Opinion
No. 106,448.
2012-05-11
PRICE TRANSPORTATION, INC., Appellee, v. BOARD OF ZONING APPEALS of the City of Wichita, Appellee, and Gregory Piland, Sonya Piland, Mike Patterson, and Karin Patterson, Appellants.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Robert W. Kaplan, of Klenda, Mitchell, Austerman & Zuercher, LLC, of Wichita, for appellant. Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellee Price Transportation, Inc.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Robert W. Kaplan, of Klenda, Mitchell, Austerman & Zuercher, LLC, of Wichita, for appellant. Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellee Price Transportation, Inc.
Jeff A. VanZandt, assistant city attorney, for appellee Board of Zoning Appeals of the City of Wichita.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gregory and Sonya Piland and Mike and Karin Patterson (intervenors) appeal the district court's judgment in favor of Price Transportation, Inc. (Price). The district court's judgment vacated the decision of the Board of Zoning Appeals (BZA) of the City of Wichita, Kansas, and reinstated the ruling of the zoning administrator that the occasional parking of buses for longer than 72 hours constituted a permissible accessory use under the Wichita–Sedgwick County Unified Zoning Code (UZC). For the reasons set forth herein, we affirm the district court's judgment.
Price owns property located at 4141 North Seneca, Wichita, Kansas. Price leased this property to First Student, Inc., a company which provides school bus transportation services to Unified School District No. 259. In the fall of 2010, Price exchanged letters with Kurt Schroeder, the zoning administrator for the City of Wichita, regarding the allowed uses of the property. Pursuant to the UZC, the zoning administrator has the authority to make written interpretations of the code and those interpretations may be appealed to the BZA. See UZC Art. V, Sec. V–H.1–7. One issue raised by Price concerned whether school buses could be stored on the property over the 3–month summer vacation period. Schroeder denied this request on the ground that the property was not zoned for vehicle storage, and Schroeder advised First Student and Price that they would have to seek an amendment to the community unit plan to utilize the property for such long-term bus storage. The request for bus storage over the 3–month summer vacation period is not the subject of this appeal.
In a letter dated December 1, 2010, Schroeder also addressed whether the UZC allowed First Student to occasionally park buses at the property for longer than 72 hours, the issue on appeal here. This question required clarification because the property was zoned General Commercial, which allowed the property to be used as a “parking area, commercial.” UZC Art. III, Sec. III–B.16.b. Use as a commercial parking area allows “parking,” which the UZC defines as “the temporary location of Motor Vehicles for not more than 72 consecutive hours.” UZC Art. II, Sec. II–B.10.a, c. On this point, Schroeder concluded that under the UZC, such “occasional parking of vehicles for more than 72 hours ( e.g., extended holiday weekends, scheduled teacher in-service days, semester break, spring break) would be considered as customary, appropriate and ‘incidental and subordinate’ to the allowed primary office and vehicle parking uses on the First Student project site. [Citations omitted.]”
Mike and Karin Patterson own land adjacent to the property at issue and appealed Schroeder's interpretation to the BZA, pursuant to UZC Art. V, Sec. V–A.5, which gives standing to appeal to “any owner of land within 200 feet of the property in question in the City and within 1,000 feet of the property in question in the County .” The BZA addressed the issue at its regular meeting on January 25, 2011. There were numerous appeals to the BZA by both the Pattersons and Price related to the First Student proposed bus depot; the instant case addresses only case number BZA2010–64. At the meeting, Derrick Slocum presented the planning staff report on the appeals, recommended that the interpretations and orders be affirmed, and answered questions by BZA members. Schroeder also spoke at the meeting and provided many examples of how the occasional parking of vehicles, including church buses, for longer than 72 hours is permitted as an accessory use of property under the UZC. Craig Robinson, who represented the Pattersons and four other adjacent-property owners, also spoke at the meeting. Patrick Hughes, who represented Price, spoke next, and then the BZA heard comments, opinions, and questions from several members of the community. After hearing all of the statements, the BZA reversed Schroeder's interpretation of the code, finding that it was not supported by the language in the UZC or by the evidence presented at the hearing.
