*1 55,901 No.
In Re: The Petition of Shawnee County, Kansas, Commissioners for Annexation to K.S.A. 12-521. Lands, Certain Pursuant 56,249 No. Municipal A Springs, Kansas, of Bonner Corporation, Municipal A
Appellant, Shawnee, Kansas, v. The Corporation, Appellee.
(687 603) P.2d *2 Opinion August filed 13, 1984. Crumpecker, Jr., Swanson, W.C. Midgley, Gangwere, Kitchin, of Clarke & Slater, Olathe, City, Missouri, argued the cause and Allen R. with appellants Company him on the brief for Builders Sand and Peter E. Powell. Thomas, Weeks, Chartered, Lysaught, City, Charles O. & Thomas of Kansas Peggy Grant-Cohb, firm, argued cause, the same was with him on the appellants R. H. brief for Coleman and Golden Coleman. James Osborn, P.A., cause, Corson, City, argued Jr., & of Kansas of Corson D. H. Park, Williams, Tucker, Gage Overland was with him & E. and Gerald Springs. appellant Bonner the briefs Park, Wiglesworth, Rainey Wiglesworth, argued & of Overland T. James Slowinski, firm, cause, Rainey, C. of the same Marvin E. and Kenneth were appellee City of Shawnee. with him on the briefs for counselor, cause, Harness, county argued Lyndus Philip assistant A. S. counselor, appellee Henry, county was with him on the brief for Board of County. Commissioners Johnson opinion of the court was delivered Judge Assigned: District These cases arise from the Cook, parcel attempts of the of Shawnee to annex of land 55,901 County. is a Case number direct original proceedings; appellants et al. are Company, aggrieved Sand in the Builders purpose subject area who were allowed to intervene *3 56,249 appeal. Case number is a collateral attack on Shawnee’s annexation, City attempted brought Springs of Bonner as a declaratory judgment action. city class, City Shawnee is a of the first in
The of located County, edge metropolitan on the western of the Johnson City encompasses 16,753 presently area. Shawnee acres land of 29,000 approximately people. population of On December with 1980, 4, petitioned County of Shawnee the Johnson County permitting of Commissioners order annexa- Board approximately square 4.7 miles land tion of northwest of the city, pursuant K.S.A. all 12-521. Notice to affected landowners days was sent six later. public hearing before the Board of
The Commissoners Board) (hereafter evening was held Shawnee on the February 3, testimony 1981. The Board heard from the Shawnee city attorney annexation, in support proposed assistant of the provided by services pointing out the to be corresponding benefits which would flow to the affected land- However, target a number of landowners from the area owners. They opposition proposed high- to the annexation. testified already adequacy public provided services lighted County, Township, gov- area Monticello other Johnson units; they shortcomings ernmental also focused on the services, city’s proposed questionable financial resources, ability its and the to meet the increased demands on imposed through doubling burden to on landowners tax. ad valorem regular met in session to peti- consider Shawnee’s April Upon reviewing fully
tion on 1981. the record and proposal, unanimously discussing the Board denied Shaw- request. The meeting pertinent nee’s minutes read in part:
“RESOLUTION No. 033-81 “WHEREAS, opinion granting the Board is that the of the of the Petitioner’s request impairment time at this would result obvious of the real estate sought in that the involved to be annexed would not share within a municipal time the reasonable services and benefits now accorded to the land- portions municipality footing owners in other of substantial equality, and “WHEREAS, opinion the Board is of the that at this time the evidence has not necessity expediency granting shown the for and of annexation and the Petitioner’s, request injury would cause manifest to the landowners involved.
ORDER having testimony advisability annexing as to the “The Board heard property public hearing having . . above described at a . and examined property files is satisfied that such annexation of Shawnee will land, hereby injury to the owners of such orders that cause manifest is denied.” Petition of Shawnee appealed the Board’s denial the district court of County, 12-521, pursuant April to K.S.A. on 1981. lay September year dormant until when a intervene was filed motion to number of landowners this parties The trial court their allowed intervention September *4 23,1982, April else was the case Nothing done with until when granted parte the trial Shawnee’s ex to court motion remove the appeal a list scheduled from of cases for dismissal for lack of 25, 1982, prosecution. Pretrial was held conference and the June order, pretrial July pretrial was 13. In order entered the counsel respective parties stipulated scope judicial as to the the which the review and evidence on court’s decision would be judge trial the based. The determined case should held in Appeal abeyance pending City in In our decision re Lenexa, (1983), because similar in that was in each. Our decision case present of law issues January handed down following decision, further was our no action three months
