Opinion
No. 106,513.
2013-01-18
Arthur V. NEIS, et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Kansas, Appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Deron Anliker, of Duggan, Shadwick, Doerr & Kurlbaum, of Overland Park, and Adra E. Burks, of Lawrence, for appellant Arthur V. Neis. Evan H. Ice and John T. Bullock, of Stevens & Brand, L.L.P., of Lawrence, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Deron Anliker, of Duggan, Shadwick, Doerr & Kurlbaum, of Overland Park, and Adra E. Burks, of Lawrence, for appellant Arthur V. Neis. Evan H. Ice and John T. Bullock, of Stevens & Brand, L.L.P., of Lawrence, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
LARSON, J.
This appeal is the latest chapter in a 10–year controversy involving the expected future usage of a limestone quarry in Douglas County.
For more than 40 years, N.R. Hamm Quarry, Inc. (Hamm) has operated the Petefish Quarry in southeast Douglas County. As the quarry's limestone reserves approached depletion in 2002, Hamm wished to extend its operations onto adjoining property that it leases.
Current zoning regulations require Hamm to obtain a conditional use permit (CUP) in order to do so. Hamm filed an application to obtain the required permit. Neighbors, including appellant Arthur Neis, opposed Hamm's application for the CUP out of concern for the effect the extended quarry operation would have on their nearby properties. After several hearings and with considerable changes to the application, the Board of Douglas County Commissioners (Board) unanimously approved the CUP subject to extensive conditions and restrictions on use.
Neis filed suit in district court to challenge the Board's decision. He alleged that the Board's decision was illegal and unreasonable, that it resulted in an unconstitutional taking of a portion of his property, and that he was denied equal protection of the law.
The district court ultimately found the Board had acted lawfully and reasonably in approving the CUP with all the conditions and restrictions. The court also granted the Board's summary judgment motion requesting denial of Neis' equal protection and takings claims holding they were not ripe, and even if they were, Neis had failed to come forward with necessary evidence to support the essential elements of those claims. Each of these separate decisions is before our court in Neis' appeal.
While we are confident the parties are familiar with the extensive record in this case, it is necessary for us to recite the factual and procedural history in order to provide understanding for the specific arguments which the parties raise.
Hamm applied for a CUP to expand its limestone quarry
This case began with an application for a CUP filed by Hamm on December 2, 2002, with the Lawrence–Douglas County Metropolitan Planning Commission. Hamm has for more than 40 years operated the Petefish Quarry on property it owns southeast of Eudora. Because that quarry was almost depleted of limestone, Hamm sought the CUP in order to extend its quarry operations onto an abutting 129 acres of property it leases from Katherine Neis. Zoning regulations promulgated since the establishment of the Petefish Quarry require the CUP for such an extension.
Hamm's application for the CUP met with opposition from neighbors, including Neis, who owns 140 acres of land abutting the property at issue, which Neis' tenant uses as cropland and pasture for his livestock. In response to concerns raised by neighbors and the Lawrence–Douglas County Planning Commission's planning staff (staff) who were responsible for examining the CUP application, Hamm submitted a revised plan of operation and reclamation plan during the review process. Staff ultimately recommended that the CUP be granted subject to numerous proposed restrictions on use, which staff noted were intended to prevent any adverse effect on the public health, safety, and welfare and to mitigate certain detrimental effect that approval of the CUP would have on neighboring properties—all factors that must be taken into consideration under Douglas County zoning regulations that govern CUPs.
The Lawrence–Douglas County Planning Commission recommended granting the CUP
On February 26, 2003, both the Lawrence–Douglas County Planning Commission and the City of Eudora Planning Commission conducted a joint public hearing on Hamm's CUP application which was required because the property at issue was located within 3 miles of Eudora's city limits. The planning commissions received comments from staff, Hamm's counsel, and opponents of the CUP.
The two planning commissions reached different decisions. The Eudora Planning Commission unanimously voted to deny the request. The Lawrence–Douglas County Planning Commission, on the other hand, unanimously voted to approve the CUP subject to extensive conditions and restrictions of use. As required by the zoning regulations, that commission then forwarded its recommendation for approval to the Board. The subsequent filing of valid protest petitions by some of the objecting neighbors triggered a requirement for unanimous Board approval of the CUP.
The Board ultimately granted the CUP subject to extensive conditions and restrictions as to usage
The Board held hearings on three separate occasions to consider the CUP: May 21, 2003, July 2, 2003, and July 9, 2003. Two individuals familiar with quarry operations appeared with Hamm's counsel at the first two hearings before the Board in order to answer specific questions or concerns that had been voiced by neighbors or the Board about the anticipated impact of the expanded quarry operations on surrounding properties. David Dressier, who is an independent contractor responsible for preblast surveying and measuring potential and actual blasting impacts of quarry operations, addressed concerns voiced about blasting impacts on surrounding water sources, properties, and utilities. Kent Kringham, who is Hamm's safety supervisor and also works with blasting at the Petefish Quarry, addressed concerns voiced about the storage of explosives on site.
At the close of the May 21, 2003, meeting, the Board unanimously voted to approve the CUP, conditioned upon its approval of revisions to the conditions and restrictions on use recommended by staff. Those revisions came before the Board for consideration at the July 2 hearing, after which the Board again sent the conditions and restrictions on use back to its planning staff, including Brian Pedrotti and Sheila Stogsdill, for additional revisions. Those revisions were prompted by concerns voiced by Hamm and objections and concerns by surrounding neighbors, including Neis, either during the public hearings or in other correspondence with the Board or the planning commission.
At the hearing on July 9, 2003, the Board approved a final version of conditions and restrictions on use which the Board attached to its written findings of fact and conclusions of law in support of its unanimous decision to grant Hamm the CUP. The restrictions and conditions for usage of the expanded quarry were extensive.
They included time of day restrictions on specific quarry operations, including blasting; a requirement that Hamm submit a fencing and screening plan for approval by the Board before Hamm can commence quarry operations on the property; a requirement that Hamm obtain all necessary permits for, and comply with, the regulations of various state and federal agencies and utility companies; scheduled submissions of a monitoring and management plan for the reclamation process; preparation of drainage studies as work progresses through each phase of the quarrying operation; restrictions in site access, use of county roads, and Hamm's required cooperation with county, city, and school officials concerning traffic safety issues that may arise; requirements that Hamm participate in the improvement of specific county roads, pay Douglas County a fee of 10 cents per ton of rock hauled from the property, and clean up any aggregate and other spillage within 1 mile of the property; the implementation of standards to govern noise and light pollution; a requirement that Hamm accommodate the Board's right to conduct impromptu inspections of the quarry for CUP compliance; a requirement of 5–year reviews of the CUP and Hamm's compliance with its conditions and restrictions on use; triggers and procedures for revocation of the CUP; and a 30–year time limit on the CUP.
