Ohlsen v. City of Seneca ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 126,618
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
BRETT OHLSEN,
Appellant,
v.
CITY OF SENECA, KANSAS, CITY COUNCIL and THE PLANNING COMMISSION/BOARD OF
ZONING APPEALS OF THE CITY OF SENECA, KANSAS,
Appellees.
MEMORANDUM OPINION
Appeal from Nemaha District Court; JOHN L. WEINGART, judge. Submitted without oral
argument. Opinion filed August 16, 2024. Affirmed.
J. Phillip Gragson and Kara L. Eisenhut, of Henson, Hutton, Mudrick, Gragson & Vogelsberg,
LLP, of Topeka, for appellant.
Martin W. Mishler, of Mishler & Sunderland Law Offices, of Sabetha, for appellees.
Before MALONE, P.J., HURST and COBLE, JJ.
PER CURIAM: The City of Seneca (the City) and the Board of Zoning Appeals of
the City of Seneca (the Board) granted a conditional use permit (CUP) to Ag Partners
Cooperative, Inc. (APC) after a public hearing. Brett Ohlsen—the owner of neighboring
property—sought judicial review of the Board's decision. The district court found he
failed to prove the actions of the Board were unreasonable under K.S.A. 12-760. Ohlsen
now appeals the district court's decision and argues this court should overturn the Board's
granting of the CUP because its decision was unreasonable. But while Ohlsen points to
some instances where the Board may not have strictly followed the City's procedural
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ordinances, he has not met his considerable burden to show the Board's grant of the CUP
was so arbitrary that it was taken without regard to the benefit or harm to the community
or was so wide of the mark that its unreasonableness is without debate. We affirm the
district court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2022, APC applied to the City and the Board for a permit "to allow for the
operation of a new distribution center" that would receive, store, and repackage various
agricultural products, including crop protection products, liquid fertilizers, and seeds on a
tract of land then zoned as a "transitional agricultural district." APC also requested to
relocate its current "NH3 facilities," already located in Seneca, to the new location. The
proposed plan related to distance requirements from residential and commercial
properties.
The City's administrator, Tami Haverkamp, acts as the development administrator
who oversees zoning issues. In this role, Haverkamp met with APC and discussed
concerns and potential solutions for its proposed project before the application progressed
to a public hearing. Haverkamp discussed with APC its need for water, conferring with a
city engineer on different scenarios for water access; a potential need for vegetative
screening of the facility; and traffic safety concerns.
Days after APC filed its CUP application, Haverkamp published a notice in the
local newspaper stating the Board intended to hold a public hearing on the application on
June 2, 2022. The notice made clear that "[a]ll property owners and residents in the city
limits within 200 feet of the property and all property owners and residents outside the
city limits within 1000 feet of the property for which the [CUP] [was] being sought"
would have the right to be heard. On June 2, however, the Board lacked a quorum, so the
public hearing was postponed to June 8, 2022. According to Haverkamp, the date of
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postponement was announced at the June 2 meeting, but the City did not publish another
public hearing notice in the newspaper about the rescheduling.
At the June 8 public hearing, which unfolded over two-and-a-half hours, the Board
heard comments from various people including representatives from APC, members of
the public, and city staff. At the conclusion of public comments, multiple representatives
from APC answered questions posed by the public, including discussions about various
aspects of the new facility, such as the safety of the chemicals used, potential water use,
and traffic flow. Ultimately, the Board voted to approve the CUP with three conditions:
(1) APC would pay for upgrades to Industrial Drive (the road running alongside the tract
at issue); (2) APC was required to submit a vegetative screening plan within 60 days for
approval by the Board; and (3) APC would agree to the annexation of the property if they
hooked onto the city's sewer system. Although the Board did not issue a written decision,
discussions at the meeting were transcribed into written minutes by Haverkamp.
Within weeks of the Board's decision, Ohlsen and Ashley Nordhus—property
owners who live within 1,000 feet of the subject property—petitioned for judicial review
by the district court, arguing the Board's decision was unreasonable, arbitrary, and
capricious because it failed to recognize the health and economic impact of the project.
The district court held a bench trial on the petition and took the matter under advisement.
A few months later, the district court issued its decision, finding Ohlsen and
Nordhus failed to carry their burden of proof by a preponderance of the evidence to show
the Board's decision was arbitrary, capricious, and unreasonable. The district court also
concluded the Board properly addressed the relevant factors set out in Golden v. City of
Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), and determined the CUP, with its
required conditions, was in the best interests of the City.
