Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc.

• Decision Date: 11 October 1991
• Docket Number: 65623,Nos. 65622,s. 65622
• Citation: 819 P.2d 138,16 Kan.App.2d 93
• Parties: LAWRENCE PRESERVATION ALLIANCE, INC., and Kansas State Historical Society, Appellees, v. ALLEN REALTY, INC.; The City of Lawrence, Kansas, A Municipal Corporation; and Gene Shaughnessy, Building Inspector for the City of Lawrence, Kansas, Appellants.
• Court: Kansas Court of Appeals

Page 138

819 P.2d 138

16 Kan.App.2d 93

LAWRENCE PRESERVATION ALLIANCE, INC., and Kansas State

Historical Society, Appellees, v. ALLEN REALTY, INC.; The City of Lawrence, Kansas, A

Municipal Corporation; and Gene Shaughnessy,

Building Inspector for the City of

Lawrence, Kansas, Appellants.

Nos. 65622, 65623.

Court of Appeals of Kansas.

Oct. 11, 1991.

Review Denied Jan. 28, 1992.

Syllabus by the Court

1. Pursuant to K.S.A. 75-2715, historic preservation is "among the highest priorities" of state government. The regulation of private property for preservation purposes is a valid exercise of governmental police power.

2. Judicial review of administrative action is limited to a determination of whether, as a matter of law: (1) the tribunal acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is substantially supported by evidence, (3) the tribunal's action was within the scope of its authority, and (4) the agency erroneously interpreted or applied the law.

3. The failure of an administrative body to follow statutory mandates renders the administrative action arbitrary and capricious.

4. The failure of an administrative body to examine relevant factors, where such an examination is required by statute, renders the administrative action arbitrary and capricious.

5. Remedial legislation which is designed to protect the public should be liberally 6. Where historic preservation statutes permit participation in the decision-making process by a particular governmental entity, that entity is entitled to notice of adjudicative proceedings conducted by a different governmental actor.

construed and is entitled to a broad interpretation.

7. In civil proceedings, a district court may order a party "to permit entry upon designated land ... for the purpose of inspection." K.S.A. 1990 Supp. 60-234(a)(2).

8. Under the facts herein, the record is examined and it is held: The district court did not err (a) by concluding the city commission acted arbitrarily and capriciously; and (b) by ordering the proponent of the demolition permit to allow access to the building by opponents of the demolition for the purpose of conducting an inspection.

Todd N. Thompson, Barber, Emerson, Springer, Zinn & Murray, Lawrence, for appellant Allen Realty, Inc.

Roger K. Brown, Allen, Cooley & Allen, Lawrence, for appellants City of Lawrence and Gene Shaughnessy.

Ronald Schneider, Lawrence, for appellee Lawrence Preservation Alliance, Inc.

Theresa M. Nuckolls, Asst. Atty. Gen., John W. Campbell, Deputy Atty. Gen., and Robert T. Stephan, Atty. Gen., for appellee Kan. State Historical Soc.

Before GERNON, P.J., LEWIS, J., and RON ROGG, District Judge, assigned.

GERNON, Judge:

This case is on appeal for the second time. This court, in Allen Realty, Inc. v. City of Lawrence, 14 Kan.App.2d 361, 790 P.2d 948 (1990) (Allen I ), reversed and remanded with instructions for the City of Lawrence (City) to hold a hearing on a demolition permit application.

Allen I dealt with the application of Allen Realty, Inc., (Allen) to the City for a demolition permit for a structure owned by Allen known as the English Lutheran Church (Building) at 1040 New Hampshire Street in Lawrence. The Douglas County Courthouse (Courthouse), which is listed on the National Register of Historic Places, is situated south of Eleventh Street and fronts on the 1100 block of Massachusetts Street. Massachusetts Street in Lawrence runs one block west of New Hampshire Street.

The Building is near the Courthouse and, therefore, the State Historical Preservation Officer (SHPO) was notified of Allen's application for a demolition permit. Such a notice is required by K.S.A. 75-2724. Also, the City of Lawrence is a party to a certified Local Government Agreement, dated July 11, 1989, under which the City agrees, among other matters, to "maintain a qualified historic preservation commission" and to provide for "adequate public participation in the local historic preservation program." The City's Historic Preservation Ordinance specifically authorizes the Lawrence Historic Resources Commission (HRC) to testify before the City Commission on any matter affecting historically or architecturally significant properties. The ordinance requires notice to the HRC within five days after receipt of an application for a demolition permit.

