Opinion
No. 106,033.
2012-07-27
Jack BANNON, et al., (City of Derby), Appellees/Cross-appellants, v. The BOARD OF COUNTY COMMISSIONERS OF SEDGWICK COUNTY, Kansas, Appellee, and Crosswinds Aviation, Inc. and Paul A. and Tasha D. Brackeen, Appellants/Cross–Appellees.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Jeff Kennedy and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellants/cross-appellees. Lyndon W. Vix and Steve M. Stark, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, and Philip H, Alexander, city attorney, for appellees/cross-appellants.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Jeff Kennedy and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellants/cross-appellees. Lyndon W. Vix and Steve M. Stark, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, and Philip H, Alexander, city attorney, for appellees/cross-appellants.
Robert W. Parnacott, assistant county counselor, for appellee Board of County Commissioners of Sedgwick County, Kansas.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, we must address two questions: when should a court grant intervention into a lawsuit, and how is a county road properly vacated?
In a lawsuit brought by opponents seeking judicial review of a decision of the Board of Sedgwick County Commissioners to grant Crosswinds Aviation, Inc.'s petition to vacate a portion of 71st Street in rural Sedgwick County, the Board of County Commissioners changed its position from being in favor of vacation to now being opposed to it because the Board was convinced it had not followed the correct statutory procedures in vacating the road. Crosswinds sought to intervene in the district court action. Kansas courts grant intervention into a pending lawsuit when the intervening party has a substantial interest in the subject of the lawsuit and none of the existing parties adequately represent the intervenor's interests. K.S.A.2011 Supp. 60–224(a)(2). Because Crosswinds made a timely application to intervene and it was indeed Crosswinds' petition that was initially granted by the Board and no one remained in the lawsuit representing those in favor of vacating the road, we hold the district court did not err when it granted Crosswinds' petition to intervene.
Turning to the question of the vacation of the road, we note that the portion of 71st Street that Crosswinds seeks to vacate is not within a platted area outside any city limits but is, instead, a section line road in rural Sedgwick County. Kansas law permits streets found on tracts of land which have been platted to be vacated by following the procedure set out in K.S.A. 58–2613. But county roads may be vacated through the steps established in K.S.A. 68–102 et seq. Because the Board had designated 71st Street a county road, and it is not within a platted area, we hold the district court did not err when it ruled the Board had no jurisdiction to vacate the road as it had not followed the procedures established in K.S.A. 68–102 et seq.
Crosswinds wanted to extend a runway.
Wanting to extend a runway at Cook Airfield, which it operates, Crosswinds and others asked the Board to vacate part of 71st Street. The Board set Crosswinds' petition for a public hearing after receiving several petitions opposing vacation of the road. After the hearing, the Board granted the petition and vacated a portion of 71st Street. The people opposing the closure along with the City of Derby appealed the decision to the district court.
Once in district court, the Board filed a motion for summary judgment. But before the court decided the matter, the Board changed its position and asked the court to deny its motion for summary judgment and instead grant summary judgment to those opposing the vacation of the road. The Board was now convinced it had not followed the correct law when it vacated 71st Street. When it learned of the Board's change of heart, Crosswinds promptly asked to intervene. Those opposed to vacating the road now opposed Crosswinds' attempt at intervention. Nonetheless, the district court granted intervention.
Ultimately, the court decided that the Board had indeed used the wrong procedure when it attempted to vacate 71st Street. The court overturned the Board's ruling.
To us, Crosswinds argues the court erred when it ruled the Board followed the wrong law when it vacated the road. Also, the City of Derby cross-appeals the district court's order granting intervention to Crosswinds, arguing Crosswinds could always file a new petition to vacate the road under the correct law. We will address the intervention question first.
Crosswinds could intervene.
On cross-appeal, the City of Derby challenges the district court's grant of intervention. Alternatively, the City of Derby argues that this court lacks jurisdiction because Crosswinds does not have standing as an aggrieved party to appeal the district court's summary judgment in favor of the landowners and the City of Derby. Crosswinds maintains it was entitled to intervene as a matter of right. We agree with Crosswinds.
