Ternes v. Board of Sumner County Comm'rs

NOT DESIGNATED FOR PUBLICATION
No. 119,073
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MARTIN TERNES, et al.,
Appellees/Cross-appellants,
v.
BOARD OF COUNTY COMMISSIONERS
OF SUMNER COUNTY, KANSAS,
Appellant/Cross-appellee.
MEMORANDUM OPINION
Appeal from Sumner District Court; WILLIAM R. MOTT, judge. Opinion filed June 12, 2020.
Affirmed in part, reversed in part, and remanded with directions.
David G. Seely and T. Chet Compton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita,
for appellant/cross-appellee.
Jerry D. Hawkins and Stephen H. Netherton, of Hite, Fanning & Honeyman L.L.P., of Wichita,
for appellees/cross-appellants.
Before BUSER, P.J., GREEN and MALONE, JJ.
BUSER, J.: This appeal and cross-appeal arise from Invenergy, LLC's (Invenergy)
applications for a zoning change and conditional use permit to allow the construction and
operation of the Argyle Creek Wind Project in Sumner County. After a planning
commission recommended denying Invenergy's applications, the Sumner County Board
of County Commissioners (Board) voted to approve both applications. Plaintiffs, who
include several Sumner County landowners, challenged the Board's decisions in district
court. The district court struck the zoning change and conditional use permit, finding the
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zoning change was unreasonable and the Board lacked jurisdiction to approve the
conditional use permit.
On appeal, the Board first contends the district court erred by striking the
conditional use permit because the Board could approve the permit against the planning
commission's recommendation. The Board next argues the zoning change was reasonable
even though the evidence presented at the hearings supported only a wind energy project
and no other permitted use in an Agricultural Commercial District. Plaintiffs cross-appeal
arguing that imperfect notice on the applications rendered the Board's zoning decisions
invalid.
Upon review, we hold that the district court erred by striking the zoning change
and conditional use permit. Contrary to the district court's findings, the Board could
approve the conditional use permit despite the planning commission's recommendation to
deny the permit, and the zoning change was reasonable. We also find the district court
did not err by ruling that imperfect notice by Sumner County did not render the zoning
decisions invalid. Accordingly, we affirm in part, reverse in part, and remand with
directions to uphold the resolutions approving the zoning change and Invenergy's
conditional use permit.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, Invenergy began obtaining lease agreements from Sumner
County landowners in anticipation of developing a wind farm. Under the Sumner County
Zoning Regulations (Zoning Regulations), commercial wind energy projects are allowed
on Agricultural Commercial District property through a conditional use permit. But the
land Invenergy wished to develop was zoned Rural District, which did not permit wind
energy projects. As a result, Invenergy needed to satisfy two requirements to lawfully
operate the wind farm: (1) obtain a zoning change from Rural District to Agricultural
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Commercial District and (2) obtain a conditional use permit to operate a commercial
wind farm.
In 2016, Invenergy filed applications for a zoning change and for a conditional use
permit. The proposed zoning change and conditional use permit impacted about 14,000
acres of land in northern Sumner County. Invenergy planned to include between 60 and
65 commercial wind turbines in the Argyle Creek Wind Project.
Notice of Invenergy's Applications
On November 10, 2016, the County published an official notice in the Belle Plaine
News for Invenergy's zoning change application and conditional use application. The
notice identified the applicant as Invenergy, correctly stated the legal description of the
property, and included a map prominently labeled "Argyle Creek Wind Project." But the
notice incorrectly used the name of a previously approved wind energy project—"Wild
Plains Wind Project"—when describing Invenergy's request for a conditional use permit.
The Wild Plains Wind Project is unrelated to Invenergy's Argyle Creek Wind Project.
The notice explained that a public hearing before the Sumner County Planning
Commission (Planning Commission) would occur on December 7, 2016.
On November 17, 2016, the County mailed certified letters to all persons and
entities owning property within 1,000 feet of the Argyle Creek Wind Project, except for
Jeffery and Brooke Potucek. The letter contained the published notice, a map of the
project's boundary, and notice that Invenergy's applications would be presented to the
Planning Commission on December 7, 2016. The notice in this letter also incorrectly
used the name "Wild Plains Wind Project" when describing Invenergy's request for a
conditional use permit. But again, the map was labeled "Argyle Creek Wind Project" and
the legal description correctly described the proposed project's boundaries.
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Before the Planning Commission's December 7, 2016 meeting, the County
discovered the error in the published notice and the certified letters. The County
determined the error did not require republication or continuing the Planning
Commission's meeting to a later date. However, on December 1, 2016, the County mailed
another certified letter to landowners owning property within 1,000 feet of the project.
Once again, the County failed to address a letter to Jeffery and Brooke Potucek. The
newly mailed letter contained a revised official notice with the project name corrected to
"Argyle Creek Wind Project."
Sumner County never published a corrected notice in the Belle Plaine News. The
only notice mailed 20 days before the Planning Commission's meeting contained the
incorrect name of "Wild Plains Wind Project" when describing the requested conditional
use permit.
