Neis v. Bd. of Cnty. Comm'rs of Douglas Cnty.
| Decision Date | 18 January 2013 |
| Docket Number | No. 106,513.,106,513. |
| Citation | 293 P.3d 168 |
| Parties | Arthur V. NEIS, et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Kansas, Appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Deron Anliker, of Duggan, Shadwick, Doerr & Kurlbaum, of Overland Park, and Adra E. Burks, of Lawrence, for appellant Arthur V. Neis.
Evan H. Ice and John T. Bullock, of Stevens & Brand, L.L.P., of Lawrence, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
This appeal is the latest chapter in a 10–year controversy involving the expected future usage of a limestone quarry in Douglas County.
For more than 40 years, N.R. Hamm Quarry, Inc. (Hamm) has operated the Petefish Quarry in southeast Douglas County. As the quarry's limestone reserves approached depletion in 2002, Hamm wished to extend its operations onto adjoining property that it leases.
Current zoning regulations require Hamm to obtain a conditional use permit (CUP) in order to do so. Hamm filed an application to obtain the required permit. Neighbors, including appellant Arthur Neis, opposed Hamm's application for the CUP out of concern for the effect the extended quarry operation would have on their nearby properties. After several hearings and with considerable changes to the application, the Board of Douglas County Commissioners (Board) unanimously approved the CUP subject to extensive conditions and restrictions on use.
Neis filed suit in district court to challenge the Board's decision. He alleged that the Board's decision was illegal and unreasonable, that it resulted in an unconstitutional taking of a portion of his property, and that he was denied equal protection of the law.
The district court ultimately found the Board had acted lawfully and reasonably in approving the CUP with all the conditions and restrictions. The court also granted the Board's summary judgment motion requesting denial of Neis' equal protection and takings claims holding they were not ripe, and even if they were, Neis had failed to come forward with necessary evidence to support the essential elements of those claims. Each of these separate decisions is before our court in Neis' appeal.
While we are confident the parties are familiar with the extensive record in this case, it is necessary for us to recite the factual and procedural history in order to provide understanding for the specific arguments which the parties raise.
Hamm applied for a CUP to expand its limestone quarry
This case began with an application for a CUP filed by Hamm on December 2, 2002, with the Lawrence–Douglas County Metropolitan Planning Commission. Hamm has for more than 40 years operated the Petefish Quarry on property it owns southeast of Eudora. Because that quarry was almost depleted of limestone, Hamm sought the CUP in order to extend its quarry operations onto an abutting 129 acres of property it leases from Katherine Neis. Zoning regulations promulgated since the establishment of the Petefish Quarry require the CUP for such an extension.
Hamm's application for the CUP met with opposition from neighbors, including Neis, who owns 140 acres of land abutting the property at issue, which Neis' tenant uses as cropland and pasture for his livestock. In response to concerns raised by neighbors and the Lawrence–Douglas County Planning Commission's planning staff (staff) who were responsible for examining the CUP application, Hamm submitted a revised plan of operation and reclamation plan during the review process. Staff ultimately recommended that the CUP be granted subject to numerous proposed restrictions on use, which staff noted were intended to prevent any adverse effect on the public health, safety, and welfare and to mitigate certain detrimental effect that approval of the CUP would have on neighboring properties—all factors that must be taken into consideration under Douglas County zoning regulations that govern CUPs.
The Lawrence–Douglas County Planning Commission recommended granting the CUP
On February 26, 2003, both the Lawrence–Douglas County Planning Commission and the City of Eudora Planning Commission conducted a joint public hearing on Hamm's CUP application which was required because the property at issue was located within 3 miles of Eudora's city limits. The planning commissions received comments from staff, Hamm's counsel, and opponents of the CUP.
The two planning commissions reached different decisions. The Eudora Planning Commission unanimously voted to deny the request. The Lawrence–Douglas County Planning Commission, on the other hand, unanimously voted to approve the CUP subject to extensive conditions and restrictions of use. As required by the zoning regulations, that commission then forwarded its recommendation for approval to the Board. The subsequent filing of valid protest petitions by some of the objecting neighbors triggered a requirement for unanimous Board approval of the CUP.
