Kaw Valley Companies v. Board of Leavenworth County Comm'rs ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,525
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KAW VALLEY COMPANIES, INC.,
Appellant,
v.
BOARD OF LEAVENWORTH COUNTY COMMISSIONERS,
Appellee.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed August 26, 2022.
Reversed in part, vacated in part, and remanded with directions.
Justin J. Johl, and Jessica A.E. McKenney, pro hac vice, of Shook, Hardy & Bacon L.L.P., of
Kansas City, Missouri, for appellant.
Christopher L. Heigele and Jacob D. Bielenberg, of Baty Otto Coronado Scheer PC, of Kansas
City, Missouri, for appellee.
Before BRUNS, P.J., ATCHESON and ISHERWOOD, JJ.
PER CURIAM: This appeal is brought under the provisions of K.S.A. 19-223. It
arises out of the Board of Leavenworth County Commissioners (Board of County
Commissioners) approval of a Resolution granting a special use permit (SUP) to Kaw
Valley Companies, Inc. (Kaw Valley). Under the Resolution, Kaw Valley is authorized to
conduct a sand dredging operation in an unincorporated part of Leavenworth County a
few miles from the Kansas River. On appeal, Kaw Valley argues—among other things—
that two of the conditions contained in the Resolution are unreasonable. In response, the
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Board of County Commissioners contends that the Resolution is adequate as written
because it contemplates further negotiations.
Based on our review of the record on appeal, we do not find the conditions set
forth in the SUP to be unlawful or categorically improper. However, we do find that the
conditions set forth in the Resolution adopting the SUP are not specific enough to
adequately allow for judicial review to determine their reasonableness. Likewise, we find
that some of the conditions are not specific enough to allow Kaw Valley to make a well-
informed decision whether to go forward with the project. Accordingly, Kaw Valley has
been "aggrieved" by the adoption of the SUP within the meaning of K.S.A. 19-223. Thus,
we reverse the district court's decision, vacate the Resolution granting the SUP
application, and remand this matter to the Board of County Commissioners for further
proceedings.
FACTS
On January 16, 2019, Kaw Valley filed an application for a SUP with the
Leavenworth Planning Department. In the application, Kaw Valley represented that it had
leased 224 acres of nonresidential real property near 166th Street and Lenape Road in
rural southern Leavenworth County. Kaw Valley desired to change the existing
agricultural use of the land to an open surface sand mining operation "to quarry and
stockpile sand from the underlying deposits.
Kaw Valley further represented that there would be truck traffic in and out of the
quarry on weekdays. According to the representations made in the application, the quarry
would have "[a]n estimated 8 to 10 truck trips per hour or 64 to 80 truck trips per day . . .
to the site each regular weekday between the hours of 7:00 a.m. and 3:00 p.m."
According to Kaw Valley, the quarry would produce approximately 2,000 tons of sand
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each day of operation and use a weight scale to ensure that the outgoing trucks do not
exceed legal weight limits for the nearby public roadways.
In a Plant Operations Memorandum prepared by Cook, Flatt & Strobel Engineers
P.A. for Kaw Valley, dated June 28, 2019, additional details regarding the quarry were
identified. Specifically, the memorandum stated that "[o]nce the sand has been excavated,
it would be stockpiled on the site to await transport to Kaw Valley's Edwardsville
processing site . . . ." In addition to Kaw Valley, other companies could also send trucks
to the quarry to load sand and send it to construction sites or concrete mixing plants.
Prior to filing its application for a SUP, Kaw Valley had several preliminary
discussions with representatives of Leavenworth County. Likewise, as part of the SUP
application process, Kaw Valley submitted various supporting documents and obtained
various permits from state and federal agencies relating to the proposed sand-dredging
operation. Following the filing of the SUP application, Kaw Valley worked with the
professional staff of the Leavenworth County Public Works Department regarding the
proposed project.
The staff of the Public Works Department considered two possible routes to be
designated for use by the increased truck traffic that would result from the operation of
the quarry. Both routes that were proposed connect to Highway K-32—which is several
miles north of the project location—and would allow for the extracted sand to be
transported to Kaw Valley's processing site in Edwardsville. The proposed western route
would have required the trucks to travel 3.8 miles on rural county roads, and the proposed
eastern route would have required the trucks to travel 4.2 miles on rural county roads.
Although Kaw Valley's engineers preferred the western route, Leavenworth
County's Public Works Department ultimately recommended the eastern route. After
receiving a Pavement Exploration Report from its engineers, Kaw Valley purchased real
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property adjacent to the site of the proposed quarry to construct a private roadway. As a
result, the proposed distance for trucks hauling sand to be driven on the rural county
roads was reduced from 4.2 miles to 3.3 miles.
