Moyer v. Board of County Com'rs of Lyon County

• Decision Date: 11 June 1966
• Docket Number: No. 44442,44442
• Citation: 415 P.2d 261,197 Kan. 23
• Parties: Edward B. MOYER, Helen J. Moyer, James B. Moyer and Liddey R. Moyer, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF LYON COUNTY, Kansas, Appellee, H. L. Kending and Roxanna Kendig, Appellants.
• Court: Kansas Supreme Court

Page 261

415 P.2d 261

197 Kan. 23

Edward B. MOYER, Helen J. Moyer, James B. Moyer and Liddey R. Moyer, Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF LYON COUNTY, Kansas, Appellee H. L. Kending and Roxanna Kendig, Appellants.

No. 44442.

Supreme Court of Kansas.

June 11, 1966.

Rehearing Denied July 13, 1966.

Syllabus by the Court

1. An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.

2. The requirement for 'timely application' to intervene in an action as that term is used in K.S.A. 60-224(a) has no application under subdivision (2) until such time as adequate representation ceases.

3. Under the facts and circumstances disclosed by the record the refusal of the defendant to file a motion for a new trial or take an appeal constituted inadequate representation giving right to intervention under the provisions of K.S.A. 60-224(a)(2).

4. In an action in mandamus to compel rezoning of a tract of land in the absence of intervention by adjoining property owners, the Board of County Commissioners sufficiently represented their interest so that they would be bound by a decree directing rezoning.

5. The filing of a motion for a new trial is not a prerequisite to appellate review under the rules applicable to the new Code of Civil Procedure. (Supreme Court Rule 6(d).)

6. In an action challenging the propriety of the Board of County Commissioner's refusal to rezone a tract of land, the power of the court is limited to determining the reasonableness of the Board's refusal, there is a presumption that the Board acted reasonably and without discrimination, and it is incumbent upon those attacking the action to show wherein the Board's action is unreasonable or discriminatory.

7. The record in an action to compel the Board of County Commissioners to rezone a tract of land is examined and it is held the evidence is insufficient to support the trial court's judgment directing rezoning.

Norman E. Gaar and Alvin D. Shapiro, Kansas City, Mo., argued the cause, and Elvin D. Perkins, Emporia, was with them on the briefs for appellants.

James W. Putnam and Richard Mankin, Emporia, argued the cause, and Jerry R. Demo, Emporia, was with them on the briefs for appellees.

HATCHER, Commissioner.

This is an appeal from a judgment in a mandamus action which stemmed from a zoning controversy.

A bypass designated I-35 is being constructed north of the city of Emporia, Kansas, extending east and west. There will be three limited access interchanges, one at Burlingame Road for the east side of Emporia; one at Highway 99 for the central business district, and one at Industrial Road for the west side of the town.

The plaintiffs own land at the intersection of Burlingame Road and the bypass. All of the land at this point, which was outside the city limits, the zoned 'R-2' residential. The plaintiffs gave Phillips Petroleum Company on option to purchase their tract of land conditioned on a change in zoning so that a service station could be constructed thereon.

On July 7, 1964, plaintiffs' petition to have the land rezoned was refused by the Metropolitan Area Planning Commission of the city of Emporia and Lyon County. Plaintiffs renewed their request on December 9, 1964, and on February 9, 1965, the commission approved the request as to the east one-half of plaintiffs' land. On March 5, 1965, the Board of County Commissioners of Lyon County reversed the Area Planning Commission's decision and the land remained zoned for residence only.

On April 1, 1965, plaintiffs filed this action in mandamus alleging the decision of the Board of County Commissioners was unreasonable, arbitrary and capricious. On the trial of the case the adjoining landowners, appellants herein, appeared by their attorneys and offered to enter their appearance or intervene. Appellants' attorneys were permitted to sit at the counsel table and assist defandants' attorney. On July 15, 1965, the district court filed its memorandum opinion in which it found the act of the defendant, the Board of County Commissioners, in refusing to change the zoning to 'CS' Highway Service District classification, unreasonable and discriminatory, and entered judgment for plaintiffs as to the east one-half of plaintiffs' land on July 22, 1965.

