Kansas annexation statutes require substantive test for “reasonableness,” but annexation in question met the test

by Gary Taylor

Stueckemann and Cedar Lake Association v. City of Basehor
Kansas Supreme Court, April 24, 2015

In 2008 the city of Basehor initiated the unilateral annexation of the Estates – a platted residential subdivision of approximately 115 acres adjacent to the city and accessible by city streets.  The Estates has been served by city sewer under a contract since 2004.  Residents of the Estates raised several issues to contest the annexation.

Improper notice.  The written legal description in the notice provided to parties erroneously included a parcel that was correctly excluded from the map.  The map incorrectly excluded a different parcel that was correctly included in the resolutions and published area sketch.  The Stueckemanns argued that these errors meant that the city failed to meet the statutory notice obligations found in Kansas Statutes.  The Supreme Court agreed with both lower courts that the city met the obligation of “substantial compliance” as the statutes have been interpreted to require in previous court cases.  “Because even with the initial identification errors and inconsistencies acknowledged by the city, the Stueckemanns seemed to be able to determine what area the city sought to annex as they actually notified the city council of the specific discrepancies….”

Plan for extending municipal services.  The city was required by state law to develop a plan for the extension of municipal services to the annexed land.  The Stueckmanns attacked the plan’s provisions for police services and for street and infrastructure maintenance, asserting the plan contained insufficient detail about Leavenworth County’s current services and how the city would proceed to provide its own services post-annexation.  As with the notice requirements, courts review annexation service plans for “substantial compliance” with state law.  The purpose of the plan is “to inform the affected landowners of the municipality’s decision, what benefits they will receive, and what costs they will incur,” so that affected landowners “may attempt to persuade the city that annexation would not be in the best interest of either party.”  In previous cases the Supreme Court had determined that a “bona fide plan” meets the requirement for substantial compliance, and that a “bona fide plan” is one that is prepared and submitted by the city in accordance with the statute in good faith and with honest intentions on the part of the city to implement the plan as submitted.”  In the present case the court could not conclude that the city’s plan was not being submitted in good faith.  The plan provided estimates of the cost and cost impact of providing police protection and extending street infrastructure and maintenance, states the means by which the Estates received such services prior to the annexation, and demonstrates how the city will finance the extension of services.  A specific timetable is not required, nor would it be feasible considering the facts of the case.

Annexation is unreasonable.  The requirement in state law that an annexation be “reasonable” was interpreted by the Kansas Supreme Court.  Prior to a 2005 statutory amendment, it was interpreted to simply mean that the annexation did not “violate constitutional protections or statutory authority….Courts do not pass on the wisdom, necessity, or advisability of legislative acts delegated to municipalities.”  Under the 2005 amendments, however, the court determined that “reasonableness” now means that a landowner may challenge an annexation on substantive grounds.  Despite this new standard, an annexation is not per se unreasonable when the value of new services does not exceed the new taxes imposed.  A court reviewing a city’s unilateral annexation may consider the inherent benefits residents enjoy by virtue of their proximity to the city.  Under the facts of the case, the city’s annexation met the statutory test for reasonableness.

Judgment for the city.


Lincoln Center (KS) noise ordinance unconstitutional as applied, nuisance ordinance was not

by Gary Taylor

City of Lincoln Center v. Farmway Co-Op and Farmway Storage #1
(Kansas Supreme Court, December 20, 2013)

Farmway owns a grain elevator in the city of Lincoln Center, largely surrounded by residences.  In 2008 Farmway applied for, and was granted a permit to expand the facility by adding a new 124-feet tall grain bin and four aeration fans for grain drying.