On July 10, 2019, the Leavenworth County Planning and Zoning Commission
held a public hearing on Kaw Valley's SUP application. Approximately 25 members of
the public spoke during the public comment portion of the hearing. Of these, only one
member of the public spoke in favor of the SUP application. There are also copies of e-
mails and letters in the record from members of the public. Again, most of the written
documentation was submitted in opposition to the SUP application. At the end of the
public hearing, the Planning and Zoning Commission recommended that the Board of
County Commissioners deny Kaw Valley's SUP application based on "[p]ublic health
concerns including safety of the haul route" and "[i]nsignificant economic gain to the
County."
After the Planning and Zoning Commission issued its recommendation, the
County requested an additional study from Kaw Valley relating to the pavement of the
roads on the eastern route. The purpose of this study was to determine whether the rural
county roads could accommodate the additional wear and tear that would result from the
increased truck traffic if the SUP was approved. Specifically, the County was concerned
about the potential damage to the county roads due to truck traffic to and from the quarry
during the 25-year duration of the proposed SUP.
In response to the County's request, Kaw Valley retained Kaw Valley
Engineering—which evidently has no relationship to Kaw Valley Companies, Inc.—to
conduct an evaluation of the proposed eastern route "to define the existing pavement and
the subsurface conditions at the proposed haul road and to evaluate the potential impact
of the increased traffic loading from the sand plant operations." In performing its study,
the Kaw Valley Engineering firm took core samples at nine points on the eastern route.
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On November 19, 2019, Kaw Valley Engineering issued a Pavement Exploration
Report to Leavenworth County. In the report, the engineering firm rendered the following
opinion:
"Because the road is in good condition structurally and has been properly maintained,
[Kaw Valley Engineering] thinks that at least 50 percent of the structural capacity of the
road remains. Using the field and laboratory data from the exploration the 1993
AASHTO Design Guide analysis procedures estimate the proposed haul road has a
lifetime traffic capacity of between 830,000 and 1,170,000 [Equivalent Single Axle
Loads (ESAL)] before substantial maintenance to rebuild the road would be required.
Since the proposed additional traffic load of 524,000 ESAL is equal to, or slightly less
than 50 percent of the lifetime capacity of the roadway, it is [Kaw Valley Engineering]'s
opinion that the existing proposed haul road has sufficient remaining life to carry the
anticipated sand plant traffic over the next 10 years."
In addition, Kaw Valley Engineering opined:
"Even though the proposed haul road is in good condition, it is unknown how
much heavy traffic has used the proposed haul road or what the remaining life of the
pavement is. However, since the road is in good condition, it is our opinion that the
existing pavement has at least 50 percent of its total traffic capacity left. If at least 50
percent of the lifetime capacity remains, the haul road should be able to support the new
levels of traffic for at least 10 years.
....
"Routine maintenance on the proposed haul road in the future should consist of a
minimum of crack sealing on the asphalt surfaced portion of the road . . . on a periodic
basis. If heavier maintenance actions are required in the future, development of those
procedures would require additional engineering work at that time."
Subsequently, the County asked Mitch Pleak, P.E., of Olsson Engineering—who
has evidently been designated to serve as county engineer pursuant to K.S.A. 68-501—to
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review Kaw Valley Engineering's pavement report. After reviewing the report, Pleak
believed that the existing pavement life of the proposed haul route would not be sufficient
for the proposed 25-year term of the SUP. Instead, Pleak concluded that the county
roadway would require a complete reconstruction. Olsson recommended that the
reconstruction take place prior to commencement of hauling by Kaw Valley.
In an e-mail to the Leavenworth County Administrator Mark Loughry and Lauren
Anderson from the Public Works Department dated December 4, 2019, Pleak
recommended:
"As previously reported, operations are estimated at 25 years or longer. With the
existing pavement life not lasting the length of the proposed operation, the roadway will
need to be replaced. Staff will recommend the following to the Board of County
Commissioners: The Applicant shall bring the specified route/roadway up to County
standards prior to hauling. Design and construction of the roadway shall be funded
entirely by the Applicant. Complete funds for the improvement shall be received by the
County prior to design. Funds may need to be adjusted as the project progresses through
construction. A formal executed agreement between the County and the Applicant
detailing all requirements and responsibilities of such improvements will be required."
In addition, Leavenworth County retained another engineering firm, Wilson &
Co., Inc., to review the engineering studies that had been prepared to that date. In its
report dated August 16, 2019, Wilson & Co. estimated the costs of anticipated road
required maintenance over the life of the proposed SUP. The Public Works Department
also sent a letter to Dan Hays, general manager of the sand division at Kaw Valley, dated
January 2, 2020, in which it included—among other things—13 questions seeking
clarification of several items contained in the Pavement Exploration Report.
