Opinion
No. 105,434.
2013-01-11
SIMCO, L.C., Yucca Ridge Golf Club, L.C., Yucca Ridge Development, L.C., and John T. Smith Associates, Inc., Appellants/Cross-appellees, v. SEWARD COUNTY, Kansas, The Board of Commissioners for Seward County, Kansas, and Seward County/City of Kismet Planning Commission, Appellees/Cross-appellants.
Appeal from Seward District Court; Tom R. Smith, Judge. Kerry McQueen and Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellants/cross-appellees. James M. McVay, of Watkins Calcara, Chtd., of Great Bend, and Daniel H. Diepenbrock, of Liberal, for appellees/cross-appellants.
Appeal from Seward District Court; Tom R. Smith, Judge.
Kerry McQueen and Shirla R. McQueen, of Sharp McQueen, P.A., of Liberal, for appellants/cross-appellees. James M. McVay, of Watkins Calcara, Chtd., of Great Bend, and Daniel H. Diepenbrock, of Liberal, for appellees/cross-appellants.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this lawsuit, Simco, L.C., Yucca Ridge Golf Club, L.C., Yucca Ridge Development, L.C., and John T. Smith Associates, Inc. (Plaintiffs) sought an order enjoining Seward County, Kansas, The Board of Commissioners for Seward County, Kansas, and Seward County/City of Kismet Planning Board (collectively Defendants) from applying subdivision regulations to their plat for a proposed subdivision. Plaintiffs also sought a writ of mandamus requiring Defendants to approve the plat and to refrain from interfering with development of the subdivision. The district court denied relief holding that the property was subject to subdivision regulations established in 2008. Plaintiffs appeal this holding. Defendants cross-appeal the district court's further ruling that subdivision regulations established in 1997 were void. We affirm the district court's holding that the property was subject to subdivision regulations established in 2008. Given our decision, we decline to review the Defendant's cross-appeal because it is moot.
Factual and Procedural Background
The parties submitted this case on stipulated facts and a voluminous documentary record. The district court found Plaintiffs are “working to develop a housing development, golf course, and aircraft landing strip into a subdivision ... in rural Seward County, approximately 4.5 miles from the city limits of the City of Liberal, Kansas.” Because the development is “outside of the three (3) mile limit from the boundaries” of Liberal, it is “subject to action of the Board of Commissioners of Seward County.”
The Board of Commissioners' authority is based on Kansas statutes. In 1991, the legislature passed “enabling legislation for the enactment of planning and zoning laws and regulations by cities and counties for the protection of the public health, safety and welfare .” K.S.A. 12–741; L.1991, ch. 56, sec. 1. The legislation enables a “county planning commission” to “establish subdivision regulations for all or for parts of the unincorporated areas of the county.” K.S.A. 12–749(a). The subdivision regulations may be approved by a “resolution in a county,” and if so are “effective upon publication of the ... adopting ... resolution.” K.S.A. 12–749(d).
After enactment of these Kansas statutes, Seward County adopted and revised its subdivision regulations. In 1993, the Board of Commissioners approved Resolution 93–5 to establish subdivision regulations in the county. In 1997, the Board of Commissioners approved Resolution 97–23 to establish a new edition of the 1993 subdivision regulations. Ten years later, in 2007, the Board of Commissioners approved Resolution 2007–05 to update the 1997 edition of the 1993 subdivision regulations.
Turning now to the development activity of the Plaintiffs, the district court found that
“In September 2003 Plaintiffs submitted an application to rezone Section 32, Township 33 South, Range 33 West from agriculture to planned unit development.... “On December 15th, 2003, the ... Board of [Commissioners] ... considered the proposal and approved the rezoning on a 5–0 vote.
“Over the ensuing years, the Plaintiffs have submitted several other plats in their attempt to obtain permission from the [Board of Commissioners] to build the proposed subdivision.”
The Plaintiffs' plats, however, were in conflict with the subdivision regulations purportedly established by “Resolutions 1997–23 and 2007–05.” By “January 7th, 2008,” the Board of Commissioners had “denied all appeals for platting.”
