NOT DESIGNATED FOR PUBLICATION
No. 124,455
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KHOSROW SADEGHIAN and KAMY REAL ESTATE TRUST,
Appellants,
v.
CITY OF NORTON,
Appellee.
MEMORANDUM OPINION
Appeal from Norton District Court; PRESTON PRATT, judge. Opinion filed August 19, 2022.
Affirmed.
Charles A. Peckham, of Brown, Creighton & Peckham, of Atwood, for appellants.
Karen L. Griffiths, of Sebelius & Griffiths, LLP, of Norton, for appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Owners of a fire damaged duplex were ordered by the City of
Norton to demolish their duplex "down to the concrete slab." Objecting to the complete
demolition of their duplex, the owners sought judicial review. Denied relief by the district
court, the owners appeal, claiming the City acted arbitrarily and capriciously and
exceeded its authority. Claiming late notice, they also allege due process violations by the
City and the district court. Because the structure, ruined by fire, was dangerous, the City
acted within its authority and was not arbitrary or capricious in ordering its complete
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demolition. Our review of the record disclosed no due process violations by either the
City or the district court. We affirm.
The City takes action on a dangerous structure.
Khosrow Sadeghian and Kamy Real Estate Trust own a duplex in Norton that was
damaged in a fire on July 9, 2020. In December 2020 the City code inspector, Jerry Wolf,
sent the property owners a notice and order of dangerous building. The document laid out
the damage to the duplex and instructed the owners that they must begin either repairs or
demolition of the duplex within 30 days. It also said the owners may appeal the notice
and order to the Norton City Council within 30 days from the date of service of the notice
and order.
The property owners applied for and received a permit to demolish the duplex in
January 2021. The permit was valid for 30 days. By March 2021 the duplex was still not
repaired or demolished. Wolf wrote the mayor and city council and requested that the
City proceed with a resolution finding that the property owners must complete the
demolition and set the issue for a hearing.
The city council hearing was scheduled for May 5, 2021. The owners were sent
notice of the hearing and it was published in the local newspaper. The hearing was held
before the governing body of the City of Norton on May 5. The city code enforcement
officer presented evidence about the damage to the duplex:
• it was dangerous, unsafe, and unfit for human use;
• extensive fire damage had destroyed the walls, carport, and roof;
• the roof had been partially taken down; and
• wiring, plumbing, and HVAC were destroyed by heat and smoke.
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Building code inspector Wolf displayed pictures of the damaged duplex. Wolf's
report explained that there was evidence of issues with the duplex before the fire,
specifically: dry rot, missing shingles, and dilapidated siding and paint. He explained that
the biggest issue was char and soot damage—a health hazard. Wolf contended that the
structure needed to be replaced in its entirety, but it would not collapse.
Hildorf Truginm and Brenda Arnold appeared at the hearing as agents of the
owners. Truginm said they started demolishing the duplex two weeks prior and planned
to take the duplex down to its concrete bones and restore it. Wolf stated that the structure
could be restored if the property owners had the money to do it. Truginm said he believed
it could be taken down to the concrete bones within the next 30 days. He said the
property owners had already removed some debris. Truginm and Arnold agreed that they
let the 30-day limit pass on their demolition permit without starting work and had not
applied for a permit extension.
The Norton city attorney expressed concern that the property owners had a history
of not following through with repairs in Norton and Eastern Kansas. But she did not
present evidence on this point. The governing body then voted to adopt Resolution 10-
2021, finding the structure to be unsafe, dangerous, and unfit and should be demolished
in the next 30 days.
In the resolution, the City ordered the owners to demolish the duplex down to the
cement slab and remove the structure from the property within 30 days of May 5, 2021. It
said that if they failed to meet that time frame, the structure would be demolished and
removed. The resolution also provided that they could petition Norton County District
Court for an injunction within 30 days. A copy of the resolution was not delivered to the
property owners until June 1, 2021.
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The owners seek relief in the district court.
