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No. 103,8801

IN THE COURT OF APPEALS OF THE STATE OF KANSAS RUSSELL LEFFEL and PAULA LEFFEL, Appellants, v. CITY OF MISSION HILLS, KANSAS, and CITY OF MISSION HILLS, KANSAS, BOARD OF ZONING APPEALS, Appellees. SYLLABUS BY THE COURT 1. Judicial review of a zoning board decision is limited to determining if the zoning board acted unlawfully or unreasonably. A court does not substitute its judgment for that of the administrative body and may declare an action unreasonable only when the evidence clearly demonstrates that the action was arbitrarily taken without regard to the benefit or harm to the community at large, including all interested parties. A property owner appealing the zoning board's decision bears the burden of overcoming, by a preponderance of the evidence, a presumption that the board acted reasonably. On appeal, an appellate court applies a similar standard without according deference to the conclusions of the trial court.

2. Under Kansas law, a legal presumption exists that public officials act properly and administer acts within their authority regularly and lawfully.

3. Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial; for setting aside 1

a verdict; or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, a court must disregard all errors and defects that do not affect any party's substantial rights.

4. A determination regarding the trial court's compliance with the mandate involves questions of law over which an appellate court has unlimited review.

5. Where the mandate of an appellate court merely reverses a ruling of the trial court and remands the case for further proceedings but does not direct the judgment of the trial court, the trial court has discretion to preside over the remaining trial proceedings as if the trial court had originally made the ruling mandated by the appellate court. In other words, a trial court may address those issues necessary to the resolution of the case that were left open by the appellate court's mandate.

6. Where an appellate court has decided an issue by explicit language or necessary implication, a trial court may not reconsider the issue.

7. An appellate court must liberally construe pro se pleadings to give effect to the content rather than rely on the form or label of the pleading. Nevertheless, a pro se litigant is held to the same procedural rules as a litigant who is represented by counsel.

8. The protection of the Due Process Clause of the Fifth and Fourteen Amendments to the United States Constitution extends to quasi-judicial administrative proceedings as well as to court proceedings. 2

9. Administrative proceedings, including zoning determinations, must be fair, open, and impartial, with adequate notice of the issues and the opportunity to test, explain, or rebut evidence. A denial of due process in a zoning determination renders the resulting decision void.

10. Appellate review of a due process challenge is unlimited.

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed August 26, 2011. Affirmed.

Russell C. Leffel and Paula H. Leffel, appellants pro se.

Neil R. Shortlidge, of Stinson Morrison Hecker LLP, of Overland Park, for appellees.

Before HILL, P.J., GREEN and BRUNS, JJ.

GREEN, J.: In an appeal following a remand to the trial court, Russell and Paula Leffel challenge the trial court's decision to affirm the denial of the Leffels' application for a building permit by the City of Mission Hills Board of Zoning Appeals (BZA). The Leffels argue that the trial court applied an incorrect standard of review of the BZA's decision, that the BZA did not properly follow this court's mandate in its reconsideration of the application, and that the Leffels were denied due process in the reconsideration process. We disagree. Accordingly, we affirm.

The Leffels own a residence at 6408 Willow Lane in Mission Hills and proposed to build a new residence on a vacant lot, which they also owned, at 6400 Willow Lane. The architectural review board (ARB) approved amended construction designs on May 9, 2006, but the ARB's approval was later reversed by the BZA on July 13, 2006. 3

The Leffels appealed, and the trial court reversed the BZA decision. The trial court concluded that the BZA's reliance upon the majority of voiced public opinion about the proposed building project constituted an impermissible plebiscite. The trial court further found the BZA's implementation of its standard of comparison between the proposed building project and surrounding structures to be unreasonably contradictory, confusing, and inconsistent. Finally, the trial court believed that the BZA had employed an improper de novo review of the ARB's decision.

The City of Mission Hills appealed the trial court's decision to this court. This court affirmed the trial court's determination that the BZA had conducted an impermissible plebiscite, though acknowledging that consideration of neighboring property owners was a legitimate aspect of zoning decisions. Nevertheless, this court rejected the trial court's other grounds for reversing the BZA decision, noting the deference a court must give to the final agency action. Accordingly, this court reversed the trial court's decision in part and remanded the case to the trial court with directions to remand the case to the BZA for reconsideration of the building application in light of the appellate court's decision. Leffel v. City of Mission Hills, No. 99,336, unpublished opinion filed December 5, 2008 (Kan. App.) (Leffel I), slip op. at 4, 6-8, 11-15.

