Moyer v. Board of County Commissioners

Schroeder, J.,

dissenting: For the several reasons hereafter assigned, I must respectfully dissent.

It should first be noted the factual situation here presented is not the ordinary case where a landowner objects to the rezoning of a tract of land. This matter grows out of the new 1-35 bypass highway which completely semicircles Emporia, Kansas, on the north. This bypass has only three interchanges for the city of Emporia. Interchange No. 1 is on the west of Emporia at Industrial Road. At this point there is considerable industrial development. Interchange No. 2 is with Highway No. 99 to the north of the city of Emporia. Interchange No. 3 is on the east of the city of Emporia at the intersection of Burlingame Road. It is the area -around interchange No. 3 that is the subject of this lawsuit.

On the 19th day o£ January, 1961, an area at the corner of interchange No. 1 was zoned light industrial. On the 18th day of November, 1964, the area at interchange No. 2 was zoned for a highway service area.

Prior to the location of the bypass highway in question the area around interchange comer No. 3 was zoned residential. It was entirely outside the city limits in a rural area. On the south side of the bypass highway at interchange No. 3, there is located a combination filling station and food store.

Mr. Kendig owns a large acreage at the northeast corner of interchange No. 3. This tract is bounded by Burlingame Road on the west and the bypass highway on the south. He has subsequently acquired other tracts at this interchange.

It is at Mr. Kendigs instigation that the present controversy arises. He is a member of the Emporia-Lyon County Metropolitan Area Planning and Zoning Commission. After many months of consideration, the planning commission recommended that tibe tract owned by the Moyers (appellees) be rezoned for highway service. This was in keeping with the proper development of the bypass. Access rights had been acquired by the condemning authority to all land located on the bypass between the interchanges. Thus, it is only at these interchanges that there can be any service area for the traveling public on the interstate highway and those entering and departing from the highway. When the planning commission recommended the east one-half of the Moyer tract be rezoned (contrary to the wishes of Mr. Kendig who participated in the discussion and voting of the planning commission, in spite of a provision concerning conflict of interest denying him such privilege in the area planning ordinance), Mr. Kendig wrote a three-page letter to the county commissioners endeavoring to block the rezoning.

The county commissioners ignored the recommendation of the planning commission to rezone the east one-half of the Moyer tract and left it zoned as residential. This action was then filed by the Moyers to compel the county commissioners to rezone the tract in question for highway service use. The trial court, after hearing the case, ordered the county commissioners to rezone the Moyer tract.

Under all of the facts and circumstances presented by the record in this case, the reasons assigned by the trial court for denying the Kendigs the right to intervene after judgment were sound. In my opinion, the order of the trial court denying the Kendigs the right to intervene should be affirmed.

In ruling upon the motion to intervene after judgment the trial court said:

“The Court: Gentlemen, in approaching this matter, I think it is important to state the events that have transpired in this matter in chronological order. In December, 1964, plaintiffs filed an application for a zoning change with the Metropolitan Planning Commission; and, at that time, the movants here were the owners of a farm of some 100 plus acres located directly across Burlingame Road from the tract in question; and, at that time, they also owned an irregular tract of approximately two acres just south of the tract in question. The hearing on the plaintiffs’ application for a zoning change was heard on January 12, 1965; and, on this same date, the movants purchased a tract north of the tract in question but not contiguous to it. On February 17, 1965, the Planning Board recommended to the Board of County Commissioners, the defendants in this case, that a zoning change be made from Residential Zone to C-7 Service Station zoning. A few days later, and on the 20th of February, 1965, the movants purchased a 5-acre tract which is immediately contiguous to this tract on the north; and, this particular tract was owned by one of the plaintiffs’ parents. On March 5th, the County Commissioners refused to make the zoning change as recommended by the Planning Board; and, this action was filed April 1, 1965. The case was set for trial on April 9, 1965. Sometime between April 1, and April 9, the movants employed counsel, Mr. Shapiro— he was present at the time of the hearing — also, one of his associates, a Mr. Smith. Mr. Kendig was a witness at that hearing. At the conclusion of the hearing, the Court informed counsel for the parties that they could file requested findings of fact, and such requested findings of fact should be filed by June 1, 1965. Sometime after the 1st of June, 1965, Mr. Demo, Lyon County Attorney, asked the Court for additional time in which to file requested findings; and, the time for the filing of requested findings was extended to July 1, 1965. The defendants filed requested findings of fact on June 29, 1965. The Court decided this case on July 15, 1965, and prepared a memorandum opinion which contained the reasons for its decision. The final judgment was entered of record on July 22, 1965. The movants’ motion to intervene was filed on July 28, 1965. The movants could have filed a motion to intervene at any time after April 1, 1965, but they did not choose to do so. Counsel for the movants have urged upon the Court that consideration be given to the case of Wolpe versus Poretsky, which is mentioned in Judge Card’s commentary following Section 60-224. The Court is familiar with this case; and, as stated by counsel for the parties, the factual situation in the Wolpe case and the instant case are not analogous, but counsel for the movants insist that the Court apply a very literal interpretation to the language used by Judge Gard.