For this the appeal. During time of Bonner on Shawnee’s taken Wyandotte County, several neighboring contacted Springs, voluntary target regarding in the area annexation landowners develop city. attempt In an to an industrial land into their sought acquire approximately 300 acres park, Springs Bonner previously square miles which had been denied the 4.7 County Springs prom- by the Board. Bonner Shawnee Johnson money provide grant extend the area essential into ised water, sewers, roads; including advised services already government had authorized federal lines, $325,000.00 and that Bonner build water and sewer $100,000.00 for roads. On Springs applying additional 11, 1983, petitioned for and April these landowners consented Springs pursuant their to K.S.A. land Bonner annexation day Springs published and passed, same Bonner 12-520(g). That required lands. to annex these filed ordinances annexation, learning Springs’ Upon of Bonner County County Board of Commis- Shawnee Johnson attempted revive Shawnee’s annexa- quickly moved to sioners day, presented second following April Shawnee tion. authorizing an order requesting the Board petition to portion previously sought, including now the entire area this second Springs. Shawnee submitted annexed Bonner notwithstanding pending its then petition to the 22, 1983, County April On Shawnee district court. the Johnson from a again the court to remove petitioned once list; granted the and set the case for motion dismissal court days allowed the land- Three later pretrial conference. case, from the in 1981 to withdraw who intervened owners County Board of leaving City of Shawnee and parties as the Commissioners attorney Shawnee day, April next with- the land owned district court to delete moved the sought Shaw- to be annexed intervenors area drawn requested, the deletion as petition. The trial court ordered nee’s attorneys and the for both approved which was Board. *5 very day, April 26,
That counsel of Shawnee and counsel for the Board stipulation entered into a stating that:
1.) will immediately provide public number of target
services to the area which will constitute material benefits; compensating 2.) the increase in ad valorem tax resulting from annexation
will less than benefits; these compensating 3.) the annexation will not cause injury manifest
landowners, and therefore granted should have by been Board; 4.) 1981, April, the Board’s denying order annexation is not
supported by presented substantial evidence at pub- hearings lic and therefore is unreasonable. stipulation This was submitted to the district along with an journal agreed entry, day they on the same were entered into. Judge Bradley’s Entry General 26, Benchnote April reads: entry stipulation agreed journal [defendant “Per Resolution Board’s] No. (not denying 033-81 of 4/13/81 annexation of certain described lands herein order) by by supported deleted found not substantial [and]
before evidence unreasonable, arbitrary capricious.” [and] therefore journal entry date, agreed parties of the same signed judge, repeated stipulation the substance of the along permitting with the court’s order Shawnee to annex the land. None of the affected landowners were notified of these steps, represented April were none before court 26. on journal entry May 2, was filed on 1983. Thirty later, days of Shawnee an- June subject day nexed the land Ordinance No. That same City-Star in the published newspaper article was con- cerning dispute. Springs/Shawnee the Bonner The article re- happened, veals what to be precise more what failed to thirty days Bradley’s happen, during following Judge order. part In the article states: County hope “Officials Shawnee and recent decision will Johnson
squelch County Springs a claim Bonner to 300 acres land. Johnson order, April County Judge “A court issued District H. Johnson James Bradley, upheld attempt years ago Shawnee made two to annex about four miles, square including Springs the land Bonner wants .... “According Bacon, Judge Bradley’s Commissioner Bob *6 hurriedly changed position prevent county its to was issued after decision Springs. going from to Bonner 300 acres Bradley’s Judge informed of decision was not “Mr. Bacon said the commission kept quiet nearly until issued. He said the decision a after it was month 30-day appeal period ran out. trying city attorney, Rainey, were to hide said officials Shawnee “Marvin publicize any steps it.’ He said some of the didn’t take the decision hut ‘we petitioned intervene in the case and if have could affected Judge Bradley’s they appealed decision.” then could have successful 9, 1983, City later, of Shawnee sent week on One June After review- the area annexed. letter to the landowners of form ordinance, surrounding passage of Shawnee’s ing the facts states: letter March, 1981, County “Following hearing in the Board of Commissioners City appealed city’s request The of Shawnee that for annexation.
denied the County, Kansas, has Court now to the District Court of decision Johnson city. permitting the annexation entered order City petitioned County April 8, again Commissioners on “The 1983, substantially hearing petition A to annex the same area. on that has been County the Board of 14th. Since it now scheduled Commissioners June petition necessary, appears hearing will not that the on second Board has, County request city, hearing Commissioners at the cancelled the which was set for 14th. June necessary steps begin delivery of Shawnee has taken the “The fire, maintenance, police, city your This includes street services area. provide services. The Monticello Fire District will continue to service other you conjunction Department.” with the Shawnee Fire ultimately began steps leading to these Thereafter two 55,901, appeal appeals. In case number Shawnee’s direct from annexation, denial a motion to intervene was filed the Board’s 1983, by appellants Company, Builders Sand Peter June Coleman, Powell, consenting some of the Golden James previously the 300 acres annexed Bonner landowners of They premised their to intervene on the asser- Springs. motion adequately represented by the their interests were not tion landowners, which, without or notice to the arbitrarily stipulation misrepresenting the effect entered into interests, and proposed annexation on landowners’ first received notice of the district court’s that the landowners 2. City Star article on through the Kansas order June May 2, relief from the court’s landowners also filed motion for 60-260, pursuant K.S.A. and a motion for leave to order pursuant to K.S.A. 60-2103. Other appeal file an from order present appeal landowners not in this filed similar A motions. hearing appellants’ on held Judge Bradley motions was before 1983. At the close that hearing, he denied relief June 60-260, from his earlier K.S.A. under but allowed appellants to intervene for the purpose perfecting appeal this May journal entry permitting order. The intervention July 12, was filed landowners’ notice Appeals days was filed in the Court of two later. 56,249,
