Martin Marietta Aggregates v. Board of County Com'rs of Leavenworth County

• Citation: 5 Kan.App.2d 774,625 P.2d 516
• Decision Date: 20 March 1981
• Docket Number: No. 50163,50163
• Parties: MARTIN MARIETTA AGGREGATES, Plaintiff-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Defendant-Appellee, v. Mildred O. BISHOP, James L. Bishop, Everett D. Bishop II, Karen Clarke, Earl Jones, Lucille Jones, Blake Wilson, Billie Joyce Wilson, Louis J. Wright, Selena E. Wright, Mary Gumm, J. C. Gumm, Maurice Barry, Mildred Barry, Donnie L. Smith, Sr., Jo Ann Smith, Robert L. Walta, Dorothy E. Walta, Mr. and Mrs. Joe Nick and Tanglewood West Owners Association by and through John Reynolds and Jo Ann Bidnick, Intervenors-Appellants.
• Court: Court of Appeals of Kansas

Page 516

625 P.2d 516

5 Kan.App.2d 774

MARTIN MARIETTA AGGREGATES, Plaintiff-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Defendant-Appellee, v. Mildred O. BISHOP, James L. Bishop, Everett D. Bishop II, Karen Clarke, Earl Jones, Lucille Jones, Blake Wilson, Billie Joyce Wilson, Louis J. Wright, Selena E. Wright, Mary

Gumm, J. C. Gumm, Maurice Barry, Mildred Barry, Donnie L.

Smith, Sr., Jo Ann Smith, Robert L. Walta, Dorothy E. Walta,

Mr. and Mrs. Joe Nick and Tanglewood West Owners Association

by and through John Reynolds and Jo Ann Bidnick,

Intervenors-Appellants.

No. 50163.

Court of Appeals of Kansas.

March 20, 1981.

Review Denied April 29, 1981.

Syllabus by the Court

1. A real party in interest is one who by substantive law possesses the right sought to be enforced.

2. A special use permit is distinct from and not comparable to a variance. The granting of a special use permit does not constitute a change in zoning.

3. A holder of an option to lease real estate for a purpose consistent with a special use permit is a real party in interest, and thus has standing to file an application for a special use permit when the landowner also signs the application (but not as an applicant) and to testify in favor of granting a special use permit.

4. When valid notice of a public meeting is given to all parties entitled to notice and in the form as contemplated by the zoning regulations, due process requirements are met even though additional parties are subsequently allowed to intervene and they actively participate in a second public hearing that is held without giving notice that complies with the zoning regulations.

5. The scope of review in zoning matters is stated and applied.

6. In a case involving an application for a special use permit, it is held: (1) the trial court did not err in determining (a) that it had jurisdiction since the amended petition adding an appeal pursuant to K.S.A. 19-2926 (now 1980 Supp.) related back to the date of the original petition and was thus timely filed; (b) that a holder of an option to lease real estate for a specific purpose is the real party in interest under the facts of this case and thus could properly make application for a special use permit; and (c) that intervenors were afforded due process of law; (2) the trial court did not err in finding that the granting of a special use permit was reasonable.

Edward H. Powers, Jr., and Robert L. Boyce, Jr., Kansas City, for intervenors-appellants.

Robert D. Beall, Leavenworth, for plaintiff-appellee.

Patrick J. Reardon, Leavenworth, for defendant-appellee.

Before MEYER, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This case involves the issuance of a special use permit to establish and operate an underground rock mine in a rural area. The trial court issued a writ of mandamus ordering the defendant, Board of County Commissioners of Leavenworth County (county commissioners) to issue the permit to the plaintiff, Martin Marietta Aggregates. This appeal is taken by landowners in the general area who were allowed by the trial court to intervene, and whom we will refer to as intervenors. The county commissioners do not appeal.

We believe the following issues are before us:

1. Was mandamus an appropriate remedy?

2. Was plaintiff the real party in interest to apply for the special use permit?

3. Did the procedure followed by the county commissioners and the Leavenworth County Planning Board violate the intervenors' right to notice?

4. Was securing a special use permit the wrong method to gain permission to begin an underground mine?

5. Is the trial court's finding that the county commissioners' action was reasonable supported by the evidence?

The basic facts are simple and are largely undisputed. Plaintiff obtained an option to lease land consisting of some 300 acres owned by Shady Trail Ranch Enterprises, Inc., a family corporation owned by Glenn E. Price, Marietta R. Price and John R. Price. Plaintiff then applied for a special use permit to extract raw materials such as rock, gravel, sand, and so forth, from the land, it being plaintiff's intention to mine the raw materials so as to end up with underground storage facilities.

