Pretty Prairie Wind v. Reno County ( 2022 )

No. 123,277
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PRETTY PRAIRIE WIND LLC, et al.,
Appellants,
v.
RENO COUNTY and BOARD OF RENO COUNTY
COMMISSIONERS,
Appellees.
SYLLABUS BY THE COURT
1.
Kansas law requires an appellee to cross-appeal a district court's adverse decisions
before those rulings may be challenged on appeal. The failure to cross-appeal a district
court's adverse decision creates a jurisdictional bar preventing appellate review.
2.
While a cross-appeal is necessary to bring other adverse rulings before the
appellate courts, it is not generally required when a party is merely challenging the
district court's reasoning underlying a decision already subject to appeal.
3.
The requirements of K.S.A. 25-3601 through K.S.A. 25-3608 do not apply to
zoning protest petitions. Those petitions are governed by K.S.A. 2021 Supp. 12-
757(f)(1).
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed August 26, 2022.
Affirmed.
1
Timothy J. Sear, of Polsinelli PC, of Kansas City, Missouri, Alan Claus Anderson, of Kansas
City, Missouri, and Gerald L. Green, of Gilliland Green LLC, of Hutchinson, for appellants.
S. Eric Steinle, of Martindell Swearer Shaffer Ridenour LLP, of Hutchinson, and Joseph P.
O'Sullivan, Reno County Counselor, for appellees.
Patrick B. Hughes and Susan M. Locke, of Adams Jones Law Firm, P.A., of Wichita, for
intervenors Lynn Thalmann, et al.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
WARNER, J.: This appeal concerns the statutory requirements for petitions
protesting proposed zoning changes. The current dispute began when Pretty Prairie Wind
LLC sought a conditional-use permit from the Board of Reno County Commissioners to
operate a wind farm. Several local property owners challenged Pretty Prairie's permit
application by filing zoning protest petitions, triggering a heightened voting requirement
to approve the permit. The Board of County Commissioners' vote failed to meet this
requirement, resulting in the denial of Pretty Prairie's application.
Pretty Prairie filed suit, challenging the form of the protest petitions. The district
court concluded that the protest petitions were valid under Kansas law and entered
judgment for the County. After carefully reviewing the record before us and the parties'
arguments, we agree with the district court's decision to grant judgment in favor of the
County, albeit for different reasons. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2019, Pretty Prairie applied for a conditional-use permit to build a
wind farm near Haven in Reno County. After receiving a report from county staff, the
Reno County Planning and Zoning Commission held several public hearings and
received public comments concerning the proposed permit. That April, the Commission
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recommended to the three-member Board of County Commissioners that the application
be denied.
Under Kansas law, the vote needed to overcome a planning commission's
recommendation depends on the community's reaction to the recommended outcome. In
most instances, a board of county commissioners can overrule a planning commission's
recommendation by a two-thirds majority vote. See K.S.A. 2021 Supp. 12-757(d). But
when the owners of at least 20% of the land within 1,000 feet of the property at issue sign
and file protest petitions within 14 days after the end of the public hearings, a three-
fourths majority is needed to overrule the recommendation. K.S.A. 2021 Supp. 12-
757(b), (f)(1); Reno County Zoning Regulations § 20-102 (2016).
The Board of Reno County Commissioners has three members. Practically
speaking, this means that a vote of two of the three members is necessary to overcome
the Reno County Planning and Zoning Commission's recommendations in most
circumstances. But when a sufficient proportion of landowners file petitions protesting a
proposed zoning action, a decision rejecting a recommendation requires the vote of all
three Board members.
Reno County residents began organizing to submit protest petitions against the
wind farm, holding several community events to mobilize neighboring landowners. The
protest petitions provided at these events included the date, the protesting landowner's
name, a description or address of the landowner's property, and the landowner's signature.
