*1 (222 535) P.3d 100,997 No. Place, Inc.,

Friends of The v. Appellee, Topeka Episcopal and Grace Cathedral and The Kansas, Inc., Diocese of Appellants. *2 filed Opinion 22, 2010.

January Starr, Beth Theis assistant city attorneys, Mary Eric B. Smith Shelly Mudrick, for of chief of City Topeka. litigation, appellant Elwood, Goodell, Stratton, & of Edmonds D. and H. Nathan Leadstrom Philip Palmer, L.L.P., Grace Cathedral and The of Episcopal Topeka, appellants Kansas, Inc. Diocese of Associates, & of of Shelley Pedro L. Topeka, Irigonegaray, Irigonegaray Law, Lawrence, Clark, Kansas School of Hickman appellee University Place, Inc. Friends of Bethany director, Moler, counsel, and Donald L. executive Jr., Sandra Jacquot, general were on the brief for amicus curiae of Kansas Municipalities, Topeka, League Kansas Municipalities. League Smith, and Steve assistant Derenda Mitchell Michael attorneys general, J. J. *3 Six, amicus curiae Kansas State Historical were on the brief for attorney general, Society. McAnany, Rulon,

Before Greene C.J., JJ. centers on a contentious McAnany, This plan by appeal J.: (Cathedral) and The Grace Cathedral Epis- Topeka Episcopal Church), Kansas, to con- Diocese of Inc. (collectively copal Place, a tract of on a struct a lot Bethany ground portion These other are located. on which the Cathedral and two buildings Place two and the other surrounding grounds buildings itself) (but listed on the of Historic not the Cathedral are Register (SHPO) Officer The State Historical Preservation Kansas Places. opposed project. (Council) on Council

The matter came before the City Topeka On the for a for the the Church’s day project. application permit of individ- on the Church’s before application, group hearing (FOB), Place, Inc. order uals formed Friends of Bethany numerous from testimony propo- project. Following oppose 9-0 in favor of the the Council voted nents opponents, Church’s appHcation. court set aside the district court. The district

FOB appealed the Council’s decision the Council’s finding approval project, The and unreasonable. Topeka arbitrary, capricious, de- the district court’s and the Church have now appealed (City) cisión. The matter has been briefed and fully argued by parties, and we have the added benefit of amici curiae briefs from the Kansas State Historical and the of Kansas Munic- Society League This four main issues for us ipalities. appeal presents following to resolve:

1. Does FOB have in these standing proceedings?

Yes. and traditional standards for Applying statutory standing, FOB is entitled to seek review of the Council’s judicial approval of the Church’s permit application.

2. Did the district court the evidence erroneously reweigh Council,

before the evidence which (according Church and the substantial for the City) provided support Council’s decision to grant permit?

Yes. The district court went the record and beyond reweighed the evidence before the Council in what it considered finding to be feasible and alternatives to the Church’s of review limits a court project. proper scope reviewing (1) whether the Council acted arbi- determining fraudulently, (2) whether the Council’s action is trarily, capriciously, sup- evidence, substantial whether the ported by Council acted within the Here, its the issue in scope authority. dispute is whether substantial evidence the Council’s action. supports constraints on the of our Applying re- requisite legal scope view, we conclude that there is substantial evidence to support the decision to the Church’s grant requested permit. *4 3. Does the district court’s decision violate the Church’s under the First Amendment

rights United States Constitution or under the Land Use and Insti- Religious tutionalized Persons Act of 42 2000, U.S.C. 2000cc § (2006)? 2,

Because of our decision on Issue it is to consider unnecessary this issue.

4. Did the district court err in FOB to refusing require bond for this

post supersedeas appeal? No. FOB before the district court and did not prevailed seek to As the the district court’s enforcement appellee, ruling.

stay to FOB. bond do not for a apply supersedeas provisions

Facts to the Church 20 1861, the founders

In conveyed city Topeka Place, in order to establish land, known as now acres Bethany The School for Girls. the Sisters of property Bethany Episcopal Avenue, Street, Street, and Western 10th 8th Polk bordered by on the The two historic Avenue in downtown buildings Topeka. the Diocesan offices and 1875. One is were built property is a and the other the school building laundry), (formerly building bam). die school’s (formerly meetings lodging Place from 1872 until The school was Bethany operation 1917, on the Cathedral was constmcted 1928. In Grace property. 1929, 14 acres of the School District In orig- acquired Topeka School. for the construction inal High Topeka Bethany campus 1978, Place on the Kansas In the Church Bethany registered School from in order to Historical High prevent Topeka Registry eminent domain. 6 acres remaining acquiring install a lot for a In the Church permit applied The was to add 40 Place plan Bethany property. part or with reserved elderly handicapped parking spaces, lot would consist of members. The Church opposing proposed Polk Street. inside the sidewalk stalls located rows along It would 4.5% of Place’s The lot would Bethany grounds. occupy 187,800 175,800 the current from reduce square green space feet, or 6.5%. 8, 2007, to review the Church’s the SHPO

On assigned May lot would encroach determined that the parking permit application Place environs of the historic destroy upon, damage, mature trees and the removal of would because require project would because the relationship “drastically [change] project with the street on the site the two historic between public buildings an- alternative of of Polk.” The SHPO constructing and 8th Streets. on Polk gled of the SHPO’s City’s report, day, receipt following denied the Church’s request sug- permit Planning Department *5 Southwest Polk Street would abe feasible gested parking along alternative. 27, 2007,

On before the Council met to consider day August FOB Church’s for the application, incorporated purpose the Church’s lot That same opposing application. day issued the SHPO letter on the The supplemental opinion project. letter further but did not die SHPO’s recom- explained change 8,2007. It did mendation not address further the alternative May of on-street Because of the lateness of its submis- angled parking. sion, the letter was not to the Council for consideration provided at the hearing. the Council

Proceedings before Council considered the Church’s application August 2007. The Church’s was that the street position angled recommended and the SHPO City’s Planning Department and other alternatives from those suggested speaking opposition were not feasible and prudent.

The Council heard from members of the testimony many public who either supported opposed project, including represen- Church, FOB, tatives of the and various im- Topeka neighborhood associations. was received oral com- provement Testimony through addition, ments In Council were members during meeting. with a of documents assembled for them ad- provided packet Because, see, vance of the as we shall the central issue is meeting. decision, evidence to the Council’s sufficiency support we will recount the oral and written documents testimony pre- sented to the Council in its decision. making at the Council

Testimony Meeting (cid:127) Pedro Irigonegaray

Pedro FOB, counsel for reminded the Council of Irigonegaray, of K.S.A. 2008 75-2724. He testified requirements Supp. the Council must find that is no there fea- approve permit, sible alternative to the lot and that proposed parking all to minimize the harm to Place had possible planning *6 Council that it could also the He cautioned undertaken.

been manner. in an act capricious arbitrary Kovalchuck Alex (cid:127) the to Church’s testified

AlexKovalchuck proposal. opposition alternatives the Council a to He showing suggested map presented (2) lots (1) on-street the Church’s to using angled parking, plan: Church, the and north of 8th Street owned the side on by lot. over the Church’s existing parking garage building parking video which he said would with a CD the Council He presented I’m to dis- what “visualize and see the Council attempting help to the However, to he failed cuss.” bring equipment apparently no video. Kovalchuck with which to his display presented hearing he did for his cost estimates acknowledge though proposals, . the Church’s be . . more [than expensive proposal].” “may they the concerns raised also did not address He safety ina- Church, concerns about its address the nor did he Church’s its to members. to restrict the use of street bility parking Dean Bishop (cid:127) Wolfe He re- testified behalf of Church. Dean Wolfe on Bishop 40 additional Church minded Council seeking its lot and the current public spots supplement parking parking the Cathedral 8th and Streets because available on Polk parking The in attendance. for 1.8 needs one parking space every persons has a attend- testified that the Cathedral currently Sunday Bishop of 89 and a lot ance of about 350 current parking capacity people would address additional 40 help spaces spaces. with no next to the Cathedral need handicap provide parking the Church climb. He testified as project, part steps out, we take than trees as “more twice many plant planned all to enhance our green space.”

(cid:127) Dean Steve Lipscomb Cathedral, about the testified

Steve Dean Grace Lipscomb, had the Church considered alternatives rejected: lot We re- our to the south. first would have extended “The existing parking and would come too that because it would close buildings jected section of that are the most visited from area take picnic away gardens It also wouldn’t us the end closer accessible [sic] property. give handicap we need near our entrance. space worship “We also off the considered south Cathedral. This isn’t an alley because there are and an air unit there the size utility option poles conditioning Plus, of a car. we use that for so freight parallel already space gain be would minimal. small, Cathedral, own a “We narrow lot across 8th Street from the but that not a reasonable us because that entrance option requires climbing steps we didn’t want children and older members them endanger by making cross four-lane street. busy “We decided 8th either Avenue or Polk Street against angled parking several reasons. was a factor with Safety children major possibility darting members, into street from between cars and members back- especially elderly into out traffic. ing *7 concrete, “These on-street would also use of the which spots require costs twice as much as And since there asphalt. parallel already parking permitted along streets, both . . . on the street would not us diagonal parking that gain many fact, additional In if took the it spaces. you would away parallel parking gain only us a net of about half as as this alternative many spaces suggests. “But main concern is that this would the to Cathedral build require something it could never own. The own would these city and it would be parking spaces With and several public parking. Topeka High the apartments nearby, spaces would be filled all almost the time. And been we’ve told that we could reserve if these we advance notice and barricades to block them. That is gave by placing not a feasible alternative for us. There is no we would have access to guarantee these when we needed them. I would spaces have a hard time Frankly, explaining to we were church funds to build ... my congregation why using public parking. It’s not it’s bad has just what been entrusted to it illogical, us and stewardship limits our do to ability ministry.” 4 acres

Dean built, if stated that the lot were Lipscomb parking would on remain Place He stated green space Bethany grounds. the Church’s was the “will this proposal only plan put to close our entrance unob- many parking spaces worship space structed by steps.”