On February 23, 2011, Price filed a petition in the district court asking the court to vacate the BZA's order. The BZA filed an answer to the petition, stating that its decision was reasonable and lawful. The Pattersons and two other adjacent-property owners, Gregory and Sonya Piland, filed a motion to intervene, but the district court denied the motion. After hearing oral argument on May 17, 2011, the district court vacated the BZA's reversal and reinstated Schroeder's interpretation of the UZC. The district court's journal entry of judgment stated:
“The zoning administrator's interpretation of the applicable code sections contained in his December 1, 2010 opinion letter is correct. The interpretation is correct that the occasional parking of buses on the project site for longer than 72 hours over 3 day weekends and in-service days is customary, appropriate, incidental, subordinate and an accessory use of the location that is primarily used for office and vehicle parking uses related to the running of school buses under contract with U.S.D. # 259.”
The BZA declined to appeal the district court's judgment. The Pattersons and the Pilands filed another motion to intervene, arguing that due to the BZA's decision not to appeal the judgment, they had a right to intervene in order to appeal and protect their interests. The district court granted the motion to intervene, and the intervenors timely appealed the district court's judgment.
On appeal, the intervenors argue that the district court erred in reversing the BZA's decision, claiming that parking the buses on the property for more than 72 hours is not an accessory use of the property. The intervenors base their argument on the premise that the district court found that vehicle storage was not allowed on the property and the UZC defines vehicle storage as parking a vehicle for more than 72 hours. Therefore, the intervenors assert that parking a bus for more than 72 hours cannot be an approved use of the property, primary or accessory.
Price replies that, if the court follows the intervenor's line of reasoning, there would be no need for recognition of accessory uses because all accessory uses would have to be approved primary uses. Price contends that leaving the buses unmoved over long weekends and occasional holiday breaks is an appropriate accessory use under the UZC and that it would be unreasonable to adopt the intervenors' interpretation of the UZC. The BZA also filed a brief with this court, arguing that the BZA fully considered all appropriate factors before making its decision and that the decision was reasonable and based upon substantial evidence presented at the meeting.
Although neither Price nor the intervenors raise the issue, there is a jurisdictional problem with the BZA's brief. As a party on appeal, the BZA is styled a “defendant-appellee,” yet the BZA's brief contends that the district court erred, makes arguments independent of the intervenors', and adopts the intervenors' arguments and requests that this court reverse the district court. But the BZA has not filed a notice of appeal or a notice of cross-appeal. In fact, the only reason the intervenors were permitted to appeal was because the BZA declined to appeal the district court's judgment. Without filing a cross-appeal, the BZA cannot seek to overturn the district court's decisions adverse to the BZA. See K.S.A.2011 Supp. 60–2103(h) (“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which such appellee complains, the appellee shall ... give notice of such appellee's cross-appeal”).
Moreover, the intervenors' notice of appeal does not include the BZA as an appealing party. Accordingly, because no notice of appeal was filed by the BZA, this court is without jurisdiction to consider any original arguments the BZA advances against the district court's ruling. See K.S.A.2011 Supp. 60–2103(b) (“The notice of appeal shall specify the parties taking the appeal ....”); cf. Anderson v. Scheffler, 242 Kan. 857, 860–61, 752 P.2d 667 (1988) (Supreme Court without jurisdiction to entertain argument on appeal from summary judgment by party not included in notice of appeal). Thus, we will not address the arguments the BZA has raised in this appeal. See Bartlett Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 726, 256 P.3d 867 (2011) (appellate court has duty to question jurisdiction on its own initiative).
Generally, zoning appeals are subject to review only for lawfulness and reasonableness. See Manly v. City of Shawnee, 287 Kan. 63, 75–76, 194 P.3d 1 (2008). However, the issue presented in this case is not a question of the propriety of zoning changes or the approval or denial of a permit application, but rather the arguments focus solely on the zoning administrator's and the BZA's interpretation of the UZC. Thus, Price and the intervenors agree that this court's scope of review is unlimited because this appeal presents a question of law involving the interpretation of the UZC. See Roberts v. Sedgwick County Code Enforcement, No. 91,500, 2005 WL 475233, at *2–4 (Kan.App.2005) (unpublished opinion) (whether zoning administrator correctly interpreted the UZC is a question of law subject to unlimited review).
