Leffel v. City of Mission Hills (Previously filed as an unpublished opinion - Published February 6, 2012)

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No. 103,880
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IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RUSSELL LEFFEL and PAULA LEFFEL,
Appellants,

v.

CITY OF MISSION HILLS, KANSAS,
and
CITY OF MISSION HILLS, KANSAS, BOARD OF ZONING APPEALS,
Appellees.

SYLLABUS BY THE COURT

1.
Judicial review of a zoning board decision is limited to determining if the zoning
board acted unlawfully or unreasonably. A court does not substitute its judgment for that
of the administrative body and may declare an action unreasonable only when the
evidence clearly demonstrates that the action was arbitrarily taken without regard to the
benefit or harm to the community at large, including all interested parties. A property
owner appealing the zoning board's decision bears the burden of overcoming, by a
preponderance of the evidence, a presumption that the board acted reasonably. On appeal,
an appellate court applies a similar standard without according deference to the
conclusions of the trial court.

2.
Under Kansas law, a legal presumption exists that public officials act properly and
administer acts within their authority regularly and lawfully.

3.
Unless justice requires otherwise, no error in admitting or excluding evidence, or
any other error by the court or a party, is ground for granting a new trial; for setting aside
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a verdict; or for vacating, modifying, or otherwise disturbing a judgment or order. At
every stage of the proceeding, a court must disregard all errors and defects that do not
affect any party's substantial rights.

4.
A determination regarding the trial court's compliance with the mandate involves
questions of law over which an appellate court has unlimited review.

5.
Where the mandate of an appellate court merely reverses a ruling of the trial court
and remands the case for further proceedings but does not direct the judgment of the trial
court, the trial court has discretion to preside over the remaining trial proceedings as if
the trial court had originally made the ruling mandated by the appellate court. In other
words, a trial court may address those issues necessary to the resolution of the case that
were left open by the appellate court's mandate.

6.
Where an appellate court has decided an issue by explicit language or necessary
implication, a trial court may not reconsider the issue.

7.
An appellate court must liberally construe pro se pleadings to give effect to the
content rather than rely on the form or label of the pleading. Nevertheless, a pro se
litigant is held to the same procedural rules as a litigant who is represented by counsel.

8.
The protection of the Due Process Clause of the Fifth and Fourteen Amendments
to the United States Constitution extends to quasi-judicial administrative proceedings as
well as to court proceedings.
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9.
Administrative proceedings, including zoning determinations, must be fair, open,
and impartial, with adequate notice of the issues and the opportunity to test, explain, or
rebut evidence. A denial of due process in a zoning determination renders the resulting
decision void.

10.
Appellate review of a due process challenge is unlimited.

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed August 26, 2011.
Affirmed.

Russell C. Leffel and Paula H. Leffel, appellants pro se.

Neil R. Shortlidge, of Stinson Morrison Hecker LLP, of Overland Park, for appellees.

Before HILL, P.J., GREEN and BRUNS, JJ.

GREEN, J.: In an appeal following a remand to the trial court, Russell and Paula
Leffel challenge the trial court's decision to affirm the denial of the Leffels' application
for a building permit by the City of Mission Hills Board of Zoning Appeals (BZA). The
Leffels argue that the trial court applied an incorrect standard of review of the BZA's
decision, that the BZA did not properly follow this court's mandate in its reconsideration
of the application, and that the Leffels were denied due process in the reconsideration
process. We disagree. Accordingly, we affirm.

The Leffels own a residence at 6408 Willow Lane in Mission Hills and proposed
to build a new residence on a vacant lot, which they also owned, at 6400 Willow Lane.
The architectural review board (ARB) approved amended construction designs on May 9,
2006, but the ARB's approval was later reversed by the BZA on July 13, 2006.
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The Leffels appealed, and the trial court reversed the BZA decision. The trial court
concluded that the BZA's reliance upon the majority of voiced public opinion about the
proposed building project constituted an impermissible plebiscite. The trial court further
found the BZA's implementation of its standard of comparison between the proposed
building project and surrounding structures to be unreasonably contradictory, confusing,
and inconsistent. Finally, the trial court believed that the BZA had employed an improper
de novo review of the ARB's decision.