The petitions also included a section for the signature and address of a "circulator," along
with a declaration stating, "I declare under penalty of perjury I am a circulator of this
petition, duly qualified, and personally witnessed each signature on this page."
Shortly before its June 2019 meeting, the Board determined that 114 valid
petitions—from owners representing 46% of the property within the 1,000-foot
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boundary—had been filed, triggering the three-fourths majority requirement. Of these
petitions, approximately 110 included a circulator's signature. The Board voted 2-1 to
approve the permit, falling short of the required vote to override the planning
commission's recommendation. As a result, the permit was denied.
Pretty Prairie filed a petition in district court challenging this outcome, raising
procedural and substantive claims. From a procedural standpoint, Pretty Prairie asserted
that the protest petitions were invalid because the circulators failed to comply with
K.S.A. 25-3602(b)(4), a statute governing petitions submitted for elections; this statute
requires a circulator to verify before a notarial officer that the circulator witnessed each
person sign a petition. Pretty Prairie argued that the protest petitions were void because
the circulator signatures were not notarized, so the Board's 2-1 vote was sufficient to
overrule the Commission's recommendation. Turning to the substance of the Board's
decision, Pretty Prairie asserted that the decision to deny the permit was unreasonable.
As the case progressed before the district court, Pretty Prairie sought partial
summary judgment on its procedural claim. The County, as well as various adjacent
landowners (the Intervenors) who were permitted to intervene as defendants, opposed this
request. The district court denied Pretty Prairie's motion. Most relevant to this discussion,
the court found that the notarial-affirmation requirement under K.S.A. 25-3602(b)(4)
applied to zoning protest petitions, but the circulators' declaration on the protest petitions
substantially complied with that statute.
Following the ruling, Pretty Prairie sought to file an interlocutory appeal, which
the court denied. Pretty Prairie then dismissed its outstanding substantive claim and asked
that final judgment be entered on its procedural claim. The court granted this request, and
Pretty Prairie appealed. Neither the Intervenors nor the County filed a cross-appeal.
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DISCUSSION
The primary point of contention in this appeal is the standard that governs
petitions protesting potential zoning changes. Pretty Prairie asserts—and the district court
found—that protest petitions must comply with Kansas statutes governing election
petitions, K.S.A. 25-3601 through K.S.A. 25-3608. The County argues that the protest
petitions are governed solely by K.S.A. 2021 Supp. 12-757.
Unraveling these issues turns on the language and interplay of these various
statutory provisions. Statutory interpretation is a legal question over which appellate
courts' review is unlimited. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647(2019). Our primary aim when interpreting statutes is to give effect to the legislature's
intent, expressed through the statutory language it adopted. State v. Spencer Gifts, 304
Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). We thus follow the statutes' plain language—we
do not add or ignore statutory requirements, and we give ordinary words their ordinary
meanings. 304 Kan. 755, Syl. ¶ 3.
When legislative intent is unclear from the statute's text, courts employ canons of
construction to ascertain the legislature's aim. Primary among these is the presumption
that the legislature does not intend to enact meaningless legislation, and that statutory
language should be construed to avoid unreasonable or absurd results. See In re Marriage
of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). In a similar vein, courts attempt to
reconcile conflicting statutes and bring them into workable harmony, if possible. See
Miller v. Board of Wabaunsee County Comm'rs, 305 Kan. 1056, 1066, 390 P.3d 504(2017). Statutes that specifically address a matter tend to control over a more general
statutory provision. State ex rel. Schmidt v. Governor Kelly, 309 Kan. 887, 898, 441 P.3d
67 (2019).
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Applying these principles here, we agree with the County that zoning protest
petitions are governed by K.S.A. 2021 Supp. 12-757, not by K.S.A. 25-3601 et seq.
While most of the protest petitions filed in this case contained a signature and declaration
for the petition circulator, those sections were not required by Kansas law. Because these
petitions comply with K.S.A. 2021 Supp. 12-757, the district court correctly granted
judgment to the County, even though it employed different reasoning to reach that result.
