Spurgeon v. Board of Com'rs of Shawnee County, 40648
| Decision Date | 09 November 1957 |
| Docket Number | No. 40648,40648 |
| Citation | 317 P.2d 798,181 Kan. 1008 |
| Parties | Orion Ralph SPURGEON and Adeline May Spurgeon, Appellants, v. BOARD OF COMMISSIONERS OF SHAWNEE COUNTY, Kansas, Dean E. Yingling, Robert R. Jones and Paul Madden, Commissioners; Shawnee County Planning Commission, Chris Armstrong, J. H. Deurmyer, Jay Shidler, Clif Watson, P. G. Baird, Walter King, members of the Commission; Board of Zoning Appeals of Shawnee County, Kansas, Elroy Vilt, J. H. Deurmyer, Perry C. Wayman, Ed H. Grundeman and Kelly Lewis, members of the Board; Joseph M. Benson, Secretary of the Shawnee County Planning Commission; Joseph M. Benson, Secretary of the Board of Zoning Appeals of Shawnee Courty, Kansas, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an appeal from an order of the district court affirming the adoption and enforcement of a zoning resolution adopted pursuant to the provisions of G.S.1955 Supp. 19-2927 through 19-2936 the record examined and considered, held, under the facts and circumstances of this case: (1) The board of county commissioners did not act arbitrarily, capriciously or unreasonably in the adoption and enforcement of the resolution against appellants; (2) The resolution provides a reasonable classification and does not unlawfully discriminate against the appellants' business; (3) The regulation providing for the mandatory elimination of the appellants' business, a nonconforming use, within two years is reasonable.
2. Pursuant to the provisions of G.S.1955 Supp. 19-2927 through 19-2936, counties may create reasonable zoning districts and provide by reasonable regulation for the gradual elimination of nonconforming uses and such resolutions are a valid exercise of the police power and do not violate the fourteenth amendment of the United States Constitution.
David H. Fisher, Topeka, argued the cause and Donald Patterson, Topeka, was with him on the briefs for appellants.
Maurice D. Freidberg, Topeka, argued the cause and was on the brief for appellees.
This is an appeal from an order of the district court of Shawnee County affirming the enforcement of a Shawnee County zoning resolution as it applies to appellants and permanently enjoining appellants from using their property in violation of the resolution.
Pursuant to the provisions of G.S.1955 Supp. 19-2927 through 19-2936 the Board of County Commissioners of Shawnee County caused to be adopted on August 7, 1953, a zoning resolution recommended by the Shawnee County Planning Commission and the Board of Zoning Appeals of Shawnee County.
This resolution was entitled 'Shawnee County Zoning Plan'. Under the provisions of the statute this resolution provided for zoning regulation within the unincorporated territory lying within three miles of the city of Topeka, a city of the first class in Shawnee County.
The resolution divided the area into six districts, to wit: two classes of residential, local shopping, commercial, light industrial and heavy industrial. It declared auto wrecking yards and the storing or locating of trailers as nonconforming uses in residential districts. The resolution further provided that auto wrecking yards and trailers shall be discontinued or removed within two years from the effective date of the resolution. It then provided that the Board of County Commissioners may, by special permit, authorize the location of certain buildings or uses in any district from which they are otherwise prohibited by the resolution. Trailers were included in the list eligible for special permits, but not auto wrecking yards.
The appellants are the owners of a tract of land purchased in 1950 which lies in the three mile zone and is designated by the resolution as within a residential district.
On this land the appellants are engaged in the business of auto sales, repair and wrecking. After acquiring it, they made a number of valuable improvements in addition to the general value of the business.
Upon publication of the notice to discontinue the nonconforming uses of junk yards, auto wrecking and trailers, as provided by the resolution, the appellants made application for a change in zoning from 'residential' to 'heavy industrial' which would have permitted the continuance of their business. The application was denied, and in due course the matter was tried to the district court of Shawnee County.
The court made the following findings of fact and conclusions of law:
'2. The plaintiffs are the owners of a tract of land of approximately 4.85 acres in area, the use of which under the Shawnee County Zoning resolution is the subject of this action. This tract of land is quite hilly and uneven and has considerable rock running through it.