The City of Mission Hills appealed the trial court's decision to this court. This
court affirmed the trial court's determination that the BZA had conducted an
impermissible plebiscite, though acknowledging that consideration of neighboring
property owners was a legitimate aspect of zoning decisions. Nevertheless, this court
rejected the trial court's other grounds for reversing the BZA decision, noting the
deference a court must give to the final agency action. Accordingly, this court reversed
the trial court's decision in part and remanded the case to the trial court with directions to
remand the case to the BZA for reconsideration of the building application in light of the
appellate court's decision. Leffel v. City of Mission Hills, No. 99,336, unpublished
opinion filed December 5, 2008 (Kan. App.) (Leffel I), slip op. at 4, 6-8, 11-15.

On remand, the BZA entertained suggestions regarding the procedure to be used in
the reconsideration phrase. Pete Heaven, the BZA's legal counsel, indicated that the
reconsideration should be accomplished by review of the record without considering
additional evidence. Doug McKenna, counsel for the Leffels, objected to a
reconsideration based entirely on the previous record and requested the opportunity to
present additional evidence and arguments. In discussing the scope of the remand, BZA
Chairman Tom Roszak expressed a desire to receive input from the ARB as to the style
and design aspects of the proposed building project and suggested that the BZA adopt a
definition of "surrounding structures" that is consistent with the notice provisions, i.e., an
area extending 500 feet from the proposed construction site. The other BZA members
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agreed. The BZA proposed to send the matter to the ARB for a limited consideration of
the proposed project's style and design conformity with structures within a 500-foot
radius of the project. Courtney Christensen, the city administrator, asked whether the
ARB's review would be limited to the record, but Heaven suggested that the BZA could
not dictate the procedure used by the ARB. The BZA unanimously voted to "remand this
matter to the ARB for consideration of the surrounding structures in the 500-foot notice
area in terms of style [and] design."

The ARB issued a letter to the parties on June 23, 2009, outlining the procedure
the ARB planned to use in its review of the Leffels' proposed building project. The ARB
indicated that it had received 75 photographs by city staff members of homes within 500
feet of the proposed building project and that each board member was asked to
individually view the 75 homes within the "surrounding structures" area and review the
plans for the proposed building project before meeting in a quasi-judicial deliberative
session on June 30, 2009. The ARB indicated that it would not receive arguments,
evidence, or testimony at the June 30 meeting.

The Leffels responded with a letter objecting to the proposed procedure, arguing
that the ARB should merely review the evidence in the record to determine whether its
previous decision was limited to a comparison of structures within 500 feet of the
proposed building project.

At the June 30 meeting, the ARB proposed to consider the question directed by the
BZA in quasi-judicial deliberative session. The ARB indicated that it would consider the
staff photographs. The Leffels requested that the ARB permit Drew Loboda, a former
ARB member, to participate in the deliberative session and proffered photographs of
homes with comments by Paula Leffel. The Leffels also indicated that Jim Scovell and
the architect of the project, Bob Gould, were available for questions. The ARB indicated
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that it was considering no new evidence other than the photographs provided by the city
staff members and observations by board members personally visiting the area.

On July 14, 2009, the ARB adopted a resolution recommending to the BZA that
the proposed building project did not conform to the style and design of the surrounding
structures, as that term was defined by the BZA. In adopting its resolution, the ARB
specified that it had considered the application and plans originally approved by the
ARB, staff reports and minutes of ARB and BZA meetings, and photographs of all
residences within a 500-foot radius of the proposed building site. In addition, each ARB
member personally viewed the proposed building site and all surrounding structures
within 500 feet as identified in the address list provided by the city staff.

At the next meeting of the BZA, the Leffels objected to the ARB's
recommendation and urged the BZA not to consider the recommendation because the
ARB went outside the evidence presented at the 2006 proceedings without providing the
Leffels the opportunity to present new evidence to counter the evidence prepared by
Mission Hills. The BZA considered the ARB's recommendation over the Leffels'
objection and affirmed its previous denial of the Leffels' building application. The BZA's
resolution provided:

"RESOLVED, that upon reconsideration of the record in this matter, this Board
affirms its original decision overturning the decision of the ARB to approve the proposed
house. This affirmation is on the basis that the proposed house is not in conformity with
the style and design of surrounding structures, and the decision of the ARB to approve
was therefore not in accordance with the law and was not supported by the evidence. This
decision is irrespective of the sentiments expressed by those who made their positions
known during the various hearings before the ARB and this Board in this matter."

