IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,075
MCPHERSON LANDFILL, INC.,
Plaintiff/Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY,
Defendant/Appellee.
SYLLABUS BY THE COURT
1. The standard of review for district courts as well as for appellate courts in zoning appeal cases is set forth and applied.
2. Where the focus of the zoning authority shifts from the entire city or county to one specific tract of land for which a zoning change is urged, the function of the zoning authority becomes more quasi-judicial in nature than legislative. In such quasi-judicial proceedings, it is incumbent upon the authority to comply with the requirements of due process. Thus, the proceedings must be fair, open, and impartial. A denial of due process renders the resulting decision void.
3. The factors in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), have become standard considerations throughout Kansas by those charged with the responsibility of voting on zoning changes. However, the Golden factors are suggestions, and other factors may be equally or more important factors depending on the circumstances of the particular case.
4. In a quasi-judicial proceeding case involving a claim of prejudgment by the decisionmaker, prejudgment statements of the decisionmaker are not fatal to the validity of the zoning determination as long as the statements do not preclude the finding that the decisionmaker maintained an open mind and continued to listen to all the evidence presented before making the final decision.
5. When ex parte contacts are present in the context of quasi-judicial zoning decisions such as variances and special use permits, courts will be more receptive to challenges to decisions on grounds of zoning bias.
6. Where a zoning authority has merely denied a requested expansion of the existing right to use the property, there is not a taking under the Fifth Amendment to the United States Constitution following the failure to rezone.
7. One seeking relief under 42 U.S.C. § 1983 must satisfy the following two requirements: (1) Some person must deprive the plaintiff of federal rights; and (2) that person must have acted under color of state or territorial law.
Appeal from Shawnee district court, ERIC S. ROSEN, judge. Opinion filed July 12, 2002. Affirmed.
Mark Buck, of Fairchild & Buck, P.A., of Topeka, argued the cause, and Nathan Burghart, of the same firm, was with him on the brief for appellant.
Jonathan C. Brzon, assistant county counselor, argued the cause, and Richard V. Eckert, county counselor, and Shawn S. Leisinger, assistant county counselor, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The Shawnee County Board of Commissioners (Board) denied McPherson Landfill, Inc.'s (MLI) application for a conditional use permit (CUP) to establish and operate a construction and demolition (C&D) landfill. MLI petitioned the district court for judicial review. MLI appeals from the district court's summary judgment in favor of the Board. Our jurisdiction is based upon K.S.A. 20-3018(c) by transfer of this case from the Kansas Court of Appeals.
MLI addresses two major concerns in this appeal. The first concern relates to the fairness of the process before the Board and MLI's contention that two of the three members of the Board prejudged its CUP application; the second concern is based upon MLI's contention that the Board's decision to deny the permit was arbitrary and unreasonable. Although MLI raises other concerns which will be addressed in this opinion, the two above contentions are critical to its success before this court.
Standard of Review
Before we begin with a discussion of the facts and arguments of the parties, it is helpful to understand how this court reviews and determines the above issues, as well as other issues in this case. In zoning appeals, the standard of review for district courts as well as for this court is set forth in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980):
"(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."
See Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 184, 871 P.2d 1256 (1994) (applying Combined Investment concepts to special use permit decisions); M.S.W., Inc. v. Marion County Bd. of Zoning Appeals, 29 Kan. App. 2d 139, 143-46, 24 P.3d 175 (2001) (applying Combined Investment concepts to conditional use decisions).
With regard to our review of MLI's first contention involving procedural fairness, this court has decided that where the focus of the zoning authority shifts from the entire city or county to one specific tract of land for which a zoning change is urged, the function of the zoning authority becomes more quasi-judicial in nature than legislative. In such quasi-judicial proceedings, it is incumbent upon the authority to comply with the requirements of due process in its proceedings. Thus, the proceedings must be fair, open, and impartial. A denial of due process renders the resulting decision void. Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330-32; 597 P.2d 654 (1979); see Johnson County Water Dist. No. 1, 255 Kan. at 190-91; Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978); Adams v. Marshall, 212 Kan. 595, 599-602, 512 P.2d 365 (1973); Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P.2d 572 (1967).
Finally, with regard to MLI's second contention that the ultimate decision was unreasonable, this court in Golden observed:
"A mere yes or no vote upon a motion to grant or deny [a request for zoning change] leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action. A board, council or commission, in denying or granting a specific zoning change, should enter a written order, summarizing the evidence before it and stating the factors which it considered in arriving at its determination." 224 Kan. at 597.