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Ohlsen brings this appeal.
THE BOARD DID NOT ERR BY GRANTING THE CONDITIONAL USE PERMIT
On appeal, Ohlsen contends the district court erroneously concluded he did not
meet his burden of proof to demonstrate the unreasonableness of the Board's decision
because, first, the procedure taken by the City and the Board failed to conform with the
City's zoning ordinances and Kansas common law. Second, Ohlsen argues the Board's
decision was "grossly unreasonable" because it did not properly consider the evidence
and weigh the equities. These are the only issues presented by the parties and accordingly
the only issues proper for our examination.
"[A]ny person aggrieved" by a zoning decision may bring an action "to determine
the reasonableness of such final decision" as outlined in Kansas laws related to cities and
municipalities. K.S.A. 12-760(a). At the first step of judicial review, the district court
reviews the zoning decision for reasonableness. The district court's decision is then
appealable to this court, which "must make the same review of the zoning authority's
action as did the district court." Combined Investment Co. v. Board of Butler County
Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980).
Courts give broad deference to zoning authorities in determining whether to grant
zoning amendments or rezoning requests. The scope of this court's review is "limited to
determining (a) the lawfulness of the action taken, and (b) the reasonableness of such
action," and we must presume the zoning authority acted reasonably. Combined
Investment Co., 227 Kan. at 28. When assessing reasonableness, we give no deference to
the district court's determination, because "[w]hether [an] action is reasonable or not is a
question of law, to be determined upon the basis of the facts which were presented to the
zoning authority." 227 Kan. at 28. Kansas courts have largely applied the "Golden
factors" when examining the reasonableness of a zoning authority's decision—which we
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discuss in more detail below. A zoning authority's "[a]ction is unreasonable when it is so
arbitrary that it can be said it was taken without regard to the benefit or harm involved to
the community at large, including all interested parties, and was so wide of the mark that
its unreasonableness lies outside the realm of fair debate." 227 Kan. at 28.
Here, Ohlsen does not argue that the Board's actions were unlawful, in that they
somehow failed to comply with K.S.A. 12-741 or K.S.A. 12-755 of the Planning, Zoning,
and Subdivision Regulations in Cities and Counties Act. See American Warrior, Inc. v.
Board of Finney County Comm'rs, ___ Kan. ___, 2024 WL 3544081, at *5 (2024)
(examining whether the county could delegate issuance of conditional use permits to the
local zoning board in compliance with state law); 143rd Street Investors v. Board of
Johnson County Comm'rs, 292 Kan. 690, 707-08, 259 P.3d 644 (2011) (outlining that
K.S.A. 12-741[a] and K.S.A. 12-755[a] allow cities and counties to enact and enforce
zoning regulations so long as the regulations do not conflict with state zoning statutes).
Instead, Ohlsen's argument both before the district court and here focuses solely on the
reasonableness of the Board's approval of the CUP under K.S.A. 12-760.
As the landowner, Ohlsen bears the burden of proving unreasonableness by a
preponderance of the evidence. Combined Investment Co., 227 Kan. at 28.
Ohlsen fails to demonstrate how any deviation from the city ordinances rises to the level
of unreasonableness.
Ohlsen first claims the Board's decision was unreasonable because the procedures
taken by the City and the Board failed to conform to the City's own zoning ordinances.
So, although we are not asked to consider the statutory lawfulness of the Board's
decision, we may consider any procedural errors as part of our analysis of the decision's
reasonableness. See Golden, 224 Kan. at 598-99.
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Ohlsen maintains the Board failed to adhere to processes required in two primary
Articles of the city ordinances—"Article 5: Zoning Districts" and "Article 6: Conditional
Use Permits."
First, Ohlsen claims the Board's decision was contrary to the zoning ordinances
because the land APC proposes to use is designated as a transitional agriculture district,
and under Section 5.07.01 of the zoning ordinances, these districts are "established for
the purpose of preserving agricultural resources that are compatible with adjacent urban
growth." Section 5.07.01 adds that these districts are "designed to limit urban sprawl."
Ohlsen agrees APC's development "would undoubtedly limit urban sprawl," but he
argues the project "would have the opposite effect of the other stated purpose of the
Ordinance, which is preserving agricultural resources."