In case number Springs Bonner filed its declaratory judgment against action of Shawnee and the Board on one week after Shaw- June attempted subject nee’s annexation of the land. The set surrounding Springs’ forth the facts Bonner earlier annexation of *7 by consent, the land the landowners’ as well Shawnee’s subsequent attempt land, to annex prayed the same a validity determination of the of Shawnee’s ordinances. Counsel Springs for Bonner later consented to of the dismissal Johnson County County Board of grounds Commissioners on it was not necessary party Upon the lawsuit. to motion of the of Shawnee, 17, 1983, on October the court dismissed Bonner Springs’ upon suit for failure to state a claim which relief can be granted, concluding Springs standing Bonner lacked to challenge proposed Shawnee’s annexation. Springs’ Bonner no- appeal 28, tice with Appeals was filed the of on Court October 1983. 55,901 appealing
The landowners in No. moved to transfer their Appeals case from the Court of Supreme Court on July 14, 1983. granted, transferred, This was motion and the case July by 20. A on similar motion Springs of Bonner was granted November 1983. Springs’ Bonner motion for con- appeal solidation of the on granted two cases this court on December appeal
In this a host of issues are raised inasmuch as the parties entirely agree questions presented. do not A 55,901 distillation in following the briefs No. reveals issues must appeal: be addressed to resolve whether this jurisdiction Court has over appeal 60-2103(a); under K.S.A. joint whether Board had enter stipula- into the Shawnee; tion with whether the district court erred consid- ering stipidation entered between Shawnee and the Johnson Board; County whether in deleting portions court erred original prop- petition; whether Board from Shawnee’s land 1981; proper in erly April, Shawnee’s denied 56,249, In remedy, any, afforded on No. Bonner if to be Shawnee, declaratory judgment against pri- action Springs’ petition sufficiently Springs’ mary questions are whether Bonner granted, can and whether upon claim which relief states a collaterally validity attack the Springs standing has Bonner annexation ordinance. County appellee, The first issue raised Commissioners, is which must be addressed whether 55,901. jurisdiction appeal has No. More this court appeal notice specifically, the Board contends landowners’ timely 60-2103(a), appeal K.S.A. and the was hot filed under This in a therefore be dismissed. issue was earlier raised should appeal filed joint to dismiss the motion by this which was denied court on
Board on December
argument.
leave
renew
time of
19 with
at
oral
December
strictly statutory
appeal
an
in this state is
in nature.
right
District,
465, Syl.
v.
¶
Brinson
School
Kan.
P.2d 602
60-2103(a)
part:
provides
K.S.A.
appellate
appeal
permitted by
court to an
“When an
law from a district
(30)
appeal may
thirty
days
shall be
from the
the time within which
be taken
60-258,
showing
provided by
except
entry
judgment, as
K.S.A.
of the
entry
neglect
party
learn
based on a failure of a
of excusable
may
exceeding
action
the time for
the district court
extend
prescribed.
thirty (30) days
expiration
original
time
from the
herein
timely
running
pursuant
made
the time for
terminated
motion
*8
enumerated,
appeal
any
full
in this
hereinafter
time for
fixed
of the rules
entry
computed
any
to run
is to be
from the
subsection commences
timely
Granting
following
under such rules:
or
orders made
motion
60-250;
(fo)
granting
denying
judgment
for
of K.S.A.
or
a motion
under subsection
(b)
denying
make
a motion under subsection
of K.S.A. 60-252
amend or
or
fact,
findings
judgment
not an alteration of the
would be
additional
whether or
granted;
denying
required
granting
K.S.A.
if the motion
or
or
motion under
judgment;
denying
a motion for new trial under
60-259 to alter or amend
K.S.A. 60-259.”
permitting
annex
land in
court’s
Shawnee to
The trial
order
May
thirty-day
appeal period
question was entered
1983. The
2, 1983,
day
passed its
expired
annexation
June
al.,
Company, et
made
Appellants, Builders Sand
ordinance.
60-2103(a)
terminating
identified
as
none of the motions
However,
time
the district
found
[appellants]
knowledge
“[BJecause the
were not notified and had no
that their
Board,
litigation
being protected
they
were not
interests in
should
April 26,1983,
appeal
judgment
an
from this
set
allowed leave
file
Court’s
as
May 2,1983,
grounds
Entry
neglect,
forth in the
on
of excusable
Journal
provided
K.S.A. 60-2103.”
appellee
Board contends
the district court was without
statutory
finding
to make such
because the landown-
May
parties
judgment
ers were not
to the case when the
was
thereof;
and were
entitled
notice
entered
not
therefore their
days
appeal
thirty
to file an
within
failure
afterwards was not due
anyone’s “neglect.”
permitting
appellant
Did the district court err in
landown-
purpose
filing
appeal
ers to intervene
an
from its
May 2,
right
judgment of
1983?
to intervene under K.S.A.
60-224(c) depends
(1) timely
the concurrence of three factors:
application;
(2) a
subject matter;
substantial
in the
interest
(3)
adequate representation
lack of
of the intervénor’s
interest.
v. Stanley,
Rawlins
564, 567,
207 Kan.
(1971).
