Evans v. City of Emporia

• Citation: 44 Kan.App.2d 1066,243 P.3d 374
• Decision Date: 19 November 2010
• Docket Number: No. 103,616.,103,616.
• Parties: Jeffrey EVANS and Joanne Evans, Appellants, v. CITY OF EMPORIA, Appellee, and Westar Energy, Inc., (Intervenor), Appellee.
• Court: Kansas Court of Appeals

243 P.3d 374

44 Kan.App.2d 1066

Jeffrey EVANS and Joanne Evans, Appellants,

v.CITY OF EMPORIA, Appellee,andWestar Energy, Inc., (Intervenor), Appellee.

No. 103,616.

Court of Appeals of Kansas.

Nov. 19, 2010.

[243 P.3d 375, 44 Kan.App.2d 1066]

Syllabus by the Court

1. Zoning decisions are judged by a reasonableness standard. The appellate court, like the trial court, reviews a zoning authority's decision by a reasonableness standard based on the facts.

2. The standard of review for district courts as well as for appellate courts in zoning appeal cases is set forth and applied.

3. The factors in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), are to assist courts in reviewing whether a zoning authority's final decision was reasonable. The factors in Golden are suggested factors only—they are advisory in nature. Other factors may be important in an individual case.

4. In reviewing a governing body's decision, we are not free to make findings of fact independent of those explicitly or implicitly found by the governing body. We are limited to determining whether the governing body could have reasonably found the facts necessary to justify its decision.

5. There is a presumption that the governing body acted reasonably, and the appellate court may not substitute its judgment for that of the governing body.

6. Although strongly encouraged, a governing body is not required to make formal findings of fact concerning its decisions regulating land use. It is more important that there exists a record of what the governing body considered before making its decision so that the reviewing court is not left in a quandary as to why the decision was made.

7. K.S.A. 12-760(a) provides that within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain anaction in the district court of the county to determine the reasonableness of such final decision.

8. Allowing additional parties to circumvent the 30-day rule in K.S.A. 12-760(a) by bootstrapping onto a properly filed appeal of another aggrieved party cannot be within the legislature's contemplation of the time constraints of the statute.

C. Edward Peterson, of Kansas City, Missouri, for appellants.

Blaise Plummer, City Attorney, for appellee City of Emporia.

Martin J. Bregman, of Topeka, for appellee Westar Energy, Inc.

Before PIERRON, P.J., GREEN and MARQUARDT, JJ.

PIERRON, J.

Jeffrey and Joanne Evans appeal the district court's decision to uphold the City of Emporia's (City) granting of a conditional use permit (CUP) to Westar Energy, Inc., (Westar) to upgrade an existing electrical substation in the Evans' neighborhood. The Evans argue the court erred in finding the City was reasonable in granting the CUP with only limited restrictions; that the expansion of the substation should have required the entire station to be brought into code compliance; and the court erred in denying their petition to join additional plaintiffs. We affirm.

The facts in this case are fairly straightforward. The property owned by Westar has been used as an electric substation since 1937. Over time the property around the substation has developed and changed to mostly residential. The Evans' house wasbuilt next to the substation in 1977. The Evans purchased their house in 2004. Upon the adoption of the 1986 zoning regulations, the area including Westar's substation was zoned single family, low density residential. However, the substation was grandfathered in under the zoning regulations as a legal nonconforming use.

Westar made two relatively recent upgrades to the substation. In 1980, Westar added a transformer. In 2000, Westar brought in additional equipment. Early in 2008, Westar approached the City about adding equipment to the substation and extending the equipment coverage on the property an additional 100 feet. The Citydecided that Westar would be required to file for a CUP in order to complete the expansion.

