Golden v. City of Overland Park, 48793

• Decision Date: 06 September 1978
• Docket Number: No. 48793,48793
• Citation: 584 P.2d 130,224 Kan. 591
• Parties: Donald GOLDEN, Appellee, v. CITY OF OVERLAND PARK, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 130

584 P.2d 130

224 Kan. 591

Donald GOLDEN, Appellee, v. CITY OF OVERLAND PARK, Kansas, Appellant.

No. 48793.

Supreme Court of Kansas.

Sept. 6, 1978.

Syllabus by the Court

1. A city in enacting a general zoning ordinance or a planning commission in adopting a comprehensive plan for development of a city acts in a legislative capacity.

2. When a board, council, or commission hears an application to change the zoning of a particular tract of land, its function becomes more quasi-judicial than legislative.

3. Some of the factors which should ordinarily be considered by a board, council or commission when acting upon a request for zoning change are set forth.

4. Zoning bodies should place in their minutes a written order summarizing the evidence and stating the factors which were considered in reaching the decision either to deny or to grant a requested zoning change.

5. The standard for review of an order denying or granting a zoning change is whether the order entered is reasonable.

6. In an appeal by the city from a judgment of the district court holding that the action of the city in denying a zoning change was unreasonable, and in ordering the requested change, the record is examined and the judgment of the trial court is affirmed.

Helen Mountford, Asst. City Atty., argued the cause, and Phillip H. Schuley, Asst. City Atty., was with her on brief, for appellant.

Robert J. Campbell, of Brown, Koralchik & Fingersh, Kansas City, Mo., argued the cause, and Ray L. Borth, of Ballweg, Borth & Wilson, Prairie Village, was with him on brief, for appellee.

MILLER, Justice:

This case comes before us on a petition for review of an unpublished opinion of the Court of Appeals. The plaintiff, Donald Golden, commenced this action against the City of Overland Park, challenging the reasonableness of the city's refusal to rezone his property from C-O (office building) to CP-1 (planned retail). The trial court, after numerous hearings and after twice referring the matter back to the city, ruled that the city's denial of rezoning was unreasonable, and ordered the city to grant the requested zoning change. The city appealed and the Court of Appeals reversed.

The property involved is a tract of about 2.3 acres situated at the southeast corner of the intersection of 87th Street and Metcalf in Overland Park, Kansas. Golden purchased the property for $100,000 in February, 1966. The property was then zoned C-O (office building).

Shortly after he acquired the tract, Golden commenced plans to build an office building on the property. He hired an architect, and the architect's drawing of the proposed building was published in the Kansas City Star on June 12, 1966. Thereafter, various changes were made in the plans, various studies were made, and the plaintiff actively sought to secure tenants for the planned building. He was unable to secure sufficient lease commitments, and for this reason he was unable to secure the necessary financing.

In 1972 plaintiff was approached by a firm desiring to build a car wash on the property. He negotiated a lease with the car wash firm, subject to securing a zoning change to permit that use. Application was then filed to change the zoning; the lease commitment expired before the request for zoning was heard; the matter was then dropped, and the zoning change was denied.

In 1974 plaintiff was approached by the Dubois Company, which was interested in building a small shopping center on the property. Dubois planned to sublet to the Tandy Company subsidiaries, Tandy Leather, Radio Shack, Color Tile, American Handicraft, etc. A purchase option, contingent upon rezoning, was entered into. Color Tile was the only committed sublessee. An architect was engaged, and a petition for a zoning change was filed with the City of Overland Park. The requested change was recommended for approval by the planning commission's professional staff, but on August 12, 1974, the planning commission denied rezoning. The reasons stated for denial were that the original purpose was to preserve this area as a transition zone; increased traffic problems, particularly at night and on weekends, would be generated from a shopping center; and due to the aesthetics of the development and the effect on the surrounding neighborhood, increased pressure for zoning changes for other nearby areas could be anticipated.

Various changes were then made in the plans and the matter was presented to the city commission; it tabled the matter and referred it back to the planning commission for further study.

