Kimberlin v. City of Topeka

Decision Date06 December 1985
Docket NumberNo. 57630,57630
Citation238 Kan. 299,710 P.2d 682
PartiesRobert R. KIMBERLIN and Galen L. Schaefer, Appellants, v. CITY OF TOPEKA, Kansas; William B. McCormick, Jack F. Alexander, James L. Claussen, Harry L. Felker, and William P. Sheahan, as members of the governing body, The Board of Commissioners of the City of Topeka, Kansas; and The Board of County Commissioners of Shawnee County, Kansas; Roland G. Hug, Dennis R. Taylor, and Larry D. Woodward, as members of the governing body of Shawnee County, Kansas, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. The validity of a provision in an ordinance which has not, does not, and cannot ever have any application is an abstract question which is not a proper subject for judicial determination.

2. An airport hazard zoning ordinance is held not to be impermissibly vague.

3. An airport hazard zoning ordinance is held to be a valid exercise of the police power and not a taking of private property without just compensation or due process of law.

John E. Stumbo, of Stumbo & Stumbo, Topeka, argued the cause and was on the brief, for appellants.

Stephen P. Weir, of Hiatt & Carpenter, Chartered, Topeka, argued the cause, and Edwin P. Carpenter, of the same firm, was on the brief, for appellees.

McFARLAND, Justice:

This is a consolidated appeal of three actions challenging the validity of an airport hazard zoning joint ordinance and resolution enacted by the City of Topeka and the County of Shawnee. The plaintiffs are landowners in the area subject to the ordinance/resolution. The district court upheld the validity of the ordinance/resolution in a trial of the consolidated cases and plaintiffs appeal therefrom.

The ordinance of the defendant City of Topeka is No. 14650 and was adopted on May 13, 1980. The defendant City's ordinance is codified as Topeka, Kansas, Code Art. II, Sec. 4-55 through 4-64 (1985).

The resolution of the defendant Board of County Commissioners is No. 80-75 and was adopted on May 20, 1980. The joint ordinance and resolution will, for the sake of simplicity, be hereinafter referred to as the "ordinance." The ordinance is an airport hazard zoning ordinance and applies to the Forbes Field and Phillip Billard Airports.

Plaintiff Robert R. Kimberlin owns property in the affected zone near Forbes Field. Plaintiff Galen L. Schaefer owns property in the affected zone near Phillip Billard Airport. The actions have a complex procedural history which includes an abortive attempt at a class action. The procedural history is not involved in the issues on appeal and need not be set forth herein.

The ordinance is lengthy and portions thereof will be set forth specifically as needed for discussion for particular issues raised. The ordinance places height and use restrictions on property located near the two airports. Statutory authority for adoption of such ordinances is set forth in the airport zoning act, K.S.A. 3-701 et seq.

With this brief background, we turn now to the issues raised on appeal. The first issue challenges the validity of a portion of the ordinance which permits the placing of markers or warning lights on nonconforming uses within the subject area.

Specifically, the ordinance provides in pertinent part:

"Section 7. Nonconforming Uses. (1) Regulations not Retroactive--The regulations prescribed by this joint ordinance/resolution shall not be construed to require the removal, lowering, or other changes or alteration of any structure or tree not conforming to the regulations as of the effective date of this joint ordinance/resolution, or otherwise interfere with the continuance of nonconforming use.

"(2) Marking and Lighting--Notwithstanding the preceding provision of this Section, the owner of any existing nonconforming structure or tree is hereby required to permit the installation, operation, and maintenance thereon of such markers and lights as shall be deemed necessary by the Executive Director of the Metropolitan Topeka Airport Authority to indicate to the operators of aircraft in the vicinity of the airport, the presence of such airport hazards. Such markers and lights shall be installed, operated, and maintained at the expense of the Metropolitan Topeka Airport Authority."

This is codified as Sec. 4-60(a) and (b) of the City Code of Topeka.

Plaintiffs contend Section 7(2) permits an unconstitutional public taking of private property without compensation and, further, that such provision exceeds the grant of authority in the enabling statutes, K.S.A. 3-706(2) and 3-707(3).

Defendants argue this issue is not properly before the court. Although defendants' argument in this regard is couched in terms of plaintiffs' alleged lack of standing to raise the issue, the question is really whether the issue is a proper matter for determination.

Section 7 of the ordinance applies only to nonconforming uses of property in the areas subject thereto. What is a nonconforming use relates wholly to land uses existing as of the effective date of the ordinance. It is uncontroverted there were no nonconforming uses of the property anywhere in the subject areas. The complained-of provision of Section 7(2) of the ordinance has not, does not, and can never have any application. Under these circumstances the validity of Section 7(2) is an abstract question. As stated in Knowles v. State Board of Education, 219 Kan. 271, 547 P.2d 699 (1976):

"The rule as to moot questions is one of court policy, founded upon the proposition that, except when under some statutory duty to do so, courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination." Syl. p 2.

See also City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981), as follows:

"We have frequently stated it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. Randall v. Seemann, 228 Kan. 395, 398, 613 P.2d 1376 (1980); Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928 (1976)." 229 Kan. at 270, 623 P.2d 1332.

We conclude this issue is not a proper subject for judicial determination.

For their second issue plaintiffs contend the ordinance is impermissibly vague.

The standards to be applied to challenge the legislation based upon alleged vagueness are set forth in State v. Dunn, 233 Kan. 411, 662 P.2d 1286 (1983), as follows:

"In State v. Lackey, 232 Kan. 478, 479, 657 P.2d 40 (1982), we recognized that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See also State v. Carpenter, 231 Kan. 235, 237, 642 P.2d 998 (1982); Cardarella v. City of Overland Park, 228 Kan. at 700 . A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a common sense determination of fundamental fairness. State v. Lackey, 232 Kan. at 479-80 ; State v. Carpenter, 231 Kan. at 237 ; Cardarella v. City of Overland Park, 228 Kan. at 703 . See also Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L.Ed.2d 222, 92 S.Ct. 2294, [2298] (1972). In determining whether an ordinance is void for vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Cardarella v. City of Overland Park, 228 Kan. at 702 ; State v. Lackey, 232 Kan. at 480 . See also Hejira Corp. v. MacFarlane, 660 F.2d [1356] at 1365 [10th Cir.1981], Casbah, Inc. v. Thone, 651 F.2d 551, 558 (8th Cir.1981). In Cardarella v. City of Overland Park, 228 Kan. at 706 , we also noted: (1) upon challenges for vagueness greater leeway is afforded statutes regulating business than those proscribing criminal conduct; and (2) a statute is not to be struck down only because marginal cases could be put where doubts might arise." 233 Kan. at 418, 662 P.2d 1286.

The vagueness challenge to the ordinance is two-pronged:

1. The definition of "airport hazard" is so vague as to fail to give fair notice of proscribed land usage; and

2. the height restrictions are so complex and confusing that a landowner cannot determine what restriction applies.

We shall first consider the issue raised as to the term "airport hazard." In pertinent part, the ordinance provides:

"Section 1. Statement of Purpose. It is hereby found that an airport hazard endangers the lives and property of users of Forbes Field and Phillip Billard Airports, and property or occupants of land in their vicinities, and also if the obstruction type, in effect reduces the size of the area available for the landing, take-off, and maneuvering of the aircraft, thus tending to destroy or impair the utility of Forbes Field and Phillip Billard Airports and the public investment therein.

Accordingly, it is declared:

(1) That the creation or establishment of an airport hazard is a public nuisance and injury to the regions served by Forbes Field and Phillip...

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