On August 18, 2008, Westar filed an application for a CUP to expand the equipment coverage of its electric substation 100 feet and add a fourth transformer. Westar indicated that approval of the CUP would provide sufficient, reliable power for east Emporia and allow the existing substation to meet the community's growing need for power. Westar's CUP was discussed at two meetings before the Emporia Lyon County Metropolitan Planning Commission (September 23, 2008, and October 28, 2008) and three meetings before the Emporia City Commission (October 22, 2008, and November 5 and 19, 2008). Protest petitions were filed by the Evans, David and Lupe Villar, Stephen Gfeller, Juan Flores, Sara J. Kelly Trust, Bill Oswald, Erma Tucker, and Nathaniel Jones. The proceedings before the planning commission and the city commission involved lengthy and detailed discussion of the issues in this case. The protestors presented evidence and testimony in opposition to expanding the substation and focused their arguments on noise abatement, aesthetics, stray voltage, and electromagnetic fields (EMF's).

On October 28, 2008, the planning commission passed a motion to approve Westar's CUP with two conditions: (1) Westar would construct a 9-foot decorative concrete wall on the north and south sides of the property and a 9-foot chain link fence on the east and west ends of the area, and (2) any future expansions of the substation would require an amendment of the CUP. On November 19, 2008, the city commission unanimously adopted the planning commission's recommendation and granted Westar's CUP with the two suggested restrictions.

The Evans filed a petition for judicial review on December 16, 2008. They argued the city commission's approval of Westar's CUP was unreasonable. The district court conducted a full hearing on the matter allowing full argument by both sides. The court entered an extensive memorandum decision affirming the approval of Westar's CUP. The court found the record demonstrated the planning commission and the city commission balanced the interest of Westar with the interest of the surrounding owners and the interestof the community and the Evans failed to prove the unreasonableness of the City's decision. The Evans appeal.

The Evans first argue it was unreasonable for the City to grant Westar's CUP without mandating additional restrictions or modifications for noise abatement, aesthetic concerns, stray voltage, and EMF's. The Evans also contend the district court "improperly deferred to the City's shallow and flawed decision-making process and further failed to recognize errors in the zoning decision."

Zoning decisions are judged by a reasonableness standard. See K.S.A. 12-760(a). The appellate court, like the trial court, reviews a zoning board's decision by a reasonableness standard based on the facts. Rodrock Enterprises, L.P. v. City of Olathe, 28 Kan.App.2d 860, 863, 21 P.3d 598, rev. denied 271 Kan. 1037 (2001). The Kansas Supreme Court discussed the standard of review of zoning issues in McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 304-05, 49 P.3d 522 (2002):

" '(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.

" '(2) The district court's power is limited to determining

(a) the lawfulness of the action taken, and

(b) the reasonableness of such action.

" '(3) There is a presumption that the zoning authority acted reasonably.

" '(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.

" '(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.

" '(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.

" '(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.

" '(8) An appellate court must make the same review of the zoning authority's action as did the district court.' "

The McPherson case also quoted our Supreme Court in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), andBoard of County Comm'rs v. City of Olathe, 263 Kan. 667, 677, 952 P.2d 1302 (1998), listing eight factors to assist courts in reviewing whether a zoning authority's final decision was reasonable. The Golden factors to assist courts in reviewing whether a zoning authority's final decision was reasonable are:

" '(1) [t]he character of the neighborhood;

" '(2) the zoning and uses of properties nearby;

" '(3) the suitability of the subject property for the uses to which it has been restricted;

" '(4) the extent to which removal of the restrictions will detrimentally affect nearby property;

" '(5) the length of time the subject property has remained vacant as zoned;

" '(6) the gain to the public health, safety, and welfare by the possible diminution in value of the developer's property as compared to the hardship imposed on the individual landowners.

" '(7) [t]he recommendations of a permanent or professional planning staff; and

" '(8) the conformance of the requested change to the city's master or comprehensive plan.' " McPherson, 274 Kan. at 306, 49 P.3d 522.

Gump Rev. Trust v. City of Wichita, 35 Kan.App.2d 501, 131 P.3d 1268 (2006), involved the denial of a conditional use permit for the erection of a telecommunications tower. Gump demonstrates the advisory nature of the Golden criteria. In Gump, the reasonableness of the denial of the permit application was based solely on aesthetic considerations, factors not even mentioned in Golden. As stated in Board of Johnson County Comm'rs, 263 Kan. at 677, 952 P.2d 1302, the Golden criteria "are suggested factors only [they are advisory in...