Restaurants of Wichita, Inc. v. City of Wichita, 47441
| Decision Date | 02 November 1974 |
| Docket Number | No. 47441,47441 |
| Citation | 527 P.2d 969,215 Kan. 636 |
| Parties | RESTAURANTS OF WICHITA, INC., Appellant, v. CITY OF WICHITA, Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The action of a municipality in exercising its police power is always subject to the test of reasonableness.
2. A provision in the Wichita city code that any permit for a sign to be erected over public property shall be revocable at the will of the board of commissioners, is binding upon a citizen who obtains a permit for that purpose. However, in revoking the permit the city governing body must act reasonably and not in an arbitrary and capricious manner.
3. There is a presumption the governing body of a city acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof.
4. Under the facts and circumstances set forth in the opinion it is held that (1) the city ordinance providing that any permit for a sign to be erected over public property shall be revocable at the will of the board of commissioners is not unconstitutional and (2) the trial court did not err in finding that the action of the city commission in revoking the sign permit was not arbitrary, capricious or unreasonable.
Gerald E. Wells, Arabia & Wells, Wichita, argued the cause, and Paul Arabia, Wichita, was with him on the brief for appellant.
Richard A. Shull, Asst. City Atty., argued the cause, and John Dekker, City Atty., was with him on the brief for appellee.
John P. Woolf and J. Taylor Neuschwander, Martin, Pringle, Schell & Fair, Wichita, were on the brief amicus curiae for James V. Jackson.
This is an action brought by the plaintiff-appellant, Restaurants of Wichita, Inc., to enjoin the defendant-appellee, City of Wichita, from revoking a permit issued by the city to the plaintiff to erect a projecting sign which overhangs a pulbic alley approximately sign which overhangs a public alley approximately been fully stipulated by the parties and are not in dispute. They are as follows: On December 28, 1972, the city through its Central Inspection Division issued sign permit No. 12,988 to Ed Dunn and Sons Signs, Inc., the agent of the plaintiff, authorizing the erection of a projecting sign located on certain real property in Wichita, which was under lease to and occupied by plaintiff. The permit was issued for the projecting sign under that portion of the code of the city of Wichita pertaining to billboards and signs. It is undisputed that the sign as erected projected some four feet over a public alleyway of the city. After the sign was erected residents in the neighborhood requested a hearing before the city commission for revocation of the sign permit. A hearing was held on the controversy at a regular meeting of the commission on January 23, 1973. Following the hearing the city commission revoked the permit and requested the projecting sign to be removed within ten days from that date. The plaintiff thereupon requested a rehearing on the entire matter at the next regular scheduled commission meeting. A rehearing was held on January 30, 1973, at which time the commission summarily rejected the argument of plaintiff's counsel and reaffirmed its prior decision revoking the sign permit. The plaintiff has exhausted all of the administrative remedies available to it. At the hearing in the district court the case was submitted on the stipulated facts just stated and no additional evidence was presented.
The issues raised in the district court and on this appeal are essentially questions of law involving the constitutional validity of certain provisions of the Wichita city code pertaining to the erection and removal of billboards and signs. The city has enacted a comprehensive ordinance pertaining to this subject which is contained in chapter 24 of the code. Section 24.04.020 provides in substance that all matters relating to the erection, removal, location and maintenance of signs and sign devices and their supports or appurtenances erected in the city are presumed to be provided for by this chapter of the city code and all reasonable and uniform rules and regulations adopted in the furtherance thereof. 24.04.030 declares that the chapter is remedial and shall be construed to secure the beneficial interest and purposes thereof, which are public safety, stability, health and general welfare of the citizens of the city. Section 24.04.050 makes it unlawful to erect or maintain any sign in violation of any provisions of this chapter. The code contains definitions of different types of signs and requires a license to engage in the business of erecting or removing signs. It requires a bond for a person so licensed and prescribes a fee for various types of sign permits. Permits for the erection or removal of signs are to be obtained from the Building Inspection Superintendent. There are many sections prescribing specific standards and requirements for the erection of signs. These standards pertain to such matters as prohibited locations, signs exempt under the chapter, general requirements as to standards of materials and construction, and maximum dimensions for the erection of signs, especially signs which extend over public property.
Section 24.04.140 is concerned with the revocation of permits and provides as follows:
'(a) Whenever there is a violation of any of the provisions of this chapter, any provision of this Code or any other ordinance or law relating to signs.
'(b) Whenever the continuance of any work becomes dangerous to life or property.
'(c) Whenever there is any violation of any condition on which the issuance of the permit was based.
'(d) Whenever, in the opinion of the building inspection superintendent, the person having charge of the work is incompetent.
'(e) Whenever any false statement or misrepresentation has been made on the application, drawings or data on which the issuance of the permit was based.
'The revocation notice of the permit, or order to remove a sign, shall be in writing and shall be served on the sign hanger, the owner of the sign or the owner of the premises upon which the sign is hung, the agent or the person in charge of the work.
'Any permit for a sign over public property shall be revocable at the will of the board of commissioners.' (Emphasis supplied.)
It should be noted that before a permit may be revoked by the building inspection superintendent certain specific reasons or standards must be established. However, a permit for a sign over public property is revocable at the will of the board of commissioners. It is this latter...
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