Appellate Decisions

• Jurisdiction: Kansas,United States
• Citation: Vol. 82 No. 9 Pg. 37
• Pages: 37
• Publication year: 2013

Appellate Decisions No. 82 J. Kan. Bar Assn 9, 37 (2013) Kansas Bar Journal October, 2013

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SUPREME COURT

CIVIL

HISTORICAL PRESERVATION ACT AND FEASIBLE AND PRUDENT ALTERNATIVES

FRIENDS OF BETHANY PLACE INC. V CITY OF TOPEKA ET AL.

SHAWNEE DISTRICT COURT?AFFIRMED IN PART AND REVERSED IN PART, AND CASE IS REMANDED WITH INSTRUCTIONS COURT OF APPEALS ? AFFIRMED IN PART AND REVERSED IN PART NO. 100,997?AUGUST 23, 2013

FACTS: The Topeka City Council granted Grace Episcopal Cathedral and The Episcopal Diocese of Kansas Inc. (the Church) a building permit for a parking lot on Bethany Place, a registered state historic site owned by the Church, despite complaints that the construction would adversely impact that historic site. District court determined who is obligated under the Historic Preservation Act, K.S.A. 75-2715 et seq., to establish that (1) there are no feasible and prudent alternatives to the project and (2) the project program includes all possible planning to minimize harm to the historic property as required by K.S.A. 2012 Supp. 75-2724(a)(1). The Friends of Bethany Place (FOB) challenged the permit. The district court found that FOB had standing to appeal the decision to issue the permit. The district court set aside the permit and also held that the record was insufficient to support the council's findings that there were no feasible and prudent alternatives and planning had been taken to minimize the harm. The Court of Appeals agreed that the FOB had standing, but reversed the district court and held there was substantial evidence supporting the council's decision that there were no reasonable and prudent alternatives and planning had been taken to minimize the harm.

ISSUES: (1) Historical Preservation Act and (2) feasible and prudent alternatives

HELD: Court agreed that the FOB had standing. However, Court held that the governing body?in this case the council?must make the determinations of feasible and prudent alternatives, and that it failed in its statutory responsibility to obtain the information necessary to discharge its duties. Court also held that the council did not take what the case law characterizes as a "hard look" at all relevant factors that must be reviewed before authorizing a project that encroaches upon, damages, or destroys historic property. And because the proceedings below did not follow this rubric, Court reversed and remanded for a rehearing after the council makes the proper inquiries. Court also rejected and overruled the Court of Appeals' analysis in Allen Realty Inc. v. City of Lawrence, 14 Kan. App. 2d 361, 790 P.2d 948 (1990), which purported to place the burden of proof in these matters on the project's proponent.

DISSENT: Judge Lahey (District Judge, assigned) dissented and would find that the majority's substantive analysis is contrary to the plain language of the Historic Preservation Act which is to foster and promote the conservation and use of historic property for the education, inspiration, pleasure and enrichment of the citizens of Kansas.

STATUTES: K.S.A. 2-2478(c); K.S.A. 2-2511(e); K.S.A. 2-3317(d); K.S.A. 3-709(1); K.S.A. 8-2410(e); K.S.A. 2012 Supp. 8-2605(d); K.S.A. 9-1111(c)(8); K.S.A. 2012 Supp. 9-1804(e); K.S.A. 12-520c(c); K.S.A. 2012 Supp. 12-521(f); K.S.A. 12-532(f); K.S.A. 12-760(a); K.S.A. 15-126(a); K.S.A. 16a-6-108(4); K.S.A. 2012 Supp. 17-2221a(b)(3); K.S.A. 19-223; K.S.A. 19-270(b); K.S.A. 25-4185; K.S.A. 25-4331; K.S.A. 31-159(c); K.S.A. 2012 Supp. 32-1114(f); K.S.A. 36-515b(c); K.S.A. 39-7,139(c); K.S.A. 39-7,150(k); K.S.A. 40-205d; K.S.A. 44-1021(a); K.S.A. 46-292; K.S.A. 47-624(d); K.S.A. 2012 Supp. 47-1809(j); K.S.A. 55-443(f); K.S.A. 55-606(b); K.S.A. 58-3058; K.S.A. 58-4211(f); K.S.A. 602101; K.S.A. 65-6a56(d); K.S.A. 65-4211; K.S.A. 74-2438; K.S.A. 74-7028; K.S.A. 75-2715, -2716, -2720, -2724, -2727; K.S.A. 77-631(a); K.S.A. 2012 Supp. 82a-302(a); K.S.A. 2012 Supp. 82a-737(f); K.S.A. 82a-1216(d); and K.S.A. 83-502(e)

Criminal

STATE V. BRIDGES

WYANDOTTE DISTRICT COURT - AFFIRMED COURT OF APPEALS - AFFIRMED

NO. 101,222 ? AUGUST 9, 2013

FACTS: Bridges' fiancee was killed when the house she and Bridges were living in exploded because the valve on an uncapped gasline on the water heater had been left on. The house exploded when Bridges' fiancee lit a cigarette. Bridges was at work. A jury convicted Bridges of unintentional reckless second-degree murder. The Court of Appeals affirmed Bridges' conviction.

ISSUES: (1) Expert testimony, (2) motion to suppress, (3) witness comment on Bridges' credibility, (4) prosecutorial misconduct, (5) cumulative error, (6) identical offense sentencing doctrine, and (7) BIDS application fee

HELD: Court held the district court did not err in granting the state's motion in limine to exclude evidence related to Bridges' depression and also evidence of possible insurance proceeds. Court held the evidence of depression was not probative of whether he negligently installed the water heater and Court was unable to determine from Bridges' references to the record that he personally knew before the explosion that he would actually receive anything less than the full amount of the proceeds. Court held the district court correctly denied Bridges' motion to suppress his three statements to investigators. Court stated that he was properly Mirandized on two of the occasions and the third statement was not during a custodial interrogation. Court found that Bridges did not object to the witnesses that allegedly commented on his credibility and the issue would not be considered on appeal. Court found the prosecutor's comments during closing argument were either within the wide latitude given prosecutors or fair comment on the evidence. Court found no cumulative error. Court found the identical offense sentencing doctrine does not apply because involuntary manslaughter is a lesser included offense of reckless second-degree murder. Court continued to reject the argument that a district court's order to pay a fee to apply for a defense from BIDS is unconstitutional.

STATUTES: K.S.A. 20-3018; K.S.A. 21-3107(2), -3402(b), -3404(b), -3436, -3523; K.S.A. 22-3212(g), -3219, -3220; and K.S.A. 60-261, -401, -404, -4019(b)

STATE V CRUZ

SEDGWICK DISTRICT COURT?AFFIRMED

NO. 104,847?AUGUST 9, 2013

FACTS: The district court granted the state's motion to consolidate two homicide cases against Cruz, one involving a murder in a nightclub parking lot in August 2008 and the other involving a murder in a strip club parking lot in March 2007. Following the consolidated jury trial, the jury convicted Cruz of first-degree murder and criminal possession of a firearm for the 2008 incident but acquitted him of the first-degree murder, aggravated battery...