Petition of City of Shawnee

• Decision Date: 13 August 1984
• Docket Number: Nos. 55901,56249,s. 55901
• Parties: In re The Petition of the CITY OF SHAWNEE to the County Commissioners of Johnson County, Kansas, for Annexation of Certain Lands, Pursuant to K.S.A. 12- 521. The CITY OF BONNER SPRINGS, Kansas, a Municipal Corporation, Appellant, v. The CITY OF SHAWNEE, Kansas, a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 603

687 P.2d 603

236 Kan. 1

In re The Petition of the CITY OF SHAWNEE to the County Commissioners of Johnson County, Kansas, for Annexation of Certain Lands, Pursuant to K.S.A. 12- 521 The CITY OF BONNER SPRINGS, Kansas, a Municipal Corporation, Appellant, v. The CITY OF SHAWNEE, Kansas, a Municipal Corporation, Appellee.

Nos. 55901, 56249.

Supreme Court of Kansas.

Aug. 13, 1984.

Syllabus by the Court

1. The right to intervene under K.S.A. 60-224(a) depends on the concurrence of three factors: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor's interest. Following Rawlins v. Stanley, 207 Kan. 564, 486 P.2d 840 (1971).

2. The provisions of K.S.A. 60-224(a) should be liberally construed in favor of intervention, especially where intervention is necessary to protect some right which cannot otherwise be protected, including the right of appeal.

3. A motion filed under the provisions of K.S.A. 60-260(b) authorizes a district court, exercising its broad discretionary powers, to grant a party relief from a final judgment for any of the reasons set forth in the statute if such power is exercised prior to the time for docketing an appeal from the judgment in the appellate courts.

4. Municipalities, when petitioning to annex territory, and the board of county commissioners, when granting or denying a petition for annexation, under the provisions of K.S.A. 12-521, must substantially comply with the provisions of the statute.

5. When an administrative board acts in a quasi-judicial capacity and enters a final order or judgment, its jurisdiction to reconsider or change such order or judgment ceases from and after the time a valid appeal has been perfected to the district court; the jurisdiction of the board remains suspended during the pendency of the appeal.

6. Parties may not by stipulation vest a court with jurisdiction over a subject matter of a cause which it would not otherwise have had, nor can they circumscribe a court in its determination of questions of law; likewise, a court may not abdicate its duties by relying upon a stipulation of the parties.

7. A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering, as a matter of law, whether the tribunal acted fraudulently, arbitrarily or capriciously; whether the administrative order is substantially supported by evidence; and whether the tribunal's action was within the scope of its authority. Following Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968).

8. In an appeal by landowners aggrieved by a judgment of the district court granting a petition for annexation in reliance upon a joint stipulation of the city and board of county commissioners, after the board had originally denied city's petition, the record is examined and it is held: The trial court failed to observe the appropriate review requirements and restrictions, and erred in granting the annexation petition in view of the substantial evidence found in the record supporting the board's original denial.

C.W. Crumpecker, Jr., of Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, Mo., argued the cause and Allen R. Slater, Olathe, was with him on the brief for appellants Builders Sand Company and Peter E. Powell.

Charles O. Thomas, of Weeks, Thomas & Lysaught, Chartered, Kansas City, argued the cause, and Peggy Grant-Cobb, Kansas City, of the same firm, was with him on the brief for appellants James R. Coleman and Golden H. Coleman.

D.H. Corson, Jr., of Corson & Osborn, P.A., Kansas City, argued the cause, and James T. Wiglesworth, of Rainey & Wiglesworth, Overland Park, argued the cause, and Marvin E. Rainey, and Kenneth C. Slowinski, Overland Park, of the same firm, were with him on the briefs for appellee City of Shawnee.

Gerald E. Williams, of Gage & Tucker, Overland Park, was with him on the briefs for appellant City of Bonner Springs.

Philip S. Harness, Asst. County Counselor, Olathe, argued the cause, and Lyndus A. Henry, County Counselor, Olathe, was with him on the brief for appellee Board of County Commissioners of Johnson County.

COOK, District Judge Assigned:

These cases arise from the attempts of the City of Shawnee to annex a parcel of land in Johnson County. Case number 55,901 is a direct appeal from Shawnee's original annexation proceedings; the appellants Builders Sand Company, et al. are aggrieved landowners in the subject area who were allowed to intervene for the purpose of appeal. Case number 56,249 is a collateral attack on Shawnee's attempted annexation, brought by the City of Bonner Springs as a declaratory judgment action.