Review of an order granting intervention as a matter of right is subject to a mixed determination of law and fact. Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 533, 216 P.3d 158 (2009). This court reviews the district court's factual findings under a substantial competent evidence standard, and whether those findings are sufficient to support its legal rulings is reviewed de novo. Lewis v. R & K Ranch, 41 Kan.App.2d 588, 592, 204 P.3d 642 (2009). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can reasonably be determined. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009).
Intervention is ancillary in nature. When a person intervenes in a pending action, his or her actions merge with the character of the main action's subject matter. An intervenor, in effect, becomes an original party at the time of intervention. Hukle v. City of Kansas City, 212 Kan. 627, 632, 512 P.2d 457 (1973). Kansas law permits a party to intervene of right in a pending lawsuit when they have an interest in the property or transaction that is the subject of the action, and disposition of the action may substantially impair or impede the intervenor's ability to protect that interest, unless the existing parties adequately represent the intervenor's interest. K.S.A.2011 Supp. 60–224(a)(2). Our Supreme Court has clarified that the right to intervene under K.S.A.2011 Supp. 60–224 depends on the concurrence of three factors: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor's interests. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 10, 687 P.2d 603 (1984).
The district court determined (1) the motion was timely because Crosswinds filed the motion as soon as it learned the Board had changed its position; (2) Crosswinds had a substantial interest in the subject matter because it could have appealed as an aggrieved party if the Board had initially not approved the petition for vacation; and (3) Crosswinds' position that the Board acted appropriately in approving the vacation was not adequately represented once the Board took its position that it did not have jurisdiction to vacate the road because it had used the incorrect statutory procedures. We have no quarrel with any of these rulings.
Examined from a different perspective it is clear that if the Board had originally denied Crosswinds' petition for vacation, Crosswinds had standing to appeal the Board's quasi-judicial decision to the district court as an aggrieved party under K.S.A. 19–223, just as the individual landowners and the City of Derby chose to do. “An appeal may be taken to the district court from an order vacating a road, to review the judicial action which the order embraces.” See Heatherman v. Kingman County Comm'rs, 123 Kan. 77, Syl. ¶ 3, 254 P. 321 (1927). It would be illogical to say that Crosswinds had a sufficient interest to appeal the Board's decision as an aggrieved original party to the petition for vacation but that somehow that same interest changed when Crosswinds asserted it as an intervenor trying to defend the very decision it did not have to appeal. An intervenor takes on the character of an original party. Terms v. Galichia, 43 Kan.App.2d 857, Syl. ¶ 2, 234 P.3d 820 (2010). In this action it was a proponent of vacation of the road.
We believe the contrary position taken by the City of Derby is unreasonable. When Crosswinds filed its motion to intervene in January 2011, the Board had already approved Crosswinds' petition for vacation several months earlier. Once Crosswinds learned that the Board no longer represented its interests, Crosswinds sought intervention to protect those interests by presenting arguments as an original party to obtain a favorable district court ruling regarding the Board's original jurisdiction. See Hukle, 212 Kan. 627, Syl. ¶ 4. In fact, the record indicates that the district court put Crosswinds on notice to make an argument on the jurisdictional question raised by the Board if the district court permitted intervention.
More importantly, intervention was necessary to protect Crosswinds' right to appeal. The provisions of the intervention statute should be liberally construed in favor of intervention. This is especially true when intervention is necessary to protect a right that cannot otherwise be protected, including the right to appeal. In re Petition of City of Shawnee, 236 Kan. at 11. Without Crosswinds' intervention, there never could have been an appellate review of the district court's ruling that the Board lacked jurisdiction under K.S.A. 58–2613 to approve the petition for vacation and its subsequent judgment in favor of the landowners and the City of Derby.
We must point out that because Crosswinds was not aggrieved by the Board's decision approving its application for vacation, it had no legal right to intervene under K.S.A.2011 Supp. 60–224(a) or initiate an appeal under K.S.A. 19–223 so long as an existing party was adequately representing its rights or until it had knowledge it was not being adequately represented. Once the landowners and the City of Derby appealed the Board's decision approving the vacation, the Board had a duty to appear in district court to defend its decision and to protect the interests of the applicants. See In re Petition of City of Shawnee, 236 Kan. at 12–13;Board of Johnson County Comm'rs v. City of Lenexa, 230 Kan. 632, 640, 640 P.2d 1212 (1982). If a Board, however, learns during the pendency of an appeal to the district court that its prior order was indefensible, it is obligated to notify affected landowners when it elects not to defend against the appeal “so that the landowners would have the opportunity to timely intervene and defend, if they so chose.” In re Petition of City of Shawnee, 236 Kan. at 16.