According to the testimony of neighbors, when the new facilities began operating in 2009 the levels of dust and noise increased significantly.  The fans made sleeping, conversing and watching TV difficult, and large clouds of grain dust frequently reduced visibility and caused respiratory problems.  It was undisputed that Farmway took several steps to reduce noise and dust concerns, and that the facilities complied with all state and federal regulations regarding dust and noise.  Nevertheless, the city cited Farmway for violations of both its noise and its nuisance ordinances.  Farmway was found guilty of both.  Farmway appealed on the grounds that both ordinances were unconstitutionally vague.  The district court sided with Farmway and, on appeal, the Court of Appeals affirmed.  The city appealed to the Kansas Supreme Court.

To determine if an ordinance is unconstitutionally vague, a Kansas court must make a two-pronged inquiry to (1) determine whether the ordinance gives adequate notice to those tasked with following it; specifically, whether it conveys sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice.  (2) the ordinance must be precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it.

The City’s Noise Ordinance:

Section 1. DISTURBING THE PEACE. It is unlawful for any person to make, continue, maintain or cause to be made or continue any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.
Based on the test set forth above, the Court concluded the noise ordinance was unconstitutionally vague as applied to Farmway because it failed the second prong of the inquiry.  “Consider the uncertainty facing the enforcing agents when they determined … whether Farmway’s noise was ‘excessive,’ ‘unnecessary,’ or ‘unusually loud,’ which ‘disrupts’ or ‘annoys’ others in the city.  The ordinances’ lack of objective standards for making these determinations readily promotes varying and somewhat unpredictable bases for enforcement….This vagueness constitutes an impermissible delegation of basic policy matters to actors ‘for resolution on an ad hoc and subjective basis.'”
The City’s Nuisance Ordinance:

MAINTAINING PUBLIC NUISANCE. Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare. (K.S.A. 21-4106). Maintaining a public nuisance is a Class C violation.

PERMITTING PUBLIC NUISANCE. Permitting a public nuisance is knowingly permitting property under the control of the offender to be used to maintain a public nuisance, as defined in Section 9.5 of this article. (K.S.A. 21-4107).
The language in the city’s nuisance ordinance is verbatim from the Kansas statutes.  To the two-pronged inquiry the Court added a third consideration for nuisances; that is, that the court must be “mindful of the specific characteristics of nuisances….[W]hether an activity constitutes a nuisance is generally determined by reference to the interest invaded and the harm inflicted, not the nature or quality of the defendant’s acts.”
The Court concluded that, unlike the words found in the noise ordinance, the words “injure” and “endanger” have common meanings widely understood in the legal context.  Similarly the meaning of “public health,” “public safety,” and “public welfare” is widely understood in legal circles. Citing Black’s Law Dictionary and prior caselaw, the Court found that Farmway was “clearly on notice” that its facility was injuring or endangering the public’s health, safety, or welfare, and that the agents enforcing the ordinance were not free to prosecute based on their own ad hoc and subjective judgments; they must consider how the community is affected.  The Court upheld the constitutionality of the nuisance ordinance.

Burden on city to determine whether feasible alternatives existed to proposed project affecting historic site

by Gary Taylor

Friends of Bethany Place v. City of Topeka
(Kansas Supreme Court, August 23, 2013)

The Grace Episcopal Cathedral and the Episcopal Diocese of Kansas (the Church) applied for a building permit for a parking lot on land it owns in Topeka because – according to a Church representative – the Church is critically short of disabled access space and estimated its true parking needs at 194 stalls.  The land is known as Bethany Place, and is included on the Register of Historic Kansas places.  This designation shields Bethany Place from further development unless the statutory protections with the the Kansas Historic Preservation Act (the Act) are satisfied.  The Church’s cathedral building and current 89-stall parking lot are adjacent to Bethany Place but are not considered part of the historic site.  The site is in a residential neighborhood next to Topeka High School.  The proposed parking lot project would include the removal of several trees, and the laying of hard surface across some of the historic site’s green space.

