Zimmerman, v. Board Of County Commissioners Of Wabaunsee County

218 P.3d 400 (2009)

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Nature of the Case

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Facts

Ps are owners of land 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. In October 2002, the county zoning administrator told D 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, D 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. In December 2002, the county planning commission conducted its first public meeting to discuss amending zoning regulations regarding commercial wind farms. The planning commission held a public hearing for discussion of the proposed zoning regulations which included regulations of small and commercial wind farms. 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. D adopted the planning commission's recommended changes to the Plan and adopted the Comprehensive Plan 2004. On May 20, after D'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. D adopted the commission's recommendations regarding the regulation of Small Wind Energy Conversion Systems (SWECS, i.e., small wind farms). It rejected, however, the commission's recommendations regarding the regulation of CWECS and prohibited commercial wind farms in the county. Ps sued D, seeking a judicial declaration that D's action was null and void. Ps also sought damages under a number of different theories. D filed a motion to dismiss for failure to state a claim and for lack of jurisdiction. The district court held D followed the proper procedures under K.S.A. 12-757(d) and dismissed Ps' claims. It reserved judgment on the remaining Count III (unconstitutional taking) and Count VII (42 U.S.C. § 1983 [2000]) holding that their consideration was premature until the court could determine the reasonableness under K.S.A. 12-760 of D's adoption of Resolution No. 04-18. The judge determined that D's action was reasonable and that there was 'substantial evidence which a reasonable mind might accept as adequate to support the conclusions reached by the County.' He ruled that the 'County has taken into account the benefit or harm involved to the community at large and has exercised a decision on that basis which is not so wide of the mark that its unreasonableness is outside the realm of fair debate.' The judge concluded that 'once the district court determines the zoning action was reasonable there is no taking.' He determined that D did not take away any existing rights; it just 'refused to expand the existing rights including wind rights.' As for the taking claims under 42 U.S.C. § 1983, he held that because there was no deprivation of an existing federal right, i.e., no taking under the Fifth Amendment to the United States Constitution, the claim failed. As for the claim of inverse condemnation, the judge held that it too depended upon an unreasonable exercise of the police power. Because he had held that D's amendment of the zoning regulations was reasonable, this claim too failed. Ps appealed claiming a countywide ban was unreasonable because it was based solely on aesthetics, D failed to consider the impact of the ban on the wind-rights owners, and D failed to consider the alternative that commercial wind farms could be located in areas that would not affect aesthetics.