Manly v. City of Shawnee

• Decision Date: 17 October 2008
• Docket Number: No. 99,155.,99,155.
• Parties: Robert W. MANLY and Jane Manly, Appellees/Cross-appellants, v. CITY OF SHAWNEE, Kansas, Appellant/Cross-appellee, and Shawnee Mission School District, a/k/a Unified School District No. 512, Appellee/Cross-appellee.
• Court: Kansas Supreme Court

194 P.3d 1

Robert W. MANLY and Jane Manly, Appellees/Cross-appellants, v. CITY OF SHAWNEE, Kansas, Appellant/Cross-appellee, and Shawnee Mission School District, a/k/a Unified School District No. 512, Appellee/Cross-appellee.

No. 99,155.

Supreme Court of Kansas.

October 17, 2008.

Marvin E. Rainey, of Rainey & Rainey, of Overland Park, argued the cause, and Chad E. Humble, of the same firm, was with him

on the briefs for appellant/cross-appellee City of Shawnee.

Rod L. Richardson, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and Richmond M. Enochs and James L. MowBray, of the same firm, were with him on the briefs for appellees/cross-appellants Robert Manly and Jane Manly.

Curtis Tideman, of Lathrop & Gage, L.C., of Overland Park, argued the cause, and Jeffrey R. King and David E. Waters, of the same firm, were with him on the briefs for appellee/cross-appellee Shawnee Mission School District.

Donald L. Moler, Jr., executive director, and Sandra Jacquot, legal counsel, were on the brief for the amicus curiae League of Kansas Municipalities.

The opinion of the court was delivered by JOHNSON, J.:

This appeal and cross-appeal emanate from the Shawnee Mission School District's (school district) application to the City of Shawnee (City or City Council) for a special use permit to allow the construction of an illuminated softball complex and stadium next to property owned by Robert and Jane Manly. Although the facility has been constructed and in use for some time, the City appeals the district court's ruling on the number of votes required to issue a special use permit under K.S.A. 12-757(d) and, alternatively, challenges the district court's refusal to consider the City Council's second vote on the application. The Manlys likewise continue to litigate the genesis of the completed project by cross-appealing, wherein they contend that the district court should have considered and rejected the City Council's second vote; that the district court erred in ruling the zoning change was reasonable; and that the district court erred in failing to recognize and find a violation of the Manlys' due process rights. Finding that the district court misinterpreted K.S.A. 12-757(d), we reverse its ruling that the initial vote by the City Council was unlawful, and we remand for a dismissal of all further proceedings in this case.

FACTUAL AND PROCEDURAL HISTORY

The procedural history of this case is rather tortured and convoluted, and we perceive that a detailed recitation is unnecessary for our decision. We will begin with a factual overview, describing only the relevant portions of the proceedings.

The Manlys owned 38 acres of land in Shawnee, Kansas, adjacent to an 18-acre tract owned by the school district. The school district land was zoned for agricultural use, which would have permitted a softball field, but not one with lights and a stadium. On October 14, 2005, the school district applied to the City for a special use permit for a proposed softball facility with four playing fields, parking for 300 cars, seating capacity for 700, and sports lighting on the fields. A storage building and a concession/restroom building were also included. The school district planned to use the fields for five high school varsity, junior varsity, and "C" teams, and anticipated the possibility of leasing the facility to outside youth organizations. The construction was scheduled to begin in the spring of 2006 and to be completed in time for the spring 2007 season.

The planning commission scheduled a public hearing on the application for November 21, 2005, and appropriate notice was given to neighboring landowners and the public. The City planning staff studied the plan proposal and submitted a memorandum in which it recommended approval with certain conditions to address concerns about parking, lighting, and site buffering.

At the November 21 meeting, the planning commission heard from and questioned the City associate planner about the staff review of the school district's plan. The commission heard extensive comments from the public, including Robert Manly. Thereafter, the planning commission discussed the proposal and ultimately voted 4 to 3 to recommend that the City deny the special use permit, citing the frequency with which the facility would be used and its impact on surrounding properties.