The Board ultimately granted the CUP subject to extensive conditions and restrictions as to usage
The Board held hearings on three separate occasions to consider the CUP: May 21, 2003, July 2, 2003, and July 9, 2003. Two individuals familiar with quarry operations appeared with Hamm's counsel at the first two hearings before the Board in order to answer specific questions or concerns that had been voiced by neighbors or the Board about the anticipated impact of the expanded quarry operations on surrounding properties. David Dressier, who is an independent contractor responsible for preblast surveying and measuring potential and actual blasting impacts of quarry operations, addressed concerns voiced about blasting impacts on surrounding water sources, properties, and utilities. Kent Kringham, who is Hamm's safety supervisor and also works with blasting at the Petefish Quarry, addressed concerns voiced about the storage of explosives on site.
At the close of the May 21, 2003, meeting, the Board unanimously voted to approve the CUP, conditioned upon its approval of revisions to the conditions and restrictions on use recommended by staff. Those revisions came before the Board for consideration at the July 2 hearing, after which the Board again sent the conditions and restrictions on use back to its planning staff, including Brian Pedrotti and Sheila Stogsdill, for additional revisions. Those revisions were prompted by concerns voiced by Hamm and objections and concerns by surrounding neighbors, including Neis, either during the public hearings or in other correspondence with the Board or the planning commission.
At the hearing on July 9, 2003, the Board approved a final version of conditions and restrictions on use which the Board attached to its written findings of fact and conclusions of law in support of its unanimous decision to grant Hamm the CUP. The restrictions and conditions for usage of the expanded quarry were extensive.
They included time of day restrictions on specific quarry operations, including blasting; a requirement that Hamm submit a fencing and screening plan for approval by the Board before Hamm can commence quarry operations on the property; a requirement that Hamm obtain all necessary permits for, and comply with, the regulations of various state and federal agencies and utility companies; scheduled submissions of a monitoring and management plan for the reclamation process; preparation of drainage studies as work progresses through each phase of the quarrying operation; restrictions in site access, use of county roads, and Hamm's required cooperation with county, city, and school officials concerning traffic safety issues that may arise; requirements that Hamm participate in the improvement of specific county roads, pay Douglas County a fee of 10 cents per ton of rock hauled from the property, and clean up any aggregate and other spillage within 1 mile of the property; the implementation of standards to govern noise and light pollution; a requirement that Hamm accommodate the Board's right to conduct impromptu inspections of the quarry for CUP compliance; a requirement of 5–year reviews of the CUP and Hamm's compliance with its conditions and restrictions on use; triggers and procedures for revocation of the CUP; and a 30–year time limit on the CUP.
One of Neis' key issues in this appeal is the restriction on use that mandated minimum setback requirements of 500 feet from existing residences, 150 feet from the perimeter of the site, and 100 feet from the west side of a tributary running through the site. These restrictions were not an issue of strong contention in proceedings before the Board. When it did become an issue in the litigation discussed below, the Board produced an affidavit from staff member Sheila Stogsdill who stated that the reason for the greater setback for existing residences was “to mitigate potential noise, vibration, and dust impacts from the quarrying activities.” Stogsdill also attested that the setbacks were derived in part based on information learned from experts during the application process in the early 1990s for a CUP that had been granted to Martin Marietta for another quarry in the county.
Neis filed a lawsuit against the Board
Several landowners, including Neis, filed suit against the Board on June 20, 2003. Only Neis is a party to this appeal. Any subsequent references to the plaintiffs in this suit are to Neis only. Neis raised four separate counts against the Board in his amended petition. Count I seeks to challenge the legality and reasonableness of the Board's decision as allowed by K.S.A. 12–760(a). Count II sought an order requiring the Board to enforce statutes that govern fencing requirements in Kansas. Count III sought relief under 42 U.S.C. § 1983 and alleged Neis was denied due process of law because the CUP failed to include a proper legal description of all of the impacted land. Count IV seeks relief under 42 U.S.C. § 1983 based...
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