For over two acted in Board faith to It defended its denial of the appeal. against defend represented adequately the interests attempted annexation it until learned and other affected landowners appellants During land. portion of the same Springs’ annexation of Bonner every their appellants had reason to believe years those two and, thus, protected the Board rights being adequately were entirely void of attempt The record intervention. no reason to relied on the suggest appellants should not have evidence to adversary relationship between and the apparent knowledge contrary. receiving prior to actual 60-224(a) provisions K.S.A. held the previously We have Campbell in favor intervention. liberally be construed should Wade, 537, 540, Legion v. 210 Kan. 502 P.2d American necessary to (1972). especially true where intervention is This is protect right some which cannot protected, otherwise be includ- ing right Hukle v. City, Kansas 212 Kan. 627, 4,¶ Syl. (1973). P.2d 457 requirements
One of the of intervention it timely. requirement “timely application” as used in K.S.A. 60- 224(a), however, application has no until such adequate time as Hukle, representation 627, ceases. 212 Kan. Syl. ¶ 3. There can dispute be little appellants’ timely as to They action. first learned changed position Board’s Judge Bradley’s decision on 2, 1983, after publication date of the June Star newspaper article. Their motion to intervene and for relief judgment from the under K.S.A. 60-260 was days filed twelve later, 1983. We conclude the three factors June necessary for 60-224(a) intervention under present K.S.A. were appellants’ when timely motion was filed on and that June the trial court did not granting err in intervention. Appellants’ motion for relief from the final judgment was along heard with the motion to intervene on 1983. The June trial jurisdiction court not had grant the motion to inter- vene, grant but also relief from the final any of the 60-260(b). reasons set forth in K.S.A. filing aof motion K.S.A. under 60-260 ci'eated in the jurisdic- district court tion to rights parties determine the in regard to the matters motion. Daniels v. set forth Chaffee,
P.2d 1090 discretionary powers These broad were dis- cussed Daniels Wichita both and in Teachers Credit
12
In Rider the
(1969).
Rider,
552,
Union held: court 60-260(fo)(6) 60-260(c) a trial retains provisions K.S.A. the of “Under judgment party discretionary power from final for reason to relieve broad power judgment operation if is exercised the such
justifying
the
of
relief from
supreme
judgment
appeal
docketing
in the
prior
from
for
to the time
at 556.
court." 203 Kan.
jurisdiction is based on the
challenge
appellate
of
The Board’s
appeal
should
intervenors’ notice
supposition that
erroneous
entry
2
thirty days
May
judg-
of the
within
have been filed
however, clearly
record,
indicates intervenors’
ment. The
judgment and from
May 2
was taken both
from the trial court’s
60-260(b)
relief from the final
motion for
20
of their
denial
June
July 14,1983, which
was filed on
The notice
judgment.
twenty-four days
judgment.
denial
relief
after the
statutory thirty days
provided
This was well within
thirty days
passed
60-2103(a).
fact that more than
had
since
entry
grounds
original
judgment
to defeat
Johnson,
v.
190,
(1976).
219 Kan.
Subject
powers, governmental
rule
to constitutional
home
municipal
corporations,
including
corporations, are
agencies and
only
authority
legislature
of the
and have
such
creatures
v.
Light
&
Kansas Power
Co.
Great
body.
granted
Bend,
126,
1,
(1951).
¶
Syl.
544
172 Kan.
P.2d
municipality
territory
or to
12-520(g)
to annex
under K.S.A.
of a
county
petition under
board of
commissioners
annexation
requires
compliance
provisions
with the
substantial
12-521
Co.,
Jayhawk
v.
408,
the statute. Sabatini
Construction
214 Kan.
(1974).
411-12,
this
we
recognizing
principle,
P.2d 1230
In
comply
requirements
with
the failure of a
have held
power
authority legislative
gave
enactment which
it the
territory
attempted
annex
nullifies
ordinance.
State,
rel.,
ex
v.
Topeka,
387,
173 Kan.
proper petition, given whether petition annexation is advisable it whether will cause injury manifest persons to the owning territory real estate in the In Appeal sought re to be added. of Lenexa, (1983). 232 Kan. A board of of county jurisdiction act upon petition commissioners has no to except compliance for annexation in substantial with the lan- guage purpose 12-521, of the statute. K.S.A. after detailing requirements petition, the for contents the public of date of the landowners, hearing and notice to the provides: affected day county hearing, “On the set for the board of commissioners shall hear testimony annexation, advisability representative as to the of such and a of the city’s annexation, city present proposal including plan city shall the for the of the proposed for the extension of services to the area to be annexed. “If said shall be board satisfied that such or annexation the annexation of a owners, injury they lesser amount of such land will no cause manifest to such grant order; thereupon may shall so find and the annexation the annex county granting the All land ordinance. orders of the board of commissioners denying petitions length spread upon journal or for annexation shall be at the of proceedings spread granting of said board. The failure such of board to an order upon journal the shall not invalidate such order. “Any city aggrieved by county owner or the of the decision the board of may appeal commissioners the such from decision of board to district court the of county Any city the same the manner method set forth in K.S.A. 19-223. so appealing required prescribed shall not be to execute the bond therein.” provision The above statute makes no for reconsideration county the modification board commissioners once it has granting denying entered its order either the for spread upon journal annexation and has pro- the same ceedings legislature Can it then board. be said in- convey board, that authority especially tended to after an its perfected? decision has We think not. been prior We have found no to us decisions this state aid 14 to confer continu- legislature intended whether the
determining acting county commissioners under jurisdiction to board ing looked to 12-521. We have therefore of K.S.A. provisions 2d we find the follow- assistance. In Am. for other Jur. comment: ing authorizing rehearing expressly or reconsideration the absence a statute “In agency given acceptance principle administrative is such that an or mere decide, power necessary look to the