But apart from claiming APC's proposal would "have the opposite effect" of
preserving agricultural resources, Ohlsen proffers no argument or evidence to support this
claim. And as the proponent, Ohlsen bears the burden of designating a record sufficient to
present his point and establish his claim. See Friedman v. Kansas State Bd. of Healing
Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013); Supreme Court Rule 6.02(a)(4) (2024
Kan. S. Ct. R. at 36). Failing to support a point with pertinent authority or failing to show
why a point is sound despite a lack of supporting authority is like failing to brief the
issue. In re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018). Ohlsen
neither points to evidence in the record that would establish that APC's permit violated
the intent of Article 5 because it would not preserve agricultural resources—which,
arguably, a business which produces crop preservation products would do—nor does he
support his argument with authority to suggest that such violation of the ordinances
requires reversal of the Board's decision.
Additionally, this argument is illogical given the purpose of a CUP, which is to
grant a use outside of the currently established zoning. While Article 5 may describe
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differences between types of zoning districts, Ohlsen's argument ignores the subsequent
section—Article 6—specifically permitting exceptions, or conditional uses, of such
zoned areas.
Second, Ohlsen argues Article 5, Section 5.07.07 requires certain uses, such as the
"[s]torage and distribution of anhydrous ammonia, fuel, fertilizer, and other chemicals,"
to be a "minimum of 2,640 feet from any residential, commercial, industrial or public
use." He claims the maps provided at the public hearing show "there is more than one
residential and/or commercial property within 2,640 feet of the proposed location for the
new facility" and alleges the City violated its own ordinances because APC admits it
plans to receive, store, and repackage bulk liquid fertilizers, which could include
anhydrous ammonia.
The record supports APC's intent to store bulk liquid fertilizers and anhydrous
ammonia at their proposed facility. But Ohlsen's argument ignores an amendment to
Article 5, Section 5.07.07 enacted before the public hearing. As Ohlsen noted in his
recited facts, the City amended this ordinance to specifically remove the 2,640-foot
requirement. The amended ordinance now reads: "Storage and distribution of anhydrous
ammonia, fuel, fertilizer, and other agricultural chemical shall meet minimum distance
setback requirements as set forth by the Environmental Protection Agency." (Emphasis
added.)
During the bench trial, Haverkamp testified the City's planning commission had a
public hearing on the setback matter after reviewing APC's site plan. Haverkamp said the
planning commission discussed the radius requirement and decided to make a change for
the entire zoning jurisdiction, rather than a single property owner, because the ordinance
seemed too extreme. She explained the planning commission wanted to change the radius
requirements "to be more consistent with an agency they felt like was better versed in
being able to determine appropriate distances."
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Despite recognizing this amendment, Ohlsen does not suggest the City improperly
amended the ordinance, nor does he claim the amended setback ordinance is somehow
illegal. He simply does not address it. Again, Ohlsen has not met his burden of proof. See
In re Adoption of T.M.M.H., 307 Kan. at 912; Friedman, 296 Kan. at 644.
Third, Ohlsen argues the Board's decision to hold a public hearing, and ultimately
grant the CUP, was unreasonable because APC violated requirements in Section 6.03 of
the City's zoning ordinances by failing to attach with its application "'[a] plan as to the
operation and maintenance of the proposed use . . . .'"
Article 6, Section 6.03 requires the CUP application to include a "drawing or site
plan," as well as "material constituting a record essential to an understanding of the
proposed use and proposed modifications . . . ." This section also states, "A plan as to the
operation and maintenance of the proposed use shall also be submitted."
While Ohlsen may be correct that there is no document in the record titled an
"operation and maintenance plan" or that outlines, in a single document, the operations
and maintenance of APC's proposed use, he does not explain how the omission renders
the Board's decision unreasonable. Although the ordinance requires this plan to be
submitted with a CUP application, the ordinance does not further define the contents of
such a plan. And aside from suggesting APC failed to provide this plan, Ohlsen provides
no guidance on what he believes should have been provided to conform with this section
of the ordinance.