On January 8, 2020, counsel for Kaw Valley sent an e-mail to various
representatives of the County in which he stated—among other things—that "our client
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does not believe it is necessary to build a brand-new road for the route proposed by the
County ('Route') at any time during the life of the SUP." In response to counsel's e-mail,
Pleak asserted that "as stated in the report regarding the paved portion of the route, the
existing proposed haul road has sufficient remaining life to carry the proposed [quarry]
traffic over the next 10 years before the road needs to be rebuilt." On January 10, 2020,
an engineer retained by Kaw Valley sent an e-mail giving preliminary answers to the 13
questions that had previously been sent by the County regarding the Pavement
Exploration Report.
On June 22, 2020, engineers for Kaw Valley submitted a Traffic Impact Study to
Leavenworth County. The study recommended that Kaw Valley make improvements to
four intersections along the proposed haul route and provide for additional signage due to
the increased truck traffic. However, the Traffic Impact Study concluded:
"[T]he proposed Lenape Sand Quarry by Kaw Valley could be safely and reasonably
operated with its trucks on the County and KDOT [road] network. Kaw Valley would
compensate Leavenworth County with a road usage fee that would be paid on an agreed-
upon basis gauged on the volume of sand extracted from the Lenape site. Kaw Valley
would essentially pay a per-ton royalty to the County based on the amount of sand
shipped from the site each month or yearly quarter. Kaw Valley would further be
responsible for the costs of roadway improvements to the quarry truck route including the
intersection improvements to the 158th & Golden Road curve, 158th & Loring Road and
Loring Road and Loring Drive. Since Kaw Valley would be paying for the
improvements, the company would expect that the work would be administered and bid
by their own forces (subject to the oversight and approval of Leavenworth County’s
Public Works Engineering and Inspection Staff). The planning and execution of the work
would be done in accordance with the applicable County and KDOT standards. Kaw
Valley would be allowed to supply their own roadway construction materials and select
their preferred Contractors subject to the approval of the County."
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On June 22, 2020, engineers retained by Kaw Valley submitted an appendix to the
Pavement Exploration Report. The appendix consisted of more formal responses to the
13 questions previously asked by the County seeking clarification of the report. The
following day, the County Engineer submitted a letter to the Board of County
Commissioners in which he reiterated that "[d]ue to the existing pavement life not
carrying the duration of the proposed SUP's operational goal of 25 years, the roadway
would require a full reconstruction in lieu of the document's recommended substantial
maintenance of a mill and overlay." Pleak explained that "[a]ccording to the Pavement
Exploration Report, the proposed haul road only has sufficient remaining life to carry the
anticipated sand plant traffic over the next 10 years." As such, Pleak recommended that
the road "be reconstructed due to the existing pavement not supporting the additional 15
years of the proposed SUP's operational goal of 25 years."
In addition, Pleak made the following specific recommendations to the Board of
County Commissioners should they decide to approve Kaw Valley's SUP application:
• "The Applicant [Kaw Valley] shall be responsible for bringing the
route/roadway up to county standards to include recommended
improvements detailed in the submitted reports prior to hauling.
• "Design and construction of the roadway shall be funded entirely by the
Applicant. Funds for said design/improvements shall be received by the
County prior to design. Funds may need to be adjusted as the project
progresses through construction.
• "A formal executed agreement between the County and the Applicant
detailing all requirements and responsibilities of the parties will be
required.
• "The reconstruction of the roadway will be in lieu of a traffic impact fee.
• "After the roadway construction improvement is completed and accepted
by the County, the applicant will not be responsible for any additional
fees associated with the haul route roadway."
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On July 8, 2020, the Board of County Commissioners held a public hearing on
Kaw Valley's SUP application. At the hearing, a proposed Resolution was presented by
the Department of Planning and Zoning. The Board also heard from counsel for Kaw
Valley who presented information in support of the SUP application. Also, an engineer
retained by Kaw Valley made a presentation in support of the application and answered
questions from members of the Board of County Commissioners.
Following the official presentations, the Board heard public comment regarding
the proposed SUP application. During this portion of the hearing, 14 members of the
public spoke in opposition of the SUP application and none spoke in favor.
Notwithstanding the Planning Commission's recommendation that Kaw Valley's SUP
application be denied, the Department of Planning and Zoning recommended to the
Board of County Commissioners that the application be granted upon certain conditions.