Accord Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015) ("'If a trial court
reaches the right result, its decision will be upheld even though the trial court relied upon
the wrong ground or assigned erroneous reasons for its decision.'").
1. The absence of a cross-appeal does not constrain our review of the district court's
summary-judgment ruling.
Before explaining our analysis of these relevant statutes, we must consider a
threshold jurisdictional question. Pretty Prairie asserts that we do not have jurisdiction to
consider this statutory question—which Kansas statute governs the protest petitions—at
all because the County and Intervenors did not cross-appeal that finding. According to
Pretty Prairie, in the absence of a cross-appeal, this court is constrained by the district
court's conclusion as to which statute applies. Thus, the only issues in this appeal are
whether protest petitions must strictly or substantially comply with K.S.A. 25-3602 and
whether the petitions here satisfied that level of compliance. We disagree.
In denying Pretty Prairie's summary-judgment motion, the district court found that
the zoning protest petitions were valid. To arrive at that ruling, the court made several
intermediate determinations. Most notably, the court concluded:
• that K.S.A. 25-3602, not K.S.A. 2021 Supp. 12-757, established the requirements
for zoning protest petitions;
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• that only substantial compliance (not strict compliance) with K.S.A. 25-3602 was
required for the protest petitions to be valid; and
• that the protest petitions substantially complied with that statute.
The County and the Intervenors present two alternative bases for why the district
court's ultimate ruling—the zoning protest petitions were valid—was correct. They claim
that K.S.A. 2021 Supp. 12-757, not K.S.A. 25-3602, governs the protest petitions. And
they assert that if the district court's statutory analysis of K.S.A. 25-3602 was correct,
then it correctly determined that the protest petitions complied with that statute.
It is true—as Pretty Prairie indicates—that Kansas law requires an appellee to
cross-appeal a district court's adverse decisions before those rulings may be challenged
on appeal. Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008); see K.S.A. 2021
Supp. 60-2103(h) (cross-appeal required when "the appellee desires to have a review of
rulings and decisions of which such appellee complains"). The failure to cross-appeal a
district court's adverse decision creates a jurisdictional bar preventing appellate review.
Lumry v. State, 305 Kan. 545, 555, 385 P.3d 479 (2016).
But while a cross-appeal is necessary to bring other adverse rulings before the
appellate courts, it is not generally required when a party is merely challenging the
district court's reasoning underlying a decision already subject to appeal. See Lacy v.
Kansas Dental Board, 274 Kan. 1031, 1044, 58 P.3d 668 (2002); Williams v. Amoco
Production Co., 241 Kan. 102, 116, 734 P.2d 1113 (1987). In Lacy, for example, the
Kansas Supreme Court upheld a district court's decision under a different statutory
provision than the one the district court relied on. 274 Kan. at 1044. While the district
court's conclusion was correct, its reasoning was not—the provision that it thought
resolved the question did not apply, but another provision did and led to the same result.
274 Kan. at 1044.
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In its brief, Pretty Prairie cites Reinecker v. Board of Trustees, 198 Kan. 715, 722,
426 P.2d 44 (1967), for its assertion that the County and Intervenors were required to
cross-appeal the district court's conclusion that K.S.A. 25-3602—not K.S.A. 12-757—
applies to protest petitions. But Reinecker is readily distinguishable. In that case, various
landowners appealed the denial of an injunction in an eminent-domain action. In its
response brief, the appellee argued that although the district court had ultimately ruled in
its favor at trial, the court erred in admitting certain trial testimony. The Kansas Supreme
Court found that the evidentiary challenge was not properly before the court since no
cross-appeal had been filed. 198 Kan. at 722. Thus, the issue barred by the absence of a
cross-appeal in Reinecker was separate and distinct from the questions on appeal. That is
not the case here.
