Opinion
Nos. 103,604 106,976.
2012-12-14
Charles F. and Rachel I. HOCKENBARGER, Plaintiffs, v. CITY OF TOPEKA, Defendant. Rebekah Anne Phelps–Davis, Appellant, v. City of Topeka, Appellee. Brent D. Roper and Shirley L. Phelps–Roper, Appellants, v. City of Topeka, Appellee.
Appeal from Shawnee District Court; David E. Bruns, Judge. Jonathan B. Phelps, of Topeka, for appellants. Shelly Starr, assistant city attorney, of Topeka, for appellee.
Appeal from Shawnee District Court; David E. Bruns, Judge.
Jonathan B. Phelps, of Topeka, for appellants. Shelly Starr, assistant city attorney, of Topeka, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rebekah Anne Phelps–Davis (Phelps–Davis) and Brent D. Roper and Shirley L. Phelps–Roper (the Ropers) appeal the decision of the Topeka Board of Zoning Appeals (the Board) affirming the zoning inspector's violation notices for the sheds located on their residential properties. The Board found that the sheds were set back less than 30 feet from the street in violation of the city ordinance. Phelps–Davis and the Ropers argue that the Board's decision was unreasonable, that the City of Topeka should be equitably estopped from applying the setback requirements to their respective sheds, that the City applied selective enforcement when it issued the violation notices to three members of the Westboro Baptist Church on the same day, and that their due process rights were violated by the district court's decision. Finding no error, we affirm.
Factual and Procedural History
On the same day in May 2008, Phelps–Davis and the Ropers received separate violation notices, numbers 2008005 and 2008006, from the Planning Department of the City of Topeka (the City). The violation notices indicated that the placement of their sheds violated the City's ordinance sections 48–1.09(a)(1) and 48–29.02(a)(2). The nature of the violation was stated to be “[c]onstruction of a storage shed within the required front yard setback on SW Cambridge Avenue.” The violation notices informed them that they had 1 month to remove the sheds.
Phelps–Davis and the Ropers appealed the violation notices to the Board. The Board affirmed the zoning inspector's decision, and Phelps–Davis and the Ropers appealed the decision to the district court.
Subsequently, the district court affirmed the Board's decision affirming the zoning inspector's decision. The district court found under a plain reading of the statute that merely because a house is located on a corner lot does not mean that the property contains two front yards as suggested by the City. However, the district court did find based on its interpretation of the city ordinances that any accessory building located in the side yard of a corner lot must comply with the 30–foot setback requirement. Phelps–Davis and the Ropers did not challenge that their sheds did not meet the 30–foot setback requirement. The district court determined that there was insufficient evidence in the record to support a finding that the City was using selective enforcement when it issued the violation notices to Phelps–Davis and the Ropers based on their religious beliefs. The district court also determined that equitable estoppel was inapplicable in the case because the City could not nullify its own ordinances or act beyond its authority. In addition, the district court found that Phelps–Davis and the Ropers failed to meet their burden of proof to show that the Planning Director should have exercised his discretion to allow the sheds to remain where they were. However, the district court remanded Phelps–Davis' case to the Board to determine whether her shed was in conformity with the law at the time the shed was constructed.
A few weeks later, Phelps–Davis and the Ropers filed a motion for new trial, to amend the findings, and for reconsideration and clarification of the district court's decision. If their motion were to not be granted, they requested to be allowed to conduct additional discovery and supplement the evidentiary record.
The district court denied the motion for new trial, finding that there was no violation of due process by its interpretation of the city ordinances because Phelps–Davis and the Ropers received notice of the violations and had an opportunity to be heard. In addition, the district court reaffirmed its prior decision. Timely appeals were filed to this court.
On February 1, 2010, this court dismissed the appeal as to Phelps–Davis because the Board had not had a chance to review Phelps–Davis' case on remand as ordered by the district court.
On remand, on July 12, 2010, the Board determined that the earliest Phelps–Davis' shed could have been built was 1948. At that time, the setback requirement was 60 feet. In essence, the shed has never been in compliance with city ordinances. Therefore, the Board again affirmed the zoning inspector's decision.