One of the conditions recommended by the Department of Planning and Zoning
was that "the entire haul route be completely replaced to County standards prior to the
applicants [Kaw Valley] engaging in any activities." The rationale for this condition was
that the failure to require reconstruction of the existing roadway "poses a significant risk
to the public health, safety and welfare." The Department of Planning and Zoning also
recommended that Kaw Valley be responsible for payment of the reconstruction prior to
the commencement of hauling in lieu of being required to pay an annual traffic impact
fee and royalties. In support of this position, the Department of Planning and Zoning
pointed to the fact that the Pavement Exploration Report prepared by engineers retained
by Kaw Valley found that "substantial maintenance" would be needed in 10 years if the
SUP application was granted.
In response, Kaw Valley proposed that it instead pay an annual traffic impact fee
as well as a royalty based on the amount of sand removed from the site to compensate
Leavenworth County for the wear and tear caused by the additional truck traffic. In Kaw
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Valley's opinion, the proposed traffic impact fees and royalties would be sufficient to
cover the potential maintenance costs. It was the position of Kaw Valley's engineer that
based on the core samples obtained from proposed haul route, the pavement was in
"remarkably good condition" and that "[c]hip and seal or maybe an overlay would
probably be the only thing required at the 10 years . . . ." However, the engineer admitted
that the scope of his analysis was for only 10 years.
The Board of County Commissioners also received hundreds of written comments
submitted by members of the public regarding the proposed sand-dredging operation. The
vast majority of those commenting opposed the SUP based on health and safety concerns.
The location of the project concerned many members of the public due to the increased
truck traffic on the rural county road that might lead to traffic accidents. Specifically,
members of the public expressed concerns for the safety of children traveling to and from
school as well as area residents traveling to and from work. Other members of the public
expressed concerns regarding harmful effects to wildlife as well as to their habitats and
detrimental effects to nearby farm animals. Some members of the public were also
concerned with potential pollution, water contamination, increased noise levels, and a
decrease in the property values in the area.
At the conclusion of the public hearing, the Board of County Commissioners
continued the matter for a final determination to be made on July 15, 2020. The day
before the Board took final action, the County Engineer provided the Board with a letter
in which he summarized his position. In his letter, Pleak concluded:
• "Based on our understanding of the pavement exploration report, the 1993
AASHTO Design Guide was used to determine the remaining life cycle of the
pavement. Furthermore, Kaw Valley Engineering assumed, based on their
analysis of the roadway, that only 50 percent of the structural capacity of the
roadway remains. This analysis was based on a lifetime traffic capacity in
ESAL's of between 830,000 and 1,170,000 and assuming the additional traffic
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load only from sand plant trucks (not including existing traffic) would be
524,000 ESAL's. If the more conservative number of 830,000 ESAL's is used, as
indicated by Kaw Valley's response letter, the structural capacity reduction is
further increased to 63 percent, which results in a remaining life span of around 7
to 8 years as opposed to the 10 years indicated in the report.
• "Regardless of the discrepancy of life span remaining, it is still significantly less
than the Sand Plant's operational time of 25 years. Based on the report by Kaw
Valley, maintenance will be required during the 10 years and at the end of the 10
years, 'Substantial Maintenance' will be required. According to Kaw Valley
'Substantial Maintenance' would involve a mill and overlay of the roadway. In
our opinion, assuming only a mill and overlay will be required after 10 years of
continued truck traffic on an approximately 80-year-old roadway would not be
sufficient.
• "According to the Federal Highway Administration (FHWA), the Pavement Life
Cycle is divided into 6 phases.
o Materials Production
o Pavement Design
o Construction
o Use
o Maintenance and Preservation
o End of Life
• "In our opinion, the roadway is currently in Use with routine Maintenance and
Preservation at this time. Based on our understanding of the report prepared by
Kaw Valley, the Structural Capacity of the roadway will reach its design life in 7
to 10 years from the start of sand plant operation. Adding a mill and overlay at
that time could help address specific pavement deficiencies and slow the rate of
deterioration of the base courses but is still classified as maintenance and
preservation by FHWA and in our opinion, will likely only increase the life of
the pavement a few more years. Continued use by sand plant trucks will
noticeably accelerate the deterioration of the new wearing course and/or
additional wearing courses, if constructed and significantly decrease the overall
structural capacity of the roadway, especially the pavement base, leading to more
deep seated failures such as potholing, rutting, random cracking, reflective
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cracking and transverse cracking from brittle pavement layers below the new
surface courses.
• "It is our opinion that, after the design life of 7 to 10 years, the pavement will
have reached is End of Life per the AASHTO design guide and per the
definitions provided by FHWA. We anticipate that full depth removal and
replacement with possible subgrade stabilization will be required at this time."
At its meeting on July 15, 2020, the Board of County Commissioners took final
action on a proposed Resolution to approve Kaw Valley's SUP application subject to
several of the conditions that are discussed above. In doing so, the Board considered the
factors—both in support of and in opposition to the application—set forth in Golden v.
