Friends of Bethany Place, Inc. v. City of Topeka

• Decision Date: 23 August 2013
• Docket Number: No. 100,997.,100,997.
• Parties: FRIENDS OF BETHANY PLACE, INC., Appellee, v. CITY OF TOPEKA, Appellant, and Grace Cathedral and The Episcopal Diocese of Kansas, Inc., Intervenors/Appellants.
• Court: Kansas Supreme Court

297 Kan. 1112

307 P.3d 1255

FRIENDS OF BETHANY PLACE, INC., Appellee,

v. CITY OF TOPEKA, Appellant,andGrace Cathedral and The Episcopal Diocese of Kansas, Inc., Intervenors/Appellants.

No. 100,997.

Supreme Court of Kansas.

Aug. 23, 2013.

Syllabus by the Court

1. Standing is a jurisdictional issue. An objection based on lack of subject matter jurisdiction may be raised at any time, whether it is for the first time on appeal or even upon the appellate court's own motion. The existence of jurisdiction and standing are both questions of law over which an appellate court's scope of review is unlimited.

2. To have standing, a party must satisfy any statutory standing requirements and meet the traditional tests for standing.

3. By enacting the Historic Preservation Act, the legislature declared that it is this state's policy that the historical, architectural, archeological, and cultural heritage of Kansas is an important asset of the state and that its preservation and maintenance should be among the highest priorities of government. K.S.A. 75–2715.

4. K.S.A. 2012 Supp. 75–2724(b) authorizes any person aggrieved by the determination of a governing body under K.S.A. 2012 Supp. 75–2724(a) to seek the district court's review under K.S.A. 60–2101.

5. The term “person aggrieved” as used in K.S.A. 2012 Supp. 75–2724(b) may include residents or property owners within 500 feet of a historic property depending upon the factual circumstances in a particular case.

6. An association has standing to sue on behalf of its members when (a) the members have standing to sue individually; (b) the interests the association seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires participation of individual members.

7. Under K.S.A. 60–2101(d), a district court's scope of review is limited to determining: (a) if the political subdivision's decision fell within the scope of its authority; (b) was supported by substantial competent evidence; or (c) was fraudulent, arbitrary, or capricious.

8. In reviewing a governing body's determination under K.S.A. 2012 Supp. 75–2724(a) that there are no feasible and prudent alternatives to a proposed project which might affect historic property and that the project program includes all possible planning to minimize harm to such historic property, the ultimate question for appellate review is whether the governing body took a hard look at all relevant factors and based its determination upon the evidence using plain common sense.

9. Under K.S.A. 2012 Supp. 75–2727(a) the governing body is required to determine whether any alternatives are feasible and prudent and if all possible planning has been done to minimize harm resulting from the proposed project. This carries with it the obligation to obtain the information necessary to make that determination.

10. The Court of Appeals' analysis in Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990), placing the burden of proof on the project proponents as to all relevant factors to be considered by the governing body is rejected and overruled.

Shelly T. Starr, assistant city attorney, argued the cause, and Eric B. Smith, assistant city attorney, Mary Beth Murdock, chief of litigation, and Jackie Williams, city attorney, were on the briefs for appellant City of Topeka.

Nathan D. Leadstrom, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, argued the cause, and H. Philip Elwood, of the same firm, was with him on the briefs for intervenors/appellants Grace Cathedral and The Episcopal Diocese of Kansas, Inc.

Pedro L. Irigonegaray, of Irigonegaray & Associates, of Topeka, argued the cause, and Shelley Hickman Clark, of University of Kansas School of Law, of Lawrence, was with him on the briefs 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 amicus curiae Kansas State Historical Society.

The opinion of the court was delivered by BILES, J.:

The Topeka City Council granted Grace Episcopal Cathedral and The Episcopal Diocese of Kansas, Inc. (the Church) a building permit for a parking lot on Bethany Place, a registered state historic site owned by the Church, despite complaints that the construction would adversely impact that historic site. As a matter of first impression, we must determine who is obligated under the Historic Preservation Act, K.S.A. 75–2715 et seq., to establish that (1) there are no feasible and prudent alternatives to the project and (2) the project program includes all possible planning to minimize harm to the historic property as required by K.S.A. 2012 Supp. 75–2724(a)(1).

