Zimmerman v. Bd. of County Commissioners of Wabaunsee County

• Decision Date: 21 October 2011
• Docket Number: No. 98,487.,98,487.
• Citation: 264 P.3d 989,293 Kan. 332
• Parties: Roger ZIMMERMAN, et al., Appellants/Cross-appellees,andA.B. HUDSON and Larry French, Intervenors/Appellants/Cross-appellees,v.Board of County Commissioners of Wabaunsee County, Kansas, Appellees/Cross-appellants.
• Court: Kansas Supreme Court

293 Kan. 332

264 P.3d 989

Roger ZIMMERMAN, et al., Appellants/Cross-appellees,andA.B. HUDSON and Larry French, Intervenors/Appellants/Cross-appellees,

v.Board of County Commissioners of Wabaunsee County, Kansas, Appellees/Cross-appellants.

No. 98,487.

Supreme Court of Kansas.

Oct. 21, 2011.

Syllabus by the Court

1. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

2. An appellate court reviews constitutional questions de novo.

3. Whether there has been a compensable taking of private property for public use is a question of law.

4. The Takings Clause of the Fifth Amendment to the United States Constitution, which is applicable to the state through the Fourteenth Amendment, provides that private property shall not be “taken for public use, without just compensation.”

5. The Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. The Clause expressly requires compensation where government takes private property for public use. It does not bar the government from interfering with property rights but rather requires compensation in the event of otherwise proper interference amounting to a taking.

6. Although reasonableness is the standard by which a court determines whether a government's exercise of police power is valid, reasonableness is not the appropriate standard to determine whether a government action affecting real property in private hands constitutes a taking.

7. In order to prevail on a takings claim, a party seeking compensation must first establish that the property in question is one in which a vested property right exists, i.e., a constitutionally cognizable property interest.

8. A vested right is a right so fixed that it is not dependent on any future act, contingency, or decision to make it more secure.

9. Conditional use permits are a device for permitting certain land uses considered to be essential or desirable to the community to be placed in zoning districts in which they would ordinarily be incompatible.

10. An applicant has no vested rights in a conditional use permit when its issuance depends upon the discretionary approval of a governmental authority.

11. When a district court has granted a motion to dismiss for failure to state a claim, an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom. The appellate court then decides whether those facts and inferences state a claim based on plaintiff's theory or any other possible theory. If so, the dismissal by the district court must be reversed.

12. Alleged violations of the dormant Commerce Clause are subject to a two-step inquiry. First, the court asks whether the challenged law discriminates on its face against interstate commerce. Second, if the law is not facially discriminatory, the court then engages in the balancing test as set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

13. A law impermissibly discriminates against interstate commerce if it treats in-state and out-of-state economic interests differently by benefitting the former and burdening the latter.

14. Under the facts of this case, a zoning amendment that regulated evenhandedly and affected in-state and out-of-state economic interests equally was not facially discriminatory.

15. Under the balancing test contained in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), a state law incidentally burdening interstate commerce will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.

16. Congress may authorize the states to engage in activities that would otherwise be forbidden by the Commerce Clause. However, Congress must provide its unambiguous intent, expressed through unmistakably clear language, for a state statute to be outside the reach of the dormant Commerce Clause.

