Paul v. City of Manhattan, 46847

• Decision Date: 09 June 1973
• Docket Number: No. 46847,46847
• Citation: 212 Kan. 381,511 P.2d 244
• Parties: Warren I. PAUL and Barbara S. Paul, Appellants, v. The CITY OF MANHATTAN, a municipal corporation, et al., Appellees.
• Court: Kansas Supreme Court

Page 244

511 P.2d 244

212 Kan. 381

Warren I. PAUL and Barbara S. Paul, Appellants, v. The CITY OF MANHATTAN, a municipal corporation, et al., Appellees.

No. 46847.

Supreme Court of Kansas.

June 9, 1973.

Syllabus by the Court

1. In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a made of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.

2. Factors which would indicate that a statute or ordinance is mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.

3. In keeping with the rule that a party must exhaust its administrative remedies before seeking judicial review, objections to procedural aspects of an administrative hearing, not going to jurisdiction, must be made while the agency has an opportunity to correct such deficiencies.

4. In reviewing the reasonableness of a zoning ordinance, a trial court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence.

5. Where the trial court, as the finder of fact, has found that a party has failed to sustain his burden of proof our only function on appellate review is to determine whether there was an arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the trial judge.

6. In an appeal from a judgment upholding the reasonableness of a zoning ordinance, the record is examined and it is held: (1) certain procedural provisions of the city code were directory and not mandatory; (2) the failure to comply strictly with certain procedural requirements did not render the ordinance a nullity where the deficiencies were a matter of form and not substance; (3) there was no error in excluding evidence pertaining to other zoning controversies; and (4) the findings of the trial court were supported by substantial competent evidence.

Thomas Odell Rost, Topeka, argued the cause, and Harlan W. Graham, Manhattan, was with him on the brief for the appellants.

Edward F. Horne, Manhattan, argued the cause and was on the brief for appellees City of Manhattan and Board of Commissioners of Manhattan.

Dan H. Myers, Manhattan, argued the cause and was on the brief for appellee Riley Investment Co., Inc.

FOTH, Commissioner:

This case involves a challenge to the validity of an ordinance of the City of Manhattan rezoning 'Cedar Crest,' a 54-lot subdivision, from 'R' single-family residential to 'R-2' two-family residential. Plaintiffs, Mr. and Mrs. Warren I. Paul, are neighboring landowers and residents. They brought this action on behalf of themselves and other neighbors attacking both the procedure leading to the rezoning ordinance and its reasonableness. The ordinances was upheld by the trial court and plaintiffs have appealed.

The rezoning was requested by the developer, the defendant Riley Investment Co., Inc., through an application filed with the city planning board on July 10, 1970. That body held a public hearing on August 10, 1970, at the conclusion of which it voted unanimously to recommend the change. A number of area residents, including Mrs. Paul, spoke in opposition to the rezoning, and their comments appear in the minutes. Those minutes, reflecting the proceedings and the planning board's action, were forwarded by the planning board to the city commission.

The city commission, a five-member body, first considered the matter on August 18, 1970. At that time it reviewed the planning board minutes of August 10, answered questions of area residents who were present, and had the city attorney explain the procedure for filing a legal protest. No official action was taken at this meeting.

The city commission again took up the matter on September 1, and conducted a one and one-half hour hearing at which plaintiffs were represented by counsel. They submitted, in addition to their oral presentation, a written, detailed and documented analysis of the Manhattan zoning picture and housing needs, demonstrating why they thought the rezoning should be denied. This document consumes some thirty-four pages of the record on appeal.

The September 1 hearing resulted in the commission's tabling the application; it lay on the table until the commission meeting of September 15. On that day plaintiffs submitted a fourteen page supplement to their original written presentation in opposition to the rezoning. The commission, nevertheless, voted to take the application from the table and for the introduction and first reading of a rezoning ordinance.

Final action came on October 6, 1970, when the commission voted four to one for the adoption of the ordinance. (A sufficient protest had been filed, so that the three-fourths vote requirement of K.S.A.1972 Supp. 12-708 had come into operation.) At this meeting plaintiff's counsel urged the city commission to refer the matter back to the planning board for further consideration, but to no avail.

The next day this suit was filed, challenging the reasonableness of the ordinance, as apecifically authorized by K.S.A. 12-712. By agreement of the parties the city was restrained from issuing building permits until the case could be heard on the merits. The city answered, generally denying that the rezoning was unreasonable. Thereafter plaintiffs twice amended their petition, the second amendment raising for the first time the alleged procedural deficiencies complained of in their first point on appeal.

Although no further answer appears on behalf of the city, the defendant Riley Investment Co., Inc. did answer at about the time of trial by way of a general denial. No pretrial order was entered, but the fact of informal pretrial conferences may be gleaned from the record. In December the case was tried, and on January 22, 1971, the trial court filed its memorandum decision containing an extensive discussion of the evidence and applicable law, and specific findings of fact and conclusions of law. It upheld the ordinance on both procedural and substantive grounds.

Plaintiffs' procedural argument is based solely on the provisions of the city's ordinance governing rezoning procedure; there is no suggestion that the requirements of K.S.A.1972 Supp. 12-708 were not fully complied with, and in particular those relating to notice and hearing which we have held to be mandatory. See, Carson v. McDowell, 203 Kan. 40, 452 P.2d 828; and cf., Ford v. City of Hutchinson, 140 Kan. 307, 37 P.2d 39.

Their attack is aimed at two separate stages of the procedure: first, the application submitted to the planning board did not have appended either a plat or a certified list of the property owners residing within 200 feet of the subject property who are entitled (by statute, as well as by ordinance) to notice of hearing. Both these documents are required by the ordinance to accompany the zoning application, but neither was supplied until the actual hearing date. The trial court made the following finding:

'Section 11-103 of Ordinance No. 2650, the major zoning ordinance, City of Manhattan, Kansas, a copy of which section is appended hereto, provides, inter alia, that a plat of a subdivision and a certified list of landowners within 200 feet of the property to be rezoned, must accompany a zoning application; said plat and list were not appended to the application in this case, but were, in fact, furnished to the planning commission at the time of the hearing before that agency and further, inasmuch as no claim is made that notice was not properly given as required by K.S.A. 12-708, there is no showing of injury resulting from the technical omission in appending said plat and certified list to the application to rezone.'

Plaintiffs' second objection goes to the fact that the planning board's recommendation to the city commission was not in the form required by ordinance. The finding below was:

'Section 11-303 of Ordinance No. 2650, a copy of which paragraph is appended to these findings and conclusions provides, that the planning commission shall make a written report to the city commission which report shall state therein the present zoning classification and the classification under the proposed amendment together with certain reasons and determinations therefore. In the instant case, the planning commission did send a written report to the city commission in which they set out their recommendations as to the present classification and the proposed change, but did not set forth the other determinations required by 11-303. The court finds that the failure to set forth the determinations as required by 11-303 resulted in no injury for the reason that the city commission did have and was conversant with all of said determinations because of their prior knowledge or because such information was made available to them during the four hearings which were conducted on this subdivision; and that the failure to include the determination required by 11-303 in the written report going from the planning commission to the city commission did not result in any injury to plaintiffs in this case.'

In its discussion of the evidence the court below observed:

'. . . It may not be gainsaid that there was substantial compliance with the procedural requirements contained in the city ordinances, the oral evidence as well as the exhibits persuade that everything that the ordinances were intended to accomplish was in fact accomplished and all of...