The Kansas Supreme Court revisited the nature of cross-appeals in Cooke. That
case had yo-yoed between the district and appellate courts several times. In the most
recent appeal, the appellant, Cooke, challenged the district court's distribution of
settlement proceeds. Cooke argued that the statute of limitations barred the district court's
action; the opposing party, Gillespie, asserted that this question was not properly before
the court because Cooke had not cross-appealed the district court's adverse ruling on that
question during a previous appeal. Our Supreme Court agreed with Gillespie. The court
explained that "Cooke failed to cross-appeal an earlier, and clearly adverse, ruling: Judge
Kennedy's denial of her summary judgment motion that was based upon the statute of
limitations." 285 Kan. at 755.
In reaching this conclusion, the Cooke court reviewed several earlier decisions
discussing the necessity of a cross-appeal. In each instance, the Supreme Court had held
that an issue must be presented through a cross-appeal when it arises from a district
court's interim, adverse ruling. See, e.g., Scammahorn v. Gibraltar Savings & Loan
Ass'n., 197 Kan. 410, 416 P.2d 771 (1966) (party must file cross-appeal to challenge
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district court's denial of a motion to dismiss); James v. City of Pittsburg, 195 Kan. 462,
407 P.2d 503 (1965) (same); Chavez v. Markham, 19 Kan. App. 2d 702, 875 P.2d 997(1994), aff'd 256 Kan. 859, 889 P.2d 122 (1995) (party must cross-appeal denial of a
motion for summary judgment).
As these cases illustrate, cross-appeals are always necessary when an appellee is
challenging some adverse "ruling" or "judgment" against that party. Cooke, 285 Kan.
748, Syl. ¶ 2; Williams, 241 Kan. at 116. The law is admittedly less clear as to when a
party must cross-appeal some other determination, however.
In many cases, courts have considered alternative reasons supporting the district
court's ultimate decision when no cross-appeal was filed. See Gannon, 302 Kan. at 744
(denial of motion to intervene was correct for a different reason than that given by the
district court because the motion was untimely filed); see also Atkins v. Webcon, 308
Kan. 92, 97, 419 P.3d 1 (2018) ("'[W]hen an agency tribunal reaches the right result, its
decision will be upheld even though the tribunal relied upon the wrong ground or
assigned erroneous reasons for its decision.'"). But in a few cases, appellate courts have
found that the absence of a cross-appeal precludes review of a district court's adverse
factual finding or of the court's rejection of an alternative basis for its decision. See
Lumry, 305 Kan. at 554 (because appellee had not cross-appealed district court's factual
finding that appellee was an employer, appellate court did not have to consider that
question); State v. Novotny, 297 Kan. 1174, 1181, 307 P.3d 1278 (2013) (State did not
cross-appeal district court's finding that the photo lineup was unnecessarily suggestive).
But see State v. Bates, 316 Kan. ___, 513 P.3d 483 (2022) (affirming the district court's
denial of suppression motion for alternative legal grounds previously rejected by the
district court with no mention of need for cross-appeal).
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This difference in treatment may be interesting in an academic sense. But we need
not finally resolve the scope of all potential cross-appeals here. Instead, we find the facts
of this case demonstrate that no cross-appeal is necessary for two reasons.
First, there was no adverse ruling from which the County or Intervenors could
seek our review. The district court made two rulings relevant to this appeal. It denied
Pretty Prairie's summary-judgment motion, and then it granted the parties' agreed-upon
motion to dismiss Pretty Prairie's remaining claims so that Pretty Prairie could appeal the
summary-judgment denial. Neither ruling was adverse to the County or the Intervenors—
in both instances, judgment was entered in their favor on the merits.