As a suggestion to zoning authorities, the Golden court enumerated eight factors which address the question of whether a final decision is reasonable. 224 Kan. at 598. The Golden factors have become standard considerations throughout Kansas by those charged with the responsibility of voting on zoning changes. However, the following Golden factors are suggestions and other factors may be equally or more important factors depending of 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).
The Board based its denial of the requested CUP largely upon consideration of the Golden factors. The district court applied the eight principles of review contained in Combined Investment, as well as the eight Golden factors, in reviewing the Board's decision and in granting summary judgment to the Board. Consistent with the above standard of review, we are called upon to make the same review of the Board's action as did the district court. Applying the above principles, we must decide whether the Board's CUP denial was consistent with due process and reasonable. We are not free to make findings of fact independent of those found by the Board but are limited to determining whether the given facts could reasonably have been found by the Board to justify its decision. See Golden, 224 Kan. at 595-96.
Facts
MLI is a wholly owned subsidiary of McPherson Wrecking, Inc (MWI). Virgil McPherson is the president of both MLI and MWI. Scott McPherson is the Vice President of MLI. Unless otherwise noted, Virgil McPherson and Scott McPherson will be collectively referred to as the McPhersons. The McPhersons became interested in property owned and operated as a quarry by Martin Marietta. After an attempted sale of its property to Shawnee County, Martin Marietta, Inc., primarily through Shawnee County contacts, urged the McPhersons to purchase the property for the operation of a C&D landfill.
A C&D landfill is designed to handle solid waste resulting from the construction, remodeling, repair, and demolition of structures, roads, sidewalks, and utilities. A C&D landfill does not accommodate such waste materials as friable asbestos, garbage, furniture, appliances, electrical equipment containing hazardous materials, tires, drums, and containers even though such wastes resulted from construction and demolition activities. See K.S.A. 2001 Supp. 65-3402(u).
Background information leading to the McPhersons' purchase
Joe Voth, an employee of Shawnee County who worked in solid waste management, explained the McPhersons' interest and eventual purchase from Martin Marietta. In deposition testimony, Voth said that between 1994 and 1999 there were two potential sites in Shawnee County for a C&D landfill. The first site was at 45th Street and Stubbs Road, which was later sold by the county to Martin Marietta and used as a limestone quarry. The second site and the property at issue in this case was at 29th Street and Ratner Road. According to Voth, this property was similar to a "lunar landscape," and nothing could grow on 75% to 80% of the property.
Voth said old quarries are suitable for landfills because the quarrying operation removes material until "impervious shale or hard limestone" is reached, which creates a "good preparation for the construction of a landfill." Voth, who believed the existing landfills in Shawnee County were becoming full, suggested to the county that the 29th Street and Ratner Road property was a candidate for a landfill. As refuse director for Shawnee County, Voth knew that once other locations were full, C&D waste would have to be taken out of county at a huge expense and deposited elsewhere.
Voth discussed with Bill Gahan, a Martin Marietta representative, a proposal for Shawnee County to purchase the property. Martin Marietta had a conditional use permit to operate a quarry at the 29th Street and Ratner Road property. Its quarry activities at this location dated back to the 1950's. While the active quarrying process discontinued in 1993, Martin Marietta continued to ship large amounts of stone through 1995, and then smaller amounts until 1998.
Voth said that the traffic generated by a C&D landfill would have been less than that generated by Martin Marietta's quarry. According to Voth, no concern was expressed at that time by county officials that there would be any threat to school children or risk of life if the 29th Street and Ratner Road property was used as a C&D landfill.
Martin Marietta offered to sell the property to the county for $850 per acre, but the county rejected that proposal. When Voth realized the county would not purchase the property, he proposed that the McPhersons purchase the property. Voth talked with the McPhersons and introduced them to Martin Marietta representatives. Voth advised the McPhersons that there were no guarantees that the Board would grant a permit to operate a C&D landfill.