“The rule of law that appeals to the Court in regard to the circumstances here is as follows: In the absence of a specific statutory provision fixing the time in which the right to intervene must be exercised, the timeliness of an intervention is governed by equitable principles. I think counsel for the plaintiffs read from the opinion in the case of Gibson against Ferrell, which is in Volume 77, Page 454 of the Kansas Reports, and the Court feels that the language used by the court in this opinion on Page 457 is applicable to the situation that we have here. It reads as follows: “So far as the motion discloses the applicant may have been sitting by during the entire period the suit was pending, watching the progress of events, waiting to see what would develop, and only after the end had been reached and he found the result to be unsatisfactory did he conclude to try his own hand. The motion having been addressed to the discretion of the Court, its ruling cannot be reversed without a clear showing that it abused its authority. Manifestly the applicant withheld altogether too much for this to be said.’ The Court feels that the movants had an opportunity to file a motion to intervene prior to the entry of final judgment in this case, and to grant the movants the right at this time to intervene here would injuriously affect the plaintiffs’ rights. The motion is overruled.” (Emphasis added.)

It is apparent the appellants are not proceeding under the provisions of K. S. A. 60-224 (b) which deal with permissive intervention, but upon subsection (a) of 60-224, supra, which deals with a party’s right to intervene in an action. The court in construing this section of the statute holds that the requirement for “timely application” to intervene has no application under 60-224 (a), supra, until such time as adequate representation ceases.

As authority, the court relies upon Wolpe v. Poretsky, 79 U. S. App. D. C. 141, 144 F. 2d 505, 508, cert. den. 323 U. S. 777, 89 L. Ed. 621, 65 S. Ct. 190, decided in the United States Court of Appeals for the District of Columbia. Concerning the Wolpe case the court says it had the same factual situation involving a zoning dispute as the instant case. Even counsel for the appellants, Mr. Shapiro, concedes the Wolpe case is factually distinguishable. He said:

“. . . on the Wolpe case — we will certainly admit that the facts were not the same in that case as they are here, and that they could readily be distinguished. . . .”

I think the fallacy of the court’s position is illustrated by Syllabus ¶ 4 and the corresponding portion of the opinion, when it says, “We believe that the Board of County Commissioners, in the absence of intervention by adjoining property owners, sufficiently represent their interest so that a decree setting aside a zoning order may bind them under the facts and circumstances of this case.” (p.__)

If this is true all adjoining property owners who did not intervene in this case are bound by the judgment of the district court which ordered the county commissioners to rezone, and the subsequent action of the county commissioners in rezoning the property is binding upon those who did not intervene. Under these circumstances, how can it be said the one adjacent property owner seeking to intervene after judgment is entitled to affect the rights of all other adjoining property owners whose interests are adverse?

The point is emphasized by the facts in this case. Finding No. 7 of the trial court, which is not challenged, reads:

“On December 9, 1964, plaintifFs filed their application with the EmporiaLyon County Metropolitan Area Planning Commission asking that the property described in Finding No. 1 be re-zoned from the R-2 Multi-Family Residential District to the C-S Highway Service District. A public hearing was set for January 12, 1965, and notice of said hearing was duly published. Af the hearing, on January 12, 1965, before the Planning Commission, a petition signed by fourteen property owners or residents of property in the vicinity of the plaintiffs’ property requesting that the zoning change be made was presented to the Planning Commission. There was no person present at the hearing who voiced opposition to the requested change in zoning. On February 17, 1965, the Planning Commission recommended to the Board of County Commissioners of Lyon County that the east one-half, or approximately 2.5 acres, of plaintiffs’ property be changed from the R-2 Multi-Family Residential zone to the C-S Highway Service zone.” (Emphasis added.)

In my opinion, the assumption of the court that the county attorney, who represented the county commissioners in this matter, adequately represented the Kendigs, who were individual landowners, until after judgment in this case, is unwarranted. For example, counsel representing the Moyers and the board of county commissioners in this case could have agreed to settle the matter during the trial by the county commissioners agreeing to rezone upon dismissal of the action by the plaintiffs. Under such circumstances, the trial court would have no alternative but to dismiss the action, in which event the Kendigs would have no right of intervention whatever. Had this been the situation, the county attorney would have been under no obligation whatever to consult with the Kendigs or their attorneys prior to such settlement of the case.

