Consideration of photos only on remand, without testimony or arguments, did not violate due process
by Victoria Heldt
Russell Leffel and Paula Leffel v. City of Mission Hills, City of Mission Hills Board of Zoning Appeals
(Kansas Court of Appeals, February 6, 2012)
This appeal was submitted subsequent to a remand by the same Court. The Leffels applied for a permit in July 2006 to construct a home on an empty lot they own in the City of Mission Hills. The city’s architectural review board (ARB) initially approved the construction plans, but the City of Mission Hills Board of Zoning Appeals (BZA) reversed the approval. On appeal by the Leffels, the trial court found that the BZA’s reliance on public opinion amounted to an impermissible plebiscite (i.e., that it amounted to a decision reached through direct vote of the public, rather than a decision by the BZA). It also found the BZA’s comparison of the proposed structure to surrounding structures was unreasonable, and also that the BZA conducted an improper de novo review of the ARB’s decision. Then on the city’s appeal of the trial court’s decision, this Court of Appeals affirmed the trial court’s decision regarding the plebiscite, but rejected the court’s other grounds for reversing the BZA’s decision. It reversed the ruling in part and remanded the case to the trial court for it to be remanded to the BZA.
On remand, the BZA discussed the possible procedures to be undertaken on reconsideration of the proposal. The BZA’s counsel recommended only a review of the record with no new evidence submitted. Doug McKenna, the Leffel’s counsel, objected to that and requested an opportunity to submit new evidence. The BZA’s chairman, Tom Roszak, expressed a desire to receive input from the ARB regarding the proposal’s conformance in style and size to surrounding structures. It defined “surrounding structures” to be an area extending 500 feet from the proposal site. The rest of the Board agreed and the matter was sent to the ARB for further review.
The ARB received 75 photos by city staff members of the homes within a 500 foot radius and asked each board member to review them for a quasi-judicial deliberative session in June 2009. No arguments, testimonies, or evidence would be accepted except for the 75 photographs and board members’ personal observation of the area. In July 2009 the ARB voted that the proposal did not conform to surrounding structures and passed this recommendation to the BZA. The BZA affirmed its previous denial of the Leffel’s building application. The Leffels appealed, but the trial court affirmed the BZA. Leffels then appealed once again to the Court of Appeals.
On second appeal, the Court of Appeals looked at whether the BZA’s decision to affirm the denial of the Leffel’s permit was lawful and reasonable. The Leffel’s first major argument was that the Court should not give deference to the BZA’s decision because it was not reasonable. The BZA applied a standard of “good faith and fair play” rather than reasonableness when making the decision. The Court dismissed this claim because it found “no principled reason to believe that a presumption of reasonableness does not encompass a presumption that the government officials acted fairly with good faith.” It noted that the error in language was harmless because the Court conducts an independent review of the BZA’s conduct. The Leffels next argued against giving deference to the BZA because the BZA’s initial decision was ruled illegal by the trial court in the first appeal, so the BZA lost its presumption of reasonableness. The Court dismissed this claim because to so hold would contradict the limited role court’s have in zoning decisions. It cited previous Kansas caselaw which warned the Court against substituting its decisions for those of public officials in regards to zoning matters. The Leffels further argued that because the case was presented to the BZA in documents only that the court was in as good a position as the BZA to rule on the matter. The Court rejected that claim, pointing out that most zoning decisions are made strictly on documentary evidence.
The Leffel’s second major claim was that the BZA decision did not comply with the Court of Appeals’ orders on remand in two ways. First, the Leffels believed that the BZA took a “new look” at the case rather than reconsider it. The Court began its analysis by noting that, absent specific instructions, a trial court has discretion in how to implement a remand. The same goes for the BZA in this case since it was given the duty of reconsideration. The Leffels took issue with the fact that the ARB accepted new photographs of the surrounding area. The Court found it to be in compliance with the remand because one of the factors the BZA used to reverse the ARB’s recommendation was that it had improperly considered the proposal’s conformity with the surrounding structures. Consequently, it was consistent with the remand to reconsider the conformance to surrounding structures. Additionally, the Leffel’s counsel explicitly requested the BZA to send the case back to the ARB for reconsideration during the hearing.
Next the Leffels argued that the BZA failed to comply with the Court’s mandate by not addressing the extent to which the impermissible plebiscite affected its decision. The Court clarified that it did not ask the BZA to determine the effect of the plebiscite, but rather asked it to reconsider its opinion without it. The BZA did this when it (and the ARB) disregarded public opinion regarding the proposal and reconsidered the matter based on the proposed home’s conformance to surrounding structures, without listening to arguments, or taking testimony or other evidence.
The Leffel’s third and final claim contended that the reconsideration process violated due process. The Court found that this argument was poorly constructed and that the Leffels failed to show how their due process rights were violated. They tried to argue that the submission of the 75 photographs was new evidence that the Leffels were not given due opportunity to challenge or respond to. The Court ruled that it was not new evidence, only reconsideration with a redefinition of scope. Any effects of the photographs were neutralized by the fact that each ARB board member personally visited the site uninfluenced by either party. The remainder of the Leffel’s arguments were poorly articulated and the Court dismissed them. The Court affirmed the trial court’s decision.