Opinion
No. 105,243.
2012-08-3
Sam DAVIDSON and Constance Davidson, Appellants, v. The CITY OF EDWARDSVILLE, Kansas, Appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge. Douglas J. Patterson and Virginia L. Brady, of Property Law Firm, LLC, of Leawood, for appellants. Christopher A. McElgunn, of Klenda, Mitchell, Austerman & Zuercher, L.L.C., of Wichita, for appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge.
Douglas J. Patterson and Virginia L. Brady, of Property Law Firm, LLC, of Leawood, for appellants. Christopher A. McElgunn, of Klenda, Mitchell, Austerman & Zuercher, L.L.C., of Wichita, for appellee.
Larry R. Baer, assistant general counsel, and Donald L. Moler, Jr ., executive director, of League of Kansas Municipalities, of Topeka, for amicus curiae League of Kansas Municipalities.
Michael D. Irvin, of Kansas Farm Bureau, of Manhattan, for amicus curiae Kansas Farm Bureau.
Before MALONE, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
Sam and Constance Davidson appeal the district court's summary judgment ruling in favor of the City of Edwardsville (City) in a dispute over their horse breeding business and horse rescue operation. We affirm the district court.
Factual and Procedural Background
The Davidsons reside on 10 acres of real estate within the city limits of Edwardsville. Constance purchased the property in November 2005. The land is zoned agricultural/residential. Of note, the City does not have purely agricultural zoning districts. Upon moving onto the property, the Davidsons began a horse breeding operation by purchasing two horses and, immediately thereafter, several additional broodmare stock and stallions. The Davidsons' horse breeding/animal husbandry operation involves the birthing, raising, pasturing, and training of about 28 horses.
In addition to their breeding business, the Davidsons started a horse rescue operation in December 2006. The couple rescues horses from slaughter and mistreatment and provides shelter for them while they attempt to find a suitable owner to adopt them. Although the Davidsons initially planned to limit the number of rescue horses to no more than 12, they have maintained up to 17 rescue horses on their property. The couple does not generate income from this operation; however, according to Sam, this venture could eventually produce revenue because it “is part of [their] overall business of horse breeding.”
From 2006 to 2010, the Davidsons maintained, on average, 42 to 44 horses on their property, using about 1/2 of the property's total acreage for their horse operations. The Davidsons primarily feed their horses horse feed. During a deposition taken on June 10, 2010, Sam testified that they do not use pasture for any feeding. However, in a July 30, 2010, affidavit, Sam swore that while they mainly utilize horse feed, “when possible, [they] use as much of [their] land to pasture [the animals] as available given the nutrition requirements, condition of the pasture, and weather.” The horses excrete 20 to 50 pounds of waste per day, and the Davidsons manage the waste by storing it in compost piles. Once the waste reaches a certain level of degradation, they mix it with topsoil and spread it throughout the property. The Davidsons use a variety of methods to control insects attracted to the horses.
The Davidsons purchased the property because it was listed as an equine facility “with existing horse stables, horse barns and horse stalls.” According to Sam, the prior owners of the property, Paul and Lola Slyter, who owned the property for only 5 months, kept at least one horse and possibly more, but unlike the Davidsons, the Slyters did not keep 42 to 44 horses on the property. Jeffrey and Nickola Crayton sold the land to the Slyters, and according to Jared Cooper, a former employee of the Craytons, Jeff used the property as a horse facility for “breeding, birthing and training horses.”
With the exception of one neighbor, the Davidsons' neighbors have essentially remained the same since the Davidsons purchased the property. In his affidavit, Sam swore that they have not “built any new horse structures upon the land, and all buildings [they] are utilizing for [their] horse operation were existing at the time [they] bought the land in 2005.” However, during his deposition, Sam testified that the couple installed horse pens and stalls “all across ... [the] north side” of the property and also terraces, silk fences, berms, and an electrified fence.
In 2008, the City began receiving complaints from nearby residents about the condition of the Davidsons' property, specifically the number of horses, the excessive amount of flies, the smell and unsightliness of the manure, and downstream damage to the water systems due to water runoff contaminated with manure.
As a result, on May 7, 2009, the City mailed the Davidsons a “Notice of Violation of the [Edwardsville] Environmental Code” based upon the following alleged violations: (1) “The number of domestic animals maintained on the property exceed[ed] the number allowed per acre by ordinance;” (2) “The animal waste and excrement on the land create[d] an environmental code violation;” and (3) “The overall conditions of the premises [we]re such that the minimum health and environment standard ordinances [we]re not being met.”