The owners sought a district court injunction. In August 2021 the district court
denied their appeal. The court's order depended solely on the record of the proceedings
before the city council. The court held that if it were to receive additional evidence, it was
limited to recreating the evidence presented to the City. The court found that other
evidence was unnecessary because the owners filed copies of the pertinent proceedings.
The court noted that its scope of review was limited to determining whether the
City's order: (1) was within the scope of the City's authority; (2) was substantially
supported by the evidence; and (3) was fraudulent, arbitrary, or capricious.
The district court found that the City acted within its legal authority on unsafe
structures under K.S.A. 12-1750. It found that the City's decision to demolish the duplex
was substantially supported by the evidence. The court also held that the City's decision
to demolish the duplex was not arbitrary and capricious considering the disrepair of the
property before the fire and the lack of progress to clean up the property in the 10 months
after the fire.
The property owners appeal, making two arguments:
(1) The city council acted arbitrarily or capriciously in ordering the demolition of
the duplex, its decision was not substantially supported by the evidence, and it acted
outside the scope of its authority; and (2) they were deprived of due process of law in
both the city council hearing and the district court appeal.
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We are in the same position as the district court.
Our statute, K.S.A. 60-2101(d), permits an appeal to the district court from any
"judgment rendered or final order made by a political or taxing subdivision, or any
agency thereof, exercising judicial or quasi-judicial functions." Thus, the district court
had the authority to review the City's actions here.
That review, though, is limited by law. Judicial review of judicial or quasi-judicial
functions is confined to three determinations: (1) whether the government body acted
within the scope of its authority; (2) whether the decision was substantially supported by
the evidence; and (3) whether the decision was fraudulent, arbitrary, or capricious.
Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1129, 307 P.3d 1255 (2013).
After that, when we review on appeal the holdings of a district court on cases such
as this, we apply this standard as though the decision had been appealed directly to the
appellate court. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291
Kan. 266, 270, 241 P.3d 15 (2010). Thus, we will analyze this record as if the matter was
appealed directly to us.
Did the City exceed its authority?
We have no doubt that the City had the authority to order the demolition of a
dangerous structure within its city limits according to K.S.A. 12-1753. The heart of the
statute provides directions for a city dealing with dangerous structures:
"Such resolution shall be published once in the official city paper and a copy mailed to
the owners, agents, lienholders of record and occupants in the same manner provided for
the notice of hearing. The resolution shall fix a reasonable time within which the repair or
removal of such structure shall be commenced and a statement that if the owner of such
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structure fails to commence the repair or removal of such structure within the time stated
or fails to diligently prosecute the same until the work is completed, the governing body
will cause the structure to be repaired or razed and removed in the case of unsafe or
dangerous structures or rehabilitated in the case of abandoned property." K.S.A. 12-1753.
The record reveals that is essentially what happened here. The City resolved that a
dangerous structure had to be removed within 30 days. We will not substitute our
judgment for that of a city government who is required by law to consider the safety of
all the people within the city limits. The City has the discretion to determine how long a
dangerous structure should remain.
But the owners argue there is no grant of authority in that statute or in Norton City
Code 4-407 (2020) to require that all the work be done within a specific time. Thus, the
City exceeded its authority to require the work to be done within 30 days.
We cannot agree. We note that the district court found that the City was acting
within the scope of its authority under K.S.A. 12-1753. The law also directs that if the
owners fail to diligently prosecute the demolition until it is completed, the city can step in
and remove the dangerous structure. The longer that a dangerous structure is allowed to
exist, the greater is the danger that someone could be hurt or killed by that structure. The
statute speaks of diligence in the removal of unsafe structures and a 30-day completion
period does not appear to be unreasonable under these facts.
The statute does not prevent the City from setting a completion date. After all, we
are dealing with dangerous structures and a City must be able to enforce its safety rules.
We cannot hold that the City exceeded its authority by setting such a limit.
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Were the City's actions arbitrary or capricious?