The Planning Commission's Public Hearing
On December 7, 2016, the Planning Commission met and held a public hearing on
Invenergy's applications for a zoning change and a conditional use permit. The Planning
Commission first considered Invenergy's zoning change application. An Invenergy
representative explained that the company wished to construct a commercial wind project
and gave a presentation. Thirteen citizens commented on Invenergy's zoning change
application. Many citizens spoke against the zoning change application, raising concerns
about health issues, diminished property values, noise problems, and undesirable scenery.
Invenergy representatives addressed some of the public's concerns.
After hearing the comments, the Planning Commission voted to recommend
denying the zoning change application by a vote of five to three. The members who voted
to recommend denial reasoned that the area contained too many current and future
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residential properties, the zoning change would adversely affect surrounding land use,
and the change did not follow the comprehensive plan.
The Planning Commission next considered Invenergy's conditional use
application. Again, Invenergy representatives and public citizens commented on this
application. The Planning Commission then voted to recommend denying the conditional
use application by a vote of five to three. During the public hearing, County staff
announced that the Board would make a final decision on December 27, 2016. The
Planning Commission submitted a written report of its findings to the Board.
On December 21, 2016, Sumner County mailed Jeffery and Brooke Potucek a
letter about Invenergy's applications and informed them of the Board's meeting scheduled
for December 27, 2016. That same day, Invenergy amended its applications by revising
the project's boundaries. The revised boundaries eliminated about 700 acres of the project
to address concerns over the project's proximity to an area with higher housing density.
As a result of the reduced footprint, the land belonging to the Potuceks—along with
several other individuals—was no longer within 1,000 feet of the project boundary.
The Board's Hearing
On December 27, 2016, the Board met to consider Invenergy's applications. The
Board first took up Invenergy's zoning change application, which sought the zoning
change from Rural District to Agricultural Commercial District. After Invenergy
representatives spoke, 29 citizens commented on the zoning change application. While
most of the citizens spoke in opposition, some spoke in favor of the application. The
Board voted two to one to approve the zoning change application containing the reduced
footprint.
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The Board next considered Invenergy's application for a conditional use permit.
Jerry Hawkins, an attorney who represented some landowners at the time, argued the
conditional use issue was in the Planning Commission's exclusive jurisdiction. Hawkins
recited a portion of the Zoning Regulations at issue in this appeal and argued that the
Planning Commission needed to approve the conditional use application before the Board
could grant the permit. Nine citizens then commented on the conditional use application.
After Invenergy representatives responded to the citizens' concerns, the Board approved
the conditional use permit by a vote of two to one.
The District Court Strikes the Zoning Change and Conditional Use Permit
Plaintiffs challenged the Board's decisions under K.S.A. 12-760 by filing an action
in the district court. In their petition, Plaintiffs argued: (1) the Board lacked jurisdiction
to grant the conditional use permit; (2) the Board's decision to grant Invenergy's
applications was unreasonable; (3) the published and mailed notices of the Planning
Commission's public hearing were defective; and (4) the County failed to provide due
process to Plaintiffs.
After the parties filed cross-motions for summary judgment, the district court
granted Plaintiffs' motion to bifurcate the reasonableness issue from the other issues. As a
result, the district court deferred addressing whether the Board's approval of Invenergy's
applications was reasonable until it decided the other issues.
The district court first granted Plaintiffs' motion for summary judgment on
Invenergy's conditional use permit and determined the permit was void. In this ruling, the
district court found that the Zoning Regulations require both a positive recommendation
from the Planning Commission and approval by the Board before a conditional use
permit for a wind farm may be issued. Because the Planning Commission recommended
against the conditional use permit, the district court determined the Board lacked
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jurisdiction to approve the permit. However, the district court ruled that no notice defects
or due process concerns rendered the zoning change invalid on procedural grounds.
Accordingly, the district court ordered a hearing on the bifurcated question of whether the
Board's approval of the zoning change was reasonable.
After hearing the parties' arguments on the reasonableness of the zoning change,
the district court granted Plaintiffs' motion for summary judgment and struck the
resolution approving the zoning change. In this ruling, the district court found that the
zoning change was unreasonable because no evidence was presented which supported
any permissible Agricultural Commercial District use other than a wind energy project.
The Board appeals and Plaintiffs cross-appeal.
BOARD'S APPROVAL OF THE CONDITIONAL USE PERMIT AGAINST THE PLANNING
COMMISSION'S RECOMMENDATION
The Board first contends the district court erred by finding the Zoning Regulations
required approval from both the Planning Commission and the Board to grant Invenergy's
conditional use permit. The Board argues that the Planning Commission issues only
recommendations, and the Board retains the ultimate authority to approve a conditional
use permit. The Board suggests a contrary interpretation requiring approval of both
bodies would violate state law and be unenforceable.
Because the material facts are uncontroverted, we review the district court's
summary judgment order de novo. Wagner Interior Supply of Wichita, Inc. v. Dynamic
Drywall, Inc., 305 Kan. 828, 831, 389 P.3d 205 (2017). Similarly, the interpretation of
statutes and ordinances presents questions of law subject to unlimited review. State ex
rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).