Two days later, on January 9, 2008, Plaintiffs filed this lawsuit which is the subject of this appeal. The lawsuit alleged that the Board of Commissioners “failed and refused to adopt Resolution Nos. 93–5, 97–23 and 2007–5 and all subsequent amendments thereto in conformity with applicable law.” As a result, the Plaintiffs alleged “there [are] no zoning or subdivision regulations in place applicable” to the development of the subdivision. Shortly after the commencement of this litigation, on February 18, 2008, the Board of Commissioners approved Resolution 2008–04 to establish new subdivision regulations in Seward county.
After amending their petition, Plaintiffs stated their claims in the pretrial order as follows: (1) that the resolutions before 2008–04 were void; (2) that Defendants acted arbitrarily and capriciously in applying subdivision regulations based on these void resolutions against Plaintiffs; and (3) that Defendants acted arbitrarily and capriciously with respect to Resolution 2008–04. Unlike the earlier resolutions, the Plaintiffs did not argue that Resolution 2008–04 was void. Instead, the Plaintiffs contended that the Defendants had cancelled a regularly scheduled meeting in order to bring the Plaintiffs under the subdivision regulations established by Resolution 2008–04:
“Upon the passage of the February 2008 regulations Plaintiffs made a timely request for an extension of time to file their final plat to the Seward County/City of Kismet Planning and Zoning Board, which was, as part of these older regulations, bestowed with the authority to grant such a request for an extension of time as provided by the regulations, notwithstanding Plaintiffs' claim of invalidity. Defendants failed to hold their regularly scheduled meeting based on a lack of agenda items, until Plaintiffs' time ran on the preliminary plat, and then resumed conducting meetings. These specific actions have caused Plaintiff[ ]s to be subject to the 2008 regulations and are the direct result of Defendants' unreasonable, arbitrary, capricious and discriminatory actions.”
The district court ruled for the Plaintiffs in part, finding that Resolutions 93–5, 97–23, and 2007–5, were void. After detailing the Defendant's failures to follow statutory notice and hearing requirements, the district court found “from 1993 when [the Board of Commissioners] started trying to adopt ... subdivision regulations,” there was “never ... in place a valid ... subdivision regulation which would impact the real estate owned by the Plaintiff[s].” As a result, the district court enjoined Defendants from enforcing the subdivision regulations purportedly established by Resolutions 93–5, 97–23, and 2007–5.
The district court also ruled for the Defendants in part. Regarding Resolution 2008–04, the district court noted that property such as the Plaintiffs' would be “ ‘unzoned” absent valid subdivision regulations, leaving its owners free to “proceed with any other lawful intended use.” (The district court and the parties have used cognates of “zone” to mean land use restrictions generally, including subdivision regulations.) In this regard, the district court observed that property owners have “no vested right in existing zoning of property.” On the contrary, property owners hold their “property subject to the rights of the governing body to rezone the property by reasonable enactment adopted in the valid exercise of the body's police power.” Relying on Ware v. City of Wichita, 113 Kan. 153, 214 P. 99 (1923), the district court held that the Board of Commissioners “had full authority” to enact Resolution 2008–04.
The district court also rejected the Plaintiffs' claim of arbitrary and capricious action by the Defendants. It found the Plaintiffs had not met their burden of proving the Defendants had attempted “to enforce a regulation [they] knew or should have known was void.” In summary, the district court denied relief to the Plaintiffs in significant part. The Plaintiffs filed a timely appeal. The Defendant's cross-appeal.
Plaintiffs' Appeal
On appeal, Plaintiffs do not controvert that Resolution 2008–04 was validly approved by the Defendants and became effective upon publication on February 20, 2008. Instead, the Plaintiffs argue that because they began their development and submitted plats before February 20, 2008, “Defendants must be enjoined from attempting to enforce ... the regulations adopted through Resolution 2008–4.” Plaintiffs insist that “[i]n light of the District Court's finding that all subdivision regulations prior to those adopted through Resolution 2008[–04] were void,” their “property is considered to be ‘unzoned.’ “ (Emphasis added.)
The issues raised by the Plaintiffs are questions of law based on largely stipulated facts. Accordingly, our review is de novo. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009); Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007).
The Plaintiffs request exceptional relief. They seek protection for their subdivision from any regulation, apparently in perpetuity. We are not persuaded.
