Memorandum
City of Lawrence
Legal Department
TO: David L. Corliss, City Manager
Toni Ramirez Wheeler, Director of Legal
FROM: Randall F. Larkin, Staff Attorney
DATE: October 10, 2011
RE: Brief Summary of K.S.A. 75-2724 and Lawrence Cases
_____________________________________________________________
The Legal Department has been requested to provide a summary of the two City of Lawrence, Kansas, cases involving its application of the Historical Preservation Act to the English Lutheran Church at 1040 New Hampshire in the late 1980s and early 1990s. Also included is a brief overview of what the City Commission may consider under K.S.A. 75-2724.
Allen I and Allen II
Allen Realty, Inc. v. City of Lawrence, Kansas, 14 Kan. App.2d 361, 790 P.2d 948 (1990)(Allen I).
In 1976, Allen Realty, Inc., purchased the English Lutheran Church building located at 1040 New Hampshire Street. The building dated to the 1800s and had, in recent years, been used largely as a church, finally closing its doors in 1988 due to deteriorating and unsafe conditions. Allen Realty, Inc., obtained estimates to repair the building, found them to be too expensive, and applied to the City for a demolition permit. Because the English Lutheran Church is near the Douglas County Courthouse, which is a registered historic site, the State Historic Preservation Officer (SHP) was advised of the permit application.
The SHPO, after several communications with the City, eventually recommended denial of the permit on the grounds that it “would encroach upon, damage or destroy the environs of the Douglas County Courthouse.” Because of that recommendation, the City was precluded from issuing the demolition permit unless it found, after considering all relevant factors, “that there [was] no feasible and prudent alternative to the proposal and that the program include[d] all possible planning to minimize harm to such historic property resulting from such use.” K.S.A. 75-2724(a).
The City Commission considered the application for the demolition permit at its July 19, 1988, regular hearing and invited Allen Realty, Inc., to appear and show cause why the demolition permit should not, in light of the SHPO’s recommendation, be denied. After the hearing, the Commission voted 3-2 to deny the permit. Allen Realty, Inc., then brought suit against the City in district court. The district court ultimately granted the City’s motion for summary judgment and Allen Realty, Inc., appealed.
On appeal, the Kansas Court of Appeals unanimously reversed the decision of the district court. The court of appeals found that, while it had correctly placed the burden on the proponent of the demolition project, the City had erroneously required Allen Realty, Inc., to dispel various alternative plans that had been offered without any evidence that such plans were even feasible or prudent. The court of appeals remanded the case to the district court to remand the case to the City to hold a new hearing.
Thus, after Allen I, in reviewing an application that the SHPO has recommended be denied under K.S.A. 75-2724(a), the proponent of the plan must demonstrate that there is “no feasible and prudent alternative” to the proposed project and that “all possible planning has been undertaken to minimize harm to the historic property.” In showing that there is “no feasible and prudent alternative,” the proponent of a project is not obligated to refute every potential alternative, unless the potential alternative is a “relevant factor.” A potential alternative is a relevant factor if it is accompanied with sufficient factual information from which a reasonable person could conclude that such alternative was feasible and prudent.
Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan. App.2d 93, 819 P.2d 138 (1992)(Allen II).
After remand, the City placed the demolition permit on the agenda for its June 12, 1990, public meeting. The City published notice of the meeting in the newspaper on June 8, 1990, but did nothing else to give notice of the hearing.
On June 6, 1990, the president of the Lawrence Preservation Alliance, Inc. (LPA), sent a letter to the City asking it to defer consideration of the issue for 60 days in order that it might determine if it was economically feasible to rehabilitate the property. It had previously determined that it could physically rehabilitate it, but could not ascertain the cost of such an undertaking.
At the hearing, the LPA again requested that the City refer the matter to the SHPO for further recommendation and that the matter be deferred for 60 days so that the LPA could assess any information that it would receive regarding the estimated cost of rehabilitating the building. The City ignored that request.
At the end of the hearing, finding that there was no prudent and feasible alternative to demolition, the City Commission voted 3-2 to approve the demolition permit.
LPA then brought suit against Allen Realty, Inc., and the City, challenging that decision. The Kansas State Historical Society intervened and filed a petition seeking a restraining order that would prevent the issuance of the demolition permit.
On June 29, 1990, the district court granted the restraining order. Thereafter, the district court remanded the case to the City to hold a “full public hearing” with appropriate notice to all interested parties. The court found that the City had erred in not adhering to its agreement with SHPO and in ignoring the LPA’s request for additional time to assess the economic feasibility of rehabilitating the building. The City and Allen Realty, Inc., appealed that decision.
The Kansas Court of Appeals affirmed the decision of the district court. In considering the public policy of the State Historical Preservation Act, the court of appeals decided that the City had erred in failing to provide a full and fair hearing to all interested parties and in failing to give interested parties the opportunity to develop and present relevant information. It held that the City’s failure to give proper notice and its refusal to grant the continuance prevented the LPA and the Kansas State Historical Society from participating in a meaningful way and, ultimately, prevented the City from considering “all relevant factors” as required by K.S.A. 75-2724.
Current Standards
Under K.S.A. 75-2724, if the SHPO or his or her agent recommends denial of a project because it “will encroach upon, damage, or destroy” an historical site or its environs, then the governing body must conduct a hearing. At that hearing, the proponent of the project bears the burden of proving that, in consideration of all relevant factors, there is no feasible and prudent alternative to the proposed project. A potential alternative is a relevant factor only if information is presented from which a reasonable person could find that the alternative plan is feasible and prudent.
Also, in determining whether or not a feasible and prudent alternative exists, the governing body shall consider “(1) Technical issues; (2) design issues; (3) the project’s relationship to the community-wide plan, if any; and (4) economic issues.” See K.A.R. 118-3-1(e).
Other factors may also be relevant to the governing body’s determination, including the factors set forth at Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978): (1) the character of the neighborhood; (2) the zoning and uses of properties nearby; (3) the suitability of the subject property for the uses to which it has been restricted; (4) the extent to which removal of the restrictions will detrimentally affect nearby property; (5) the length of time the subject property has remained vacant; (6) the relative gain to the public health, safety, and welfare balancing the harm to the neighboring property against the hardship to landowner if the request is denied; (7) the recommendation of professional staff; and (8) conformance to the master plan.