The notice was accompanied by an unsigned municipal court complaint alleging violations of the following City of Edwardsville Municipal Code (2008) provisions: (1) Municipal Code 8–201 (general health related nuisances); (2) Municipal Code 8–2A08(4) (environmental violations); (3) Municipal Code 2–111 (animal nuisance activities); (4) Municipal Code 2–113 (minimum health standards for animal confines); and (5) Municipal Code Ordinance No. 870 (operating standards for private and commercial animal lots or stables located in an agriculture/residential zoning district).
The notice stated that the Davidsons could either abate the violations within 30 days or request a hearing, within 10 days, before the City Council “to show cause why the ... premises [are] not in violation of City Ordinance.” The notice also stated that should the couple fail to take appropriate action, the City could file a criminal complaint in municipal court and, upon conviction, the Davidsons could receive a fine not to exceed $500, imprisonment up to 6 months, or both. Finally, the notice explained that “the city or its authorized agent will abate the violating conditions and assess the cost of such abatement, including a reasonable administrative fee, against the owner, occupant or agent in charge of the property” if the Davidsons failed to alleviate the violations or request a hearing before the City Council.
The Davidsons requested a show cause hearing which the City Council held on June 22, 2009. At the end of the hearing, by unanimous vote, the City Council found the Davidsons “in violation of the Environmental Code of the City of Edwardsville,” and the council gave them 10 days to “completely abate the nuisance.” The council subsequently adopted a resolution to this effect.
One month later, on July 22, 2009, the Davidsons filed a petition in the Wyandotte District Court seeking a declaratory judgment, restraining order, temporary injunction, permanent injunction, mandamus, judicial review, and writ of certiorari. The Davidsons essentially alleged that Municipal Code Sections 8–201, 8–2A08(4), 2–111, 2–113, and Ordinance Nos. 864 and 870 were unenforceable because they violate Kansas laws that protect agricultural endeavors, specifically K.S.A. 12–758 and K.S.A. 2–3201 et seq. ; infringe upon their rights to due process and equal protection under the Constitutions of the United States and Kansas; and were adopted in violation of the City's procedures for adopting planning, zoning, and land use rules.
Almost 1 year later, on July 9, 2010, both parties filed motions for summary judgment with supporting memoranda. The Davidsons alleged that summary judgment should be granted in their favor because there was no genuine issue as to any material fact, which entitled them to judgment as a matter of law.
In particular, the Davidsons argued that the Municipal Code provisions cited in the notice should be declared null and void because the Kansas Legislature “ ‘has clearly preempted [the] field so as to preclude municipal action[s]’ [, citation omitted,]” that regulate the use of land for agricultural purposes. The couple also contended that Municipal Code Ordinance No. 870 is an illegal zoning regulation because K.S.A. 19–2921 prohibits municipalities from utilizing zoning ordinances to regulate preexisting structures and agricultural activities such as animal husbandry operations. The Davidsons similarly contended that Municipal Code Sections 8–201, 8–2A08(4), 2–111, 2–113, and Ordinance No. 864 violate K.S.A. 2–3201 et seq. , which protect Kansas fanners from public and private nuisance actions.
On the other hand, the City requested summary judgment on the ground that the Davidsons' claims lacked an underlying legal basis. In particular, the City argued that while K.S.A. 2–3201 et seq. does provide “ ‘[a]gricultural activities conducted on farmland’ “ with some protection from nuisance actions, it does not absolutely exempt such property from nuisance actions nor does it prohibit the enactment of ordinances which regulate agricultural activity. The City explained that K.S.A. 2–3201 et seq. provided the Davidsons no protection from the challenged municipal code provisions because the state statute only applies if the activity qualifies as an “ ‘agricultural activity,’ “ the agricultural operation complies with all federal, state, and local laws, and the agricultural operation was established prior to the encroachment of nonagricultural activities; three conditions which the Davidsons had failed to satisfy. The City also argued that K.S.A. 12–758 was inapplicable because the municipal code provisions at issue were not zoning regulations and, alternatively, K.S.A. 12–758 only applies to regulations enacted under K.S.A. 12–715b, which refers to land located outside of a city but within 3 miles of the city's boundaries. Finally, the City contended that the Davidsons have no constitutional “ ‘Right to Farm’ “ and the challenged municipal code provisions were enacted under the City's home rule powers granted by Article 12, § 5 of the Kansas Constitution.