power to some courts as a incident of construction, power ascertain, by way controlling whether as a whole to statute upon prior reopen final has been conferred determination or reconsider by implication. agency [Some] . . . statutes have been con- administrative agencies power conferring particular administrative strued power view the nature reopen a final decision in and reconsider judicial review, provided in view of [a] statute and the fact exercised finality judicial power provision review and that the of revision was not functions, necessary agency’s performance under [and] duties or implied express thing one mention of exclusion an- rule 2d, § Law . . . .”2 Am. Administrative other Jur. applied “expressio unius We also have the maxim est exclusio meaning unambigu- of a statute is clear and alterius” when Rees, (1941). Kan. P.2d ous. v. 511 To Tresner statutory meaning depart expressed language from the clear statutes, legislate interpret. Young and not alter v. University, Pac. State Regents of *12 ambiguity. of 12-521 is free from language K.S.A. It prescribes petition may and what form an when be filed, provides public hearing, type fixes time and for landowners, prescribes of to affected and manner notice hearing testimony entering and a final order. The method right appeal aggrieved relief provided for is which, 19-223, party thirty under K.S.A. must filed “within making days right after the of such” decision the board. The implies longer open is no appeal a final order which for rehear- body: by the ing or reconsideration administrative modification, apart statutory provision expressly authorizing “Even subject change determinations are to reconsideration where administrative beyond they passed agency, have not of the administrative control where final, provisional, interlocutory, incomplete, are not but or the determinations effective, yet jurisdiction powers agency where the the administrative tribunal, proceeding pending continuing in nature. While a is before a are there made, power any rulings may it limit to tribunal review have is no such to any proposition jurisdiction permit reargument upon a When the or to involved. terminated, longer any power agency there of the administrative has is no determination, statutory provision change even a reconsider may longer pending continuing jurisdiction be held end when matter no 522, 2d, pp. § agency.” 2 Administrative Law 331-32. Am. before Jur. 12-521, K.S.A. a board carrying
In out its functions under (deter- legislative capacity acts in both a county commissioners quasi-judicial a advisability petition) capacity mining Appeal result). In will re injury manifest (determining whether 568, ¶ Lenexa, Syl. recognized 1. have Kan. We retaining discretionary power while a trial broad tliat prior appeal its must to the time an rulings, act from a reexamine court; appellate been in the other- judgment final has docketed jurisdiction change loses to reconsider or its wise the trial court Wichita ruling during pendency prior Rider, Teachers Credit Union v. 556; 203 Kan. at Martin v. Martin, App. 5 Kan. 2d 623 P.2d rev. denied 229 Kan. why We no see reason the same rule apply should not an administrative acting board when quasi-judicial ca- pacity. purpose appeal of an is the same whether it be from a judgment of a district court or an agency. administrative As was Corson, stated in In re Estate (1979): “ ‘Appeal’ Dictionary (4th 1968) is defined Black’s Law ed. rev. as the ‘complaint superior injustice court of an done or error committed one, judgment inferior whose or decision the court above is called to correct - scope proceedings or reverse.’ The of review afforded varies statute but any appeal higher taking jurisdiction inherent is a tribunal of a matter from a appeal through On vertically, lower tribunal. moves case the courts never horizontally; magistrate that is no lies from one district to another district magistrate judge judge. fromor one district to another district When a case is appealing party appealed, seeking to leave the court that has offended him seeking wrong righting higher in a different and court.” 226 Kan. at hold, therefore,
We that when an administrative board acts in a quasi-judicial capacity, case, as in the instant and enters a final judgment, jurisdiction order or change to reconsider or such order or ceases from and after the time valid *13 perfected; has been jurisdiction the of the board remains sus- pended during pendency appeal. the A the final order or finally is one which disposes decides and of the merits proceeding, of the question, direction, reserves no further or for the future or further action of the administrative board. Commission, Highway 373-74, v. Kan.
Connell State P.2d jurisdiction the Having determined Board lost to recon- April its change denying final order of sider petition city’s the appeal Shawnee’s annexation after was County, during with the district court the filed pendency appeal, attempt it that the later of the follows Board’s joint stipulation grant the means of filed with the to jurisdiction. is void for lack of district court Board’s action apparent attempt indirectly an to what it was do was without directly. authority to do We find that neither the its Board nor attorney authority stipulation had enter to into which stated the annexation, proposed previously Board, denied the would not injury and should have been manifest to landowners cause denying sup- was not granted the annexation because order herein, previously the evidence. As stated ported by substantial protect rights its the duty prior defend order and was to Board’s during pendency the If it had learned of affected landowners. indefensible, the prior order was notify the landowners its desire obligated to affected not would have the so that landowners against defend defend, timely they if so intervene chose. opportunity only rights turned its on the the Board not back Here actively against with the their conspired but Board, it Regardless we hold motive of interests. directly indirectly grant or to either lacked pending petition while case was is whether the trial The next issue for determination joint considering acting stipulation erred in Board. Shawnee and the admission, agreement, ‘stipulation’ in a or concession made “A ... an attorneys, respecting
judicial proceeding
parties
their
some matter
delay,
purpose
generally
be the avoidance of
Its
stated to
incident
thereto.
expense.”
