R.H. Gump Revocable v. City of Wichita
| Decision Date | 14 April 2006 |
| Docket Number | No. 94,312.,94,312. |
| Citation | 131 P.3d 1268 |
| Parties | R.H. GUMP REVOCABLE TRUST, c/o R.H. Gump (Owner), and Nordyke Ventures, LLC., c/o Mark Nordyke, Appellants, v. The CITY OF WICHITA, KANSAS, A Municipal Corporation, Appellee. |
| Court | Kansas Court of Appeals |
Robert W. Kaplan, of Kaplan, McMillan & Harris, of Wichita, for appellants.
Joe Allen Lang and Jay C. Hinkel, assistant city attorneys, and Gary E. Rebenstorf, county attorney, for appellee.
Before McANANY, P.J., PIERRON and CAPLINGER, JJ.
R.H. Gump Revocable Trust and Nordyke Ventures, L.L.C. (collectively "Gump") appeal the decision of the district court affirming the decision of the City of Wichita (City) to deny a conditional use permit to allow construction of a cellular communications tower. Gump argues City acted unreasonably, City's decision was not supported by substantial evidence under the Telecommunications Act of 1996, and City acted unreasonably by considering the court's remand in executive session. We affirm.
R.H. Gump Revocable Trust, in the care of R.H. Gump, is the owner of real property located 600 feet east of Woodlawn on the south side of Kellogg Avenue in Wichita. Nordyke Ventures, L.L.C., in the care of Mark Nordyke, builds and leases wireless communication facilities.
In July 2000, City and Sedgwick County approved a Wireless Communication Master Plan (master plan) to address the growing needs of the wireless communication industry and incorporated the plan into the Wichita-Sedgwick County Unified Zoning Code (UZC). Communication companies are allowed construction of new disguised ground-mount facility towers up to 85 feet high by administrative permit. There is no prohibition for building new disguised ground-mount towers in excess of 85 feet, but such towers require a conditional use permit approved by City.
In March 2003, Gump filed a request seeking a conditional use permit to construct a "stealth flagpole" tower for use by Cricket Communications on the real property in question. Gump proposed a wireless communication tower, to house all the antenna equipment, having an initial height of 135 feet, with provisions to extend the height of the tower to 165 feet if necessary to allow other carriers to use the same support structure in the future. A large United States flag would be flown from the flagpole to help disguise its utilitarian purpose.
The Metropolitan Area Planning Department (MAPD) reviewed Gump's application and found the proposed tower conformed to the guidelines of the UZC and master plan and recommended approval of the conditional use subject to certain conditions. The Wichita/Sedgwick County Metropolitan Area Planning Commission (MAPC) granted its approval after a public hearing on April 24, 2003, subject to several maintenance-type conditions and that the flag should be illuminated only at night. The MAPC based its approval on several findings: the mixture of commercial and residential uses along the Kellogg corridor, compatibility, "limited commercial" zoning of the property, visual impact lessened by design, conformance to master plan, and FAA approval.
On May 5, 2003, the District Advisory Board for Council District II (DAB II) also voted to recommend that the application be approved. The only difference between DAB II's recommendation and MAPC's was that DAB II preferred the MAPD's recommendation that the flag be displayed only during daylight hours to avoid the need for nighttime lighting of the flag.
On May 20, 2003, City considered Gump's request for a conditional use permit. Council Member Schlapp moved, and City voted unanimously, to return the application to MAPC, and if necessary the DAB II, for reconsideration of their recommendations. City requested that MAPC address three issues:
MAPC considered City's remand request on June 5, 2003. At the MAPC hearing, several citizens spoke against the request and stated numerous concerns and questions. MAPC voted (12 to 1) not to change the previous recommendation of approval subject to the same conditions, including allowing lighting of the flag at night. In its decision, MAPC considered the planning staff's lengthy response to the three questions raised by City.
City reconsidered Gump's request for a conditional use permit at a hearing on June 17, 2003. The acting director of planning reviewed the application for a conditional use permit for the council. After a review of the record, MAPC's reconsideration of the item, along with the original MAPC hearing record, and additional information in the record, Schlapp moved that the application should be denied based on 10 factors: (1) Even with a disguised structure, the proposal is not compatible with the use and character of the neighborhood; (2) extensive beautification efforts in the Kellogg freeway area and negative visual impact from residential and recreation areas; (3) does not conform to the design guidelines of master plan; (4) does not conform to the location guidelines of master plan; (5) does not conform to structural design of master plan; (6) does not conform to co-location guidelines of master plan; (7) overwhelming opposition to proposal; (8) visual impact of tall pole; (9) this is the third attempt to place a wireless facility at this location; and:
City denied the conditional use permit to Gump by a vote of 4 to 2.
Gump appealed to the district court claiming the action of City in denying the conditional use permit was without authority and unreasonable. Gump contended the decision was based on improper criteria, contrary to the evidence received in the case, and contrary to the professional recommendations of MAPC and DAB II.
The district court conducted several hearings on the conditional use permit in early 2004. On July 22, 2004, the court issued an order outlining the proceedings up to that date and then remanding to City as follows:
City considered the district court's remand order at the September 14, 2004, council meeting while in executive session. City unanimously adopted additional findings of fact as presented by its law department. Concerning the gain to public health, safety, and welfare of the community, City addressed: (1) the impact of lighting the flag and that the visual impact of the proposed tower exists whether or not the flag is lighted; (2) treatment of the flag and fear Gump will not fulfill its requirement to properly care for the size of flag necessary for the flagpole; (3) previous findings on the impingement of the aesthetics and visual impact of the flagpole; and (4) previous outlined failures of the application to conform to the master plan.
Concerning the loss in value or the hardship imposed upon the applicant, City stated: (1) property owner will not be denied all value because other commercial uses are possible on the property; (2) location is not essential to the ability of the wireless industry to provide complete coverage and availability of alternative sites; and (3) multiple shorter towers could meet Gump's needs.
Concerning the balance of the public interest to Gump's hardship, City addressed: (1) conflicting facts and strong opinions in the case; (2) alternative sites; and (3) the strong weight of the facts showing a detrimental impact on the general health, safety, and welfare of the community and how this Golden factor weighs for the denial of the application. See Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), City unanimously adopted the additional findings.
After City adopted the additional findings on remand, the district court took up the ultimate issues in this case at a hearing on Gump's motion to permit discovery. The district court denied the motion to permit discovery and announced, sua sponte, that it was prepared to rule on the merits of the case. After consideration of the original findings, arguments of counsel, and amended City findings, the court concluded: (1) City's determination was based solely upon the visual impact and aesthetics of the proposed tower; (2) City was entitled under the law to make its determination on that basis; (3) Gump had not proven the unreasonableness of the denial of the conditional use permit; and (4) City...
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