One of Neis' key issues in this appeal is the restriction on use that mandated minimum setback requirements of 500 feet from existing residences, 150 feet from the perimeter of the site, and 100 feet from the west side of a tributary running through the site. These restrictions were not an issue of strong contention in proceedings before the Board. When it did become an issue in the litigation discussed below, the Board produced an affidavit from staff member Sheila Stogsdill who stated that the reason for the greater setback for existing residences was “to mitigate potential noise, vibration, and dust impacts from the quarrying activities.” Stogsdill also attested that the setbacks were derived in part based on information learned from experts during the application process in the early 1990s for a CUP that had been granted to Martin Marietta for another quarry in the county.
Neis filed a lawsuit against the Board
Several landowners, including Neis, filed suit against the Board on June 20, 2003. Only Neis is a party to this appeal. Any subsequent references to the plaintiffs in this suit are to Neis only. Neis raised four separate counts against the Board in his amended petition. Count I seeks to challenge the legality and reasonableness of the Board's decision as allowed by K.S.A. 12–760(a). Count II sought an order requiring the Board to enforce statutes that govern fencing requirements in Kansas. Count III sought relief under 42 U.S.C. § 1983 and alleged Neis was denied due process of law because the CUP failed to include a proper legal description of all of the impacted land. Count IV seeks relief under 42 U.S.C. § 1983 based upon the alleged “taking in violation of the equal protection clause of the 14th Amendment to the United States Constitution” which was later in the litigation treated as separate equal protection and takings claims.
Counts II and III were dismissed by the court on the Board's motion to dismiss. The district court refused to dismiss Count IV under the motion to dismiss standard which is highly favorable to Neis. The initial judge on the case recused and it was later assigned to another judge. For reasons unclear from the record, the parties conducted extensive discovery and the case languished on the docket until a scheduling order was entered in September 2009 which set timelines for the parties to file summary judgment motions as to Count IV and briefings on the issue of the reasonableness of the Board's decision under Count I.
The parties filed extensive competing motions for summary disposition of Counts I and IV
A barrage of summary judgment motions, responses, replies, rebuttals, and other briefing on the remaining two counts of Neis' petition ensued. Because of the varying review standards underlying the court's consideration of these remaining counts, those pleadings were procedurally separate. As to Count IV (the takings and equal protection claims), both parties filed competing motions for summary judgment with responses and rebuttals and considerable exhibits attached in support.
As to Count I, the parties filed competing motions for the court to determine whether the Board's issuance of the CUP was unlawful and unreasonable (Neis' position), or lawful and reasonable (the Board's position). These pleadings, along with their supporting exhibits, total close to, if not in excess of 1,000 pages that span more than 5 volumes of the 18–volume record. No attempt is made here to extensively detail all of the arguments raised or matters appearing in the accompanying record which the district court aptly referred to as “rather onerous.” We will address such factual contentions and arguments where necessary to address the parties' arguments on appeal.
After hearing arguments on all competing motions in September 2011, and allowing both parties to supplement the administrative record with Pedrotti's deposition and Stogsdill's affidavit which provided additional details about the staff's considerations of recommending different setback requirements, the court took the motions under advisement.
The district court entered judgment in favor of the Board on Counts I and IV
The district court subsequently granted judgment to the Board in a comprehensive 15–page memorandum decision. Somewhat summarized, the decision on Count I was based on the highly differential standard of review and ruled that the court could not say from all the evidence in the administrative record that the Board acted unlawfully or that its decision to grant Hamm the CUP was unreasonable.
As to Count IV, the district court entered summary judgment for the Board on alternative grounds.
First, the court found that Neis' various contentions underlying his claim in Count IV were premature and not ripe because
“Hamm has not even submitted a screening and fencing plan for the Board's approval, so there has not yet been any equal protection violation which relates to fencing.
“Neis' property has not yet been damaged or taken; rather, Neis' taking claim is based only on the highly ‘speculative assumption’ that quarry operations within 150 feet of the property line will cause rocks to be thrown on his property.
“Until quarry operations commence, ‘there is no way to know whether the issuance of the CUP restricted or damaged [Neis'] use of his property in any way.”
Alternatively, the district court ruled that even if these claims were ripe, summary judgment was appropriate because Neis failed to produce any evidence—beyond his highly speculative assumptions about anticipated fly rock—to establish necessary elements of those claims, specifically that he has lost all economic, beneficial, or productive use of his property. The district court further reasoned:
“At most, [Neis] could claim that danger exists within a total of 350 feet from the property line. This is the additional distance needed to create the setback he argues should have been uniformly imposed on Hamm. Even assuming the setback [Neis] proposes would prevent damage to [Neis'] property, [Neis'] use of the remainder of his property outside the 350 feet would not be adversely affected by the quarry operations. Additionally, [Neis] has not shown that the property within the 350 foot area cannot be used for any other purpose.”
Second, the district court rejected Nets' equal protection claim based on the disparate setback requirements, concluding that Neis failed to come forward with any evidence to show that he was treated differently than others who are similarly situated—a required element of an equal protection claim. In support, the district court noted that under Kansas law, landowners have no constitutional right to the continuation of zoning as it exists when they purchase their land. The court then reasoned:
“Likewise, [Neis] has no vested right to build a residence within a particular distance from his property line. Those landowners that already have residences located on their property have a vested right to continue that use, but a landowner that has not constructed a residence does not have a vested right to a use that is only anticipated. For the same reason, the Board acted rationally in treating property with an existing home differently from property without an existing home.”
Neis timely moved the district court to reconsider its decision. Neis primarily focused on the court's failure to make sufficient findings to support its ruling that the Board's decision was lawful and reasonable plus contending material questions of fact existed and the decision was otherwise improper. Neis argued the court was required to rule in his favor on Count IV because a previous district court judge had ruled that he stated a valid equal protection claim.
In denying Neis' motion to reconsider, the district court clarified the basis of its ruling as to Count I. Specifically, the district court explained that it had “incorrectly adopted the parties' characterization of the issues before the court when it referred to the matters before it as motions for summary judgment.” Rather, the court explained that—as to Neis' appeal from the Board's zoning decision under K.S.A. 12–760—it had properly applied the standards for reviewing the reasonableness of a county zoning decision by considering “the facts upon which the Board ... made its decision,” i.e., the administrative record. Thus, the court stated that “Supreme Court Rule 141 really has no applicability[, and] [t]he court should have properly characterized its role, but its failure to do so is of no practical effect.” The district court further clarified that the questions before it on both counts were questions of law.
