Hockenbarger v. City of Topeka
| Decision Date | 14 December 2012 |
| Docket Number | Nos. 103,604,106,976.,s. 103,604 |
| Citation | 290 P.3d 685 |
| Parties | Charles F. and Rachel I. HOCKENBARGER, Plaintiffs, v. CITY OF TOPEKA, Defendant. Rebekah Anne Phelps–Davis, Appellant, v. City of Topeka, Appellee. Brent D. Roper and Shirley L. Phelps–Roper, Appellants, v. City of Topeka, Appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Shawnee District Court; David E. Bruns, Judge.
Jonathan B. Phelps, of Topeka, for appellants.
Shelly Starr, assistant city attorney, of Topeka, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
Rebekah Anne Phelps–Davis (Phelps–Davis) and Brent D. Roper and Shirley L. Phelps–Roper (the Ropers) appeal the decision of the Topeka Board of Zoning Appeals (the Board) affirming the zoning inspector's violation notices for the sheds located on their residential properties. The Board found that the sheds were set back less than 30 feet from the street in violation of the city ordinance. Phelps–Davis and the Ropers argue that the Board's decision was unreasonable, that the City of Topeka should be equitably estopped from applying the setback requirements to their respective sheds, that the City applied selective enforcement when it issued the violation notices to three members of the Westboro Baptist Church on the same day, and that their due process rights were violated by the district court's decision. Finding no error, we affirm.
On the same day in May 2008, Phelps–Davis and the Ropers received separate violation notices, numbers 2008005 and 2008006, from the Planning Department of the City of Topeka (the City). The violation notices indicated that the placement of their sheds violated the City's ordinance sections 48–1.09(a)(1) and 48–29.02(a)(2). The nature of the violation was stated to be “[c]onstruction of a storage shed within the required front yard setback on SW Cambridge Avenue.” The violation notices informed them that they had 1 month to remove the sheds.
Phelps–Davis and the Ropers appealed the violation notices to the Board. The Board affirmed the zoning inspector's decision, and Phelps–Davis and the Ropers appealed the decision to the district court.
Subsequently, the district court affirmed the Board's decision affirming the zoning inspector's decision. The district court found under a plain reading of the statute that merely because a house is located on a corner lot does not mean that the property contains two front yards as suggested by the City. However, the district court did find based on its interpretation of the city ordinances that any accessory building located in the side yard of a corner lot must comply with the 30–foot setback requirement. Phelps–Davis and the Ropers did not challenge that their sheds did not meet the 30–foot setback requirement. The district court determined that there was insufficient evidence in the record to support a finding that the City was using selective enforcement when it issued the violation notices to Phelps–Davis and the Ropers based on their religious beliefs. The district court also determined that equitable estoppel was inapplicable in the case because the City could not nullify its own ordinances or act beyond its authority. In addition, the district court found that Phelps–Davis and the Ropers failed to meet their burden of proof to show that the Planning Director should have exercised his discretion to allow the sheds to remain where they were. However, the district court remanded Phelps–Davis' case to the Board to determine whether her shed was in conformity with the law at the time the shed was constructed.
A few weeks later, Phelps–Davis and the Ropers filed a motion for new trial, to amend the findings, and for reconsideration and clarification of the district court's decision. If their motion were to not be granted, they requested to be allowed to conduct additional discovery and supplement the evidentiary record.
The district court denied the motion for new trial, finding that there was no violation of due process by its interpretation of the city ordinances because Phelps–Davis and the Ropers received notice of the violations and had an opportunity to be heard. In addition, the district court reaffirmed its prior decision. Timely appeals were filed to this court.
On February 1, 2010, this court dismissed the appeal as to Phelps–Davis because the Board had not had a chance to review Phelps–Davis' case on remand as ordered by the district court.
On remand, on July 12, 2010, the Board determined that the earliest Phelps–Davis' shed could have been built was 1948. At that time, the setback requirement was 60 feet. In essence, the shed has never been in compliance with city ordinances. Therefore, the Board again affirmed the zoning inspector's decision.