City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). The original motion was for
the adoption of the proposed Resolution 2020-23 with the incorporation "by reference of
the findings and recommendations contained in the staff report dated July 8, 2020, and
the [County Engineer's] report dated June 23, 2020." But the County Engineer's letter
dated July 14, 2020, was not incorporated into the motion.
The conditions expressly identified in the proposed Resolution included—among
other things—that Kaw Valley "bring the specified route/roadway up to County standards
prior to hauling" and that "[d]esign and construction of the roadway shall be funded by
the applicant . . . prior to design." In addition, the conditions in the proposed Resolution
included a provision that "[a] formal executed agreement between the County and the
applicant dealing with all requirements and responsibilities of such improvement will be
required." Likewise, the proposed Resolution provided that "the conditions listed shall be
complied with and supporting documentation for such shall be provided to the Planning
and Zoning Department within 30 business days."
Before the Board of County Commissioners voted on the proposed Resolution, the
Board amended the proposed Resolution by motion to include a "clawback" provision to
provide that Kaw Valley would receive "reimbursement in proportion to [its] share of the
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future use of the road" should other businesses move into the area adjacent to the haul
route. Moreover, the Board passed a motion to amend the proposed Resolution to exclude
the "road design and construction" from the condition requiring that "all conditions listed
shall be complied with and supporting documentation of such compliance provided to the
Planning and Zoning Department within 30 business days." Ultimately, the Board passed
Resolution 2020-23 as amended with four commissioners voting in favor and one
commissioner voting against the motion.
On July 22, 2020, Resolution 2020-23 was signed by the Board of County
Commissioners. Unfortunately, the language in the final written Resolution does not
mirror the language of the Resolution passed in several respects. Several conditions have
been reworded and at least two provisions did not make their way into the Resolution.
First, although "the staff report dated July 8, 2020" was to be incorporated by reference, it
is not mentioned in the Resolution. Second, although the conditions set forth in the
motion expressly excepted "the required road design and construction" from the 30-day
requirement for the submission of documents by Kaw Valley to the Planning and Zoning
Department, this language is also not included in the Resolution.
After the Resolution was signed by the Board of County Commissioners, it
appears that the parties held discussions regarding the formal agreement to be executed
by the parties relating to the requirements and responsibilities of each as it relates to the
required improvement of the roadway. While these discussions were ongoing, Kaw
Valley filed an appeal in the district court pursuant to K.S.A. 19-223. On September 21,
2021, after conducting a bench trial and hearing the arguments of counsel, the district
court denied Kaw Valley's appeal and, by doing so, effectively affirmed the decision of
the Board of County Commissioners.
Thereafter, Kaw Valley filed a timely notice of appeal.
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ANALYSIS
Issues Presented
On appeal, Kaw Valley contends that several of the conditions imposed by the
Board of County Commissioners in adopting the Resolution granting its SUP application
are unreasonable. Moreover, Kaw Valley contends that one of the conditions constitutes a
taking in violation of the Fifth and Fourteenth Amendments to the United States
Constitution. In response, the Board of County Commissioners contend that the
conditions imposed on the granting of Kaw Valley's SUP application were reasonable
based on the evidence presented at the public hearing. In addition, the Board contends
that the imposition of conditions on the granting of an SUP application do not constitute
an unconstitutional taking of property.
Special Use Permits and Conditions
K.S.A. 12-741 et seq. grants cities and counties the authority to enact planning and
zoning regulations for the protection of the public health, safety, and welfare.
Specifically, K.S.A. 12-755(a)(5) grants a city or county's governing body to issue
"special use or conditional use permits" to allow a particular land use that is not allowed
under existing zoning regulations. The procedure to be used by a city or county in
considering a SUP application is set forth in K.S.A. 2021 Supp. 12-757. See Manley v.
City of Shawnee, 287 Kan. 63, 67, 194 P.3d 1 (2008). We pause to note that there is no
allegation in the present case that the Board of County Commissioners failed to follow
the statutory procedure.
As the Kansas Supreme Court has recognized, "[c]onditions are commonly
imposed on special use permits." Johnson County Water Dist. No. 1 v. City Council of
Kansas City, 255 Kan. 183, 190, 871 P.2d 1256 (1994) (citing 3 Anderson, American
Law of Zoning, § 21.30 [3d ed. 1986]). So long as these conditions are reasonable, a
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reviewing court should uphold the conditions. McPherson Landfill, Inc. v. Board of
Shawnee County Comm'rs, 274 Kan. 303, 305, 49 P.3d 522 (2002). This is because cities
and counties have the authority to promote public health, safety, and welfare. Hence,
conditions may be imposed on a SUP that are "rationally related to those objectives and
[are] not unreasonable or oppressive." Johnson County Water Dist. No. 1, 255 Kan. at
191.
