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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,487 ROGER ZIMMERMAN, ET AL., Appellants/Cross-appellees, and A.B. HUDSON AND LARRY FRENCH, Intervenors/Appellants/Cross-appellees. v. BOARD OF COUNTY COMMISSIONERS OF WABAUNSEE COUNTY, KANSAS Appellees/Cross-appellants.

SYLLABUS BY THE COURT

1. Interpretation of a statute is a question of law, and an appellate court's review is unlimited. Accordingly when determining a question of law, the appellate court is not bound by the trial court's interpretation of a statute.

2. When construing a statute, a court should give words in common usage their natural and ordinary meaning.

3. The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.

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4. If a city or county governing body has a two-thirds majority vote of its membership, under K.S.A. 12-757(d) it may modify a recommendation from its planning commission without first returning the proposal to the commission.

5. Under the facts of this case, the Board of County Commissioners' amendment of its zoning regulations to prohibit commercial wind farms in its entire county of approximately 800 square miles was a legislative action.

6. Aesthetics and conformance with a governing body's comprehensive plan may be considered as bases for zoning rulings.

7. Zoning is not to be based upon a plebiscite of the neighbors; neighborhood objections alone are not legally sufficient to support land use regulation. Nevertheless, their views remain a consideration in a governing body's ultimate decision.

8. A county-wide ban on all commercial wind farms in the instant case was not unreasonable per se and therefore improper.

9. The district court is vested with broad discretion in supervising the course and scope of discovery.

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10. In actions under K.S.A. 12-760 to review the final zoning decision of a governing body, the admission of evidence not presented to the governing body is subject to the district court's discretion.

11. Although strongly encouraged, a governing body is not required to make formal findings of fact concerning its decisions regulating land use. It is more important that there exists a record of what the governing body considered before making its decision so that the reviewing court is not left in a quandary as to why the decision was made.

12. The test for determining whether a state law violates the Contract Clause of the United States Constitution is: (1) whether the state law has, in fact, operated as a substantial impairment of a contractual relationship; (2) whether there is a significant and legitimate public purpose behind the legislation; and (3) whether the adjustment of the contracting parties' rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption.

13. Despite a court finding of substantial impairment of a contractual relationship, legislation may still be upheld under an analysis of the Contract Clause of the United States Constitution if there is a significant and legitimate public purpose behind the legislation and if the adjustments to the contracting parties' rights and responsibilities are based upon reasonable conditions and are of a character appropriate to the public purpose justifying the legislation's adoption.

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14. For the threshold issue in an analysis of the Contract Clause of the United States Constitution--whether the regulation has, in fact, operated as a substantial impairment of a contractual relationship--a court must consider whether the industry the complaining party has entered has been regulated in the past. This consideration is required because one whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.

15. In an analysis of the Contract Clause of the United States Constitution, whether the adjustment of rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation's adoption, the courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure when the State is not a contracting party.

16. An appellate court review of whether a board of county commissioners' resolution is preempted by statute is, like interpretation of statutes and ordinances, a question of law. The standard of review is therefore unlimited.

17. State law preemption of a particular field cannot be implied but must be expressed by a clear statement in the law.

18. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.

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19. Absent an express statement by Congress that state law is preempted, federal preemption occurs where (1) there is an actual conflict between federal and state law; (2) where compliance with both federal and state law is, in effect, physically impossible; (3) where Congress has occupied the entire field of regulation and leaves no room for states to supplement federal law; or (4) when the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

20. In the absence of express preemption in a federal law, there is a strong presumption that Congress did not intend to displace state law.

21. Under the facts of this case, the motion to intervene was timely filed. The district court had jurisdiction to determine whether to allow intervention and, within its discretion, chose to permit the intervention.

Appeal from Wabaunsee district court; TRACY D. KLINGINSMITH and MICHEAL A. IRELAND, judges. Opinion filed October 30, 2009. Affirmed in part, and cross appeal denied; several issues stayed pending receipt of supplemental briefs and oral argument.

Jack Scott McInteer, of Depew Gillen Rathburn and McInteer, L.C., of Wichita, argued the cause and was on the brief for appellants/cross-appellees Roger Zimmerman, et al.

Scott A. Grosskreutz, of Cavanaugh and Lemon, P.A., of Topeka, argued the cause and Bryan W. Smith of Cavanaugh, Smith and Lemon, P.A., of Topeka, was with him on the briefs for the intervenors/appellants/crossappellees A.B. Hudson and Larry French.

William L. Frost, of Morrison, Frost, Olsen and Irvine, LLP, of Manhattan, argued the cause, and Katherine J. Jackson, of the same firm, was with him on the brief for appellee/cross-appellant Board of Wabaunsee County Commissioners.

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Richard H. Seaton, of Seaton, Seaton and Gillespie, L.L.P., of Manhattan, was on the brief for amici curiae Audubon of Kansas and Kansas Wildlife Federation.

Michael D. Irvin, of Kansas Farm Bureau, of Manhattan, was on the brief for amicus curiae Kansas Farm Bureau.

The opinion of the court was delivered by

NUSS, J.: This appeal results from the decision by the Board of County Commissioners of Wabaunsee County (Board) to amend its zoning regulations. Specifically, the Board prohibited the placement of Commercial Wind Energy Conversion Systems (CWECS, i.e., commercial wind farms) in the county. Plaintiffs and plaintiff intervenors (Intervenors) are owners of land and of wind rights, respectively, in the county.

The district court granted the Board's various motions to dismiss. Plaintiffs and Intervenors appeal, and the Board cross-appeals. Our jurisdiction is pursuant to K.S.A. 20-3017 (transfer from Court of Appeals on our motion).

The parties' issues on appeal, and our accompanying holdings, are as follows:

PLAINTIFFS' AND INTERVENORS' SHARED ISSUES:

1. Did the district court err in determining that the Board's decision amending the zoning regulations was lawful, i.e., that it did not violate the procedures outlined in K.S.A. 12-757? No.

2. Did the district court err in determining that the Board's decision amending the zoning regulations was reasonable? No.

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3. Did the district court err in precluding Plaintiffs and Intervenors from conducting discovery or submitting evidence on the reasonableness of the zoning regulation amendments? No.

4. Did the district court err in dismissing the claim alleging that the decision amending the zoning regulations violated the Contract Clause of the United States Constitution? No.

INTERVENORS' ISSUES:

5. Did the district court err in dismissing Intervenors' claim alleging preemption of the zoning regulation amendment by state law? No.

6. Did the district court err in dismissing Intervenors' claim alleging preemption of the zoning regulation amendments by federal law? No.

BOARD'S ISSUE ON CROSS-APPEAL:

7. Was the Intervenors' action under K.S.A. 12-760(a) commenced in a timely manner? Yes.

Concurrent with the release of this opinion, this court has ordered the parties to submit supplemental briefs on certain questions raised in the issues originally presented on appeal by both Plaintiffs and Intervenors. Those original issues are: whether the district court erred in dismissing the claims alleging that the Board's decision amending the zoning regulations violated the Takings Clause and the Commerce Clause of the United States Constitution.

Our order requiring supplemental briefing on takings necessarily stays our resolution of the following issues originally presented on appeal by Intervenors: whether the district court erred in dismissing their claims under 42 U.S.C.

Download Zimmerman v. Board of Wabaunsee County Comm'rs.pdf

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