trouble and
subject
may
general principle,
as a broad
the limitations
“It
be stated
noted,
pending
relating merely
conduct of a
that matter
hereinafter
therein,
designation
proceeding
issues involved
which affects
or to the
rights
parties
not
thereto and does
involve
convenience
court, may
subject
of a
with
duties and functions of the
interference
elsewhere,
But,
parties may
by stipula-
fully developed
stipulation.
not
more
jurisdiction
subject
of a
which it
over the
matter
cause
invest a court with
tion
clearly,
parties
may
have
And
action
not otherwise
had.
would
contrary
stipulate
thereof
the trial court in a manner
for the determination
*14
affecting
public
that matters
of court. It is also established
the statutes or rules
subject
stipulations
as to control the
be made the
of
so
court’s
interest cannot
respect
of such matters.”
action
“While,
by stipulations
litigants,
ordinarily, courts
of
are bound
rule
a
invoked
bind
circumscribe
its determination
cannot be
of
questions
questions
generally
that the
of law. It has
been stated
resolution of
of
court,
by stipulations
parties,
upon the
uninfluenced
law rests
jurisdictions
accordingly, virtually
recognize
stipulations
as
all
to the law are
applies
legal
arising
conclusions
and ineffective.
same rule
invalid
right
party
Notwithstanding
judgment
stipulated
.
.
.
facts.
of a
to confer
kinds,
generally
stipulation
it is
held that a
as to demands
certain
mere
of law
validity
.
as
of a cause
action or defense is invalid.
.
.
to the
against stipulations
propriety
enforcing the
“The
rule
to matters of law is
stipulation
especially
the case in which
clear where
made concerns the
2d,
1, 4,
public.”
Stipulations §§
73 Am.
Jur.
stipulation
attorneys
entered between
Shawnee and counsel
stating
concludes
that the
proposed
(1)
will not
injury
cause manifest
to the
landowners,
(2)
should
granted
Board,
(3)
have been
original
denial “is
supported
the substantial evidence
presented
public
hearings
at
and therefore is unreasonable.”
point,
The last
whether
the Board’s order is
as sup-
reasonable
ported by
competent
evidence,
substantial
quintessentially
matter of law to be determined
the district court under our
Appeal
decision in In
Lenexa,
re
regard for arbitrary, fanciful unreasonable in an cannot act the court Construction, Inc., 216 Kan. Tyler v. Cowen manner. Thompson- Companies v. Insurance Reliance (1975); P.2d Co., (1974). Here Hayward Chemical *15 authority by using its incorrect clearly outside of acted the court validity order. determining of an administrative the in standards Board, compels a of the the misconduct That, with combined on their motion. finding appellants for trial from the relief to be afforded question is the The next to the lower court the be remanded Should case court’s error. review can apply the correct standards of with instructions we same review and determine the merits of this action make the remand? without governing law
The standards of review
administrative
cases
Healing
Kansas State Board
in
as this were established
such
Foote,
(1968):
Arts v.
200 Kan.
19
(West
683, pp. 42-43,
Digest,
Administrative Law
in Kansas
#
Supp.)
Foote
requires us to consider
the merits of a case in
order to
properly
whether
the district court
observed the lim
determine
placed upon
appropriate
it. In
itations
circumstances we have
judgment
reverse a district
not hesitated to
court’s
and reinstate
agency
remanding
determination without
the case
further
Dept.
by the lower
This
consideration
court.
occurred
Banks, & Environment v.
Health
Kan.
Summarizing this virtue of is these not is required independent but to make an entitled review of presented agency and trial the evidence before court applied proper if the district court determine observed present apply The district court’s failure in the case to standards. any (choosing instead rule on the standards basis of is, materially stipulation) purposes, for these than different of Foote application improper the other district courts cited. A here serve no purpose cases remand would useful capable addressing are the merits presently, because we yet required inquiry make such again upon would be appeal arising second after remand. A remand district position place thus us in no better to determine court would future, we hard this case in the would now be merits of unnecessary delay, expense justify litigants and pressed to pointless step. such a judicial resulting resources drain of scope judicial agree that the review in a K.S.A. parties All City Lenexa, Appeal In re governed is 12-521 P.2d 47 In that case we said: Kan. upon court is called the action the board “[W]hen a district review reviewing determining judicial injury, issue of manifest court is limited whether, (1) law, fraudulently, considering as a matter of the board acted (2) 'capriciously, supported by arbitrarily, the board’s order is substantial (3) evidence, scope authority. action was within the board’s reviewing judgment, In must [Citations omitted.] district court’s this court requirements re- first whether the district observed determine it, placed and then make the same review the action as strictions Board’s omitted.] [Citation does court. the district advisability judicial of the of the “The review of the Board’s determination however, annexation, duty legislative function. of the the review appeal, this and of court on limited to determination of whether district statutory authority which [Citations to enter the order it made. Board has Lenexa, Appeal Kan. at In re 575-76. omitted.]” *17 our in Shaw- landowners’ nor Neither Court, was original appeal District nee’s authority statutory of the Board to challenge made to the deny advisability proposed of Shawnee’s annexation. quasi- rather, whether erred in its question, is the Board broad sought in the judicial that the area determination landowners manifestly injured by the be would annexation. Here annexed be again scope claim is the Board acted outside the no made fraud, Similarly, allegation is ruling. in so there no (1) only must determine and we therefore whether the Board (2) arbitrarily capriciously, and acted whether the Board’s supported substantial evidence. denial scope determining A of review in court’s whether certain arbitrary capricious amounts to conduct is action limited. The arbitrary capricious particular test relates to whether a action justified, have been taken or is such as the should reasonable entity’s reaching ness of an exercise of discretion in a determi question nation or whether the action in is without foundation Motel, Corp. Dept. fact. Pork v. Kansas Health Sc Environ ment, (1983). P.2d 1126 Kan. We have also arbitrary capricious stated conduct shown where an upon order of a tribunal is based findings substantially supported by evidence in the record. In re App. Need Certif. of by Community Psychiatric Centers, 806, 234 Kan. at citing Neeley Trustees, v. Board Policemen’s Sc Firemen’s Retire System, ment Syl. ¶ 212 Kan. (1973). Under definitions, these whether arbitrarily the Board acted capri ciously in denying depends entirely on injury whether its conclusion of manifest is based on substantial evidence.