Charles C. Steincamp, of Depew Gillen Rathbun and McInteer, L.C., of Wichita, argued the cause and was on the brief for appellants/cross-appellees Roger Zimmerman, et al.Scott A. Grosskreutz, of Cavanaugh and Lemon, P.A., of Topeka, argued the cause and was on the brief for the intervenors/appellants/cross-appellees A.B. Hudson and Larry French.William L. Frost, of Morrison, Frost, Olsen, Irvine, Jackson and Schartz, L.L.P., of Manhattan, argued the cause, and Katharine J. Jackson, of the same firm, was with him on the brief for appellee/cross-appellant Board of Wabaunsee County Commissioners.Richard H. Seaton, of Seaton, Seaton and Gillespie, L.L.P., of Manhattan, was on the brief for amici curiae Audubon of Kansas and the Kansas Wildlife Federation.Michael D. Irvin and Charles Arthur, of Kansas Farm Bureau, of Manhattan, were on the brief for amicus curiae Kansas Farm Bureau.Neil R. Shortlidge, of Stinson Morrison Hecker, L.L.P., of Overland Park, Donald L. Moler, Jr., and Sandra L. Jacquot, of League of Kansas Municipalities, of Topeka, and Melissa Wangemann, of Kansas Association of Counties, of Topeka, were on the brief for amici curiae League of Kansas Municipalities and Kansas Association of Counties.Alan Claus Anderson, of Husch Blackwell Sanders, L.L.P., of Kansas City, Missouri, and Derek T. Teeter, of the same firm, were on the brief for amicus curiae NextEra Energy Resources, L.L.C.Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, and Michael J. Davis, of the University of Kansas School of Law, of Lawrence, were on the brief for amicus curiae Protect the Flint Hills, Inc.Frank A. Caro, Jr. and Kevin J. Breer, of Polsinelli Shughart, P.C., of Overland Park, and Timothy S. Bishop and J. Bishop Grewell, of Mayer Brown, L.L.P., of Chicago, Illinois, were on the brief for amicus curiae The Wind Coalition.

The opinion of the court was delivered by NUSS, J.:

This case involves a decision by the Board of County Commissioners of Wabaunsee County (Board) to amend its zoning regulations. Specifically, the Board permitted Small Wind Energy Conversion Systems (SWECS) but prohibited the placement of Commercial Wind Energy Conversion Systems (CWECS, i.e., commercial wind farms) in the county. Plaintiffs are owners of land in the county. They were later joined by plaintiff intervenors (Intervenors), who are not landowners but owners of purported wind rights in the county.

The district court granted the Board's various dispositive motions. Plaintiffs and Intervenors appealed, and the Board cross-appealed. Pursuant to K.S.A. 20–3017, we transferred the case from the Court of Appeals.

In Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 218 P.3d 400 (2009) ( Zimmerman I ), we affirmed the district court's decision on several issues. We specifically held that the district court did not err (1) in determining that the Board's decision to amend the zoning regulations was lawful; (2) in determining the Board's decision to amend was reasonable; (3) in precluding Plaintiffs and Intervenors from conducting further discovery on the issue of reasonableness; (4) in dismissing the claim that the Board's decision violated the Contracts Clause of the United States Constitution; (5) in dismissing the claims that the zoning regulation amendments were preempted by state and federal law; and (6) in determining that Intervenors' action was commenced in a timely manner.

Concurrent with the release of Zimmerman I, we ordered the parties to submit supplemental briefs on certain questions raised in the issues originally presented on appeal by both Plaintiffs and Intervenors. Those general issues, presently before us for review after the parties' supplemental oral arguments, focus on whether the district court erred in deciding as a matter of law that the Board did not violate the Takings Clause or the Commerce Clause of the United States Constitution.

Our order requiring supplemental briefing on the Takings and Commerce Clauses necessarily stayed our resolution of two issues originally presented on appeal by Intervenors: whether the district court erred in dismissing their claims (1) under 42 U.S.C. § 1983 (2006) and (2) for inverse condemnation.

The first issue on appeal and our holding is as follows:

1. Did the district court err by disposing of the Takings Clause claim as a matter of law? No.

Because there was no taking, the district court did not err in also disposing of Intervenors' related takings-based claim under 42 U.S.C. § 1983 and their claim for inverse condemnation.

The second issue on appeal and our holding is as follows:

2. Did the district court err in dismissing the Commerce Clause claim as a matter of law? We hold there was no discrimination against interstate commerce. However, the claim alleging the Board's decision placed incidental burdens on interstate commerce that outweighed the benefits is remanded to the district court for analysis under Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

Because Intervenors also made a burden-based claim under the Commerce Clause in their 42 U.S.C. § 1983 contention, that specific claim also is remanded.

Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural Background

Many of our facts come from Zimmerman I. Plaintiffs are owners of land in Wabaunsee County who have entered into written contracts for the development of commercial wind farms on their properties. Intervenors are not landowners but through various contracts are owners of purported wind rights concerning other properties in the county.

Defendant is the three-member Board of County Commissioners of Wabaunsee County. The county is roughly 30 miles long and 30 miles wide,...