Before the purchase of the property from Martin Marietta, Voth scheduled a meeting for the McPhersons to meet with Barry Beagle and John Dugan, who were both employees of the Topeka-Shawnee County Metropolitan Planning Agency (Planning Agency), a joint agency of the City of Topeka and Shawnee County. Neither Beagle nor Dugan expressed any concern that the operation of a C&D landfill would violate the current or any future zoning plan or disrupt growth patterns. Voth explained why, in his opinion, there was no cause for concern: "[B]ecause the use, current use and the past use of that tract of ground was a quarry and quarry activity is under the same, if I recall correctly, conditional use permit as is a landfill. So, the use would not have been different."
MWI, the parent corporation of the plaintiff, MLI, purchased 678 acres from Martin Marietta at a cost of $850 an acre, less than the original asking price of about three-quarters of a million dollars. Scott McPherson said he believed the C&D landfill would generate $7.2 million over the lifetime of the landfill. Virgil McPherson said in his deposition that he chose the location because of what Martin Marietta said about the land having been used as a quarry. Virgil admitted that there had been no blasting or grinding on the property since 1993.
MWI tried but failed to make the deal with Martin Marietta contingent on its successful zoning application to establish and operate a C&D landfill. Approximately 45 acres were carved out of the 678 acres purchased from Martin Marietta and sold to MLI. MLI paid less than $10,000 for the 45 acres.
It was the McPhersons' opinion at that time that the Planning Agency staff was favorable to the MLI application. However, Scott McPherson did say that no one on the Planning Agency staff promised a favorable recommendation to MLI's application. No one characterized the application as a "done deal." The McPhersons believed the members of the planning staff were very encouraging with respect to the application.
Application
MLI applied to the Planning Agency on March 6, 2000, for a permit to operate a C&D landfill. Following a conference with the Planning Agency staff, the McPhersons added some documentation to their application, including evidence of necessary permits from various county and state offices. The McPhersons hired an engineering firm to make some "additional erosion drawings, reclamations, depth of indentations and a lot of other studies that had not been initially submitted." The McPhersons estimated the additional work cost between $10,000 and $20,000. The McPhersons submitted a revised application on June 9, 2000, including numerous exhibits to support its application. The McPhersons believed there was enough support for the application prior to the July 19, 2000 committee meeting.
Evidence presented to the Zoning and Platting Committee and the Board
Tim Paris, a planner for the Planning Agency, told the McPhersons that it would be difficult to obtain a CUP for a C&D landfill. His written report on the property was submitted to the Topeka-Shawnee County Metropolitan Planning Commission's Zoning and Platting Committee (Committee) and the Board. Paris noted that the subject property in its current condition was not suitable for redevelopment. In order to develop the land, the property would have to be subjected to a reclamation process to remove deposits of silts and residues, and a further regrading of the topsoil process to "establish suitable ground for further construction activity."
The report also noted the following regarding the expected traffic:
"The applicant is expecting to generate an average of 25 additional vehicle trips per day to the site for deposit of construction and demolition debris. This average is subject to seasonal fluctuation, ranging from 16 trips per day in January to a high of 32 trips per day in October. The Shawnee County Public Works Department has granted heavy truck certification and approval for the proposed truck route to and from the proposed landfill site."
Paris also noted a concern for increased traffic based on increased residential growth and travel to and from such schools as Shawnee Heights High School, Shawnee Heights Middle School, and Tecumseh Elementary School. His report noted the Topeka- Shawnee County Growth Management Plan called for more urbanization in the area.
In conclusion, the Paris report recommended denial of the CUP application, concluding:
"8. As residential development in this area continues to grow, the significance of SE 29th Street as an arterial street will increase significantly.
"9. The introduction of regular truck traffic along this stretch of road will undoubtedly increase the timeframe governing the reconstruction of SE 29th Street to meet arterial street standards.
"10. Based on the classification of SE 29th Street as a minor arterial road, the current condition of this road appears to be substandard on order to meet the current and projected traffic demand east of SE Croco Road."
A day or two before the commission meeting, the McPhersons learned of Paris' report. According to the McPhersons, this was the first sign of potential difficulties with the application. However, the McPhersons had addressed traffic problems in their application. On average, MLI expected between 24 and 25 loads per day, and that the busiest times would be at 7 a.m. and 4 p.m. The application stated the belief that the traffic generated by Martin Marietta's quarry operation was greater than the traffic expected from a C&D landfill. The most common type of truck would be a single axle dump truck.
