Hacker v. Sedgwick County

Citations: 48 Kan. App. 2d 164; 286 P.3d 222Docket: No. 107,214

Court: Court of Appeals of Kansas; September 14, 2012; Kansas; State Appellate Court

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The Sedgwick County Board of Zoning Appeals (Board) contests a district court decision that vacated the grant of three zoning variances to Norman and Leatha Hein for their lawn care business located on their rural property. The Board claims that adjacent property owners, including Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving Company, lacked standing to appeal the variances, thus challenging the district court's jurisdiction. Furthermore, the Board asserts that the district court incorrectly ruled that strict enforcement of zoning regulations would not lead to unnecessary hardship, as the hardship stemmed from the Heins' self-created business expansion.

The court determined that the neighboring landowners had standing under K.S.A. 12-759(f) to appeal the Board’s decision and ruled that self-created business growth does not exempt the Heins from demonstrating unnecessary hardship. Consequently, the court affirmed the district court's judgment, which vacated the zoning variances.

The Heins have operated their lawn care business for over 30 years on their 75-acre property in Sedgwick County, which is zoned RR Rural Residential. Initially, in 1990, they were granted two variances: one allowing the business to operate within 220 feet of a residence and another permitting up to four employees on-site simultaneously. The Board noted that most employees worked off-site, with limited time spent at the property for equipment maintenance.

In 2010, the Heins sought three new variances due to an increase in customers and changes in employee operations, including a request to allow up to 20 employees, use of larger outbuildings for business, and closer outdoor storage. Board staff reviewed the petition and recommended denying the first variance due to a failure to meet necessary criteria, particularly pointing out that the hardship was self-imposed. They suggested granting the other two variances with conditions. During the Board meeting, Norman Hein explained the necessity for the first variance based on the increased demand for drivers to transport equipment, which had risen from four to six since 1990.

The variance granted to the Heins would permit employees to gather at their property for rides to job sites and accommodate occasional yard work and equipment maintenance. While several neighbors supported the variance, Richard Gronniger and Terry Hacker opposed it, arguing that the variances resembled rezoning and that the Heins should also contribute to road maintenance costs related to their business traffic, which constituted a third of the traffic on West 73rd Street North. The Board determined that all five criteria under K.S.A. 12-759(e)(1) were met and granted the variances with conditions.

Subsequently, plaintiffs, including Larry Hacker and Richard Gronniger, challenged the Board's decision in district court under K.S.A. 12-759(f) and K.S.A. 12-760, claiming the Board's decision lacked substantial evidence. During a bench trial, the court upheld the classification of variances as area variances and confirmed the Board's authority to grant them if supported by substantial evidence. However, the court found that the Board failed to adequately analyze whether strict application of zoning regulations caused unnecessary hardship, leading to a remand for further consideration.

On remand, the Board concluded the hardship was not self-created, citing the Heins' vested property rights and reasonable business growth. The district court later rejected this interpretation, asserting that the Heins' business growth was self-created and did not justify an area variance under K.S.A. 12-759(e)(1). It emphasized the precedent set by allowing variances based on self-created circumstances would lead to excessive variance grants. Ultimately, the district court vacated the Board's grant of the variances, prompting the Board to appeal.

The Board contends that the plaintiffs lacked standing to appeal the zoning variances granted to them, arguing that this absence of standing meant the district court had no jurisdiction to rule on the matter. The Board claims that standing is a component of subject matter jurisdiction and can be raised for the first time on appeal. It asserts that the plaintiffs could only appeal under K.S.A. 12-759(f), which allows appeals by individuals "dissatisfied with" a zoning board's decision, interpreting this term to apply narrowly to original parties in the hearings. The Board concludes that the plaintiffs did not have a sufficient particularized interest affected by its decision to meet the standing requirements under either K.S.A. 12-760, which allows appeals for those "aggrieved by" a zoning decision, or the narrower interpretation of K.S.A. 12-759(f).

In contrast, the plaintiffs argue they qualify to appeal under both statutes, asserting that limiting standing under K.S.A. 12-759(f) to original parties would unjustly prevent affected neighbors from appealing. They propose a broader interpretation allowing any interested individual who participated in the board hearings to have standing. The plaintiffs emphasize their particularized interests, such as increased traffic and maintenance costs, to establish standing under K.S.A. 12-760 and argue they sufficiently participated to also meet the standing criteria under K.S.A. 12-759(f).

The discussion of standing is framed within the context of subject matter jurisdiction, which can be reviewed on appeal. Determining standing is a legal question subject to unlimited appellate review, as is the interpretation of the relevant statutes, K.S.A. 12-759 and K.S.A. 12-760, which govern the establishment and function of zoning boards to protect public health, safety, and welfare.

Subsection (f) allows interested parties to appeal a board’s decision to the district court if they are dissatisfied with any order or determination made by the board, requiring that the appeal be filed within 30 days of the final decision. K.S.A. 12-760 similarly permits any aggrieved person to challenge a final decision by a city or county in district court within the same time frame. The plaintiffs contend they can appeal under both K.S.A. 12-759(f) and K.S.A. 12-760; however, a specific statute (K.S.A. 12-759(f)), which pertains only to zoning appeals, takes precedence over the more general statute (K.S.A. 12-760). Thus, appeals from a board of zoning appeals are governed solely by K.S.A. 12-759(f). 