Afterwards, the trial court heard arguments regarding the BZA's compliance with
the appellate mandate and affirmed the BZA.
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Was the Decision of the Board of Zoning Appeals Affirming the Denial of the Leffels'
Building Application Lawful and Reasonable?

Judicial review of a zoning board decision is limited to determining if the zoning
board acted unlawfully or unreasonably. A court does not substitute its judgment for that
of the administrative body and may declare an action unreasonable only when the
evidence clearly demonstrates that the action was arbitrarily taken without regard to the
benefit or harm to the community at large, including all interested parties. The property
owner appealing the zoning board's decision bears the burden of overcoming, by a
preponderance of the evidence, a presumption that the board acted reasonably. On appeal,
the appellate court applies a similar standard without according deference to the
conclusions of the trial court. See Zimmerman v. Board of Wabaunsee County Comm'rs,
289 Kan. 926, 944-45, 218 P.3d 400 (2009).

A. Presumption of Reasonableness.

As a preliminary matter, the Leffels contend that this court should extend no
deference to the BZA in this appeal. First, the Leffels contend that the trial court applied
an inappropriate standard of "good faith and fair play" rather than reasonableness. While
the trial court may have employed imprecise language in stating the standard of deference
the Leffels were required to overcome, the trial court applied the correct standard in
evaluating the Leffels' appeal from the BZA. As the Leffels concede, Kansas case law
establishes a legal presumption that public officials act properly and administer acts
within their authority regularly and lawfully. See Lewis v. City of South Hutchinson, 162
Kan. 104, Syl. ¶ 8, 174 P.2d 51 (1946); Manufacturing Co. v. Hayes, 98 Kan. 269, 270,
157 P. 1169 (1916). There is no principled reason to believe that a presumption of
reasonableness does not encompass a presumption that the government officials acted
fairly with good faith. The distinction attempted to be drawn by the Leffels possesses
little merit.
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Moreover, to the extent that the trial court applied the wrong presumption when
evaluating the BZA's decision, the error is harmless because this court conducts an
independent review of the BZA's conduct without deferring to the trial court's
conclusions. See Zimmerman, 289 Kan. at 944-45.

"Unless justice requires otherwise, no error in admitting or excluding evidence,
or any other error by the court or a party, is ground for granting a new trial, for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and defects that do not
affect any party's substantial rights." K.S.A. 2010 Supp. 60-261.

See also Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 238, 32 P.3d 705 (2001) (error
that does not prejudice the substantial rights of a party affords no basis for reversal and
may be disregarded).

Second, the Leffels contend that the BZA's decision in this matter should not be
accorded deference because the BZA's initial decision was adjudicated illegal by the trial
court and this court in the first appeal. Accordingly, the BZA has lost its presumption of
reasonableness.

The Leffels' argument runs counter to the limited role the courts play in zoning
decisions:

"'[C]ommunities are entitled to decide for themselves how they shall be zoned or rezoned
and that elected representatives from within the community are more likely than the
courts to be familiar with the pertinent facts and to reflect the community's will. In this
vein, appellate courts have frequently warned trial courts against substituting their
judgment for that of a community's elected representatives merely on the basis of their
differing opinion as to what is the better policy in a given instance.'" Zimmerman, 289
Kan. at 949 (quoting 3 Rathkopf, Rezonings: Validity and Review § 40.8, pp. 40-16 to
40-17).
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While the discussion in Zimmerman involved a different zoning question than the
one presented by this case, the policy rationale provided in Zimmerman is equally
applicable to the present case. The lawfulness of a zoning board's actions should be
closely scrutinized by the courts. See Owen Lumber Co. v. Chartrand, 283 Kan. 911,
915-16, 157 P.3d 1109 (2007) (an appellate court has unlimited review over questions of
law). Yet, the reasonableness of a zoning board's decision implicates fact and policy
determinations that are not the province of the courts. See Zimmerman, 289 Kan. at 947-
49.

