City of Lincoln Ctr. v. Farmway Co-Op, Inc.

• Decision Date: 20 December 2013
• Docket Number: No. 105,962.,105,962.
• Citation: 298 Kan. 540,316 P.3d 707
• Parties: CITY OF LINCOLN CENTER, Appellant, v. FARMWAY CO–OP, INC. and Farmway Storage # 1, LLC, Appellees.
• Court: Kansas Supreme Court

298 Kan. 540

316 P.3d 707

CITY OF LINCOLN CENTER, Appellant,

v.FARMWAY CO–OP, INC. and Farmway Storage # 1, LLC, Appellees.

No. 105,962.

Supreme Court of Kansas.

Dec. 20, 2013.

Syllabus by the Court

1. An appellate court's standard of review of a constitutional challenge to an ordinance is de novo. The party asserting unconstitutionality, however, has a weighty burden. This is because an appellate court has a duty to preserve the validity of an ordinance and to search for ways to uphold its constitutionality. The court must presume that the ordinance is constitutional, resolve all doubts in favor of validity, and uphold the ordinance if there is any reasonable way to construe it as constitutional; before striking the ordinance, the court must conclude that it clearly appears to be unconstitutional.

2. Although an appellate court reviews de novo a constitutional challenge to an ordinance, attacks based upon vagueness require additional considerations. First, the ordinance must convey sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. Second, the ordinance must also adequately guard against arbitrary and discriminatory enforcement.

3. As written, Lincoln Center's noise ordinance is unconstitutionally vague as applied to the defendants, Farmway Co–Op, Inc. and Farmway Storage # 1, LLC, because it lacks sufficiently objective standards to prevent its arbitrary enforcement.

4. Lincoln Center's nuisance ordinance is not unconstitutionally vague as applied to the defendants, Farmway Co–Op, Inc. and Farmway Storage # 1, LLC. The ordinance conveyed definite warning and fair notice to the defendants as to the prohibited conduct and sufficiently protected them against arbitrary and discriminatory enforcement.

Daniel D. Metz, city attorney, argued the cause and was on the briefs for appellant.

David M. Traster, of Foulston Siefkin LLP, of Wichita, argued the cause and was on the briefs for appellees.

Sandra Jacquot, of Topeka, was on the brief for amicus curiae League of Kansas Municipalities.

Brent E. Haden, of Columbia, Missouri, was on the brief for amicus curiae Kansas Cooperative Council.

Robin K. Carlson, and Daniel D. Crabtree, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, was on the brief for amicus curiae Kansas Grain & Feed Association.

The opinion of the court was delivered by NUSS, C.J.:

The City of Lincoln Center (City) cited Farmway Co–Op, Inc., and Farmway Storage # 1, LLC (together “Farmway”) for violating municipal noise and nuisance ordinances. The violations arose out of Farmway's operation of a grain elevator facility inside the city limits. After the municipal court convicted Farmway under both ordinances, the district court reversed the convictions, holding the ordinances are unconstitutionally vague. The Court of Appeals affirmed the district court. We granted the City's petition for review and have jurisdiction under K.S.A. 60–2101(b).

We agree with the district court and Court of Appeals that the City's noise ordinance is unconstitutionally vague. As applied to Farmway, it fails to protect against arbitrary enforcement. But as for the nuisance ordinance, we hold it is constitutional as applied to Farmway. So we affirm in part, reverse in part, and remand to the district court for further proceedings.

Facts

Farmway's expansion and residents' complaints

The material facts are essentially undisputed. Farmway owns and operates a grain elevator facility inside the city limits of Lincoln Center. The area immediately surrounding the facility is residential.

In December 2008, Farmway applied for a building permit to expand the facility through constructing a new grain bin plus four grain aeration fans needed for proper storing and drying of the grain. The new bin was to be 124 feet tall and 74 feet in diameter.

Later that month Farmway sent a letter to the City supporting its permit application which stated it hoped the project would “help control some dust and noise concerns for the neighborhood.” While the City granted Farmway's building permit, the approval of building permits outside of flood hazard areas has been described as “essentially automatic.”

Farmway did not conduct any formal studies to determine how the expansion would affect the surrounding areas. But it did have “discussions” with nearby residents before the project was completed. The record on appeal does not contain details about the discussions, but they apparently pertained to noise and dust that the new facility would create.

