school's barn).

The school was in operation at Bethany Place from 1872 until 1928. In 1917, Grace Cathedral was constructed on the property. In 1929, the Topeka School District acquired 14 acres of the original Bethany campus for the construction of Topeka High School. In 1978, the Church registered Bethany Place on the Kansas Historical Registry in order to prevent Topeka High School from acquiring any of the remaining 6 acres by eminent domain.

In 2007, the Church applied for a permit to install a parking lot on part of the Bethany Place property. The plan was to add 40 parking spaces, with 10 reserved for handicapped or elderly Church members. The proposed lot would consist of opposing rows of parking stalls located inside the sidewalk along Polk Street. The lot would occupy 4.5% of Bethany Place's grounds. It would reduce the current green space from 187,800 to 175,800 square feet, or 6.5%.

On May 8, 2007, the SHPO assigned to review the Church's permit application determined that the parking lot would encroach upon, damage, or destroy the historic environs of Bethany Place because the project would require the removal of mature trees and because the project would "drastically [change] the relationship between the two historic buildings on the site with the public street of Polk." The SHPO proposed the alternative of constructing angled parking on Polk and 8th Streets.

The following day, upon receipt of the SHPO's report, the City's Planning Department denied the Church's permit request and suggested that parking along Southwest Polk Street would be a feasible alternative.

On August 27, 2007, 1 day before the Council met to consider the Church's application, FOB was incorporated for the purpose of opposing the Church's parking lot application. That same day the SHPO issued a supplemental letter opinion on the project. The letter further explained but did not change the SHPO's recommendation of May 8, 2007. It did not address further the alternative of on-street angled parking. Because of the lateness of its submission, the letter was not provided to the Council for consideration at the hearing.

Proceedings before the Council

The Council considered the Church's application on August 28, 2007. The Church's position was that the angled street parking recommended by the City's Planning Department and the SHPO and other suggested

222 P.3d 541

alternatives from those speaking in opposition were not feasible and prudent.

The Council heard testimony from many members of the public who either supported or opposed the project, including representatives of the Church, FOB, and various Topeka neighborhood improvement associations. Testimony was received through oral comments during the meeting. In addition, Council members were provided with a packet of documents assembled for them in advance of the meeting. Because, as we shall see, the central issue is the sufficiency of the evidence to support the Council's decision, we will recount the oral testimony and written documents presented to the Council in making its decision.

Testimony at the Council Meeting

Pedro Irigonegaray

Pedro Irigonegaray, counsel for FOB, reminded the Council of the requirements of K.S.A.2008 Supp. 75-2724. He testified that to approve the permit, the Council must find that there is no feasible and prudent alternative to the proposed parking lot and that all possible planning to minimize the harm to Bethany Place had been undertaken. He also cautioned the Council that it could not act in an arbitrary or capricious manner.

Alex Kovalchuck

Alex Kovalchuck testified in opposition to the Church's proposal. He presented a map to the Council showing suggested alternatives to the Church's plan: (1) angled on-street parking, (2) using lots on the north side of 8th Street owned by the Church, and (3) building a parking garage over the Church's existing parking lot. He presented the Council with a CD video which he said would help the Council "visualize and see what I'm attempting to discuss." However, he apparently failed to bring equipment to the hearing with which to display his video. Kovalchuck presented no cost estimates for his proposals, though he did acknowledge that they "may be ... more expensive [than the Church's proposal]." He also did not address any of the safety concerns raised by the Church, nor did he address the Church's concerns about its inability to restrict the use of street parking to its members.

Bishop Dean Wolfe

Bishop Dean Wolfe testified on behalf of the Church. He reminded the Council that the Church was seeking 40 additional parking spots to supplement its parking lot and the current public parking available on 8th and Polk Streets because the Cathedral needs one parking space for every 1.8 persons in attendance. The Bishop testified that the Cathedral currently has a Sunday attendance of about 350 people and a current parking lot capacity of 89 spaces. The proposed additional 40 spaces would help address this need and provide handicap parking next to the Cathedral with no steps to...

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1 cases
  • Friends of Bethany Place, Inc. v. City of Topeka
    • United States
    • United States State Supreme Court of Kansas
    • August 23, 2013
    ...testimony is summarized at length in the Court of Appeals decision, Friends of Bethany Place v. City of Topeka, 43 Kan.App.2d 182, 187–93, 222 P.3d 535 (2010). When the testimony concluded, the Council unanimously passed the following motion, as stated by a Councilmember: “I'd like to make ......

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