Crumbaker v. Hunt Midwest Mining, Inc.

• Decision Date: 30 May 2003
• Docket Number: No. 88,623,88,623
• Citation: 275 Kan. 872,69 P.3d 601
• Parties: MARK CRUMBAKER, et al., Appellees, v. HUNT MIDWEST MINING, INC., HUNT MIDWEST REAL ESTATE DEVELOPMENT, INC., and THE ESTATE OF HARRY DARBY, Appellants, and CITY OF DE SOTO, KANSAS, Defendant.
• Court: Kansas Supreme Court

275 Kan. 872

69 P.3d 601

MARK CRUMBAKER, et al., Appellees, v. HUNT MIDWEST MINING, INC., HUNT MIDWEST REAL ESTATE DEVELOPMENT, INC., and THE ESTATE OF HARRY DARBY, Appellants, and CITY OF DE SOTO, KANSAS, Defendant.

No. 88,623

Supreme Court of Kansas

Opinion filed May 30, 2003.

Paul G. Schepers, of Seigfreid, Bingham, Levy, Selzer & Gee, of Kansas City, Missouri, argued the cause, and Andrea Gould McCarthy and Jane L. Williams, of the same firm, and Michael G. Norris, of Norris, Keplinger & Herman, LLC, of Overland Park, were with him on the briefs for appellants.

John M. Duggan, of Duggan, Shadwick & Doerr, P.C., of Overland Park, argued the cause, and William M. Nelson, of the same firm, was with him on the brief for appellees.

The opinion of the court was delivered by

NUSS, J.:

Mark Crumbaker and other landowners filed a declaratory judgment action seeking to invalidate the land use provisions in an Annexation Agreement (Agreement) between (1) the City of De Soto (City) on the one side and (2) Hunt Midwest Mining, Inc. (3) Hunt Midwest Real Estate Development, Inc., and (4) the Estate of Harry Darby (sometimes collectively referred to as Hunt Midwest) on the other side. The controversy centers on the Agreement provisions that allowed Hunt Midwest to maintain and actually expand its Johnson County quarry operations after annexation by the City. The district court granted summary judgment to the landowners, holding that the Agreement changed the land use without following the procedures established in the Kansas planning and zoning statutes at K.S.A. 12-741 et seq., and in the City's own zoning regulations. Since the district court held these procedures were mandatory, it invalidated the Agreement's land use provisions and ruled the annexed land retained its Johnson County agricultural zoning classification. After Hunt Midwest's appeal, we transferred this case from the Court of Appeals under K.S.A. 20-3018(c). The City is not a party to the appeal.

The central issue on appeal is whether the City had the authority to change land use via an annexation agreement and to bypass the provisions of K.S.A. 12-757, as adopted by the City in its zoning regulations. We hold the City had no such authority and affirm the district court. Our analysis requires us to examine three specific issues:

1. What was the zoning status of the quarry land upon annexation?

2. Did Hunt Midwest have a vested right to operate its quarry on the annexed land?

3. Did the Annexation Agreement provide Hunt Midwest with the right to use the quarry land?

Facts

Hunt Midwest Mining, Inc., operates a rock quarry in Johnson County, Kansas, on two adjoining tracts of land leased from Hunt Midwest Real Estate Development, Inc., and the Estate of Harry Darby (quarry land). The quarry land is outside, but contiguous with, the De Soto city limits. The appellees comprise at least 20 per cent of the total number of landowners who own property which is either located inside the city limits and within 200 feet of the quarry land, or outside the city limits and within 1,000 feet of the quarry land. Because the land was zoned agricultural by Johnson County, since January 1991 the quarry had been operating pursuant to a 10-year conditional use permit (CUP) issued by the Board of County Commissioners. While allowing quarry operations, the CUP restricted them to 377 acres of Hunt Midwest's 770-acre property.

Prior to the January 2001 expiration of the CUP, Hunt Midwest sought its renewal from Johnson County as well as assistance from the county in obtaining a new access road to the quarry. The original access road ran through the Sunflower Army Ammunition Plant, and Hunt Midwest expected the Army to terminate this easement in the near future. When the county refused to assist, Hunt Midwest turned to the City.