Phelps–Davis appealed the Board's decision to the district court, and the district court affirmed the Board's decision. Phelps–Davis timely filed a supplemental notice of appeal with this court appealing the district court's decision affirming the Board.
Analysis
The Board's decision to affirm the zoning inspector's violation notices to Phelps–Davis and the Ropers was reasonable.
Phelps–Davis and the Ropers argue that the Board's decision to uphold the zoning inspector's issuance of the violation notices was unreasonable.
The standard of review as set forth in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), is the same for district and appellate courts when reviewing decisions on zoning, special use permits, and conditional use permits.
We must first presume that the zoning authority acted reasonably. We may not substitute our judgment for that of the Board and should only declare its action unreasonable if we are clearly compelled to do so. The Board, and not the court, has the right to prescribe, change, or refuse to change zoning. We are limited to determining whether the Board's action was unlawful or unreasonable. An action is considered unreasonable when “it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.” 227 Kan. at 28. Whether an action is reasonable or not is a question of law to be determined based upon the facts which were presented to the Board. The landowner has the burden of proving unreasonableness by a preponderance of the evidence. 227 Kan. at 28; see Manly v. City of Shawnee, 287 Kan. 63, 75–76, 194 P.3d 1 (2008) (applying the Combined Investment standard).
We will examine the lawfulness and reasonableness of the Board's action as to each property separately. But we begin by reviewing the applicable city ordinances.
The applicable city zoning ordinances
At the time the violation notices were served on the parties, Topeka prohibited accessory structures “within a required front yard as established by the comprehensive zoning regulations for interior and corner lot street frontages; and further, ... accessory structures shall observe interior and corner lot street frontage front yard setbacks as established by the principal structure.” Topeka City Ordinance § 48–29.02(a)(2). In other words, no accessory structures are allowed in the front yard, and when the property is a corner lot, the accessory structure must observe the setback requirements for front yards. This makes sense because both the front and the side yard abut a city street. So what is the setback requirement for a front yard? The answer to that question is essential to interpreting the ordinance. Topeka City Ordinance § 48–4.03(b)(1) requires that front yards be no less than 30 feet; accordingly, the front yard minimum setback is 30 feet. A clear reading of the statute supports the Board's position that corner lots have a 30–foot setback requirement on all sides abutting the street. This interpretation is further supported by Topeka City Ordinance § 48–27.02(e) which provides that front yard requirements shall apply to both frontages on corner lots, and Topeka City Ordinance § 48–4.03(b)(5) which provides that the side yard of a comer lot must conform to the minimum front yard requirements.
Both the Ropers and Phelps–Davis were given a violation notice that they had violated Topeka City Ordinance § 48–1.09(a)(1), which prohibits any person from using their premises for a use other than one permitted under the zoning codes. The notice further cited Topeka City Ordinance § 48–29.02(a)(2) regarding setbacks from property lines for accessory structures. Under the heading “Nature of Violation,” both notices stated: “Construction of a storage shed within the required front yard setback[.]”
The Ropers' shed
There is no dispute that the Ropers' property is a corner lot under the city ordinances and that the shed in question is an accessory building. And even though there was no direct testimony concerning the location of the shed in relation to the street, it is clear from the photographs that are in evidence that the shed is less than 30 feet from the street. Moreover, the Ropers never challenged the City's allegation that the shed was setback less than 30 feet, nor did the Ropers present any evidence before the Board that the shed was more than 30 feet from the street.
The crux of the Ropers' argument before the Board was that the shed was not located in their front yard, but in their side yard. When the City responded that Topeka City Ordinance § 48–4.03(b)(5) requires that the side yard setbacks on corner lots be the same as front yard setbacks, the Ropers argued that Topeka City Ordinance § 48–4.03(b)(5) referred only to the dimensions of the side yard and not to its setback. They further argued that the notice of violation dealt only with the front yard, and because this was not the front yard, there could be no violation. The Board, after a hearing, disagreed and found that the shed violated the required front yard setback.