After investigating the project, the State Historic Preservation Officer (SHPO) wrote to the Topeka Planning Department that the project would damage or destroy the Bethany Place site, and “drastically change the relationship between the two historic buildings on the site with the public street of Polk.”  The SHPO recommended an alternative site design.  The day after receiving the SHPO’s letter, the Planning Department recommended that the City Council deny the building permit “in light of alternative and feasible alternatives that will not encroach upon or damage the listed property.”  The recommendation also cited the Topeka Traffic Engineering Division’s determination that “angled cut-back parking along SW Polk Street adjacent to the property would be a feasible alternative to the Church’s proposal, but notably contained no additional information detailing economic, technical or design issues related to the feasibility of cut-back parking.  The Church asked the SHPO to reconsider his findings, and asked the City Council to issue the permit anyway.  One day before the hearing, the organization “Friends of Bethany Place” (FOB) was formed to oppose the project.

At the hearing The Church submitted a number of supporting documents. The FOB also submitted documents in opposition to the request, including a petition with 95 signatures and a document entitled “alternative parking lot sites” that was an aerial photo of the grounds with notes suggesting alternative sites for parking.  At the conclusion of the lengthy hearing, the City Council unanimously passed the following motion:

I’d like to make a motion to approve the communication to override the recommendation of the [SHPO] and issue the parking lot permit.  I base this on the City Council’s consideration of all relevant factors, that there are no feasible and prudent alternatives of the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.

FOB filed suit the next day.  The city filed a motion to dismiss, arguing that FOB lacked standing.  The district court concluded that FOB had standing, and that the record was insufficient to support the Council’s conclusion that there were no feasible alternatives to the project.  On the City’s appeal of that decision, the Court of Appeals affirmed the district court on the standing issue, but reversed on the permit issuance. FOB appealed.

Standing. The Act provides that “any person aggrieved by the determination of a governing body…may seek [judicial] review….”  The Court concluded that FOB clearly fell within the definition of “person” provided by statute.  As for the term “aggrieved,” the Church and City urged the Court to follow earlier case law interpreting “aggrieved” – as it appeared in another statute – to mean “one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by the order.”  The Court declined to do so, stating that the Act contemplated a much broader view of “aggrieved.” It cited language in the preamble of the Act making historic preservation “among the highest priorities of government…for the eduction, inspiration, pleasure and enrichment of the citizens of Kansas.”  It also noted that property owners within 500 feet of an historic site – an area within which several FOB members reside – receive special consideration in matters relating to the designation of historic sites.  Finally, it considered important several affidavits submitted by FOB members that stated that their property values would be negatively affected by the project.  In sum, FOB had standing to challenge the Council’s decision.

Decision merits.  According to Kansas caselaw, the ultimate question for the Court is whether the City Council took a “hard look” at all relevant factors, and used plain common sense in its determination as to whether the facts support the decision.  This is to limit the Court’s scope of review to whether decision “represented a clear error of judgment.”  The Court in this case concluded that the Council did not take the required “hard look.”  Under the Act, to allow the project the Council must determine that (1) there were no feasible and prudent alternatives to the proposed parking lot, and (2) the proposal included all possible planning to minimize harm.  It placed the burden on the City – not project opponents – to establish the existence and feasibility of alternatives.  The Court found an absence of technical, design and economic considerations submitted to the Council regarding potential alternatives.  Several alternatives were suggested by opponents to the project, but the Council failed to direct any further investigation into these alternatives.  In all, the record before the Court demonstrated that the Council failed to adequately perform its investigatory role to identify feasible alternatives, and because of this the Court directed that the case be remanded to City council for another hearing after the necessary investigations are conducted and evidence gathered concerning feasible alternatives.


Kansas statute requires county approval of city development in airport area

By Gary Taylor

143rd Street Investors, LLC v. Johnson County (KS) Commissioners and the City of Olathe
(Kansas Supreme Court, August 5, 2011)

143rd Street Investors, LLC (Landowners) own approximately 95 acres of land on the southeast corner of 143rd Street and Pflumm Road, located in the City of Olathe and Johnson County. A portion of the property lies within the Johnson County Executive Airport’s “primary flight corridor subarea A,” which is a 500- foot-wide corridor centered along the extended centerline of the existing runway. Most of the property is located adjacent to this corridor and is not on the direct path of landings or takeoffs.  For several decades, this property was zoned agricultural. Seeking to change this zoning, the landowners filed an application with the City to classify the property as RP-1-planned single-family residential and to approve a preliminary plat for a subdivision with 230 lots and 16 tracts to be known as Amber Ridge. The Amber Ridge development would have an overall density of approximately 2.4 dwellings per acre.