On remand, the BZA entertained suggestions regarding the procedure to be used in the reconsideration phrase. Pete Heaven, the BZA's legal counsel, indicated that the reconsideration should be accomplished by review of the record without considering additional evidence. Doug McKenna, counsel for the Leffels, objected to a reconsideration based entirely on the previous record and requested the opportunity to present additional evidence and arguments. In discussing the scope of the remand, BZA Chairman Tom Roszak expressed a desire to receive input from the ARB as to the style and design aspects of the proposed building project and suggested that the BZA adopt a definition of "surrounding structures" that is consistent with the notice provisions, i.e., an area extending 500 feet from the proposed construction site. The other BZA members 4

agreed. The BZA proposed to send the matter to the ARB for a limited consideration of the proposed project's style and design conformity with structures within a 500-foot radius of the project. Courtney Christensen, the city administrator, asked whether the ARB's review would be limited to the record, but Heaven suggested that the BZA could not dictate the procedure used by the ARB. The BZA unanimously voted to "remand this matter to the ARB for consideration of the surrounding structures in the 500-foot notice area in terms of style [and] design."

The ARB issued a letter to the parties on June 23, 2009, outlining the procedure the ARB planned to use in its review of the Leffels' proposed building project. The ARB indicated that it had received 75 photographs by city staff members of homes within 500 feet of the proposed building project and that each board member was asked to individually view the 75 homes within the "surrounding structures" area and review the plans for the proposed building project before meeting in a quasi-judicial deliberative session on June 30, 2009. The ARB indicated that it would not receive arguments, evidence, or testimony at the June 30 meeting.

The Leffels responded with a letter objecting to the proposed procedure, arguing that the ARB should merely review the evidence in the record to determine whether its previous decision was limited to a comparison of structures within 500 feet of the proposed building project.

At the June 30 meeting, the ARB proposed to consider the question directed by the BZA in quasi-judicial deliberative session. The ARB indicated that it would consider the staff photographs. The Leffels requested that the ARB permit Drew Loboda, a former ARB member, to participate in the deliberative session and proffered photographs of homes with comments by Paula Leffel. The Leffels also indicated that Jim Scovell and the architect of the project, Bob Gould, were available for questions. The ARB indicated

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that it was considering no new evidence other than the photographs provided by the city staff members and observations by board members personally visiting the area.

On July 14, 2009, the ARB adopted a resolution recommending to the BZA that the proposed building project did not conform to the style and design of the surrounding structures, as that term was defined by the BZA. In adopting its resolution, the ARB specified that it had considered the application and plans originally approved by the ARB, staff reports and minutes of ARB and BZA meetings, and photographs of all residences within a 500-foot radius of the proposed building site. In addition, each ARB member personally viewed the proposed building site and all surrounding structures within 500 feet as identified in the address list provided by the city staff.

At the next meeting of the BZA, the Leffels objected to the ARB's recommendation and urged the BZA not to consider the recommendation because the ARB went outside the evidence presented at the 2006 proceedings without providing the Leffels the opportunity to present new evidence to counter the evidence prepared by Mission Hills. The BZA considered the ARB's recommendation over the Leffels' objection and affirmed its previous denial of the Leffels' building application. The BZA's resolution provided:

"RESOLVED, that upon reconsideration of the record in this matter, this Board affirms its original decision overturning the decision of the ARB to approve the proposed house. This affirmation is on the basis that the proposed house is not in conformity with the style and design of surrounding structures, and the decision of the ARB to approve was therefore not in accordance with the law and was not supported by the evidence. This decision is irrespective of the sentiments expressed by those who made their positions known during the various hearings before the ARB and this Board in this matter."

Afterwards, the trial court heard arguments regarding the BZA's compliance with the appellate mandate and affirmed the BZA. 6

Was the Decision of the Board of Zoning Appeals Affirming the Denial of the Leffels' Building Application Lawful and Reasonable?

Judicial review of a zoning board decision is limited to determining if the zoning board acted unlawfully or unreasonably. A court does not substitute its judgment for that of the administrative body and may declare an action unreasonable only when the evidence clearly demonstrates that the action was arbitrarily taken without regard to the benefit or harm to the community at large, including all interested parties. The property owner appealing the zoning board's decision bears the burden of overcoming, by a preponderance of the evidence, a presumption that the board acted reasonably. On appeal, the appellate court applies a similar standard without according deference to the conclusions of the trial court. See Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 944-45, 218 P.3d 400 (2009).

A. Presumption of Reasonableness.

As a preliminary matter, the Leffels contend that this court should extend no deference to the BZA in this appeal. First, the Leffels contend that the trial court applied an inappropriate standard of "good faith and fair play" rather than reasonableness. While the trial court may have employed imprecise language in stating the standard of deference the Leffels were required to overcome, the trial court applied the correct standard in evaluating the Leffels' appeal from the BZA. As the Leffels concede, Kansas case law establishes a legal presumption that public officials act properly and administer acts within their authority regularly and lawfully. See Lewis v. City of South Hutchinson, 162 Kan. 104, Syl.

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