The City Council considered the application on December 12, 2005. The council members heard from and questioned the City planning director, a school district administrator, the project architect, and members of the public, including Manly and his attorney. Some of the council members voiced a concern that the site plans had been modified since the planning commission considered them. On a 5 to 3 vote, the City Council remanded the application to the planning commission for further review, specifically requesting an examination of the following items:

"(1) the revised site plan lowering the elevation of the parking lot along the south side of the property an additional two feet; (2) revisions in the proposal to turn the lights of the field off earlier than originally proposed; (3) Using a board on board fence along the south property line or consider requiring solid fencing also along the east and north property lines to assist in the reduction of noise; (4) Whether further restrictions should be imposed on the rental of the facility between June and October."

The planning commission reconsidered the application on January 4, 2006. Although the commissioners received conflicting opinions on whether it could reopen the public hearing, it voted not to do so, although it accepted a letter from the Manlys' attorney to be included in the record. After discussing the proposed changes to the plan, the commission voted 5 to 3 to reaffirm its previous recommendation of denying the special use permit.

The City Council reconsidered the application on January 9, 2006. The City Council heard from a number of people, including members of the public. A motion to deny the permit failed on a 4 to 4 vote. A motion to grant the special use permit in contravention of the planning commission recommendation and to modify any conflicting portion of the City's comprehensive plan passed on a 5 to 4 vote, with the mayor casting the tie-breaking vote.

On January 23, 2006, the Manlys filed eight protest petitions, pursuant to K.S.A. 12-757(f)(1). The record does not reflect if any direct action was taken on those petitions.

On February 7, 2006, the Manlys filed a petition in district court, pursuant to K.S.A. 12-760(a), requesting a determination of the reasonableness of the City's approval of the special use permit and seeking an injunction during the pendency of the litigation. Ultimately, on December 4, 2006, the district court issued a memorandum decision in which it found that the City's action in overriding the planning commission recommendation with a simple majority was unlawful, in contravention of K.S.A. 12-757(d). The court also held that the public hearing was officially concluded on November 21, 2005, rendering the protest petitions untimely. Accordingly, the City's approval of the special use permit was reversed and the application was remanded to the City Council for further proceedings consistent with the court's ruling. The district court declined to make any findings on the reasonableness of the proposed special use permit.

Thereafter, all parties filed assorted motions with the district court; the school district and the City made unsuccessful attempts to appeal to the Court of Appeals. Meanwhile, the City Council had a special meeting on December 19, 2006, and voted 6 to 2 to ratify and reaffirm the action taken at the January 9, 2006, meeting which granted the special use permit.

On February 8, 2007, the district court held a status hearing on the posttrial matters and set a briefing schedule. On May 31, 2007, the district court issued a memorandum decision finding the Manlys had failed to sustain their burden of proving the City's decision to grant the special use permit was unreasonable and that the permit did not constitute impermissible spot zoning. However, the district court reiterated that the simple majority vote at the January 9 meeting was unlawful. The district court further opined that it did not have jurisdiction to consider the City's actions at the posttrial special meeting on December 19, because that action had not been appealed.

After further posttrial motions and premature notices of appeal, an appeal and cross-appeal were finally docketed with the Court of Appeals. Upon the Manlys' motion, the appeal was transferred to the Supreme Court, pursuant to K.S.A. 20-3018(c).

INITIAL CITY COUNCIL VOTE

The core question in this case is whether the City had the authority to grant the special use permit with a simple majority vote, after the planning commission had reconsidered the proposal and reaffirmed its recommendation to deny the permit. The answer is found in the applicable statutes. Therefore, our review is unlimited, and we need not afford any deference to the district court's interpretation. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).

The controlling statutory provision is found in K.S.A. 12-757(d), which provides, in relevant part:

"Unless otherwise provided by this act, the procedure for the consideration and adoption of any such proposed amendment shall be in the same manner as that required for the consideration and adoption of the original zoning regulations.... When the planning commission submits a recommendation of approval or disapproval of such amendment and the reasons therefor, the governing body may: (1) Adopt such recommendation by ordinance in a city or by resolution in a county; (2) override the planning commission's recommendation by a 2/3 majority vote of the membership of the governing body; or (3)...