The owners' argument is essentially the same here. They contend that the City has
shown no good reason for ordering the demolition to be completed within 30 days of
May 5. There is substantially more work to do than taking the structure down to concrete
walls. They admit that their agent said the structure could be taken down to the concrete
walls in 30 days, but they argue there is no testimony that removing the concrete walls
and taking the structure down to its foundation could reasonably be done in 30 days. The
owners submit that action—setting a 30-day limit— is arbitrary and capricious.
In caselaw addressing the governing bodies of cities, the law prohibits arbitrary
and capricious actions. Arbitrary and capricious acts are terms often used together,
meaning "a determination made without consideration of or regard for facts,
circumstances, fixed rules, or procedures." Black's Law Dictionary 129 (11th ed. 2019).
We are unpersuaded by the owners' arguments. It was not arbitrary and capricious
for the City to order the property owners to demolish the duplex within 30 days. While
they requested to restore the structure from its concrete bones and Wolf admitted it could
be done, the governing body heard substantial evidence of the damage and health hazards
in the building. Wolf also stated that the structure needed replaced in its entirety.
At the hearing, the property owners' agents told the governing body that the work
they planned to do—remove everything from the structure except the concrete bones—
could be done within 30 days. It was not unreasonable for the City to expect them to
remove the concrete bones as well. As the City also points out, the demolition permits are
only valid for 30 days under Norton City Code 4-107, so demolition is generally expected
to be completed in that time frame.
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We do not intend to substitute our judgment for the City's judgment on the extent
of demolition needed or how long it will take to reasonably accomplish this task. We also
understand that once the work is commenced, extensions of the demolition permit can be
granted.
The owners also argue that the City failed to follow the law in two respects and
those failures are arbitrary and capricious. See Lawrence Preservation Alliance, Inc. v.
Allen Realty, Inc., 16 Kan. App. 2d 93, 102-03, 819 P.2d 138 (1991).
First, the property owners note that Resolution 10-2021 does not contain the
requirement of "a statement that if the owner of such structure fails to commence the
repair or removal of such structure within the time stated or fails to diligently prosecute
the same until the work is completed, the governing body will cause the structure to be
repaired or razed and removed." Norton City Code 4-407.
But Resolution 10-2021 does in fact contain a provision stating
"[t]hat if the landowner or agent, fails to meet these timeframes set forth herein, and fails
to remove said structure and make such property safe, the governing body orders that the
structure be vacated and closed; that the structure shall be razed, demolished and
removed; and that the property be made safe."
We see no failure by the City to follow the statute here.
Second, the owners argue that the City failed to follow K.S.A. 12-1753 and
Norton City Code 4-407 when sending them a copy of Resolution 10-2021. The
resolution required the city clerk to mail a copy of the resolution to the property owners
by certified, restricted mail within three days of publication. Publication was made on
May 12, 2021.
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The record does not show when the resolution was mailed, but the owners did not
receive it until June 1. The property owners argue that receiving the resolution only three
days before the deadline to finish demolition is not reasonable and the City failed to
follow the statute and City code provision.
The City responds that the resolution was mailed to the property owners as
required by law. The City asserts it has no control over how long a certified letter takes to
reach a party or at what point the party might pick up and sign for the mail. The City also
notes that the property owners received notice of the resolution because their agents were
present at the hearing on May 5.
We cannot determine from the record whether the City complied with its own
resolution and mailed a copy to the owners within three days of publication. Nowhere in
the record does it show when it was mailed. That the owners did not receive the
resolution until June 1 does not necessarily mean the City did not timely mail it. Under
Supreme Court Rule 6.02(a)(4) (2022 Kan. S. Ct. R. at 35), when facts are necessary to
an argument, the record must supply those facts, and a party relying on those facts must
provide an appellate court with a citation to the record where the facts can be verified.
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, Syl. ¶ 3, 294 P.3d 287
(2013). The owners have not done so here.
The City did not arbitrarily or capriciously fail to give notice to the owners.
We see no due process violations by the City.