Here, the Board fulfilled its obligation and advised Crosswinds that it did not intend to defend its prior order. Obviously, no party in the lawsuit adequately represented Crosswinds' interests once the Board abdicated its duty and asked the district court to enter judgment in favor of those who opposed Crosswinds' efforts to vacate 71st Street. Crosswinds' claim as an intervenor that the Board correctly approved the vacation involved the same question of law as the main action and raised no new issues of law.
We see no error in the district court granting Crosswinds' motion to intervene.
The court made the correct procedural ruling.
To us, Crosswinds now challenges the district court's determination that the Board lacked jurisdiction under K.S.A. 58–2613 to approve its petition for vacation. In our view, the court made the correct ruling.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P .3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
A brief review of the two statutes in question is helpful at this point. K.S.A. 58–2613, dealing with platted ground outside city limits provides:
“Whenever the owners of any tract or part of a tract of land which has been platted as an addition or subdivision or adjoins on both sides of any street, alley, public easement, or public reservation, or part thereof, and which lies wholly outside the limits of any incorporated city or within the limits of an incorporated city which has had no governing body for 10 years or more desire to have the same vacated, shall file a petition with the board of county commissioners of the county in which the land is located or with the planning commission of such county, describing the plat, street, alley, public easement or reservation, including dedicated building setback lines or access control proposed to be vacated and praying for the vacation described.” (Emphasis added.)
K.S.A. 68–102, dealing with roads, states:
“(a) Upon petition of any adjacent landowner, the board of county commissioners may lay out, alter or vacate a road. The board of county commissioners also may lay out or alter any road when deemed necessary by the board.
“(b) The board of county commissioners may vacate any road in the county whenever the board determines such road is not a public utility by reason of neglect, nonuse, or inconvenience or from other cause or causes such road has become practically impassable and the necessity for such road as a public utility does not justify the expenditure of the necessary funds to repair such road or put the same in condition for public travel.” (Emphasis added.)
In this case, the Board approved the vacation of the segment of 71st Street by using the procedures under K.S.A. 58–2613 et seq. Taking a different view, the district court interpreted the statutory provisions under K.S.A. 58–2613 as not providing the Board authority to do so. According to the district court, there were legal distinctions between a statutory scheme providing for adjacent landowners to vacate a county road and a procedure dealing with vacation of platted lands, streets, and easements. The district court reasoned the appropriate procedure fell under K.S.A. 68–102 because the county had designated 71st Street as a county road. We agree with the district court.
For its part, Crosswinds contends that K.S.A. 68–102 is inapplicable on its face because vacating a road under this statute occurs in very limited circumstances. Crosswinds claims “K.S.A. 58–2613 expressly governs ‘vacation,’ whereas K.S.A. 68–102 primarily addresses ‘laying out’ and ‘altering.’ “ Citing to Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 754, 189 P.3d 494 (2008), Crosswinds emphasizes the general canon of statutory construction that a reviewing court must consider various provisions of an act in pari materia to ascertain legislative intent. Crosswinds argues that subsections (a) and (b) are to be construed together, in that subsection (a) “requires a petition to vacate by ‘any adjacent landowner’ unless the BOCC deems alteration of the road ‘necessary,’ “ whereas “[s]ubsection (b) provides the substantive reasons the BOCC might vacate a road under the statute.” Crosswinds, however, fails to acknowledge that the court in Board of Sumner County Comm'rs also clarified that “when the language of a statute is plain and unambiguous, courts ‘need not resort to statutory construction.’ [Citation omitted.]” 286 Kan. at 754.