While perhaps minimal, the record shows APC did provide some relevant plans
for maintenance and operations in its application, including a chart that detailed various
standards for compressed gas, and then identified that "[c]ontainer storage areas shall be
accessible to emergency vehicles and personnel," as well as noting that "[a]reas within 10
ft (3 m) of a storage container shall be maintained clear of dry grass and weeds and other
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combustible materials." And unlike Section 6.03, the CUP application itself did not
require the applicant to submit a separate "operation and maintenance" plan; rather, it
simply required a sketch which included a description, boundary lines for the property,
the location of existing structures, drive and improvements on the subject property, and
any affected adjacent properties. We have no argument before us that APC failed to
adhere to these requirements within the application itself.
Given the differing requirements set out by the application form and Article 6,
Section 6.03, along with the plans that were included with the application, we cannot say
Ohlsen has shown approval of the application was arbitrary or so "wide of the mark" that
it is patently unreasonable. Combined Investment Co., 227 Kan. at 28.
In his fourth argument related to city ordinances, Ohlsen contends the Board failed
to make findings of fact for its decision, thereby violating Section 6.05. This section
requires that "[a]ll decisions by the Board of Zoning Appeals shall . . . provide findings of
fact for their decision for either approval or denial." Ohlsen also argues the Kansas
Supreme Court requires the Board to summarize the evidence before stating the factors
leading to its decision. See Golden, 224 Kan. at 597 ("A board . . . granting a specific
zoning change, should enter a written order, summarizing the evidence before it and
stating the factors which it considered in arriving at its determination.").
But as the City argues, other panels of this court have found formal written
findings of fact or orders are not strictly required, despite being "'strongly encouraged.'"
Evans v. City of Emporia, 44 Kan. App. 2d 1066, 1071, 243 P.3d 374 (2010) (quoting
Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. ¶ 11, 218 P.3d
400 [2009]). In Zimmerman, the Kansas Supreme Court reasoned:
"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
9
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." 289
Kan. 926, Syl. ¶ 11.
And in Evans, the court relied on Zimmerman to deny the appellant's contention
that the zoning board did not adequately address concerns: "The Evans argue there were
four areas of concern with the expansion of the substation that were not adequately
addressed by the City. However, the City is not required to make formal findings
concerning the granting of Westar's CUP." Evans, 44 Kan. App. 2d at 1071.
To the extent Ohlsen argues the Board's action was a violation Section 6.05, his
argument is likewise unpersuasive. Although this section requires "findings of fact," the
ordinance does not require these findings be written, and our prior caselaw does not
support the imposition of such a strict requirement. As discussed in Zimmerman, of
primary importance is our ability to view a record of what the governing body considered
in making its decision. We are left in no such quandary here, as we have six single-
spaced pages of minutes, detailing each speaker during the public hearing and the topics
discussed by each, including the concerns of each of the four voting Board members. We
find Ohlsen has not met his burden to show the findings outlined in the minutes were
demonstrably unreasonable.
Ohlsen's remaining procedural arguments involve allegations that the Board
violated 6 of the 11 standards for CUP approval set out in Article 6, Section 6.08. This
ordinance states, in pertinent part:
"No conditional use permit shall be granted unless the Board of Zoning Appeals has
found:
"1. The establishment, maintenance, or operation of the conditional use will not be
detrimental to or endanger the public health, safety, moral, comfort, or general welfare of
the community.
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"2. The conditional use will not be injurious to the use and enjoyment of other property
in the immediate vicinity for the purpose already permitted, nor substantially diminish
and impair property values within the neighborhood.
....
"5. Adequate measures have been or will be taken to provide ingress and egress so
designed as to minimized traffic congestion in the public streets.
....
"7. The use shall not involve any pollution of the air by fly-ash, dust, vapors or other
substance which is harmful to health, animals, vegetation or other property or which can
cause soiling, discomfort, or irritation.
"8. The use shall not involve any malodorous gas or matter, which is discernible on any
adjoining lot or property.
....
"10. The use shall not involve any activity substantially increasing the movement of
traffic on public streets unless procedures are instituted to limit traffic hazards and
congestion."
Under the first standard, Ohlsen renews his argument that the City did not require
a plan for the operation and maintenance of the new facility. He contends that without
this documentation, the Board lacked the information it needed to make proper findings
on this standard, so its uninformed decision to grant the CUP was unreasonable. For the
reasons discussed above, we find Ohlsen's argument unpersuasive.
