TOPEKA--The Supreme Court today sent a dispute over the Grace Episcopal Church’s proposed parking lot next to Bethany Place back to the City of Topeka for further study about the impact the parking lot would have on the registered state historic site, which is adjacent to the cathedral and Topeka High School.
The justices said in a 6-1 decision filed this morning that the City failed to take what state and federal caselaw characterizes as a “hard look” at all the relevant factors that must be reviewed before authorizing a project that “encroaches upon, damages, or destroys historic property.” The controversy arose when an ad hoc community group called Friends of Bethany Place organized to protest the parking lot project, arguing there were reasonable alternatives that minimize harm to the green space, save several historic trees, and otherwise protect aesthetics and surrounding property values.
Writing for the Court’s majority, Justice Dan Biles said the citizen’s group had legal standing under the state’s Historic Preservation Act to challenge the project in court because some Friends of Bethany Place members live within 500 feet of Bethany Place and had claimed construction would harm their property. He said the law contemplated that residents and property owners in close proximity to historic sites could have a protectable interest and noted the law itself declared it was the public policy of Kansas and in the public interest “to engage in a comprehensive program of historic preservation and to foster and promote the conservation and use of historic property for education, inspiration, pleasure and enrichment of the citizens of Kansas.”
“In this way, the legislature has expressed the significance to be given these protections for our state’s historic locations,” Biles wrote. “Our reading of the statute in this fashion to hold that standing exists for these individuals follows the statutory language, is consistent with our caselaw, and promotes the Act’s stated purposes.”
After determining the Friends of Bethany Place had standing to challenge the City Council’s issuance of a building permit for the parking lot, the Court then reviewed the decision making and determined it fell “far short” under Kansas law. The Court held the Council had the statutory obligation to determine whether there were feasible alternatives to the parking lot project, and that there had been all possible planning to minimize harm to the historic site. The Court noted it had decided in 1997 to use a “hard look” test when deciding whether a governing body complied with its obligations under the state Historic Preservation Act and should continue to use it. The Court said this test reflected “both the deference owed to the governing body’s decision and the requirement that the governing body set forth sufficient alternatives and use common sense when deciding to approve a proposed project.”
The Court said, “the Council’s failure to adequately perform its investigatory role to identify what feasible and prudent alternatives exist and what planning was or could be done to minimize harm to Bethany Place makes the Council’s determination arbitrary and capricious. It did not take into account the applicable law and the principles underlying the law.”
A dissent in the case was filed by Sedgwick County District Judge Timothy G. Lahey, who had been assigned to hear the matter in place of Chief Justice Lawton R. Nuss, who recused. Judge Lahey would have found that Friends of Bethany Place lacked standing to file the suit, that the majority should not have applied the “hard look” test because it is derived from federal environmental law, and that the majority’s analysis is contrary to the state’s Historic Preservation Act.
The case will now be remanded to Shawnee County District Court with directions to send the project back to the Topeka governing body with instructions to conduct another hearing after the necessary information is submitted to establish that no feasible and prudent alternatives exist and that all possible planning has been done to minimize harm to the historic property.