Under the authority granted to it by the Kansas Legislature, Leavenworth County
has adopted the Zoning and Subdivision Regulations for Leavenworth County, Kansas
(August 1, 2006, Updated January 13, 2022). These zoning regulations apply to the
unincorporated portions of the County. Article 1, Section 1 of the zoning regulations
provides:
"The zoning regulations . . . herein established . . . to promote, in accordance
with present and future needs, the safety, morals, order, convenience, prosperity, and
general welfare of the citizens of Leavenworth County, Kansas, and to provide for
efficiency and economy in the process of development, for the appropriate and best use
of land, for the convenience of traffic and circulation of people and goods . . . ."
Furthermore, Article 22 of the County's zoning regulations applies to "Special Use
Permits and Temporary Use Permits." Section 1 of Article 22 recognizes that "[c]ertain
uses . . . are of a type or nature which may be desirable . . . to be located in the County,
but, due to their nature, may be incompatible with the surrounding area without a
thorough review and possibly the placing of conditions on the use to protect health, safety
and welfare." Additionally, Article 22, Section 2 sets out the procedure to be followed in
applying for an SUP and Article 22, Section 3 sets out the procedure to be followed by
the County in considering an application.
Significant to the issues presented in this case, Article 22, Section 5 addresses
"Conditions on Approval" of an SUP application:
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"Every Special Use Permit issued by Leavenworth County to a non-
governmental person, business or corporation shall be valid for a specified period of time.
When necessary, the Board of County Commissioners may attach conditions to the
approval of a Special Use Permit. Failure to abide by the conditions of the approval by
the applicant shall be cause for an action to rescind approval of the Special Use Permit. "
The "Special Use Permit Application" submitted by Kaw Valley to the Board of
County Commissioners on January 16, 2019, recognized that "[c]onditions will be
attached to most Special Use Permits." The application also recognized that an SUP "may
impose any conditions they consider necessary to ensure public safety, health, and
welfare. "
Standard of Review
In Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28,
605 P.2d 533 (1980), the Kansas Supreme Court articulated the limited standard of
review to be applied by appellate courts in zoning cases. Subsequently, our Supreme
Court applied this standard of review to decisions granting or denying SUP applications.
Daniels v. Board of Kansas City Comm'rs, 236 Kan. 578, 584, 693 P.2d 1170 (1985). A
few years later, the court also applied this standard of review to appeals challenging the
conditions imposed by a governing body in granting a SUP application. Johnson County
Water Dist. No. 1, 255 Kan. at 184.
The Combined Investment standard provides:
"(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.
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"(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." 227 Kan. at 28.
In addition, our Supreme Court has found that the factors set forth in Golden, 224
Kan. at 596, should be considered by governing bodies in determining whether to grant or
deny special use permits. Johnson County Water Dist. No. 1, 255 Kan. at 184-85. Formal
findings and conclusions based on the Golden factors are not required. See Manly, 287
Kan. at 76. Moreover, traditional tests of reasonableness have not been replaced by the
Golden factors. Instead, these tests have been "enhanced by the eight factors which
provide a reviewing court with a basis for testing the action of a governing body in a
meaningful way." K-S Center Co. v. City of Kansas City, 238 Kan. 482, 494, 712 P.2d
1186 (1986).
Because cities and counties are entitled to determine how land within their
boundaries is zoned, "[n]o court should substitute its judgment for the judgment of the
elected governing body merely on the basis of a differing opinion as to what is a better
policy in a specific zoning situation." Landau v. City Council of Overland Park, 244 Kan.
257, 274, 767 P.2d 1290 (1989) ("Elected officials are closer to the electorate than the
courts and, consequently, are more reflective of the community's perception of its
image."). Even so, this does not mean that a reviewing court is to simply rubber stamp a
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zoning decision made by a city or county. Instead, there must be a meaningful review on
appeal to determine the lawfulness and the reasonableness of the governing board's
action. See 143rd Street Investors, L.L.C. v. Board of Johnson County Comm'rs, 292
Kan. 690, 709-15, 259 P.3d 644 (2011). In addition, we note the challenger to the zoning
decision—in this case Kaw Valley—has the burden to show by a preponderance of the
evidence that the action taken by the governing body was not reasonable. 292 Kan. at
720.