The Council members had records before the copies City which included Dean Planning Department, Lipscomb’s expanded concerns about on-street angled parking. Lipscomb explained staff that this on-street parking First, “would not meet our needs for a of reasons. could we not reserve couple week, on street for church use. would all parking take During Topeka High available and those in the on the east spaces side Polk would living apartments funerals, and those diocesan-wide meetings them the time. Weekday use all our are some of most attended that use our often space organizations community events, such more than we have. events much currently Evening parking requiring ceremonies, concerts, and other services community holy day graduation plays, our current lot and only along overfill require people park, events often Western and There are clearly but also on Tyler. 8th and Polk streets Taylor, areas, in these north of 8th pedestrians particularly issues safety nighttime Even on as much as on need reserved weekdays Sundays.... Avenue. We parking on we will still street require parking with 40 additional spaces proposed, to meet our needs.” asked Dean whether Richard Harmon

Councilman Lipscomb with have the same the Church would neighbors using problem constructed. lot if the lot were the Church’s Lip- the lot will be on Church scomb that because property, replied it, Church could restrict access obviating problem Dean the Church’s used Finally, Lip- being neighbors. mean, I we are not issue. our scomb testified only “Sundays week.” funerals have events [and] during evening Worman Melodie (cid:127) communications, Worman, de- the Church’s director of

Melodie Place. out that due She scribed the history pointed uses, the two to other neither conversions of historic buildings Further, the Cathedral of Historic Sites. National Registry is not on the State’s historic registry.

(cid:127) Cynthia Sheppeard Langston Church, a member of spoke Sheppeard Langston,

Cynthia *8 There to the for accessible need persons. handicapped spaces of curb six such alternative are only spaces. currently be nor because of the that would is feasible neither grade curb to Cathedral. The Church’s difficult from the to negotiate on the level as Cathedral. same would proposal provide parking (cid:127) Barbara Quaney FOB, in of testified

Barbara opposition Quaney, president She of the historic significance spoke project. She listed three alter- it. Place and the importance preserving She be FOB would feasible native sites that believed prudent. Polk Streets. She on 8th and the use advocated angled parking concerns, she or nor did cost did not address Church’s safety the Church’s address concern about others these using to the exclusion Church members or Church funds spaces using However, she did public develop property. express opinion based her physical experience angled therapist park- could be and executed to address the ing designed accessibility issue. (cid:127) Tom Bartlett Bartlett,

Tom Park Holiday Neighborhood Improvement Association, testified his association’s desire to preserve Bethany Place and their to the He did not address the opposition project. or alternatives. feasibility prudence (cid:127) Douglas Jones husband, Barbara described Jones, Douglas Quaney’s family business of old homes in the central core. He buying restoring to the He is the immediate expressed opposition project. past pres- ident of the Shawnee Historical He noted that Old County Society. Town is association only Topeka neighborhood improvement “without a and has little to other park, very greenspace compared He that the to recent neighborhoods.” argued project contrary comments consultants and aesthetic by City regarding “greenspace issues,” and would establish a bad He did not address precedent. alternatives. feasibility prudence any suggested (cid:127) Robert Banks Banks,

Robert Team, Inc., chairman of Turnaround Topeka in to the He offered the offices of the spoke opposition plan. good Turnaround Team to mediate the help dispute. (cid:127) Maura Dingman

Maura owns Dingman spoke opposition plan. Dingman and restored six Park. She her properties Holiday expressed heartfelt desire desire of others the area who have in- vested in older historic sites restoring properties preserve deny permit application. (cid:127) Fox Greg Fox, who his in a business ac-

Greg operates building, that the Church needs more but knowledged expressed concern about our minds on we’ve “changing something already decided.”

(cid:127) Peter Hancock Hancock, Im- of the Old Town

Peter Neighborhood president Association, his testified to organization’s opposition provement the area the the lack of He testified to the greenspace plan. St. Patrick’s Cathe- He observed that of a lack park. neighborhood He lot of did functions without a dral in New York parking. alternatives the Church’s address plan. any (cid:127) Hiram Stockwell Stockwell, the Old Town a resident of Hiram neighborhood, He testified that of the history neighborhood. spoke He stated were an insult to its concerns Church’s neighbors. safety at 816 side of 8th Street S.W. lot on the north Church’s 10,000 is feet and 8th contains “over square approximately equal lot at 804 S.W. Another Church to the parking space.” 6,000 He observed: “There feet.” also 8th contains “over square the east south drives at side near the circular and additional space for the accommodate” accessible of the church could He cost estimates for did not offer handicapped elderly. his proposals. (cid:127) Kathryn Hosfelt core, Hosfelt, her in the central expressed

Kathryn neighbor Place. desire preserve Bethany (cid:127) Anne Spiess Historical Soci- Anne the Shawnee County Spiess, president and a member FOB. She is a member Church spoke ety, Place. She testified historic significance She men- would eliminate trees and Church’s greenspace. plan sites, she did not address alternative tioned though suggested the issues of feasibility prudence. (cid:127) Ed Spiess Church member Ed testified Spiess opposition lot to lot. He portion existing parking restriping suggested He did not address create more spaces. handicap-accessible made no need for more Church’s overall suggestions would lose it would as to where Church recoup space his through proposal.

(cid:127) Alvin Greeson Greeson, Alvin a Church member and al- neighbor, suggested on the “half semicircular entrance ternative on the east parking side of the Cathedral.” He had measured the area and estimated there could be additional in that approximately places parking no area. He offered cost estimates to design proposals support his idea. (cid:127) Loehel Janet teacher, Loebel, a retired of her family’s spoke history Janet the area. She to the value of She spoke history heritage. urged the Council to the Church’s reject application. (cid:127) Harrison Joanne Harrison, member, a Church of the spoke importance

Joanne Place. She off Polk Street Bethany suggested “turning alley direction, the other which would then enable cars to move quickly down to the lot.” She said she had no present parking problem a on Polk Street on She finding parking place Sunday mornings. also to a write letter to Dean urged Mayor Lipscomb telling him to on the at Place.” stop “urging people park grass Bethany (cid:127) Peter Muraski Muraski, teacher,

Peter a science and condition spoke age site, of the trees on the he no on the though professed expertise other than cut down trees in subject having many years past firewood. He “If we alter this it set opposed project. place may a we don’t want.” precedent (cid:127) Michael Bradley

Michael that this will harm the Church Bradley opined project and its mission. He the desire to expressed preserve open spaces in urban areas. He the Council to urged deny permit.

Documents Council Meeting In advance of the each Council member had been meeting, pro- vided a of information packet regarding application. pack- ets contained the Council Action Form which informed Coun- cil members of the Church’s would overturn approval appeal the decision of the SHPO of the State overturn findings law the local body “State allows governing Officer when have determined based Preservation they

of Kansas Historic factors, alternative to the no feasible and on relevant there is proposed all to the historic to minimize harm lot and drat all property possible planning included. and its environs has been for the necessary parking SHPO has using city’sright-of-way “The proposed tire lot alternative the constructing as feasible and prudent historic trees. includes the removal of many which property has stated Association officially Old Town Improvement “The Neighborhood lot within the grounds their opposition Place campus.” *11 (1) of the to included: statutes also copies relating packets (2) recom- the Planning Department’s City preservation; recommendation; (4)

mendation; (3) the SHPO’s maps, photos, area; (5) of the historic of the and buildings descriptions diagrams Place; (6) Town the Historic Old of and the Neigh- Bethany history of Plan; (7) to the borhood documents Bethany relating placement 1979; (8) in doc- the Historic Kansas Places Place on Register construction a center for conference uments proposed regarding but in which was the SHPO on Place by approved Bethany built; from (9) letters and e-mails never support opposition of which were essen- of the various members community, many the Council verbatim the oral testimony meeting; provided tially the (10) a number project; persons opposing petition signed by the to Beth- (11) the relative size reports project engineering alter- and the added cost Place overall the angled parking native; of the a horticultural assessment project. (2), it to that the item is note

With City respect important recommendation that Church’s appli- Planning Department’s alternatives “alternative and feasible denied was based on cation be While or the listed that will not encroach damage property.” “alternatives,” it staff recommendation speaks planning traffic one: determination maíces reference by only Polk Southwest ‘cut-back’ along parking “angled engineers would be a feasible Street, to die Place Bethany adjacent property no lot.” There is to the alternative study parking report no There is the record. traffic analysis by City’s engineers how die or the traffic staff either explain engineers planning level of a feasible rises to the suggestion angled parking alternative. recommendation, (3), the Church to is for item The SHPO’s to take “the City’s right-of-way advantage redesign project at Polk to the street stalls directly adjacent parldng by designing not accom- This if needed.” 8th Street suggestion possibly whatsoever. analysis by any supporting panied Plan, addresses Town (6), die Historic Old Item Neighborhood character the historic need to maintain neighborhood, area. It is worth in the “core” stock noting housing particularly to whether additional is not the Church’s criticism of plan rather but in the be created should neighborhood, spaces should be located. where those spaces the Church for (11) is an Item prepared engineering report lot relative the size of which shows proposed parking the cost of concrete It also calculates Place. size of overall ($36,000) to the cost of asphalt compared places ($16,800). This is the report only engineering parking places the record.