And, under the second standard, Ohlsen argues that he and multiple other residents
at the meeting told the City how the facility would injure the use and enjoyment of their
properties or diminish their property values. He and other citizens expressed safety
concerns for livestock, smell, water supply and pressure, dust, and aesthetics. According
to Ohlsen, only APC's Vice President of Asset Management, Brian Winkler, believed the
facility would not influence property values. In the meeting minutes, Winkler stated "his
own house is within 300 [feet] of [the current APC] NH3 storage [facility] and that when
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he bought it, he actually had a bit of a bidding war to get it, so he doesn't believe this will
negatively affect property values."
But Ohlsen's arguments improperly suggest we reweigh statements presented at
the hearing. Citing Kansas law that recognized landowners are competent witnesses to
testify on the value of their property and pointing to local landowners who disagreed with
Winkler's opinion, Ohlsen suggests we ignore Winkler's assessment due to bias—that is,
Winkler's corporate motivation to support approval of the CUP. See City of Wichita v.
Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005) ("It is well settled that a landowner
is a competent witness to testify as to the value of his or her property."). But weighing
credibility and deciding facts is the position of the Board—and this court has no authority
to undertake these tasks.
Under the 5th and 10th standards of Section 6.08, Ohlsen argues the City failed to
address the traffic concerns raised by citizens. Although the issues were discussed, he
contends the Board did not remedy the concerns and ignored them. But contrary to his
interpretation, the meeting minutes show the Board did consider traffic concerns and
simply decided the benefits of expansion outweighed the costs. Though many residents
commented on traffic issues, Winkler responded by discussing his communications with
the Kansas Department of Transportation (KDOT). The Board members spoke about
traffic concerns and responded by requiring improvements to Industrial Drive as a
condition of approval. Although Ohlsen does not agree with the Board's conclusion that
the traffic issues were adequately handled, given our presumption of the Board's
reasonableness and this court's inability to determine facts independent of those found by
the Board, Ohlsen's argument under these standards is unpersuasive.
Addressing the seventh standard under Section 6.08, Ohlsen argues multiple
citizens expressed concerns regarding dust, which was not addressed by the Board as a
condition of the CUP. But his brief argument is not persuasive, as he does not explain
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how the City's failure to impose dust conditions violated this standard, which is aimed at
preventing air pollution. The record contains no evidence of the level of dust either
produced by APC's proposed facility or what a "safe" level of dust might be. And,
according to the minutes, APC was already mitigating the dust issue at the time of the
public hearing: "Kevin Berman, [APC] Regional Direction for . . . this area, . . . stated
they just spent $4600 for dust control at their current facility this past week because they
want to keep the dust down too." Because Ohlsen does not support his argument with any
evidence, we presume the consideration by the Board was reasonable.
Finally, under the eighth standard of Section 6.08, Ohlsen briefly argues the Board
failed to consider concerns regarding the smell that would come from the new facility.
But again, Ohlsen offers no evidence the new facility would "involve any malodorous gas
or matter, which is discernible on any adjoining lot or property"—and this is his burden.
See Friedman, 296 Kan. at 644; Supreme Court Rule 6.02(a)(4). Instead, Ohlsen simply
argues his point without pointing to a part of the record that establishes either his claim
that the dust would be harmful or that the involvement of malodorous gas is discernible
for any adjoining property. Cutting against his assertions is the discussion demonstrated
in the minutes, where Safety Director for APC, Curtis Stahel, outlined statistics for APC's
prior year, showing no incidents aside from small vapor leaks due to temperature
variations.
In sum, we find Ohlsen's arguments related to the Board's compliance with its city
ordinances unpersuasive. Although we may consider any procedural errors as part of our
reasonableness analysis, Ohlsen failed to prove, in some instances, that any error
occurred, and in all scenarios, how any such error would cause the Board's decision to
rise to the level of arbitrariness. We continue, then, to examine the reasonableness of the
decision.
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The Board's decision was reasonable under the Golden considerations.
As Ohlsen correctly argues, the Kansas Supreme Court has found that zoning
authorities should largely consider eight factors when deciding whether to approve a
proposed zoning requirement:
"(1) The character of the neighborhood;
"(2) the zoning and uses of properties nearby;
"(3) the suitability of the subject property for the uses to which it has been
restricted;
"(4) the extent to which removal of the restrictions will detrimentally affect
nearby property;
"(5) the length of time the subject property has remained vacant as zoned; and
"(6) the relative gain to the public health, safety, and welfare by the destruction
of the value of plaintiff's property as compared to the hardship imposed upon the
individual landowner[;]
"[(7)] the recommendations of permanent or professional staff[;] and
"[(8)] the conformance of the requested change to the adopted or recognized
master plan being utilized by the city." Golden, 224 Kan. at 598.