The Olathe City Planning Commission conducted public hearings and fully reviewed the rezoning application. As part of this process, the City Planning Staff received a letter in which the Johnson County Planning Department objected to the proposed rezoning because the Amber Ridge development plan included “a density that is significantly more than supported by the recently adopted Johnson County Executive Airport Comprehensive Compatibility Plan, which called for a housing density of one dwelling unit per acre on the subject property.  Ultimately, the City Planning Staff recommended the City Planning Commission approve the proposed rezoning because it was consistent with the goals, objectives, and policies of the City’s comprehensive plan. According to the City Planning Staff the failure to comply with the Airport Compatibility Plan was not a detriment to the City’s approval because the City had not adopted the Airport Compatibility Plan and was not required to do so. The City Planning Staff’s recommendation suggested several stipulations, however, including the incorporation of soundproofing materials into structures in the development, and that there be plat and deed notations indicating that the property is adjacent to the Airport and “will be subject to high frequency of over flights by aircraft at low altitudes.” Upon receipt of this information, the City Planning Commission voted instead to recommend denial of the request.

The rezoning application was next considered by the City Council. After hearing comments from City Planning Staff and nine concerned citizens (regarding safety, noise, aircraft and vehicle traffic, storm water run-off, and schools), the landowners’ engineer, and the landowners’ planning consultant, the City Council unanimously approved the rezoning request.

A copy of the landowners’ application, the plat, and the record developed during the City’s consideration of the application were then forwarded to the Count, as required by K.S.A. 3-307e. After referring the application to the Johnson County Airport Commission (which recommended denial of the project) the County Commissioners denied the landowners’ rezoning application, citing concerns about insufficient open space and the “negative impact upon, and incompatibility with” the Airport Compatibility Plan.

The landowners filed suit in Johnson County District Court.  The district court held that the City was the zoning authority and the County must take a quasi-judicial role in reviewing the City’s rezoning decision. This meant that the County must overcome the presumption that the City’s decision was reasonable if the County was going to deny the rezoning. The district court found it significant that the Airport Compatibility Plan approved residential use of the subject property, albeit at the lower density level of one dwelling per acre. In light of that, the district court concluded that the difference in density approved vs. the density found in the plan was not sufficient to make the City’s approval unreasonable.

The County appealed the district court ruling, arguing, among other things, that the district court erroneously interpreted K.S.A. 3-307e to mean that the County had to approve the proposed rezoning unless the County could show that the City’s decision was unreasonable. The Kansas Supreme Court sided with the County and reversed the district court. The Supreme Court interpreted K.S.A. 3-307e to allow the County to reach an independent determination; in other words, the County was a reviewer with the same status as the City, and a denial by the county was a denial of the project.

County attorney serving multiple roles in condemnation case creates impermissible likelihood of bias

by Melanie Thwing

Davenport v. Morris County Board of County Commissioners
(Kansas Supreme Court, September 10, 2010)

In February of 2000, the Morris County Board of County Commissioners in Kansas decided to vacate 2 roads. Davenport Pastures, LP filed a written application for damages because these roads accessed a ranch they leased. Without a hearing the Assistant County Attorney drafted a letter on the Boards behalf, rejecting the application. The matter was brought before the district court, which awarded Davenport $30,000.