The City filed a response to the Davidsons' motion for summary judgment arguing that K.S.A. 12–2921 was inapplicable because it only applies to zoning regulations enacted by county planning boards. The Davidsons subsequently abandoned their arguments relating to K .S.A. 12–2921. The Davidsons explained that they had cited K.S.A. 12–2921 in error and had intended to cite K.S.A. 12–758. As such, the Davidsons supplemented their motion for summary judgment by reasserting their contention that K.S.A. 12–758 prohibits municipalities from enacting zoning ordinances that regulate agricultural activities and preexisting uses of property.
On August 5, 2010, the district court held a summary judgment hearing and took the matter under advisement. On September 29, 2010, the district court issued a memorandum opinion granting the City's motion for summary judgment and dismissing the case.
According to the district court, the crux of the parties' arguments was whether the City's ordinances were zoning ordinances or health and welfare ordinances that can regulate preexisting uses of land. Relying primarily upon Bice v. City of Rexford, No. 97,227, unpublished opinion filed October 5, 2007 (Kan.App.), the district court explained that the challenged ordinances are not zoning regulations because they do not create zones or districts within which certain activities may or may not take place; instead, they were enacted to promote the health, safety, and welfare of the public. As a result, the district court found that the ordinances do not violate K.S.A. 12–758 “which relates to pre-existing non-conforming uses of land prior to enactment of zoning ordinances.” Moreover, after noting that the Davidsons had failed to cite any authority supporting their contention that the City's ordinances violate K.S.A. 2–3201 et seq. , the district court explained that K.S.A. 2–3201 et seq. “bears no relationship to the issues in this case,” as the Davidsons' activities are not the subject of a “nuisance lawsuit” due to the encroachment of nonagricultural activities in the area.
The Davidsons timely appealed.
On appeal, the Davidsons raise three issues which they assert establish the district court erred, as a matter of law, when it granted the City's motion for summary judgment. We will review these issues individually.
Standards of Review and Applicable Legal Principles
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact necessary for the resolution of the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Where there is no factual dispute, appellate review of a summary judgment order is de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
Additionally, the Davidsons' arguments on appeal involve the interpretation of statutory language, a question of law subject to unlimited review. Unruh v. Purina Mills, 289. Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When interpreting a statute, an appellate court must first attempt to ascertain legislative intent through the statutory language employed, giving ordinary words their ordinary meaning. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). Where there is no ambiguity in the statutory language, the court need not resort to statutory construction; an appellate court does not speculate as to the legislative intent and will not read into the statute something not readily found within it. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe legislative intent. Double M. Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
Do Ordinance Nos. 864 and 870 Violate the Kansas Right–to–Farm Law?
Preliminarily, although the City found the Davidsons in violation of five code provisions, the Davidsons limit their arguments on appeal solely to Municipal Code Ordinance Nos. 864 and 870. As a result, the validity of the other three municipal ordinances is not reviewable on appeal because an issue not briefed by the appellant is deemed waived and abandoned. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010).
Ordinance Nos. 864 and 870 govern the maintenance and control of animals within the EdwardsviUe city limits. The City adopted Ordinance No. 864, which amended several provisions of Chapter II of the Muncipal Code, on February 11, 2008. Specifically, Ordinance No. 864 amended Municipal Code 2–111 to read: “It shall be unlawful for the owner of any animal to keep or maintain such animal in the city so as to constitute a nuisance. For the purpose of this section, ‘nuisance’ is defined in Section 2–101(d).”
Section 2–101(d) provides the following definition of “Animal Nuisance”:
“ ‘Animal Nuisance’ is created when an animal:
....
“(6) Creates noxious or offensive odors:
....
“(8) Creates an insect breeding and/or attraction site due to an accumulation of excreta;
“(11) Threatens or causes a condition which endangers public health.”
On July 17, 2008, the City enacted Ordinance 870. This ordinance added Section 2–303 to Chapter II of the City Code. Section 2–303 outlines operating standards for private and commercial animal lots or stables located in the agriculture/residential zoning district:
“Private and commercial animal lots or stables may be allowed in the Agriculture/Residential District as defined by the City of Edwardsville Zoning Ordinance subject to the following standards:
....
“(b) Standards for Commercial Animal Lots and Stables.