We hold that the governing body—in this case the Council—must make those determinations and that it failed in its statutory responsibility to obtain the information necessary to discharge its duties. We hold further that the Council did not take what the caselaw characterizes as a “hard look” at all relevant factors that must be reviewed before authorizing a project that encroaches upon, damages, or destroys historic property. And because the proceedings below did not follow this rubric, we reverse and remand for a rehearing after the Council makes the proper inquiries. We also reject and overrule the Court of Appeals' analysis in Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990), which purports to place the burden of proof in these matters on the project's proponent.

Factual and Procedural Background

The Church owns land known as Bethany Place at 833–835 Polk in Topeka. The site is included on the Register of Historic Kansas Places, which is a designation that shields Bethany Place from further development unless the statutory protections within the Historic Preservation Act are satisfied. The Church's cathedral building and current 89–space parking lot are adjacent to Bethany Place but are not considered part of the historic site. The property is in a residential neighborhood next to Topeka High School.

In 2007, the Church requested a city building permit for a parking lot on Bethany Place along Polk Street. The proposed project includes 10 handicap and 33 standard parking stalls. A Church representative testified at a Council hearing that the Church was “critically short of disabled access space” and estimated its true parking needs at 194 spaces. The work proposed included not only the removal of trees and shrubs, but also the laying of a parking lot across what was formerly some of the historic site's green space.

As required by K.S.A. 2012 Supp. 75–2724(a), the State Historic Preservation Officer (SHPO) was notified of the permit request and given an opportunity to investigate and comment. In the SHPO's first letter to the Topeka Planning Department, the SHPO concluded the parking lot would encroach upon, damage, or destroy the Bethany Place site and noted further that the project would “require the demolition of several historic trees that characterize the property.” The SHPO concluded the construction “drastically changes the relationship between the two historic buildings on the site with the public street of Polk.” The SHPO recommended altering the project to take advantage of the City of Topeka's right-of-way by designing parking stalls directly adjacent to Polk Street and possibly 8th Street if needed.

The day after receiving the SHPO's letter, the Topeka Planning Department submitted its own letter recommending that the Council deny the building permit “in light of alternative and feasible alternatives that will not encroach upon or damage the listed property.” The Planning Department cited the SHPO's determination that the parking lot would encroach on Bethany Place and also the Topeka Traffic Engineering Division's determination that “angled ‘cut-back’ parking along SW Polk Street, adjacent to the Bethany Place property[,] would be a feasible alternative to the proposed parking lot.” Notably, the Planning Department's letter contained no additional information detailing economic, technical, or design issues related to its recommendation to add angled cut-back parking. See K.A.R. 118–3–1(e) (listing factors to consider when determining whether there are feasible and prudent alternatives). The appellate record does not contain a report from the Traffic Engineering Division.

The Church asked the SHPO to reconsider its findings. It also attacked those findings and requested that the Council issue the permit anyway. The matter was scheduled for hearing at an August Council meeting.

In a second letter to the Planning Department prompted by the request for reconsideration, the SHPO provided a more detailed analysis and reached the same conclusion that the proposed project would encroach upon, damage, or destroy Bethany Place. But the Planning Department staff decided not to forward this second SHPO letter to the Council, although some of its contents were referred to during the hearing.

One day before the hearing, a nonprofit organization, Friends of Bethany Place, Inc. (FOB), was formed to oppose the project.

The City Council Hearing

In preparation for the scheduled hearing, City personnel submitted to the Council: (1) the Topeka Planning Department's letter; (2) the SHPO's first letter; and (3) an e-mail from the City forester describing trees that would need to be removed. A City representative did not address the Council at the hearing.

The Church submitted the following additional documents: (1) a description of the buildings on Bethany Place; (2) the Church's 1983 plans for a conference center on Bethany Place, which was never built due to funding issues, along with a letter written at the time from the...