And finally, the district court ruled that in light of the previous ruling being on a motion to dismiss, it was “of limited applicability” to the court's consideration of the issues at this point.
From these rulings, Neis has appealed.
Analysis
Did the Board act unlawfully or unreasonable in issuing the CUP?
Neis first challenges the lawfulness and the reasonableness of the Board's decision granting the CUP on three grounds. First, he argues that the decision is unlawful because both the Lawrence–Douglas County Planning Commission and the Board failed to comply with county zoning regulations that govern the issuance of CUPs. Second, Neis maintains that Hamm might have been illegally operating at least a portion of the Petefish Quarry for a long time, and the Board's decision unlawfully furthered the continuance of that illegal use. Third, Neis maintains that the Board acted unreasonably in granting the CUP without any evidence to support the setbacks.
Standards of review
There is disagreement among the parties as to our standard of review and our appellate opinions do not all utilize the same precise language as to how we should consider appeals from the granting or denial of a CUP.
According to Neis, this court's role is to determine as a matter of law whether the Board: “ ‘(1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority.’ “ (Quoting Baggett v. Board of Douglas County Comm'rs, 46 Kan.App.2d 580, Syl. ¶ 2, 266 P.3d 549 [2011],petition for rev. filed October 28, 2011).
The Board points us to the language in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), as concisely stating the scope of judicial review of zoning decisions, which states as follows:
“ ‘(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change zoning.
‘(2) The district court's power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
‘(3) There is a presumption that the zoning authority acted reasonably.
‘(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
‘(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
‘(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
‘(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
‘(8) An appellate court must make the same review of the zoning authority's action as did the district court.’ “
This language was quoted in McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 304–07, 49 P.3d 522 (2002), which also cited with approval prior decisions which had applied Combined Investment concepts to conditional use decisions.
McPherson Landfill also set forth the following well-known Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), factors as suggestions noting other factors may be equally or more important factors depending on the circumstances of the particular case;
“ ‘(1) The character of the neighborhood;
‘(2) the zoning and uses of properties nearby;
‘(3) the suitability of the subject property for the uses to which it has been restricted;
‘(4) the extent to which removal of the restrictions will detrimentally affect nearby property;
‘(5) the length of time the subject property has remained vacant as zoned;
‘(6) the gain to the public health, safety, and welfare by the possible diminution in value of the developer's property as compared to the hardship imposed on the individual landowners;
‘(7) The recommendations of a permanent or professional planning staff; and
‘(8) the conformance of the requested change to the city's master or comprehensive plan.’ Board of Johnson County Comm'rs v. City of Olathe, 263 Kan. 667, 677, 952 P.2d 1302 (1998) (citing Golden, 224 Kan. at 598).” 274 Kan. at 306.
Both parties appear to agree that a Board's decision to grant or deny a CUP is a quasi-judicial act. See McPherson Landfill, 274 Kan. at 305. And, that appears to be the conclusion reached in the recent case of Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 944–51, 218 P.3d 400 (2009) ( Zimmerman I ). Zimmerman I involved the Board's decision to rezone Wabaunsee County to prohibit all commercial wind farms, which because of county-wide application, was deemed to be a legislative action. 289 Kan. at 950.
Zimmerman I's scope of review discussion was extensive, but for our purposes with the review of a CUP being in issue, it is important to note that in holding the Board's action was deemed reasonable, K.S.A. 12–760(a) was quoted, which provides: “Any person aggrieved ‘may maintain an action in the district court to determine the reasonableness of such final decision.’ “ 289 Kan. at 944.Combined Investment and its rules governing the scope of judicial review of zoning matters was then observed to be “concisely stated,” particularly on the issue of reasonableness.
There was a continuing discussion of pre- Golden and post- Golden decisions with the Zimmerman I opinion quoting Landau v. City Council of Overland Park, 244 Kan. 257, 271, 767 P.2d 1290 (1989), which in turn had cited 2 Rathkopf, The Law of Zoning and Planning § 27A.04 (4th ed.1988) stating: “[ R ] ezoning decisions are given much deference and are only overturned on a showing of clear error or abuse.” (Emphasis added.) Zimmerman I, 289 Kan. at 947.
Actually, both Baggett and Zimmerman I are somewhat distinguishable from our case. Baggett involved review of an island annexation and is not final because a petition for review is pending. Zimmerman I extensively discussed quasi-judicial acts as giving rise to a reasonableness test, but the commissioners' amendment of its zoning regulations was ultimately determined to be a legislative act because of its county-wide application.
However, Zimmerman I's discussion does impact our case in that it noted that characterizing a zoning board's decision as quasi-judicial triggers enhanced procedural rights and closer judicial scrutiny. Ultimately, the court in Zimmerman I held: “Even utilizing what has been characterized as the ‘scope of review’ and the ‘reasonableness factors' in quasi-judicial cases, e.g., Golden, we hold the Board acted reasonably.” 289 Kan. at 950.
It is important to remember that in Combined Investments, McPherson Landfill, and Zimmerman I, the standard of review of zoning matters (CUPs) is highly deferential to the zoning authority. In an attempt to avoid this difficult position, Neis labels his arguments as addressing “lawfulness,” but he makes no argument of lack of authority in the Board or failure to follow required procedure. In fact, what Neis does, is challenge the reasonableness of the Board's decision, taking issue with its findings and conclusions, which given our deferential standard of review, makes it extremely difficult to convince us that the Board's decision was unreasonable.
Douglas County zoning regulations govern CUPs
Before discussing the issues raised, a general background of the nature of CUPs, the Board's authority to grant CUPs, and the zoning regulations that appear to be in issue may be helpful. In reviewing the denial of an application for a CUP, our Supreme Court has explained:
“CUPs ‘are a device for permitting certain land uses considered to be essential or desirable to the community to be placed in zoning district in which they would ordinarily be incompatible. The permitted use, however, must be reasonable and conform to standards or conditions designed to protect the interests of adjoining owners.’ (Emphasis added.) Heim, Kansas Local Government Law, § 4.47, p. 4–12 (4th ed.2009).
Accord 83 Am.Jur.2d, Zoning and Planning § 755.
‘ “[A board of county commissioners'] authority to issue CUPs is found at K.S.A. 12–755(a), which states the governing bodies of Kansas cities and counties are authorized to adopt zoning regulations that may include ‘provisions which ... (5) provide for the issuance of special use or conditional use permits.’' Zimmerman v. Board of Wabaunsee County Comm'rs, 293 Kan. 332, 349, 264 P.3d 989 (2011) ( Zimmerman II ).