“(1) The minimum lot size for a commercial animal lot or stable/barn shall be five acres, or one acre for each animal, whichever is greater. If animals are maintained on pasture as their primary source of feed, then in no case shall more than one (1) animal be kept for each acre of land available for grazing (excludes property used for structures and other nonagricultural uses). If animals are kept inside a building at all times (excluding exercise), then the maximum number of animals permitted shall be limited to the building capacity to house, show, and ride said horses, but in no case shall the number of animals exceed two (2) for each acre of land available for grazing (excludes property used for structures and other nonagricultural uses). A stall shall be provided for each animal and each stall shall be a minimum of ten (10) feet by ten (10) feet.
7F'(2) Stables, corrals, and piles of manure, feed, and bedding shall be located at least fifty (50) feet from any street or lot line and at least one hundred (100) feet from any adjacent existing residence. Pasture may extend to the lot line so long as runoff is controlled from entering onto an adjacent lot or tract.
“(3) Livestock may be boarded for a fee and may be held for sale to others.”
On appeal, the Davidsons contend that Ordinance Nos. 864 and 870 violate the Kansas right-to-farm law, K.S.A. 2–3201 et seq. In particular, the Davidsons claim these two ordinances violate these statutes by improperly subjecting agricultural activity to nuisance regulations. Although the City acknowledges that K.S.A. 2–3201 et seq. provide Kansas farmers some protection from nuisance actions, it argues “the Act does not absolutely exempt such properly from nuisance actions or municipal code enforcement.” (Emphasis added.)
Because the district court's decision on this issue was based upon uncontroverted facts and statutory interpretation, this issue is subject to de novo review. See Poison v. Farmers Ins. Co., 288 Kan. 165, 168, 200 P.3d 1266 (2009).
In 1982, the legislature adopted the Kansas right-to-farm law. Finlay v. Finlay, 18 Kan.App.2d 479, 482–83, 856 P.2d 183,rev. denied 253 Kan. 857 (1993). This law consists of a purpose statute, a substantive statute, and a definitions statute. See Bice, slip op. at 4. K.S.A. 2–3201, the purpose statute, states:
“It is the declared policy of this state to conserve and protect and encourage the development and improvement of farmland for the production of food and other agricultural products. The legislature finds that agricultural activities conducted on farmland in areas in which nonagricultural uses have moved into agricultural areas are often subjected to nuisance lawsuits, and that such suits encourage and even force the premature removal of the lands from agricultural uses. It is therefore the purpose of this act to provide agricultural activities conducted on farmland protection from nuisance lawsuits.”
The substantive statute, K.S.A. 2–3202, provides:
“Agricultural activities conducted on farmland, if consistent with good agricultural practices and established prior to surrounding nonagricultural activities, are presumed to be reasonable and do not constitute a nuisance, public or private, unless the activity has a substantial adverse effect on the public health and safety.
“If such agricultural activity is undertaken in conformity with federal, state, and local laws and regulations, it is presumed to be good agricultural practice and not adversely affecting the public health and safety.”
According to the definitions statute, K.S.A. 2–3203(a), “ ‘[a]gricultural activity” ‘ involves “the growing or raising of horticultural and agricultural crops, hay, poultry and livestock, and livestock, poultry and dairy products for commercial purposes.” ‘ “Farmland” ‘ is defined as “land devoted primarily to an agricultural activity.” K.S.A. 2–3203(b).
Although the Kansas right-to-farm law was enacted “[i]n an effort to keep the agriculture industry from being crowded out by suburban or industrial expansion,” the Act does not prohibit cities from enacting municipal ordinances that regulate agricultural activities. See Finlay, 18 Kan.App.2d at 482–83. In Finlay, our court found the plain language of K.S.A. 2–3202 provides that the Act only applies if three conditions are satisfied: “(1) The operator must be conducting agricultural activities on farmland; (2) the operation must conform with all federal, state, and local laws; and (3) the operation must have been established prior to the inception of the conflicting nonagricultural activities.” 18 Kan.App.2d at 483.
As explained in Finlay, if these three statutory conditions are satisfied, “K.S.A. 2–3202 [merely] establishes that agricultural activities are presumed not to be a nuisance if conducted in a manner consistent with good agricultural practice ... unless the activity has a substantial adverse affect on public health and safety.” (Emphasis added.) 18 Kan.App.2d at 483. Accordingly, because the Kansas right-to-farm law only applies under a limited and specified set of circumstances, it does not absolutely exempt agricultural activity from nuisance actions and/or municipal code enforcement See Finlay, 18 Kan.App.2d at 483–85.
In its summary judgment ruling, the district court essentially found that the two ordinances do not violate the Kansas right-to-farm law because the third statutory condition articulated in K.S.A. 2–3202, as interpreted by Finlay, was not satisfied: The Davidsons' activities were not the subject of a “nuisance lawsuit” due to the encroachment of nonagricultural activities in the area.