Council Action comments, Preisner Councilman At the close of public Jeff on “the based the Church’s moved permit application approve *12 factors, there are of all relevant Council’s consideration City that all alternatives to no feasible proposal, prudent minimize harm to has been undertaken possible planning seconded, and Councilman The motion historic property.” in-we Brenden Alcala asked the “[D]o Attorney Long: John Amendment exercise of of free and Fourteenth on the First fringe The if we don’t attorney responded: permit? city grant religion Officer, Historic Preservation of the State override the recommendation “[T]o factors, find, Mr. Preisner on a consideration must based [the Council] That out, feasible and alternatives proposal. that there’s no pointed that was tonight, to be based on all presented you is consideration really going received with analyzing your agenda as well as the of information you packets to maintain the needs of the community, attempt the needs of the applicant, - - determi- it’s an economic character of the site those the historic part nation, is a technical determination.” of it part 196

The then Mt. described St. Scholastica v. At- city attorney City of chison, (D. 2007), 482 F. 2d 1281 Kan. before Supp. concluding that the faces some action least City “probably potential legal whichever way you go.”

Councilman Brett Blackburn observed that “there’s probably a feasible alternative.” He concluded “it comes down to our if we think there is or not a reasonable alternative.” opinion Councilman Harmon asked the there “[A]re attorney: city -- of fact we need to make order to findings separate apart from Councilman Preisner’s motion with to the First respect Amendment issue if that’s the basis we which wish to overrule “ The INo. think [SHPO] finding?” city attorney responded: first task here is to make determination based on your really your with the [K.S.A. that ... 75-2724] Supp. understanding denial could create some issues.” parking permit legal The Council voted 9-0 in favor the Church’s permit applica- tion. in the District Court

Proceedings FOB to the district court to K.S.A. 2008 appealed pursuant 75-2724(b) 60-2101(d). and K.S.A. Supp. City challenged action, FOB’s this that FOB was not an standing bring arguing 60-2101(d) under K.S.A. because FOB had no “aggrieved party” interest in Place. FOB with right pecuniary Bethany responded affidavits from its members their interests in detailing Place. motion, The district court denied the that K.S.A. City’s finding “ 75-2724, which to ’historic Supp. specifically applies pres- ” ervation activities’ affected to FOB. by projects gives standing

The court reasoned that the notice and the civil public penalty features of K.S.A. 75-2724 an inferred actionable Supp. “pe- interest” which extends s riphery beyond potential plaintiff pe- interests and includes in historic cuniary “community pride pres- ervation[,] . . . of fife and esthetics.” quality

The Church informed FOB that because construction costs were $41,000 action, increase of expected during pendency *13 the Church intended to with construction of the proceed

197 a $50,000 FOB with FOB a bond. lot unless responded posted to K.S.A. 60-903. order for a motion pursuant restraining that motion, out the Church on FOB’s At the pointed hearing with which no or income had assets FOB compensate The a failed. court if FOB’s Church granted delay appeal re- denied the Church’s the Church and order restraining against bond, that there was no FOB a statutory concluding post quest afor bond. provision FOB’s on the merits of its detailed memorandum

In opinion aside the district court set die Church’s concluding permit, appeal, action that the Council’s permit application approving The the Church and unreasonable. City arbitrary, capricious, appeal. FOB in These

1. Does Have Standing ProceedingsP and the Church is issue raised predi- standing interest cated FOB’s lack of any right pecuniaiy legal v. Board the matter. on Linsea Chase County They rely primarily Comm’rs, 657, 1292, denied 243 12 Kan. 2d 753 P.2d rev. App. (1988), Kan. argument. (1) K.S.A.

The Church scheme of also statutory argues K.S.A. the Kansas 75-2724 and 75-2725 empowers only Supp. General to landowners to enforce Attorney proceed against Act, 75- see K.S.A. the Kansas Historical Preservation provisions is 2714 et because mission historical FOB’s seq., preser reasons, not values vation for aesthetic property preservation Place, near and because historical Bethany preservation public one, NEA instead lacks under interest FOB private standing 384, (2000). 996 P.2d 821 v. U.S.D. No. 268 Kan. Coffeyville the Historic FOB order fulfill the purpose argues Act, 75-2724 Preservation under K.S.A. standing Supp. citizens be construed to allow of concerned should broadly groups FOB form like FOB to organizations protect properties. that it has under because also Cojfeyville pro- argues standing own FOB members who would lower the values of ject property near Place. property

198

Standard Review an law issue of which courts de review

Standing appellate Homes, novo. v. Mid-Continent Inc. 279 Kan. Specialists, Capital “ ‘ 178, 185, (2005). 106 P.3d 483 of the merits [a “Regardless claim], without the court cannot enter- [a party having] standing, ’ tain action.” 279 Kan. 185. [Citations omitted.]”

Discussion

The Kansas Historical Preservation Act provides per- “[a]ny son the determination aof aggrieved by governing body pursuant to this section seek review of such determination in accord- may with ance K.S.A. and 60-2101 amendments thereto.” K.S.A. 2008 75-2724(b). 60-2101(d) K.S.A. Supp. provides appeals subdivisions, district from court decisions of such as the political and allows “an to an City, aggrieved party” pursue appeal. The district court construed in favor liberally “aggrieved party” an such as FOB to seek review of allowing organization judicial the Council’s action. The Church that the district court’s argues 75-2725, construction the effect of K.S.A. which ignores provides: “The state of Kansas or or other subdivision any county, political municipality sued, sue to and be state having Kansas historical capacity and society any city which, or historical for more than two county society to such years prior filing action, has been elected has officers and has organized, received compensation, or funds reimbursements from or to or 19- K.S.A. 12-1660 city county pursuant 2649, thereto, and amendments maintain an action in district court may having an where jurisdiction violation occurred is threatened for such alleged equitable and as relief be to enforce declaratory of this act may necessary provisions demolition, and to from protect unauthorized or al- property improper teration or transfer.”

K.S.A. 75-2725 authorizes the identified officials and entities to relief to enforce the pursue equitable declaratory provisions of the Act. A fair the statute that it reading suggests applies instances in which or entities the Act persons subject attempt “end an run” around the The statute refers process. equitable relief, such such an end run around declaratory enjoining the Kansas Historical Preservation Act. That is not the nature of these There was no end run here. The State Historical proceedings. was notified of the it conducted its Society proposed project, study,

199 recommendations; consideration made its then it following came the Coun- the matter before Department, City’sPlanning an to K.S.A. action is cil. The simply appeal pursuant present 60-2101(d) 75-2724(b) K.S.A. reversal seeldng Supp. of the Church’s Council’s application. approval permit Kan. v. Board Comm’rs In Sumner Bremby, County (2008), the issu- association 189 P.3d challenged nonprofit association’s a landfill ance of standing permit. Analyzing *15 our Court noted: the landfill Supreme challenge permit, that he or she suffered a must demonstrate cognizable “In particular, person the and the is a causal connection between injury challenged and there injury behalf of its An association has sue on standing omitted.] conduct. [Citations (2) ‘(1) the inter have to sue when the members individually; members standing are association seeks to organization’s purpose; ests the protect germane nor asserted the relief neither the claim requested require participation and 445, 268 v. No. U.S.D. individual members. NEACoffeyville [Citation omitted.]’ of 387, (2000).” 384, 821 286 Kan. 761. 996 P.2d Kan. Bremby, met criteria. held that the association those court Bremby if First, would be harmed the the of the association members po- which contaminated the water landfill leaked and tential supply “ Second, the was members association its relied. ‘organized life in and the of the [of] enhancing quality purpose preserving ” counties,’ Sumner and and “ensuring Kingman Harper, stan- in meet environmental landfill that located Harper County and river water . . . dards ger- protect groundwater supply 286 Kan. at 763. the association mane to Finally, purpose.” it was because capricious challenged permit arbitraiy not re- and that claim did issued on environmental studies faulty individual members. association’s participation quire 1. Individual Members’ Standing court, with the In her filed district Barbara affidavit Quaney, and a homeowner in the Place FOB neigh- president borhood, if would claimed my project approved “impinge She asserted that the economic interests.” project personal the diminution of also result in economic loss or “could property restored home she and her husband had value” of century-old and three other her in residences she and husband own the neigh- borhood. husband and another member Douglas Jones, Quaney’s FOB, a similar affidavit. Other FOB members filed provided affidavits that the would of their alleging project impair quality lives interfere with their aesthetic appreciation neigh- borhood.

The Church historical aesthetic argues injuries are not sufficient to confer on an individual beauty standing plain- Linsea, 12 Kan. tiff, 2d at 660-61. Aesthetic concerns citing App. are a Rev. Trust v. basis for land use controls. See Gump proper Wichita, 501, Kan. 2d 131 P.3d 1268 Syl. App. ¶ (2006). Further, Linsea the lack in not was because standing Linsea, historic and aesthetic considerations were at In issue. to make modifications to the of the Chase County sought grounds Courthouse Falls. Cottonwood Linsea sued to County stop that as a he had an interest the his- project, claiming taxpayer torical The court concluded that Linsea’s beauty property. status as a was insufficient create because he taxpayer standing failed to an to him that shared allege injury unique other Chase 2d Kan. at 660-61. every taxpayer County. App. Linsea, Unlike in at least two members of FOB an alleged injury *16 to their as a result claimed lost historic and aes- properties thetic value of Place. The claimed Bethany injuries by Quaney are to them not shared all other citizens of particular by Jones Rendell, Hill Towers Owners’ Ass’n v. See Society Topeka. Linsea, (3d 2000); F.3d 176-77 Cir. 12 Kan. 2d at App. cf. 661. at least member two of FOB have individual Accordingly, Rendell, See 210 F.3d at 175-78. standing.

