Petition of City of Kansas City to Bd. of County Com'rs of Wyandotte County for Annexation of Land Pursuant to K.S.A. 12-521
| Decision Date | 09 July 1993 |
| Docket Number | No. 68677,68677 |
| Citation | 253 Kan. 402,856 P.2d 144 |
| Parties | In re The PETITION OF the CITY OF KANSAS CITY, Kansas, TO the BOARD OF COUNTY COMMISSIONERS OF WYANDOTTE COUNTY, Kansas, FOR the ANNEXATION OF LAND PURSUANT TO K.S.A. 12-521. In re The PETITION OF John FEEBACK, et al., TO the BOARD OF COUNTY COMMISSIONERS OF WYANDOTTE COUNTY, Kansas, FOR the INCORPORATION OF LAND. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The standard of judicial review for municipal annexation and incorporation cases is discussed and applied.
2. Under the facts of the case at bar, the economic and political nature of the alleged prehearing views of the board of county commissioners concerning the status quo of the area subject to either incorporation or annexation are not proper subjects for judicial review.
3. The legislature contemplated the joint review of incorporation and annexation petition undertaken by a board of county commissioners (board). In determining whether manifest injury would result from annexation, a board must consider under K.S.A. 12-521(c)(12) "existing petitions for incorporation of the area as a new city or the creation of a special district." Similarly, K.S.A. 15-121 requires a board, in analyzing a petition for incorporation, to consider "[t]he willingness of the city to annex the territory and its ability to provide city services in case of annexation."
4. The municipal law doctrine of prior jurisdiction is not applicable under the facts of this case and, consequently, does not prohibit concurrent consideration of the incorporation and annexation proceedings. Jurisdiction for both municipal annexation and incorporation petitions rests in the board of county commissioners.
Charles D. Kugler, Kugler & Dickerson, Kansas City, argued the cause and was on the brief, for appellants.
N. Cason Boudreau, Deputy City Atty., argued the cause, and Harold T. Walker, City Atty., was with him on the brief, for appellee City of Kansas City.
R. Wayne Lampson, County Counselor, argued the cause and was on the brief, for appellee Bd. of County Com'rs of Wyandotte County.
This is a municipal law case. The landowners in the remaining unincorporated portion of Wyandotte County (the Piper area) petitioned for incorporation. The City of Kansas City, Kansas, (City) later petitioned for annexation of the same area. The two petitions moved forward together on an administrative track before the three-person Board of County Commissioners (BOCC). The BOCC denied incorporation and granted annexation. (The Piper area is a 17-square-mile tract adjacent to the western boundary of the City.)
The landowners appealed the BOCC's decisions to the district court. The district court affirmed the BOCC by granting summary judgment to the City which had intervened. The landowners appeal. Our jurisdiction is under K.S.A. 20-3018(c) ().
The landowners frame two issues of district court error. (1) The BOCC was arbitrary and capricious when it failed to consider the status quo of the Piper area as an alternative to either incorporation or annexation. (2) The municipal law doctrine of prior jurisdiction applies, i.e., the BOCC and the district court could only consider the landowners' first-filed incorporation petition to the exclusion of the City's later-filed annexation petition.
We reject both issue propositions, find no district court error, and affirm.
The standard for judicial review of annexation proceedings requires us to first determine whether the district court observed the requirements placed upon it and then conduct a similar review of the action taken by the BOCC. City of Topeka v. Board of Shawnee County Comm'rs, 252 Kan. 432, 434, 845 P.2d 663 (1993). In considering the quasi-judicial decision making, we must determine whether, as a matter of law, the BOCC: (1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority. 252 Kan. 432, Syl. p 1. We should not substitute our judgment for that of the members of the BOCC "who act as elected representatives and are able to observe and hear those who testify." Our role in annexation decisions is limited. 252 Kan. at 439, 845 P.2d 663.
Our standard of review for the BOCC's denial of incorporation is restricted to judicial matters such as the construction of statutes and the application of the statutes to the facts of the case. To determine whether the district court properly discharged its function, we make the same review of the BOCC decision in the first instance as does the district court. The advisability of incorporation is not our concern. In re Application for Incorporation as City, 241 Kan. 396, 402, 736 P.2d 875 (1987). See K.S.A. 15-126.
Litigation involving the Piper area makes a third visit to this court. See In re Reincorporation of Piper City, 220 Kan. 6, 551 P.2d 909 (1976); City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P.2d 403 (1974).
In November 1990, a newspaper reported that a newly elected Wyandotte County Commissioner had proposed the elimination of the unincorporated Piper area to accomplish the goal of consolidation of governmental services.
A member of the BOCC, in March 1991, circulated a memo to the other county commissioners which is characterized by the landowners as "calling for the end of the status quo for the Piper area." The memo discussed the financial constraints that the county was facing due to the implementation of the state-mandated reappraisal and classification system. The memo also commented on the ratio between taxes paid and the cost of services provided by the county to the unincorporated Piper area. Additionally, the memo stated that "self determination of the citizens in this area" was important. An advisory mail ballot to determine the preferences of the Piper landowners was proposed. The opinion poll was mailed to registered voters who resided in the Piper area. The poll provided three options: (1) incorporation into a new municipality; (2) annexation by the City; and (3) annexation by Bonner Springs, Kansas.
The Piper area landowners filed a petition under K.S.A. 15-115 et seq. in May 1991 to incorporate as a third-class city. The City filed its annexation petition a week later. The BOCC set the two petitions for public hearing--the incorporation petition on July 30, 1991, and the annexation petition the next day, July 31, 1991.
With the exception of a brief statement and presentation of the City's annexation petition, all of the comments presented at the incorporation hearing favored incorporation. At the annexation hearing, comments were presented which supported and opposed both annexation and incorporation.
Written comments were received by the BOCC. At the regular meeting of the BOCC held on August 6, a motion was made to approve incorporation of the Piper area. The vote was two in favor and one opposed. The applicable statute, K.S.A. 15-123, requires a unanimous vote if the territory proposed for incorporation is wholly within one county and is within five miles of an existing city. The motion failed. A motion was then made to approve annexation by the City. The annexation motion passed on a vote of two in favor and one abstention. K.S.A. 12-521, the applicable annexation statute, does not require a unanimous vote. The BOCC resolutions denied incorporation and approved annexation. The findings of fact and conclusions of law included consideration of manifest injury and the advisability of annexation.
The City's memorandum in support of its summary judgment motion contained statements of fact concerning procedural history. The landowners did not controvert the City's statement of procedural facts. The memorandum opposing the City's summary judgment motion included a statement of additional uncontroverted facts concerning the wisdom of annexation. According to the landowners, the evidence showed that the Piper area lacked the requisite population density for annexation. The area was primarily used for agricultural purposes, with the exception of a golf course/residential area. The City refutes this density conclusion, contending it is contrary to what the BOCC determined.
The landowners filed a motion to dismiss the City's annexation petition on the basis that the district court had exclusive jurisdiction to hear only matters relating to incorporation. The motion was denied.
We acknowledge the applicable rules of summary judgment. The district court was required to resolve all facts and inferences which might reasonably have been drawn from the evidence, in favor of the landowners. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988). On appeal, we must read the record in the light most favorable to the landowners. Bright v. Cargill, Inc., 251 Kan. 387, 392, 837 P.2d 348 (1992). Summary judgment is proper where the only question or questions presented are questions of law. Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 498, 827 P.2d 758 (1992). The landowners must come forward with something of evidentiary value to establish a material dispute of fact, although they are not required to prove their case. See Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990); K.S.A.1992 Supp. 60-256(e).
In its memorandum opinion, the district court found:
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