The district court based its decision primarily upon Bice. In Bice, the City of Rexford adopted a municipal ordinance that banned all livestock, including horses, from the city. The Bices operated a horse breeding business on their property, and after the ordinance went into effect, Rexford served the Bices with a formal violation notice. The formal violation notice informed the Bices that they must remove their horses from the city within 10 days or a complaint would be filed against them and, if convicted, the Bices could face a fine, imprisonment, or both. Additionally, the city could remove the nuisance by taking the horses to an animal shelter.
The Bices filed suit to enjoin enforcement of the ordinance. Similar to the Davidsons, the Bices contended that the Kansas right-to-farm law prohibited the city from regulating their pursuit of an agricultural use of their property.
In considering the Kansas right-to-farm law, our court explained:
“Consistent with the statutory purpose, the substantive provision in K.S.A. 2–3202 keeps pre-existing agricultural activities from being subject to lawsuit[s] for nuisance when nonagricultural activities take over the area. The legislature has thus codified a rule for agricultural activities in these circumstances where one who comes to the nuisance may not sue to abate it.” Bice, slip op. at 4.
Consequently, the panel held the Kansas right-to-farm law was not applicable because neither Rexford nor its residents had sued the Bices to abate a nuisance; Rexford had simply adopted an ordinance banning livestock from the city. Bice, slip op. at 4.
The Davidsons contend that Bice is distinguishable because the City charged them with a nuisance when the City Council adopted a resolution finding them in violation of the environmental code based primarily upon “the smell of manure.” On the other hand, the City argues that similar to Bice, this case does not involve a nuisance lawsuit arising from nonagricultural activities developing around preexisting agricultural activities; instead, the City is simply exercising its police power to regulate public health and welfare.
The Davidsons' attempt to factually distinguish Bice is unpersuasive. The procedural facts of this case are indistinguishable from those in Bice, The appellate briefs filed in Bice indicate that after a violation notice was served upon the Bices, the Rexford City Council adopted a resolution, which advised the Bices that they had 10 days to remove their horses or the City of Rexford would file a criminal complaint to enforce the ordinance. Moreover, the Bice opinion states that the Bices were served with a “formal notice,” which indicates that the City had officially deemed the Bices in violation of the ordinance. Bice, slip op. at 2.
The Davidsons also appear to misinterpret the holding of Bice. Our court did not find that the Kansas right-to-farm law was inapplicable because Rexford had failed to comply with some necessary procedural requirement for initiating a “nuisance lawsuit .” Bice, slip op. at 2. On the contrary, the panel based its holding upon the Bices' failure to satisfy the third condition articulated in Finlay. See Bice, slip op. at 3–4. As the panel explained, Rexford was not attempting to abate a nuisance created by a preexisting agricultural endeavor on behalf of newly developing nonagricultural activities; instead, Rexford had simply enacted an ordinance banning livestock. Bice, slip op. at 4.
Finally—and similar to Bice—the third condition of the statute is also not present in this case because the Davidsons failed to establish that Ordinance Nos. 864 and 870 were enacted to address the concerns of conflicting nonagricultural activities moving into the area. Significantly, during his deposition, Sam testified that with the exception of one neighbor, their neighbors have essentially remained the same since they purchased the property. This fact alone indicates that Ordinance Nos. 864 and 870 were not enacted in order to advance a nuisance claim against the Davidsons based upon the encroachment of nonagricultural activities. Instead, the City is acting on behalf of preexisting neighbors who objected not to use of the property for agricultural activity, but to the manner in which the Davidsons maintain the property.
As the City points out, when the only change in use that occurs involves a change in the nature and extent of the agricultural activities, the element in K.S.A. 2–3202 which requires that the agricultural activity be established prior to the surrounding nonagricultural activity is negated. Finlay, 18 Kan.App.2d at 483–84. In Finlay, our court found that although the defendant's property had been used previously to raise cattle, the defendant changed the use of his property, rendering the Kansas right-to-farm law inapplicable, when he made improvements to the preexisting cattle pen, and unlike the previous owner who allowed his cattle to roam additional pasture, chose to confine his cattle to the 1.8–acre pen for substantial periods of time. 18 Kan.App.2d at 484.
