Koch v. Board of County Commissioners

Supreme Court of Kansas

Koch v. Board of County Commissioners

342 P.2d 163, 185 Kan. 259, 1959 Kan. LEXIS 411

CourtSupreme Court of Kansas

DecidedJuly 10, 1959

Docket41,406 and 41,445

StatusPublished

Cited by4 cases

This text of 342 P.2d 163 (Koch v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Koch v. Board of County Commissioners, 342 P.2d 163, 185 Kan. 259, 1959 Kan. LEXIS 411 (kan 1959).

Pincite

Opinion

The opinion of the court was delivered by

Jackson, J.:

The appellants filed suit in the district court to obtain an injunction preventing appellees Southwestern Bell Telephone Company and its contractor Hungerford from constructing a garage and service facility for Bell’s service trucks and equipment as permitted by an order of the Board of Zoning Appeals granting permission for such construction. The other appellees were also made parties defendant. A temporary injunction was issued by the district court, but after a trial of the case, the court made findings of fact and conclusions of law including a general finding in favor of the defendants, dissolved the temporary injunction and entered its judgment and decree against the plaintiffs. At a later date, the court overruled plaintiffs’ objections to the trial court’s findings of fact and conclusions of law and overruled their motion for new trial.

The two appeals herein are due to the fact that counsel for appellants, out of an abundance of caution, filed an appeal from the final decree of the court, and then a short time later filed a second appeal from the orders overruling the objections to the court’s order overruling the motion attacking the findings, conclusions, and order relating to the motion for new trial. Of course, the appeals have been consolidated, and no further attention will be given to the separate appeals.

A preliminary matter may be summarily disposed of. Appellees shortly before the case was set for oral argument filed a motion to dismiss the appeal on the ground that it had become moot, in that the building sought to be enjoined had been completed. In view *261 of this court’s understanding of the position of appellee Southwestern Bell Telephone Company at the time of a hearing on an application for a temporary injunction pending the appeal to this court, the motion is denied.

It might be observed at the start that a survey of the cases coming before the courts involving questions of zoning seem to contain a rather high degree of feeling and a possible financial loss to one side or the other. All the courts are able to do is to endeavor to apply the rules of law which have been developed in this comparatively new field, and sometimes those rules are somewhat nebulous.

Actually it would seem that there is very little, if any, dispute as to the pertinent facts in this appeal, and the only real question of law for decision may be stated to be whether the Board of Zoning Appeals was authorized and empowered to grant an exception or variance to the zoning resolution which permitted a non-conforming use in a zoning district. Perhaps, in view of the work load of this court, we would be justified in giving a short answer to the legal question. However, the case is one of importance and we shall attempt to adequately discuss the contentions of the parties .and the facts of the case. We shall refer to individuals by surnames and to groups and boards usually by abbreviated names.

This suit involves an area immediately adjacent to the present city limits of Wichita on the east. The appellants, plaintiffs below, are landowners in the area. They acquired their tracts in the early 1930s, and have invested very large amounts of money in improving them. Their properties now constitute beautiful and valuable suburban estates. A map or plat shown on page 262 will make the area clearer.

It will be seen that the map portrays four sections of land in township 27 S, Range R2E in Sedgwick County; that Bradley’s estate is in the north half of section 8; that Koch owns the southwest quarter of the same section; while Hartman’s property is the northeast quarter of section 18; that the Wichita Country Club is located in the northwest quarter of section 17, across Rock Road from Hartman. We are advised that the facilities and improvements of the country club cost more than one million dollars. Koch, Bradley and Hartman at their own expense paved Rock Road and also brought water to the area. Plaintiffs frankly state that it has been their intention to plat their land into an exclusive residence *262 addition to the city. The city limits have now reached the west boundary of the Hartman property.

This lawsuit involves the use of the southeast quarter of section 7, across Rock Road to the west from the Koch property. It will be noted that this quarter section is bounded on the north by the tracks of the Frisco railroad, which bisects sections 7 and 8 from east to west. When the plaintiffs located in the area there was *263 no zoning in force. In 1941, the KFH radio station and towers were located on twenty acres in the southeast quarter of section 7 as shown on the map. Koch and others of the plaintiffs objected to such location to no avail. In 1955, Dolese Brothers acquired the twenty acres to the north of KFH as shown on the map. Plaintiffs objected again without any real results as far as preventing the installation of the cement mixing business in this location. From the map, it will readily be seen that Wichita school board owns some one hundred acres of this southeast quarter section. Just when the school board acquired this property is not shown in the record. It would appear that in December, 1957, 140 acres out of the 160 acres in the quarter section in question were being put to some non-residential use. The balance of the acreage was apparently owned by a Mr. Calkins.

*262

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