Hacker v. Sedgwick County

286 P.3d 222, 48 Kan. App. 2d 164
CourtCourt of Appeals of Kansas
DecidedSeptember 14, 2012
DocketNo. 107,214
StatusPublished
Cited by2 cases

This text of 286 P.3d 222 (Hacker v. Sedgwick County) 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
Hacker v. Sedgwick County, 286 P.3d 222, 48 Kan. App. 2d 164 (kanctapp 2012).

Opinion

Malone, J.:

The Sedgwick County, Kansas, Board of Zoning Appeals (Board) appeals the district court’s decision vacating the Board’s grant of three zoning variances to Norman and Leatha Hein related to their lawn care business operated from their rural home. The Board argues that Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving Company, who are the owners and lessees of real property adjacent to the Heins’ property, lacked standing to appeal the Board’s grant of the zoning variances to the district court, and that therefore the district court lacked jurisdiction to rule on the matter. The Board also argues that the district court erroneously determined that strict application of the zoning regulations would not constitute an unnecessary hardship, as required under K.S.A. 12-759(e)(l)(C), because the hardship was imposed by the Heins’ self-created business growth. We conclude that under the facts of this case, the neighboring landowners had standing under K.S.A. 12-759(f) to appeal the Board’s grant of the zoning variances. We also conclude as a matter of law that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created. Accordingly, we affirm the district court’s judgment vacating the zoning variances.

[166]*166The Heins have operated a lawn care business from their rural home for over 30 years. The business is located on a portion of their 75-acre tract of land on West 73rd Street North in Sedgwick County, Kansas. The property is zoned RR Rural Residential. In 1990, the Heins petitioned for and were granted two zoning variances by the Board: (1) to allow the business to operate within 220 feet of a nearby residence; and (2) to allow up to four employees on the property at any given time. In granting the second variance, tire Board noted that the business was primarily conducted off site and that the employees would only be at the property for a limited amount of time in order to maintain and transport the lawn care equipment, which was stored at the property. The Heins later explained that although they employed 19 people at that time, most employees reported directly to the job sites and did not need to go to the property.

In 2010, the Heins filed a petition with the Board for three variances: (1) to allow up to 20 employees with no more than 15 on site in excess of 1 hour per day; (2) to allow the use for business purposes of existing outbuildings with a combined floor area exceeding 3,000 square feet; and (3) to allow outdoor storage closer to the street than the buildings used for tire business and closer than 200 feet from property lines. In their petition, the Heins alleged that new variances were necessaiy because they had “obtained additional customers and changed the way their employees work.” Specifically, the Heins stated that more equipment was stored at the property and employees now met at the property and rode together to job sites. The Heins further stated that, as part of their commitment to keeping their full-time employees at work even during inclement weather, the new variances were necessaiy to permit employees to perform occasional yard work and equipment maintenance at the property.

Board staff prepared a report on the Heins’ petition. Staff considered each of the five criteria under K.S.A. 12-759(e)(l) that must be met before the Board may grant a variance. Staff recommended that the Board deny the first variance, finding that the increased number of employees would violate four of the five criteria. In particular, staff found that strict application of the zoning [167]*167regulations would not constitute an unnecessary hardship under K.S.A. 12-759(e)(l)(C) because tire hardship was imposed by the Heins’ self-created business growth. Staff recommended that the other two variances be granted subject to certain conditions.

On October 12, 2010, the Board held a meeting at which the Heins’ petition was considered. After receiving staff s report, tire Board heard comments on tire matter. Norman Hein explained that the reason for requesting the first variance, to increase the number of employees allowed on the property, was that the business now needed six drivers to transport the lawn care equipment as opposed to the four drivers needed in 1990. Furthermore, the variance would allow employees to gather at the property and catch rides to the job sites and would account for the occasional situation in which employees performed yard work and equipment maintenance at the property. Several of Heins’ neighbors and customers spoke in support of the petition for variances.

But Richard Gronniger, who owns the property just south of the Heins across West 73rd Street North, and Terry Hacker, who operates Kansas Paving, a sand pit on Gronniger’s property, spoke in opposition to the Heins’ petition. They argued that the requested variances were tantamount to rezoning and that since Gronniger and Kansas Paving were paying for road maintenance in relation to the conditional use permit to operate the sand pit, the Heins should also be required to seek a conditional use permit and contribute to road maintenance costs. Hacker stated that Kansas Paving spends about $15,000 per year on road maintenance costs. He believed that because the Heins’ business constituted about one-third of the traffic on West 73rd Street North, the Heins should contribute about $5,000 per year for road maintenance costs.

The Board found that all five criteria under K.S.A. 12-759(e)(l) had been met for each variance and granted all three requested variances subject to certain conditions. On November 10, 2010, Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving (plaintiffs) filed a petition in the district court under K.S.A. 12-759(f) and K.S.A. 12-760 challenging the reasonableness of the Board’s decision. They argued that the decision was not supported by substantial evidence and requested either that the variances be [168]*168vacated as unreasonable or that the matter be remanded to the Board for further findings.

On April 14, 2011, the district court held a bench trial based on stipulated facts. Based on the evidence presented, the district court rejected the plaintiffs’ argument that the Heins were required to seek a conditional use permit rather than zoning variances. The district court further found that the requested variances were properly classified as area variances (as opposed to use variances) and as such, the Board had the authority to grant those variances if all five criteria under K.S.A. 12-759(e)(l) were supported by substantial evidence.

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Related

Layle v. City of Mission Hills
Court of Appeals of Kansas, 2017
Hacker v. Sedgwick County
298 Kan. 1202 (Supreme Court of Kansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
286 P.3d 222, 48 Kan. App. 2d 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hacker-v-sedgwick-county-kanctapp-2012.