Second, the statutory analysis of K.S.A. 25-3602 and K.S.A. 2021 Supp. 12-757 is
key to deciding Pretty Prairie's appeal. Determining whether the district court erred in
denying summary judgment—that is, in deciding that the protest petitions were valid—
requires determining what statute governs, and in turn what standards govern protest
petitions for conditional-use permits. Pretty Prairie apparently perceived the importance
of this statutory question, as it presented and pressed the issue in its opening brief. To
hold otherwise would require this court to engage in a bizarre and potentially misleading
discussion—to conduct a legal analysis under a statute that may not, in actuality, apply.
This statutory analysis is thus different from other determinations, which have been
involved in case-specific factual findings, where Kansas courts have found cross-appeals
necessary. See Lumry, 305 Kan. at 554; Novotny, 297 Kan. at 1181.
Under these circumstances, we are not persuaded by Pretty Prairie's argument that
the absence of a cross-appeal limits our review of the district court's summary-judgment
ruling. We thus proceed to our analysis of the relevant statutory provisions.
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2. K.S.A. 2021 Supp. 12-757(f)(1), not K.S.A. 25-3602, governs the zoning protest
petitions.
As we have indicated, the primary question in this appeal is whether K.S.A. 25-
3602 applies to zoning protest petitions. The district court found the petition requirements
in K.S.A. 25-3602(b) apply to zoning protest petitions under K.S.A. 2021 Supp. 12-757.
In reaching this decision, the court noted the absence of many specific requirements in
K.S.A. 2021 Supp. 12-757(f)—particularly with regard to circulator certifications—for
protest petitions' signatures. The court also noted that K.S.A. 25-3601(c) states the
section applies to petitions "protesting" an ordinance or resolution.
On appeal, Pretty Prairie supplements this reasoning by pointing to Deffenbaugh
Disposal Services, Inc. v. City of Kansas City, No. 63,131, unpublished opinion filed June
6, 1989 (Kan. App.), and Kansas Attorney General Opinion No. 2003-18, which both
assumed—without deciding—that K.S.A. 25-3602 applies to zoning protest petitions.
The County and Intervenors note that we are not bound by these decisions. They also
argue that K.S.A. 25-3602 relates specifically to petitions in the elections context, and
applying K.S.A. 25-3602 to a protest petition would require courts to disregard most of
that statute's requirements.
K.S.A. 25-3601 through K.S.A. 25-3608 govern petitions "required or authorized
as part of the procedure applicable to the state as a whole or any legislative election
district or to any county, city, school district[,] or other municipality." K.S.A. 25-3601(a).
A previous panel of this court described K.S.A. 25-3601 as "a procedural statute" that
"provides a format for submitting ballot questions and a process for getting official
approval of questions before getting citizen signatures on petitions seeking a public vote."
Ramcharan-Maharajh v. Gilliland, 48 Kan. App. 2d 137, 141, 286 P.3d 216 (2012), rev.
denied 297 Kan. 1247 (2013). K.S.A. 25-3601 and K.S.A. 25-3602 include several
requirements for petitions to be effective. For example:
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• K.S.A. 25-3601(c) sets forth the "form of any question in a petition requesting an
election on or protesting an ordinance, or resolution, adopted by" the relevant
governing body must take.
• K.S.A. 25-3602(b) requires a petition to include various information, such as the
question "which petitioners seek to bring to an election" and the political or taxing
subdivision "in which an election is sought to be held." K.S.A. 25-3602(b)(1), (2).
• K.S.A. 25-3602(b)(3) requires a petition to include the statement, "'I have
personally signed this petition. I am a registered elector of the State of Kansas and
of [the relevant political subdivision] and my residence address is correctly written
after my name.'"
• If a circulator is involved in the petition process, K.S.A. 25-3602(b)(4) requires
the petition contain a recital stating the circulator (as defined by K.S.A. 25-3608)
is qualified as a circulator and personally witnessed the signers sign the petition.
The circulator's recital must be "verified upon oath or affirmation before a notarial
officer in the manner prescribed by the revised uniform law on notarial acts."
K.S.A. 25-3602(b)(4).