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The district court found that Article VII, Section 3, Paragraph 12 of the Zoning
Regulations required a positive recommendation from the Planning Commission before
Invenergy's conditional use permit could be granted. Article VII of the Zoning
Regulations establishes the Agricultural Commercial District zoning designation. Section
3 of Article VII contains the uses allowed in areas zoned as an Agricultural Commercial
District. And paragraph 12 of Section 3 lists certain uses—such as wind energy
projects—permitted in an Agricultural Commercial District if a conditional use permit is
obtained. Specifically, Article VII, Section 3, Paragraph 12 provides:
"The following uses may be allowed by conditional use permit when submitted,
reviewed, and approved by the Planning Commission and Governing Body and subject to
conditions as the Commission and Governing Body may impose:
....
"e. Solar or Wind Energy Projects . . . ."
Plaintiffs reason that, under the plain language of Article VII, Section 3, Paragraph
12, a conditional use permit requires approval by the Planning Commission and the
Board as the governing body. The Board responds that, when the Zoning Regulations are
read as a whole, conditional use permits do not require approval by the Planning
Commission.
Our court applies the same rules to interpreting a municipal ordinance as we
would when interpreting a statute. Robinson v. City of Wichita Employees' Retirement Bd.
of Trustees, 291 Kan. 266, 272, 241 P.3d 15 (2010). The most fundamental rule of
statutory construction is that the intent of the Legislature governs if that intent can be
determined. State ex rel. Schmidt, 303 Kan. at 659. An appellate court must first attempt
to ascertain legislative intent through the statutory language enacted, giving common
words their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135(2016). When a statute is plain and unambiguous, we do not speculate about the
8
legislative intent behind that clear language, and we refrain from reading something into
the statute not readily found in its words. 304 Kan. at 409.
Even when various statutory provisions are unambiguous, we consider various
provisions of an act in pari materia with a view towards reconciling and bringing the
provisions into workable harmony if possible. Neighbor v. Westar Energy, Inc., 301 Kan.
916, 919, 349 P.3d 469 (2015). We also construe statutes to avoid unreasonable or absurd
results and presume the Legislature does not intend to enact meaningless legislation. In re
Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014).
Utilizing these rules of construction, we begin by considering the language and
overall design of the Zoning Regulations to interpret the meaning of Article VII, Section
3, Paragraph 12. See Miller v. Board of Wabaunsee County Comm'rs, 305 Kan. 1056,
1064, 390 P.3d 504 (2017).
Zoning Regulations Governing Conditional Use Permits
The Zoning Regulations define a conditional use permit as "[t]he documentable
evidence of authority granted by the Governing Body to locate a Conditional Use at a
particular location." Article XXX of the Zoning Regulations governs conditional uses.
Article XXX, Section 1 begins by recognizing that certain conditional uses are
"enumerated in the use regulations of the various zones" and may be permitted in any
district where the conditional uses are listed. This section then establishes the procedure
for approving a conditional use.
Article XXX, Section 1 first provides that an applicant must submit site plans and
a statement of the proposed use to the Planning Commission. The Planning Commission
must then hold a public hearing, review the applicant's site plans and statement, and
submit a recommendation to the Board. After receiving the Planning Commission's
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recommendation, the Board may permit the use to occur where requested. The Board
may also impose reasonable restrictions on the approval of a conditional use permit.
As contemplated by Article XXX, Section 1, many of Sumner County's zoning
classifications allow certain uses if a conditional use permit is obtained. Each time a
zoning classification allows conditional uses, the regulations use similar language: "The
following uses [of land] may be allowed in this district by conditional use permits when
submitted, reviewed, and approved by the Planning Commission and Governing Body."
This phrase tracts the language at issue in Article VII, Section 3, Paragraph 12.
The Zoning Regulations Do Not Require Planning Commission Approval Before
Granting a Conditional Use Permit
When read in isolation, Plaintiffs are correct that Article VII, Section 3, Paragraph
12 seemingly requires that a conditional use permit be approved by the Planning
Commission and the Board. But when the Zoning Regulations' conditional use provisions
are considered together, the phrase "submitted, reviewed, and approved by the Planning
Commission and Governing Body" refers to the process outlined in Article XXX, Section
1 where an applicant submits plans, the Planning Commission reviews the plans, and the
governing body approves the conditional use permit. Under this process, approval by the
Planning Commission is not required to obtain a conditional use permit.
Section 1 of Article XXX—the article governing conditional uses—details the
procedure to obtain a conditional use permit to operate those conditional uses allowed in
various zonings districts. Under this procedure, the Planning Commission submits a
recommendation and the Board has sole authority to approve a conditional use permit.
The literal language in Article VII, Section 3, Paragraph 12 conflicts with this procedure
by also requiring approval by the Planning Commission.
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Plaintiffs' interpretation could have merit if the phrase "submitted, reviewed, and
approved by the Planning Commission and Governing Body" were used to describe the
permitted conditional uses in only Agricultural Commercial Districts or a few zoning
classifications. But since the Zoning Regulations use this language in every zoning
classification, reading the language literally would render the procedure in Article XXX,
Section 1 to obtain a conditional use permit meaningless. It is the duty of our court, as far
as practicable, to reconcile these provisions to make them consistent, harmonious, and
sensible. Herrell v. National Beef Packing Co., 292 Kan. 730, 745, 259 P.3d 663 (2011).