Plaintiff's application for the special use permit was referred to the Leavenworth County Planning Board (planning board), which caused publication notice to be made and copies mailed to all landowners within 1,000 feet of the property as required by the Zoning Resolution of Leavenworth County, Kansas (1962), and the planning board. The intervenors conceded at oral argument that proper notice was given for the first meeting of the planning board. A large group of landowners and other interested parties attended, as did all three county commissioners. The planning board held a hearing and recommended to the county commissioners that a special use permit be issued, provided that plaintiff agreed to comply with nine conditions.

The county commissioners considered the recommendation on September 28, 1977. A number of interested parties appeared at that time and stated they had not been aware of the earlier planning board meeting. The county commissioners referred the matter back to the planning board so as to afford an opportunity for people in the area to present their views, and requested that the matter be considered at the planning board meeting of November 9, 1977. The planning board met on that date at 7:30 p. m., with 85 persons in attendance, including two of the county commissioners, and the matter was again fully explored. All of the intervenors were personally present or represented by counsel. The planning board unanimously reaffirmed its previous recommendation to issue the special use permit.

Some two weeks later on November 23, 1977, at a regular meeting, the county commissioners considered a resolution to issue a special use permit to the plaintiff. Again, all of the intervenors were present either in person or by counsel. After some discussion, two of the commissioners voted in favor of issuing the permit with the conditions recommended by the planning board, and one commissioner voted in opposition to issuing the permit. The county commissioners were of the opinion that their unanimous vote was required to issue the requested permit; consequently, they denied the issuance of the special use permit and so advised the plaintiff. The two commissioners who voted in favor of issuing the permit signed the prepared resolution, which shows on its face, "Denied for lack of unanimous vote." No further hearing was had on the merits on this occasion. It is evident from the transcript of the meeting that it was the opinion of the county commissioners that there was little use in discussing the recommendation since a unanimous vote was necessary and it was already known that one of their members was going to vote against issuing the permit. It is also apparent from these proceedings that the opposing commissioner did not believe the planning board's recommendation to be unreasonable, but stated he felt obliged to vote against it because his constituency was opposed to it.

Plaintiff did not file a direct appeal under either K.S.A. 19-2926 (now 1980 Supp.) or K.S.A. 19-223, but did file an action in mandamus on December 23, 1977 (within 30 days after the county commissioners' action). Basically, the mandamus action alleged that plaintiff was entitled to receive the special use permit as a result of the two-to-one vote. The landowners made application to intervene in the mandamus action and were permitted to do so. On March 6, 1978, plaintiff filed an amended petition that had the effect of adding a count consisting of an appeal under K.S.A. 19-2926 to the mandamus action.

The parties requested an interlocutory appeal at this point, which was denied. The trial court by an alternative writ of mandamus then ordered the county commissioners to issue the special use permit subject to the nine conditions, or to appear by December 20, 1978, and show cause why it should not do so. At the same time, the intervenors were ordered to appear on the same date to contest the reasonableness of the county commissioners' affirmative vote to issue the special use permit.

The trial court heard evidence, inspected the premises, and found the action by the county commissioners to be reasonable and not arbitrary or capricious.

Intervenors argue at the outset that plaintiff misconceived its remedy as lying in mandamus; that the proper remedy to challenge the county commissioners' refusal to issue the requested special use permit should have been a timely direct appeal filed pursuant to K.S.A. 19-2926, 19-223, or 1980 Supp. 60-2101(d ). Intervenors' argument is greatly enhanced by a recent Kansas Supreme Court decision holding that to be timely, appeals under 19-2926 and 19-223 must be brought within 30 days of a commission's decision. Bolser v. Zoning Board for Aubry Township, 228 Kan. 6, Syl. PP 2, 3, 612 P.2d 563 (1980). We believe Bolser does not apply for two reasons.

The key to the intervenors' argument is whether mandamus was a proper method with which to challenge the county commissioners' refusal to grant the special use permit. There is no issue of timeliness in regard to mandamus since there is no fixed time limit on the remedy. Mandamus, as governed by K.S.A. 60-801 et seq., is available for the purpose of compelling the performance of a clearly defined official duty or the performance of an act which the law specifically enjoins as a duty resulting from the office or trust. It may not be invoked to control discretion or to enforce a right that is in substantial dispute. Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 872-73, 518 P.2d 410 (1974).

To determine whether mandamus is available requires close scrutiny of the circumstances attending the denial of the special use permit. The parties do not dispute that the reason the county commissioners denied...