State ex rel. Londerholm v. City of Topeka

• Citation: 201 Kan. 729,443 P.2d 240
• Decision Date: 13 July 1968
• Docket Number: No. 45129,45129
• Parties: STATE ex rel. Robert C. LONDERHOLM, Attorney General, Appellant, v. The CITY OF TOPEKA, a Municipal Corporation, and Charles W. Wright, Jr., Mayor; Frank Manspeaker, Water Commissioner; John Goodin, Park Commissioner; Abe Cox, Street Commissioner; and Kenneth P. Kern, Finance Commissioner, constituting the City Commission of the City of Topeka; and William M. Douglass, City Clerk of the City of Topeka, Appellees.
• Court: United States State Supreme Court of Kansas

Page 240

443 P.2d 240

201 Kan. 729

STATE ex rel. Robert C. LONDERHOLM, Attorney General, Appellant, v. The CITY OF TOPEKA, a Municipal Corporation, and Charles W Wright, Jr., Mayor; Frank Manspeaker, Water Commissioner John Goodin, Park Commissioner; Abe Cox, Street Commissioner; and Kenneth P. Kern, Finance Commissioner constituting the City Commission of the City of Topeka; and William M. Douglass, City Clerk of the City of Topeka, Appellees.

No. 45129.

Supreme Court of Kansas.

July 13, 1968.

Syllabus by the Court

1. Land belonging to the state or its agencies located within the benefit district of Rice Neighborhood Park in the city of Topeka is subject to special assessment for its fair share of the cost of the park, for the reasons as more particularly set forth in the opinion.

2. Cities have the power to levy special assessments upon state property for public improvements within a benefit district, unless the statute authorizing the improvements specifically provides that the state property shall be exempt from special assessments therefore.

3. Where a city of the first class, authorized by statute, establishes a public park and determines the park benefit district for the purpose of spreading the cost on all the land within the benefit district by special assessments, the present or foreseeable use of state land within the park benefit district is not controlling in determining whether the state property is benefited. The benefit from the improvement is presumed to inure to the property itself rather than to the particular use being made of it at the time. The test is not whether the state property is enhanced in value for the particular purpose for which it is being devoted at the time of the assessment, but whether the property is enhanced in value for any purpose.

Richard E. Oxandale, Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., and Park McGee, Asst. Atty. Gen., with him on brief for appellant.

Donald S. Simons, Asst. City Atty., argued the cause, and John W. Lewis, City Atty., with him on beief for appellees.

SCHROEDER, Justice.

The sole question presented by this appeal is whether state-owned land is subject to special assessment by the city of Topeka for the purchase of land to create a public park. The park was created pursuant to authority conferred in K.S.A. 13-2518, 13-2519, 13-2543 and 13-2544.

The appeal is from an order of the district court of Shawnee County, Kansas, denying the state's petition for injunctive relief against the assessment, levy and collection of a portion of the cost of establishing the park against state property situated within the park district.

The matter was tried to the court on a stipulation of facts.

The state land within the park district is the old Kansas Technical Institute grounds located on East Sixth Street in the city of Topeka. At the time this suit was instituted the state land was devoted to the following uses:

'* * * (a) Kansas Reception and Diagnostic Center, a maximum security penal institution established by K.S.A. 76-24a01 et seq.; (b) warehouse for the surplus section of the Kansas Department of Administration, which department was created under K.S.A., Ch. 27, Art. 3, and authorization for this activity is contained on Ch. 14, Laws of Kansas 1957; (c) storage of official records of various agencies, departments and offices of plaintiff State of Kansas in warehouse buildings; (b) sign shop of the Kansas Highway Commission on land which has been assigned to that agency but which is under the general management and authorization of the State Architect, under authority of K.S.A., 1965 Supp., 75-3765.'

The Kansas legislature in the 1966 budget session authorized expansion of the facilities of the Kansas Reception and Diagnostic Center; and since the filing of this action plans have been made by the state architect and the state board of health to construct laboratory facilities for the state board of health on the state land in question.