The owners argue the city council did not give reasonable notice of the resolution
ordering the demolition of the duplex because they only received the resolution three
days before its deadline to finish demolition. In response, the City argues that the owners
were given reasonable notice of the resolution ordering demolition of the duplex because
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their agents were at the hearing and testified when the governing body moved to order
demolition of the property within 30 days. The City also mailed a copy of the resolution
to the owners following its publication.
The owners' argument rests on the date they received a copy of the resolution, but
there is no information in the record on appeal showing when it was mailed. All the
record shows is that it was mailed after publication on May 14 and the owners received it
on June 1. No matter when the resolution was mailed, the owners received notice that
was reasonably calculated under the circumstances.
The property owners were not denied due process at the city council level because
the City provided notice that was reasonably calculated under the circumstances to tell
them about the pendency of the action and allow them to object.
The essential elements of due process of law are notice and an opportunity to be
heard at a meaningful time and meaningful manner. "Due process is flexible and calls for
such procedural protections as the particular situation demands." In re Care & Treatment
of Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016) (quoting Morrissey v. Brewer, 408
U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 [1972]). To satisfy due process, notice
must be reasonably calculated under the circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to object. Nguyen v. IBP, Inc., 266
Kan. 580, 587, 972 P.2d 747 (1999).
The owners had notice and a reasonable opportunity to be heard.
We see no due process violation by the district court.
The owners argue they were denied due process in the district court because the
court did not give notice that it was making its decision based solely on the record rather
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than allowing for arguments. They assert that the district court's failure to hold a hearing
or give notice deprived them of due process.
The City argues that it is clear a trial de novo was not required under K.S.A. 60-
2101(d), which governs appeals from judgments of political or taxing subdivisions
exercising judicial or quasi-judicial functions: "The clerk shall thereupon docket the
same as an action in the district court, which court shall then proceed to review the same,
either with or without additional pleadings and evidence, and enter such order or
judgment as justice shall require."
The City asserts that reviewing a case on the record is what the statute
contemplates, and it prevents the district court from conducting a trial de novo. It states
that the owners' only interest was in presenting additional evidence to the district court,
which is not the purpose of an administrative appeal.
In denying the owners' appeal based solely on the record, the district court cited
Ernatt v. City of Wichita, No. 120,908, 2020 WL 6685316 (Kan. App. 2020)
(unpublished opinion). Ernatt explained that K.S.A. 60-2101(d) gives a district court
discretion to hold an evidentiary hearing where parties can recreate evidence presented
before the political subdivision to determine whether its decision was within the scope of
its authority, was supported by substantial evidence, or was arbitrary or capricious. 2020
WL 6685316, at *6; see Denning v. Johnson County Sheriff's Civil Service Bd., 299 Kan.
1070, 1075, 329 P.3d 440 (2014).
The decision in Ernatt was based on Davenport Pasture, LP v. Board of Morris
County Comm'rs, 31 Kan. App. 2d 217, 62 P.3d 699 (2003), in which a panel of this
court found that the district court exceeded its authority under K.S.A. 60-2101(d) by
receiving evidence and making an independent judgment on the merits of issues not
addressed by the board of commissioners.
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Here, the district court found it was unnecessary to hold an evidentiary hearing
because the owners provided all the pertinent documents in the record. The district court
had all the information necessary to reach a decision and could not have accepted
additional evidence.
Based on Ernatt, the owners here were not denied due process by the district court
because the court based its decision on the record. K.S.A. 60-2101(d) says the district
court can proceed with or without additional evidence or proceedings. Kansas courts have
held that district courts have exceeded their authority under the statute by accepting
evidence. See Ernatt, 2020 WL 6685316, at *6; Davenport Pasture, LP, 31 Kan. App. 2d
at 217. The district court based its decision on a thorough record from the city council
hearing that the property owners provided, and its review was limited to whether the City
exceeded its authority, had sufficient evidence, or acted fraudulently, arbitrarily, or
capriciously.
The property owners' due process rights were not violated by the district court.
Affirmed.
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