“Substantial evidence” is defined as pos evidence which substance, sesses both relevance and which furnishes substantial basis fact from which the reasonably issues can District, resolved. Brinson v. School 465,473, 223 Kan. 576 P.2d way, Stated another substantial evidence is such legal and relevant evidence person as a reasonable might accept being sufficient Dept. support conclusion. & Banks, Health Environment v. Syl. ¶ 3. It is not appellate the function of an reweigh evidence; court to we are concerned with the evidence which supports the find below, ings might not the evidence which supported have Appeal Lenexa, In re contrary conclusions. 232 Kan. at statutes, 584. In the context of injury” our annexation “manifest imposition means of material or substantial burdens accompanying without material or substantial com Appeal Lenexa, In re pensating benefits. 232 Kan. at If there substantial supporting evidence the record injury, Board’s determination of manifest that decision must be affirmed and Shawnee’s annexation stricken down. *18 original petition included a schedule of services provided newly
which were to be annexed area. Shawnee already providing protection was some fire and sanitation ser- protection area. was vices to the Police to be extended immedi- However, ately service, lines, after annexation. water sewer street construction street maintenance services were to be provided required “when and desired landowners” lights “as Street would not needed.” be installed until six months after received sufficient resi- proposed financing dents. The for these services is also reveal- ing. property The increased ad tax valorem to be assessed the newly partially fully support annexed landowners was to protection, and fire as well as street police construction charges districts planned maintenance. User and benefit were services, lines, water and sewer support sanitation some street lights, installed, and maintenance. Street when construction Light Kansas were to be financed Power and franchise tax. appear it From this schedule does not what new services would provided the area other than those for which the be paying. themselves would be had it the evidence adduced at
The Board also before February 3, 1981, public hearing. attempting identify Without testimony speakers, the substance of their was as various follows: testimony conflicting target was
There over whether year year plain, area was in a 100 or 500 flood the critical being suitability difference area for the industrial person pointed development sought. One out that Missouri, City, along with the federal recently spent trying to government, $117 million convert a (which area) was farmland such as this plain flood once into heavy industrial district. area, presently provided by protection
Police Office, County provided by Sheriffs was to be protection Shawnee after annexation. But this was to provided personnel equipment the same number of Shawnee, currently serving without increase in resources. officers, department forty police The Shawnee has whereas Testimony Sheriffs office has 114. the Johnson superior service concerning received rendered office, inadequacy police sheriffs as well as the services *19 present city within the even limits of Shawnee. proposed responsibility also to assume for fire
protection presently provided by Monticello Township. this predicted While to lower the area’s fire insurance rating again from 9 to provided services were to be City, only without increased cost to the using current presently paid resources. Shawnee has six firefighters and lacks equipment. they certain In one instance were un- able to contain a small fire at a company; plan local their operation for another section of the is simply to evacuate nearby the residents in the event of a fire at plant. presently by
Sewer services to the area are septic afforded tanks; by private sanitation is hauler. Both were to remain the annexation, same after argued and some there was corre- spondingly no benefit to the area to accrue from annexation. county presently
While the plan, has a waste Shawnee has none.
Street currently construction and maintenance services are provided to the area Highway De- partment. proposed After annexation Shawnee that streets by developers, possible would be built with the creation of district; provided by benefit maintenance would be Shawnee. again testimony
Once there was highlighting superiority services, county pointed and it was plan out Shawnee’s provision lights made no street for for the area. regulation presently provided by
Land use the Johnson Board, County Zoning comprehensive which has no plan for provided the area. After annexation these services were to be staff, planning zoning the Shawnee although that staff only half personnel employed has the number of county board. The landowners to be annexed would have no way knowing zoning what applied classification would be to their land as Shawnee’s current ordinance contains no newly provisions zoning Further, annexed land. because sought in the area those be annexed now work with the staff, county unregulated development there is occuring no city. which is detrimental area, presently provided
Water service to the Rural #3, Water District was to remain the same after annexation complaints no benefit. Shawnee had led to and therefore the area because of lack provide water to refused to previously development. currently they existed in the facilities Recreational in the area. available to landowners Shawnee would $1,000 taxes, per valuation property $7.69 now valorem Ad $1,000 per area, $15.51 than double to were to more annexation, this would be offset but the contended after This rating flowing from annexation. fire the better rating fire little that the lower the observation prompted owning buildings, few who in the area to farmers benefit pay higher property taxes. will be forced nevertheless services, Regarding extending the cost of repre- $20,000 they year sented have a deficit would the first after Others, however, placed $30,000, figure annexation. at *20 projected any grow deficit to time. Still ques- over others ability tioned Shawnee’s financial to meet the increased bur- den, recently pointing barely out that had been able pay meet a minimal employees. city to 5% raise for its A planner/consultant working figures with from Shawnee’s own budget testified that budget require that would roughly city, twice revenue sources available to the a need which could result in public increased taxes or decreased services.