The court must ascertain if the plaintiffs have standing to appeal under this statute. The terms 'dissatisfied with' in K.S.A. 12-759(f) and 'aggrieved by' in K.S.A. 12-760 necessitate interpretation. The court notes that 'dissatisfied with' encompasses a broader range of individuals, as one can be dissatisfied without a direct pecuniary interest being adversely affected. However, it is argued that to have standing to appeal a zoning decision, a person must demonstrate an adverse pecuniary interest. Lacking compelling reasons to differentiate standing under the two statutes, the court aligns the interpretation of 'dissatisfied with' in K.S.A. 12-759(f) with 'aggrieved by' in K.S.A. 12-760.

The court references a precedent where 'aggrieved' was defined as a person suffering a substantial grievance or denial of a personal or property right, emphasizing that it does not apply to those merely expressing desires on the matter. Consequently, only individuals with enforceable rights and affected pecuniary interests qualify for standing to appeal to the district court.

The court determined that the plaintiffs had standing to sue because they were 'aggrieved' due to their proximity—within 1,000 feet—of the proposed landfill, which posed a risk of substantial grievance and pecuniary loss unique to them, particularly concerning increased road maintenance costs on West 73rd Street North, a requirement of their conditional use permit for operating a sand pit. The plaintiffs, who own and occupy property adjacent to the proposed site, successfully established their standing under K.S.A. 12-759(f). 

Regarding the merits of the Board's ruling on variances, the Board contended that it had the authority to grant the requested variances based on substantial evidence supporting all five statutory criteria under K.S.A. 12-759(e)(1). The Board maintained that self-created business growth could constitute unnecessary hardship under K.S.A. 12-759(e)(1)(C) and advocated for a broader interpretation of unnecessary hardship in zoning law. The plaintiffs countered that such hardship cannot be deemed unnecessary and argued that the Board’s variance grants lacked substantial evidence and authority.

The district court's review of the zoning board's decision was limited to assessing whether the board acted fraudulently, arbitrarily, or capriciously, whether the decision was supported by substantial evidence, and whether it fell within the board's authority. The appellate court applies the same review standards, while interpretations of the criteria for granting area variances under K.S.A. 12-759(e)(1) are subject to unlimited review. Kansas law differentiates between use variances, which allow for land use beyond zoning regulations, and area variances, which modify specific restrictions without changing land use. The district court concluded that all three variances in question were area variances, a determination that was unchallenged by the parties involved.

The criteria for granting an area variance under K.S.A. 12-759(e)(1)(C) centers on the concept of "unnecessary hardship." The statute allows the board of zoning appeals to grant variances if it determines that strict enforcement of zoning regulations results in unnecessary hardship for the property owner, provided that public interest, safety, and the spirit of the regulations are maintained. A variance cannot permit uses not allowed in the zoning district.

In the case of Stice v. Gribben-Allen Motors, Inc., the Kansas Supreme Court examined a variance granted to a defendant wishing to build a car dealership in a residential zone. The defendant purchased the land before the zoning regulations took effect and later sought a variance after a rezoning petition was denied. Although the board initially approved the variance, it later rescinded the order, which the defendant ignored.

The plaintiffs, homeowners in the area, challenged the variance, but the district court upheld the board’s initial decision. On appeal, the Supreme Court focused on whether the board had substantial evidence to support its finding of unnecessary hardship. The court rejected arguments that the timing of the land purchase and increased costs to build elsewhere constituted unnecessary hardship, emphasizing that knowledge of zoning regulations at the time of purchase and the absence of a nonconforming use permit negated these claims.

The court defined unnecessary hardship as a situation where zoning restrictions are unreasonable and interfere with property rights, or where the property cannot be used conformably due to unique circumstances. The ruling underscored that a landowner's intention to profit from a property does not establish unnecessary hardship unless the zoning completely obstructs economically viable use of the property.

In City of Olathe, the city opposed the board of zoning appeals’ decision to grant a variance for a filling station and truck stop to change its pole sign due to a new ordinance banning such signs. The change was mandated by the franchise's new owners, which would render the sign a new installation, disqualifying it from preexisting use. The district court affirmed the board's decision, noting substantial evidence of unnecessary hardship, primarily that the name change was imposed, and the business faced closure without the signs. The court distinguished this case from Stice, where the hardship was merely potential loss of profit, not the loss of an operating business.

In City of Merriam, a telecommunications company sought a variance to construct a 990-foot tower to comply with FCC regulations after a 75-foot height limit was imposed post-purchase contract. The board granted the variance, but the district court later reversed it, citing that three of five criteria were unmet, particularly that the hardship was self-created by the defendant’s decision to finalize the purchase before the appeal concluded. The Supreme Court acknowledged the general principle against granting variances for self-created hardships, aligning with the district court’s rationale that no ongoing business existed at the site.

In Cooper v. City of Kansas City, defendants built a commercial structure that slightly encroached on a side-yard setback, leading to a neighboring complaint. They received a curative variance from the board, which the district court upheld.

The court rejected the board's determination that the defendants faced unnecessary hardship due to economic difficulties stemming from required building alterations and a good-faith calculation error by their architect. The court emphasized that the hardship was self-created, unlike in previous cases, and affirmed that no good-faith exception exists for self-created hardships. Key legal principles were clarified: economic advantage or disadvantage alone does not constitute unnecessary hardship, and strict zoning application must lead to the complete loss of a business to be considered unnecessary hardship. The court noted that the Heins' request for variances was economically beneficial but would not lead to the loss of their business, only a reduction in profitability. The Heins acknowledged that their business growth necessitated the variances, which Kansas courts have ruled does not qualify as unnecessary hardship. Citing cases from other jurisdictions, the court concluded that self-created business growth aimed at profit maximization does not meet the criteria for unnecessary hardship. Consequently, the district court found the board's decision lacked substantial evidence and acted beyond its authority, affirming the vacating of the variances.