We find the Board acted lawfully and reasonably in affirming the zoning inspector's issuance of the violation notice to the Ropers. The ordinance is clear that accessory structures on corner lots must comply with the front yard setback requirements on all sides of the house that abut the street. Although the wording of the violation notice and the Board's order may have been imprecise by referring to “required front yard setback” when it is actually the corner yard setbacks which are required to mirror the front yard setback under Topeka City Ordinance § 48–29.02(a)(2), the interpretation of the ordinance requirement was correct.
The Phelps–Davis' Shed
There is no dispute that the Phelps–Davis property is a corner lot under the city ordinances and that the shed in question is an accessory building. Again, there was no direct testimony concerning the location of the shed in relation to the street, but it is clear from the photographs that are in evidence that the shed is less than 30 feet from the street. Moreover, Phelps–Davis never challenged the City's allegation that the shed was set back less than 30 feet, nor did she present any evidence before the Board that the shed was more than 30 feet from the street. She did not take issue with the Board's interpretation that side yards are subject to front yard setback requirements and that the shed is located in the side yard.
The crux of Phelps–Davis' argument before the Board was that because the shed has been in its current location since as early as 1948, when the house was built, but at least since the 1960's, the shed should be permitted as a legal nonconforming use under Topeka City Ordinance § 18.50.040 (formerly § 48–1.03.) The Board, after a hearing, disagreed and found that the shed violated the required front yard setback.
In Kansas, a nonconforming use is defined as a “ ‘[u]se which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the district in which it is situated.’ “ Goodwin v. City of Kansas City, 244 Kan. 28, 32, 766 P.2d 177 (1988) (quoting 1 Anderson, American Law of Zoning § 6.01 [3 ed.1986] ). Because the district court could not determine based on the record before it whether Phelps–Davis' shed constituted a preexisting nonconforming use, it remanded the matter to the Board for further consideration. The district court provided specific instructions:
“If Phelps–Davis can establish that the shed located on her property complied with the zoning ordinances of the City prior to the adoption of the Comprehensive Zoning Regulations in 1982, and that there has been no structural alteration, enlargement or addition to the shed since that time, the decision of the Zoning Inspector should be set aside. However, if Phelps–Davis [is] unable to meet her burden of proof, the decision of the Zoning Inspector should be allowed to stand.”
Upon remand, the City presented copies of city zoning ordinances dating back to 1939. City staff took the position, based on a review of those ordinances, that no matter when the shed was built, it would never have been a legal nonconforming use. It was always in violation of the zoning code. Phelps–Davis did not dispute that the shed was never in compliance with city zoning codes. Instead, she took the position that any property that was not in compliance with city zoning ordinances in January 1982, when the City of Topeka adopted the Shawnee County Zoning Regulations, was grandfathered in as legal nonconforming use. She argued that because there had been no alterations, enlargements, or additions to the shed other than painting and roof replacement, it has retained its classification as a legal nonconforming use. The Board again disagreed and found that the shed was never a legal nonconforming use.
We find the Board acted lawfully and reasonably in determining that Phelps–Davis' shed has never met the standards for a legal nonconforming use. We again refer to our Supreme Court's decision in Goodwin defining a nonconforming use as one that lawfully existed prior to adoption of the zoning regulation but was made unlawful by the regulation. Even though the 1982 incorporation of the Shawnee County Zoning Regulations allowed any nonconforming structures or uses to continue after its adoption, Phelps–Davis' shed was not then, nor had it ever been inconformity with existing use regulation. To be a nonconforming structure, it must have been legally constructed and placed originally, and only made illegal by the adoption of subsequent regulations. See Goodwin, 244 Kan. at 33 (“A nonconforming use may not be established through a use which from its inception violated a zoning ordinance. Such use has no lawful right to continue.”).
Equitable estoppel is not applicable to the City in this case.
Phelps–Davis and the Ropers both contend that the district court erred when it denied their equitable estoppel claims against the City.