The wind farm issues in Wabaunsee County returned to our Supreme Court for a second time and, to avoid confusion, we have referred to the second appeal as Zimmerman II.
Neis complains the Board's decision is unlawful because it does not comply with Douglas County zoning regulations section 12–319–101 [19–1–01] which provides:
“Recognizing that certain uses may be desirable when located in the community, but that these uses may be incompatible with other uses permitted in a district, certain conditional uses listed in section 12–319–4 below, when found to be in the interest of the public health, safety, morals, and general welfare of the community may be permitted, except as otherwise specified, in any district from which they are prohibited.” (Emphasis added.)
The specific provision applicable to our case is section 12–319–4.05 which enumerates mining and excavation as a permissible conditional use “[t]o assure the continued development of all natural resources will be made possible through inclusion of known mineral deposits within zones reserved for their development and production, to guarantee that these sources will not be forever lost for the benefit of Douglas County, Kansas.” That same section further provides for required reclamation and restoration plans for any new “[m]ining, extraction and excavation of raw materials at new locations within Agricultural, Valley Channel districts, in Douglas County.”
Section 12–319–1.02 [19–1.02] sets forth the procedure for applying for a CUP, providing in pertinent part that upon the filing of a CUP application;
“The Planning Commission shall hold a public hearing as provided for in section 12–324, and shall review such plans and statements and shall, after a careful study thereof, and the effect that such ... uses will have upon the surrounding territory, submit a recommendation with findings of fact to the Board of County Commissioners within thirty days following said hearing, which shall include, but not be limited to, the following criteria:
a. Zoning and Uses of Properties Nearby;
b. Character of the Area;
c. Suitability of Subject Property for the Uses to Which it has been Restricted
d. Length of time Subject property has Remained Vacant as Zoned;
e. Extent to Which Removal of Restrictions will detrimentally affect Nearby Property;
f. Relative Gain to the Public Health, Safety, and Welfare by the Destruction of the Value of the [Applicant's] Property as Compared to the Hardship Imposed upon the Individual Landowners;
g. Conformance with the Comprehensive Plan; and,
h. Professional Staff recommendation.
Following receipt of the Planning Commission's recommendation and Findings of Fact, the Board of County Commissioners may within the specifications herein provided, permit such ... uses, with or without conditions, provided that the public health, safety, morals, and general welfare will not be adversely affected ... and that necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood valued.” (Emphasis added.)
The criteria listed in the regulation above cited are substantially similar to the nonexclusive list of factors that our Supreme Court enumerated in Golden, 224 Kan. at 598–99, as factors that zoning authorities should use as guidance and which “may be important” in determining whether a zoning decision is reasonable in a particular case. Those factors are commonly referred to as the “ Golden ” factors. The emphasized portions are central to many of Neis' challenges to the Board's decision.
The Board's decision is neither unlawful nor unreasonable
Neis' arguments that the Board's action was unlawful or unreasonable are best grouped into two subissues: (1) The Board improperly deferred safety issues to be resolved after the CUP was issued; and (2) the Board failed to properly address and consider how neighboring properties would be impacted by the CUP. We consider these arguments in the above order.
Deferral of issues impacting traffic safety in granting the CUP
Neis contends that the Board improperly deferred important safety decisions until after the CUP was granted. This argument is tied to the Board's restriction on use that provides Hamm “shall take the lead to communicate and cooperate with the Douglas County Public Works directors and Eudora city and school officials on traffic controls on County Road [1061] during periods of quarry activity.” The Board's conclusions of law reveal that this restriction resulted from concerns that arose during the hearings before it about traffic safety concerns around schools—particularly on County Road 1061 which is a major roadway in the area. According to Neis, this restriction on use amounts to an unlawful deferral of the Board's affirmative obligation under the regulations to grant a CUP only if it is “found to be in the interest of the public health, safety, morals, and general welfare of the community.” Douglas County Zoning Regulation section 12–319–1.01 [19–1.01]. Stated another way, Neis contends that under the plain language of the regulation, the Board has a responsibility to Hamm and the school district to resolve concerns about roadway safety before it could issue the CUP.
But, the zoning regulations do not mandate what Neis suggests. The regulations do state that the Board can issue a CUP “provided that the public health, safety, morals, and general welfare will not be adversely affected ... and that necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood valued.” The regulations do not, however, say that every possible contingency that might touch upon these important interests must be considered, resolved, and specifically addressed before the Board can exercise its discretion to grant a CUP.
Moreover, as the Board points out, the record belies any suggestion that the Board impermissibly deferred its consideration of the impact the CUP would have upon traffic safety. Specifically, the record reveals that the Board heard comments about and considered at length safety matters related to road traffic, including the fact that Hamm was already cooperating with school, city, and county officials to resolve issues that have arisen in relation to its use of the roads for operations at the Petefish Quarry. The Board's written conclusions of law on this issue also demonstrate that rather than shirking its responsibilities, the Board specifically and extensively considered traffic safety issues. For example, the Board pointed out that “[o]ther than outright denial of the CUP application, no opponents of the CUP Application have provided any specific recommendations on dealing with Route 1061.” The Board further commented that the opponents' fears of 365–day–per–year road usage was “simply not the case” because “[t]he subject site will not be used as a year-round quarry.” Thus, the Board concluded that the imposed restriction on use “will ensure that truck traffic is coordinated during those periods that the quarry produces truck traffic.”
The Board's findings also negate Neis' concern that the Board no longer has any control over traffic safety issues that might arise in the future as a result of the quarry's extension. The Board specifically noted that Hamm's “compliance with the Conditions and restrictions on use will be monitored. If Hamm Quarry does not cooperate with these governmental agencies in. finding solutions to traffic matters that arise, it will risk having the CUP revoked.” The Board also noted that “traffic safety on Route 1061 is an issue separate from the CUP application” and was already being adequately dealt with by the necessary city, county, and school officials. The Board correctly concluded that the “CUP application will not have a material adverse impact on traffic safety on Route 1061” and “additional traffic issues may be adequately handled if they arise.”
The record clearly shows the Board complied with Section 19–1.02 and the district court correctly concluded the Board acted lawfully.
The record further shows that Neis has not overcome the presumption that the Board's decision reasonably addressed safety issues in this manner. There is simply no basis from which we could conclude the Board acted illegally or unreasonably and the restrictions on usage renders the CUP so arbitrary that it was taken without regard to the harm involved to the community at large and all interested parties.
Failure to properly address and consider how neighboring properties will be impacted by the CUP
Neis also maintains that the Board's decision—particularly, the Board's establishment of different setback requirements for properties with residences (500 feet) than those without (150 feet)—is unlawful because in granting the CUP with those setbacks, the Board lacked any evidence and failed to determine “what actual parameters were needed from [Hamm's] operation to protect surrounding persons and property.”