The planning commission again recommended denial of the application. The member of the planning commission who moved for denial expressed concern that carpet sale signs could be hung up after six months "that aesthetically don't seem to be the transitional item that we anticipated here between the developments to the south and the north."

Thereafter, the city council upheld the planning commission's recommendation and denied rezoning. The only discussion on the motion was that the architect's rendering was not a true portrayal of how the proposed building would appear, since the rendering portrayed no traffic, very few parked cars, no traffic lights, utility poles or street lights, and the plantings appeared too mature.

At each of the planning commission and city commission meetings, homeowners who lived north and east of the property appeared in opposition to the proposal. Primarily, they expressed concern over traffic congestion and increased litter and noise, problems which had arisen in connection with a small shopping area on 83rd Street, where there were convenience stores (open all night) and fast food establishments. These fears were also voiced by members of both bodies.

Metcalf, for some 10 blocks south of plaintiff's tract, is primarily commercial. Immediately south of plaintiff is a tract zoned C-2, a more commercial classification than that sought by plaintiff, on which is situated an automobile dealership, where new and used motor vehicles are sold and serviced. East of and adjoining both plaintiff and the auto dealership are two-story apartments. North of plaintiff's property, at the northeast corner of 87th and Metcalf, is a tract zoned C-1, on which is situated a savings and loan. To the east and north of the savings and loan are single-family dwellings in what is known as the White Haven addition. At the northwest corner of the intersection, and continuing both north and west, are single-family dwellings. Directly west of plaintiff's tract, on the southwest corner at 87th and Metcalf, are two-story apartments. Immediately south of these and on the west side of Metcalf is a huge development, the King Louie bowling, skating and amusement center.

Trial was held before the court on August 28, 1975. On September 15, 1975, the court announced its decision. It made over thirty detailed findings of fact. The court concluded that the property was zoned for a use which cannot be realized; that plaintiff's considerable efforts over a seven-year period were unsuccessful; but the court concluded that four of the factors which the city presumably based its decision upon precluded the court from finding in favor of the plaintiff. The court retained jurisdiction and continued the matter in order to give the plaintiff an opportunity to correct these four items and submit proposed changes to the city. These four items were:

"1. Access on 87th . . . that could influence backup traffic into the intersection (of 87th and Metcalf);

"2. A greater setback from the north side to make the entrance more attractive;

"3. Upgrading of the landscaping; and

"4. High aesthetics in architecture to blend in with the surrounding neighborhood with emphasis on small signs."

The matter was again presented to the city council and the application for a change was again denied, this time for two reasons: because the landowner wished to retain the west entrance on 87th Street and because the landowner would not agree that logos could not be used as a part of the restricted sign area on the buildings.

Additional evidence was then presented to the district court and on March 8, 1976, the district court announced its decision. It made additional findings of fact and recognized its limited jurisdiction, and concluded that the city was unreasonable in its denial of the use of logos for the reasons that logos are in use throughout the city of Overland Park and other shopping centers; that plaintiff agreed to make their logos small, to be included in the five per cent signage on the front of the facade; and that a corporation requesting a lease insists on the use of logos to display and advertise the named company in the building where it is doing business. With reference to the access from 87th Street, the court found that plaintiff had not met his burden to show that the requirements of the city were unreasonable however, in view of the expense plaintiff had incurred, the court granted him an additional stay of fourteen days to determine whether or not he would accede to the decision of the city to limit access to one drive on 87th Street.

The plaintiff capitulated to the demands of the city on access, and presented his application again to the city for reconsideration. The city council again denied plaintiff's request for a zoning change. The matter was then taken up again by the trial court, additional evidence was presented, and on July 23, 1976, the court entered its final order. The court reviewed the course of the lengthy proceeding, noted that plaintiff had completely capitulated to the demands of the city concerning the four issues, including that of access; found that the property was zoned for a use which the plaintiff could not realize; that the city increased the problem by zoning the tract of land to the south for a more intensive use, or CP-2 zoning for an automobile dealership, and by zoning the property to the north C-1,...