The Leffels further attempt to argue that because the case was presented to the
BZA on documents only, the court is in as good a position as the BZA to rule on the
zoning question and, therefore, this court should not apply a presumption of
reasonableness but should review the BZA's decision for substantial competent evidence.
The Leffels' argument ignores the fact that many zoning decisions are made primarily
upon documentary evidence rather than testimony. This circumstance does not diminish
the fact that a zoning determination involves weighing facts and considering policies
inherent to the community. These reasons are the basis for judicial deference to zoning
board decisions. See Zimmerman, 289 Kan. at 947-49.

Finally, the Leffels' argument regarding the appropriate standard of deference for
review of the BZA's decision is mostly academic. The Leffels' appellate issues may be
broadly categorized into two complaints. First, the Leffels contend that the BZA's
decision did not comply with this court's mandate. Second, the Leffels argue that the
procedure used by the ARB violated due process and later tainted the entire decision-
making process on remand. Both of these claims involve questions of law over which
appellate review is unlimited. Davenport Pastures v. Board of Morris County Comm'rs,
291 Kan. 132, 139, 238 P.3d 731 (2010) (due process); State v. DuMars, 37 Kan. App. 2d
600, 603, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007) (mandate).

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B. Compliance with Mandate.

Separated by issue, the Leffels contend that the BZA violated this court's mandate
in two ways. First, the BZA authorized a "new look" at the building application rather
than reconsidering the 2006 building application with the parameters set by the Court of
Appeals. Second, the BZA failed to address the impermissible plebiscite undermining its
2006 decision.

When an appellate court has remanded a case for further proceedings, a trial court
must comply with the appellate court's mandate and may consider only the matters
essential to implementing the mandate. In a second appeal, a determination regarding the
trial court's compliance with the mandate involves questions of law over which this court
has unlimited review. DuMars, 37 Kan. App. 2d at 603. Nevertheless, absent specific
direction by the appellate court, the trial court possesses discretion in implementing the
mandate.

"Where the mandate of an appellate court merely reverses a ruling of the district
court and remands the case for further proceedings but does not direct the judgment of
the district court, the district court has discretion to preside over the remaining trial
proceedings, as if the district court had originally made the ruling mandated by the
appellate court. See Waddell v. Woods, 160 Kan. 481, 483-84, 163 P.2d 348 (1945). In
other words, a district court may address those issues necessary to the resolution of the
case that were left open by the appellate court's mandate. See Laitram Corp. v. NEC
Corp., 115 F.3d 947, 951 (Fed. Cir. 1997) (citing In re Sanford Fork & Tool Co., 160
U.S. 247, 256, 40 L. Ed. 414, 16 S. Ct. 291 [1895]; Caldwell v. Puget Sound Elec.
Apprenticeship & Training Trust, 824 F.2d 765, 767 [9th Cir. 1987])." Edwards v. State,
31 Kan. App. 2d 778, 781, 73 P.3d 772 (2003).

The rules governing appellate court mandates are a subset of judicial policy
regarding the law of the case and are designed to implement consistency and finality of
judicial rulings. See State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998); DuMars,
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37 Kan. App. 2d at 603. All questions decided in the prior appeal are settled law and will
generally not be reconsidered. Collier, 263 Kan. at 632; DuMars, 37 Kan. App. 2d at 603.
Where an appellate court has decided an issue by explicit language or necessary
implication, a trial court may not reconsider the issue. Edwards, 31 Kan. App. 2d at 781;
see also Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (refusing to allow a
trial court to entertain summary judgment on the basis of a statute of limitations defense
that was not raised in the prior appeal and was outside the specific consideration
contained in the appellate court's mandate).

Here, the remand did not require the trial court to effectuate the mandate of this
court but required the BZA to effectuate the mandate. There is no principled reason the
same rules should not apply to the BZA's reconsideration under these circumstances. The
mandate of this court in the prior appeal was broad, requiring reconsideration of the
Leffels' application for a building permit without giving undue weight to the public
sentiment surrounding the proposed structure. Leffel I, slip op. at 14-15.