We also find it important to recognize that this appeal involves interpretation of
Resolution 2020-23, which was adopted by the Board of County Commissioners on July
22, 2020. The interpretation of a county resolution involves a question of law over which
we have unlimited review. See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349
P.3d 469 (2015). Like a statute, the words in a resolution "should not be so read as to add
that which is not readily found therein or to read out what as a matter of ordinary English
language is in it." GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311,
316, 22 P.3d 600 (2001). Further, it is not the function of the court to rewrite a statute,
ordinance, or resolution. See Rural Water Dist. No. 2 v. City of Louisburg, 288 Kan. 811,
Syl. ¶ 3, 207 P.3d 1055 (2009); State v. Prosper, 260 Kan. 743, 747, 926 P.2d 231(1996).
Reasonableness of Conditions Imposed
Kaw Valley primarily focuses on 2 of the 22 conditions contained in Resolution
2020-23. The first condition—found in paragraph 2(a) of the Resolution—relates to the
requirement that Kaw Valley bring the rural county road on the proposed route for the
hauling of sand from the quarry "up to county standards" and to pay for the
improvements. The second condition—found in paragraph 22 of the Resolution—
requires that Kaw Valley comply with all the conditions within 30 business days from the
date on which the SUP application was approved.
18
In its entirety, Condition 2(a) of Resolution 2020-23 states:
"Kaw Valley shall bring the specified route/roadway up to county standards prior
to hauling ('improvement.'). Design and construction of the improvement shall be funded
by Kaw Valley. Funds for the improvement shall be received or otherwise adequately
secured by the county prior to the initiation of design and construction of the
improvement. Funds may need to be adjusted as the project progresses through
completion."
The Board of County Commissioners argues that it is unnecessary for Resolution
2020-23 to contain additional information regarding the conditions required because
"there was no final decision, and [Kaw Valley] knew negotiations would continue." In
support of this argument, the Board refers us to paragraph 3 of the Resolution which
provides that "[a] formal executed agreement between the county and . . . Kaw Valley
detailing all requirements and responsibilities of the parties regarding such improvement
shall be required." Thus, the Board argues that Resolution 2020-23 was akin to a
preliminary approval of an SUP.
The Board also cites K-S Center Co., 238 Kan. 482, for the proposition "that
preliminary approval of a special use permit is a well-recognized concept in Kansas." In
K-S Center Co., a governing body expressly voted "to grant preliminary approval of the
special use permit, subject to the drafting of suggested Findings of Fact and Conclusions
of Law by the City Planning and Legal Departments for later submission to the Council."
238 Kan. at 484. But in this case, a review of the minutes of the meeting held on July 15,
2020, reveals that there was no motion to grant preliminary approval to Kaw Valley's
SUP application. Rather, the minutes state that the Board passed a motion "to approve . . .
the application for a special use permit submitted by Kaw Valley Companies, LLC" and
to adopt Resolution 2020-23 as amended.
19
If the Board desired to simply grant preliminary approval to the application
submitted by Kaw Valley, it could have easily done so by approving a motion like the
one passed by the governing body in K-S Center Co., which made it clear that it was only
granting preliminary approval. However, no such motion was presented, and the Board
instead approved Resolution 2020-23 subject to conditions. Accordingly, we conclude
that the Board took final—and not preliminary—action on Kaw Valley's SUP
application.
As discussed above, it is common for a governing body to approve an SUP
application subject to reasonable conditions. Moreover, we do not find it to be
categorically improper for a governing body to require an applicant to pay for certain
public improvements as a condition for granting an SUP application. The particular
condition must be reasonable under the circumstances. Nor do we find it to be
categorially improper to leave some of the procedural or technical details regarding a
particular condition for further good-faith negotiations and final agreement between the
governing body and the applicant.
Notwithstanding, we find that a condition required by the governing body in
granting an SUP application must be sufficiently definite as to its essential terms to allow
for a judicial determination of its reasonableness on appeal. See In re JSCL, LLC CU
Permit, 253 A.3d 429, 442 (Vt. 2021) ("To be valid, a permit condition must contain
sufficiently definite standards for the applicant to follow."); Bernstein v. Board of
Appeals, Village of Matinecock, 302 N.Y.S.2d 141, 146, 60 Misc. 2d 470 (1969)
(conditions imposed on special use permit "must be sufficiently clear and definite" that
parties are not left in doubt "concerning the extent of the use permitted"); see also Weld v.
Board of Appeals of Gloucester, 345 Mass. 376, 378-79, 187 N.E.2d 854 (1963). In this
case, Condition 2(a) falls short of the standard of language that is sufficiently clear and
definite to provide Kaw Valley with a path forward.
20
In the present case, we do not find that the language of Resolution 2020-23
sufficiently identifies the essential terms necessary to determine the reasonableness of the
conditions imposed. Likewise, we do not find that the language of the Resolution is
sufficient to allow Kaw Valley to know whether it is financially feasible to continue with
the proposed sand-dredging operation. In particular, we find paragraph 2(a) is incomplete
and lacks significant information regarding what the Board of County Commissioners is
requiring Kaw Valley to do. We also find it significant that although the motion passed
by the Board excepted the "road design and construction" from the requirement that "all
conditions listed shall be complied with and documentation of such compliance provided
to the Planning and Zoning Department within 30 business days," this exception never
made it into paragraph 22 of the written version of the Resolution.