Requiring Article XXX, Section 1's procedure for conditional use permits where
the Planning Commission is tasked with an advisory function in submitting
recommendations to the Board best harmonizes the regulations' language and operation in
a way that effectuates the drafters' intent. "'It is a cardinal rule of law that statutes
complete in themselves, relating to a specific thing, take precedence over . . . other
statutes which deal only incidentally with the same question.'" In re Tax Exemption
Application of Mental Health Ass'n of Heartland, 289 Kan. 1209, 1215, 221 P.3d 580(2009) (quoting Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 432, 601 P.2d 1100[1979]).
As a result, the detailed procedure to obtain a conditional use permit established in
the article governing conditional use permits controls over the phrase "submitted,
reviewed, and approved by the Planning Commission and Governing Body" used
incidentally in the article on Agricultural Commercial Districts. Additionally, the
definition of a conditional use permit recognizes only that the Board grants a conditional
use.
The language at issue in Article VII, Section 3, Paragraph 12 also supports that it
is a placeholder for the procedure in Article XXX, Section 1. A literal reading of Article
VII, Section 3, Paragraph 12 produces an absurd result because conditional use permits
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would need to be "submitted . . . by" the Planning Commission and Board to themselves
for their review. Rather than force this nonsensical result, a more reasonable
interpretation is that this language incorporates the detailed Article XXX procedure as the
terms used in Article VII, Section 3, Paragraph 12 track those used in Article XXX. The
Article XXX procedure provides that the applicant submits plans, the Planning
Commission reviews the plans, and the governing body approves the plans.
Plaintiffs argue that the language requiring Planning Commission and Board
approval controls under the County's rules of interpretation. The Zoning Regulations
contain specific rules for interpreting its provisions. Article IV, Section 1, Paragraph 2
provides:
"Overlapping or Contradictory Regulations. Where the conditions imposed by the
provisions of these Regulations upon the use of land or structures are either more
restrictive or less restrictive than comparable conditions imposed by any other provision
of any other applicable law, ordinance, resolution, rule, or regulation of any kind, the
regulations which are more restrictive and impose higher standards or requirements shall
govern."
Relying on this provision, Plaintiffs claim the more restrictive language in Article
VII, Section 3, Paragraph 12 governs over the Article XXX procedure requiring only the
Board's approval. But Plaintiffs fail to appreciate that this rule of interpretation applies
only to "conditions imposed . . . upon the use of land or structures." Because the issue on
appeal involves procedural provisions—not conditions on land use—Article IV, Section
1, Paragraph 2 does not apply. Additionally, this provision does not apply to internal
conflicts within the Zoning Regulations. Instead, the rule is used when comparing the
Zoning Regulations' conditions to the provisions of "any other applicable law, ordinance,
resolution, rule, or regulation of any kind." (Emphasis added.)
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Plaintiffs also contend the Zoning Regulations do not suggest that the Planning
Commission provides only an advisory function when considering conditional use
permits. But contrary to Plaintiffs' argument, Article XXX, Section 1 limits the Planning
Commission's function to making a "recommendation to the Governing Body" and gives
the Board the authority to grant a conditional use permit. Moreover, as we next explain,
the Planning Commission is considered an advisor to the Board on zoning matters.
The Zoning Regulations were adopted in accordance with the Sumner County
Comprehensive Plan. The Comprehensive Plan outlines the Planning Commission's
functions in areas of land use and commercial/industrial development. When discussing
land use, the Comprehensive Plan states:
"Continuing implementation of the land use plan will be dependent upon proper
administration of zoning and subdivision regulations . . . . In this sense, the Planning
Commission acting in its official capacity as advisor to the governing body can play an
especially important role in maintenance of a quality living environment." (Emphasis
added.)
And the Comprehensive Plan also notes the Planning Commission's function as an
advisor on zoning matters in commercial/industrial development:
"Within [its] role as technical adviser to the Governing Body, the Planning Commission
should continue to play a pivotal role in the process of delineation and direction of
emerging patterns of commercial and industrial development through application of the
adopted guidelines and policies in concert with zoning and subdivision regulations."
(Emphasis added.)
Adding to our interpretive analysis, we recognize that the Zoning Regulations
would violate Kansas law if they required Planning Commission approval for conditional
use permits. In this regard, we presume the drafters acted with full knowledge of Kansas
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law when implementing the Zoning Regulations. Ed DeWitte Ins. Agency v. Financial
Assocs. Midwest, 308 Kan. 1065, 1071, 427 P.3d 25 (2018). As a result, we also presume
the drafters intended the Zoning Regulations to be effective and not in violation of
Kansas law. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421,
424, 845 P.2d 57 (1993) (noting that a municipal ordinance "is entitled to a presumption
of validity and should not be stricken unless its infringement upon a statute is clear
beyond substantial doubt").
A municipality has no inherent power to enact zoning laws. Instead, a
municipality's zoning power is derived solely from the grant in zoning statutes. 143rd
Street Investors v. Board of Johnson County Comm'rs, 292 Kan. 690, 707, 259 P.3d 644(2011). Along with the zoning laws in K.S.A. 12-741 et seq., municipalities may enact
and enforce additional zoning regulations which do not conflict with those statutes.