'3. Plaintiffs tract of land is located south and east of the city limits of the city of Topeka. The north boundary is 320 feet long and lies along East Fifteenth Street. It is bounded on the south by Drake subdivision; on the east by Branner Street and on the west by a tract of vacant land. It is eight city blocks from Fifteenth Street and Kansas Avenue. The city limits of Topeka is 100 feet north of the north edge of Fifteenth Street and approximately 400 feet west of the west line of plaintiffs' tract.
tract are as follows: To the north across the street are four houses in poor condition; to the west is the tract of vacant land, a road and Shunganunga Creek, which is the boundary line of the city; to the south are vacant lots and residences, and across the street to the east are vacant lots.
'5. The improvements on the land consist of a concrete block building used for a body and fender shop or repair shop, one frame building used as a shop and for storage, miscellaneous storage sheds, fences and driveways. The total value of the improvements are approximately $18,000 and the value of the land is $7,000.
'6. The tract of land and improvements thereon are being used by the plaintiffs for the business of used car sales, auto wrecking and automobile repairing. This use has been continuous and uninterrupted since April 11, 1950. Plaintiffs wreck and rebuild automobiles using parts from wrecked cars stored on the premises and sell rebuilt cars on the premises. They also repair cars on the premises. About 175 wrecked cars or portions thereof are on the premises at all times. Some cars remain as long as two or three years before the pieces are finally junked. They have 3 to 4 employees and operate 3 trucks which are kept at the lot. As many as 3 or 4 wrecked cars a day are brought in sometimes and are cut up by oxygen and acetylene torches.
'7. On August 13, 1953, the effective date of the county zoning resolution, plaintiffs had on hand automobile poarts from wrecked automobiles, usable as replacement parts, in the value of approximately $5,000. Other parts of cars on hand not usable as replacement parts were worth approximately $2,500 as scrap metal. The automobile parts usable for replacement would be worth must less than $5,000 if not permitted to be held and sold as needed for such replacement parts. The estimated cost of moving the wrecked cars and automobile parts on hand on August 13, 1953, was $4,500 and time required for such removal is approximately four months. The number of wrecked cars and the quantity of replacement parts on hand at the date of trial were approximately the same as on August 13, 1953.
property was placed in a residential district by the county zoning resolution, as was all property contiguous to it. To the south and east of the tract is the area known as Highland Park, which is essentially residential except for occasional areas zoned as neighborhood shopping. The zoning in the city of Topeka adjacent to this tract is light and heavy industrial. Shunganunga Creek is a natural barrier and boundary line for zoning districts as is Fifteenth Street on the north. The south side of Fifteenth Street within the City limits is zoned residential and light industrial.
property for auto wrecking * * * is a non-conforming use under the Shawnee County Zoning Resolution and particularly under Section 10 of that resolution.
'10. Sub-section G of Section 10 of the Shawnee County Zoning Resolution reads as follows:
"The non-conforming use of a building or premises for the purpose of dismantling or wrecking automobiles and other vehicles of any kind, or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles of other vehicles, and which is located in the R-1 or R-2 Residential District, shall be discontinued and the building or premises thereafter devoted to a use permitted in the district in which such building or premises is located, within two (2) years from the effective date of this resolution.'
and under the provisions of this subsection the use of plaintiffs' property for the purpose of dismantling or wrecking automobiles and other vehicles of any kind, or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles or other vehicles, should have been discontinued on August 13, 1955.
'11. Two years is a reasonable length of time within which to require a discontinuance of the prohibited uses mentioned in sub-section C of Section 10 of the Shawnee County Zoning Resolution considering the nature of the use, and the plaintiffs' investment in improvements devoted to those uses.
'12. The Board of County Commissioners did not act arbitrarily or capriciously in adopting the Shawnee County Zoning Resolution.
'Conclusions of Law
'1. The Shawnee County Zoning Resolution was adopted pursuant to the provisions of Chapter 239, Laws of 1951 as amended (Sec. 19-2927 to 19-2936, G.S.Supp.1955), and has been in full force and effect since August 13, 1953. Said resolution is legal and valid.
property for the purpose of dismantling or wrecking...
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