Phelps–Davis appealed the Board's decision to the district court, and the district court affirmed the Board's decision. Phelps–Davis timely filed a supplemental notice of appeal with this court appealing the district court's decision affirming the Board.
The Board's decision to affirm the zoning inspector's violation notices to Phelps–Davis and the Ropers was reasonable.
Phelps–Davis and the Ropers argue that the Board's decision to uphold the zoning inspector's issuance of the violation notices was unreasonable.
The standard of review as set forth in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), is the same for district and appellate courts when reviewing decisions on zoning, special use permits, and conditional use permits.
We must first presume that the zoning authority acted reasonably. We may not substitute our judgment for that of the Board and should only declare its action unreasonable if we are clearly compelled to do so. The Board, and not the court, has the right to prescribe, change, or refuse to change zoning. We are limited to determining whether the Board's action was unlawful or unreasonable. An action is considered unreasonable when “it is so arbitrary that 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 that its unreasonableness lies outside the realm of fair debate.” 227 Kan. at 28. Whether an action is reasonable or not is a question of law to be determined based upon the facts which were presented to the Board. The landowner has the burden of proving unreasonableness by a preponderance of the evidence. 227 Kan. at 28; see Manly v. City of Shawnee, 287 Kan. 63, 75–76, 194 P.3d 1 (2008) (applying the Combined Investment standard).
We will examine the lawfulness and reasonableness of the Board's action as to each property separately. But we begin by reviewing the applicable city ordinances.
The applicable city zoning ordinances
At the time the violation notices were served on the parties, Topeka prohibited accessory structures “within a required front yard as established by the comprehensive zoning regulations for interior and corner lot street frontages; and further, ... accessory structures shall observe interior and corner lot street frontage front yard setbacks as established by the principal structure.” Topeka City Ordinance § 48–29.02(a)(2). In other words, no accessory structures are allowed in the front yard, and when the property is a corner lot, the accessory structure must observe the setback requirements for front yards. This makes sense because both the front and the side yard abut a city street. So what is the setback requirement for a front yard? The answer to that question is essential to interpreting the ordinance. Topeka City Ordinance § 48–4.03(b)(1) requires that front yards be no less than 30 feet; accordingly, the front yard minimum setback is 30 feet. A clear reading of the statute supports the Board's position that corner lots have a 30–foot setback requirement on all sides abutting the street. This interpretation is further supported by Topeka City Ordinance § 48–27.02(e) which provides that front yard requirements shall apply to both frontages on corner lots, and Topeka City Ordinance § 48–4.03(b)(5) which provides that the side yard of a comer lot must conform to the minimum front yard requirements.
Both the Ropers and Phelps–Davis were given a violation notice that they had violated Topeka City Ordinance § 48–1.09(a)(1), which prohibits any person from using their premises for a use other than one permitted under the zoning codes. The notice further cited Topeka City Ordinance § 48–29.02(a)(2) regarding setbacks from property lines for accessory structures. Under the heading “Nature of Violation,” both notices stated: “Construction of a storage shed within the required front yard setback[.]”
The Ropers' shed
There is no dispute that the Ropers' property is a corner lot under the city ordinances and that the shed in question is an accessory building. And even though there was no direct testimony concerning the location of the shed in relation to the street, it is clear from the photographs that are in evidence that the shed is less than 30 feet from the street. Moreover, the Ropers never challenged the City's allegation that the shed was setback less than 30 feet, nor did the Ropers present any evidence before the Board that the shed was more than 30 feet from the street.
The crux of the Ropers' argument before the Board was that the shed was not located in their front yard, but in their side yard. When the City responded that Topeka City Ordinance § 48–4.03(b)(5) requires that the side yard setbacks on corner lots be the same as front yard setbacks, the Ropers argued that Topeka City Ordinance § 48–4.03(b)(5) referred only to the dimensions of the side yard and not to its setback. They further argued that the notice of violation dealt only with the front yard, and because this was not the front yard, there could be no violation. The Board, after a hearing, disagreed and found that...
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