The SHPO initially concluded that the demolition would not affect any historical property, but withdrew that determination and later recommended by letter that the City deny the demolition permit because the demolition "will encroach upon, damage or destroy a historic building in the environs of the Douglas County Courthouse, a property listed on the National Register of Historic Places." The SHPO later wrote a third letter to the City, stating that the demolition "would encroach upon, damage or destroy the environs of the Douglas County Courthouse" and repeated the recommendation that the demolition permit be denied. 14 Kan.App.2d at 363, 790 P.2d 948.

The City subsequently denied the application for the permit. Allen appealed to the district court, which dismissed its appeal from the SHPO's determination and granted summary judgment to the City on Allen's appeal from the City's denial of the This court further held that the City may not require a landowner to provide specific plans for the future use of property after demolition as a precondition for issuing a demolition permit, nor does Kansas law require a landowner to attempt to sell his property and dispel sale as an alternative to demolition before issuing a demolition permit. 14 Kan.App.2d at 373-74, 790 P.2d 948.

                permit.  14 Kan.App.2d at 363-64, 790 P.2d 948.   Allen appealed to the Court of Appeals, which reversed the district court's grant of summary judgment to the City and remanded the case to the City for a new hearing on Allen's application for a demolition permit.  14 Kan.App.2d at 374, 790 P.2d 948.   The pertinent rulings of Allen I were:  (1) The proponent of a project has the burden to prove no acceptable alternative exists;  (2) a potential alternative is not a "relevant factor" unless it is supported by evidence to indicate it is both feasible and prudent;  and (3) the proponent does not have to refute a potential alternative unless it is proven to be a "relevant factor."  14 Kan.App.2d at 372-74, 790 P.2d 948
                

Allen, the City, and the SHPO were parties in Allen I. The Lawrence Preservation Alliance, Inc., (LPA) was permitted to file an amicus curiae brief in Allen I.

Immediately after receipt of this court's opinion in Allen I, Allen's counsel sent a letter to the City, addressed to Mr. Roger Brown as counsel for the City, which stated in part:

"Allen Realty does not desire any further undue delay, and thus it does not plan to seek review of the decision of the Court of Appeals by the Kansas Supreme Court.

"It is Allen Realty's intention to proceed as soon as is reasonably possible with a hearing before the City Commission. However, since it has only been a little over one week since the Court of Appeals issued its decision, Allen Realty has not yet had sufficient opportunity to prepare for such a hearing, and thus it is not in a position to specify the date when it desires that the hearing be placed on the agenda."

On May 14, 1990, Allen sent a letter to the Lawrence city manager, Mike Wildgen, to "request a hearing before the City Commission on its meeting of May 22, 1990, to discuss our demolition permit request."

Wildgen sent a letter to Allen two days later, which stated:

"I presented your request of May 14, 1990, to the City Commission. The Commission felt that the next two City Commission agendas will not allow for the placement of this item on either of those agendas. They did schedule your request to discuss the demolition permit for June 12, 1990."

The agenda for the City Commission meeting, including the demolition permit request, was published in the Lawrence Journal World on June 8, 1990, four days before the "discussion" was scheduled. There was no other notice of or communication concerning the demolition item being on the City Commission agenda to either LPA or the SHPO.

On June 6, 1990, Dave Billings, president of LPA, sent a letter to Wildgen, which stated in part:

"As you are aware, we have been following the progress of the attempt by Allen Realty to obtain a demolition permit for the property....

....

"One alternative would be for the LPA to purchase the building, remodel it, then either lease or sell it to a party who will maintain the property....

"We have determined that it is structurally feasible to rehabilitate the building. Now we must determine if it is economically feasible to rehabilitate it. In order to do this we must have access to the building to allow professional persons such as architects and engineers to examine the building. If we could determine a day, with reasonable notice, when this could be done, the building would only need to be accessible for that one day.

"Our request is that the City Commission defer granting a demolition permit On the same day, Billings sent a letter to Allen, which included a copy of the letter from LPA to Wildgen. The letter to Allen stated in part: "Please note that we would like the opportunity to access the building to determine the economical feasibility of preserving it. We would be most appreciative of your cooperation on this matter." No access was permitted.

for a period of 60 days. This would allow time for us to make a final determination on the economic feasibility of preserving the property."

The request for the demolition permit was considered at the City Commission meeting on June 12, 1990. One of the commissioners noted that Allen had not submitted any information to the Commission prior to the hearing and stated that the Commission did not have the expertise to review the documentation presented at the meeting and make a decision. The record of the City...