In 1921, the legislature enacted a statute granting cites of the first class the power to create a planning commission. L.1921, ch. 99, sec. 1. The statute allowed these cities, through the use of planning commissions in conjunction with the mayor and commissioners, to require approval for any plats before filing with a register of deeds. L.1921, ch. 99, sec. 5. A statute enacted in that same year permitted such cities to establish “zones or districts, and regulate and restrict the location of trades and industries, and the location, erection, alteration and repair of buildings designed for specified uses, and the uses of the land within each district or zone.” L.1921, ch. 100, sec. 1.
These provisions were challenged in Ware, the case relied upon by the district court in deciding the present case. Although Ware dealt with municipal ordinances, not county resolutions, it established principles “applicable to the more recent county zoning resolutions.” Spurgeon v. Board of Commissioners, 181 Kan. 1008, 1013, 317 P.2d 798 (1957). When Spurgeon was decided our Supreme Court considered Ware “[t]he leading case.” 181 Kan. at 1013. Based on our research, Ware continues to be an important precedent.
The plaintiff in Ware “proposed to construct a business building” on a lot he owned in a residential area of a city. 113 Kan. at 154. The city had established a planning commission under the 1921 legislation, but “its work was not quite ready to be submitted to the city government for consideration and action.” 113 Kan. at 154–55. When the plaintiff applied for a building permit, “in view of the impending completion of the plan of development, which contemplated the creation of zoning districts within the city and which would bar the construction of a business building on such locations as that of plaintiffs lot, a permit was denied him.” 113 Kan. at 155.
The plaintiff sought a writ of mandamus “against the city and its officials to compel the issue of such permit.” 113 Kan. at 155. The city soon enacted a zoning ordinance and obtained a temporary injunction keeping plaintiff “from constructing his proposed building in violation of its terms.” 113 Kan. at 156. The plaintiff moved to quash the injunction, arguing in part that “the relief sought by the city would be retroactive, that the ordinance violated the [F]ourteenth [A]mendment, and ... that the ordinance was passed after his rights had accrued.” 113 Kan. at 156.
We pause to note that the Plaintiffs make similar arguments in the present appeal. They claim the Defendants have adopted “remedial subdivision regulations” and are attempting to “apply them retroactively to the Plaintiffs' development.” The Plaintiffs maintain “the subdivision regulations adopted in Resolution 2008–04 are substantive in nature and, thus, cannot be applied retroactively .” They also argue deprivation of “due process rights, insofar as the Plaintiffs have invested significant time and resources attempting to develop its property.”
Importantly, our Supreme Court rejected such reasoning in Ware, commenting that “[w]ith the march of the times, ... the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be.” 113 Kan. at 157. Our Supreme Court explained:
“[W]hen the zoning ordinance was adopted ..., it governed the then existing rights of the defendant property owner. Counsel for defendant cite cases which declare the general rule that a statute or ordinance should be constructed as dealing only with conditions arising after its enactment, and that legislation should not be given a retrospective operation unless such intention is unequivocally expressed. But this zoning ordinance was undoubtedly designed as a police regulation to arrest the further indiscriminate construction of miscellaneous business buildings in the residential districts of the city, as well as to provide for the future harmonious development of the town. It is only to a slight extent, if any, that the ordinance may be said to have a retrospective operation; it would be more precise to say that it merely crystallized the actual conditions at the time of its adoption. It did not bar buildings already built or prevent the completion of buildings partly constructed, but did provide that buildings not then substantially in course of construction and all those thereafter to be erected would have to conform to its terms. Such municipal legislation is not invalid, and the fact that the defendant had applied for a permit, and that his right thereto as of the date of his application had been adjudicated in his favor, did not prevent the new ordinance, when it was enacted, from governing the situation. [Citation omitted.] The permit was not issued; it has not yet issued; and the passage of the ordinance altered the status of defendant's right thereto. [Citation omitted.] Even if the permit had been actually granted, it could have been revoked after the passage of the ordinance, if done with reasonable promptness and before the situation had been materially changed to the prejudice of the defendant. [Citation omitted.]” Ware, 113 Kan. at 156–57.