Farmway began operating its expanded facility in July 2009. According to later municipal court testimony by nearby residents, the expansion significantly increased the noise and dust levels around the facility. The residents further testified the aeration fans made noises that prevented them from sleeping, conversing, watching television, and enjoying the outdoors. One resident testified that his family was forced to leave home one night to get some sleep in a motel. According to further testimony, the expanded facility caused large clouds of grain dust that reduced visibility and aggravated respiratory problems for some residents. Residents also complained to City officials and Farmway regarding the increased noise and dust.

Farmway's remedial measures and regulatory compliance

In response to the residents' complaints, Farmway took several steps to reduce the levels of noise and dust. The month after operations began at the expanded facility, Farmway contacted the aeration fans' manufacturer, Airlanco, about the noise. Airlanco's engineering manager repaired cracking on the fans and stiffened the fans' supports. But the repairs did not reduce the noise. The following November Airlanco replaced the noisiest fan wheel. But still the facility generated noise that residents found bothersome. Later that month Farmway switched the aeration fans from automatic to manual control to prevent their running at night. Finally, in early 2010, Farmway installed sound-dampening enclosures for each fan, which solved the excessive noise issue.

As for the dust issue, the facility's evacuation system pulls dust from the grain and expels some of it into the air. Additionally, Farmway uses a tank truck for watering the roads and driveways at the facility to minimize the dust created by truck traffic. And Farmway's President and CEO Arthur Duerksen testified in municipal court that of the 23 grain elevator facilities in the Farmway system, the Lincoln Center facility produces the least amount of dust.

It is undisputed that Farmway has complied with all pertinent state and federal regulations regarding dust and noise. As a voluntary participant in the Occupational Safety and Health Administration's 12–D program, Farmway requested that the program's administrator, the Kansas Department of Labor (KDOL), send an industrial hygienist to measure noise and dust levels at the facility. In February and March 2010, KDOL measured noise and dust levels there and found the working conditions to be safe. Both of these visits occurred after Farmway had already installed the sound-dampening enclosures. Additionally, the Kansas Department of Health and Environment (KDHE) made unannounced visits to the facility in response to complaints of excessive noise and dust. KDHE visited Farmway's facility to test dust levels both before the expansion and afterward. Both times the dust levels were within regulatory limits.

The City's action against Farmway

Within a week of the last KDHE visit to test dust levels, the City cited Farmway for violating the noise ordinance, No. 643, and the nuisance ordinance, No. 633, because of the noise and dust generated by the expanded facility. After a bench trial, the municipal court found Farmway guilty of violating both ordinances, levied fines of $800, and assessed $66 in court costs against Farmway.

After Farmway's appeal to the Lincoln County District Court, it filed a motion to dismiss the charges, arguing that both the noise and nuisance ordinances are unconstitutionally vague. The district court granted dismissal, holding that both ordinances are unconstitutionally vague because they do not warn potential violators of what conduct is prohibited and also fail to adequately guard against the risk of arbitrary enforcement.

The City appealed, and the Court of Appeals affirmed the district court's dismissal. City of Lincoln Center v. Farmway Co–Op, Inc., 47 Kan.App.2d 335, 274 P.3d 680 (2012). For the panel, Judge Pierron wrote that the City's noise ordinance was unconstitutionally vague because it “does not give fair warning to those potentially subject to its reach” and “does not adequately guard against arbitrary and discriminatory enforcement.” 47 Kan.App.2d at 345–46, 274 P.3d 680. For the same reasons, he also concluded that the nuisance ordinance is unconstitutionally vague. Chief Judge Greene and Judge Marquardt simply concurred in the result. We granted the City's petition for review by this court.

Analysis

The City challenges the district court and Court of Appeals holdings that both the City's noise ordinance and nuisance ordinance are unconstitutionally vague. Our standard of review and our rules for determining impermissible vagueness are set forth below and then applied to each ordinance in turn.

Standard of review

The constitutionality of an ordinance is a question of law, which we review de novo. City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003) (citing Boyles v. City of Topeka, 271 Kan. 69, 72, 21 P.3d 974 [2001] ).

General rules

When reviewing the constitutionality of an ordinance, we must (1) presume the ordinance is constitutional; (2) resolve all doubts in favor of validating the ordinance; (3) uphold the ordinance if there is a reasonable way to do so; and (4) strike down the ordinance only if it clearly appears to be unconstitutional. Hackett, 275 Kan. at 853, 69 P.3d 621. The party...