Neis prefaces this argument with the contention the Board did not consider “fly rock” and, therefore, the established setbacks could not adequately have addressed the safety concerns to the surrounding properties.
We begin this discussion by noting that no concerns about fly rock, which Neis now contends the blasting operations will send onto neighboring properties, were ever presented to the Board.
The Board points out this failure of Neis and further contends that even before the district court he failed to present any competent evidence regarding the possible incidence of fly rock.
Neis makes a plethora of unsubstantiated assumptions on appeal that the setbacks are inadequate, the setbacks were established without adequate review of Hamm's operations, impact on neighboring properties was only considered “in a cursory manner,” that there inevitably will be fly rock on Neis' property, and the failure to consider evidence about fly rock by the Board renders the CUP arbitrary and capricious.
Neis takes issue with the Board's suggestion that it was his responsibility to raise the fly rock issue before the Board. He argues it was the Board's obligation to “explore” Hamm's operations and determine that it would inevitably result in a trespass to adjoining property. He makes the totally unsubstantiated argument that such information is a “trade secret” under K.S.A. 60–3320(4).
Neis complains that to agree with the Board's position on the burden to raise this fly rock issue will unfairly place a costly burden upon surrounding landowners that are properly using their property as zoned, and, who receive no financial benefit from the granting of the CUP, to seek out such trade information and hire engineers to study and present it to the Board. According to Neis, for this court to agree with the Board condones “[e]ffectively ... shift[ing] the [Board's] responsibility to exercise the police power to protect individuals to the surrounding property owners.” But, Neis cites no authority in support of this argument. Simply pressing a point without citing any supporting authority is like the failure to brief an issue, resulting in a waiver or abandonment of the argument. See McGinty v. Hoosier, 291 Kan. 224, 244, 239 P.3d 843 (2010); Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
We do not agree with Neis' argument concerning the improprieties of placing the evidentiary burden relating to fly rock concerns upon him. The Board is not suggesting that Neis has to raise and prove the fly rock issue, but simply argues that he should have to at the least raise the issue. As the result of this failure, the Board contends it was never notified of this now claimed issue, and it was never factored into the Board's decision of whether to grant the CUP.
Neis suggests he actually did raise fly rock concerns through letters to the Board and comments of his counsel before the Board. He points out that his counsel consistently requested additional steps which were felt to be necessary to address safety concerns such as requiring surveys, berms, and fencing. A careful review of the record shows a multitude of concerns about noise or dust, or other complaints, but counsel, before the Board, never mentioned that any of those concerns were tied to or had anything to do with fly rock.
Neis finally says the court must address the fly rock issue because of due process concerns. Specifically, he complains because he was not privy to everything relied on by the planning commission's staff—including the information they gathered concerning setback requirements—he did not have a meaningful opportunity of presenting “necessary refutation” of the evidence the Board relied on in setting the setbacks as it did.
Indeed, due process mandates the opportunity to be heard in a meaningful manner. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1272, 136 P.3d 457 (2006). But this does not, as Neis seems to suggest, mean a meaningful opportunity to present objections to everything a Board considers in the CUP application process. There is no such requirement in the regulations. Further, the authority relied on by Neis, Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan.App.2d 93, 819 P.2d 138 (1991), rev. denied 250 Kan. 805 (1992), is inapposite. Neis has not raised any valid due process concerns implicated by the Board's failure to consider this fly rock issue.
In summary, the regulations requiring notice to surrounding landowners during the CUP application process and the requirement of a public hearing satisfies due process requirements. This allows opponents to bring forth all of their concerns. They were allowed to do so in this instance.
The regulations do not require a CUP applicant and the planning staff to anticipate and consider unraised objections. Because Neis never came forward with any concerns about fly rock while the Board was considering Hamm's application for the CUP, we will disregard Neis' numerous and continuing attempts to establish that the Board's decision was unlawful or unreasonable due to fly rock concerns.
Nets' challenge to the legality of the Petefish Quarry's operations is immaterial and lacks any merit
Neis' second attack on the legality of the Board's decision is what we often classify as a “red herring.” Nevertheless, it will be considered.
According to Neis, a reclamation plan submitted by the Petefish Quarry in 1994 suggests the possibility that the parts of the operations at the Petefish Quarry might not have been operating as a legal nonconforming use. In support, Neis tries to show through circumstantial evidence that Hamm might have expanded its quarry operations onto some of the property encompassing the Petefish Quarry without first obtaining a required CUP. Thus, Neis maintains that the Board's decision unlawfully furthered the continuance of that illegal use. The Board responds that Neis never raised this argument below so this court cannot now consider it; but, even if Neis had preserved the issue, it lacks merit.
The only issue properly before the Board was whether it should grant the CUP for the prospective use of this particular piece of property for a quarry. Staff's reference to the Petefish Quarry as a “legal nonconforming use” was only for background purposes; staff did not specifically comment on the legality. Neis now suggests that to grant this CUP, staff was required to investigate the legality of the adjoining Petefish Quarry's nonconforming use as far back as 1974. But, he again cites no supporting authority for that proposition. The legality of the Petefish Quarry's nonconforming use simply was never an issue that was properly before the Board. Cf. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
Even if the issue of the legality of the Petefish Quarry's nonconforming use was somehow before the Board, we agree with the district court's conclusion that Neis has not met his burden to demonstrate that the entire 72 acres of land purchased by Hamm prior to adoption of the zoning ordinance was not always part of the Petefish Quarry operations. The Board is correct in its argument that our Supreme Court's recognition that an exception to the limits on the extension of nonconforming uses applies to quarry operations. This precludes a finding that any expansion of the Petefish Quarry was an unlawful nonconforming use that somehow negatively affects the validity of the CUP now on review. See Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 882, 69 P.3d 601 (2003).
Neis' challenge to operations of the Petefish Quarry was not a valid consideration and if considered, has no merit. It presents no basis for overcoming the presumption of validity and reasonableness of the Board's decision granting the CUP.
Neis' challenge to the evidentiary basis for the established setbacks lacks merit
Neis' final complaint in his challenge to the legality or reasonableness of the Board's decision is his argument that the Board lacked evidence to support the setbacks. The Board correctly responds that the record demonstrates a sufficient evidentiary basis for the setbacks and, again, it was not an issue raised before the Board.
