Zimmerman et al. v. Board of Wabaunsee County Commissioners 

SYLLABUS BY THE COURT

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. …

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. …

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

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.

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.

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.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are owners of land in Wabaunsee County who have entered into written contracts for the development of commercial wind farms on their properties. Intervenors are the owners of wind rights concerning other properties in the county.

Defendant is the three-member Board of County Commissioners of Wabaunsee County. The county is roughly 30 miles long and 30 miles wide, containing approximately 800 square miles and 7,000 people. It is located in the Flint Hills of Kansas, which contain the vast majority of the remaining Tallgrass Prairie that once covered much of the central United States.

In October 2002, the county zoning administrator told the Board that he had been contacted by a company desiring to build a wind farm in the county. At that time, the county had no zoning regulations relating specifically to wind farms. The next month, the Board passed a temporary moratorium on the acceptance of applications for conditional use permits for wind farm projects until the zoning regulations could be reviewed. The moratorium was extended on at least five occasions.

The following month, December 2002, the county planning commission conducted its first public meeting to discuss amending zoning regulations regarding commercial wind farms.

On July 24, 2003, the planning commission held a public hearing for discussion of the proposed zoning regulations which included regulations of small and commercial wind farms. A month later, the Board ordered the planning commission to review and recommend updates to the 1974 Wabaunsee County Comprehensive Plan (Plan) because it did not address changes that had occurred in the county in intervening years. After the Plan had been reviewed, the Board intended to consider the new proposed regulations regarding wind turbines.

On February 15, 2004, after input from the public, including a county-wide survey and focus groups, the planning commission formally recommended the adoption of the revised Comprehensive Plan 2004.

On April 26, 2004, the Board adopted the planning commission’s recommended changes to the Plan and adopted the Comprehensive Plan 2004. It included the goals and objectives previously recommended to the Board. …

On May 20, after the Board’s adoption of the Comprehensive Plan 2004, the planning commission held a public hearing to discuss proposed amendments to the zoning regulations regarding small and commercial wind farms. At its next meeting, the commission voted 8-2 to recommend that the Board approve the proposed zoning amendments which would allow CWECS (commercial wind farms) as a conditional use, subject to certain conditions.

The following month, on June 28, the Board voted 2-1 to adopt in part and override in part the planning commission’s recommended zoning changes. Specifically, the Board adopted the commission’s recommendations regarding regulation of Small Wind Energy Conversion Systems (SWECS, i.e., small wind farms). It rejected, however, the commission’s recommendations regarding regulation of CWECS and prohibited commercial wind farms in the county.

The Board’s decision was formally reflected in Resolution No. 04-18, passed 2 weeks later on July 12, 2004. The Resolution articulated the following basis for the Board’s decision:

“The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved.”

The Resolution also added the following definitions to Article 1-104 of the zoning regulations passed in 1995:

“207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buildings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind.

“208. Commercial Wind Energy Conversion System: A Wind Energy Conversion System exceeding 100 kilowatt or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. (Commercial Wind Energy Conversion Systems are specifically prohibited as a use in Wabaunsee County.) (Emphasis added.) …

A new paragraph (30) was added to Article 31-105 reiterating that commercial systems were prohibited in Wabaunsee County:

“30. Commercial Wind Energy Conversion Systems are not a use that may be approved or permitted as a Conditional Use in Wabaunsee County and are specifically prohibited.” …

Article 31-112 (Prohibited Uses) was amended to include a new paragraph (5):

“5. No Commercial Wind Energy Conversion System, as defined in these Regulations, shall be placed in Wabaunsee County. No application for such a use shall be considered.” (Emphasis added.)

Plaintiffs sued the Board in district court, seeking a judicial declaration that the Board’s action in passing Resolution No. 04-18 be null and void. Plaintiffs also sought damages under a number of different theories. …

Download original document: “Zimmerman et al. v. Board of Wabaunsee County Commissioners”

See also:  “Ruling lets stand prohibition of wind farms in Wabaunsee County, Kan.”