Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., Inc.

Decision Date22 May 1998
Docket NumberNo. 76598,76598
Citation958 P.2d 1162,25 Kan.App.2d 122
PartiesNORA H. RINGLER REVOCABLE FAMILY TRUST, Nora H. Ringler, Trustee, Appellant, v. MEYER LAND AND CATTLE CO., INC., Chris M. Meyer and Timothy Meyer, Appellees.
CourtKansas Court of Appeals

Syllabus by the Court

1. Whether a private right of action exists under a statute is a question of law.

2. Kansas courts have generally applied a two-part test for determining whether a private right of action is statutorily created.

3. K.S.A.1994 Supp. 65-171d is construed and applied.

4. K.S.A. 65-170e is construed and applied.

5. The legislature, in passing K.S.A.1994 Supp. 65-171d, intended to allow private citizens to enforce the separation distance requirements of the statute by private right of action seeking injunctive relief. No opinion is expressed as to whether a private right of action is created allowing a private citizen to seek monetary damages.

6. A party challenging an administrative order must exhaust administrative remedies. Whether a party is required to or has failed to exhaust administrative remedies is a question of law over which our review is unlimited.

7. Interpretation of a statute is a question of law over which our review is unlimited.

8. K.S.A. 60-212(c) is construed and applied.

9. On a motion for judgment on the pleadings, the trial court is required to accept plaintiff's allegations as true and to determine whether, based on the admitted facts, plaintiff has stated a claim.

10. It is presumed the legislature understands the words it uses and intends to use those words in their common and ordinary meaning.

Michael S. Holland, Russell, for appellant.

David A. Hanson and Bruce Alan Brumley, of Glenn, Cornish, Hanson & Karns, Chartered, Topeka, for appellees.

Before ELLIOTT, P.J., DAVID PRAGER, Chief Justice Retired, and PATRICK D. McANANY, District Judge, Assigned.

ELLIOTT, Judge:

Nora H. Ringler, as trustee of the Nora Ringler Revocable Family Trust, (Trust or plaintiff) appeals the trial court's denial of her request for injunctive relief, by which she sought to enjoin Meyer Land and Cattle Co., Inc., Chris M. Meyer, and Timothy Meyer (Meyer or defendants) from expanding a confined livestock feeding facility near a dwelling located on Trust property.

We reverse and remand.

Facts

The factual history of this case is rather long, but must be detailed in order to place in proper perspective some of the issues we must decide.

In April 1992, the Kansas Department of Health and Environment (KDHE) issued a 5-year permit to defendants pursuant to K.S.A. 65-164 et seq., allowing defendants to operate water pollution control facilities with respect to livestock waste water on their property. The permit indicated defendants utilized 10 pens for confined feeding on facilities for about 1,000 head of cattle.

Plaintiff then sued KDHE and defendants in Shawnee County with respect to the permit; defendants' motion to dismiss was denied, and the trial court ruled that KDHE's notice of agency action did not give sufficient due process notice to plaintiff. The trial court also noted that defendants' permit application indicated the nearest dwelling to their facility was one-half mile away, but that plaintiff owned a dwelling only 50 feet from the facility. The trial court then advised plaintiff of her administrative avenues to seek revocation of the permit. This civil suit was eventually dismissed without prejudice in December 1993.

Meanwhile, plaintiff sought revocation of defendants' permit before the KDHE. Following a public hearing, agency staff recommended revocation of defendants' permit. A subsequent hearing officer memorandum also recommended revocation of the permit.

In June 1993, KDHE ordered defendants' permit terminated due to inaccuracies in the application relating to the status of plaintiff's dwelling. Defendants were also given notice of KDHE's intent to revoke their permit. Defendants challenged the KDHE decision; a presiding officer was appointed and an adjudicative hearing was held in March of 1994.

In an order dated July 13, 1994, the presiding officer held that defendants' permit should be terminated. The presiding officer noted the primary purpose of the separation distance requirements was to create a buffer zone between a facility and habitable buildings in order to minimize potential for the generation of nuisance conditions. The minimum residential separation distance requirement for facilities with a capacity of 1,000 head or less, it was noted, was 1,320 feet.

With respect to plaintiff's dwelling, the presiding officer found the dwelling had been continuously insured and utility services to the dwelling had never been disconnected. While the house was not occupied at the time defendants' permit was issued, an employee of plaintiff moved into the dwelling in April 1993.

