Gaslight Villa, Inc. v. Governing Body, City of Lansing

• Decision Date: 26 January 1974
• Docket Number: No. 47205,47205
• Citation: 213 Kan. 862,518 P.2d 410
• Parties: GASLIGHT VILLA, INC., Appellee and Cross-Appellant, v. GOVERNING BODY, CITY OF LANSING, Kansas, a municipal corporation, Appellant and Cross-Appellee.
• Court: Kansas Supreme Court

Page 410

518 P.2d 410

213 Kan. 862

GASLIGHT VILLA, INC., Appellee and Cross-Appellant, v. GOVERNING BODY, CITY OF LANSING, Kansas, a municipal corporation, Appellant and Cross-Appellee.

No. 47205.

Supreme Court of Kansas.

Jan. 26, 1974.

Rehearing Denied March 6, 1974.

Syllabus by the Court

1. When engaged in issuing or denying 'special permits' for the location of mobile home parks under authority of a zoning ordinance a city governing body sits as an administrative body.

2. The review proceedings authorized by K.S.A. 12-712 relate to actions of an administrative body and the statutory issue to be determined is the reasonableness of the ordinance or of the action of said body under the ordinance or regulation.

3. The mark of unreasonable action as contemplated in K.S.A. 12-712 is when the action is so arbitrary it can be said 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 its unreasonableness lies outside the realm of fair debate.

4. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show unreasonableness.

5. The reviewing court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable unless clearly compelled to do so by the evidence.

6. In reviewing a district court's decision this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.

7. The prevention of undue population concentration in a given area is a factor to be considered in authorizing the location and construction of any type of housing.

8. Highest and best use of a particular tract of land is only one of the criteria to be considered in determining the advisability of issuing a special permit to locate and construct a mobile home park.

9. In an action by a landowner to test the reasonableness of the action of a city governing body denying a 'special permit' to locate and construct a mobile home park in the city of Lansing the record is examined and it is held: (1) The district court erred in substituting its judgment for that of the city governing body; and (2) The district court was correct in holding that attorney fees are not allowable in review proceedings authorized by K.S.A. 12-712.

Joseph N. Vader, Olathe, argued the cause and was on the brief for appellant and cross-appellee.

John C. Tillotson of Murray & Tillotson, Chartered, Leavenworth, argued the cause and was on the brief for appellee and cross-appellant.

FROMME, Justice:

This involves a controversy over refusal of the city to issue a 'special permit'. The governing body of the city of Lansing, Kansas, appeals from an order of the district court of Leavenworth County, Kansas, directing the city to approve an application for 'special permit' to construct and operate a mobile home park at a specified location in the city. The applicant, Gaslight Villa, Inc. cross-appeals from that portion of the district court's order denying attorney fees.

The question on the appeal concerns the reasonableness of the action of the city in denying the 'special permit'. The district court found the action of the governing body was unreasonable.

The action of the city was taken under authority of a city zoing ordinance which contains this provision:

'Section 8 District I(C)-Single Family Dwelling Mobile Homes. Single Mobile Homes and Single Trailers are Restricted to Establish Mobile Home Parks and Trailer Courts. Mobile Home Parks and Trailer Courts are prohibited in the City of Lansing, except by Special Permit and upon approval of the Lansing City Planning Commission.'

It should be noted that a similar ordinance prohibiting or limiting the location of mobile homes within the limits of a city was upheld against constitutional attack based upon the arbitrariness and unreasonableness of such an ordinance. See City of Colby v. Hurtt, 212 Kan. 113, 509 P.2d 1142. In Hurtt it is said:

'Mobile homes are used for residences but they possess special characteristics which warrant their separate regulation. They involve potential hazards to public health if not properly located and supplied with utilities and sanitary facilities. Mobile homes scattered promiscuously throughout the residential district of a city might well stunt its growth and certainly stifle development of an area for residential purposes.

'A careful study of the record convinces this court that the appellant has failed to produce any evidence which tends to show the ordinance was not enacted to promote the health and general welfare of the citizens of the city, conserve the value of property, and encourage the most appropriate use of land.' (212 Kan. at p. 116, 509 P.2d at p. 1145.)

However, the main attack in the present case was not launched against the constitutionality or the lawfulness of the ordinance. It was launched against the alleged unreasonable action of the city governing body in refusing to issue the 'special permit' under the authority of the ordinance. The action was filed pursuant to K.S.A. 12-712 which reads:

'That any ordinance or regulation provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance or regulation determined by bringing an action, in the district court of the county in which such city is situated, against the governing body of said city.'

In Creten v. Board of County Commissioners, 204 Kan. 782, 466 P.2d 263, this court said:

'This is not strictly an action to secure 'rezoning' of a tract of land. The Wyandotte County zoning regulations adopted by the board of county commissioners have a provision that requires a 'special permit' for the operation of an auto truck park, junk yard or a 'mobile home park.' While this case involves only the issuance of the 'special permit' and not the rezoning of land, the same rules of law apply in reviewing the administrative proceeding. (See K.S.A. 19-2901, et seq.; and Scherrer v. Board of County Commissioners, 201 Kan. 424, 441 P.2d 901.)' (204 Kan. at p. 783, 466 P.2d at p. 265.)

When engaged in issuing or denying 'special permits' for the location of mobile home parks under authority of a zoning ordinance a city governing body sits as an administrative body. (Bodine v. City of Overland Park, 198 Kan. 371, 424 P.2d 513; Creten v. Board of County Commissioners, supra.)

What test of reasonableness was contemplated in K.S.A. 12-712? In attempting to explain what constitutes unreasonable action as that term is used in the statute this court said in Coughlin v. City of Topeka, 206 Kan. 552, 480 P.2d 91:

'In determining reasonableness or lack of it in zoning cases our court has indicated that action which is capricious, arbitrary or oppressive is unreasonable in in sense that term is used in K.S.A. 12-712. When the action of the city governing body in rezoning an established residential area is taken without regard to the benefit or harm involved to the community at large and is so wide of the mark as to be outside the realm of fair debate the action of the governing body and the ordinance are unreasonable.' (206 Kan. at p. 553, 480 P.2d at p. 93.)

In the recent case of Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457, this court holds:

'The governing body of a city has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning. The power of the reviewing court is limited to determining (1) the lawfulness of the action taken, that is whether procedures in conformity with law were employed, and (2) the reasonableness of such action. As to the second, the court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable unless clearly compelled to do so by the evidence. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof.' (Syl. 7.)

Additional rules to be followed in reviewing the action of the administrative body were declared in Hukle as follows:

'A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority. In reviewing a district court's judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.

'Prevention of undue population concentration in a given area is a factor to be considered in changing zoning classification.

'Where the rezoning decision before the zoning authority is fairly debatable a reviewing court may not substitute its judgment for that of the zoning authority in order to change the decision on the debate.

'Highest and best use of a particular tract of land is only one of the criteria to be considered in determining zoning classification.' (Syl. 8, 9, 10 and 11.)

Form the foregoing certain principles of law emerge. The review proceedings authorized by K.S.A. 12-712 relate to actions of an administrative body and the statutory issue to be determined is the reasonableness of the ordinance or of the action of said body under the ordinance or regulation. The mark of unreasonable action as contemplated in K.S.A. 12-712 is when the action is so arbitrary it can be said it was taken...