1. "New Look" versus "Look Back."

The Leffels contend that the BZA violated the mandate of this court by taking a
"new look" at the application rather than a "look back" at the 2006 application. The
Leffels concede that the BZA adopted an appropriate standard of review at its May 27,
2009, meeting when the BZA proposed reconsidering the information presented during
the 2006 application process. Nevertheless, the Leffels contend that the BZA
inappropriately remanded the case to the ARB to exercise a "new look" at the
surrounding properties to provide a recommendation about the proposed construction's
conformity with the style and design of houses within 500 feet of the proposed
construction.

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To address this argument, it is necessary to review the BZA's decision in the
original zoning appeal. In reversing the ARB's decision to grant the Leffels a building
permit, the BZA relied on four considerations: (1) The ARB should have deferred to the
neighborhood input in opposition to the proposed construction; (2) the ARB failed to
provide a clear basis for its finding that the proposed construction was in conformity with
surrounding structures; (3) the ARB erroneously interpreted "surrounding structures" too
broadly to include the general municipal area; and (4) the evidence presented to the ARB
demonstrated that the proposed structure was not in conformity with surrounding
structures.

On appeal, this court extended substantial deference to the BZA in making zoning
determinations and finding reasonable the BZA's limitation to the surrounding structures
used for comparison. Leffel I, slip op. at 6-8. Accordingly, this court reversed the BZA's
denial of the Leffels' building application only because this court could not determine the
extent to which the BZA erroneously relied upon an impermissible plebiscite. Leffel I,
slip op. at 15.

After remand, the BZA concluded that the ARB should provide a recommendation
regarding the style and design conformity of the proposed construction when compared to
the surrounding structures, which the BZA interpreted to mean the structures within 500
feet of the proposed construction. Because one of BZA's objections to the ARB's initial
decision approving the Leffels' application rested on the ARB's consideration of
structures within Mission Hills instead of the "surrounding structures," it was entirely
consistent with this court's mandate for the BZA to permit the ARB to reconsider the
style and design of the proposed structure in light of the surrounding structures as defined
by the BZA. See Edwards, 31 Kan. App. 2d at 781 (permitting consideration of all issues
necessary to effectuate the mandate).

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Moreover, at the initial BZA hearing on remand, the Leffels' attorney specifically
requested the BZA to send the matter back to the ARB "for a review of the comparison
for the houses in the 500 feet radius." Implicit in the Leffels' request is a reexamination of
the evidence within the parameters set by the BZA. Though the Leffels challenge the
manner in which the ARB reconsidered the style and design of the proposed structure,
they cannot complain that the ARB's reconsideration of the application constituted a
violation of this court's mandate when they suggested the procedure. See Butler County
R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) ("A party may not invite
error and then complain of that error on appeal.").

The Leffels' attempt to draw a distinction between a "new look" procedure and a
"look back" procedure also fails for three reasons. First, on remand, the ARB's
composition was not identical to its composition the first time ARB considered the
application. Consequently, at least one of the ARB members would be required to take a
fresh look at the evidence, even if consideration of the matter had been confined to
information in the record.

Second, labeling the ARB's procedure on remand a new look as opposed to a look
back is a substantial misnomer. While the ARB did consider 75 photographs taken by
city staff and depicting the homes within 500 feet of the proposed building site and the
ARB members did conduct a personal visit to each of the homes within the 500-foot
radius area, the ARB also reviewed and considered the information presented the first
time the ARB considered the application. Based upon the amount of information
presented to this court in Leffel I, the weight of the evidence in the ARB's reconsideration
must have been old evidence, not new evidence.

Finally, due to the BZA's narrowed scope of surrounding structures used for
comparison, a fresh consideration of the evidence, whether the evidence was limited to
the information in the record or new evidence, was required to effectuate the mandate of
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this court. The mere fact that the ARB considered evidence outside the administrative
record in its consideration of the proposed structure's conformity with the style and
design of houses within 500 feet of the proposed building site does not constitute a
violation of this court's mandate.

The procedure used by the ARB and the BZA on remand did not violate this
court's mandate.

