Waterstradt v. Board of Com'rs of City of Leavenworth

• Decision Date: 17 May 1969
• Docket Number: No. 45310,45310
• Citation: 454 P.2d 445,203 Kan. 317
• Parties: Rodney L. WATERSTRADT et al., Appellants, v. BOARD OF COMMISSIONERS OF the CITY OF LEAVENWORTH, Appellee.
• Court: Kansas Supreme Court

Page 445

454 P.2d 445

203 Kan. 317

Rodney L. WATERSTRADT et al., Appellants, v. BOARD OF COMMISSIONERS OF the CITY OF LEAVENWORTH, Appellee.

No. 45310.

Supreme Court of Kansas.

May 17, 1969.

Syllabus by the Court

1. Where a motion for involuntary dismissal is filed pursuant to the provisions of K.S.A. 60-241(b) the trial judge has the authority to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case.

2. In an action challenging a rezoning ordinance by the board of commissioners of a city, the power of the court is limited to determining the reasonableness of the board's action, there is a presumption that the board acted reasonably and without discrimination, and it is incumbent upon those attacking the action to show wherein the board's action is unreasonable or discriminatory.

3. Zoning is not to be based upon a plebiscite of the neighbors and although their wishes are to be considered, the final ruling is to be governed by consideration of the benefit or harm involved to the community at large.

4. In an action under K.S.A. 12-712 challenging a rezoning ordinance, the record is examined and it is held, the evidence was insufficient to establish unreasonable or arbitrary conduct on the part of the governing body and there was no error in rejecting as an exhibit, an architect's plans for development of the tract.

John C. Tillotson, Leavenworth, argued the cause and was on the brief, for appellants.

Thomas J. Brown, Jr., City Atty., argued the cause and was on the brief, for appellee.

HATCHER, Commissioner:

This controversy stems from a dispute over a rezoning ordinance.

The dispute involves a tract of land in the city of Leavenworth consisting of 600 feet running east and west and 400 feet running north and south. The tract is bounded on the north by Metropolitan Avenue, on the east by 16th Street and on the south by Pawnee Avenue. There are no streets running through the tract. Previous to the ordinance now in question the tract was divided into three separate strips for zoning purposes. The north strip consisting of 150 feet was zoned 'E' general business. Both the north strip and the middle strip in controversy were owned by the same party, Dr. Hoins. The south strip consisting of 100 feet was zoned 'A' single family dwelling. It is subdivided into lots and occupied by some of the plaintiffs.

The middle strip consisting of 150 feet was rezoned on July 17, 1967, from class 'A' single family dwelling to class 'C' apartments. Plaintiffs sought relief from the ordinance rezoning this middle strip in the district court under the provisions of K.S.A. 12-712.

The plaintiffs challenged the ordinance as arbitrary and unreasonable and not being enacted in conformity with the requirements of K.S.A.1967 Supp. 12-708.

At the close of plaintiffs' evidence the defendant moved that the case be dismissed because of the failure of the plaintiffs to establish a prima facie case under the law.

The trial court made findings of fact which will not be set forth here, and concluded as a matter of law:

'1. The defendants are entitled to a judgment dismissing this action for the reason that upon the facts and the law the plaintiffs have shown no right to relief.

'2. The evidence presented by the plaintiffs fails to show that Ordinance No. 5751 is unreasonable or void.

'3. Ordinance No. 5751 was enacted by the defendants in conformity with the requirements of K.S.A. 12-708.

'4. Ordinance No. 5751 was not enacted in an arbitrary or unreasonable manner.'

The plaintiffs have appealed to this court from the judgment of dismissal.

We should first give attention to appellants' procedural suggestion which reads:

'In ruling on the defendant's motion to dismiss plaintiffs' case for failure to present a prima facie case, the trial court failed to apply the proper standard. The rule is well stated in Mid State Homes, Inc. v. Hockenbarger, 192 Kan. 505, 389 P.2d 760:

"In ruling on a demurrer courts do not weigh or compare contradictory evidence, but accept all the evidence as true, give it the benefit of all inferences that may properly be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it * * *."

The Hockenbarger case was tried under the old Code of Civil Procedure. When the new code became effective January 1, 1964, a new rule became applicable. K.S.A. 60-241(b), dealing with involuntary dismissal, provides in part:

'* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in section 60-252(a). * * *'

We have construed this statute as giving the trial judge, in a case tried without a jury, the power to evaluate evidence in a motion for an involuntary dismissal. In Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P.2d 847, we held:

'Where the defendant in an action tried to the court without a jury moves for involuntary dismissal of the action at the close of the plaintiff's case pursuant to the provisions of K.S.A. 60-241(b), based on the ground that upon the facts and the law the plaintiff has shown no right to relief, the trial judge has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case, overruling Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P.2d 575.' (Syl. 7.)

The opinion sets out the federal cases construing the Federal Rule from which K.S.A. 60-241(b) was taken. They will not be repeated here.

The application of the above rule, for all practical purposes, disposes of appellants' chief contention, which reads:

'The trial court erred in sustaining defendants' motion to dismiss at the close of plaintiffs' evidence, for the reason that under the evidence adduced and the reasonable inference therefrom plaintiffs presented a prima facie case entitling them to equitable relief.' (Emphasis supplied.)

We note next the restrictions on judicial review of zoning action taken by the governing body of a city.

In Moyer v. Board of County Commissioners of Lyon County, 197 Kan. 23, 415 P.2d 261, we stated at page 29 of the opinion, 415 P.2d at p. 266:

'The courts must be ever mindful of their limitations in reviewing discretionary orders of administrative bodies. It must be understood that the Board of County Commissioners had the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning. The power of the courts is limited to determining the reasonableness of the action taken by the Board. The court...