Zimmerman v. Board of County Com'Rs

Decision Date30 October 2009
Docket NumberNo. 98,487.,98,487.
Citation218 P.3d 400
PartiesRoger ZIMMERMAN, et al., Appellants/Cross-appellees, and A.B. Hudson and Larry French, Intervenors/Appellants/Cross-appellees. v. BOARD OF COUNTY COMMISSIONERS OF WABAUNSEE COUNTY, Kansas Appellees/Cross-appellants.
CourtKansas Supreme Court

Jack Scott McInteer, of Depew Gillen Rathburn 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 Bryan W. Smith of Cavanaugh, Smith and Lemon, P.A., of Topeka, was with him on the briefs for the intervenors/appellants/cross-appellees A.B. Hudson and Larry French.

William L. Frost, of Morrison, Frost, Olsen and Irvine, LLP, of Manhattan, argued the cause, and Katherine 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 Kansas Wildlife Federation.

Michael D. Irvin, of Kansas Farm Bureau, of Manhattan, was on the brief for amicus curiae Kansas Farm Bureau.

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

This appeal results from the decision by the Board of County Commissioners of Wabaunsee County (Board) to amend its zoning regulations. Specifically, the Board prohibited the placement of Commercial Wind Energy Conversion Systems (CWECS, i.e., commercial wind farms) in the county. Plaintiffs and plaintiff intervenors (Intervenors) are owners of land and of wind rights, respectively, in the county.

The district court granted the Board's various motions to dismiss. Plaintiffs and Intervenors appeal, and the Board cross-appeals. Our jurisdiction is pursuant to K.S.A. 20-3017 (transfer from Court of Appeals on our motion).

The parties' issues on appeal, and our accompanying holdings, are as follows:

PLAINTIFFS' AND INTERVENORS' SHARED ISSUES:

1. Did the district court err in determining that the Board's decision amending the zoning regulations was lawful, i.e., that it did not violate the procedures outlined in K.S.A. 12-757? No.

2. Did the district court err in determining that the Board's decision amending the zoning regulations was reasonable? No.

3. Did the district court err in precluding Plaintiffs and Intervenors from conducting discovery or submitting evidence on the reasonableness of the zoning regulation amendments? No.

4. Did the district court err in dismissing the claim alleging that the decision amending the zoning regulations violated the Contract Clause of the United States Constitution? No.

INTERVENORS' ISSUES:

5. Did the district court err in dismissing Intervenors' claim alleging preemption of the zoning regulation amendment by state law? No.

6. Did the district court err in dismissing Intervenors' claim alleging preemption of the zoning regulation amendments by federal law? No.

BOARD'S ISSUE ON CROSS-APPEAL:

7. Was the Intervenors' action under K.S.A. 12-760(a) commenced in a timely manner? Yes.

Concurrent with the release of this opinion, this court has ordered the parties to submit supplemental briefs on certain questions raised in the issues originally presented on appeal by both Plaintiffs and Intervenors. Those original issues are: whether the district court erred in dismissing the claims alleging that the Board's decision amending the zoning regulations violated the Takings Clause and the Commerce Clause of the United States Constitution.

Our order requiring supplemental briefing on takings necessarily stays our resolution of the following issues originally presented on appeal by Intervenors: whether the district court erred in dismissing their claims under 42 U.S.C. § 1983 (2006) and inverse condemnation.

FACTUAL AND PROCEDURAL BACKGROUND

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 the owners of 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, containing approximately 800 square miles and 7,000 people. It is located in the Flint Hills of Kansas, which contain the vast majority of the remaining Tallgrass Prairie that once covered much of the central United States.

In October 2002, the county zoning administrator told the Board that he had been contacted by a company desiring to build a wind farm in the county. At that time, the county had no zoning regulations relating specifically to wind farms. The next month, the Board passed a temporary moratorium on the acceptance of applications for conditional use permits for wind farm projects until the zoning regulations could be reviewed. The moratorium was extended on at least five occasions.

The following month, December 2002, the county planning commission conducted its first public meeting to discuss amending zoning regulations regarding commercial wind farms.

On July 24, 2003, the planning commission held a public hearing for discussion of the proposed zoning regulations which included regulations of small and commercial wind farms. A month later, the Board ordered the planning commission to review and recommend updates to the 1974 Wabaunsee County Comprehensive Plan (Plan) because it did not address changes that had occurred in the county in intervening years. After the Plan had been reviewed, the Board intended to consider the new proposed regulations regarding wind turbines.

On February 15, 2004, after input from the public, including a county-wide survey and focus groups, the planning commission formally recommended the adoption of the revised Comprehensive Plan 2004.

On April 26, 2004, the Board adopted the planning commission's recommended changes to the Plan and adopted the Comprehensive Plan 2004. It included the goals and objectives previously recommended to the Board. The Comprehensive Plan 2004 provides in relevant part that the county would endeavor to:

A. Establish an organized pattern of land use with controlled and smart growth that brings prosperity to the county while also respecting its rural character.

B. Maintain the rural character of the county with respect to its landscape, open spaces, scenery, peace, tranquility, and solitude.

C. Develop moderate and slight growth of businesses, industries, and services with small-scale employment.

D. Develop realistic plans to protect natural resources such as the agricultural land, landscape, scenic views, and Flint Hills through regulatory policies.

E. Promote historic preservation, which protects and restores historic properties, old limestone buildings, and landmarks in the county.

F. Attract small retail businesses and encourage clustering of retail and service businesses.

G. Improve school system and other public utilities to address the existing deficiencies and needs.

H. Develop tourism programs involving historic properties, nature of rural character, and scenic landscape.

I. Provide affordable and good quality housing with respect to current deficiencies and future needs.

J. Attract new population, a stronger labor force, and retain youth.

On May 20, after the Board's adoption of the Comprehensive Plan 2004, the planning commission held a public hearing to discuss proposed amendments to the zoning regulations regarding small and commercial wind farms. At its next meeting, the commission voted 8-2 to recommend that the Board approve the proposed zoning amendments which would allow CWECS (commercial wind farms) as a conditional use, subject to certain conditions.

The following month, on June 28, the Board voted 2-1 to adopt in part and override in part the planning commission's recommended zoning changes. Specifically, the Board adopted the commission's recommendations regarding regulation of Small Wind Energy Conversion Systems (SWECS, i.e., small wind farms). It rejected, however, the commission's recommendations regarding regulation of CWECS and prohibited commercial wind farms in the county.

The Board's decision was formally reflected in Resolution No. 04-18, passed 2 weeks later on July 12, 2004. The Resolution articulated the following basis for the Board's decision:

"The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved."

The Resolution also added the following definitions to Article 1-104 of the zoning regulations passed in 1995:

"207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buildings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind.

"208. ...

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