2. Impermissible Plebiscite.

The Leffels also contend that the BZA ignored the appellate mandate to consider
the extent to which the BZA's previous decision was affected by an impermissible
plebiscite.

The mandate in Leffel I required the BZA to reconsider the Leffels' application for
a building permit without giving undue weight to the opinions of neighboring
landowners. Quoting Gump Rev. Trust v. City of Wichita, 35 Kan. App. 2d 501, 511, 131
P.3d 1268 (2006), this court in Leffel I, slip op. at 3, noted that consideration of the
opinions of neighboring property owners is permissible in a zoning decision, so long as
the consideration of such opinions is relevant to establishing the existence or absence of
one of the regulatory factors governing the zoning decision. Consideration of public
opinion becomes improper when the zoning determination is based entirely upon public
sentiment. Leffel I, slip op. at 3-4.

Contrary to the Leffels' argument in this appeal, this court did not order the BZA
to consider the extent to which its decision rested upon an impermissible plebiscite.
Rather, this court directed the BZA to reconsider its decision without the influence of the
impermissible plebiscite. This was done.

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At the initial BZA meeting after remand, legal counsel for the BZA told the BZA
that it was to reconsider the application without taking into account the vote of the
neighbors. The BZA then entered a discussion of the comparison of style and design
between the proposed project and surrounding structures. The BZA sent the matter back
to the ARB for limited consideration of the style and design conformity of the proposed
building project.

There was no discussion of public opinion regarding the Leffels' application for a
building permit in the ARB proceedings. While the ARB indicated that it had reviewed
the record, nothing within its discussion or resolution indicated any reliance upon public
sentiment.

At the next BZA meeting, legal counsel for the BZA again reminded the BZA not
to consider public sentiment in arriving at its decision. The Leffels objected to the ARB's
willingness to consider the statements of Gary Gilson, the neighbor appealing the ARB's
original decision to approve the Leffels' application for a building permit. The Leffels
argued that Gilson's participation in the case was contributing to an impermissible
plebiscite. The BZA's resolution affirming its earlier decision to deny the Leffels'
application for a building permit specifically indicated that its decision was not based
upon "the sentiments expressed by those who made their positions known during the
various hearings before the ARB and this Board in this matter."

All things considered, the BZA followed this court's mandate. Moreover, BZA
made its decision regarding the Leffels' building application upon objective evidence
relating to the regulatory factors regarding the style and design of the proposed structure
without considering the opinions of the neighboring property owners.

The Leffels have failed to show that the BZA considered public sentiment in
reaching its decision on remand. Rather, the record indicates that legal counsel to the
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BZA warned the BZA of an impermissible plebiscite at each meeting so that the BZA
members were aware of this court's mandate. The absence of any discussion of public
sentiment further indicates the BZA's attempts to remove the influence of public opinion
from its deliberations. Nothing within the record contradicts the BZA's statement that it
reached its decision without considering the public opinion toward the project. It is the
Leffels' burden to establish that the action by the zoning board was unlawful or
unreasonable. See Zimmerman, 289 Kan. at 945 (noting that appellant bears the burden of
establishing unreasonableness of the zoning board's action). This record clearly does not
support the Leffels' position that the BZA violated this court's mandate in the remand
proceedings.

C. Due Process.

Next, the Leffels contend that the reconsideration procedure used by the BZA after
remand from this court violated due process. While the Leffels cite several cases
indicating that due process is required in zoning proceedings, they fail to articulate the
manner in which the ARB and the BZA violated their due process rights. The Leffels
quote their entire letter to the BZA in opposition to the ARB's recommendation, which
includes both challenges to the procedure and to the substance of the ARB's
recommendation.

Appellate courts must liberally construe pro se pleadings to give effect to the
content rather than rely on the form or label of the pleading. State v. Kelly, 291 Kan. 563,
565, 244 P.3d 639 (2010). Nevertheless, a pro se litigant is held to the same procedural
rules as a litigant who is represented by counsel. See Guillory v. State, 285 Kan. 223,
229, 170 P.3d 403 (2007). The Leffels' brief, however, provides no argument illustrating
how any of the cited challenges to the ARB's decision constituted a violation of due
process.