2. FOR’s Vis-a-Vis the Interests to be Protected Purpose Sought

in Suit This The Church that FOB is for the sole argues organized purpose Place’s historical not preserving Bethany integrity, protecting However, the economic interests of its members. FOB members assert that in their economic interest their Quaney prop- Jones tied, erties in the are at least in to neighborhood part, maintaining in Place its form. Place in present Maintaining Bethany interests of FOB. The form is its expressed purpose present to its to are FOB seeks germane purpose. protect who before the FOB members testified The Church argues eco- FOB and the a nexus between did not establish the Council re- its now assert. But some of members nomic interests standing court, not in lates to participate proceed party’s qualification The who of their spoke opponents city government. proceedings not did were residents the Council Topeka. They meeting action order to have court have to express bring standing merits of the Church’s Council on the their plan. opinions is Individual Members FOB’S 3. Whether Participation of in the Suit Required as a value diminution not members’

FOB its alleges property It does not for relief as a basis claim but allege standing. have Church or the violated personal rights members, violates the Kansas its granting permit only Further, Act. FOB seeks Historical Preservation only injunctive Therefore, relief, for its members. participation damages See members is not of FOB’s individual necessaiy. Bremby, at 762-63. Kan. matter. has

We conclude that FOB standing proceed The Evidence II. Did The District Court Erroneously Reweigh Council, To The Evidence Which The (According Before For Substantial Church And The Provided Support City) To Permit? The Decision Grant The Council’s Standard Review task court was to review that the of the district parties agree “whether, law, (1) as a to determine matter

the Council’s action (2) the the tribunal acted fraudulently, capriciously, arbitrarily, evidence, administrative order substantially supported within of its Reiter the tribunal’s action was the scope authority.” *17 74, 3, (1997). Beloit, 947 P.2d 425 In 263 Kan. v. City Syl. ¶ so, to substitute its court district judg- doing permitted ment for of the Council.

202

On we the same standards review appeal, apply judicial ap- Reiter, to the district court. See 263 Kan. at 85-86. plicable court, The district in its extensive memorandum deci- 57-page sion, concluded: a record evidences lack of to “[T]he substantial evidence support statutory no feasible and necessary alternative existed. The record

finding further lacks substantial evidence to that all conclusion support possible planning was done to minimize the that would occur to Place. These damage considerations, noted, as to make the Council’s operate decision stand Topeka City and unreasonable.” arbitrary, capricious, Thus, the central issue is whether substantial evidence supports issue, In Council’s decision. we the tradi resolving apply tional rule that evidence, when the record for substantial examining we view evidence and the reasonable inferences can be drawn from the evidence more light favoring prevailing Reiter, 86; here the Church. 263 Kan. at see v. Kansas party, Jones 140, 128, State 279 (2005). Kan. 10 P.3d In University, doing so we do not substitute our own view on the merits of the Church’s Kansas, See Blue &Cross Blue Shield Inc. v. proposal. Praeger, 232, 263, (2003). 276 Kan. 75 P.3d 226 That was a matter elected officials If determine. duly City’s body governing decision, substantial evidence the Council’s the decision supports must be if even we would have decided the differ matter upheld Kan. at 263. Because there is a ently. Praeger, presumption that the acted the burden is FOB body governing reasonably, 140; Reiter, otherwise. See 279 Kan. at 263 Kan. prove Jones, at 86. court must as true the evidence Finally, reviewing accept and inferences the Council’s supporting findings disregard evidence inferences. See 279 Kan. at 140. conflicting Jones, Because our task is to examine anew the Council’s action using court, the same standards to the district we need not applicable all However, address district court’s decision. FOB aspects cites which, two matters discussed the district court according FOB, (1) demonstrate in the deficiencies Council’s action: lack decision; of fact to the Council’s findings support the Council’s failure consider the Golden criteria. See eight 591, v. Park, Golden Overland Kan. 584 P.2d 130 City of

203 to the issue these issues before (1978). consider We will turning of the evidence. the sufficiency Fact

Findings of of fact to make detailed was not The Council findings required v. See act on the Church’s in to order Manly application. properly 63, 76, (2008); Shawnee, 194 1 Board 287 Kan. P.3d City 667, Olathe, 263 Kan. v. Comm’rs City County Johnson Nevertheless, (1998). the better 952 P.2d 1302 practice gov- is to in these matters ernmental bodies specific provide deciding bodies to we detailed encourage governmental findings, us a fact in with assist do so. This is because providing findings Golden, in review. As noted record for appellate meaningful a to or no vote motion Kan. at 597: “A mere or grant yes court, be it trial leaves a or quandary reviewing appellate, deny its action.” to what basis the board took as or on why behind However, there are cases which the reasoning from the record. action is otherwise body’s apparent governmental Here, in its to FOB’Sassertion This is one of those cases. contrary brief, was not to the motion before Council simply appellate Preisner Councilman Church’s approve deny permit. moved: to the communication override

“At this time I’d like to make motion to approve and issue the the State Preservation Officer recommendation of Historical lot permit. factors, all that there “I this on the Council's consideration of relevant base all and that possible are no feasible and alternatives prudent proposal, has undertaken to minimize harm to been property.” planning for which there either The motion contained the essential findings (1) are no evidence in the record: There is or is not substantial alternatives, has all feasible possible planning been undertaken minimize harm the historic property. it If the lack of were malee findings impossible meaningful review, been to the district court’s recourse would have judicial for it to make remand the case specific governmental body did in v. Board Wabaun- the trial court Zimmerman findings, (2009). 926, 935-36, Comm’rs, P.3d 400 see 289 Kan. County The district court did not find the record so as to meager preclude its review and a remand to the Council. Neither do we. require

The conflict aired before the Council was not whether more allowed, Church should be but where it be should located. The issue turned on whether the alternatives to the suggested Church’s were relevant factors to be considered plan acting *19 were, Church’s If the Church had the permit application. they burden to were not feasible and alterna- prove they prudent tives to the Church’s We conclude that the record before us plan. is to resolve this issue. adequate

The Golden Criteria The Council factors, did not consider the Golden see 224 Kan. 598, in to the Church’s deciding grant permit application. Golden arose from the of Overland Park’s refusal rezone a (office tract from C-O retail). to CP-1 Su- Our building) (planned Court enumerated factors that “it would be well preme eight bear in mind when zoning body hearing requests change.” 224 Kan. at 598. Golden,

Unlike in involves no present controversy request to rezone the Nevertheless, Church’s of land property. variety use See, issues fall within the rubric. Robert L. permit zoning e.g., Park, Rieke Co. 634, v. Overland 232 Kan. 657 P.2d Bldg. City of (1983) (which involved denial of a use for the special permit use of a to advertise a commercial searchlight enterprise) Gump Trust, Rev. (which Kan. 2d 501 involved the denial of a App. conditional use for the erection of a telecommunications permit tower). However, demonstrates the nature of the Gump advisory Golden criteria. In the reasonableness of the denial of the Gump, was considerations, based on aesthetic permit application solely factors not even mentioned in Golden. As in stated Board of John Comm’rs, son 263 Kan. at the Golden criteria “are County factors are Other fac suggested only[— they advisory nature]. tors be in an individual case.” See 6. may important Syl. ¶

Here, the Church for a to construct a lot applied permit on its Because was to be constructed on property. project prop- as historic on the State’s Historic erty designated Registry, SHPO, who its submit Church was proposal required that the Church There no contention it. it and reviewed opposed had the SHPO to a not be entitled would approved permit 75-2724(a)(l), in order However, K.S.A.2008 under Supp. project. the Church had to demonstrate the SHPO’s to overcome objection, (2) all alternatives and are no feasible there prudent minimize harm to the has been undertaken to possible planning con- factors for us to are the Those controlling property. The Council’s Golden factors. not the sider this precatory appeal, for fail- unlawful the Church’s action permit approving Golden factors. ure to consider the The Church’s Burden the determination that based on

The SHPO the project opposed lot “will encroach destroy damage, upon, proposed above, in As noted order to overcome Place site.” determination, demonstrate first was to the Church’s obligation to its feasible and alternatives that there were no Then, show that all it was lot. obliged possible planning *20 minimize harm to the historic has been undertaken property. alternative The was not refute Church eveiy potential obliged factor. See Lawrence unless alternative constitutes a relevant Alliance, Inc., Kan. 2d Inc. v. Allen 16 Preservation App. Realty, 93, 95, 138, (1992). 250 Kan. 805 In order to 819 P.2d rev. denied factor, a must be “some- as a relevant alternative potential qualify mere alternatives.” more than a suggestion possible thing 361, Lawrence, Kan. 2d Allen Inc. v. Realty, App. (Allen I). (1990) 790 P.2d 948 “ a relevant factor if it included sufficient factual ‘A alternative would be proposed was feasible and information to a conclusion such alternative support prudent. factual information could not form A alternative such proposed unsupported omitted.]” of such a conclusion and would not be relevant.’ [Citation premise Reiter, 263 Kan. at 89-90. 75-2721(b) rules and K.S.A. directs SHPO to adopt regula- Pursu- the State’s historic tions preservation policy. implement 75-2721(b), 118-3-l(e), K.A.R. ant to K.S.A. SHPO adopted alternative” as which defines “feasible prudent “an alternative solution that can be and that is sensible reasonably accomplished or realistic. Factors that shall he considered when whether or not a determining feasible and alternative include the prudent exists following: “(1) issues; Technical “(2) issues; design “(3) the to the if project’s relationship community-wide plan, any; “(4) added.) economic issues.” (Emphasis

Discussion documents the record as well as the from the testimony are with heartfelt of con- opponents plan replete expressions cern for of the historic nature of the central preservation City’s Council, however, core. The task of the was to deter- penultimate mine if there existed feasible and alternatives to the Church’s proposal.