The record reflects that a similar change in use occurred on the Davidsons' property. In his affidavit, Sam indicated that the Davidsons have not “built any new horse structures upon the land, and all buildings [they] are utilizing for [their] horse operation were existing at the time [they] bought the land in 2005.” Prior to submission of his affidavit, however, Sam testified at his deposition that the couple installed horse pens and stalls “all across ... [the] north side” of the property and also terraces, silk fences, berms, and an electrified fence.
A party seeking to defeat a motion for summary judgment may not create an issue of material fact by submitting an affidavit that controverts the affiant's prior sworn statement P.W.P. v. L.S., 266 Kan. 417, 431, 969 P.2d 896 (1998). In addition, the Davidsons began a horse rescue operation on the property, and there is no evidence in the record that suggests such an operation had occurred on the property previously. Thus, the Davidsons did not meet their burden to come forward with evidence to establish a dispute as to a material fact necessary for the resolution of this issue. See Toth, 291 Kan. at 768.
Finally, the Davidsons have also failed to meet the second requirement of Finlay, that their “operation must conform with all federal, state, and local laws.” 18 Kan.App.2d at 483. In the present case, the two ordinances in question are local laws that regulate public health and safety. The allegations made by the City include assertions that the Davidsons' conduct do not conform to these local laws. Under these circumstances the Kansas right-to-farm law is inapplicable.
We conclude that Ordinance Nos. 864 and 870 do not violate the Kansas right-to-farm law, K.S.A. 2–3201 et seq. , and the district court did not err, as a matter of law, when it held that those statutes had no application given the facts of this case.
Is Ordinance No. 870 a Zoning Regulation which Exempts the Davidsons' Operation as a Preexisting Use Exception Under K.S.A. 12–758?
The Davidsons contend that Ordinance No. 870 is a zoning regulation which exempts their horse operations pursuant to the agricultural and/or preexisting use exceptions of K.S.A. 12–758. In response, the City contends Ordinance No. 870 is not a zoning regulation; it is a general exercise of the City's police-power authority enacted under the City's home rule powers granted by Article 12, § 5 of the Kansas Constitution.
The district court's decision on this issue is based upon incontroverted facts and statutory interpretation; thus, this issue is subject to de novo review. See Poison, 288 Kan. at 168.
Cities and other governmental entities have broad police powers to enact legislation which regulates or restricts certain activities to promote the health, safety, and welfare of their citizens. State v. Risjord, 249 Kan. 497, 501, 819 P.2d 638 (1991). In particular, Article 12, § 5 of the Kansas Constitution, also known as the Home Rule Amendment, ensures that Kansas municipalities have the power to determine local public policy, as long as “ ‘the state legislature has [not] precluded municipal action by clearly preempting the field with a uniformly applicable enactment.’ “ Farha v. City of Wichita, 284 Kan. 507, 516, 161 P.3d 717 (2007) (citing Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673, 8 P.3d 701 [2000] ).
A municipality's planning and zoning power is derived solely from K.S.A. 12–741 et seq. ; the enabling legislation for the enactment of planning and zoning regulations by cities and counties for the protection of public health, safety, and welfare. See K.S.A. 12–741; Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1032–33, 181 P.3d 549 (2008). K.S.A. 12–742(a)(10) defines “ ‘zoning’ “ as “the regulation or restriction of the location and uses of buildings and uses of land.” In other words, “the essence of zoning is to create zones or districts within which certain activities may or may not take place.” Bice v. City of Rexford, No. 97,227, unpublished opinion filed October 5, 2007 (Kan.App.), slip op. at 5–6. K.S.A. 12–758 provides that generally zoning regulations shall not apply to “the existing use of any building or land” or “the use of land for agricultural purposes.”
The Davidsons' argument hinges upon a finding that Ordinance No. 870 is a zoning regulation because K.S.A. 12–758 only applies to ordinances “adopted under [the] authority of” K.S.A. 12–741 et seq. , and cities are not required to include such exemptions in ordinances adopted through the general police-power authority. SeeK.S.A. 12–758; City of LeRoy v. Williams, No. 105,430, unpublished opinion filed August 26, 2011 (Kan.App.).
The Davidsons contend that Ordinance No. 870 is a zoning regulation because the first sentence of the ordinance refers to the City's zoning power: “Private and commercial animal lots or stables may be allowed in the Agriculture/Residential District as defined by the Edwardsville Zoning Ordinance subject to the following standards.” (Emphasis added.) The Davidsons assert this simple reference to the Edwardsville zoning ordinance is an obvious indication that Ordinance No. 870 is a zoning regulation. As the Davidson's put it: “[I]f it looks like a duck, and quacks like a duck, it's a duck.” The City counters that Ordinance No. 870 is not a zoning regulation because it chose to enact Ordinance No. 870 under its general police-power authority rather than the zoning procedures articulated in K.S.A. 12–741 et seq.