These requirements do not apply to petitions in all contexts. For example, K.S.A.
25-3601(f) explicitly excludes recall petitions and grand-jury petitions from complying
with these provisions. And K.S.A. 25-3601(d) states that "[w]hen any other statute
imposes specific requirements which are different from the requirements imposed by
K.S.A. 25-3601 et seq., and amendments thereto, the provisions of the specific statute
shall control."
K.S.A. 12-757 governs zoning decisions. K.S.A. 2021 Supp. 12-757(f)(1) states
that protest petitions for a potential zoning decision must be "filed in the office of the city
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clerk or the county clerk within 14 days after the date of the conclusion" of the planning
commission's public hearing. If protest petitions "signed . . . by the owners of record of
20% or more of the total real property within the area required to be notified by this act"
are filed, then a three-fourths vote is required to pass the proposed amendment. K.S.A.
2021 Supp. 12-757(f)(1). For zoning outside city limits, all property owners living within
at least 1,000 feet of the area to be altered must be notified. K.S.A. 2021 Supp. 12-
757(b). Reno County's zoning ordinance contains a similar requirement. See Reno
County Zoning Regulations § 20-102 (requiring a protest petition to be "duly signed and
acknowledged by the owners").
The County points out several textual indications that the legislature did not intend
for K.S.A. 25-3601 through K.S.A. 25-3608 to apply to zoning protest petitions. We
agree that the language of these statutes concerns elections and signature requirements for
electors. See generally K.S.A. 25-3601 (referencing elections and the county election
officers throughout); K.S.A. 25-3602(b) (establishing signature requirements for
"electors"); K.S.A. 25-3604 (setting forth the method of verifying that the signatures are
provided by registered voters). Even K.S.A. 25-3601(f), which specifically excludes
recall petitions and grand-jury petitions from its requirements, concerns petitions that
involve elections or electors' signatures. See K.S.A. 25-4301 et seq. (governing recall of
elected officials); K.S.A. 2021 Supp. 22-3001(c) (grand jury can be summoned by a
petition from a requisite number of qualified "electors").
These "election" and "elector" requirements do not make sense for zoning protest
petitions. In the zoning context, people signing protest petitions must own property in or
adjacent to the area to be rezoned. K.S.A. 2021 Supp. 12-757(f)(1). There is no
requirement that those property owners be registered to vote or even be Kansas residents.
Thus, most requirements in K.S.A. 25-3601 and 3602 could not apply. The only potential
exception is the circulator verification in K.S.A. 2021 Supp. 25-3602(b)(4), which
refences "petition circulator[s]" and does not mention elections or electors. But we cannot
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read this provision in isolation, nor can we read out or ignore the remainder of that
statute. See Spencer Gifts, 304 Kan. 755, Syl. ¶ 3.
Our review of other statutes that reference K.S.A. 25-3601 through K.S.A. 25-
3608 further underscores our conclusion that those provisions were only intended to
apply to election petitions. See K.S.A. 2021 Supp. 12-6a36(d) (requiring election for city
to issue full-faith-and-credit bonds if protest petition objecting to issuance is signed by
percentage of qualified voters in municipality); K.S.A. 2021 Supp. 12-1774(b)(2) (similar
requirement for full-faith-and-credit tax-increment bonds); K.S.A. 41-302(a)-(b) (similar
requirement for election questions concerning licensing the retail sale of alcohol in its
original packaging). These statutes indicate the types of situations to which K.S.A. 25-
3601 applies—petitions requiring signatures from a certain number or percentage of
electors to trigger an election. Multiple other statutes reflect this system to prompt an
election. See, e.g., K.S.A. 2021 Supp. 2-131b (in counties with fair associations, tax
levies for erection and maintenance of fair association buildings); K.S.A. 10-203
(building, purchasing, or repairing of bridges); K.S.A. 12-614 (bonds for resurfacing
paved streets); K.S.A. 12-1236 (creating library district); K.S.A. 12-3013 (describing
process for proposed ordinances); K.S.A. 24-122 (returning oversight of drainage district
to directors) ; K.S.A. 68-598 (abandoning county rural highway system); K.S.A. 72-1143
(establishment of teacherages); K.S.A. 80-1514b (general obligation bonds for fire
district).
