Mallon v. City of Emporia

726 P.2d 1354, 11 Kan. App. 2d 494, 1986 Kan. App. LEXIS 1500
CourtCourt of Appeals of Kansas
DecidedOctober 30, 1986
DocketNo. 58,701
StatusPublished
Cited by4 cases

This text of 726 P.2d 1354 (Mallon v. City of Emporia) 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
Mallon v. City of Emporia, 726 P.2d 1354, 11 Kan. App. 2d 494, 1986 Kan. App. LEXIS 1500 (kanctapp 1986).

Opinion

Abbott, C.J.:

This appeal arises out of sewer and street improvements in an improvement district within the City of Emporia.

The landowners appeal alleging the trial court erred in granting summary judgment to the City of Emporia, which had credited interest income from the investment proceeds of temporary notes to its general bond fund, and in holding the City was not arbitrary and capricious in assessing one-half the cost of an internal T-intersection to the landowners and increasing the percentage the landowner must pay in the final ordinance apportioning costs for the street between the City and the improvement district. The City cross-appeals alleging the court erred in granting summary judgment to the landowners on the question of whether interest payable with the first special assessment installment should be charged from the effective date of the ordinance or for an entire year.

The landowners in the Park Place Subdivision in the City of Emporia petitioned the governing body for street and sanitary sewer improvements under K.S.A. 12-6a04(2), of the General Improvement and Assessment Law of Kansas.

By separate resolution the sewer improvement cost was apportioned 100% to the improvement district and 0% to the City at large and the cost of the street improvement was apportioned 90% to the improvement district and 10% to the City at large. The total estimated cost of the improvements was $205,148.95 (sewer — $57,542.40 and street — $147,606.55).

Temporary notes in the amount of $205,000 were issued on September 1, 1982. The practice in Emporia at that time was to place the proceeds from temporary notes from all special improvement projects in a single “improvement fund” account. Idle funds in the improvement fund account were invested and interest earned. The interest income was not prorated among the individual improvement projects. When a project was completed, the City transferred any surplus in the improvement fund account to the “bond and interest fund” without segregating the monies to the respective improvement projects, thereby reducing the tax levy necessary to the City’s general bond obligations.

The projects giving rise to this appeal were completed as contemplated in the spring of 1983. In July, an ordinance was enacted levying assessments on the property in the improvement [496]*496district. The landowners moved to set aside or modify the special assessments and the trial court granted summary judgment. This appeal follows.

a. Investment Income.

The landowners contend that interest earned from the investment of idle temporary notes proceeds should have been credited to the specific improvement project’s interest cost. They argue this practice results in the improvement district’s not being apportioned its true cost of the improvement when assessments are made.

Pursuant to the General Improvement and Assessment Law, K.S.A. 12-6a01 et seq., the governing body is authorized to levy special assessments against property in the improvement district based upon the cost of the improvement and the apportionment of that cost between the city at large and the improvement district. “Cost” is defined as “all costs necessarily incurred for the preparation of preliminary reports, the preparation of plans and specifications, the preparation and publication of notices of hearings, resolutions, ordinances and other proceedings, necessary fees and expenses of consultants and interest accrued on borrowed money during the period of construction together with the cost of land, materials, labor and other lawful expenses incurred in planning and doing any improvement . . .” K.S.A. 12-6a01(d).

The interest cost of the temporary notes is a “cost” within the meaning of the improvement and assessment law and is thus an item which may be assessed against the property owners in the improvement district. It is the landowners’ position, however, that the interest cost accrued must be offset by the interest income from the investment of idle temporary note proceeds. In short, the cost is a “net cost” and not a gross cost. K.S.A. 12-6a01(d) provides no answer to the question before us. As noted in Board of Education v. City of Topeka, 214 Kan. 811, 522 P.2d 982 (1974), the general improvement and assessment law is intended to provide a complete alternative to other methods provided by law whereby the governing body of the City undertakes improvements. Thus, the Kansas decisions purporting to construe “cost” to mean “net cost” are not particularly enlightening, since the word “cost” was in the context of other statutes and proceedings. Our Supreme Court has noted the [497]*497inapplicability of other improvement laws when the proceedings were not brought under those statutes. See Dodson v. City of Ulysses, 219 Kan. 418, 426, 549 P.2d 430 (1976) (street improvements brought pursuant to the general paving law, K.S.A. 12-601 et seq.). Dodson prohibited using an unsubstantiated percentage estimate of construction cost to arrive at the cost of the improvement. Under the general paving statutes, cost of the improvement was interpreted to mean actual cost. And in Bell v. City of Topeka, 220 Kan. 405, 553 P.2d 331 (1976), “cost” as used in K.S.A. 13-10,115 does not include federal funds contributed by the government, but means the actual cost remaining to the City.

There is some support for the landowners’ position that the interest earned on the temporary notes should have been deducted from the interest cost of the temporary notes before assessment. In 14 McQuillin, Municipal Corporations § 38.140 (3d ed. 1985 Supp.), it is stated that a municipality may not assess property owners for the total cost of an improvement without reduction for funds received from other services, such as county, state, or federal agencies. The foreign authorities cited by the landowners in their brief apply this principle. Although none of the cases involve investment income, by analogy, interest earned should also be applied to reduce the total cost of an improvement as “funds from other sources.” See Bern Twp. Auth. v. Hartman et al., 69 Pa. Commw. 420, 451 A.2d 567 (1982); Boro. of Northampton v. Knauss et al., 27 Pa. Commw. 543, 367 A.2d 358 (1976).

Perhaps the most compelling argument in support of the landowners’ position is the treatment of interest income as expressed in the General Bond Law. K.S.A. 10-101

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Bluebook (online)
726 P.2d 1354, 11 Kan. App. 2d 494, 1986 Kan. App. LEXIS 1500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallon-v-city-of-emporia-kanctapp-1986.