Kansas appellate courts have reaffirmed these Golden factors, and "other relevant
factors," when evaluating the reasonableness of a zoning authority's decision. See, e.g.,
143rd Street Investors, 292 Kan. 690, Syl. ¶ 3 ("Zoning authorities should consider the
nonexclusive factors established in [Golden], other relevant factors, and the zoning
authority's own comprehensive plan when acting on an application for rezoning.");
Zimmerman, 289 Kan. at 945-46; Manly v. City of Shawnee, 287 Kan. 63, Syl. ¶ 5, 194
P.3d 1 (2008) ("When considering zoning matters, a governing body should consider the
factors set forth in [Golden]."); McPherson Landfill, Inc. v. Board of Shawnee County
Comm'rs, 274 Kan. 303, Syl. ¶ 3, 49 P.3d 522 (2002).
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In Zimmerman, the Kansas Supreme Court interpreted Golden to conclude judicial
review of zoning determinations is "highly deferential" to the zoning board based on
Golden's sixth factor:
"Rule (6): 'Action is unreasonable when it is so arbitrary that it can be said it was
taken without regard to the benefit or harm involved to the community at large, including
all interested parties, and was so wide of the mark that its unreasonableness lies outside
the realm of fair debate.'" Zimmerman, 289 Kan. at 948 (quoting Combined Investment
Co., 227 Kan. at 28).
As previously noted, the Golden court also advised zoning authorities to "place in
their minutes a written order summarizing the evidence and stating the factors which
were considered in reaching the decision either to deny or grant a requested zoning
change." 224 Kan. 591, Syl. ¶ 4. This is because "[a] mere yes or no vote upon a motion
to grant or deny leaves a reviewing court, be it trial or appellate, in a quandary as to why
or on what basis the board took its action." 224 Kan. at 597. And while reasonableness
remains the standard, that reasonableness is "more readily, more effectively, and more
uniformly applied if zoning bodies will place in their minutes a written order delineating
the evidence and the factors the board considered in arriving at its conclusion." 224 Kan.
at 599.
But even so, later courts held the Golden factors are not mandatory. The
Zimmerman court helpfully explained such factors may not be helpful in cases, such as
this, granting CUPs:
"Indeed, we have held the Golden factors are nonmandatory, even in cases that
are clearly quasi-judicial. As we stated in Board of Johnson County Comm'rs [v. City of
Olathe], 263 Kan. [667,] 677, 952 P.2d 1302 [(1998)]: 'These are suggested factors only.
Other factors may be important in an individual case.' See also Landau, 244 Kan. at 262
(Golden factors are suggestions). We observe that even when concerning a conditional
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use permit on a single tract of land, i.e., clearly a quasi-judicial action, the Court of
Appeals has essentially examined only aesthetics as a factor. See Gump Rev. Trust v. City
of Wichita, 35 Kan. App. 2d 501, Syl. ¶¶ 3, 5, 131 P.3d 1268 (2006). Aesthetics
obviously is not even a Golden factor; at least in the 'individual case' of Gump, aesthetics
was therefore regarded as 'more important' than Golden's factors. Gump, 35 Kan. App. 2d
at 509-12; see Board of Johnson County Comm'rs, 263 Kan. at 677." Zimmerman, 289
Kan. at 950-51.
As discussed, here the Board did not issue a written order summarizing the
evidence and specifying which Golden factors it considered when it granted APC's
application. But even if the Board did not strictly apply the Golden factors, our standard
of review requires Ohlsen to show the Board's decision to grant the CUP was
unreasonable because "it is so arbitrary that it can be said it was taken without regard to
the benefit or harm involved to the community at large, including all interested parties,
and was so wide of the mark that its unreasonableness lies outside the realm of fair
debate." Combined Investment Co., 227 Kan. at 28. And, as we have noted above, the
minutes of the Board's public meeting involve considerably more information on the
Board's decision than a simple "yes or no" vote.
Neither party benefits this court with detailed arguments on reasonableness. Most
of Ohlsen's argument challenges the Board's procedure, then complains that the Board
failed to apply, and articulate in a written order, which Golden factors it considered.