The County Board appealed and the Court of Appeals remanded the case back to the County Board for further proceedings. After the remand the Assistant County Attorney pressed the Board to have a hearing, and on separate occasions took two commissioners to view the roads. At the attorney’s recommendation appraiser David Sundgren was hired. A hearing was held and the attorney acted as legal council for the Board, and cross-examined Davenport Pastures’ experts as well as Sundgren, who appraised damages of $4,050. The Assistant County Attorney also ultimately wrote the final decision of the Board.

Arguing that the Assistant County Attorney’s multiple roles violated due process, Davenport Pastures appealed. Neither the district court nor the Court of Appeals found sufficient evidence that his dual roles, “actually affected the Commission’s decision.”

Before the Kansas Supreme Court, Davenport Pastures argued that the multiple roles played by the attorney deprived them of their Fourteen Amendment right to due process. The Court cites Powers v. State Department of Social Welfare where the Department appointed its own attorney to preside over a “fair hearing,” and where the lawyer later represented the Department in the appeal. The Court in Powers found the double roles, “highly improper,” and a clear conflict of interest.”  Further, in Coats v. U.S.D. a similar situation occurred where a school’s selection board choose one of its own attorneys to serve on a hearing committee. The Court in Coats found, “[T]he school board’s appointment of its own attorney to the hearing committee violated the rule of fundamental fairness… Such a blatant defiance of due process cannot be countenanced…”

The Kansas Supreme Court concluded that having the Assistant County Attorney represent the Board on almost all matters in this proceeding caused a risk of bias that is too high to be constitutional. He first played a role of legal advisor, second as the sole advocate for the Board, and third as an adjudicator because he had advised the Board to hire Sundgren, brought the commissioners to see the road, and drafted the decision. The Court observed that “…due process is violated when, under all the circumstances of the case, the ‘probable risk of actual bias [is] too high to be constitutionally tolerable.” The case was remanded back to the Board County Commissioners for reconsideration.

Kansas Supreme Court rules on county ban on wind energy

by Allison Arends

Zimmerman, et. al. v. Wabaunsee County Board of Commissioners
(Kansas Supreme Court, October 30, 2009)

Wabaunsee County had no zoning regulations on wind energy systems.  A month after the Wabaunsee county zoning administrator notified the Board of Commissioners that a company was interested in building a wind farm in the county, the Board passed a temporary moratorium on the acceptance of applications for wind farm projects until the planning commission held a public hearing to deliberate possible zoning changes.  As part of the deliberation the Board ordered the planning commission to review and recommend updates to the county’s comprehensive plan, which had not been updated since 1974.  In 2004, the planning commission recommended changes to the comprehensive plan which included goals such as increasing the organizational pattern of land use, maintaining rural character of the county, promoting business growth etc.  Although the planning commission recommended allowing commercial wind farms, the Board added a new paragraph to the comprehensive plan which recommended prohibiting the development of commercial wind farms, and followed it up with zoning changes that carried out the ban.  The Board found that, “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.  Land owners in Wabaunsee county interested in developing commercial wind farms on their properties sued the Board arguing that the Board acted unlawfully and unreasonably in its prohibition of commercial energy conversion systems.

The Kansas Supreme Court supported the Board’s actions, finding that the Board acted within its legislative powers to adopt the ban despite the planning commission’s recommendations to the contrary.  The court also validated the Board’s use of aesthetics as a justification for its decision, citing K.S.A 12-757(a) which states, “the governing body may adopt zoning regulations which may include but not be limited to, provisions which… (4)control the aesthetics of redevelopment or new development.” The court also noted that the Board acted reasonably when they argued that the commercial wind farms would not be in conformance with the Comprehensive Plan amended in 2004, and that the restriction would, “maintain the rural character of the county with respect to its landscape, open spaces, peace, tranquility and solitude.” The court recognized the wishes of the county’s residents as another factor that validated the Board’s  decision to ban commercial wind farms.

Moreover, the court specifically addressed the ecological harm commercial wind farms would have upon the endangered Tall Grass Prairie ecosystem located within the county. The court observed that “Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county,” which make them “objectionable and unsightly.”





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