K.S.A. 12-741(a). But a county's power to change the zoning of property—which
includes issuing conditional use permits—may be exercised only in conformity with the
statutes that authorize zoning. Zimmerman v. Board of Wabaunsee County Comm'rs, 289
Kan. 926, 939, 218 P.3d 400 (2009). A county's failure to follow the zoning procedures
in state law renders its action invalid. 289 Kan. at 939.
Under K.S.A. 12-755(a)(5), a county's governing body may adopt zoning
regulations that provide for issuing conditional use permits. But K.S.A. 2019 Supp. 12-
757 demands certain notice and hearing requirements for amending zoning regulations.
Although the statute does not explicitly mention conditional use permits, Kansas courts
have consistently found that the procedures in K.S.A. 2019 Supp. 12-757 apply to
conditional use and special use permits. See Manly v. City of Shawnee, 287 Kan. 63, 67,
194 P.3d 1 (2008); Rural Water District No. 2 v. Board of Miami County Comm'rs, No.
105,632, 2012 WL 309165, at *4-7 (Kan. App. 2012) (unpublished opinion).
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K.S.A. 2019 Supp. 12-757(b) provides that proposed zoning amendments must be
"submitted to the planning commission for recommendation." The planning commission
must hold a public hearing on proposed zoning amendments and create a written
summary of the proceedings. K.S.A. 2019 Supp. 12-757(b). After receiving the planning
commission's recommendation, the county's governing body may approve the zoning
amendment regardless of the planning commission's recommendation. The governing
body may adopt the recommendation by resolution, override the planning commission's
recommendation by a two-thirds majority vote, or return the recommendation to the
planning commission. K.S.A. 2019 Supp. 12-757(d).
Under K.S.A. 2019 Supp. 12-757, the planning commission fulfills only an
advisory function. Manly, 287 Kan. at 70-71. The planning commission's authority is
limited to studying facts and submitting recommendations to the governing body which
takes final action. Houston v. Board of City Commissioners, 218 Kan. 323, 330, 543 P.2d
1010 (1975). To assign the planning commission with the ultimate authority to deny a
zoning amendment would impermissibly shift the County's governance from the elected
Board to an appointed advisory commission. See Manly, 287 Kan. at 71. The Kansas
Legislature did not intend "for the tail to wag the dog, i.e., an advisory body should not
have the authority to trump the decision of the governing body that appointed it." 287
Kan. at 71.
If the Zoning Regulations were interpreted to require Planning Commission
approval for conditional use permits, then the regulations would conflict with state law
and be invalid. "'The primary method for determining whether an ordinance or resolution
of a county is inconsistent with a state statute is to see whether the local law prohibits
what the state law permits or the state law prohibits what the local law permits.'" David v.
Board of Norton County Comm'rs, 277 Kan. 753, 757, 89 P.3d 893 (2004). Requiring
Planning Commission approval prohibits the Board from overriding the Planning
Commission's recommendation as permitted in K.S.A. 2019 Supp. 12-757. Thus, when
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considering the Zoning Regulations' possible meanings, we presume the drafters did not
intend to violate Kansas law by requiring Planning Commission approval for conditional
use permits.
In sum, when reading the Zoning Regulations together, the most harmonious and
sensible interpretation is that the detailed process in Article XXX, Section 1—where only
approval by the Board is needed—governs the procedure to obtain conditional use
permits. And the phrase "submitted, reviewed, and approved by the Planning
Commission and Governing Body" as used in various zoning classifications refers to this
process where an applicant submits plans, the Planning Commission reviews the plans,
and the Board approves the conditional use permit. Under this procedure, the Board may
grant a conditional use permit even if the Planning Commission recommends against
approval.
In summary, we hold that Invenergy's conditional use permit is valid despite the
Planning Commission's recommendation against approval. The district court erred by
finding the Planning Commission's negative recommendation rendered Invenergy's
conditional use permit invalid.
REASONABLENESS OF THE BOARD'S DECISION TO APPROVE THE ZONING CHANGE
The Board next contends the district court erred by invalidating the zoning change
from Rural District to Agricultural Commercial District. The Board argues that the
zoning change was reasonable because it considered the perceived harms and benefits of
a wind energy project—a use allowed in an Agricultural Commercial District.
This issue also involves Article VII of the Zoning Regulations, which governs
Agricultural Commercial Districts. Section 3 of Article VII contains 12 numbered
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paragraphs specifying the permitted uses in Agricultural Commercial Districts. These
enumerated uses are:
1. "All uses permitted in the [Rural District]";
2. "Roadside stands for sale of agricultural products by an operator other than the
producer of the agricultural product";
3. "Livestock sale barns";
4. "Grain elevators and storage bins, including the sale of related items, such as
seed, feed, fertilizer, and insecticides";
5. "Campgrounds on a minimum of five (5) acres";
6. "Drive-in theaters";
7. "Feed manufacturers, such as alfalfa products";
8. "Fertilizer plants";
9. "Fraternal and/or service clubs";
10. "Hunting clubs and shooting preserves";
11. "Private clubs"; and
12. Certain uses that may be allowed by conditional use permit, which includes
wind energy projects.
