Substantial evidence did not exist to support island annexation

by Victoria Heldt

James Baggett, et al., v. The Board of County Commissioners of Douglas County, Kansas
(Kansas Court of Appeals, September 30, 2011)

A group of business owners (applicants) owned 155 acres of land to the northwest of the city limits of Lawrence, Kansas that was zoned County A (Agricultural.)  In 2008, the applicants petitioned the city of Lawrence for a voluntary annexation of the property by the City of Lawrence.  They intended to develop the property into an industrial area.  Since the property was not next to the existing borders of the city, it would be considered an island annexation.  Mastercraft Corporation, the developer of the property, intervened in the case and pursued the annexation and rezoning on behalf of the business owners.  Baggett Group, the plaintiff, is made up of individual homeowners that are located within ½-mile of the property.

K.S.A. 12-520c governs island annexations.  Among the conditions of approval, the statute states that “the board of county commissioners of the county must find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county.”

Initial findings of the City Planning Commission’s staff recommended that the annexation be deferred until a sector plan could be completed. The staff report pointed out that sanitary sewer services, water services, and private utilities were needed for the property, and that a regional detention plan for each watershed on the property was needed but not yet developed. Finally, the report noted that the property was outside the existing service response districts..  Despite these findings, the Commission recommended  to the Board approval of the annexation.  Pursuant to state law, the City then adopted a resolution requesting the County Board find and determine that the annexation of the described property into the City would not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within the County.  At the Board meeting, representatives for Mastercraft stated that annexation was requested in order to 1) bring the property under the jurisdiction of the City and thereby regulate the development more stringently to protect the neighbors; 2) provide for much needed industrial space for the long-term growth of the County; 3) provide more jobs and more tax revenue.  Representatives for the Baggett Group argued the annexation should be denied because of the lack of adequate water or sewage and the fact that future use of the property was unknown.  Mastercraft said it was unable to describe the intended use because the property will be leased out to business owners.  It was only able to say that all future uses will be those permitted within the industrial zoning classifications.  The Board concluded that the annexation would not “hinder or prevent proper growth and development of the area” and approved it.  The Baggett Group filed in district court which affirmed the Board’s ruling.

On appeal, the Baggett Group argued that the Board’s decision was not supported by substantial evidence and was arbitrary, capricious, and unreasonable.  The Court first looked to the report prepared by the City Planning Commission’s staff.  The report found that the annexation request was not in accordance with the “Horizon 2020” policy, which is the city’s formal planning policy.  The property is outside of the plan’s designated urban growth area.  The Plan also specifies that any development should indicate an intended use in order to mitigate harm to the surrounding area.  The Board received several letters from property owners testifying that they had relied on the Horizon 2020 plan.  One such individual stated he had made an investment in property near the property in question based on the fact that it would not be developed within the next 10 to 15 years.

The Baggett Group also raised issue with the lack of specified uses for the property.  They claimed it was impossible for the Board to consider how the annexation would affect the surrounding area without knowing what the land would be used for.  The only description of future use for the property was that it would include only those that were allowed under the industrial zoning classifications.  This very broad description of uses includes “those that cause continuous, frequent, or repetitive noises; noxious or toxic fumes, odors, and emissions; electrical disturbances; night illumination; explosive storage; and other nuisances that would be disturbing to surrounding residences.”  There were 11 homes directly adjacent to the property and 63 homes located within ¾-mile.

The Court noted that there was no evidence in the record of the case that the Board adequately considered how the development of the property would affect the surrounding area.  Although the specific use was not stated, any kind of industrial use can be concluded to be incompatible with residential areas.  Since there are existing residential areas adjacent to the property, the Board should have realized that industrial development would most certainly hinder or prevent proper development as a matter of logic.  The Court then observed that the Board never explored the possible uses that fall under the industrial zoning classification and how the most harmful ones would affect the surrounding area.  The Court ruled that “where the developer of the land in an island annexation cannot specify the intended uses of the land but provides only a category of potential uses, the Board must examine those potential uses – or at least the most potentially deleterious uses – and determine whether those potential deleterious uses would ‘hinder or prevent the proper growth and development of the area.’” For the above reasons, the Court concluded that substantial evidence to support the Board’s conclusion did not exist.  It reversed the district court’s approval of the annexation.

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