As agreed upon by the parties in the pretrial order, the issue before the district court was: “Does the [UZC] require buses be moved every 72 hours on long weekends and holiday breaks during the school year to avoid a violation of the zoning code.” See Unruh v. Purina Mills, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009) (pretrial order determines issues on which case will be decided). Schroeder found it did not, stating:
“With regard to occasional ‘parking’ of buses on the First Student project site for longer than 72 hours—in the typical ‘parked’ bus configuration—it is my interpretation ... that occasional parking of vehicles for more than 72 hours (e.g., extended holiday weekend, scheduled teacher in-service days, semester break, spring break) would be considered as customary, appropriate and ‘incidental and subordinate’ to the allowed primary office and vehicle parking uses on the First Student project site [citations omitted].
“Such occasional ‘parking’ of vehicles for longer than 72 hours is customary for many uses first allowed in zoning districts less intense than ‘GC’ General Commercial.... Certainly, in many residential zoning districts, dwelling occupants occasionally leave operable vehicles ‘parked’ for longer than 72 hours (when the dwelling occupants are out of town, when the occupants or their visitors temporarily park RVs longer than 72 hours, etc.); this has long been considered to be customary and appropriate and ‘incidental and subordinate’ to the primary property use.”
The BZA, after holding a meeting and hearing arguments and public comments, adopted a resolution that made only the following findings: (a) “The decision made by Kurt Schroeder was not supported by the language contained in the [UZC]”; (b) “The decision of the zoning administrator as set forth by the letter of December 1, 2010 was not supported by the evidence presented at the hearing”; and (c) “The appellant has met his burden and the proof has shown that the decision was an error.” Accordingly, the BZA reversed the zoning administrator's interpretation of the UZC. The district court, in turn, reversed the BZA, finding:
“[T]he occasional parking of buses on the project site for longer than 72 hours over 3 day weekends and in-service days is customary, appropriate, incidental, subordinate and an accessory use of the location that is primarily used for office and vehicle parking uses related to the running of school buses under contract with USD # 259.”
The intervenors argue on appeal that the district court's interpretation, like Schroeder's, is “inherently contradictory.” The intervenors first note that both the district court and Schroeder found that the UZC permitted “parking” vehicles on the property. The UZC defines “parking” as “the temporary location of Motor Vehicles for not more than 72 consecutive hours.” UZC Art. II, Sec. II–B.10.a. Under the UZC, “vehicle storage yard” is defined as “the keeping outside of an enclosed Building for more than 72 consecutive hours of one or more Motor Vehicles (except Inoperable Vehicles), boats, Trailers, or unoccupied Recreational Vehicles.” UZC Art. II, Sec. II–B.14.j. The intervenors further point out that both Schroeder and the district court agreed that the UZC prohibited use of the property as a vehicle storage yard. The intervenors argue that, in light of these findings and definitions, it was inherently contradictory to determine that parking buses on the property for longer than 72 hours was permissible.
The district court determined that the occasional parking of buses on the site for longer than 72 hours is an appropriate “accessory use” of the property within the meaning of the UZC. Under the UZC, an “accessory use” is a use that (1) is subordinate to and serves a principal use; (2) is subordinate in purpose to the principal use of the property; (3) contributes to the comfort, convenience, or necessity of occupants of the principal use; and (4) is located on the same zoning lot as the principal use. UZC Art. II, Sec. II–B.1.c. The UZC further states, in the section regarding zoning district standards:
“Principal Uses specified as Permitted Uses or Conditional Uses by the District regulations of this article shall be deemed to include Accessory Uses and activities that are necessarily and customarily associated with, and appropriate, incidental and subordinate to the Principal Uses allowed in zoning Districts. Accessory Uses and activities shall be subject to the same regulations as apply to Principal Uses in each District, except as otherwise provided in these regulations (See Sec. III–D.7.e).” UZC Art. III, Sec. III–D.7.
The intervenors assert that, under this language, parking as an accessory use is subject to the same regulations as would apply if parking was the principal use of the property and that the UZC limits parking to 72 consecutive hours; if the vehicle is there longer, it is no longer parking but vehicle storage, which is not allowed on the property under the UZC. But as Price points out, this interpretation essentially renders the category “accessory use” meaningless. By definition, an accessory use constitutes an exception to the principal use of the property. If the acceptable accessory uses under the UZC are already permitted as primary uses, there is no need to categorize a use as an accessory use. In addition, the citation after the phrase “as otherwise provided in these regulations” directs the reader to a section entitled “Accessory use development and performance standards,” which provides setback, height, building separation, and parking requirements for accessory structures and accessory uses. See UZC Art. III, Sec. III–D.7.e. The fact that accessory uses have separate and distinct requirements along these lines is further proof that accessory uses and primary uses are different.