Ohlsen primarily argues the Board "failed to weigh the evidence that the Ordinances
require them to weigh" and it did not attempt to balance the various equities presented by
citizens at the hearing. Briefly outlining the Golden factors, Ohlsen claims the Board did
not consider the zoning and uses of the properties nearby, it did not consider the
economic use of the property under the existing zoning, and it did not consider the length
of time the property had not been vacant as zoned: "This level of disregard for the law
and the concerns of the city's residents is grossly unreasonable."
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In response, the City simply argues the Golden factors are not determinative, and
even if they were, by his own admission, Ohlsen acknowledged in his district court trial
testimony that sufficient evidence was presented at the public hearing to address the
Golden factors—a claim Ohlsen denies.
On our review of Ohlsen's trial testimony, we are not so sure he admitted to facts
contrary to his argument on appeal, but we also find it unnecessary to scrutinize his
testimony to decide as much. Regardless, Ohlsen has still not shown the Board's decision
was unreasonable.
As noted, Ohlsen argues the Board's action was unreasonable because it did not
adequately address multiple issues raised by citizens. But despite the Board's failure to
comply with Golden's suggestion on written findings, the minutes of the public meeting
shows the Board listened to the citizens' concerns, which were largely addressed by APC
employees and officers, before making its decision to grant the CUP.
Ohlsen points to a few Golden factors, seemingly to suggest those factors should
weigh against granting the CUP. As he argues, APC's application admitted the property
"is currently farmland, which is the intended purpose for which it is currently zoned."
Based on this, he argues that "[t]he fact [the property] is currently being used for its
intended purpose was never even discussed at the public hearing, let alone considered as
it should have been."
But if Ohlsen wanted the Board to consider this factor, he should have raised this
issue at the hearing, yet he did not. And his reliance on this factor seems misguided. Of
course, the CUP is not what the original zoning intended—the permit seeks a conditional
use, which by definition is different than the assigned zoning. And Ohlsen does not
explain why this factor should have been considered, and then weighed against, the
granting of the CUP. He simply argues the Board was unreasonable for not doing so,
17
which is not persuasive. See In re Adoption of T.M.M.H., 307 Kan. at 912; Friedman, 296
Kan. at 644. And, contrary to his argument, one Board member seems to have considered
that, although agricultural use was the original zoning of the land, APC's proposal would
likewise advance agriculture, which is the "lifeblood" of the area and "brings in people
and families and benefits the community as a whole."
Similarly, Ohlsen complains the Board did not consider the length of time the
subject property had remained occupied. True, APC admitted the property was not vacant
at the time of their application. But again, Ohlsen does not explain why he failed to raise
this issue to the Board, or why it was unreasonable for the Board not to consider it. See In
re Adoption of T.M.M.H., 307 Kan. at 912; Friedman, 296 Kan. at 644. As repeatedly
noted, zoning boards are not required to consider the Golden factors, and some may not
always be applicable to certain types of zoning issues. See Zimmerman, 289 Kan. at 950-
51.
In his final argument for unreasonableness, Ohlsen generally claims the Board
failed to weigh the citizens' "concerns about the public health, safety, and welfare."
Ohlsen says he "can find no section in the minutes from the June 8, 2022, public hearing
that compare[s] these 'gains' to the hardship that they will impose on any of its residents,
whether in attendance at the meeting or not."
But our review of the minutes concludes otherwise. According to the record,
which included details down to the time each person made his or her comments, the
public hearing began with the Board hearing nearly 45 minutes of citizen concerns. At
the conclusion of public comments, various representatives from APC addressed many of
the issues raised during the public comments and entertained questions. Stahel, who acts
as the Safety Director for APC, specifically addressed safety, like the presence of
anhydrous ammonia gas, water and gas setback requirements, and general regulations. He
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also stated that transportation, not the facility or property itself "is [the] most likely
situation for accident or injury."
Kevin Bergman, a regional director for APC, then addressed concerns regarding
water use, traffic, and dust mitigation. According to Bergman, APC had a plan for traffic
related to water trucks, as well as a plan for capturing storm surge water. Bergman also
said APC had already began mitigating for dust.
