Moore v. City of Pratt
| Decision Date | 11 June 1938 |
| Docket Number | 33804. |
| Citation | 79 P.2d 871,148 Kan. 53 |
| Parties | MOORE v. CITY OF PRATT et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
City zoning ordinance was not void on ground that public hearings on ordinance were not held by planning commission or on ground that public notices of the hearings were not given as provided by law, where several of the planning commission's meetings were attended by a number of citizens, on whose motion some changes were made in proposed ordinance, and meetings were adjourned from time to time to specific dates, and specific notice was given to all not present who were thought to be especially interested. Gen.St.1935, 12-707, 12-708.
Under zoning statute, city was authorized to enact zoning ordinance containing reasonable regulations and restrictions respecting set-back of new buildings from the front line of the lots in residential district. Gen.St.1935, 12-707.
The statute authorizing the governing body of any city by ordinance to divide city into zones or districts, and regulate and restrict the location of trades and industries and the location, erection, alteration, and repair of buildings designed for specific uses, and the uses of the land within each district or zone, is valid. Gen.St.1935 12-707.
1. Upon the facts shown in the opinion it is held the zoning ordinance in question is not void on the ground public hearings on the proposed ordinance were not held by the planning commission, or on the ground that public notices of such hearings were not given as provided by law.
2. Under our statute (G.S.1935, 12-707) a city in this state is authorized to enact a zoning ordinance which, among other things, contains reasonable regulations and restrictions respecting the set-back of new buildings from the front line of the lot in a residential district.
Appeal from District Court, Pratt County; George L. Hay, Judge.
Action by A. R. Moore against the City of Pratt, Kansas, and others for a declaratory judgment as to the validity of a zoning ordinance of the city. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment reversed with directions.
M. C Bucklin, of Pratt, for appellants.
William B. Hess, of Pratt, for appellee.
This was an action for a declaratory judgment as to the validity of a zoning ordinance of the city of Pratt, a city of the second class having a commission form of government. Plaintiff prays the ordinance be adjudged void, and in the alternative that it be interpreted, and that it be adjudged plaintiff's building was not constructed in violation thereof. Issues were joined, and after a hearing the court held the ordinance to be void, for two reasons: (1) That no notice, as required by law, was given by the planning commission of the time and place for public hearings prior to the making of its final report on the ordinance to the city commission; and (2) that the city had no power under the state zoning law to establish building set-back regulations, as provided in the ordinance. Defendants have appealed.
The facts pertinent to this appeal may be stated as follows: On October 27, 1927, the defendant city enacted an ordinance, No. 214, dividing the city into zones, or districts, for the purpose of regulating and restricting the location of trades, industries and commercial enterprises, and the location, erection, alteration and repair of buildings and other structures designed for a specific use, and regulating the area of the front, rear, side yards, and other open spaces about buildings; limiting the height of buildings and other structures thereafter constructed; limiting the density of population, and providing a penalty for the violation of the ordinance. It divided the city into four use districts,--residence districts, neighborhood business districts, business districts, and industrial districts, the boundaries of which were set out; and it provided that thereafter no building should be erected or structurally altered unless it conformed to the provision of the ordinance pertaining to buildings in the district in which it was situated. With respect to the location of buildings in the residence district it provided that "the depth of the front yard measured back from the street line shall not be less than thirty (30) feet," with an exception not here important.
The city also had an ordinance regulating the construction of buildings, the issuance of permits therefor, providing for a building inspector, prescribing his duties, authorizing him to stop work on any building being constructed not in harmony with the ordinance, and providing for an appeal from his orders or rulings. In June, 1937, plaintiff owned a fifty foot lot, facing east, on Oak street, in that part of the city zoned as a residence district, on which he desired to construct a building for residence purposes. He caused an application to be made to the building inspector for a permit to construct the building. This showed the location of the building to be set back thirty feet from the front line of the lot, and otherwise to conform to the ordinance. The permit was granted. In constructing the building an extension was being built some distance to the north and about six feet east of the structure as shown on the application for the permit. This had the effect of reducing the front yard set-back distance to about twenty-four feet. The building inspector observed this and ordered the work on the extension to be stopped. No appeal was taken from his order. Instead of doing so plaintiff brought this action.
We now take up the questions ruled upon by the trial court in holding ordinance No. 214 to be void, from which the appeal was taken. The first of these is: Does the evidence sustain the finding that no notice, as required by law, was given by the planning commission of the time and place for public hearings on the ordinance prior to the making of its final report to the city commission. The pertinent portion of the statute on this point reads as follows:
***" G.S.1935, 12-708.
The only evidence produced by plaintiff on this point was from the minutes of the meetings of the planning commission and of the city commission. These disclosed that the city, by ordinance, created a planning commission April 1, 1926. The first minutes of the planning commission offered in evidence were of its meeting December 21, 1926, at which time Harold D. Smith, consultant for the League of Kansas Municipalities was present and made an estimate of the cost of preparing the zoning ordinance and maps for the city, and by vote of the commission was instructed to proceed with the work. At its meeting on January, 21, 1927, the proposed zoning ordinance, together with maps, was presented, and it was decided that one map be placed in the window of the First National Bank and the other in the Chamber of Commerce window, and that each member of the commission study a copy of the ordinance and be prepared to discuss the same at the next regular meeting. This appears to have been on April 1, 1927, at which time the mayor and two of the city commissioners were present, and the ordinance was gone over quite thoroughly and suggested changes made, and the meeting was adjourned to April 9, 1927. At that meeting the proposed ordinance was gone over and suggested changes decided upon, and a resolution was passed recommending to the mayor and city commissioners the passage of the ordinance, and that it meet and authorize the publication of notices and set the date and place for public hearings upon the proposed ordinance. On May 14, 1927, a meeting was had, at which citizens were present, and a discussion was had as to whether certain blocks should be placed in the business zone, and other suggestions were made as to placing certain property in the residence section...
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