Feasible And P Prudent Alternatives earlier, As noted the record discloses several al- suggestions ternative locations for the Church’s lot. parking (1)

Alex Polk, Kovalchuck on 8th and proposed angled parking (2) lot(s) on Church on the north of 8th side parking property Street, over the Church’s current parking garage lot.

Barbara lot at 716 S.W. Quaney proposed building Street, Street, 8th Street, 704 S.W. 8th 701 S.W. 8th or “cutback in the 800 block Polk Street or 8th Street in front along of Grace Cathedral.”

Hiram Stockwell also the use of the Church’s lots on the north side of 8th Street. He testified that lot S.W. 10,000 8th Avenue contains “over feet and is square approximately and the lot at 804 S.W. 8tb equal proposed parking space” 6,000 Avenue contains “over feet.” He also square suggested *21 the Church “additional near the circular and south develop space drives at the east side of the church” for for the handi- parking and elderly. capped

Ed a Spiess suggested restriping existing portion parking lot to create more handicap-accessible spaces. that Stockwell’s

Alvin Greeson suggestion support spoke drive the circle east additional near the Church parking develop the Church. off of Polk Street the Harrison alley “turning suggested Joanne cars to move direction, then enable which would other

the quickly lot.” the down to parking present refers to the recommendation Department’s City Planning that ‘cut-back’ traffic

conclusion of die engineers “angled Street, Place SW to Polk adjacent prop- along parking to lot.” a alternative be feasible would proposed parking erty stalls The SHPO directly adjacent “parking suggested and 8th Street if needed.” at Polk street possibly factual information includes sufficient None of these suggestions a a conclusion that it constitutes feasible to prudent support a whether to Church’s In alternative determining proposal. level a alternative rises to the feasible suggestion consider, the for the Council to a relevant factor constitutes technical, issues, as economic must address design, suggestion to See well any plan. community-wide project’s relationship Further, if an does not 118-3-l(e), individual K.A.R.. (j). suggestion consider, the factor to constitute a relevant Council aggre- them into two or such does convert more gation suggestions consider. relevant factors the Council must which his cost estimates for Kovalchuck no proposals, presented be more he did expensive acknowledge they “may though He not address the Church’s also did [than proposal].” from Church that would arise concerns raised creating safety by Southwest lot that is from the Cathedral separated parking Avenue, street, attendees to 8th four-lane would require did reach Cathedral. He not address climb 14 to steps its restrict the use Church’s concerns about to pro- inability on-street Church members. posed could be' con- the opinion Quaney expressed angled standards. in a manner to structed satisfy handicap-accessibility cost, However, concerns about she did not address Church’s or the the use of Church funds safety, develop public property, Church mem- to this street access guarantee inability *22 she, bers. Neither nor other how con- any opponent, explained street used Cathedral attendees verting parallel parking already by would solve the Church’s need for at least 40 angled parking additional spaces.

Stockwell did offer cost estimates for his proposals. Greeson Stockwell’s for the circle drive. He supported proposal testified he measured the area and estimated there could be 32 additional in that area. He did not parking places provide any basis, other than his own to establish the lay opinion, feasibility his Neither addressed Dean observations proposal. Lipscomb’s about tire of this site. Neither Stockwell nor impracticability Greeson facts to lines provided any suggest relocating utility and the Cathedral’s air would be a conditioning system prudent alternative to the Church’s their how would plan suggestion the Church’s need for additional satisfy parking. does by proposal lot Spiess restripe existing parking

not address the Church’s need for additional parking spaces.

It is how unclear Harrison’s would additional suggestion yield needed the Church.

In the alternative of on-street neither suggesting angled parking, (who SHPO nor the staff announced its City’s professional decision) after the SHPO’s position day provided any analysis whatsoever in support.

There is no litmus test to “mere definitively distinguish sugges- alternatives,” tions as to I, Allen 14 Kan. 2d at possible App. from a that rises to the level Here, relevant factor. suggestion the continuum of extended from the multi- suggestions at one extreme to the on-street story parking garage angled at the other. We are convinced that none constitutes a relevant factor, even if a number espoused by project’s opponents. However, if we assume for the sake of discussion that suggestions toward the latter end of the continuum are sufficient to constitute factors, (viewed relevant it is clear from the record more light that there is substantial evidence to favoring prevailing party) establish that none a feasible and alternative.

No one Wolfe’s challenged Bishop testimony regarding Church’s need and the need accommodate parking spots its members. elderly handicapped Church’s consideration of testified

Dean Lipscomb added off the Greeson for Stockwell and alley proposal an be- testified that “this isn’t Cathedral. He south option unit air there an cause are there conditioning utility poles *23 Plus, use that we of a car. size already space parallel freight be minimal.” the would so gain parking Kovalchuck, the from addressed Dean suggestion Lipscomb the a lot across the street from Stockwell for and parking Quaney, that would Cathedral, elevation differential the require noting to reach the Cathedral. a street and crossing busy steps climbing to the on-street With suggestion, angled respect in- which the record’s Church report, only engineering provided the cost sur- if this were dicates that implemented suggestion $16,800 $36,000. Dean to would increase from material Lip- facing if were scomb raised issues safety suggestion regarding to Church funds as well as issue expending implemented, that could be create nearby preempted by apart- spaces dwellers, students, to the and ment school large high public Further, exclusion of Church members. converting parallel parking net increase would create only marginal spaces angled in available parking. concerns about the

No of Dean one challenged Lipscomb’s any with ev- of the alternatives prudence suggested feasibility Reiter, I, in in Mien idence the standards satisfying expressed State in the Historical administrative Society. regulations the recommenda- voted to override Council unanimously based in tion of the SHPO and to the Church part, grant permit motion, his on the fact that Preisner asserted in Councilman “there no alternatives feasible proposal.” [are] prudent Reiter, I, in Allen and in the standards Under expressed and con- of the State Historical administrative Society, regulations us, none examination to the record now before our fining which alternatives constitutes a relevant factor the Coun- suggested on the cil consider Church’s application. acting required hand, can be found to have risen On the other if any suggestion factor, the facts of a then level relevant upon examining find we in the more record prevailing party, light favoring substantial evidence forth in set Councilman support finding Preisner’s motion that there were no feasible alter- prudent Therefore, natives to the Church’s we conclude that proposal. there was substantial evidence to the Council’s support finding there no were feasible and alternatives to the Church’s proposal.

All Possible To Minimize HarmP Planning The Council’s final basis the recommendation of overriding the SHPO was that all had been undertaken to possible planning harm minimize to the historic There substantial evi- property. dence of efforts the Church to the effects of its mitigate pro- lot on the remainder Place. FOB does posed parking Bethany that there were other activities Church argue mitigation could have but chose to employed ignore.

An documents that the would involve engineering report project 12,000 land, feet of 4.5%or Place. Wolfe square Bishop *24 .that testified the Church would be “twice as trees” planting many would bushes, be lost in the in addition ato line of project, hide the lot from street view. Dean informed Lipscomb the City’s Department: Planning lot, “Between Polk and the a three-foot tall proposed parking hedge already (which wide), When there are no cars lot will

place. be 60 feet only (the it will be side) invisible from the street. The far side of lot west bewill (Over lined with mature trees. trees would remain between the lot buildings.)”

The new, Church’s shows that more desirable trees landscape plan would be the trees removed construction. planted replace during (and We find in the record no in the nothing arguments parties’ briefs) to were there other activities the suggest mitigation Church could have undertaken but chose to There is sub- ignore. stantial evidence to the Council’s determination all support has been undertaken to minimize harm the possible planning pro- cause to Beloit, Place. See Reiter v. ject might City of 74, 95-96, (1997). Kan. 947 P.2d 425 We conclude that there is substantial evidence to support Council’s of the Church’s In approval permit application. arriving conclusion, the district court aat required speculate contrary in the record and to facts which are not the existence of about the limited the Council. Because of the evidence before reweigh this, are not matters such as these take in role courts reviewing we are which engage. weight permitted practices the writ- at the credit to be testimony public hearing given the Coun- members’ was for in the Council ten documents packets decide, erred in aside not the courts. The district court cil to setting the Church’s permit. The Church’s The District Court’s Decision Violate

III. Does Amendment To The United States Under The First Rights Or Under The Land Use And Insti- Constitution Religious Act, 2000cc P Persons 42 U.S.A. tutionalized § evidence to Because we conclude that there was substantial sup- action, the Council’s we reverse the contrary judgment port Thus, it to consider whether the dis- district court. is unnecessary under the First trict court’s decision violated the Church’s rights or under 42 U.S.C. Amendment to the United States Constitution 2000cc(a)(l)-(2) (2006) of the Land Use and Institu- Religious § tionalized Act of 2000. Persons Did Err In To FOB To

IV. The District Court Refusing Require

Post A Bond For This Supersedeas AppealP with con- When the Church its intention to expressed proceed lot, struction of the FOB moved the district court for order to halt the The court the motion restraining project. granted but refused to condition it a bond. The Church FOB posting 60-2101(d), that K.S.A. when read appeals ruling, claiming 60-2103(d), with district court to or- K.S.A. together required *25 the re- der FOB to a bond as a condition for post supersedeas FOB that the order. contends bond straining provision supersedeas court, 60-2103(d) the district K.S.A. relates only appeals/rom matter is now the not district court. The before appeals court. The of time has rendered this issue moot. appellate passage The Church also that FOB post complains required But the bond of this supersedeas during pendency appeal. of a bond is to secure an purpose supersedeas appellant’s stay an adverse district court while the matter is before an ruling ap- 60-2103(d)(l), court. K.S.A. for a pellate provision supersedeas bond on “Whenever an entitled thereto appeal, provides: appellant desires a such to the district stay appeal, appellant may present bond____” court for its FOB is the approval supersedeas appellee, not the It does not desire a of the district court’s appellant. stay judgment. provisions supersedeas appli- for a bond have no cation to FOB.