Winkler also addressed traffic concerns. He said APC was in contact with the
KDOT and a KDOT supervisor determined no turn lanes were required on the adjacent
highway because there was not currently enough traffic to support the need. Winkler also
stated that "the long-term plan for the city showed the proposed site within an area
designated for industrial use." And again, in response to economic concerns about
neighboring property values, Winkler noted he entered a bidding war to purchase his own
home that was currently within 300 feet of the local NH3 storage, "so he doesn't believe
this will negatively affect property values."
A few citizens had more questions in response to the comments by APC's
employees, and it appears from the minutes that APC responded to each of the comments.
For example, Wes Spohr, the president and chief executive officer of APC, said the new
location would have 25-30 employees, in direct response to a question from the public.
And when Ohlsen asked what might eventually happen to the east of the new facility, one
Board member stated that "the Seneca West Master Plan showed the area intended for
industrial use," and another Board member responded, "Industrial Drive was called
Industrial Drive for a reason."
At the conclusion of the public comment period, the minutes show the Board
considered the salient issues before reaching a conclusion. "Bruce Hermesch [a Board
member] stated he has wrestled with all the questions but supports the project." Notably,
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Hermesch "stated agriculture is the lifeblood of the area" and determined the traffic
concern was something that could be managed. Important here, Hermesch "concluded by
stating you don't choke business expansion because you don't want to deal with traffic."
Another Board member, Galen Niehues, started by stating "traffic is a big concern
anywhere and that the McDonald's corner is bad now too." And after asking Haverkamp
about utility issues, Niehues "summarized that [the] main concerns that he has heard are
safety and property values." But despite these concerns, Niehues said he was on "the
planning commission in 1994 when a plan was formed to address future growth," and
believed "the proposed use allows for conformity because it fits within the Seneca West
Master Plan, which showed the area as industrial use." After discussions with the city
attorney regarding including conditions in the permit, Niehues stated that he "wanted no
hasty decisions and noted possible conditions could be Industrial Drive improvements,
screening, and annexation."
Through the public comment, citizens expressed concerns regarding the visibility
of APC's operations and how vegetation could be used to "screen" the business from
public view. Board member Jim Reitz suggested adding trees to provide screening.
Ultimately, Hermesch moved to approve the CUP with three conditions: (1) APC "pays
for the upgrade of Industrial Drive"; (2) that "[APC], [the] Ohlsens, and the [Board] come
to an agreement on [vegetation] screening"; and (3) that APC "agrees to the annexation of
the property if they hook onto the city's sewer system." The motion was seconded, but
Haverkamp stated she had concerns about the second condition because it would leave
open further negotiations amongst private parties. Haverkamp stated the Board "has the
final decision on the matter and suggested they decide what they wanted to see for
vegetative screening."
After this, "[p]ossible distances between trees was discussed, as was garnering
help from the K-State extension service." And Hermesch amended his original motion to
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change the second condition to read: "2) The applicant be required to submit a vegetative
screening plan within 60 days for approval by [the Board]." The amended motion was
seconded, discussion ceased, and the Board voted. Four members voted to grant the CUP,
including Niehues, and two abstained due to their current or prior employment by APC.
Again, we must presume the zoning authority acted reasonably based on the facts
presented to it. Combined Investment Co., 227 Kan. at 28. We may find the Board's
action unreasonable only "when it is so arbitrary that it can be said it was taken without
regard to the benefit or harm involved to the community at large" and "was so wide of the
mark that its unreasonableness lies outside the realm of fair debate." 227 Kan. at 28.
This is a high standard to reach, and Ohlsen has simply failed to convince us of
this level of arbitrariness in the Board's decision. A review of the minutes shows the
Board considered both the citizens' and APC's views of the issues raised at the hearing.
Despite a lack of written findings, the minutes show members of the Board considered
the concerns of the public against the gains of approving the CUP. Based on the
information provided at the hearing, it was not clearly unreasonable for the Board to
grant the CUP when there was no evidence—but solely argument—presented to the
Board to support citizens' concerns of safety, traffic, and property values. While Ohlsen
may not like, or agree, with the information APC's representatives presented during the
public hearing, APC's responses to the public's concerns cut against Ohlsen's arguments,
and he provides no evidence to the contrary. Ohlsen has not shown the Board's action of
granting the CUP rose to the level of being so arbitrary that it was taken without regard to
the community's concerns and its unreasonableness is without debate. See 227 Kan. at 28.
Affirmed.
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