Further, as Price argues, occasionally leaving the buses unmoved on the property for more than 72 hours is an appropriate accessory use under the plain requirements of the UZC. Citing UZC Art. II, Sec. II–B.1.c, Price asserts that this occasional longer-term parking meets the four required criteria for proper accessory use and correctly notes that the intervenors do not argue that the criteria are not satisfied. Price's argument has merit. Whether a use is an accessory use under the UZC is tested by examining the relationship between that use and the principal use of the property. See UZC Art. II, Sec. II–B.1.c. Here, the principal uses of the property are operating school bus routes, maintaining office space, and vehicle parking. We will apply each of the four required criteria for an accessory use to the facts of this case to determine whether the occasional parking of buses for longer than 72 hours constituted a permissible accessory use.
First, the accessory use must be subordinate to and serve the principal use. UZC Art. II, Sec. II–B.1.c. Parking the school buses for longer than 72 hours over occasional 3–day weekends, teacher in-service days, and short holiday breaks serves the principal uses by allowing the company to leave the buses on the lot over the breaks without having to move them elsewhere or even move them within the property every 72 hours. It is also subordinate to the principal uses; the primary use would still be operating bus routes, maintaining office space, and vehicle parking for less than 72 hours. This also satisfies the second prong of the test, which is largely similar to the first, i.e., an accessory use is subordinate in purpose to the principal use. See UZC Art. II, Sec. II–B.1.c.
Third, an accessory use contributes to the comfort, convenience or necessity of occupants of the principal use. UZC Art. II, Sec. II–B.l.c. Being able to leave the buses parked for longer than 72 hours during occasional holidays contributes to the comfort and convenience of the occupants of the principal use; without this accessory use, the people undertaking the principal use would be faced with either parking the buses elsewhere over these breaks or coming to the property every 72 hours to move the buses. Either of these options would be quite inconvenient to the undertaking of operating the buses from this location. Fourth, the accessory use must be located on the same zoning lot as the principal use. UZC Art. II, Sec. II–B.1.c. Here, the uses all occur on the same property in question. Accordingly, under the plain language of UZC Art. II, Sec. II–B.l.c, the occasional parking of buses on the site for longer than 72 hours is an appropriate accessory use of the property. Schroeder specified “occasional parking” to mean extended holiday weekends, scheduled teacher in-service days, semester break, and spring break. In addition, as Price points out, another section of the UZC states:
“Commercial Uses shall include, but not be limited to, the following Accessory Uses, activities, and Structures:
....
“(8) other necessary and customary Uses determined by the Zoning Administrator to be appropriate, incidental and subordinate to the Principal Use on the Lot, subject to compliance with any development and performance standards imposed by the Zoning Administrator as a means of ensuring land use compatibility.” UZC Art. III, Sec. III–D.7.C.
Here, Schroeder found that the occasional parking of buses on the property for longer than 72 hours “would be considered as customary, appropriate and ‘incidental and subordinate’ to the allowed primary office and vehicle parking uses.” The key word is incidental. Schroeder properly determined that parking buses on the property over long weekends and short breaks in the school year was incidental to the principal use of the property; but storing buses on the property for the entire summer was not an incidental use of the property. As Schroeder indicated, this is not an isolated interpretation of the code as there are many examples of how the occasional parking of vehicles for longer than 72 hours is permitted as an accessory use of property under the UZC.
In summary, the intervenors' interpretation of the UZC renders the term “accessory use” meaningless. More importantly, the occasional longer-term parking of buses on the property meets the four required criteria for proper accessory use as defined under the UZC. For these reasons, Schroeder and the district court correctly found that the occasional parking of buses on the site for longer than 72 hours was an appropriate accessory use of the property. We conclude the district court did not err by vacating the BZA's decision and reinstating the zoning administrator's interpretation of the UZC.
Affirmed.