Burden on city to determine whether feasible alternatives existed to proposed project affecting historic site

by Gary Taylor

Friends of Bethany Place v. City of Topeka
(Kansas Supreme Court, August 23, 2013)

The Grace Episcopal Cathedral and the Episcopal Diocese of Kansas (the Church) applied for a building permit for a parking lot on land it owns in Topeka because – according to a Church representative – the Church is critically short of disabled access space and estimated its true parking needs at 194 stalls.  The land is known as Bethany Place, and is included on the Register of Historic Kansas places.  This designation shields Bethany Place from further development unless the statutory protections with the the Kansas Historic Preservation Act (the Act) are satisfied.  The Church’s cathedral building and current 89-stall parking lot are adjacent to Bethany Place but are not considered part of the historic site.  The site is in a residential neighborhood next to Topeka High School.  The proposed parking lot project would include the removal of several trees, and the laying of hard surface across some of the historic site’s green space.

After investigating the project, the State Historic Preservation Officer (SHPO) wrote to the Topeka Planning Department that the project would damage or destroy the Bethany Place site, and “drastically change the relationship between the two historic buildings on the site with the public street of Polk.”  The SHPO recommended an alternative site design.  The day after receiving the SHPO’s letter, the Planning Department recommended that the City Council deny the building permit “in light of alternative and feasible alternatives that will not encroach upon or damage the listed property.”  The recommendation also cited the Topeka Traffic Engineering Division’s determination that “angled cut-back parking along SW Polk Street adjacent to the property would be a feasible alternative to the Church’s proposal, but notably contained no additional information detailing economic, technical or design issues related to the feasibility of cut-back parking.  The Church asked the SHPO to reconsider his findings, and asked the City Council to issue the permit anyway.  One day before the hearing, the organization “Friends of Bethany Place” (FOB) was formed to oppose the project.

At the hearing The Church submitted a number of supporting documents. The FOB also submitted documents in opposition to the request, including a petition with 95 signatures and a document entitled “alternative parking lot sites” that was an aerial photo of the grounds with notes suggesting alternative sites for parking.  At the conclusion of the lengthy hearing, the City Council unanimously passed the following motion:

I’d like to make a motion to approve the communication to override the recommendation of the [SHPO] and issue the parking lot permit.  I base this on the City Council’s consideration of all relevant factors, that there are no feasible and prudent alternatives of the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.

FOB filed suit the next day.  The city filed a motion to dismiss, arguing that FOB lacked standing.  The district court concluded that FOB had standing, and that the record was insufficient to support the Council’s conclusion that there were no feasible alternatives to the project.  On the City’s appeal of that decision, the Court of Appeals affirmed the district court on the standing issue, but reversed on the permit issuance. FOB appealed.

Standing. The Act provides that “any person aggrieved by the determination of a governing body…may seek [judicial] review….”  The Court concluded that FOB clearly fell within the definition of “person” provided by statute.  As for the term “aggrieved,” the Church and City urged the Court to follow earlier case law interpreting “aggrieved” – as it appeared in another statute – to mean “one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by the order.”  The Court declined to do so, stating that the Act contemplated a much broader view of “aggrieved.” It cited language in the preamble of the Act making historic preservation “among the highest priorities of government…for the eduction, inspiration, pleasure and enrichment of the citizens of Kansas.”  It also noted that property owners within 500 feet of an historic site – an area within which several FOB members reside – receive special consideration in matters relating to the designation of historic sites.  Finally, it considered important several affidavits submitted by FOB members that stated that their property values would be negatively affected by the project.  In sum, FOB had standing to challenge the Council’s decision.

Decision merits.  According to Kansas caselaw, the ultimate question for the Court is whether the City Council took a “hard look” at all relevant factors, and used plain common sense in its determination as to whether the facts support the decision.  This is to limit the Court’s scope of review to whether decision “represented a clear error of judgment.”  The Court in this case concluded that the Council did not take the required “hard look.”  Under the Act, to allow the project the Council must determine that (1) there were no feasible and prudent alternatives to the proposed parking lot, and (2) the proposal included all possible planning to minimize harm.  It placed the burden on the City – not project opponents – to establish the existence and feasibility of alternatives.  The Court found an absence of technical, design and economic considerations submitted to the Council regarding potential alternatives.  Several alternatives were suggested by opponents to the project, but the Council failed to direct any further investigation into these alternatives.  In all, the record before the Court demonstrated that the Council failed to adequately perform its investigatory role to identify feasible alternatives, and because of this the Court directed that the case be remanded to City council for another hearing after the necessary investigations are conducted and evidence gathered concerning feasible alternatives.


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