We agree with the district court's reliance on Ware as dispositive precedent. Notably, the Plaintiffs point to no contrary authority. They do cite cases for the proposition that “subdivision regulations ... are in derogation of a landowner's common law property rights.” The Plaintiffs then cite cases for the proposition that “[s]tatutes and codes establishing the same are to be strictly construed, and require mandatory compliance with the statutory adoption procedure.” We agree with these general propositions, but they pertain to the validity of subdivision regulations—the question Plaintiffs successfully raised with respect to Resolutions 93–5, 97–23, and 2007–5. Plaintiffs do not contend Resolution 2008–04 is invalid or void, however, so the subdivision regulations established by that resolution may validly derogate a landowner's common-law property rights.
Next, the Plaintiffs cite cases for the proposition that “[s]ubstantive laws affect vested rights and are not subject to retroactive legislation.” The Plaintiffs, however, do not identify or brief their “vested rights” with citations to supporting authority. We will not speculate about the rights in question. The Plaintiffs have waived or abandoned this argument. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). We only point out, as the district court noted and the Defendants likewise emphasize, that a “property owner has no vested right in the existing zoning of his property, but holds it subject to the right of the governing body to rezone it by a reasonable enactment adopted in the valid exercise of its police power.” Houston v. Board of City Commissioners, 218 Kan. 323, Syl. ¶ 5, 543 P.2d 1010 (1975).
Ware is important because it applied to the initial zoning, a situation analogous to the circumstances of the present case. In fact, the plaintiff in Ware had more grounds to complain than do the Plaintiffs. Initially, the property in Ware was not affected by any zoning, apparent or otherwise; however, it later became subject to zoning contrary to its intended use. In the present case, the Plaintiffs' property was rezoned in 2003 to accord with its intended use, and the Plaintiffs knew from the beginning they would also be subject to subdivision regulations. We conclude based on this record and the arguments before us that the Defendants' approval of Resolution 2008–04 did not retroactively deprive the Plaintiffs of vested rights.
Additionally, the Plaintiffs maintain that even if Resolution 2008–04 applied to them, it contained a so-called grandfather clause which excused them from its terms. The resolution provided:
“All applications duly submitted prior to the effective date of this Resolution ... and in the process of being considered ... under the provisions of the ... Subdivision Regulations in effect prior to the effective date of this resolution, shall be considered and acted upon under the provisions of said previous ... Subdivision Regulations.”
Resolution 2008–04 did not state that applications submitted prior to its effective date would be considered and acted upon under the common law—as Plaintiffs ask us to find and determine. The plain language of the resolution stated that applications submitted prior to its effective date which were being considered under the provisions of subdivision regulations then in effect would be subject to those prior regulations. As Plaintiffs have maintained and the district court held, however, there were no valid regulations in effect prior to the enactment of Resolution 2008–04. Quite simply, this grandfather clause was never engaged. The pre–2008 subdivision regulations were never in effect because they were void.
We conclude the present case presents an issue that was decided more than 90 years ago in Ware. Given the district court's holding that Resolutions 93–5, 97–23, and 2007–5 were void, Plaintiffs are now subject to Resolution 2008–04. The district court did not err in denying the Plaintiffs their requested relief on this basis.
Next, the Plaintiffs argue to avoid this result by claiming what might be characterized as a “loss of chance to file a plat.” They claim they lost their chance to file a plat before Resolution 2008–04 took effect due to delays caused by the Defendants' arbitrary and capricious enforcement of the void prior resolutions.
Preliminarily, we note the Plaintiffs do not brief their second claim of arbitrary and capricious action, that the Planning Board subjected them to Resolution 2008–04 by cancelling a meeting and allowing a preliminary plat to expire. The Plaintiffs do not mention the cancelled meeting in their statement of facts. They mention it in argument, but only in support of other issues. Any claim the Defendants acted arbitrarily and capriciously in allegedly cancelling a meeting in 2008 is deemed waived or abandoned on appeal. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010).
