Piper v. Moore

• Decision Date: 22 August 1947
• Docket Number: 36848.
• Citation: 163 Kan. 565,183 P.2d 965
• Parties: PIPER v. MOORE et al.
• Court: Kansas Supreme Court

183 P.2d 965

163 Kan. 565

PIPER v. MOORE et al.

No. 36848.

Supreme Court of Kansas

August 22, 1947

Appeal from District Court, Saline County; James P. Coleman, Judge Pro tem.

Injunction proceeding by Gilbert Piper against James H. Moore and others, as members of the Board of Commissioners of the City of Salina, Kansas, and others to enjoin defendants from enforcing a zoning ordinance wherein defendants filed a cross-petition. From an adverse judgment, defendants appeal and plaintiff cross-appeals.

Reversed with instructions.

Syllabus by the Court.

Under the facts, conditions and circumstances set forth in the opinion it is held: (1) The original zoning ordinance passed by the governing body of the city of Salina on November 23 1925, and published in the official city paper on December 1 1925, is not invalid on the ground notice of public hearings on such ordinance preliminary to its enactment were not held by the city planning commission in strict compliance with requirements of the governing body of the city and (2) on all dates in question the plaintiff was using a building owned by him and located within the limits of the 'A' residence district of the city as a public garage in violation of the provisions of such zoning ordinance.

James P. Mize, of Salina (C. L. Clark, of Salina, on the brief) for appellants.

G. A. Spencer, of Salina, (W. S. Norris, of Salina, on the brief), for appellee and cross-appellant.

PARKER Justice.

This is an injunction proceeding wherein the plaintiff seeks to restrain the defendants, officials of the city of Salina, from enforcing the original zoning ordinance enacted by the governing body of that municipality in November 1925. Under the pleadings plaintiff contends the ordinance is void and, in the alternative, that if it be adjudged valid the business he is conducting in a garage located upon property owned by him, and conceded to be within the limits of the zoning district on all dates in question, is not within its prohibition. Defendants claim such ordinance is valid and that plaintiff has been violating its provisions. By cross-petition they pray that plaintiff be enjoined from using such garage in violation of its terms.

With issues thus joined the cause came on for trial. After hearing the evidence the trial court, having been requested by the parties to do so, made findings of fact and conclusions of law.

The findings of fact, which we have examined and approve as supported by substantial competent evidence, set forth the material facts to be gleaned from a somewhat cumbersome and tedious record in the most concise manner possible under the circumstances and will suffice for a statement of the factual situation upon which the issues depend when quoted in toto. They read:

'1. The plaintiff, Gilbert Piper, first became a resident of the City of Salina in January, 1936, and has resided there ever since.

'2. The defendants, James H. Moore, Jr., Lloyd Price, B. A. Breon, H. C. Simpson and Al Noyce are the members of the Board of Commissioner sof the City of Salina, Kansas, a city of the first class, operating under the Commissioner-Manager form of Government; and the defendant E. J. Allison is the City Manager, and the defendant Edgar Heyl is the Chief of Police of said city.

'3. The plaintiff, Gilbert Piper, is the owner of Lots Seventeen (17) and Nineteen (19) in Block Twenty-three (23) Episcopal Military Institute Addition to the City of Salina, he having acquired the title to Lot Seventeen (17) on May 4, 1943, but had been the owner of an equity, therein since May, 1937. For a number of years prior to July 11, 1944, he had occupied Lot Nineteen (19) as a tenant, and acquired the title to said lot on the latter date. These two lots are contiguous and constitute one tract of land eighty by one hundred and forty feet, with an eighty foot frontage on Seventh Street and 140 foot frontage on Otis Street. Plaintiff's dwelling house is located on Lot Seventeen (17). On Lot Nineteen (19) plaintiff has constructed a garage 25.5 feet by 31.5 feet and 13 feet high. This garage is located to the rear of said lot and more than fifty feet from the front of said lot on Seventh Street, and occupies less than 30% of the rear yard of the main building.

