Ventures in Property I v. City of Wichita

• Decision Date: 05 May 1979
• Docket Number: No. 49643,49643
• Parties: VENTURES IN PROPERTY I, a partnership, Appellant, v. The CITY OF WICHITA and the Department of Transportation of the State of Kansas, Appellees.
• Court: Kansas Supreme Court

Page 671

594 P.2d 671

225 Kan. 698

VENTURES IN PROPERTY I, a partnership, Appellant, v. The CITY OF WICHITA and the Department of Transportation of

the State of Kansas, Appellees.

No. 49643.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

1. The review of administrative proceedings provided in K.S.A. 12-712 relates to zoning regulations and ordinances and does not apply to the annexation and platting of land. (Following Sabatini v. Jayhawk Construction Co., 214 Kan. 408, Syl. P 4, 520 P.2d 1230 (1974).)

2. A declaratory judgment action cannot be maintained to settle a dispute which is purely academic. The parties must be able to assert rights which have developed before an actual controversy can exist which is justiciable under our declaratory judgment act.

3. Inverse condemnation is an action or eminent domain proceeding initiated by the property owner rather than the condemner. It is available when private property has been actually taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action.

4. Inverse condemnation actions are generally in the nature of suits on implied contract. When a public entity appropriates and uses property or rights therein without compensating the owner, an implied contractual obligation arises to pay the owner reasonable value of the property or rights taken without compensation.

5. Inverse condemnation will not lie unless a taking has occurred.

6. The mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected.

7. Where the proposed platting of land by an owner for residential development is approved by the governing body of a city in accordance with previously approved zoning regulations, subject to the sole restriction that a portion of the land in a defined highway corridor within the proposed plat be reserved in its undeveloped state for possible highway purposes at some indefinite date in the distant future, the governing body has taken property from the landowner for which it is required to respond in damages by inverse condemnation.

William P. Higgins, Wichita, argued the cause and was on the brief for appellant.

H. R. Kuhn, Wichita, argued the cause, and John Dekker, Wichita, was with him on the brief for appellee City of Wichita.

John W. Strahan, First Asst. Atty., argued the cause, and Donald S. Simons, Chief Atty., was with him on the brief for appellee Kansas Dept. of Transp.

SCHROEDER, Chief Justice:

This is an action brought under K.S.A. 60-1701 for a declaratory judgment against the City of Wichita and the Kansas Department of Transportation (defendants-appellees). Ventures in Property I (plaintiff-appellant) alleges the City of Wichita took its land by inverse condemnation when it Declined to approve platting of the property in contemplation of the building of a future highway known as the K-96 Highway Corridor (hereafter Northeast Circumferential). The trial court granted the appellee Secretary of Transportation's motion for summary judgment and held appellant's sole remedy lay under K.S.A. 12-712.

The essential facts are not seriously disputed. The appellant acquired approximately 48 acres of real property located immediately outside the city limits of Wichita, Kansas, and within the three-mile plat jurisdiction of the city in August of 1972. At that time the property had an R-1 Sedgwick County zoning classification and was being used for agricultural purposes. The appellant intended to develop the property into a residential subdivision.

Thereafter the appellant filed an application for a zone change and an application for approval of a conditional use permit with the Wichita Metropolitan Area Planning Commission (hereafter MAPC) on December 12, 1972. During the course of the hearing on the applications, the Northeast Circumferential was discussed at great length.

At that time numerous locations for the Northeast Circumferential had been under study by the state and local authorities for over twenty years. The proposed corridor of the Northeast Circumferential consisted of a strip of land approximately 300 feet in width which extended over the southern portion of the appellant's land. The project had proceeded no further than preliminary engineering studies.

The MAPC approved the appellant's applications with the assurance that a plat would not be submitted until such time as the alignment of the Northeast Circumferential was selected. Furthermore, appellant was instructed its site plan would have to be redesigned if the southerly alignment was selected. The Board of City Commissioners then followed the recommendations of the MAPC and granted the applications subject to the above mentioned restrictions on March 7, 1973.