In response to this issue, we first restate what we earlier said concerning the minimum setback requirements: That restriction was not an issue of strong contention in proceedings before the Board. When it did become an issue in the litigation discussed below, the Board produced an affidavit from Staff member Sheila Stogsdill, who stated that the reason for the greater setback for existing residences was “to mitigate potential noise, vibration and dust impacts from the quarrying activities.” Stogsdill also attested that the setbacks were derived in part based on information learned from experts during the application process in the 1990s for a CUP that had been granted to Martin Marietta for another quarry in the county.
This clearly shows there was substantial and competent evidence which was considered by the Board in establishing the setback requirements.
Additionally, Neis has acknowledged that our review is limited to determining whether the Board's action was reasonable, i.e., whether it was “so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.” Combined Investment Co., 227 Kan. at 28. Neis further acknowledges that the Board's written findings and conclusions demonstrate that the Board obviously considered the Golden factors mentioned above. See Golden, 224 Kan. at 595–96.
But, Neis still returns to his fly rock argument and says there was no evidence before the Board as to how far the fly rock will travel and this makes the Board's decision arbitrary and capricious. We need not repeat our findings of fly rock not being raised before the Board and this unsupported argument here is also clearly without merit.
There was more than adequate evidence before the Board as to noise, dust, and vibration which was considered by the Board in arriving at the setbacks which were established. This contention of Neis has no merit.
Conclusion
For all the reasons we have previously set forth, Neis has not met his burden in overcoming the presumption that the Board's decisions to grant the CUP was reasonable. Further, there is absolutely no showing that the Board's decision was somehow illegal. The district court correctly upheld the Board's decision to grant the CUP.
The district court correctly refused to grant Neis any relief under the allegations of Count IV of his petition.
Although Neis in his Count IV allegations continues, to some extent, to argue the unlawfulness and unreasonableness of the granting of the CUP, he basically also makes an equal protection and a takings argument which we will separately consider.
Standard of review
The parties filed extensive competing motions for summary judgment which does not alter the standard of review. Wheeler v. Rolling Door Co., 33 Kan.App.2d 787, Syl. ¶ 1, 109 P.3d 1255 (2005) (recognizing that mere filing of cross-motions for summary judgment does not obligate court to enter summary judgment; rather, court must independently determine that there are no genuine issues of material fact before entering summary judgment). That independent review conducted by this court in the same manner as the district court is under the well-known standard: Courts will uphold the summary judgment if no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. The evidence is viewed in the light most favorable to the nonmoving party. Where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274–75, 38 P.3d 679 (2002). But, if a plaintiff wholly fails to come forward with evidence to support an essential element of a claim, then the defendant is entitled to summary judgment. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
Nets' equal protection claim fails because he has failed to establish that he is similarly situated to any other adjacent owner
For his second appellate issue, Neis challenges the district court's granting summary judgment to the Board on his equal protection claim.
The Board convincingly responds that judgment in its favor was proper because Neis failed to come forward with any evidence to demonstrate that as the result of the setback requirements, he was treated differently than others who are similarly situated.
Two key elements of an equal protection claim are (1) disparate treatment from, and (2) someone who is similarly situated. See Village of Willowbrook v. Olech, 528 U.S. 562, 565, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Grubbs v. Bailes, 445 F.3d 1275, 1282 (10th Cir.2006) (explaining that plaintiff raising “class-of-one” equal protection claim must demonstrate he or she was treated differently from another who is similarly situated); Solis v. Brookover Ranch Feedyard, Inc., 268 Kan. 750, 757, 999 P.2d 921 (2000). The burden is on the party claiming an equal protection violation to demonstrate that he or she is treated differently than others “similarly situated in all material respects” and that there is no reasonable basis for the defendant's actions. See Kansas Penn Gaming LLC v. Collins, 656 F.3d 1210, 1217 (10th Cir.2011).
Neis' complaint below was that the Board violated his equal protection rights by treating him differently than his neighbors who have residences on their properties and received greater protection through greater setbacks. In granting summary judgment, the court below noted that Neis has no vested right to build a residence in any location he wishes on his property in the future, while property owners with existing residences do have a vested right to continue that use of their property. See Houston v. Board of City Commissioners, 218 Kan. 323, 332, 543 P.2d 1010 (1975); Colonial Investment Co. v. City of Leawood, 7 Kan.App.2d 660, 666, 646 P.2d 1149 (1982).
Neis appears on appeal to make two arguments to challenge this decision.
First, he suggests that because the district judge who heard a motion to dismiss early in the proceedings had determined he was similarly situated to his neighbors, the different judge who heard the summary judgment motions could not revisit that decision except under limited circumstances not present in this case. His stare decisis argument is not applicable, and a judge always has the right to revisit an earlier ruling before making a final decision. Further, the two rulings were based on totally different procedural postures, the first, a dismissal motion based on the petition only, and the last, a summary judgment motion properly supported and argued.
Second, Neis maintains he is similarly situated to some of his neighbors because they all farm their properties and in performing that activity, they are all under the same speculative effect of the fly rock. We have earlier discounted any fly rock argument as being unsubstantiated and clearly speculative. The record reflects that Neis does not reside on his land, there is no residence on his land, and there are many differences between Neis' existing use of his pasture property and that of his neighbors.
Even if Neis was similarly situated, his property was not treated differently from residential properties. On each of the adjoining residential properties, the residence is at least 350 feet from the boundary shared with the CUP property. This makes the setback at the same location irregardless of the Board's 500 feet setback from residences. This makes the setback for quarrying operations 150 feet for each of those properties just as it is for Neis—thus, whatever claimed risk is the same for Neis and his adjoining properties.
Summary judgment on Neis' equal protection claim in Count IV was correctly rendered by the district court because Neis has failed to come forward with any evidence to show that he has suffered disparate treatment from someone who is similarly situated.
Further, even if Neis could establish both elements of his equal protection claim, his claims would nevertheless fail because as a matter of law, any different treatment received by Neis based on the Board's decision, survives rational basis scrutiny, as opposed to the strict scrutiny that Neis seems to now suggest is required. We need not discuss this further as we have set forth sufficient reasons previously to affirm the district court on this issue. Were we required to do so, however, we would hold that rational basis scrutiny applies and is fully satisfied under the undisputed facts in the issuance of the CUP.
Neis' takings claim fails as a matter of fact and law
Neis' next issue is whether summary judgment is appropriate on his claim that the Board's decision amounts to a compensable taking of his property and specifically, the 350–foot portion (10.8 acres) of his property that will not enjoy the benefit of the 500–foot setback from the expanded quarry's operations that properties with residences will.
General principles governing takings claims
We begin by noting that the Takings Clause of the Fifth Amendment to the United States Constitution provides that private property shall not be “ ‘taken for public use, without just compensation.’ [Citations omitted.]” Zimmerman II, 293 Kan. at 345.Zimmerman II further teaches us that we have de novo review of constitutional questions and whether there has been a compensable question is a question of law. 293 Kan. at 344.