After the district court determined Invenergy's conditional use permit was invalid,
it next considered whether the zoning change was reasonable. The district court found
that "[t]he only Golden factor evidence and information presented at the hearings
concerned the wind farm." And the district court noted that the Board approved the
zoning change without considering any evidence for a permissible use which did not
require a conditional use permit. The district court then struck the zoning change, finding:
"The [Board] asks this court to hold that consideration of Golden factor evidence
for one use—wind farms—is sufficient. The problem with this is that it eviscerates the
first step in the process—the zone change—as a discrete step in the regulations clearly
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aimed at the broader implications that come with any zone change, beyond that which
come with any individual use. Since no evidence was presented supporting any of the
permitted uses under Article VII, Section 3, ¶¶ 1-11, the Board's zone change which now
permits those uses is unreasonable."
Under K.S.A. 12-760, a district court reviews a governing body's zoning decision
to determine the reasonableness of that decision. The reasonableness of a governing
body's decision implicates fact and policy determinations that are not the province of the
courts. Leffel v. City of Mission Hills, 47 Kan. App. 2d 8, 14, 270 P.3d 1 (2011). Our
Supreme Court concisely stated the standards when reviewing the reasonableness of
zoning decisions in Zimmerman, 289 Kan. at 944-45 (quoting Combined Investment Co. v
Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 [1980]):
"'(1) The local zoning authority, and not the court, has the right to prescribe,
change or refuse to change, zoning.
"'(2) The district court's power is limited to determining
'(a) the lawfulness of the action taken, and
'(b) the reasonableness of such action.
"'(3) There is a presumption that the zoning authority acted reasonably.
"'(4) The landowner has the burden of proving unreasonableness by a
preponderance of the evidence.
"'(5) A court may not substitute its judgment for that of the administrative body,
and should not declare the action unreasonable unless clearly compelled to do so by the
evidence.
"'(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.
"'(7) Whether 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.
"'(8) An appellate court must make the same review of the zoning authority's
action as did the district court.'"
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In Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), the
court set forth eight suggested factors which a zoning body should consider when making
a zoning decision. These eight factors—called the Golden factors—also help courts
review whether a zoning authority's final decision was reasonable:
"'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;
"'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 a permanent or professional planning staff; and
"'8. The conformance of the requested change to the city's master or
comprehensive plan.' [Citations omitted.]" Zimmerman, 289 Kan. at 945-46.
Both parties agree on the nature of the evidence presented to the Board on the
zoning change. The Board considered evidence on the benefits and harms of allowing a
wind energy project in the area. And there was no discussion of any other permitted use
allowed in Agricultural Commercial Districts.
Plaintiffs' argument on appeal is that, since the conditional use permit is invalid,
the zoning change was unreasonable because the Board considered no permitted use that
Invenergy could perform in an Agricultural Commercial District. But as discussed in the
previous issue, Invenergy's conditional use permit is valid despite the Planning
Commission's negative recommendation. As a result, contrary to Plaintiffs' arguments,
the Board heard and considered evidence of a permitted use that Invenergy could perform
through its conditional use permit. During oral argument, Plaintiffs acknowledged that
19
their argument about the unreasonableness of the zoning change would fail upon our
finding that the conditional use permit is valid.
While Plaintiffs' argument rests on the validity of the conditional use permit, the
district court also reasoned that the zoning change was unreasonable because the Board
considered only the single use of wind farms without receiving any evidence on the other
uses permitted by Article VII, Section 3. But exercising unlimited review, we find the
zoning change is reasonable even though the Board did not consider the first 11 uses
listed in Article VII, Section 3.
The district court is correct that the zoning change allowed landowners to engage
in any of the permitted Agricultural Commercial District uses—such as fertilizer plants or
drive-in theaters—on the land. And the proponents of the zoning change never discussed
the benefits of the uses recognized in Article VII, Section 3, Paragraphs 1-11. But the
district court identified no rule requiring the Board to consider multiple permitted uses in
a zoning district when considering a zoning change.
Contrary to the district court's reasoning, when considering the reasonableness of a
zoning change, Kansas courts should focus on the anticipated use of the property, not all
the permitted uses. See, e.g., Combined Investment Co., 227 Kan. at 30-31 (analyzing the
harms and benefits of an anticipated quarry use); Arkenberg v. City of Topeka, 197 Kan.
731, 739, 421 P.2d 213 (1966) (finding that the rezoning of property to permit
construction of a high-rise apartment complex for senior citizens was reasonable when
the city considered a "detailed and comprehensive study of the use to be made of the
property").
The Kansas Supreme Court in Golden explained the importance of focusing on the
planned use of property—and not the theoretical uses allowed by the new zoning
classification—when considering a zoning change. 224 Kan. at 600. In Golden the
20
plaintiff sought to rezone his property as planned retail to build a small shopping center
for retail shops. But the planned retail classification also allowed the property to be used
for convenience stores and fast-food shops, which the community opposed. The Golden
court dismissed the public concern noting:
"Such broad classifications are not the fault of the landowner. The protests of
neighborhood residents, voiced at planning commission and council meetings, were for
the most part against the establishment of convenience stores or fast-food shops neither
of which were proposed by the plaintiff. Protests, of course, may be considered; but
protests against uses not proposed are not entitled to great weight." 224 Kan. at 600.