'4. The plaintiff, Gilbert Piper, has entered into an oral arrangement with the management of the Salina store of the Sears Roebuck and Company whereby plaintiff installs reconditioned motors in Ford, Chevrolet and Plymouth automobiles, for customers of the Sears Roebuck and Company. Such motors are sold by the Sears Roebuck and Company to their various customers on both cash and credit bases, and when such sales are on a cash basis, the customer pays plaintiff direct for his services in installing such motor in the customer's automobile, but when the sale is on a credit basis the Sears Roebuck and Company pays the plaintiff for his services in making such installation. Plaintiff receives the sum of $27.50 for installing a Ford motor block and $30.00 for installing a Chevrolet or Plymouth motor block. All of the work is done in the garage described in Finding No. 3 above. Plaintiff has on several occasions employed other persons to assist him in the work in such installations.

'5. Plaintiff has been regularly employed at the Smoky Hill Army Air Base, having civil status, and during the Spring and Summer of 1946 had made the installations described in finding No. 4 during the evenings and at such time as he was not required to be on duty at the Air Base, but at the time of the trial he was no longer employed at the Air Base, but expected to be recalled.

'6. All sales of reconditioned motor blocks by the Sears Roebuck and Company are made with a guarantee of performance of the said motor block on condition that the said blocks are installed by a mechanic approved by the Sears Roebuck and Company. Plaintiff is the only mechanic in Salina who has been approved to do such work by the Sears Roebuck and Company.

'7. On March 2nd, 1925, the Governing Body of the City of Salina, Kansas, passed ordinance No. 3083, which provides for the creation and the appointment of the members of a Planning Commission. This ordinance is in evidence marked, Exhibit No. * * *.

'8. On October 19, 1925, the Governing Body of the City of Salina, Kansas, passed ordinance No. 3174, which was an ordinance providing for and requiring the recommendation by the City Planning Commission to the Board of Commissioners of the City of Salina of the boundaries of certain zones or districts into which such city shall be divided for the regulation and restriction of the location of trades and industries and the location, erection, alteration and repair of buildings designed for specified uses, and the uses of land within each such district or zone; providing for the submission of a tentative report by said Planning Commission and for public hearings thereon and for the submission of a final report thereafter. This ordinance is in evidence, and printed copy attached to defendant's Answer.

'9. Such ordinance required the submission of a tentative report of the City Planning Commission on or before the 26th of October, 1925, and directed the holding of public hearings before the said Planning Commission at the public meeting room of the Board of Commissioners at the City Hall of the City of Salina on October 29th and 30th, 1925, commencing at the hour of 5:00 o'clock P.M. of each of said days, having first given public notice of the time and place of such hearings by notice published in a newspaper of general circulation in the City of Salina, such notice to be published at least three days before the date of the first hearing, and that final report be filed by said Planning Commission with the said Board of Commissioners on or before November 2, 1925.

'10. On October 26, 1925, the said planning Commission met and authorized the submission to the Board of Commissioners of the City of Salina, of a tentative report as provided in Ordinance No. 3174, and ratified and approved the action of its chairman in giving notice by publication in the Salina Journal of public meetings of the City Planning Commission to be held at the City Hall on October 29th and 30th at 5:00 P.M. on each day for the purpose of hearing objections to said proposed ordinance, pursuant to the requirements of said Ordinance No. 3174.

'11. The only notice of the hearings of the City Planning Commission on its tentative report, which were held on October 29th and 30th, 1925, was published in the Salina Journal, a newspaper of general circulation in the City of Salina, on October 27, 1925, and no other notice was at any time published concerning said hearings.

'12. On October 29th and 30th, 1925, at the time and place specified in said ordinance No. 3174, the Planning Commission met for the purpose of hearing objections to said proposed ordinance, and no one appeared to protest or present objections or recommendations to the tentative report. The Planning Commission thereupon made certain changes and amendments, adopted their final report and recommendation to the Board of Commissioners, and the same was filed with the Board of Commissioners.

'13. On the 23rd day of November, 1925, the Governing Body of the City of Salina enacted Ordinance No. 3188, submitted by the Planning Commission as its final report and recommendation, which was duly published in the official city paper on December 1, 1925, A copy of said ordinance is attached to defendants' answer and cross-petition.

'14. Since December 1, 1925, the defendants and their predecessors in office have treated said ordinance as valid, and the same has not been attacked.

'15. Ordinance No. 3188 defines a private and public garage as follows:

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