Most important, however, for the takings issue we face is the observation of Justice Luckert in Frick v. City of Salina, 290 Kan. 869, 884, 235 P.3d 1211 (2010), that “reasonable regulations of private property under the police power is not a taking and therefore does not require payment of just compensation.” ‘ “ [G]overnmental land-use regulation may under extreme circumstances amount to a “taking” of the affected property,’ but the mere imposition of a permitting or regulatory process does not imply that a taking has occurred.” 290 Kan. at 884 (quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126–27, 106 S.Ct. 455, 88 L.Ed.2d 419 [1985] ). As further explained in Frick:
“The United States Supreme Court has identified two types of regulatory action that constitute categorical or per se takings. ‘First, where government requires an owner to suffer a permanent physical invasion of her property—however minor—it must provide just compensation.’ Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). [Citation omitted.] A second categorical rule applies to ‘regulations that completely deprive an owner of “ all economically beneficial us[e]” of his or her property. [Citation omitted.] Lingle, 544 U.S. at 538. If the facts of a governmental takings case do not fit within these two categories, then the takings claim must be analyzed under the catch-all standard promulgated in Perm Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631,reh. denied439 U.S. 883.” Frick, 290 Kan. at 885.
In discussing Penn Central, the Frick opinion continued:
“[T]he Penn Central Court identified three ‘factors that have particular significance:’ (1) the economic impact of the regulation on the claimant, (2) the extent by which the regulation has interfered with distinct, investment-backed expectations, and (3) the character of the governmental action. Regarding the third factor, the Court observed: ‘A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, [citation omitted], than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.’ Penn Central, 438 U.S. at 124; see also McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 332–34, 49 P.3d 522 (2002) (discussing Penn Central ).
“The analysis of the Penn Central factors must focus on the ‘parcel as a whole,’ not discrete segments. Penn Central, 438 U .S. at 130–31. It is insufficient to establish a taking “ ‘by showing that [the landowner has] been denied the ability to exploit a property interest that [it] heretofore had believed was available for development.’ “ Mount St. Scholastica v. City of Atchison, Kansas, 482 F.Supp.2d 1281, 1298 (D.Kan.2007) (quoting Penn Central, 438 U.S. at 130.” Frick, 290 Kan. at 886–87.
Neis has failed to come forward with any evidence to sustain a compensable takings claim
Before we can reach the merits of Neis' contention that he should be entitled to summary judgment on his claim for compensable taking, we must consider the district court's conclusion that Neis' takings claims are not ripe for decision. As our Supreme Court has explained:
“The doctrine of ripeness is ‘designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.’ “ [Citations omitted.] To be ripe, issues must have taken shape and be concrete rather than hypothetical and abstract. Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 97 L.Ed. 291 (1952).” Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 170, 210 P.3d 105 (2009).
Neis contends his takings issues are ripe for determination “because the [Board] made a definitive decision as to the setbacks that would apply between Neis and [Hamm's] operation.” Thus, Neis argues the decision as to setbacks makes his property subservient to Hamm's quarry operation and has given Hamm the right to utilize his property for its operation. Neis insists the establishment of setbacks makes the takings issue ripe for determination.
The Board responds that the decision in Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), supports the district court's decision that the takings issue is not ripe for decision here. Williamson held that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” 473 U.S. at 195. The Board argues that because Kansas recognizes a claim for inverse condemnation and Neis has not yet “cleared [this] ‘just compensation hurdle,’ “— i.e., filed an inverse condemnation claim-then this federal takings claim brought pursuant to 42 U.S.C. § 1983 under color of state law is not ripe (quoting Marion County Landfill, Inc. v. Bd. of County Com'rs, 211 F.R.D. 634, 640 [D. Kan.2002] ).
Neis replies that if we agree with the Board's ripeness argument, he will have no remedy. He suggests that he cannot file an inverse condemnation action for property made subservient to private use as such actions are only available “when private property has been taken for public use without the initiation of formal condemnation proceedings by the government.” (Emphasis added.) (Citing and quoting Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 558–59, 215 P.3d 561 [2009] ).
It is apparent to us that the district court's decision as to ripeness cannot be the basis for affirming its ultimate decision in favor of the Board.
Nor do we agree with the Board's contention that under the authority of Williamson, a takings claim is not ripe because Neis has failed to pursue an inverse condemnation claim.
Neis clearly admits that he has no inverse condemnation claim which he can pursue against the Board. We agree. As was held by the Kirkpatrick decision:
“Nat'l Compressed Steel Corp. v. Unified Gov't of Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse condemnation action ‘available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings').
“To succeed on a claim for inverse condemnation, a party must establish that he or she has an interest in real property affected by a public improvement project and that a taking has occurred.” 289 Kan. at 559.
We reject the Board's argument which would in effect require Neis to bring an inverse condemnation action when factually and legally no such claim exists.
Further, we will not uphold the district court's decision that Neis' takings claim was not ripe for decision, for while such is true before the reasonableness of the Board's decision in granting the CUP has been considered, once the reasonableness of the Board's decision has been upheld (as it was below, and has previously been upheld in this opinion) the takings claim must be considered.
The interaction between a claim that governmental action is unreasonable and a related takings claim was discussed in Zimmerman II where our Supreme Court rejected the argument that “there is no taking that occurs if the zoning action is determined to be reasonable.” 293 Kan. at 346.
The Zimmerman II opinion approved the necessity of reaching and analyzing a takings claim as occurred in McPherson Landfill after a finding had been made that the county's actions were reasonable by stating:
“The McPherson Landfill court admittedly gave no specific justification for further analyzing the takings issue. Its action is perhaps explained by the Court in Lingle 3 years later. More specifically, reasonableness, e.g., arbitrariness, is an issue under the Due Process Clause of the United States Constitution, while takings is a Takings Clause issue. 544 U.S. at 540. Accordingly, if the governing body action is unreasonable, there cannot be a taking. The action is simply void. Only if the action is reasonable does a court proceed to address the takings issue.” 293 Kan. at 346.
We likewise will proceed to consider Neis' takings arguments.
There is no ultimate merit in any of Neis' takings claim arguments
Although the district court considered the takings claims Neis made, they were dismissed in part as being “premature and not ripe for decision.” We agree with the district court's ultimate conclusion. But, we characterize Neis' attempt to base a takings claim on the speculative and unsubstantiated assumption that Hamm's operations could potentially cause rocks to be thrown onto his property to be without any factual basis.