In December 1994, the Secretary of KDHE adopted most of the presiding officer's findings and conclusions, found that defendants' application "was in fact incomplete and incorrect," and upheld the revocation of defendants' permit. The decision to revoke defendants' permit did not, however, end the matter.

KDHE noted that the permit had been issued pursuant to K.S.A. 65-171h and further noted the passage of S.B. 800 (L.1994, ch. 213, § 1). The KDHE Secretary then found that K.S.A.1994 Supp. 65-171d(k) exempted defendants' facility from separation distance requirements if the Meyer facility was "permitted or certified" by KDHE or if it existed as a confined feeding facility on July 1, 1994. KDHE found the facility was not certified due to the revocation of the permit and concluded there was not enough evidence to determine if the facility existed as of July 1, 1994; the matter was remanded to the presiding officer.

On remand, the presiding officer took additional evidence and issued a report and order dated June 29, 1995, finding that defendants had completed one pen capable of permanent confinement as of June 27, 1994, and had concrete feedbunks and runways in existence at that time; that the facility had a portable water supply and a portable generator to provide electricity; and that the facility contained 40-50 head of cattle as of June 28, 1994.

The presiding officer then ruled that defendants' facility met the definitions set forth in 1994 Supp. 65-171d(c)(2) before July 1, 1994; that the 1992 permit was revoked; and that the facility was exempt from the distance requirements under K.S.A.1994 Supp. 65-171d(k). So far as we can determine, neither party appealed this order.

Instead, some 4 months later, plaintiff filed the present action, reciting the history of the KDHE proceedings and the final order of June 29, 1995, finding defendants' facility to be exempt from the statutory distance requirements. Plaintiff also alleged that defendants had or were attempting to expand the facility after the KDHE order of June 29, 1995, and claimed the expansion violated K.S.A.1994 Supp. 65-171d in that the expanded facility was located at a distance from plaintiff's dwelling less than permitted by K.S.A.1994 Supp. 65-171d(k)(3). Plaintiff sought an order enjoining defendants from expanding their facility and an order directing defendants to remove all facilities added since the June 1995 KDHE order.

In their answer, defendants admitted most of plaintiff's allegations about the KDHE proceedings, but denied the allegations central to plaintiff's suit that they had violated state law since the KDHE order. Eventually, defendants moved for judgment on the pleadings pursuant to K.S.A. 60-212(c). In April 1996, the trial court ruled in defendants' favor.

In its order, the trial court found that while defendants' facility contained only 40-50 head prior to July 1, 1994, it had been designed to accommodate about 1,000 head. The trial court also found that since the KDHE order found defendants' facility exempt, plaintiff was obligated to seek judicial review of that order if she wished to challenge the exemption. Finally, the trial court found that expansion of defendants' facility was not precluded so long as the distance between the facility's perimeter and plaintiff's dwelling was not reduced.

This appeal follows.

As a preliminary matter, at oral argument we asked counsel to file supplemental briefs on the question of whether K.S.A.1994 Supp. 65-171d creates a private right of action allowing plaintiff trust to bring a civil action seeking injunctive relief to enforce the statute's separation distance provisions. We answer the question in the affirmative and express no opinion as to whether the statute creates a private right of action allowing a plaintiff to seek monetary damages.

Whether a private right of action exists under a statute is a question of law. Kerns v. G.A.C., Inc., 255 Kan. 264, 281, 875 P.2d 949 (1994). Generally, Kansas courts have developed a two-part test for determining whether a private right of action is created. First, the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. See OMI Holdings, Inc. v. Howell, 260 Kan. 305, 340, 918 P.2d 1274 (1996).

Second, the court must review legislative history in order to determine whether a private right of action was intended. 260 Kan. at 340, 918 P.2d 1274; see Jack v. City of Wichita, 23 Kan.App.2d 606, 611, 933 P.2d 787 (1997). This two-part test developed in Kansas is similar to that created by the United States Supreme Court when evaluating whether private rights of action are created under federal statutes. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The Kansas Supreme Court has noted the similarity between its two-part test and the Cort analysis. See Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 805-06, 740 P.2d 606 (1987).

In Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 804 P.2d 978 (1991), for example, pla...

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