Overall, Shawnee claimed the landowners would a receive material benefit from the services provided immediately to be landowners, however, after Opposing annexation. asserted that City’s plan provided services; way little in the of new but for marginal expenditures Shawnee was making no substantial question. commitments to the area in Still others contended injury sufficient manifest simply would flow from the loss of Many valuable farmland. claimed prove Shawnee had failed to area, its need feasibility annexation, of the or its ability financial assume such a burden. One concluded that in light present area, situation in the entire and the limited growth projected occur, attempt simply Shawnee’s was pre- mature. Board, annexation, in its denying order found manifest
injury to the landowners would result impairment from “obvious to the real estate in involved that the sought to be annexed would not share within a reasonable municipal time the in to the landowners other now accorded and benefits services equal- municipality upon footing of substantial portions of ity . . . foregoing, it is clear the evidence before
Upon review of conflicting. The evidence was such sharply Board was certainly question have differed on minds could reasonable duty, It is not our injury the affected landowners. manifest however, our reweigh the evidence or to substitute tribunal. We find the Board’s of the administrative for that evidence supported substantial original denial arbitrary capricious. The denial of nor Board’s therefore neither 2,May is affirmed petition Shawnee’s for annexation and the district is reversed. judgment of the mention, passing, in We should one additional issue raised acting upon request, The trial Shawnee’s this certain land the 1981 deleted owned intervenors city’s after those intervenors withdrew from and, grant the case. Did the court have such deletion not, affect standard if does action our of review herein? power place have held that court does not have the “[a]
We boundary position than that line other described ordinance, fixing city boundary in its [annexation] Riley County act.” Comm’rs v. legislative lines is Syl. ¶ City, 233 Kan. As Junction decision, longstand- can be seen from a review of that there is a judicial ing policy against participation annexation to altering boundary lines the area degree sought to be just It is as clear that such an alteration was effected annexed. present through granting in the case
the district court *21 original petition. delete certain lands motion to county 12-521 it is the Under K.S.A. board commissioners authority grant territory which has the annexation of that thereof, city’s petition, in the or a lesser amount not described city city petitioned a district In the instant case the the nor court. court, Board, the to annex a lesser area the trial not court, original petition; in and it was the than that described the Board, may granted which the deletion. It well be the not the the action of the and the trial Board condoned both However, given history proceedings especially below. totally taken the record is void of official action regard. in this
We the district granting city’s conclude court erred in original motion to delete land from the annexation As has stated, previously scope been district court’s of review was legally limited to consideration of the same evidence tribunal, before administrative expansion without either or deletion.
The error committed deleting the trial court in land from original petition annexation does not alter our decision as previously announced. Our review the Board’s denial of petition Shawnee’s annexation was limited pre- to the evidence sented to the Board in original petition, without the at- tempted deletion.
We are declaratory now left with the judgment action, case 56,249, number filed Springs collaterally Bonner attacking the district judgment, 55,901, court’s in case number granting the City of petition. Shawnee’s annexation
We find that issues raised Springs Bonner in its de- claratory judgment have, action are now moot inasmuch as we companion case, affirmed the denial of Shawnee’s annexa- petition by County tion the Board of Commissioners and have reversed the judgment district court’s granting petition. judgment granting district court of Shaw- petition nee’s 55,901, annexation reversed in case number the denial of said County the Board of Commissioners declaratory affirmed. The action, judgment 56,249, in case number is found to be moot. J., not participating. Holmes, J., concurring part dissenting part: agree I
Lockett, majority with jurisdiction that the Board had no to reconsider change judgment its order or after a valid had been perfected to the district court. majority general cites the governing law from an
order of an administrative tribunal. The may district court substitute its tribunal, for that of an administrative is restricted considering, law, as a matter of whether fraudulently, arbitrarily tribunal acted capriciously; whether substantially administrative order is supported by evidence; and whether the tribunal’s action was scope within the of its authority.
We, reviewing district court’s judgment, determine whether a district court requirements observed the and restric- placed upon tions it. We then make the same review of the administrative tribunal’s action as does the district court. State Board Healing Arts v. Foote,
Here, the district court did not review the record to make an independent review presented of the evidence to the agency as required by statute' and case law. simply It relied on the im- proper stipulation of the Board and Shawnee. There was no review the district court
Prior to this we have remanded cases back to the lower court apply with instructions the correct standard of review. The majority states that even though now the district court has not record, reviewed the we have the record so let us act as the issue; district and determine a remand district unnecessary delay, expense court will cause litigants judicial and a drain of every resources. Such is true in case we have back the district remanded court after a trial hearing a record. blazing
We are majority’s new trail. Under the appellate new procedure, when we review as a district there no our review. The review provided by statute or case law is eliminated. We have muddied clear stream.
McFarland, joins foregoing concurring and dissent- J., opinion. ing