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In any event, we will briefly address the Leffels' due process arguments. The
Leffels raise, at most, three due process objections to the ARB reconsideration procedure:
(1) The ARB considered new evidence without permitting the Leffels an opportunity to
present additional evidence; (2) the ARB arbitrarily adopted new rules and legal
standards by which it addressed the Leffels' application for a building permit; and (3) the
ARB continued to promote an impermissible plebiscite by adopting the procedural
recommendations of Gilson.

The protection of the Due Process Clause of the Fifth and Fourteenth Amendments
to the United States Constitution extends to quasi-judicial administrative proceedings as
well as to court proceedings. See Davenport Pastures, 291 Kan. at 138-39; McPherson
Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 305, 49 P.3d 522
(2002). A denial of due process in a zoning determination renders the resulting decision
void. Administrative proceedings, including zoning determinations, must be fair, open,
and impartial, with adequate notice of the issues and the opportunity to test, explain, or
rebut evidence. McPherson Landfill, Inc., 274 Kan. at 305; Suburban Medical Center v.
Olathe Community Hosp., 226 Kan. 320, 330-31, 597 P.2d 654 (1979). Appellate review
of a due process challenge is unlimited. Davenport Pastures, 291 Kan. at 139.

1. Consideration of New Evidence.

If the first argument is broadly construed, the Leffels contend that the ARB
impermissibly considered new evidence on remand by accepting photographs by staff
members of houses within 500 feet of the proposed building site and by conducting a tour
of the neighborhood to examine the houses within 500 feet of the proposed building site,
without giving the Leffels the opportunity to challenge the evidence with competing
evidence or by presenting witnesses.

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Mission Hills contends that the Leffels were not entitled to a full hearing on
remand, citing Gump Rev. Trust, 35 Kan. App. 2d at 515. In Gump Rev. Trust, the trial
court remanded a zoning decision to the administrative board for further findings
regarding its decision. On remand, without holding a hearing, the Wichita city council
deliberated in executive session without permitting further hearing by the parties. The
council then adopted additional findings in support of its decision to deny a conditional
use permit. Based on those additional findings, the trial court affirmed the council's
action. On appeal, this court found no due process violation in the council's decision to
make additional factual findings without further hearing on remand. Gump Rev. Trust, 35
Kan. App. 2d at 515.

While factually distinguishable and therefore not controlling, Gump Rev. Trust is
instructive. As in Gump Rev. Trust, the Leffels were given the full opportunity to present
any evidence in support of their application for a building permit in the original
administrative proceedings. On remand, the BZA determined that it would entertain no
new evidence by either party. For the purpose of defining the scope of its review, the
ARB did accept photographs and an address list of the 75 homes within 500 feet of the
proposed building site, and its members visited the neighborhood of the proposed site to
view the houses on the address list. Otherwise, the ARB relied upon the evidence in the
record.

Although the Leffels have complained that the ARB did not consider photographs
with comments by Mrs. Leffel, they have not alleged that the 75 photographs taken by
the city staff misrepresented the area within 500 feet of their proposed building project by
omitting significant architectural details of the surrounding structures or omitting certain
homes. Moreover, the Leffels' challenge to ARB's refusal to consider their photographs
with comments is neutralized by the fact that each ARB member conducted a visual
inspection of all the surrounding structures within 500 feet of the proposed building site.
After all, a visual inspection is a common method of evaluating a structure.
19

Further, as far as the record on appeal demonstrates, both the photographs and the
on-site observations by the ARB members were completely uninfluenced by the parties
and were neutral with respect to the litigation. "Knowledge gained by the board through
an inspection of the premises may be used in deciding whether to grant or deny relief
sought." 83 Am. Jur. 2d, Zoning and Planning § 715, p. 603 (2003). Neither the use of the
walking tour to consider the style and design of the proposed project in the context of the
area in which it will be built nor consideration of photographs to define the area of
comparison violates principles of due process.

Finally, the Leffels have provided no indication that their proffered evidence
would have added anything new to the ARB's deliberation process. In a similar context,
our Supreme Court has affirmed an administrative procedure authorizing introduction of
only new evidence or arguments. See Houston v. Board of City Commissioners, 218 Kan.
323, 331, 543 P.2d 1010 (1975) (finding nothing objectionable in a procedure that
refused to consider evidence or arguments of the parties unless it was original).