The attorney for the defendant, the Board of County Commissioners, informed the adjoining landowners, appellants, that the Board would not file a motion for a new trial, neither would it file an appeal if the motion was denied. The adjoining landowners on July 27, 1965, filed a motion to intervene as defendants for the purpose of filing a motion for a new trial and perfecting an appeal if the motion for a new trial was denied. This motion was overruled.

The adjoining landowners have appealed challenging both the denial of the motion to intervene and the judgment on the merits.

At the outset we are confronted with appellees' motion to dismiss the appeal because the issues in the case have become moot.

Appellees contend that when the district court entered its order no effect was made to obtain a stay of execution and the county commissioners did change the zoning on the land in controversy; that the zoning is now an accomplished fact, and 'that a reversal of that order in this court could not and would not in and of itself change the zoning of the subject property because such changes can be made only as prescribed by statute.'

We cannot agree with appellees' contention. We take the view that if the district court entered an erroneous order which caused the Board to pass a zoning resolution which was contrary to its better judgment, both the court order and the zoning resolution could be and should be set aside if no deterimental change in circumstances has occurred in connection with the land due to appellants' failure to obtain a stay of the trial court's order pending appeal.

This court adheres to the rule that it will not consider and decide questions which if decided would not be applicable to any actual controversy and where the judgment itself would be unavailing. However, appeals will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. (Moore v. Smith, 160 Kan. 167, 160 P.2d 675 and cases cited therein.)

As will be demonstrated by the conclusion of this opinion effectual relief can be granted if the judgment should be reversed.

Appellants first complain of the judgment of the trial court refusing them permission to intervene when, following the judgment, the attorney for the Board of County Commissioners announced that he was not going to litigate further.

The appellees contend, and the trial court appears to have concluded, that the motion to intervene was untimely, having been made after the judgment, and could not be allowed. We cannot agree with the contention under the facts and circumstances of this case.

At the commencement of the trial the County Attorney announced that he was appearing for the County Commissioners, and also appearing at the counsel table were counsel for Mr. Harold Kending, the protesting landowner in the case. He also announced that he was associated as local counsel with counsel representing Mr. Kendig. In answer to a question by the court as in what capacity Mr. Kendig was appearing the following colloquy took place:

'Mr. Shapiro: Your Honor, we just understood that as a protesting landowner, Mr. Kendig, has a right to be heard in this matter. If the court wishes, we will enter an appearance or perhaps under your rules, we might be able to ask for leave to intervene in this matter.

'The Court: The Court would not permit intervention sought in this manner. If you care to remain at counsel table to assist Mr. Demo, you may do so.

'Mr. Shapiro: Thank you, your Honor.

'The Court: The landowner will not be permitted to introduce evidence in this case since he is not a party to the action.

'Mr. Putnam: If it please the court, your Honor, the plaintiff also desires to point out that if the County Attorney is appearing on behalf of the County of Lyon and also on bahalf of Mr. Kending as stated for the record, that it is our position that there is a direct conflict of interest.

'The Court: Well, the Court recognizes the uniqueness of the situation, but will permit him to go forward.'

It is clear that the court and all of the parties knew the interest which the appellants had in the case and that their interest was similar to and being represented by the defendant, the Board of County Commissioners.

The appellants contend that the adjoining landowners had the right to intervene when the Board refused to appeal from the judgment requiring a change in zoning which effected the value of the landowner's property. K.S.A. 60-224(a), insofar as material here, provides as follows:

'Upon timely application anyone shall be permitted to intervene in an action: * * * or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be found by a judgment in the action; * * *'

There are three requirements for intervention under the above rule, i. e., timely application, inadequate representation by the existing parties and a judgment which is or may be binding.

Until such time as the county attorney announced that he was not going to file a motion for a new trial and appeal the case if a new trial was denied, the adjoining landowners had been adequately represented by the Board of County Commissioners. On being informed of the defendant's intentions, the adjoining landowners filed their motion to intervene and attached thereto...