The Ropers assert that the City should be equitably estopped from giving them a violation notice because a zoning inspector had given them permission in 2004 to build the shed in the shed's current location. In addition, after it was built, city inspectors came out three different times to inspect other projects on the Ropers' property and never indicated that there was a problem with the shed. The City does not dispute the Ropers' factual allegation.
Phelps–Davis argues that the City had a duty to inform her that the location of her shed did not comply with the city ordinances, and because the City failed to give her a violation notice as to her shed for the 45–plus years that she has lived on the property, the City is equitably estopped from giving her such a citation now.
“Equitable estoppel is the effect of the voluntary conduct of a party whereby it is precluded, both at law and in equity, from asserting rights against another person relying on such conduct.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). In Tucker v. Hugoton Energy Corp., 253 Kan. 373, 383, 855 P.2d 929 (1993), our Supreme Court set forth the doctrine of equitable estoppel as follows:
“A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction. [Citations omitted.]”
In other words, a party must show both misrepresentation and detrimental reliance to invoke the doctrine of equitable estoppel. Mutual Life Ins. Co. v. Bernasek, 235 Kan. 726, 730, 682 P.2d 667 (1984).
The question of whether the doctrine of equitable estoppel applies to the facts in this case is a question of law subject to de novo review. See Petty v. City of El Dorado, 270 Kan. 847, 849–50, 19 P.3d 167 (2001).
As to the Ropers, assuming the City's zoning inspector gave the Ropers permission to build their shed within the 30–foot setback requirement for side yards, the City still would not be estopped from enforcing its ordinance. This is because a municipality cannot be equitably estopped from enforcing its ordinances when a city official has acted beyond the scope of his or her authority. In Goodwin, prior to purchasing land for a fill dirt business, the Goodwins contacted the city's chief building inspector to inquire about zoning restrictions. The building inspector assured them that they would only need a hauling permit to operate a fill dirt business on the land even though the land was zoned for residential use. More than a year after the Goodwins purchased the land and began their operations, the city ordered them to shut down their business. Under these facts, the court rejected the Goodwins' equitable estoppel argument, and held:
“It is not uncommon for municipal officers to erroneously advise landowners they may use land for a purpose which violates zoning ordinances. The general rule applied by the courts in such instances is that a nonconforming use of land may not be established through such statements as the officer is without authority to violate the zoning ordinance. [Citations omitted.]....
“A landowner is charged with knowledge of the zoning ordinances. [Citation omitted.] Approval by city officials of a use which is prohibited by the ordinances, without the issuance of a special permit, is without effect. [Citations omitted.]
“... [T]here can never be estoppel against a city when it acts beyond its authority. A city is without authority to nullify its ordinances without following prescribed procedures dictated by due process. Landowners have the right to rely on strict compliance with those ordinances legislated by the city. [Citation omitted.]” 244 Kan. at 33–34.
In Goodwin, the Kansas Supreme Court declared that municipal officers lack the authority to violate zoning ordinances. Thus, their misstatements about or misinterpretations of zoning ordinances cannot subject a municipality to estoppel. Goodwin also held that landowners are charged with knowledge of the zoning ordinances. 244 Kan. at 33. Thus, the Ropers were presumed to have knowledge of the City's ordinances, and they cannot claim that they relied on the City zoning inspector's approval for the location of their shed, even if that information was incorrect. Because the Ropers have not satisfied the elements of equitable estoppel, the district court did not err in denying the Ropers' claim of equitable estoppel.
As to Phelps–Davis, she argues that the City had a duty to inform her that the location of her shed did not comply with the city ordinances, and because the City failed to give her a violation notice as to her shed for all of the years that she has lived on the property, the City is equitably estopped from giving her such a citation now.
First, Phelps–Davis fails to cite to any authority that suggests that it is the City's duty to make her aware of the applicable city ordinances or whether the City has a time requirement in issuing a violation notice. Second, as mentioned above, it is the landowner's responsibility to remain apprised of all city ordinances. Goodwin, 244 Kan. at 33. Therefore, the district court did not err when it rejected Phelps–Davis' claim of equitable estoppel.