Accordingly, the Leffels have failed to carry their burden to establish that the
procedure used by the ARB violated due process.

2. Adoption of New Rules and Definitions.

The Leffels also challenged the ARB's change of rules and definition of "style and
design." Nevertheless, the Leffels do not indicate what rules changed or how the
definition of "style and design" was modified. The ARB reviewed the Leffels' building
application for the limited purpose of determining its architectural conformity with the
structures within 500 feet of the proposed building site. This limited review was
prompted by the BZA's adoption of 500 feet as a reasonable definition of "surrounding
structures."

20

During the original discussion of the Leffels' building application, the ARB
specifically noted that the proposed structure must be "in general conformance with the
style and design of surrounding structures." Yet, the ARB broadly construed
"surrounding structures" to include homes in "the area at large." In the proceedings by the
ARB after remand from this court, the ARB clearly reconsidered the conformity of the
proposed structure's style and design with the houses within 500 feet of the proposed
building project as prescribed by the BZA. Although the ARB reached a different
conclusion after reviewing the narrowed scope of surrounding structures, the record
contains no indication that the BZA applied a different definition of style and design, as
suggested by the Leffels.

Similarly, the Leffels fail to articulate what different rules were applied in the
remand proceedings. Because these proceedings were required by remand from this
court, due process does not require an identical procedure to that used for an initial
zoning determination. See Gump Rev. Trust, 35 Kan. App. 2d at 515. The Leffels fail to
articulate the rules they believed the ARB or the BZA changed, and this court cannot
conduct a meaningful review of the claim. See Kingsley v. Kansas Dept. of Revenue, 288
Kan. 390, 395, 204 P.3d 562 (2009) (failure to brief is deemed abandonment of claim).

3. Impermissible Plebiscite.

Undue reliance upon community opinion regarding a proposed building project
might constitute a due process violation, see Leffel I, slip op. at 3-4, but, as previously
discussed, nothing in the record on appeal indicates that the ARB or the BZA was
influenced by public opinion regarding the proposed construction. Rather, the BZA
specifically stated that it did not consider public sentiment in ruling on the Leffels'
building application.

21

The Leffels contend that the BZA's consideration of Gilson's opinion concerning
the appropriate procedure to implement on remand constituted an impermissible
plebiscite. This due process argument also fails.

When the BZA initially determined to send the matter to the ARB for a
recommendation, Gilson was not present. After the ARB proposed its review procedure
in the June 23, 2009, letter, the ARB accepted comments from both parties regarding the
proper procedure. Gilson is a party to this litigation.

Clearly, the Leffels do not understand the meaning of a plebiscite. This court has
never said that a zoning board cannot consider the opinion of members of the general
public with regard to a zoning determination. In fact, in Leffel I, this court indicated that
the failure to consider public sentiment about a particular building project might be
improper. See slip op. at 3 (citing Gump Rev. Trust, 35 Kan. App. 2d at 511)
("[Neighborhood objections] remain[ ] a consideration in the ultimate decision."). An
impermissible plebiscite occurs when the zoning board relinquishes its quasi-judicial role
to adopt the public sentiment expressed by a vocal majority. Such a plebiscite is
impermissible because popular support for, or opposition to, a proposed construction
project might be based upon irrelevant environmental, financial, or personal concerns.
Leffel I, slip op. at 4. Gilson's opinion regarding the review procedures used to reconsider
the Leffels' application was not irrelevant and did not touch upon the ultimate zoning
decision. Consequently, the ARB's consideration or adoption of Gilson's recommendation
as to the procedure the ARB should use does not constitute an impermissible plebiscite or
violate due process.

Because the Leffels have failed to carry their burden to establish that the BZA's
decision was unlawful or unreasonable, we affirm.

Affirmed.
22


1
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court
granted a motion to publish pursuant to Rule 7.04 (2011 Kan. Ct. R. Annot. 57). The
published version was filed with the Clerk of the Appellate Courts on February 6, 2012.