Like the zoning classification in Golden, the broad scope of permitted uses in an
Agricultural Commercial District is not the fault of Invenergy. Invenergy is a wind
energy developer which sought a zoning change to construct a wind energy project. Even
though a wind energy project is a permitted conditional use in an Agricultural
Commercial District, the district court's reasoning would require Invenergy to present
evidence on other permitted uses which will not occur. Like the community opposition in
Golden, any evidence on non-proposed uses allowed by the zoning district would be
entitled to little weight. Moreover, no community opposition was raised against these
other uses allowed by an Agricultural Commercial District. As a result, the zoning
change is reasonable even though the Board considered only the proposed use of a wind
energy project and not the other uses permitted in an Agricultural Commercial District.
We hold the district court erred by ruling that the Board's decision to approve the
zoning change was not reasonable.
21
FAILURE TO MAIL PROPERTY OWNERS WRITTEN NOTICE OF THE PLANNING
COMMISSION'S MEETING
Plaintiffs first cross-appeal the district court's finding that the defective notice to
Jeffery and Brooke Potucek did not render Invenergy's conditional use permit and zoning
change invalid. Plaintiffs suggest the Board's zoning decisions are invalid because the
County failed to satisfy the necessary notice requirements by neglecting to mail the
Potuceks written notice of Invenergy's proposal at least 20 days before the Planning
Commission's hearing. The Board responds that its zoning decisions are valid because the
County substantially complied with the notice requirements of K.S.A. 2019 Supp. 12-
757.
We review the district court's summary judgment order de novo. Peters v. Deseret
Cattle Feeders, 309 Kan. 462, 469, 437 P.3d 976 (2019). And this issue involves
statutory interpretation which presents a question of law subject to unlimited review.
Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
The parties do not dispute the facts material to this issue. On November 17, 2016,
the County mailed certified letters to all persons and entities owning property within
1,000 feet of the proposed boundaries of the Argyle Creek Wind Project, except for the
Potuceks. This notice informed the property owners that the Planning Commission would
hold a meeting on Invenergy's applications on December 7, 2016, at 7:30 p.m.
On December 7, 2016, another landowner informed Mr. Potucek that a wind
project was proposed. Mr. Potucek also received verbal notice of the Planning
Commission's meeting on the proposals scheduled for 7:30 p.m. that evening. Before the
meeting, Mr. Potucek went to the office of the Sumner County Planning, Zoning, and
Environmental Health Department to request information on the Planning Commission's
meeting scheduled later that day. Jon Bristor—the Director of the Planning, Zoning, and
22
Environmental Health Department—provided Mr. Potucek with information about the
Planning Commission's meeting and invited him to attend the meeting. But Mr. Potucek
did not attend the Planning Commission's meeting.
Sometime between December 7, 2016, and December 21, 2016, Mr. Potucek
called the Planning, Zoning, and Environmental Health Department and talked to Bristor.
During this conversation, Bristor informed Mr. Potucek of the Board's meeting scheduled
for December 27, 2016. After this phone conversation, the County mailed the Potuceks a
copy of the certified letter which it previously mailed to the other property owners. And
on December 21, 2016, the County mailed another letter about Invenergy's proposals to
the Potuceks which informed them of the Board's meeting scheduled for December 27,
2016. The Potuceks received the December 21, 2016 letter before the Board's meeting.
As a result, the Potuceks had actual notice of the Board's meeting before the meeting
occurred.
Before the Board's meeting, Invenergy amended its applications to revise the
project's boundaries and reduce the project's footprint. As a result of the reduced
footprint, the Potuceks' property was no longer within 1,000 feet of the project boundary.
That said, Mr. Potucek attended the Board's meeting on December 27, 2016, and spoke
during the public comment portion of the meeting.
Under K.S.A. 2019 Supp. 12-757(b), a planning commission must hold a public
hearing on proposed zoning amendments. When a proposed amendment affects specific
property, "written notice of such proposed amendment shall be mailed at least 20 days
before the hearing . . . to all owners of record of real property located within at least
1,000 feet of the area proposed to be altered." K.S.A. 2019 Supp. 12-757(b). "Proper
notice is mandatory and must be complied with to give the planning commission
authority to recommend action, and the [governing body] jurisdiction to act." Crumbaker
v. Hunt Midwest Mining, Inc., 275 Kan. 872, 886, 69 P.3d 601 (2003).
23
Since there was not strict compliance with statutory notice requirements, we must
determine (1) whether the notice provision in K.S.A. 2019 Supp. 12-757(b) may be
satisfied through substantial compliance and, if so, (2) whether the County substantially
complied with the notice provision.
Notice Under K.S.A. 2019 Supp. 12-757(b) is Satisfied Through Substantial Compliance
Kansas courts have applied the substantial compliance standard to a municipality's
actions during annexation. See, e.g., Stueckemann v. City of Basehor, 301 Kan. 718, 726,
348 P.3d 526 (2015); City of Lenexa v. City of Olathe, 233 Kan. 159, 163-64, 660 P.2d
1368 (1983). The law of annexation is similar to zoning laws. Genesis Health Club, Inc.
v. City of Wichita, 285 Kan. 1021, 1033, 181 P.3d 549 (2008). "[I]t is generally
recognized that substantial compliance with statutory notice provisions will usually be
sufficient." Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337(1988). And nothing within K.S.A. 2019 Supp. 12-757(b) prohibits applying the
substantial compliance doctrine.