Because we are court, of the district reversing judgment Church is entitled to its the Council and to permit approved by with construction of the If FOB proceed for re- project. petitions view of our the Kansas Court to Su- ruling by Supreme pursuant (2009 Court Rule 8.03 66), Kan. Ct. R. Annot. preme provisions 8.03(i) of Rule will take effect.

Reversed and remanded with directions.

# # # I concur with GREENE, J., the ma- concurring dissenting: on the issue of but I jority with the standing, respectfully disagree analysis holding majority affirming Topeka City (Council) Council’s action to override the of the State opinion Historical (SHPO) Preservation Officer and would affirm the dis- trict court.

Our has “historical, architectural, legislature proclaimed and cultural of Kansas is an asset of the state heritage important and that its and maintenance should be preservation among K.S.A. 2008 75-2715. highest priorities To government.” Supp. end, has created a legislature comprehensive program “to foster and the conservation preservation promote use of historic education, for the property inspiration, pleasure enrichment of the citizens of Kansas.” K.S.A. 2008 75-2715. Supp.

The SHPO Opinion Explained Here, the SHPO found —in accordance with federal standards— that the lot would encroach proposed parking upon, damage, Place, listed on the of Historic destroy Bethany property Register *26 Places, and asked that be to take Kansas project redesigned Topeka’s right-of-way. Upon request advantage (col- the Grace Cathedral and The Diocese of Kansas Episcopal Church), the SHPO later reconsidered its initial lectively report and issued a more detailed of its Due to a explanation opinion. technical the Council refused to include this agenda requirement, record, in its letter of reconsideration the members of the Council were to see the apparently deprived any opportunity more detailed and basis the SHPO’s The for explanation opinion. letter of reconsideration would have explanation provided more of the historic of the area under compelling analysis aspects consideration. I this letter of reconsideration tech- recognize in not be included the record on but the nically may appeal, express reference and discussion of the letter the district court warrants by our consideration of the letter on include: appeal. Excerpts “Since the boundaries of the nomination include legal property being lot, considered for a 2007 SHPO comments used the 1995 May edition of The the Interior’s Standards the Treatment Historical Secretary of for with Guidelines b- Recon- Properties Preserving, Rehabilitating, Restoring (Standards) 118-3-8(a). Historic as K.A.R. On structing Ruildings required SHPO]): 13 of the it Standards states page (emphasis [by structures, The site consists of a historic or and as- building building buildings, sociated features within a defined or of land. landscape designed legally parcel A site be in its own or because of its association with the may significant right, or between and land- building buildings. relationship buildings features on a site should be an work scape integral part planning every project. “The make the recommendations on guidelines following page (emphasis SHPO]):

[by and their features as well as fea- Identifying, retaining, preserving buildings tures of the site that are its overall historic character. Site important defining walks, roads, features include circulation such as or may systems paths, parking; trees, shrubs, fields, material; such as or vegetation herbaceous land- plant fences, forms such as berms or such as or terracing, grading; furnishings lights, benches; monuments; decorative elements such as or water sculpture, statuary fountains, streams, lakes; features and subsurface including pools, archeological features which are of the site. important defining history the historic between and the

Retaining buildings relationship landscape. . “To our has been characterized knowledge property question historically an with It is these that define features. aspects open space landscaped the mature trees. The *27 historic nature of property, age Secretary of the Interior’s Standards the Treatment Historical toith Guidelines Properties for ir Historic does Preserving, Rehabilitating, Restoring Reconstructing Buildings for not recommend and their features or radically buildings ‘removing changing site features which are the overall historic character of the important defining that, result, so the character is diminished.’ One of the factors property key here is the historic between the and the relationship buildings landscaped open lot as would space. parking proposed damage relationship. (1978) “If we were to the nomination Place to the interpret original Bethany structures, of Historic Kansas Places as the two historic Register only including then the lot would be reviewed under the environs of the his- proposed parking toric as characterized in K.S.A. 75-2724. The lot would property proposed parking be within the environs of both Place and School. Standards High Topeka (1998) and Guidelines on Environs were Evaluating Projects for Effect of under K.A.R 118-3-8 and have been followed. 1 of this adopted consistently Page SHPO]): document reads (emphasis [by The character of a historic environs should be retained and property’s preserved. structures, features, The removal or alteration of distinctive landscape buildings, etc. that characterize the environs should be avoided. special relationships, The environs of a should be used as it has been or allow the property historically inclusion of the new uses minimal to the environs’distinctive require change materials, features, and spatial relationships. structures, features, Demolition of etc. character-defining buildings, landscape in a historic environs should be avoided. property’s additions, alterations, construction, New exterior infill or related new construction should not features or destroy character-defining spatial relationships characterize the environs of a property. features between “Accordingly, landscape spatial relationships

features on the must be taken into consideration when SHPO property making comments. As lot does on proposed parking change spatial relationships the property. “The Standards and Guidelines on Envi- Evaluating Projects Effect of rons addresses lots. 5 it On states ‘when specifically page newparking areas are them to be with the consistent character of the environs required, design states, and to include as litde as It that ‘wholesale modifi- possible.’ specifically traditional, cation of is not recommended. character-defining parking patterns’ The area for the new widi lot is not consistent traditional on tire site.” patterns

Based for a council majority opinion, template city (1) to override the SHPO’s an one: Place the item opinion easy (2) Allow public agenda; everyone speak proposal; (3) SHPO, letter of Ignore opinion especially requested (4) reconsideration Have a council member make explanation; a well-stated staff); motion Vote (probably provided by legal to override the SHPO. Should it be this really easy municipal to override the well-reasoned of die governing body opinion SHPO?

The District Court Opinion The district court believed that the was flawed. clearly process our focus is Council, on the action of the Although primarily Alliance, Lawrence Inc., Preservation Inc. v. Allen 16 Kan. Realty, 93, 102, (1991), 2d 819 P.2d 138 rev. denied 250 Kan. 805 App. *28 (1992), here the district court a valuable to opinion provides guide the in flaws the After a review of the rec- process. comprehensive ord, tire court noted a number of procedural irregularities, among them: be a “[TJhere may whether the question for review is judgment presented in sufficient form such that it

presented be reviewed in may accordance judicially with the above standards. Council’s ultimate decision was initi- Topeka City ated in the form of a . motion. . . “Thus, without the reasons or some writing of the summarizing expression record, reasons on the the record itself is the evidence available for only deducing is, therefore, reasons for the Council’s vote on the and the determinant permit of both the Court’s to review the record and ability its to sufficiency support record, is, made. Whether judgment such itas is sufficient in questionable, See, at best. Olathe, Board Comm’rs v. County 263 Kan. City (1998). “The made and presentations the documents submitted to the Topeka City Council identified alternatives to the Diocese’s lot These alter- parking proposal. Street, natives Street, involved cutback Polk on parking or an along Eighth adja- cent and/or the use of vacant alley to the Diocese located property belonging Street for proximately the additional Eighth desired. Information was parking also about or provided Grace Cathedral’s current reassigning reconfiguring park- to the west and ing just the church or adjacent its current drive on the along alternatives were No other presented by any alleyways. east or reconfiguring or commentator. participant of the Diocese’s recommended “The disapproval Planning Department Topeka alternative how- of the ‘cutback’ presented; based on the parking viability request ever, is were compared whether the other alternatives investigated suggested The Shawnee Historical Society from the record. County supported unknown Association Old Town op- alternative. The Historic Neighborhood Improvement in favor of the alternatives lot presented. posed devoid, as to the stated need to cross Eighth “The record substantially except an or of the proffer Street and the overall safety explanation ‘neighborhood,’ on the Diocese’s other owned proximate property. as to lots placing Diocese of its east drive. The No was made as to argued comment expansion Council, Court, west of of its lot on the not the reconfiguration existing avail- would reduce the church to create more parking spaces handicap spaces addition, in that lot. In Council given pictures, diagrams, able Topeka City but and those of others the state officer’s writing, opinion preservation Also, Cathedral area in aid a video of the Grace from only opponents. principally but alternatives was delivered to the Council opposition, by speaker reason, but, of the record. for some it is not part played, a no evidence’ relied “What then would be ‘substantial support treat unless one is alternative existed required feasible finding prudent exclusive of other alternative each alternative any proposed mutually elsewhere solutions and the common universally throughout place employed Pres- intent of the Kansas Historic Such would not seem the are ignored? it. Act or a ervation proper implementation in the brief statement than the “Other City’s Planning Department’s Topeka lot, the record is devoid any of an alternative to the record support that would measure other that would show evidence any comparison planning noted, assess, if need. As the Diocese’s alternatives or purported objectively, feasible and had been seen as not simply alternative entirely proposal *29 need for more it did not address Grace Cathedral’s because expressed adequately needed, it, if stands as or which worthy, elderly certainly handicapped parking, nevertheless, would need into Grace Cathedral forty forty- calls why question that of attendees if not all were to be used for three category parking spaces needs. fill the balance of the other alternatives would not suffice to expressed why This, itself, was never second tier or of the statutory reflects that this phase inquiry lot the Diocese as the of the or parking addressed from the City, by perspective lot a ten slot ostensibly at in the any process. Certainly proponent, point However, it also in and of itself. inquiry serves as a consideration opens mitigated east side drive or in the Cathedral’s ten slots could not be into opened along why lot, added, need, with a in the western satisfaction of this while ramp specific yet other the alternatives serve those attendees without needs. allowing special Court is of when all these “Accordingly, opinion, particularly noting considerations, record,’ latter that ‘in of the ‘[the light Topeka Council] [did City factors, sense, not a hard look at all relevant take] common using plain [base] its determination on the evidence.’ “The SHPO letter of [the reconsideration and was importance explanation] that it Diocese was after the itself the State Historic Pres- generated requested it, ervation Office to reconsider its so opinion, should have been an accordingly, official . . . part statutory precedent. process “In a or if an judicial a referenced item quasi-judicial litigant not proceeding, evidence, had, then an would be or the objection would typical hearing practice be advised that the require speaker document that was proponent was referenced not evidence or had not been made available to trier of However, fact. no one with of this omission knowledge Council meet- spoke up floor, thus further the Council with the then on the ing, leaving opinion, State Historic Preservation Officer’s was less than sound. opinion “Another incidence where a speaker have his materials might thought proffered record, record, would be in but not now do in the is the circumstance appear noted the video Alex Kovalchuck of the Grace involving by Cathedral’s environs where alternative was available. Mr. Kovalchuck was thought not Again, advised his video was not received. Mr. being Notwithstanding, although time, Kovalchuck did of his video to Council provide at that it is clear copy it never made the record and never was viewed before Council's decision. “Also, here, from review of the and video of the Council’smeet- transcript City it is some obvious Council members ing, were dubious of their to chal- authority the Diocese’s on First lenge based Amendment plans and knowl- religious grounds Scholastica, Atchison, (D. St. Mount Inc. v. edge 482 F. 2d 1281 City Supp. 2007)____ Kan. “Here, no evidence exists before the Court that would indicate that remotely Act, either the Kansas Historic Preservation or the Act’sparticular implementation here Kansas Historical other than on Society, the sound grounded premise historic environs benefit of future citizens. securing con- Accordingly, sideration of deference to the Diocese or Grace their Cathedral because of status as entities would have been a religious consideration would wholly improper not have been ‘relevant factor’ the Diocese’s re- approving disapproving to build a lot on quested Place permit environs. “Here, scrutinized, can, the Court has itas the record carefully presented sustain, such as to, to accord a basis to attempt and thus deference give Council’s decision. The Topeka record is one that is difficult only *30 not lend itself a record that does

