West v. The City of Wichita

• Citation: 234 P. 978,118 Kan. 265
• Decision Date: 11 April 1925
• Docket Number: 25,662,25,661,25,660
• Parties: J. E. WEST, Appellee, v. THE CITY OF WICHITA et al., Appellants. J. P. WEIGAND, Appellee, v. THE CITY OF WICHITA et al., Appellant. H. M. WARE, Appellee, v. THE CITY OF WICHITA et al., Appellants
• Court: United States State Supreme Court of Kansas

234 P. 978

118 Kan. 265

J. E. WEST, Appellee, v. THE CITY OF WICHITA et al., Appellants.

J. P. WEIGAND, Appellee, v. THE CITY OF WICHITA et al., Appellant.

H. M. WARE, Appellee, v. THE CITY OF WICHITA et al., Appellants

Nos. 25,660, 25,661, 25,662

Supreme Court of Kansas

April 11, 1925

Decided January, 1925.

Appeals from Sedgwick district court, division No. 3; THOMAS E. ELCOCK, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Zoning Ordinance--Restricting Districts. The provision of a zoning ordinance prohibiting the construction of apartment houses in the "A" residence district considered and held not to be unreasonable.

2. DECLARATORY JUDGMENTS--When Available. The statute relating to declaratory judgments (R. S. 60-3127 to 60-3132) is available to a litigant only in cases of actual controversy.

3. MUNICIPAL CORPORATIONS--Zoning Ordinance--Reasonableness of Regulation--Proof. R. S. 13-1106, providing that a zoning ordinance must be reasonable, and giving any taxpayer or any other person having an interest in property affected a right of action in the district court to have the reasonableness of the ordinance determined, makes clear who may bring the action and the forum of the litigation, but does not relieve the plaintiff from establishing his cause of action by proof.

Robert C. Foulston, and George Siefkin, both of Wichita, for the appellants.

A. L Noble, W. A. Ayres, Hal M. Black, and C. A. McCorkle, all of Wichita, for the appellees.

OPINION

HARVEY, J.:

These three cases involve construction of the zoning ordinance of the city of Wichita. Though differing from each other in detail, they were tried together in the court below and they are submitted together in this court. The trial court made findings of fact and conclusions of law and held many of the provisions of the ordinance to be invalid.

Proceeding under authority conferred by statute and the general welfare and police power of the city, the board of commissioners of the city of Wichita passed what is known as a zoning ordinance. This divided the territory of the city into five use districts, and designated the uses that might be made of property in the respective districts. These districts are known as "A," residence district; "B," residence district; "C," commercial district; "D," light industrial district; and "E," heavy industrial district. It is provided that in the "A" residence district no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided in the ordinance, except for one or more of the following uses: One-family dwelling, two-family dwelling, churches and temples, libraries, farming and truck gardening, schools and colleges, and accessory buildings which are defined. In the "B" residence district no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided in the ordinance except for one or more of the following uses: any use permitted in the "A" residence district, apartment houses, group houses, row houses, hotels, private clubs and fraternity houses, boarding and lodging houses, boat houses, hospitals, nurseries and greenhouses, institutions of philanthropic or eleemosynary nature, or accessory buildings as defined. The ordinance also provided area districts.

In the West case the plaintiff was the owner of certain lots, 50 by 131 feet, situated in the "A" residence district. He made application to defendant for a building permit to erect thereon a six-family apartment house. This was refused for the reason that the zoning ordinance prohibited the erection of apartment houses in the "A" residence district, and this is a mandamus suit to compel the issuance of that permit. In this proceeding plaintiff seeks to have determined the validity of various sections of the ordinance. In the case of Ware v. City of Wichita, 113 Kan. 153, 214 P. 99, the validity of the ordinance was in question and it was there held to be valid. The court further held in that case that a store building could not be erected in the territory comprised in the "A" residence district as defined by the ordinance. The only respect in which this case differs from the Ware case is that plaintiff in this case seeks to erect an apartment house, while the plaintiff in the Ware case wanted to erect a store building. When once the power to zone and to restrict uses of property in designated zones is recognized (and that is settled in this state by the Ware case), then the particular classification for use made by the ordinance ought not to be set aside without substantial reason, specifically applicable thereto. It will be noted that the ordinance designates "B" residence district (and all parts of the city except "A" residence district) as territory in which may be erected apartment houses, group houses, row houses, hotels, private clubs and fraternity houses, boarding and lodging houses. This seems to be the natural place to group apartment houses rather than in a district limited to one-family or two-family dwellings.

The Weigand case is...