Corbet v. Board of Shawnee County Commissioners

783 P.2d 1310, 14 Kan. App. 2d 123, 1989 Kan. App. LEXIS 857
CourtCourt of Appeals of Kansas
DecidedDecember 15, 1989
DocketNo. 63,398
StatusPublished
Cited by3 cases

This text of 783 P.2d 1310 (Corbet v. Board of Shawnee County Commissioners) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corbet v. Board of Shawnee County Commissioners, 783 P.2d 1310, 14 Kan. App. 2d 123, 1989 Kan. App. LEXIS 857 (kanctapp 1989).

Opinion

Briscoe, J.:

Defendants Board of Shawnee County Commissioners (Commissioners), Shawnee County Zoning Administrator (Zoning. Administrator), and members of the Shawnee County Board of Zoning Appeals (Zoning Board) appeal from a summary judgment entered in favor of plaintiffs, Margaret and Kenneth Corbet, which reversed the Zoning Board’s decision to require a special use permit for operation of a wildlife hunting preserve. We affirm the district court’s ruling and conclude the Corbets’ proposed use of their land as a hunting preserve is an agricultural use which does not require a special use permit.

Margaret is the owner of 95 acres in rural Shawnee County. Her son, Kenneth, is a purchaser of the real estate under a contract for deed. The real estate is located outside the three-mile limit of the city limits of Topeka and is zoned “RA-1” agricultural. The Corbets filed an application for a special use permit [124]*124to operate a wildlife hunting preserve and the Topeka-Shawnee County Metropolitan Planning Commission (Planning Commission) recommended disapproval. On advice of counsel, the Cor-bets withdrew the application prior to formal action by the Commissioners and continued operation of the preserve. After an adjoining landowner complained, the Commissioners began an investigation and sought the opinions of the Planning Commission staff, the Zoning Administrator, and the Shawnee County Counselor (Counselor). The Planning Commission and the Zoning Administrator concluded the zoning regulations require that a landowner first obtain a special use permit to operate a hunting preserve on RA-1 agricultural property. The Counselor concluded a special use permit is not required.

The Zoning Administrator issued a violation notice advising the Corbets to cease operation of their hunting preserve until a special use permit was approved. The Zoning Board, upon review of the Zoning Administrator’s action, concluded a special use permit was required. The Corbets challenged this decision by filing suit in district court pursuant to K.S.A. 19-2926. The district court reversed the Zoning Board’s decision and it is from that decision defendants appeal.

The issue presented is whether the Corbets’ proposed use of their land as a wildlife hunting preserve is an “agricultural purpose” which would exempt them from county zoning regulations.

The parties have stipulated that fishing; hunting of upland birds, migratory birds, and waterfowl; dog training; and clay target shooting are activities which could lawfully be conducted on the subject property by the landowners and their guests, without the payment of a fee. The parties also stipulated that the Zoning Administrator determined said activities are in violation of the Shawnee County zoning regulations only if a fee is charged.

The Corbets propose to use their land to provide hunting, fishing, clay target shooting, and dog training to the public on a fee basis. Hunting and fishing would be restricted to comply with the Kansas Fish and Game Commission rules and regulations. Kenneth testified that he had spent a good deal of time and money developing the acreage as a wildlife habitat, including the provision of food, water, and ground cover beyond that which naturally occurs. He has planted crops such as milo and soybeans [125]*125for the specific purpose of providing sources of food for wildlife. The subject property contains a mixture of trees and brush, and cultivated crops. The acreage also contains Kenneth’s residence and one or more ponds.

Kenneth stated the primary uses of the hunting preserve would be hunting and fishing, but ancillary uses would include providing hunters with dogs if requested, clay target practice, and providing coffee or snacks to the hunters. The ancillary services were described only as an accommodation to the hunting and fishing activity. The Planning Commission and the Zoning Administrator made repeated reference to the operation of a snack bar on the premises. The Corbets stated in response that there is no snack bar or shop operated on the premises. Those who hunt and fish on the preserve are offered coffee from a thermos and occasionally a cupcake or snack, but these items are not sold.

K.S.A. 19-2901 et seq. authorizes the rezoning of county property. The present issue centers around the interpretation of K.S.A. 19-2921, which states in part:

“[N]o determination nor rule nor regulation shall be held to apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.”

Pursuant to these statutes, Shawnee County adopted zoning regulations for the “RA-1” agricultural district. Section 6 provides that the premises shall be used only for the following purposes:

“1. Agricultural uses including the raising of crops, livestock, poultry or animals for the production of food or any activity connected therewith normally found to be necessary and essential to this purpose.
“2. Any activity deemed essential to the utilization and conservation of natural resources.”

The Corbets argue that 19-2921 and the RA-1 agricultural district regulations exempt them from the county zoning requirements and, therefore, a special use permit is not required. The district court agreed.

No Kansas case has specifically defined what an “agricultural purpose” is under 19-2921. Several cases have considered whether certain activities fall within that term. See Fields v. Anderson Cattle Co., 193 Kan. 558, 563-64, 396 P.2d 276 (1964) (agricultural purpose includes operation of livestock feed lots); Carp v. Board [126]*126of County Commissioners, 190 Kan. 177, 373 P.2d 153 (1962) (agricultural purpose includes a hog feeding operation); Board of County Commissioners v. Brown, 183 Kan. 19, 325 P.2d 382 (1958) (raising canaries for sale is consistent with an agricultural purpose, but operation of an automobile garage and body repair shop is not).

In a more recent case, Blauvelt v. Board of Leavenworth County Comm’rs, 227 Kan. 110, 605 P.2d 132 (1980), the issue centered around the construction of a farmhouse which did not meet zoning regulation requirements. The court found:

“The obvious purpose of the proviso in K.S.A. 19-2921 was to favor agricultural uses and farmers. Since this state’s economy is based largely on the family farm it would appear the intent of the legislature was to spare the farmer from more governmental regulation and not to discourage the development of this state’s farm industry.” 227 Kan. at 113.

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Related

Attorney General Opinion No.
Kansas Attorney General Reports, 1996
Corbet v. BOARD OF SHAWNEE COUNTY COMM'RS.
783 P.2d 1310 (Court of Appeals of Kansas, 1989)

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Bluebook (online)
783 P.2d 1310, 14 Kan. App. 2d 123, 1989 Kan. App. LEXIS 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corbet-v-board-of-shawnee-county-commissioners-kanctapp-1989.