Water Dist. No. 1 of Johnson County v. City Council of City of Kansas City, 70151

• Decision Date: 15 April 1994
• Docket Number: No. 70151,70151
• Citation: 871 P.2d 1256,255 Kan. 183
• Parties: WATER DISTRICT NO. 1 OF JOHNSON COUNTY, Appellant, v. The CITY COUNCIL OF the CITY OF KANSAS CITY, Kansas, and the City of Kansas City, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 1256

871 P.2d 1256

255 Kan. 183

WATER DISTRICT NO. 1 OF JOHNSON COUNTY, Appellant, v. The CITY COUNCIL OF the CITY OF KANSAS CITY, Kansas, and the

City of Kansas City, Kansas, Appellees.

No. 70151.

Supreme Court of Kansas.

April 15, 1994.

Syllabus by the Court

1. The record is examined and it is held, under the facts in the instant case, that conditions imposed by a city in granting a special use permit to a K.S.A. 19-3501 water district are reasonable.

2. A city's right to subject a K.S.A. 19-3501 water district seeking a special use permit to municipal zoning ordinances is not preempted by State regulation of the water treatment process under the facts in the instant case.

Wilson E. Speer, of Speer, Austin, Holliday & Zimmerman, of Olathe, argued the cause, and Michael J. Armstrong, of the same firm, was with him on the brief for appellant.

N. Cason Boudreau, Deputy City Atty., argued the cause, and Harold T. Walker, City Atty., was with him on the brief for appellees.

SIX, Justice:

This is a land use case involving the validity of conditions imposed in granting a special use permit. The contestants are both governmental units. Water District No. 1 of Johnson County (District) is dissatisfied with the decision of the City Council of Kansas City, Kansas (City). The District sought a special use permit for additional inert treatment residue basins on District land located in the City. The City granted the permit, subject to nine conditions. The District objected to the conditions and appealed under K.S.A. 12-760 (any person aggrieved may maintain an action in the district court to determine the reasonableness of the final decision). The trial court upheld the City's decision. Our jurisdiction is under K.S.A. 20-3017 and K.S.A.1993 Supp. 60-2101(b). We granted the District's motion to transfer to this court.

We must decide whether the conditions imposed in granting the District's request are reasonable and whether they conflict with the State's preemption of the water treatment process.

Scope of Review

The scope of review in zoning cases is governed by a series of concepts we summarized in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980). See Davis v. City of Leavenworth, 247 Kan. 486, 492-93, 802 P.2d 494 (1990). We have applied these concepts to the review of special use permit decisions. See Daniels v. Board of Kansas City Comm'rs, 236 Kan. 578, 584, 693 P.2d 1170 (1985). The Combined Investment concepts provide a prologue for our analysis in the case at bar:

"(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." 227 Kan. at 28, 605 P.2d 533.

In addition to the scope of review concepts used to analyze special use permit cases, we have noted that the factors in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), should be considered by the zoning body. The Golden factors can aid the reviewing court in determining the reasonableness and validity of zoning determinations. See Davis, 247 Kan. at 493, 802 P.2d 494; K-S Center Co. v. City of Kansas City, 238 Kan. 482, 494, 712 P.2d 1186 (1986). In K-S Center Co., we held the Golden factors are to be applied in special use permit cases. 238 Kan. at 494-95, 712 P.2d 1186.

Facts

The District is a quasi-municipal urban water supply and distribution district established under K.S.A. 19-3501 et seq. Service is provided to approximately 300,000 people, most of whom reside in Johnson County, Kansas. A special use permit was sought to construct water treatment residual disposal monofills, also known as sludge lagoons, in the City. Monofills are used for the deposit of a by-product of the District's water softening treatment process. The treatment process produces an inert residue, lime, that consists primarily of calcium carbonate and magnesium hydroxide. The Kansas Department of Health and Environment (KDHE) reviews and permits the use of this type of residue treatment. The District began using the monofill in 1975 on a 34-acre tract in the 100-year flood plain. The tract was purchased by the District in 1985.

In 1990, the District decided a second monofill was needed and applied for a special use permit. The City granted the permit, subject to four conditions:

"1. The entrance area being fenced;

"2. The area is kept cleaned up and maintained;

"3. This approval is viewed as only a temporary solution and they (the District) should look for a long-term solution, and that solution should not be merely more lagoons at this location; and

"4. The existing lagoon being covered and landscaped when it is adequately stabilized."

The 1990 monofill was characterized as a short-term solution to the treatment discharge problem that would give the District time to explore alternatives.

In 1991, the District submitted an application to the KDHE for a demonstration program of controlled discharge of the lime residue into the Kansas River. The District sought river discharge because the monofill produced several adverse effects, including an impact on land use, the concentration of possible hazardous substances, and the expense of construction. KDHE denied the application.

The District, in August 1991, submitted the second special use permit petition to the City. The application expressed the District's intent to construct two additional monofills on the remaining 25 acres of the 34-acre tract. The City's planning staff issued a review summary identifying three issues the staff believed needed to be considered by the City: (1) the environment; (2) development; and (3) the balancing of interests as required by the courts in zoning cases which involve another governmental agency. No one opposed the petition. The Planning Commission recommended approval, subject to three conditions:

"A) Softening residual only. (This avoids presedimentation residuals that are currently returned to the river.) B) The duration of the special use permit being ten years. C) Measures are taken as necessary to assure that the areas of the monofills will be able to support buildings similar to what could be supported if the monofills were not present without extra expense for special foundations. Such measures would include at least the placement of 12 feet of fill above the monofills with the first 6 feet compacted as set out in item # 4 of Terracon's August 28, 1991, letter."

The City agreed to hold the application over for two months to allow Johnson County and the City to discuss the possibility of cooperation in the area of wastewater treatment facilities. (The City currently operated a sewer treatment plant at a level well below capacity. There was a belief among some council members that Johnson County should contract to use that plant rather than construct its own.)

A motion for approval of the permit failed on a vote of three to four. A five-to-two vote was required to deny the permit because the Planning Commission had recommended that the permit be approved. K.S.A. 12-757(c). The petition was returned, and the Planning Commission again recommended approval.

Upon completion of testimony in the second hearing, the City approved the permit, subject to nine conditions (conditions 4, 5, 6, 7, 8, 9, and the four years in condition 2, originated with the City):

"1) That this monofill be used for the disposal of softening residuals only. [A Planning Commission condition, accepted by the District.]

"2) The duration of the special use permit being four years. [The Planning Commission condition was 10 years.]

"3) That measures be taken as necessary to assure that the areas of the monofills will be able to support the buildings similar to what could be supported if the monofills were not present without extra expense for special foundations. Such measures should include at least the placement of 12' of fill above the monofills with the first 6' compacted as set out in Item # 4 in Terracon's August 28, 1991, letter, which we've been provided with. [A Planning Commission condition, accepted by the District.]

"4) There be an understanding that this request is for residual monofills only and that should changes be proposed that require the hauling of material onto or off the site, City Council approval and/or a new special use permit would be necessary.

"5) Johnson County Water District No. 1 shall submit an annual report to Planning and Zoning which shall detail the progress of the project including but not limited to: a) Volume deposited/capacity remaining; b) Annual testing for toxicity based on EPA methods; and c) Progress of compaction procedure.

"6) After three years, an update report addressing alternative disposal methods shall be submitted to the City Council. We've already been provided with some information concerning alternative disposal methods such as agricultural uses, uses in concrete productions,...