The district court found that Ordinance No. 870 is not a zoning regulation because it does not create zones or districts within which certain activities may or may not take place; instead, the Ordinance was enacted under the City's general police power to regulate the maintenance and control of animals within the City. In fact, the district court analogized Ordinance 870 to the ordinance at issue in Bice, which our court held was a general exercise of Rexford's police-power and not a zoning regulation. Bice, slip op. at 6.
We are not persuaded by the Davidsons' argument. The simple fact that Ordinance No. 870 mentions the zoning ordinance and contains standards similar to permissible zoning regulations is not controlling because municipalities are free to choose their regulatory path. Although the planning and zoning power must be exercised in conformance with K.S.A. 12–741 et seq. , K.S.A. 12–741 specifically indicates that the act “is not intended to prevent the enactment or enforcement of additional laws and regulations on the same subject which are not in conflict with the provisions of this act.” Therefore, “[t]he existence of zoning authority does not negate a city's police power to enact other citywide ordinances promoting the public health, safety, and welfare .” Bice, slip op. at 6.
We are convinced the City clearly enacted Ordinance Nos. 864 and 870 as part of its general effort to control the harboring and maintenance of animals within its city limits for the protection of the general health, safety, and welfare of its citizens. As the district court noted, the Ordinance does not establish a zone or districts within which certain activities may or may not take place. On the contrary, Ordinance No. 870 creates standards for the operation of private and commercial animal lots or stables in order to reduce the negative effects upon neighboring property.
As explained by our court in Bice, zoning regulations are not the only option for enacting such ordinances; municipalities have “police-power authority to enact an ordinance limiting the keeping of animals within its city boundaries,” and several Kansas cases have upheld the regulation of animals under a city's police power. Bice, slip op. at 6; see Risjord, 249 Kan. 497 (upholding limits on horseback riding within city parks); Beam v. City of Overland Park, 244 Kan. 638, 772 P.2d 758 (1989) (upholding ban on pit bulls within city ); Dill v. Excel Packing Co., 183 Kan. 513, 524, 331 P.2d 539 (1958) (Kansas Supreme Court recognized that “ordinances have been passed by cities to prevent the maintenance of poultry and livestock within the city limits.”); Dorssom v. City of Atchison, 155 Kan. 225, 124 P.2d 475 (1942) (upholding city authority to require tuberculosis testing of cows within city).
Finally, in Smith v. Steinrauf, 140 Kan. 407, 408, 36 P.2d 995 (1934), our Supreme Court noted:
“There is no question the city has power to pass ordinances denouncing conditions which interfere with the general health, comfort and security, and consequently may regulate the keeping of animals within the city. The keeping of animals may even be forbidden when the circumstances are such that the keeping constitutes a nuisance.”
We conclude the district court did not err, as a matter of law, when it held that Ordinance No. 870 is not a zoning regulation. Ordinance No. 870 was enacted to protect the health, safety, and welfare of the citizens of Edwardsville under the authority of the City's general police power. As stated, K.S.A. 12–758 does not apply. As a result, it is unnecessary to address whether K.S.A. 12–758 exempts the Davidsons from enforcement of the ordinance.
Did the District Court Err in Granting Summary Judgment on Counts IV and V?
For their final issue, the Davidsons contend the district court erred when it granted the City's motion for summary judgment with regard to Counts IV and V of their petition, i.e., whether the ordinances specifically target their farm and whether their horse operations are actually in violation of the ordinances. The Davidson's argument fails for three reasons.
First, it is questionable that the couple sufficiently raised these issues in their petition. As the district court noted, the Davidsons' “petition is at times somewhat difficult to follow.” We agree. The Davidsons' petition sought a declaratory judgment; a restraining order, temporary injunction, and permanent injunction; a mandamus and judicial review; and a writ of certiorari. Essentially, the Davidsons alleged that Municipal Code Sections 8–201, 8–2A08(4), 2–111, 2–113, and Ordinance Nos. 864 and 870 are unenforceable because they violate Kansas law enacted to protect agricultural endeavors, specifically K.S.A. 12–758 and K.S.A. 2–3201 et seq. ; infringe upon their rights to due process and equal protection under the Constitution of the United States and the Kansas Constitution; and were adopted in violation of the City's procedures for adopting planning, zoning, and land use rules.