We will also note other allegations by the Plaintiffs which are akin to a claim in their initial petition regarding the manner in which the Defendants applied the subdivision regulations to them, i.e., apart from the alleged voidness. Plaintiffs did not include that argument in the pretrial order, which controls the action thereafter. See K.S.A.2010 Supp. 60–216(d). As a result, the only issue on appeal with respect to arbitrary or capricious action is whether, as the Plaintiffs frame the issue, Defendants “clearly decided to enforce void regulations.”
We have previously determined that our appellate review is de novo. On this particular issue, however, the district court found that the Plaintiffs failed to carry their burden of proof. This is a negative finding which requires the Plaintiffs to “prove arbitrary disregard of undisputed evidence or ... some extrinsic consideration such as bias, passion, or prejudice.” Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008); see also J.A. Tobin Construction Co. v. Williams, 46 Kan.App.2d 593, 597, 263 P.3d 835 (2011) (applying standard to negative finding where usual standard permits no deference to the district court).
We are not persuaded that the Plaintiffs have shown error under either standard. The stipulated facts and documentary record show to the contrary that both the Plaintiffs and the Defendants treated the resolutions prior to Resolution 2008–04 as valid. Plaintiffs also identify no facts showing Defendants knew the prior resolutions were void.
For example, the record contains minutes from a Board of Commissioners' meeting on June 18, 2007. The Plaintiffs were seeking a waiver from a subdivision regulation requiring paved roads. They proposed gravel roads 22 feet in width to serve the dozens of home lots surrounding the golf course. According to Seward County's road and bridge supervisor, however, the minimum width for maintenance equipment was 25 feet and “due to the high density of homes four inch asphalt should be required.” The Board of Commissioners voted 4–1 to deny the waiver.
The Plaintiffs blame such difficulties on the Defendants' “continued and varying requirements” which they “knew or should have known ... were lacking enforceability.” But the record contains numerous examples similar to this meeting where both parties treated the subdivision regulations as binding. These examples do not show the Defendants refused “to act in good faith,” as the Plaintiffs assert, but that the Defendants simply disagreed with the Plaintiffs on the advisability of the waivers sought by the Plaintiffs.
We find further support for our conclusion in the Plaintiffs' own actions. As late as December 13, 2007, just weeks before Plaintiffs filed their initial petition, they were invoking the supposedly void resolutions. On February 28, 2008, after Plaintiffs had filed the petition, their counsel sent a letter to the Planning Board seeking the extension Plaintiffs later claimed was denied to them by the cancelled meeting. Counsel stated:
“As you are aware, Section 6–601.2 of the Seward County Subdivision Regulations allows the ... Planning Board to grant an extension of the one-year expiration of plat approval upon application of the subdivider.
“Notwithstanding my clients' belief and position that said regulations are invalid and unenforceable due to procedural defects in their adoption, my clients believe that it is important to obtain an extension on all plats submitted under these regulations in the event they are determined to be valid and enforceable.
“My clients' [ sic ] therefore request that the plats previously submitted hereunder which are now pending and/or are subject matter of the pending litigation be granted a one year extension from the date a final outcome is reached in the pending litigation.”
The citation to “Section 6–601.2 of the Seward County Subdivision Regulations” is from the regulations enacted in 1993 by Resolution 93–5 and updated until repealed by Resolution 2008–04. While Plaintiffs' counsel was presumably “covering all the bases,” the letter demonstrates both parties' treatment of the resolutions as valid until the district court determined otherwise. We hold the record amply supports the district court's rejection of the Plaintiffs' claim of arbitrary and capricious conduct.
Defendants' Cross–Appeal
In their cross-appeal, the Defendants contend that the subdivision regulations established by Resolution 97–23 were valid. We are uncertain, however, whether these regulations can stand alone given the interconnection of Resolutions 93–5, 97–23, and 2007–5. In any event, the validity of Resolution 97–23 is moot between these parties since Resolution 2008–04 established the subdivision regulations in force here. See Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005) (appellate courts do not consider moot issues or render advisory opinions).
Finally, we acknowledge the arguments concerning K.S.A. 19–2633, a 1929 platting statute still on the books, and the Defendants' invocation of the Seward County Sanitation Code as a defense. These arguments are also moot given the validity of Resolution 2008–04. In short, whatever might have been the case before the effective date of Resolution 2008–04, the Plaintiffs' plats are now subject to it.
Affirmed.