Memorandum

City of Lawrence

City Attorney's Office

TO:	Diane Stoddard, Interim City Manager Toni R. Wheeler, City Attorney
FROM:	Randall F. Larkin, Senior Assistant City Attorney
DATE:	July 14, 2015
RE:	Protest Petition

Question Presented

Whether the City erred in rejecting as untimely the protest petition of petitioners JDS Enterprises, LLC, and Steve Schwada, regarding a proposed special use permit which would permit the construction of a telecommunications tower at 2001 Moodie Road?

Brief Answer

It is the opinion of this office that the City has correctly determined that the proposed protest petition was filed outside the fourteen-day period prescribed by City of Lawrence, Kan., Code § 20-1306(g) (Jan. 1, 2015) and that it should be rejected accordingly. The City's rationale follows.

Summary of the Facts

On June 22, 2015, the Lawrence-Douglas County Metropolitan Planning Commission conducted a hearing on an application for a special use permit to construct a telecommunications tower at 2001 Moodie Road. It should be noted that, at the hearing, no one appeared in opposition to the special use permit. At the close of the hearing, the Planning Commission deliberated and, based on the evidence presented and  City's staff's recommendations, voted unanimously to forward a recommendation of approval of the special use permit to the City Commission.

Nine days later, on July 1, 2015, planning staff received a request from a neighboring landowner asking for information regarding properties within the 200-foot protest district. On July 2, 2015, as a courtesy, planning staff e-mailed to petitioners a map showing the properties within the protest district and a spreadsheet showing the ownership of those properties. Planning staff also disclosed that the protest area encompassed approximately 617,659.09 square feet and that, to meet the 20% requirement for a valid protest petition under the City Code, petitioners would need the signatures of owners of 123,531.82 square feet of property within that district.

On July 7, 2015, petitioners filed the subject protest petition with the City Clerk. After reviewing it, Staff determined that, while it did contain the signatures of 20% of the ownership of properties within the protest district, the protest petition was filed out of time and was therefore not "valid."

On July 14, 2014, counsel for petitioners transmitted a letter to the City, arguing that the City should estopped from rejecting the protest petition as untimely -- not because it was timely, but -- because, basically, City staff had erred in calculating the square footage. Highly summarized, petitioners assert that they had enough signatures to file the protest petition on Monday, but forewent doing so because of the City's error, which they relied on and which lead them to believe that they needed more signatures. They were unable to obtain those signatures until Tuesday morning, making their protest petition untimely. However, had the City's calculations been correct, they would have known they had the correct number of signatures on Monday and would have filed a timely protest petition. Thus, they argue because they were late due to the error of City Staff, the City should be estopped from rejecting their protest petition. For the reasons set forth below, the City disagrees with that argument.

The Law

K.S.A. 12-755 authorizes cities in Kansas to enact regulations governing the issuance of special use permits. In accordance with that statute, the City has enacted City of Lawrence, Kan., Code § 20-1306 (Jan. 1, 2015). In addition to establishing procedures for obtaining a special use permit, section 290-1306 also establishes a procedure by which a person, aggrieved by the action of the Planning Commission, can file a protest petition opposing that action. In pertinent part, it provides:

(g) Protest Petition

A valid protest petition opposing a Special Use may be submitted to the City Clerk within 14 days of the conclusion of the Planning Commission's public hearing.

(1) A protest petition will be considered "valid" if it is signed by the Owner of 20% or more of:

…. (ii) the total real property within the area to be notified of the proposed Special use excluding Streets and public ways.

(2) In the case of joint Ownership, all Owners shall sign the petition. …

Id. If a valid protest petition is filed, the City Commission may only approve the special use permit by a 3/4 super-majority vote. City of Lawrence, Kan., Code § 20-1306(h)(3).

Discussion

In addition to several contingencies that may or may not have occurred, petitioner's main argument hinges on a single premise: that the City erred in calculating the square footage of the protest district because it had not excluded the Burrough's Creek Trail & Linear Park, which they characterize as a public way. City of Lawrence, Kan., Code  § 20-1306(g)(1)(ii).  As support for that argument, they cite McGrew v. Stewart, 51 Kan. 185, 32 P. 896 (1893), stating  that public ways are defined as "ways belonging to the public and not owned by corporations." Id. at 190. Then, without any support, petitioners leap to the conclusion that, because the public may use the Burrough's Creek Trail, it is, therefore, a public way and should have been excluded from the calculations. The City disagrees with that assertion.