follow, It is evidential. but one that marginally de- Council’s or reasons for the City reason Topeka to any cogent extrapolating for def- such, basis to locate necessary has been unable As the Court cision. heretofore discussed. all of the reasons its erence to finding here, each alternative it clear that while proposed seems “Notwithstanding, the whole is not satisfy lot required separately the Intervenors’ parking proposal and in needs, each be considered collectively but rather may Intervenors’ of the nevertheless, Council, do so. As a conse- combination, failed to City Topeka evidence to statu- a lack of substantial support the record evidences quence, existed. The record alternative that no feasible prudent necessary tory finding a conclusion all planning evidence to possible lacks substantial support further These Place. that would occur to done to minimize damage stand considerations, noted, decision make the Council’s Topeka City as operate of the the decision Topeka and unreasonable. Accordingly, as arbitrary, capricious, is set aside.” Council here? I its limited boundaries court Did the district overstep decree was and that its it did not judicial suggest respectfully and a careful review of record based thorough soundly authorities. of controlling application by Statutory Our Standards as The Interpreted Applicable Court Supreme Court, statute, our by Supreme interpreted applicable than has been the SHPO threshold for sets a far overriding higher 75-2724(a) here. K.S.A. 2008 the majority Supp. by recognized in material part: provides until: shall project proceed “[S]uch [a proposed] made a deter- “(1) . . . has subdivision . . . the political governing body factors, mination, that there is no feasible dll relevant based a consideration includes all and that the possible alternative to the program proposal such use.” from harm to such historic resulting to minimize property

planning added.) (Emphasis Beloit, (1997), In Reiter v. City 947 P.2d 263 Kan. statute and examined this our Court guidance provided Supreme It concluded: a “relevant factor.” what constitutes on the question “ if it included sufficient a relevant factor alternative would be ‘[A] proposed feasible and alternative was a conclusion that such factual information support could information such factual A alternative unsupported prudent. *31 not form the of such a conclusion and would not premise be relevant.’ [Citation omitted.] “However, the term ‘relevant factors’ is not limited to necessarily alternatives. The term ‘relevant factors’ authorizes the to take into governing body consideration all relevant factors under relating consideration. This project authorization extends to all those factors connected to the ultimate de- logically cision of whether there is a feasible and alternative to the proposal whether the all includes program possible minimize harm to planning the his- torical at issue .... property “Another relevant factor that we believe be considered may by governing is the above, body of the report SHPO. As we reasoning noted the Kansas State Historical and SHPO a role in Society play major determination con- cerning . . preservation . The SHPO’s property. and the report information or lack thereof used the SHPO in such a by making determination be considered a may by as a relevant factor under governing body K.S.A. 75- 2724.” 263 Kan. at 89-91.

The court then further stated: “We believe that tire information relied the SHPO is a relevant upon by factor be considered may by under K.S.A. 75-2724 governing body and that its relevance does not end with the initial determination made the SHPO that by the need for a triggers determination by governing body. “... [T]he ultimate question review is appellate whether the governing body took a hard and, look at all relevant sense, factors common using based plain its determination the evidence. [Citation 263 Kan. at omitted.]” 92-94.

Applying Statutory These Standards to the Record of

Council Action chief with the My is that disagreement these majority statutory standards as far more than a interpreted routine determi- require nation of whether substantial evidence competent supports Council’s determination. The entire premise majority opin- ion is that our role starts and with such determination, even stops service to the though majority standard gives lip three-prong embraced in Reiter —under which the substantial evidentiary sup- test is but one Neither our port courts nor the prong. appellate federal courts similar standards have ever reduced the applying task to such appellate simplicity.

220 has in Allen our court

As noted Realty, legislature pat- 75-2724 after a in K.S.A. contained the standards nearly terned of the U.S. federal act identical Department governing projects Allen (2006). 16 Kan. 303 see 49 U.S.C. Realty, § Transportation, identical standards also same or 2d at 100-01. These nearly App. See, Na- enactments. federal administrative other e.g., appear 42 4321 Act of U.S.C. Environmental tional § Policy the Kan- law is federal case et helpful applying seq. Accordingly, Kan. 2d at 101. See Allen sas standards. Realty, App. courts from federal fact, courts took it that our In page appears as the ultimate “hard look” test die ap question embracing at 102 Kan. 2d matters. See Allen of such Realty, App. peal v. Burnley, League Hickory Neighborhood (quoting Defense on other 1988], 1208, 1219 F. grounds [W.D.N.C. *32 Supp. modified Reiter, There 1990]); 263 Kan. at 94. 58 Cir. 893 F.2d [4th compare both the “relevant federal law is a host of explaining applying in circumstances notunlike look” test and the “hard factor analysis” well as our own cases —as us. These federal that before appellate of the that the majority simplistic approach opinions —demonstrate in this context. is inappropriate opinion have concluded First, and federal courts courts our appeüate is an relevant factor test that the “arbitrary part integral of the administrative test and that the record proceed capricious” factors. of the relevant show consideration must affirmatively ings In re 103; 2d at see Allen 16 Kan. Energy Dept. Realty, App. of 1981), 1232, 1269 (D. Kan. F. Well 520 Exemption, Supp. Stripper Ct. 1375 rev’d on other 690 F.2d Emerg. App. (Temp grounds (1983). Thus, in these our task denied 459 U.S. 1982), 1127 cert. a mere de examination a rather cases extends to beyond unique indeed, the district evidence of substantial termination support; actions found the Council’s standard and the correct court applied arbitrary capricious. that the

Second, have concluded federal courts application if be set aside action test the relevant factors agency requires has branch which the on factors has relied legislative agency an consider, failed to consider it it to not intended impor- entirely its de- it offered an or tant explanation aspect problem,

221 cisión counter to the evidence before the or was so im- agency it could be ascribed to in view difference plausible Motor v. Vehicle Assn. State product agency expertise. Mfrs. Mut., 29, 43, 443, 463 Farm U.S. 77 L. 2d Ed. 103 S. Ct. 2856 (1983); Admin., 1046, v. Ross Federal 162 F.3d 1050-51 Highway (10th 1998). Cir.

Third, is no there in Kansas for although statutory requirement context, formal in this the federal findings by governing body (APA), Administrative Act (2006), Procedure 5 U.S.C 706 re- § at least a brief statement of the for an de- quires grounds agency cision, statement be must detailed that the review- sufficiently can tribunal determination under the ing appraise agency’s review, standards of and it must be detailed appropriate sufficiently so that the determine court can whether the relevant appellate factors were determined and that the decision was based those factors and otherwise reasonable. Friends Bow v. Thompson, 1210, (10th 1997). 124 F.3d Cir. test, the hard look courts have set aside

Finally, applying actions” when the failed to assess or “agency agency study (International of a alternative Snowmobile feasibility proposed Norton, 1249, 1259 Ass'n v. F. 2004]); 2d [D. Supp. Wyo. Mfrs. when the failed to consider the agency possible availability public (Benton alternative Franklin funding Riverfront Lewis, v. 701 F.2d 1983]); Cir. and when Trailway [9th failed to allow State agency meaningful participation (Allen Historical in a demolition 16 Kan. Society project Realty, 108). 2d at App.