The district court correctly stated: “[N]othing contained in the resolution adopted by the Board or in the restrictions the Board placed on the CUP authorized Hamm to enter on plaintiff's property.” Neis took the deposition of a staff planner who worked on the CUP but was unable to produce any evidence the quarry operations would cause rocks to be deposited on Neis' property. Further, neither did the affidavits of Amy Vestal or Robert Gabriel establish a factual basis to show a potential trespass by Hamm to Neis' property.
The CUP does not regulate Neis' property or place any limits on the usage of his property. His takings argument is based on pure speculation and totally unsupported by any competent evidence that rock will lawfully be deposited onto his property when quarry operations begin.
These arguments are ripe for our consideration but they are totally and completely without any present merit to establish a takings claim. While our reasoning is slightly different, we reach the same ultimate conclusion as the district court did on Neis' initial argument of his takings claim.
Neis next argues he will suffer a taking by physical invasion to his property. He states the standards for regulatory takings do not apply to his claim.
We earlier identified in our quote from Frick v. City of Salina, 290 Kan. at 885, that there are two types of regulatory actions that constitute categorical or per se takings. “ ‘First, where government requires an owner to suffer a permanent physical invasion of her property—however minor—it must provide just compensation.’ [Citation omitted.] A second categorical rule applies to ‘regulations that completely deprive an owner of “all economically beneficial us[e]’ “ of his or her property. [Citation omitted.]” 290 Kan. at 885.
The Frick decision goes on to state that if a takings claim does not fit within either of these two categories, then the takings claim must be analyzed under the catch-all standard promulgated in Penn Central. 290 Kan. at 885.
It is clear to us that Neis' takings claim fails under both requirements for a categorical or per se taking.
Neis does not assert that the CUP authorizes any agency or instrumentality of Douglas County to occupy his property. He makes the unsubstantiated claim that the Board's issuance of the CUP will result in physical invasion of his property because Hamm will expand its quarry to the 150–foot setback boundary and adjustments to his fanning practices will be required in order to protect individuals and property.
The common theme to the three cases Neis relies on—Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); and Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), is that in each case, the governing authority or agency required the owners to suffer some kind of permanent occupation of their property.
In our case, there has not been and will not be any occupation of Neis' property. The Board has not allowed Douglas County or anyone else to have access to Neis' property. The CUP does not permit Hamm to enter Neis' property or to project rocks onto Neis' property. Should such an event occur in the future, Hamm would suffer liability for any damage which it might cause, but that possibility may not be the basis to substantiate a physical invasion sufficient to justify a takings claim.
The requirement of a physical taking is stated succinctly in Yee v. Escondido, 503 U.S. 519, 527, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992): “The government effects a physical taking only when it requires the landowner to submit to the physical occupation of his land. ‘This element of required acquiescence is at the heart of the concept of occupation.’ “
In summary, the CUP does not require Neis to submit to the physical occupation of his land—Neis failed to introduce any competent evidence to show that any physical occupation will occur, either authorized or in any other manner. Neis' takings claim on the basis of physical occupation has no merit and was correctly rejected by the district court.
Neis has not raised any argument that the regulations and issuance of the CUP completely deprive him of all economic beneficial use of his property. See Frick, 290 Kan. at 885. As the district court correctly held, “the plaintiff has produced no evidence to support the claim that he has lost all beneficial or productive use of his land.” Any argument to the contrary has not been raised or briefed by Neis and this second category for a per se taking has been abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Neis has argued that the regulatory takings analysis set forth in Penn Central is not applicable to his claim because he contends “this CUP ... effects physical occupation of Neis' property.” Despite his rejection of the Penn Central standards, he does make a cursory reference to Penn Central factors as applied in McPherson Landfill, concluding that “[u]nder these circumstances a takings claim exists even under a regulatory analysis.”
Neis has failed to develop this argument to any extent in his brief, and we might well apply our rule that a point raised incidentally in a brief and not argued therein is also deemed abandoned. See Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012). However, we will briefly consider the Penn Central factors as even if sufficiently raised, they do not show that a taking occurred under our undisputed facts.
As we previously set forth, the Penn Central factors are “(1) the economic impact of the regulation on the claimant, (2) the extent by which the regulation has interfered with distinct, investment-backed expectations, and (3) the character of the governmental action.” Frick, 290 Kan. at 886.
First, Neis did not establish any significant economic impact on his property as the result of the Board's adoption of the CUP. He argues the setback will limit the use of his land, but there he came forward with no substantial competent evidence to show that such is the case. No evidence showed that any particular minimum setback is required to protect continuing agricultural use of Neis' property. Nor did Neis come forward with evidence showing any economic impact as the result of the issuance of the CUP.
Second, Neis has not shown that the issuance of the CUP will interfere with any distinct investment-backed expectations. He has not shown he will be unable to utilize his property for farming purposes or any other purposes. As said in Frick, it is not enough for taking purposes to show that the landowner has “been denied the ability to exploit a property interest that [it] heretofore believed was available for development.” 290 Kan. at 887.
Third, the character of the government action does not support a takings claim. All that occurred under our undisputed facts is the approval by the Board of a CUP for quarrying operations adjacent to the site of an existing quarry. Substantial and lasting conditions were imposed by the Board. There is no permitted invasion or occupation of Neis' property.
Clearly, the CUP does not interfere with Neis' rights “in the parcel as a whole.” See Penn Central, 438 U.S. at 130–31;Frick, 290 Kan. at 886–87 (“The analysis of the Penn Central factors must focus on the ‘parcel as a whole,’ not discrete segments.”). Neis has failed to establish that the CUP has any significant effect on his land, much less that it regulates its use in a manner that “goes too far” and, therefore, amounts to a regulatory taking.
The district court correctly held that a taking did not occur for all the numerous reasons we have previously set forth.
Given our ruling that there was no violation of the takings clause, and, the holding that no inverse condemnation cause of action exists, it also follows there was no violation of 42 U.S.C. § 1983 because there is no loss of property or right. Zimmerman II, 293 Kan. at 355.
Finally, in this already too long opinion, we categorically reject Neis' arguments that the district court failed to make sufficient findings of fact and conclusions of law and that the district court abused its discretion in denying his request to depose the county commissioners.
The district court prepared a 15–page memorandum decision which satisfies all the requirements of Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232), Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246), and K.S.A. 60–252. We have had no difficulty in reviewing its decision. This contention has no merit.
The control of discovery is reviewed under an abuse of discretion standard, and we have concluded that an administrative body performing a quasi-judicial function is not subject to inquiry concerning its mental processes in reaching a decision. See Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 757, 648 P .2d 225 (1982). The district judge did not err in refusing Neis' request to depose the county commissioners.
The district court's rulings are all affirmed.