Specifically, we find paragraph 2(a) to be deficient in the following respects:
• Although it appears from other documents in the record that the Board's
intent is to require a complete reconstruction of the rural county roadway to
be used as the haul route in advance, the Resolution simply states that "Kaw
Valley shall bring the specified route/roadway up to county standards prior
to hauling . . . ." (Emphasis added.)
• Neither the "route/roadway" to be improved nor the "county standards" to
be followed are identified in the Resolution. Likewise, counsel for the
Board was unable to identify such standards in either his brief or during
oral argument.
• Even though the County Engineer's letter dated July 14, 2020, identifies
several other improvements—including drainage structures, widening of at
least one intersection, and additional traffic signage—the Resolution does
not mention these other improvements and this letter is not incorporated by
reference as are various other documents.
21
• While the Resolution provides that Kaw Valley shall fund the "[d]esign and
construction of the improvement," it does not provide who is responsible
for selecting the design consultant or the contractor.
• The Resolution provides that "[f]unds for the improvement shall be
received or otherwise adequately secured by the county prior to the
initiation of design and construction of the improvement." (Emphasis
added.) Moreover, it recognizes that "[f]unds may need to be adjusted as to
the project progresses through completion." However, the Resolution does
not include a preliminary estimate of the cost of design and construction
nor is sufficient information provided upon which a reasonable estimate
could be obtained to determine the amount of the payment or security
required prior to the commencement of design.
Again, we recognize that the Board of County Commissioners—and not this
court—has the authority to prescribe, change, or refuse zoning to promote the health,
safety, and welfare of its citizens. We also recognize that it is appropriate for the Board to
impose reasonable conditions when granting an SUP application. Furthermore, we
recognize that there is a presumption the Board acted reasonably. Nevertheless, we find
that the conditions being required by a governing body when taking final action on an
SUP application must be sufficiently definite to allow a court to determine its lawfulness
and reasonableness in an appeal brought under K.S.A. 19-223. Likewise, if SUP is so
indefinite that the applicant cannot reasonably determine what is required under its terms,
then the applicant has been "aggrieved" by the Board of County Commissioners action
permitting the statutory appeal.
In summary, we find that Resolution 2020-23 does not mirror the actual motion
passed by the Board in approving Kaw Valley's SUP application, it fails to sufficiently
define the conditions the Board of County Commissioners seeks to impose on Kaw
Valley, and it does not include the essential terms necessary for this court to determine
22
the reasonableness of such conditions. Similarly, the Resolution does not provide
sufficient information to the applicant to make an informed decision whether to comply
with the conditions or withdraw from the proposed project. Consequently, we conclude
that Resolution 2020-23 is too vague and indefinite to be enforced as written and must be
vacated. We may vacate the resolution and, thus, the SUP without remanding to the
district court for the ministerial task of entering a new judgment to that effect. Our
decision voids the SUP—leaving the Board of County Commissioners to go forward
from the posture of these proceedings in July 2020 immediately before its consideration
of and vote on the resolution.
Constitutionality of Conditions
Kaw Valley also contends that that the conditions set forth in paragraph 2(a) of
Resolution 2020-23 are unconstitutional under the Nollan-Dolan-Koontz line of decisions
issued by the United States Supreme Court. See Koontz v. St. Johns River Water
Management District, 570 U.S. 595, 605, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013);
Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994); Nollan
v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677(1989). These cases provide that under certain circumstances, it is unconstitutional for a
governing body to place excessive conditions on those seeking land-use permits.
However, it is unnecessary for us to address this issue in light of our decision to
vacate Resolution 2020-23. This is because at this point in time, there has neither been a
"taking" of property nor has there been a showing that the Board of County
Commissioners has impermissibly interfered with Kaw Valley's constitutional rights.
23
CONCLUSION
In conclusion, we find that the proper remedy under the circumstances presented is
to reverse the district court's decision, to vacate Resolution 2020-23, and to remand this
matter to the Board of County Commissioners for further proceedings consistent with this
opinion. As discussed above, it is not the role of this court to rewrite the Resolution, to
determine whether the SUP application should be granted, or to decide what conditions—
if any—should be imposed on Kaw Valley to protect the health, safety, and welfare of the
citizens of Leavenworth County. Those responsibilities fall squarely within the power of
the Board of County Commissioners as granted to it by the Kansas Legislature.
Reversed in part, vacated in part, and remanded with directions.
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