But a plain reading of K.S.A. 60–102 clearly contradicts Crosswinds' argument. Subsection (a) expressly gives an adjacent landowner the ability to petition for vacation of a road. The statute also provides authority under subsection (a) for the Board to either lay out or alter any road when necessary, or to vacate a road under subsection (b) if the road is no longer a public utility or becomes practically impassable and repairs are not justified. If it were true that the Board could only approve a petition to vacate a road under subsection (a) if the conditions under subsection (b) were present, as Crosswinds contends, the legislature would not have seen fit to include different considerations than those in subsection (b) once the Board is presented any petition to vacate a road under subsection (a). See K.S.A. 68–104; K.S.A. 68–106.
Following up, we note that K.S.A. 68–104 requires the Board to appoint three disinterested householders of the county to participate with the commissioners in a viewing of the road the petition seeks to vacate, and requires that the county clerk's office give proper notice of the viewing. Given the logic of Crosswinds' argument regarding K.S.A. 60–102, the disinterested householders and commissioners would be limited to evaluating whether the road should be vacated because of neglect or nonuse, or because it had become practically impassable. See K.S.A. 60–102(b). On the day of the viewing, however, the disinterested householders and commissioners simply consider “the utility, convenience and inconvenience, and expense which will result to individuals as well as to the public” if the road is vacated. K.S.A. 68–106. The disinterested householders and commissioners then sign a certificate stating their opinion in favor of or against the vacation of the road and the corresponding reason(s) why. See K.S.A. 68–106.
Depending on whether a landowner seeks to vacate a road or a street adjacent to his or her property, the legislature has provided two distinct statutory schemes for a Board to approve a petition for vacation. See K.S.A. 58–2613 et seq. and K.S.A. 68–102 et seq . Each statutory scheme has plain and unambiguous procedures regarding notice (K.S.A.58–2613, K.S.A.68–102a, K.S.A.68–105), the approval process (K.S.A.58–2614, K.S.A.68–104, K.S.A.68–106), and the award of damages, if any (K.S.A.68–107).
When construing statutes to determine legislative intent that is not ascertainable from the plain language, appellate courts may apply the maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another. Applying this maxim, courts may presume that when the legislature expressly includes specific items in a statutory list, it intends to exclude any items not expressly included in that list. See In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 911, 47 P.3d 1275 (2002).
Here, the legislature expressly provided that owners of platted land adjoining both sides of any “street, alley, public easement, or public reservation, or part thereof” can petition the Board for vacation under K.S.A. 58–2613. The fact that the statute contains such a list may be interpreted as showing legislative intent to exclude roads. K.S.A. 58–2613 does not include any language that makes it clear the legislature intended the list to be nonexclusive. The legal maxim expressio unius est exclusio alterius supports the City of Derby's contention that the only statutory authority for vacating a road is found in Chapter 68. See K.S.A. 60–102 and K.S.A. 68–114. Thus, the dispositive question on appeal becomes whether 71st Street is a street or a road.
Kansas draws a distinction between roads and streets. See State ex rel. v. State Highway Comm., 137 Kan. 800, 813, 22 P.2d 969 (1933), where the court held “[o]ur statutes and decisions have at all times made a distinction between streets in incorporated cities and roads or highways in the country with respect to their construction or improvement.” In the construction of Kansas statutes, the terms “highway” and “road” may be construed to be equivalent to a county road. K.S.A. 77–201Fifth. A county road for purposes of K.S.A. 68–102 is a road “designated as such by the board of county commissioners.” K.S.A. 68–101. Whenever county roads are brought within the limits and jurisdiction of the city, they are impressed with the character of streets. See McGrew v. Stewart, 51 Kan. 185, 189, 32 P. 896 (1893).
Here, the district court correctly ruled that the segment of 71st Street that Crosswinds petitioned for vacation is a county road. The City of Derby did not exercise jurisdiction over this segment, as it is approximately 2 3/4 miles outside its city limits. The district court heard testimony that the Board had designated 71st Street a county road. The land in this area was not platted. This court does not reweigh the testimony or the evidence presented. Unruh, 289 Kan. at 1195.
The Board's failure to use the required statutory authority to vacate a county road under K.S.A. 68–102 was a jurisdictional defect. The district court did not err in ruling that the Board lacked jurisdiction under K.S.A. 58–2613 to approve Crosswinds' petition for vacation. Accordingly, the district court did not err in setting aside the Board's July 21, 2010, order approving Crosswinds' petition.
We affirm the district court's ruling on this point.