Zoning protest petitions under K.S.A. 12-757, however, are qualitatively different
from election petitions. Unlike statutes concerning elections, rezoning begins by
submitting a zoning amendment to a planning commission, not through a petition
process. K.S.A. 2021 Supp. 12-757(b). Protest petitions do not trigger public involvement
in the rezoning decision—a successful petition simply increases the threshold required
for the Board to pass a rezoning ordinance or resolution. K.S.A. 2021 Supp. 12-757(f)(1).
The petition-signing requirement is based on land ownership, not the ability to vote.
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K.S.A. 2021 Supp. 12-757(f)(1). And petitions are filed with the city or county clerk, not
an election officer. K.S.A. 2021 Supp. 12-757(f)(1).
The authorities that Pretty Prairie references on appeal do not persuade us
otherwise. In Deffenbaugh, a panel of this court found a circulator properly verified
signatures on zoning protest petitions under the predecessor to K.S.A. 25-3602(b)(4).
Deffenbaugh assumed, rather than decided, that K.S.A. 25-3601 applied to zoning protest
petitions; that issue was not presented for the panel's consideration, nor was it given any
consideration or meaningful discussion in that opinion. Accord State v. Fleming, 308
Kan. 689, 706, 423 P.3d 506 (2018) (Court of Appeals panels are not required to follow
decisions of previous panels); Graham v. Herring, 297 Kan. 847, 861, 305 P.3d 585(2013) (unpublished opinions are not binding precedent).
Similarly, in Attorney General Opinion No. 2003-18, the attorney general relied
on the broad language of K.S.A. 25-3601(a) and (d)—stating the statute applies generally
to petitions unless a more specific statute controls—to conclude the signatures of
individual petitioners need not be notarized. But we owe no deference to this
interpretation. Accord Willis v. Kansas Highway Patrol, 273 Kan. 123, 130, 41 P.3d 824(2002) ("[A]ttorney general opinions are not binding law in Kansas."). And the statutory
language, when read in context, shows that K.S.A. 25-3601 applies to election petitions,
not zoning petitions.
In short, we conclude that the requirements of K.S.A. 25-3601 through K.S.A. 25-
3608 do not apply to zoning protest petitions. K.S.A. 2021 Supp. 12-757(f)(1) requires
protest petitions in the zoning context to be signed by a qualifying property owner and
submitted to the county clerk within the timeframe provided in that statute. Contrary to
the district court's statements in its ruling, the absence of further requirements does not
indicate that courts must use other provisions to supplement that statute; it simply means
that the legislature intended zoning protest petitions to be subject to fewer statutory
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restrictions. Likewise, the fact that most of the protest petitions here included a circulator
declaration does not mean such a declaration was required by law, or that the decision to
include this declaration somehow transformed the documents into election petitions under
K.S.A. 25-3601.
There is no question that the protest petitions here meet the requirements of K.S.A.
2021 Supp. 12-757(f)(1). Thus, the district court correctly concluded that the petitions
were valid, albeit for a different reason than that court provided.
Before closing, we observe that the Intervenors urge several procedural reasons
why we should not consider Pretty Prairie's appeal. They allege Pretty Prairie invited any
error because it asked that final judgment be entered (even though all parties consented to
that procedure), and they challenge the way Pretty Prairie brought this case before the
district court. We do not find these arguments persuasive. And in light of our conclusion
that the protest petitions in this case were valid under K.S.A. 2021 Supp. 12-757(f)(1),
we need not address them further.
Affirmed.
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