Consistent with his report, Paris testified in deposition that East 29th Street was not built to handle its intended capacity and that the road in its current condition would not be able to support a C&D landfill. When asked whether there were any alternative uses for the land, Paris said, "Any, any use could be placed on that property. The ground has not been reclaimed since its use as a quarry, but once reclaimed, regraded, anything could, could be built on that property." When asked to give examples, Paris continued:
"The quarries immediately surrounding this particular site have all been reclaimed, and they are currently being used as agricultural or pasture land. Several of them I believe also have houses on the property and the resulting pond from the quarry is just an amenity for use with the residential property. I know of several other former quarries that--where the actual pond is used as an amenity for an entire subdivision instead of a singular property. A site such as this could also be used for, for parks. They could be used--well, once the property is reclaimed, you know, the-- aside from some construction, you know, building construction issues I mean anything could be built there." (Emphasis added.)
The Shawnee County Health Agency evaluated MLI's application. The report noted that no groundwater was found on the site and that there was a very limited chance that the drinking water supplies would be contaminated as a result of a C&D landfill on the property. The potential impacts from dust, noise, and odor appeared to be sufficiently controlled.
The record contains a letter from Verne Dow, a geologist, criticizing the geology report submitted with MLI's application. According to Dow's letter, the report in MLI's application was vague and might have been based on information collected from the wrong site. Further, Dow's letter disputed that there was no groundwater in the area:
"I was Chief Geologist for the Kansas Division of Martin Marietta from January 1963 to April 1974 and worked often at the East Topeka quarry. During that time there was groundwater seepage into the pits from points on the highwall to the base of the Ozawkie. Since groundwater is present in the area it must be considered in the design."
The Zoning and Platting Committee meeting July 19, 2000
The Committee held a special meeting on July 19, 2000, to consider MLI's application. The McPhersons' attorney, Mark Buck, spoke in favor of the application, along with Kenny Blair and Bob Roenbaugh.
Buck noted that the traffic count for 29th Street was 2,817 cars daily and that an increase of 25 to 30 cars per day was insignificant. He told the Committee that the C&D landfill would not be visible from either 29th Street or Ratner Road. Kenny Blair, an engineer with the firm of Cook, Flatt, and Strobel, said the use of the former quarry as a C&D landfill would cause no problems and that the money generated could eventually be used to fund reclamation of the property. Roenbaugh, who owns property adjacent to the McPhersons' property, did not expect that the C&D landfill would make a poor neighbor. Twenty-four citizens spoke in opposition to the application.
The Committee voted 7 to 0 against the CUP application.
In his deposition, Scott McPherson described the meeting of the Committee as a "circus." He noted inaccurate information was presented, including allegations that MLI would be burning tires, dumping environmentally sensitive materials and other toxic waste, and polluting the water. Scott McPherson further stated that Dave Ireland, chairman of the Committee, later told him that a vote to approve the application would have been "political suicide."
The Board's Hearing August 14, 2000
The McPhersons understood that no member of the Board promised approval of the application for a C&D landfill before the hearing. However, Ireland told the McPhersons there were sufficient votes on the planning commission for approval and that he was going to see to it that the application was approved. The McPhersons understood there were no guarantees, as indicated by the following disposition testimony:
"Q. [To Virgil McPherson] Did they at any time tell you that there were no guarantees in the conditional use permit process?
"A. I'm sure they did, because there isn't.
"Q. Okay. And you believe there aren't any guarantees in this process?
"A. Yeah."
At the Board's August 14, 2000 hearing, Paris spoke on behalf of the Planning Agency staff. He summarized his report, focusing on the additional growth expected in the area and the expectation that traffic would be a problem in 5 to 10 years. The McPhersons' attorney spoke in favor of the application. Buck "acknowledged the Commission received approximately 132 form letters, numerous telephone calls, faxes, and contacts from the residents."
Again, Blair spoke in favor of the McPhersons' application. Blair told the Board that the Kansas Department of Health and Environment (KDHE) would issue a permit, make annual reviews, and determine annually whether to continue the permit. Phil Rosewicz, a representative with KDHE, confirmed that the C&D landfill could be shut down for noncompliance with applicable regulations.
There were no additional speakers in favor of the application, and Scott McPherson admitted in his deposition testimony that the McPhersons presented all their available information to the Board.
Twenty-four people spoke in opposition to the application. Charles Benjamin, an attorney representing a homeowners association, showed the Board a picture of a C&D landfill managed by the McPhersons. Benjamin raised the concern that landfills, whether sanitary landfills or C&D landfills, would attract dumping, i.e., people dumping their things off by the side of the road in the vicinity of the landfill.