          First, the case cited is irrelevant to the instant situation. In McGrew v. Stewart, plaintiff was challenging an assessment against his property by the municipality for the costs of sidewalks in the public way, which happened to be a street. The court referred to the street as a public way, because that was what it was before the city had been incorporated. Moreover, the quote provided by petitioners does not establish that the Burrough's Creek Trail is in anyway a public way. The full quote follows:

Our opinion is that as soon as a town or city is incorporated, the public ways, that is, ways belonging to the public and not owned by private corporations, come within the jurisdiction and control of the new public corporation, unless the statute expressly or impliedly continues the authority of the county or township officers. It is apparent that the ways must of necessity, change character and the servitude be much extended. This extension carries with it wider duties and greater liabilities, thus requiring essentially different control and care. Where there is no statute, the corporation of a city seems naturally to imply that the highways within its territorial limits become streets and, as such, subject to the control of the municipality.

Id., 51 Kan. at 190. In other words, the case establishes not that parks are public ways but that streets are public ways and when incorporated into a city become subject to the governance of that city. Thus, not only do the petitioners read the case too broadly but they conflate it further to apply to public parks.

That conclusion is bolstered by Black's Dictionary, where under the term "Public Way" it simply says "see Highway." "Highway" is defined as a free and public roadway or street; one which every person has the right to use. In popular usage, it refers to main public roads connecting towns or cities. … In a broader sense, it refers to any main route on land, water, or in the air." Thus, it is not a park. Merriam-Webster's provides a slightly broader definition, but not one broad enough to encompass a park. It states that a "public way" is any passageway (as an alley, road, highway, boulevard, turnpike) or any part thereof (as a bridge) open as of right to the public and designed for travel …" In sum, a public way is a route open to the public for travel, such as a street, alley, highway, or sidewalk, the purpose of which is to provide  a connection between two points. The Burroughs Creek Trail is a linear park open to the public, but its main purpose is not connectivity (although the City admits it could be used that way) but for recreation and amusement.

The City would note that the Kansas courts have not considered whether a park is a public way. However, in 1973, the Kansas Supreme Court did rule that a public parking lot was not a "public way" such that it would apply rules of the road to an automobile-pedestrian accident that occurred within its confines.

For those reasons, it is the opinion of this office that the Burrough's Creek Trail & Linear Park is not a public way and that City staff did not error in including it in the calculations of the protest petition.

BUT, even if it was an error to include the Burrough's Creek Trail & Linear Park in the calculations, that does not change this office's opinion regarding the rejection of the present protest petition. The rationale is that, under the circumstances of this case, the City cannot be estopped by the actions or errors of City Staff. See Goodwin v. City of Kansas City, 288 Kan. 28, 33-34, 766 P.2d 177 (1988). The fundamental rule of law in this area is that citizens are charged with knowing the City's zoning laws. Id. While the City may have provided petitioners with courtesy information, it was under no obligation to do so. Moreover, such courtesy did not relieve petitioners of their ultimate duty to know the law, to do the research, and to make their own calculations relative to the protest district. And, because that is the case, petitioners cannot establish detrimental reliance on the City's calculations. The reason for such a rule is clear: City staff does not have the authority nor can it of its own volition rewrite City law. Otherwise, a stroke of clerk's pen can undo the law.

That axiom is echoed by the following illustration. In the 1990s, the City erroneously and illegally issued to Bullwinkle's (then a cereal malt beverage tavern) a drinking establishment license for several years. After the error was discovered, the drinking establishment license was withdrawn. Bullwinkle's sued, claiming, among other things, that the City was estopped from denying it the drinking establishment license. The court disagreed, holding that the City Clerk did not have the authority to change the City's liquor laws and could not, by error, change the laws. On that basis, the court rejected Bullwinkle's estoppel argument.

Thus, even if the City's calculations were wrong -- which the City does not concede -- petitioners cannot legally claim to have relied on those calculations when it was their duty to perform the calculations themselves and to ascertain the number of signatures needed for a valid protest petition. Thus, if an error was made, the City cannot be estopped in this situation because it would illegally rewrite the law.

Conclusion

In sum, the Burrough's Creek Trail & Linear Park is not a public way and City staff did not err in including it in the protest district. Because that is the main premise of petitioner's argument, it fails. Moreover, even if inclusion of the Burrough's Creek Trail & Linear Park in the protest district was erroneous, since it was petitioners' duty and obligation to know the law and to make those calculations themselves, petitioners cannot establish that they relied on the erroneous calculations to their detriment. Therefore, they cannot establish that the City should be estopped from rejecting their protest petition as untimely.