After waiting until February of 1976 with no further determination having been made concerning the Northeast Circumferential, appellant contacted its design consultant and had a sketch plat prepared on February 24, 1976, and a sketch plat with the apartment development superimposed prepared and revised on February 26, 1976. The plats completely disregarded the proposed highway alignment. They were reviewed by the subdivision committee of the MAPC and on April 26, 1976, the committee authorized the appellant to proceed with the preparation of a preliminary plat and recommended the following:

"A. A provisional setback of approximately 300 feet from the south property line shall be temporarily reserved until the alignment of the Northeast Circumferential is determined. This can be accomplished by a notation on the plat and granting of said setback by separate instrument and may be based on a time limit similar to the method utilized on the Comotara Business Park Addition to the east, or as was proposed on the project at the northwest corner of 127th Street East and Central. Turn-arounds at this temporary south development line shall be provided for the three north-south streets as shown on the sketch plat."

The preliminary plat was then prepared and submitted to the subdivision committee that approved it subject to certain conditions which included the following:

"A. A final plat shall be prepared and submitted for only that portion of the overall preliminary north of the north line of the K-96 highway corridor. The portion of the plat within the corridor would be considered for final platting at such time as the balance of the property has developed and the highway right-of-way still not finally engineered nor acquired."

The appellant refused to follow the recommendation and on June 1, 1976, unsuccessfully filed an application for subdivision approval and a preliminary plat with the MAPC. It then appealed the decision to the governing body or Board of Commissioners of the City of Wichita.

As a further precautionary method, MAPC sent a copy of the plat with a letter of inquiry to the Secretary of Transportation on June 15, 1976. LeRoy Pitt, an engineer with the department, responded by letter on August 24, 1976, that there was no change in the proposed highway alignment.

Following the recommendations of the MAPC the plat, as submitted, was rejected by a unanimous vote. Comments at the time of the vote by several of the commissioners illustrate their dilemma:

"Commissioner Stevens: I can understand the concern because really it amounts to condemnation without compensation and I don't know how long people are expected to wait, but Manager, I think you ought to make certain that this Northeast Circumferential item is placed on the next inter-governmental conference, and I think it's long past due that both the City and County get together with our legislators and put the pressure on that something's got to be done. Either build the darn thing or else say 'No, we aren't going to.'

"Mayor Donnell: Well, my feeling is that Mr. Higgins is in an unfortunate situation and though I have not often agreed about the Map Street Act, condemning and so on without compensation, as a matter of fact the opposite tends to happen, it seems to me, just as often, mainly that people build things so that they can be condemned so that the amount they will gain from the condemnation will be greater. That happens once in a while also, but in this particular case I would happen to agree with Mr. Higgins, I think that if this is not resolved pretty shortly it certainly is allocating land without any fair compensation and keeping him and his clients from developing it."

In any event, the alternative of filing a final plat of appellant's land north of the north line of the Northeast Circumferential was approved. The portion within the Northeast Circumferential would be considered for final platting after the appellant's other acreage had been developed if the right-of-way for the highway still had not been finally determined and acquired. The appellant then filed this action.

At the trial the parties stipulated that the minutes of the meetings of the city commissioners at which the plat was considered should be admitted in evidence together with the plat and certain sketches, maps, and other correspondence. The court determined There had not been a wrongful taking and stated:

"In making my findings of fact and conclusions of law the Court is considering all of the evidence that was introduced and the stipulations and arguments of Counsel and the whole packet.

"There isn't any question but that it is grossly immoral and illegal for any government body, city and anybody else, to use their powers of granting building permits or zoning or platting, or anything else they have in order to hold in limbo the area for possible condemnation for highways or streets later on. That simply would just be real bad; and that is what most of the cases that Mr. Higgins quoted have stated. And I agree with that. When I said that I was unfamiliar with inverse condemnation in Kansas, what I...