In August 2000, Hunt Midwest entered negotiations with the City and not only sought annexation of the quarry land but also assistance in obtaining a new access road. Together with annexation, Hunt Midwest requested rezoning of the land as an industrial district and, consistent with its Johnson County experience, the issuance of a special use permit to allow quarrying. The City considered this proposal unworkable, however, for several reasons. First, the City's zoning regulations only allowed special use permits for quarrying on land zoned "M-1 Industrial — Light District" or "M-2 Industrial — Heavy District." Second, rezoning this land to either light or heavy industrial to allow a special use permit to issue would unfortunately conflict with the City's comprehensive plan that designated future use in this area as lower to moderate density residential. Furthermore, pursuing Hunt Midwest's proposal would subject the site to all current City regulations and require two additional public hearings — one for rezoning and one for the special use permit. As a result, its city planner wrote:

"For these reasons, the City may wish to designate the use as a legal conforming use bound by the conditions set forth in the annexation agreement, thus eliminating the requirement for a special use permit. In addition, [Hunt Midwest Mining] may wish to retain the annexation property's existing County zoning. The City's zoning regulations allow the retention of the County zoning designation upon annexation. As the use of the annexation property is not proposed to change, retaining the County designation would meet the intent of this regulation. These actions would eliminate the need for rezoning, special use permit, review under the joint overlay district regulations [involving Johnson County approval], and the additional public hearings."

The City's zoning district map and its counsel's concessions confirm that Johnson County's zoning designations had been retained upon earlier annexation of properties per the City's zoning regulations. Consistent with the city planner's proposal, the City eventually sought to address the land use issue solely through the Annexation Agreement without following the procedures for rezoning and issuing a special use permit, e.g., without conducting additional public hearings.

Following negotiation of the terms of the Annexation Agreement, on September 7, 2000, Hunt Midwest submitted a consent for annexation petition to the City of De Soto, conditioned upon the City entering the Annexation Agreement. One of its terms authorized the expansion of the rock quarrying onto land not allowed to be quarried under the county's CUP. At the city council's October 5 meeting, the council adopted Resolution 593 via a 3-2 vote, which scheduled a public hearing on the proposed annexation for November 2 and which also directed that notices be sent by certified mail to all property owners located within 200 feet of the land to be annexed. On October 19, the city council passed Resolution 596 via another 3-2 vote which, among other things, requested the city planning commission to review the Agreement at its October 24 meeting and provide the council with its questions or concerns. Per the city council's instructions in the resolution, the planning commission took no evidence or information from the public during its October 24 meeting and made no recommendation to the city council on adopting the Agreement.

One week later, on October 31, Brian Doerr, as legal counsel for a neighborhood group, sent a letter to the city attorney, Patrick Reavey, expressing concerns about the procedures being used to adopt the land use provisions contained in the Annexation Agreement. In particular, Doerr considered Hunt Midwest's request to include not only a request for annexation but also a request for a special use permit. He opined that the special use permit being requested from the City differed substantially from the CUP that had been granted by the county. Among other things, it changed the location of the access road and direction of quarry traffic flow and omitted a continuous and complete reclamation process. Most importantly, it increased the mining area, which in turn reduced the buffer zone between the mining operations and the land of the adjoining owners. The neighborhood group believed that the City's course of action was inconsistent with the procedures described in the city's zoning regulations. In their view, the correct procedure required the planning commission to fully review the proposed special use permit request and make a recommendation to the city council — and not to merely entertain questions or concerns. The council would then be required to take separate votes on annexation and on the planning commission's recommendation for the special use permit.

On November 2, the city council held a public hearing regarding the annexation petition. Fourteen persons living in the neighborhood of the quarry attended and spoke against the proposed annexation and expansion of operations. Some of their complaints included high noise levels from blasting and other sources, excessive dust, past failures to reclaim and develop the land once the rock had been removed, damage to home foundations, and increased quarry truck traffic.

Two weeks later, on November 16, Doerr faxed a letter to Reavey again objecting to the procedures being used. He reiterated that the neighborhood group believed the City's zoning regulations and Kansas statutes required the city planning commission to hold a public hearing and make a recommendation to the city council on the merits of the issuance of a special use permit. Doerr added that the City zoning regulations and Kansas statutes provided that after the planning commission's recommendation, the adjoining landowners would have the opportunity to file a protest petition. If a protest petition were filed and signed by 20 per cent of the applicable landowners, the issuance of the special use permit could not be approved by the city council unless there were a ¾th majority. Doerr characterized the City's alleged failure...