It is readily apparent the interest of the Kendigs is in conflict with the interests of other property owners and with the interests of the county commissioners, who were defending their decision in this case. The Kendigs are looking after their own individual interests, while the county commissioners are obligated to represent the public interest.

The decision, in my opinion, therefore turns upon whether or not timely application was made by the appellants to intervene.

The colloquy set forth between counsel for the appellants and the trial court upon their first appearance in court can hardly be construed as a motion to intervene, and the trial court did not so consider it. Counsel’s statement, “we might be able to ask for leave to intervene in this matter” is definitely not a motion to intervene. The trial court’s reply — that it would not permit intervention sought in this manner — was entirely within its province. (See, Noll v. Schnebly, 196 Kan. 485, 413 P. 2d 78.)

Counsel for the appellees, the Moyers, made their position clear from the beginning, that if the county attorney who was appearing on behalf of Lyon County, was also appearing on behalf of Mr. Kendig, as stated for the record, that such dual representation constituted a direct conflict of interest.

Under these circumstances the trial court was correct in holding that the appellants’ motion to intervene after judgment came too late, the appellants having waived their right to intervene by sitting idly by during the trial, when they were not only present, but where Mr. Kendig himself testified in the case, and in a matter where the Kendigs well knew they would be bound by the judgment ultimately entered by the trial court.

Even if it be assumed that the appellants had a right to intervene in this case after judgment, as held by the court, the appellants should not be permitted to intervene and to continue litigation of this character for a period of possibly two years, to the detriment of the Moyers, without giving a stay bond. The rights of parties to a lawsuit are not all on one side in the case. Here, for example, the county commissioners after judgment announced they would not file a motion for new trial or appeal, and rezoned the tract in accordance with the recommendation of the planning commission. They did not appeal but acquiesced in the judgment. This court has gone further than most courts in holding a party bound by an acquiescence in the judgment. Even the payment of court costs has been held to constitute an acquiescence in the judgment by a party. (Gehring v. Goering, 181 Kan. 994, 317 P. 2d 424.)

The court by its decision is now attempting to undo activity occasioned by the judgment, where no stay bond has been given, all to the detriment of the Moyers. Nowhere in the record does it appear the appellants have ever posted any bond by reason of their action to gain a favorable decision as to the zoning of the Moyer tract. They were not parties prior to the entry of judgment.

It is respectfully submitted the appeal should be dismissed for the reasons heretofore assigned.

Assuming the appellants are here on appeal, the trial court should be affirmed in its decision on the merits.

The trial court found that the action of the county commissioners which reversed the planning commission on the question of rezóning the Moyer tract was unreasonable. It is apparent from the record that the trial court in so ruling relied upon the decision of this court in Barclay v. Mitchum, 186 Kan. 463, 350 P. 2d 1109.

The court in its opinion attempts to brush the Barclay case off as one determining a procedural question under the old code. This decision cannot be so easily reconciled. There the trial court specifically found the city commissioners had granted another landowner’s application for the rezoning of his property in the immediate area to permit the erection of an apartment building, but denied the application for a similar zoning change of property to the appellee. This finding was held sufficient to support a judgment of the trial court which ordered a rezoning of the appellee’s property. The Supreme Court’s affirmance of the trial court amounts to a square holding which cannot be diluted. The case stands for the proposition that where city commissioners authorize a rezoning of property owned by one applicant, it is unreasonable upon application to deny the same kind of rezoning of another’s property similarly situated.

It is not the function of appellate review to reweigh the evidence before a trial court. It has nearly always adhered to the rule that it is bound by the findings made by the trial court, if such findings are supported by the evidence.

The residential character of the property located at interchange No. 3, all of which is outside the city limits, was unquestionably altered by the location and construction of the 1-35 bypass. The long-range zoning plans of the city of Emporia must therefore be viewed under these changed conditions. There was a combination grocery store and service area on the south of the bypass highway at this interchange, and the Moyer property on the north was similarly situated to the Hahn tract in the immediate area of the interchange which was zoned as a highway service area. By reason of access rights which were acquired at the interchange in question, the Moyer tract on the north of the bypass highway was the first tract available to traffic approaching from the east as a public service area.

In my opinion the record presents sufficient evidence to uphold the trial court’s finding that the action of the county commissioners in denying the Moyers’ application for rezoning was arbitrary and unreasonable. The trial court who heard the witnesses and saw them testify was in a far better position to appraise and evaluate their testimony than is this court. It is respectfully submitted the judgment of the lower court should be affirmed on the merits.