The City of Shawnee is a city of the first class, located in Johnson County, on the western edge of the metropolitan Kansas City area. Shawnee presently encompasses 16,753 acres of land with a population of approximately 29,000 people. On December 4, 1980, the City of Shawnee petitioned the Johnson County Board of County Commissioners for an order permitting annexation of approximately 4.7 square miles of land northwest of the city, pursuant to K.S.A. 12-521. Notice to all affected landowners was sent six days later.

The public hearing before the Board of County Commissioners (hereafter the Board) was held in Shawnee on the evening of February 3, 1981. The Board heard testimony from the Shawnee assistant city attorney in support of the proposed annexation, pointing out the services to be provided by the city and the corresponding benefits which would flow to the affected landowners. However, a number of landowners from the target area testified in opposition to the proposed annexation. They highlighted the adequacy of public services already provided to the area by Johnson County, Monticello Township, and other governmental units; they also focused on the shortcomings of Shawnee's proposed services, the city's questionable financial ability to meet the increased demands on its resources, and the burden to be imposed on the landowners through doubling the ad valorem tax.

The Board met in regular session to consider Shawnee's petition on April 13, 1981. Upon reviewing the record and fully discussing the proposal, the Board unanimously denied Shawnee's request. The minutes of that meeting read in pertinent part:

"RESOLUTION No. 033-81

"...

"WHEREAS, the Board is of the opinion that the granting of the Petitioner's request at this time would result in obvious impairment of the real estate involved in that the landowners sought to be annexed would not share within a reasonable time the municipal services and benefits now accorded to the landowners in other portions of the municipality upon a footing of substantial equality, and

"WHEREAS, the Board is of the opinion that at this time the evidence has not shown the necessity for and expediency of annexation and the granting of Petitioner's request would cause manifest injury to the landowners involved.

....

ORDER ....

"The Board having heard testimony as to the advisability of annexing the above described property at a public hearing ... and having examined its files is satisfied that annexation of such property to the City of Shawnee will cause manifest injury to the owners of such land, and hereby orders that the Petition of the City of Shawnee is denied."

Shawnee appealed the Board's denial to the district court of Johnson County, pursuant to K.S.A. 12-521, on April 30, 1981. The appeal lay dormant until September 1 of that year when a motion to intervene was filed by a number of landowners not parties to this appeal. The trial court allowed their intervention on September 18, 1981.

Nothing else was done with the case until April 23, 1982, when the trial court granted Shawnee's ex parte motion to remove the appeal from a list of cases scheduled for dismissal for lack of prosecution. Pretrial conference was held June 25, 1982, and the pretrial order was entered July 13. In the pretrial order, counsel for the respective parties stipulated as to the scope of judicial review and the evidence on which the court's decision would be based. The trial judge determined the case should be held in abeyance pending our decision in In re Appeal of City of Lenexa, 232 Kan. 568, 657 P.2d 47 (1983), because of the similar issues of law present in each. Our decision in that case was handed down January 14, 1983.

For three months following our decision, no further action was taken on Shawnee's appeal. During this time the City of Bonner Springs, in neighboring Wyandotte County, contacted several landowners in the target area regarding voluntary annexation of their land into that city. In an attempt to develop an industrial park, Bonner Springs sought to acquire approximately 300 acres of the 4.7 square miles which had previously been denied Shawnee by the Johnson County Board. Bonner Springs promised to provide grant money to extend into the area essential services including water, sewers, and roads; the city advised the landowners the federal government had already authorized $325,000.00 to build water and sewer lines, and that Bonner Springs was applying for an additional $100,000.00 for roads. On April 11, 1983, these landowners petitioned for and consented to annexation of their land by Bonner Springs pursuant to K.S.A. 12-520(g). That same day Bonner Springs passed, published and filed the ordinances required to annex these lands.

Upon learning of Bonner Springs' annexation, the City of Shawnee and the Johnson County Board of County Commissioners quickly moved to revive Shawnee's attempted annexation. The following day, April 12, Shawnee presented a second petition to the Board requesting an order authorizing annexation of the entire area previously sought, including that portion now annexed by Bonner Springs. Shawnee submitted this second petition to the Board notwithstanding its appeal then...