Robert Badenoch, who described himself as an appraiser, told the Board he had reviewed some appraisal literature and concluded that the value of property within a 5-mile radius would be adversely affected by an active C&D landfill. Further, Badenoch mentioned that property taxes, which are assessed based upon the value of the property, would decrease and thereby place fiscal strain on the county. Badenoch's written submission to the Board included a bibliography of eight articles addressing the impact landfills have on surrounding property values.
Gary Reynolds, the Shawnee Heights School District Superintendent, spoke in opposition. Reynolds said the C&D landfill would "impact four of their six attendance centers and indirectly impact the traffic to the other two facilities." Reynolds said the school board had adopted a resolution supporting those opposed to the application.
Steve Bolton, the Shawnee County Director of Refuse, said if the existing C&D landfill was closed, the county's operating expense at the Rolling Meadows Landfill would increase by $40,000 annually.
The Board voted to reject MLI's application, with Commissioners Meier and Ensley voting against the application and Commissioner Kane voting in favor of the application. The Board's findings of facts noted the following potential problems:
"8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly affect the timeframe governing the reconstruction of Southeast 29th Street to meet arterial street standards. Based on the classification of Southeast 29th Street as a minor arterial road, the current condition of this road appears to be substandard to meet the current and projected traffic demand east of Croco Road.
"9. Southeast 29th Street is characterized as being hilly in this area and currently has minimal shoulder areas in the event of traffic problems or accidents. While this is likely adequate for normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic at this location could substantially increase the risk of serious accidents occurring. Coupled with the projected increases in traffic as this area develops, this presents a grave concern.
"10. Environmental concerns have been presented in regards to potential water pollution. A large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the proposed site for the construction and demolition landfill. Studies and borings completed were reportedly done to the north of 29th Street and not in the specific area where the proposed landfill is to be located. The applicant could not completely address the possibility or such contaminants entering the groundwater system.
"11. Other uses for the property have been identified including pasture or agricultural use, a recreational complex utilizing the lake on the property or potential future residential development. While these alternative uses may not be as profitable as the proposed use, they are legitimate alternative uses."
Commissioner Kane
Prior to the Board's hearing, Ireland brought Commissioner Kane to the 29th Street and Ratner Road site and the McPhersons talked with her about the landfill project. Commissioner Kane indicated that, on any give issue, if she was for the issue, Commissioners Ensley and Meier were against the issue 99% of the time. The McPhersons spoke with Commissioner Kane on multiple occasions. They had the impression Commissioner Kane would vote in favor of the CUP application. Voth said Commissioner Kane was supportive of the proposal.
Commissioner Meier
Commissioner Meier said the McPhersons initiated two to four conversations regarding the application. Scott McPherson's deposition testimony indicates Commissioner Meier spoke favorably about the project prior to the purchase of the 678 acres from Martin Marietta. Voth confirmed in his deposition that Commissioner Meier was initially in favor of the proposal.
After MWI purchased the property from Martin Marietta, Commissioner Meier wrote a letter dated April 14, 1999, to the McPhersons. Commissioner Meier noted that he had received telephone calls expressing concern that the McPhersons would be applying to operate a C&D landfill on the property. Commissioner Meier stated that the purpose of his letter was to "gather information on [the potential application] prior to the Commission hearing [the] request." In the letter, Commissioner Meier asked several questions, including a question about traffic patterns of trucks seeking access to the landfill. Commissioner Meier noted that there had been an application in 1998 to place a commercial building approximately 2 miles from MLI's property, but he had nevertheless voted against the application, although the commercial building was less obtrusive than the proposed operation of a C&D landfill. Commissioner Meier ended the letter by suggesting that he believed "it is in the best interests of the community to find more suitable locations where access will not be an issue."
At the Board's hearing, Commissioner Meier said that he had given thought to this issue for months and that he had received numerous calls from people who did business with the McPhersons saying there was no one with more integrity.
Commissioner Meier's deposition testimony indicates the calls regarding MLI's CUP application were 20 to 1 against approval of the application.
Virgil McPherson said that he never spoke with Commissioner Meier on the issue.
Commissioner Meier testified in his deposition that he did not attend any of the meetings held by those opposed to the McPhersons' application. He said that at the time of