Our courts have that relevant factors must appellate suggested include sufficient factual information to a conclusion that support such alternative is both Reiter, feasible and 263 Kan. at prudent. 89-90; Lawrence, Allen Inc. v. 361, 14 Kan. 2d Realty, App. of (1990). P.2d 948 concludes that of none the majority of alternatives to the Council “includes sufficient myriad proposed factual information to a conclusion it constitutes a support feasible and alternative to the Church’s proposal,” apply- 118-3-l(e). the of Place, criteria K.A.R. See Friends ing of 43 Kan. 2d at 207. In so the would have App. concluding, majority 222 a docu- the alternative

each citizen present fully proponent issues, issues, the technical mented design project’s plan including economic issues. plan, community-wide relationship the the this turns With due regulation respect, paradigm a its If the citizen on head. law standard propo expects statutory of an a documented alternative such nent present fully proposal will be no there to the demolition certainly property, about. The feasible alternatives majority places entirely worry burden that to—or at least the the on citizen belongs proponent is, courts and federal our shared with—tire body; governing an aside actions because courts have set consistently in its the Council—failed or duty body agency governing —here technical, assess, the de into or otherwise look investigate, study, See Benton of alternative economic issues proposals. sign, F. Franklin, 791; 340 F.2d at International Snowmobile 701 Mfrs., Indeed, the has the 2d at 1259. project proponent Supp. exists, and alternative burden to no governing prove acceptable are whether alternatives has the to determine presented body duty 2008 75-2724 feasible and K.S.A. (duty Supp. govern prudent. Reiter, (burden Lawrence 263 Kan. at body); proponent); ing Inc., 16 Kan. 2d Alliance Inc. v. Allen Preservation Realty, App. Here, (1992). (1991), 93, 95, 819 denied 250 Kan. P.2d 138 rev. on a host of internal was body fully capable calling governing instead, alternatives; assistance in departments evaluating advice that it received internal completely only department hard The view of the renders meaningless majority ignored. look standard, have which courts held most place significant See, Trust v. Hickman on the body. governing e.g., duty agency Center, 1022, 1040-42, (1999). 974 P.2d 584 Kan. City Clay Arbitrary, Council’s Decision Was the Capricious, Unreasonable? us, before I would to the entire record

Applying guidance action conclude that the Council’s overriding opinion and unreasonable SHPO was following arbitrary, capricious, reasons: from

(1) The letter of reconsideration and detailed explanation factor should have been a relevant SHPO was fully clearly Council, it because considered provided particularly *34 basis for the SHPO’s determination. See Rei- comprehensive ter, (the 263 Kan. at 90-91 of SHPO is a report reasoning considered). relevant factor to be exclusion of the letter from consideration the Council based technical by unreasonable, agenda requirement wholly given especially s statement had letter been city attorney simply at handed out the Council it would have been received. meeting, One of the of our highest priorities government, pres- ervation, should be overridden without a full consideration bases the SHPO’s determination. Where underlying fails to consider the and rea- governing body entirely report context, in of tire SHPO I would hold the soning resulting action to be flawed. See Motor Vehicle 463 U.S. Mfrs., inherently 43; Ross, 162 F.3d at 1050-51. (2) Given the of factual information to importance support pro- alternative, view, consider, the failure of the Council to posed

and receive the Kovalchuck video be viewed as at least may unreasonable and isit possibly capricious. Although impossible for this court to know what have been included in the may video, isit clear from the record that Kovalchuck intended to a video of numerous de- present demonstrating feasibility tailed alternative ad- the “cut-in” proposals, including parking, ditional “cut-in” lots two owned the Church that parking, by could be converted to and multi-level all of parking, parking, which were “feasible, characterized Kovalchuck as reason- by able court, As noted the district is clear proposals.” “[I]t by never made [the the record and was video] never viewed be- fore the Council’s decision.” This flaw con- procedural fatally taminated the if one with the proceedings, especially agrees in on citizen majority placing principal responsibility propo- nents to document alternatives. court, As noted the district the numerous alternative by pro- listed the district court were never considered posals combination either feasible or I with being prudent. agree the district court that a failure to consider concluding combination the them, alternative subset proposals, and to test or combination of these alternatives for analyze any In its feasibility prudence highly problematic. duty no determine whether “there is feasible alterna- *35 is view not to the the tive to surely body governing proposal,” K.S.A. 2008 75-2724. in isolation. See each alternative Supp. De- (4) the of City’s Planning Engineering imprimatur to “cut-in” seems not for the feasibility partments rec- its inherent These have been weight. departments given the Church’s ommended “DISAPPROVAL” proposed park- will alternatives that “in alternative and feasible lot light ing the listed or not encroach including property,” damage in would result that the district court noted angled the Church’s more dedicated to than 150% space pro- there was a brief Council Although presentation posal. recommendation, investi- this there was no further regarding of cost of cost or assessment or sharing, gation possibility no or discussion Council there by absolutely questioning a at to hard look the thereafter demonstrate members City’s and alternative recommendation own proposal. departmental to (5) evidence establish The record devoid any completely to “all that the Church’s reflected planning possible proposal such such historic from minimize harm to property resulting Granted, added.) the Church’s use.” representa- (Emphasis Street, new Polk a to trees tives mentioned along “plan” plant ad- that this but I remain unconvinced suggestion unenforced to minimize harm.” reflected “all possible planning equately court, a host of documented the district As fully by potential minimize the harm were never addressed ideas to further by should be contrasted with Church or Council. This Reiter, where taken by municipality specific steps harm “raised and addressed” to minimize were by steps en- and thereafter commission council planning legally in the See as conditions motion approve project. forced Reiter, that all 263 Kan. at 81-84. This statutory requirement, harm, was met to minimize not be executed possible planning some trees notion new with a mere idea or unenforced plant narrow of land the street. adjoining along Did strip “take hard look” at rele- here body truly governing its on the evidence of such vant factors and base determination to minimize harm? Like alternative plans proposals court, “ultimate the answer district I conclude question 94) (Reiter, is no. 263 Kan. at review” Thorough appellate examination of the does not me record convince that there was factors, look hard relevant and there was no clearly Instead, consideration of minimize harm. I am con- plans vinced that the factor for the Council was concern determining issues, based on First Amendment and this is most litigation evident the clear discussion Coun- only weight by cil members but to Councilman city attorney’s response Harmon that “a denial of the could create some parking permit court, issues.” As noted the district this consideration legal incorrect, was not it was outside the consid- only legally totally erations Kansas law. Where an required by agency governing has relied a consideration those body beyond specified by *36 the this alone can render the ar- action legislature, resulting Assn., See Motor Vehicle 463 U.S. at 43. bitrary. Mfrs. the notes that detailed of Although majority correctly findings fact and conclusions of law not are to be made the required by circumstances, under these it is the bet governing body clearly ter for the its action. Where practice governing body explain made, no such have been at least to the extent of findings the basis for the action of I we believe explaining approval, should the action of the to a subject governing body higher of It has been the law in Kansas that degree scrutiny. long action some of its basis in quasi-judicial requires explanation order for the court to determine whether the deci reviewing sion reached See, has met the standards. e.g., applicable legal Trustees, v. Board Policemen's& Firemen's Reti rem Neeley ent 780, 5, (1970). Kan. 473 P.2d 72 This System, ¶Syl. in the federal cases within general precept clearly recognized See, Bow, Friends context. the 124 F.3d at 1215. e.g., It is that the for is to generally recognized necessity findings review, facilitate avoid of adminis judicial judicial usurpation functions, trative or assure more careful considera legislative tion to action, careless and assist the against protect arbitrary or cases for parties planning preparing rehearing judicial review, and such or bodies within keep agencies governing their as In re Tax the jurisdiction prescribed by legislature. Co., Bernie’s 476, 478, 13 Kan. 2d Appeal Excavating App. rev. denied 245 Kan. 784 (1989). Here, P.2d a com review of the record leaves one with more than plete questions What did the think of the alternative answers. Council pro the Planning by City’s Engineering posed approved for in the an Was the Church’s concern safety Departments? gled parking Traffic, the or Public shared Planning, City’s combinations of the were some Why Departments? Safety not considered? Was will alternative City myriad proposals or cost one or more alternative to bear some all ing other have Was there funding might public Eroposals? costs? Were there con to share een available specific all of the alter that the Council felt rendered some or cerns nor Were there other natives neither feasible steps prudent? taken minimize harm to the that could have been subject did the not enforce some concern Why property? lot approving aspects property enforce, at conditions of other least approval, through possible harm? consideration of the detailed to minimize Would steps from the SHPO have letter of reconsideration explanation of such we are left made difference? In absence findings, basis decision. to mere Council’s speculation land- Our courts have record such required appellate show con use and control “affirmatively planning proceedings 16 Kan. 2d sideration of the relevant factors.”AllenRealty, App. no affirmative in this record. 103. There is such showing In I that the entire was conclude summary, process materially flawed, what the decision that we do know Council’s simply were ad- that the considerations never based statutory upon, there was no hard addressed by body, equately governing *37 alternative look the relevant factors including proposals, no “all there discussion of was exhausting possible plan- absolutely harm,” the most relevant factor— minimize ning perhaps considered, never that the the oasis the SHPO’s opinion—was influenced decision of body governing heavily inappro- concerns, and that the ultimate determination of the legal priate the evidence of feasible and Council was not based on harm, alternatives or the minimization of but rather apparent have no role whether to extraneous factors should played in Kansas: override one of the priorities government highest K.S.A. 2008 75-2715. under preservation Supp. aside the I affirm the district court’s decision would setting and unreasonable. action as Council’s arbitraiy, capricious,