The governing body of the city of Topeka, having created a park district under K.S.A. 13-2518, determined that the park district should be a benefit district to pay the total portion of the city's costs for acquiring the site for a park to be known as Rice Neighborhood Park. Having paid for the actual purchase of the land out of the city park land acquisition fund, the city commissioners proceeded to spread this cost on all land located within the park district, including the state land in question, on a square footage basis.

In making the levy against the state property the city determined that all land within the benefit district, including the state land, benefited equally from the establishment of the park.

It was specifically stipulated that:

'Any use of this park by plaintiff in connecion with the use of its land which is the subject of this attempted assessment is remote and speculative. The existence of this park will not make that land of the plaintiff located in the park district any better for any of the uses to which it is presently being devoted or for any use to which in all probability it will be devoted in the foreseeable future. Inasmuch as the State of Kansas is the fee owner, the land may be used or disposed of according to the will and determination of the legislature, but at the present time there is no indication that the land might, in the foreeseeable future, be disposed of or utilized for any purpose different in nature from the present uses.'

It was also stipulated that the state property was assessed in the amount of $3,334.96; that if the state land upon which such assessment was based were held by private parties, and not the state, the land would be benefited equally with other land located within the park district.

The parties further stipulated that:

'The Board of Commissioners of the City of Topeka is a legislative body and the repository of all legislative authority insofar as the City of Topeka is concerned, except as may be limited by statute or the State and Federal Constitutions.'

In the instant case the state raises no error or irregularity regarding the procedural aspects undertaken by the board of commissioners of the city of Topeka establishing Rice Neighborhood Park. The parties defined 'procedural' to mean 'the following of the proper statutory authority, the matter of hearings and notices thereof, and the passing of resolutions and ordinances in the premises.'

The trial court in its memorandum opinion concluded:

'* * * The land belonging to the State or its agencies is properly within the benefit district and should pay its fair share. It is the land itself which has been benefited without regard to the present or contemplated use of the property. The rate and method of assessment used is reasonable and logical on a basis of two cents per square foot. There has been no showing of arbitrary or capricious conduct by the commissioners of the City of Topeka. The question of benefits to the land of the State is a matter on which reasonable men may differ but fraud or capricious or arbitrary action on the part of the defendants has not been established.'

For the foregoing reasons the trial court denied the injunction requested by the state and entered judgment in favor of the city.

The appellant states the question to be whether land of the state which is not presently benefited and will not in any foreseeable future time or use be benefited by the existence of a public park should bear the cost of the establishment of such park.

The appellant concedes if the land in question were devoted to other uses by other owners, it would benefit from the existence of the park. However, it is argued, such change of ownership and use depends upon legislative action which is not presently pending or contemplated so far as the parties can determine.

The specific question presented is one of first impression in this state.

K.S.A. 13-2544 is statutory authority for the special assessment presently under attack by the state. It is relatively new, appearing for the first time as chapter 103 of the Laws of 1963. In pertinent part it provides:

'* * * the cost of acquiring such land may be paid from the park land acquisition fund and the governing body of the city may levy a tax against the property located within such district and benefiting therefrom, in an amount not to exceed the cost of acquiring such land and may reimburse the park land acquisition fund by crediting the proceeds of such levy in such fund.'

Recent public park legislation in Kansas is in keeping with the philosophy of the times; promulgated in part at the federal level, such as land beautification and land reclamation, but primarily prompted by the philosophy that our citizens with more leisure time need additional recreational facilities. We are informed the federal government participated in the acquisition of the park land presently in controversy by paying thirty percent of the cost of the land, leaving the balance of seventy percent to be paid by special assessments against the landowners within the district.

The legislature has conferred upon cities of the first class having a population of more than 50,000 inhabitants (K.S.A. 13-2512) the discretion and power to establish, acquire and maintain public parks, and for that purpose has given them discretion to divide the territory within the corporate limits of such city or any part thereof into park districts. (K.S.A. 13-2518.) Where the precedent conditions have been met, the legislature has made it the duty of the board of commissioners of the city to maintain as least one park in each district and to purchase or otherwise acquire, if necessary, real estate therefor and improve the same. (K.S.A. 13-2519.) It further authorized the board of commissioners of the city to establish a park land acquisition fund to be used for the purpose of paying the cost of acquiring land for park purposes. (K.S.A. 13-2543.)

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