Count IV of the petition incorporated the Davidsons' arguments regarding the legality of the ordinances, alleged that the City's actions were “arbitrary, capricious, unreasonable and unlawful because [they were] inconsistent with state law,” and asserted that the City violated the Davidsons' rights to procedural and substantive due process and equal protection. Although Count IV briefly mentioned the issues the Davidsons now raise on appeal, Count IV only requested judicial review of the City Council's June 22, 2009, resolution “for failure to adhere to the City's own planning, zoning and land use rules.”
Count V of the petition inexplicably sought a writ of certiorari from the district court. Count V specifically requested that the district court direct the City to certify to the court “a true, full, complete and accurate copy of the entire record” of the hearing held on June 22, 2009, review the record of the proceedings, and order “that the violations cited against Plaintiffs by the Defendant are void.” The Davidsons asserted that this request was appropriate because the City Council's decision was “quasi judicial” in nature because the matter was not referred to the municipal court and “in violation of constitutional authority, in excess of statutory authority, is unauthorized by law, is unsupported by competent and substantial evidence and is arbitrary, capricious and unreasonable.”
The district court, however, found that the crux of the Davidsons' arguments appeared to be whether the City's ordinances violated the Kansas right-to-farm law and/or were zoning ordinances that cannot regulate preexisting uses of land. This appears to be a reasonable interpretation of the petition, as these two arguments are repeated numerous times throughout the petition and are the basis for all of the relief requested therein. Moreover, Count IV and V are extremely vague and neither directly asserts a claim for relief based upon the issues the Davidsons now raise. At the very least, the petition was only minimally adequate to leave open the avenues of relief the Davidsons now request.
Second, even if the petition is liberally interpreted to include a request for relief based upon targeted enactment of the ordinances and a review of whether the Davidsons' horse operations are actually in violation of the ordinances, it appears the Davidsons abandoned these issues after the motions for summary judgment were filed. As the City points out, it moved for summary judgment on all of the claims in the Davidsons' petition. The Davidsons did not provide any factual basis, however, to support either of these claims in their response and associated pleadings.
The only mention the Davidsons made of either of these claims was during the oral argument at the summary judgment hearing itself. At the hearing, the City argued that it was under the impression that the Davidsons were only asserting legal arguments as to the validity of the ordinances, and it indicated its belief that the district court was not the proper venue for deciding whether the Davidsons actually violated the ordinances. In response, the Davidsons' attorney made the following statement:
“We couldn't disagree more. I mean, the city counsel [ sic ] actually wanted to hear evidence, they took evidence, and they issued a resolution saying they had to abate the nuisance within ten days. We do feel like if the legal issues are not taken care of by motion for summary judgment, that we do have a trial regarding the application of this statute, if this ordinance, if deemed valid against our clients. I mean, we do feel that it has been misapplied or that there has been some prejudice against our clients, and that's what's one, you know, promulgated the ordinance being enacted into the application against our clients.”
This cursory mention of these issues is not sufficient to satisfy the Davidsons' burden on summary judgment. In order to defeat a motion for summary judgment, the nonmoving party must come forward with specific facts showing a genuine issue for trial. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Although the Davidsons were not required to prove their case, “ ‘[t]he party opposing summary judgment ... has the affirmative duty to come forward with facts to support its claim’.... [Citations omitted.] It is not for the court to seek out, but for counsel to designate in the response, the facts that support a party's position. [Citation omitted.]” U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 556, 205 P.3d 1245 (2009). By failing to allege specific facts supporting these claims, the Davidsons failed to establish a genuine issue for trial. Thus, the district court properly granted the motion for summary judgment with respect to all of the Davidson's claims.
Finally, the Davidsons provide no legal authority in support of their argument on this issue on appeal. The only legal authority cited by the Davidsons is a general reference to the standard for granting a summary judgment motion. Moreover, the Davidsons do not explain their assertion that a genuine issue of material fact existed. The Davidsons simply state: “[T]here are controverted facts. Facts regarding the number of horses, the manure maintenance, and the enforcement of the ordinances were established within the motions and responses.” These insufficiencies amount to a failure to properly brief this issue, as a point raised incidentally in a brief and not argued therein is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Additionally, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
In conclusion, the district court did not err when it granted the City's motion for summary judgment on Counts IV and V of the Davidsons' petition because the Davidsons failed to establish a genuine issue of material fact as to these counts and they did not properly brief this issue on appeal.
Affirmed.