Historic Preservation Alliance, Inc. v. City of Wichita

892 P.2d 518, 20 Kan. App. 2d 721, 1995 Kan. App. LEXIS 43
CourtCourt of Appeals of Kansas
DecidedMarch 24, 1995
DocketNo. 73,305
StatusPublished
Cited by2 cases

This text of 892 P.2d 518 (Historic Preservation Alliance, Inc. v. City of Wichita) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Historic Preservation Alliance, Inc. v. City of Wichita, 892 P.2d 518, 20 Kan. App. 2d 721, 1995 Kan. App. LEXIS 43 (kanctapp 1995).

Opinion

Briscoe, C.J.:

Historic Preservation Alliance, Inc., (HPA) appeals from the district court’s dismissal of its appeal from a de[722]*722cisión by the Wichita City Council (Council) as untimely filed. At issue is whether the Council’s decision was final and appealable on November 8 or on November 15, 1994. After concluding HPA’s appeal to the district court was timely because the Council’s decision was not final and appealable until November 15, we reverse and remand for the district court’s determination of HPA’s appeal on its merits.

The Allis Hotel (Hotel), located in Wichita, Kansas, was built in 1929 and remained in operation until 1968. After its closing, the Hotel stood vacant for over 20 years.

In 1992, the Hotel was listed in the Register of Historic Kansas Places maintained by the Kansas State Historical Society. Under K.S.A. 1994 Supp. 75-2724(a), the State Historic Preservation Officer (SHPO) has the statutory authority to review and comment on the impact a project may have on any listed building and its environs. Prior to issuance of a demolition permit, the SHPO must be given five days’ notice by certified mail of a determination that there is no feasible and prudent alternative to demolition. In addition, K.S.A. 1994 Supp. 75-2724(b) provides that “[a]ny person aggrieved by the determination of a governing body pursuant to this section may seek review of such determination in accordance with K.S.A. 60-2101 and amendments thereto.”

On March 1, 1994, the City of Wichita (City) acquired the Hotel from its owners pursuant to a settlement of various lawsuits and the City’s payment of $375,000 to the owners. In late March, the City mailed “requests for proposals” to 58 firms across the nation hoping to attract a firm that would be interested in rehabilitating the Hotel. Only two firms responded and forwarded proposals. After the proposals were reviewed by a committee of city staff and individuals from the private sector experienced in construction and proposal analysis, the City rejected both proposals. In June 1994, the City contacted 10 developers to encourage their submission of redevelopment proposals. Only one developer responded, declining the offer.

On August 31, 1994, the City sent notice to the SHPO that it intended to demolish the Hotel. In response, the SHPO notified the City on October 21, 1994, that the City’s plan would destroy [723]*723the Hotel, a historic property included in the Register of Historic Kansas Places.

During the week of October 31, 1994, the City placed on the agenda of the November 8 Council meeting the question of whether there was a feasible and prudent alternative to the demolition of the Hotel. During that same week, the Council staff prepared an agenda report for the Mayor and the Council, setting forth the history of the Hotel and the City’s actions regarding the Hotel since the City obtained title in March 1994.

At its November 8 meeting the Council received additional information as to whether a feasible and prudent alternative to demolition of the Hotel existed. All persons who asked to speak to the issue were given an opportunity to do so, including representatives of HPA and Kansas Preservation Alliance. Only one proposal was submitted as an alternative to demolition. The Council recessed while the financial particulars of that proposal were evaluated by staff of the City. When the Council returned to the matter later in the day, staff reported that the proposal was not economically feasible, even with the assumption that historic preservation tax credits could be used to supply some portion of the developer’s equity required for the renovated hotel project. After further discussion, the Council adopted a motion “that the Council find that a feasible and prudent alternative to demolition does not exist and that staff prepare written findings and provide the State Historical Preservation Office with a statutory notice of its findings.”

At the next regularly scheduled Council meeting on November 15, 1994, an item was placed on the agenda which listed 22 findings of fact relating to the proposed demolition of the Hotel. Included in those findings was a determination that no feasible and prudent alternative to the demolition existed. The Council adopted the findings by unanimous vote without further discussion. No additional testimony or information was presented to the Council at the November 15 meeting.

On November 15, 1994, the City sent notice to the SHPO that it had determined no feasible and prudent alternative to demolition existed. Along with the notice, the City sent a copy of the [724]*724findings it adopted on November 15. The City stated in its notice that it would not proceed with the proposed demolition for a period of five days from the date of receipt of the notice. On December 15, 1994, HPA served notice on the City of its intent to appeal the Council’s finding that no feasible and prudent alternative to demolition existed. HPA filed a petition and notice of appeal with the district court on December 15, 1994, challenging the City’s action. HPA also filed a motion for temporary injunction on that same day. The district court issued a temporary restraining order, restraining the City from damaging, destroying, or demolishing the Hotel until a hearing was held on the motion for temporary injunction.

On December 21, 1994, the district court heard the motion for temporary injunction and determined the notice of appeal filed by HPA on December 15 was not timely. The court denied the motion for temporary injunction, dissolved the temporary restraining order, and dismissed the appeal as untimely filed. HPA then filed a timely notice of appeal to this court.

After docketing the appeal, HPA filed a motion for immediate stay and/or injunction with this court. On January 12, 1995, this court entered an interim stay order pending the filing of a response by the City. After the City filed a response, HPA’s motion was heard on January 26, 1995. HPA’s motion for temporary injunction was granted on February 6, 1995, prohibiting further demolition of the Hotel during the pendency of this appeal. The City was allowed to remove all friable asbestos-containing material from exposed surfaces pending resolution of this appeal.

Was HPA’s notice of appeal timely filed with the district court?

K.S.A. 60-2101(d) applies to a “judgment rendered or final order made by a political or taxing subdivision, or any agency thereof.” K.S.A. 60-254(a) defines a judgment as “the final determination of the rights of the parties in an action.” Under 60-2101(d), when no other means for perfecting an appeal is provided by law, a notice of appeal to the district court must be filed “from such judgment or order with such subdivision or agency within 30 days of its entiy.” The time for appeal therefore could [725]*725begin to ran only upon entiy of the final order or judgment of the Council.

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Bluebook (online)
892 P.2d 518, 20 Kan. App. 2d 721, 1995 Kan. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/historic-preservation-alliance-inc-v-city-of-wichita-kanctapp-1995.