The parties failed to meet their burden of proof that the City applied selective enforcement in this case.
Phelps–Davis and the Ropers argue that the City has selectively enforced its ordinances against them because of their religious affiliation. They rely on the fact that three members of their controversial church were given violation notices for the same city ordinance violation on the same day. Because of this, Phelps–Davis and the Ropers believe that the City unlawfully used selective enforcement against them when the City issued the violation notices.
“In order to establish and to plead a violation of equal protection based on selective enforcement, plaintiff must show: (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. [Citation omitted .]” Meyer Land & Cattle Co. v. Lincoln County Conservation Dist., 29 Kan.App.2d 746, 755, 31 P.3d 970 (2001), rev. denied 273 Kan. 1036 (2002).
“That a state or governmental entity applies a law to one person and not to another does not, in itself, constitute a denial of equal protection. It must also be shown there was an element of intentional or purposeful discrimination. A discriminatory purpose is not presumed. There must be some evidence showing clear and purposeful discrimination. [Citation omitted.]” King v. Pimentel, 20 Kan.App.2d 579, 594, 890 P.2d 1217(1995).
Although the City issued violation notices to Phelps–Davis and the Ropers for the same city ordinance violations on the same day, there does not appear to be any evidentiary support to show that there was an element of intentional or purposeful discrimination and such cannot be presumed. In addition, neither party presented any evidence that other similarly situated individuals in the Topeka community were allowed to place sheds within the required 30–foot setback. Therefore, based on the record, Phelps–Davis and the Ropers have failed to prove that the City selectively enforced the city ordinances as to them.
Apparently in recognition of this evidentiary problem, Phelps–Davis and the Ropers have requested this court to remand the case to the district court so that they can supplement the evidentiary record and have the district court reassess the case based on the additional evidence. We decline the invitation, Phelps–Davis and the Ropers had the burden to prove their claims, and they failed to meet their burden.
The Ropers due process rights were not violated.
The Ropers contend that their rights to due process were violated when the district court interpreted the city ordinances in a way not addressed by the parties, and that such an interpretation created a new charge that was not in the violation notice. Therefore, they were never given notice or the opportunity to be heard on the issue that was finally determinative of the case.
“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006). “In reviewing a procedural due process claim, we must first determine whether a protected liberty or property interest is involved. If it is, then we must determine the nature and extent of the process due. [Citation omitted.]” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).
Both parties concede that the placement of a shed on a person's property is a protected property interest. Therefore, the first determination for a court in a due process claim has been satisfied.
The Ropers received notice of their violation when the zoning inspector issued the Ropers their violation notice. The violation notice cited Topeka City Ordinance § 48–29.02(a)(2) as one of the two applicable ordinances. This was the city ordinance upon which the district court relied when it affirmed the Board. In addition, the Ropers were granted an opportunity to be heard before the Board in order to explain why they did not believe that ordinance applied to them. Likewise, they were allowed to make their arguments to the district court about why they were not in violation of the city ordinances, as evidenced by their numerous filings in this case. Merely because the district court included references to other city ordinances it found helpful in interpreting the ordinance in question does not result in a violation of due process. The district court is required to review the city ordinances as a whole in order to come to a reasonable interpretation of the ordinance at issue. See Grigsby v. Mitchum, 191 Kan. 293, 303, 380 P.2d 363 (1963), cert. denied375 U.S. 966 (1964).
Even if the district court's decision could be interpreted as implying that the Board was right but for the wrong reasons, such a review is allowed without impinging on the due process rights of the parties. When an agency tribunal reaches the right result, its decision will be upheld even though the tribunal relied upon the wrong ground or assigned erroneous reasons for its decision. In re Tax Exemption Application of Westboro Baptist Church, 40 Kan.App.2d 27, 49, 189 P.3d 535 (2008), rev. denied 287 Kan. 765 (2009); see In re Tax Appeal of Colorado Interstate Gas Co., 258 Kan. 310, 317, 903 P.2d 154 (1995). Therefore, the district court did not deny the Ropers their constitutional right to due process.
Affirmed.