Plaintiffs claim the substantial compliance doctrine does not apply because (1)
K.S.A. 2019 Supp. 12-757 does not mention substantial compliance and (2) K.S.A. 2019
Supp. 12-757(b) describes the consequences of noncompliance. Plaintiffs' arguments are
not persuasive.
Citing Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172(1991), Plaintiffs first suggest the substantial compliance standard does not apply because
K.S.A. 2019 Supp. 12-757 does not mention the standard. In Claus, the court determined
that substantial compliance did not apply to the Kansas Judicial Review Act's
requirement that the petitioner serve a copy of the petition to the agency head. See 16
Kan. App. 2d at 13-14. The court reasoned that, unlike the service of process provisions
24
in the Rules of Civil Procedure, the service provisions in K.S.A. 77-615(a) did not
mention substantial compliance. 16 Kan. App. 2d at 13-14.
Contrary to Plaintiffs' arguments, the reasoning in Claus does not apply because
that case involved service of process, while the issue here involves mailed notice of
county action. Kansas courts recognize that substantial compliance applies differently in
service provisions than in notice provisions. See Byrd v. Kansas Dept. of Revenue, 43
Kan. App. 2d 145, 152, 221 P.3d 1168 (2010), aff'd 295 Kan. 900, 287 P.3d 232 (2012).
Unlike service provisions, substantial compliance with statutory notice provisions is
typically sufficient. Barnhart, 243 Kan. at 213. Additionally, unlike the statute in Claus
requiring service on one individual, K.S.A. 2019 Supp. 12-757(b) requires the County to
ascertain and mail notices to all property owners within a certain geographical area. The
greater risk of error provides additional support to treat Claus differently and require only
substantial compliance with the notice requirements in K.S.A. 2019 Supp. 12-757(b).
Plaintiffs next argue the substantial compliance standard does not apply because
K.S.A. 2019 Supp. 12-757(b) describes the consequences of noncompliance. This court
has relied on the lack of a provision describing the consequences of noncompliance as
support for applying substantial compliance. Mendenhall v. Roberts, 17 Kan. App. 2d 34,
43, 831 P.2d 568 (1992).
Plaintiffs allege the following sentence in K.S.A. 2019 Supp. 12-757(b) embodies
the consequences of noncompliance: "When the notice has been properly addressed and
deposited in the mail, failure of a party to receive such notice shall not invalidate any
subsequent action taken by the planning commission or the governing body." But this
language states no consequence of a municipality's failure to mail notice to every
required party. Instead, the language merely provides that the landowner's failure to
receive properly mailed notice does not invalidate later action. As in Mendenhall, the
absence of a provision in K.S.A. 2019 Supp. 12-757 describing the consequences of
25
noncompliance "invites application of the theory of substantial compliance." 17 Kan.
App. 2d at 43. As a result, we find that the notice provision in K.S.A. 2019 Supp. 12-
757(b) may be satisfied with substantial compliance.
The County Substantially Complied with K.S.A. 2019 Supp. 12-757(b)
Substantial compliance requires less than strict compliance and means
"compliance in respect to the essential matters necessary to assure every reasonable
objective of the statute." Sleeth v. Sedan City Hospital, 298 Kan. 853, 865, 317 P.3d 782(2014). Stated another way, substantial compliance is satisfied when one complies with
the spirit and intent of the statute, but not with its absolute terms. A & S Rental Solutions,
Inc. v. Kopet, 31 Kan. App. 2d 979, 982, 76 P.3d 1057 (2003).
The objective of the mailing requirement is to provide surrounding landowners
with notice and the opportunity to be heard on a proposed zoning amendment. The notice
is for the benefit of the neighboring landowners, informing them of the public hearing
where they may voice their opinions on the proposed zoning amendment and discuss
whether the amendment would promote public health, safety, and welfare. The County
complied with the spirit and intent of the mailing requirements in K.S.A. 2019 Supp. 12-
757(b) despite providing late notice to the Potuceks about Invenergy's proposals.
Under similar circumstances, this court has found that a municipality substantially
complied with statutory notice requirements. In Pishny v. Board of Johnson County
Comm'rs, 47 Kan. App. 2d 547, 277 P.3d 1170 (2012), the City of Overland Park failed
to give proper notice of a public hearing on an annexation petition to the owners of an
11.33 percent interest in a certain tract in the area proposed to be annexed. Noting the city
later sent notice of the public hearing and the required materials to the landowners before
the public hearing, this court held "[t]he statutory notice requirement was substantially
complied with." 47 Kan. App. 2d at 580.
26
Another case with similar facts is Hawthorne v. City of Santa Fe, 88 N.M. 123,
124, 537 P.2d 1385 (1975), where the Supreme Court of New Mexico found substantial
compliance with the statutory notice requirements when the city sent rezoning notices to
all property owners within 100 feet of the rezoned property except one—Fred Martinez.
The court reasoned:
"Martinez was fully aware of the proposed zone changes. Obviously, the reason for such
notice is to apprise interested parties of the hearing so that they may attend and state their
views on the proposed zoning amendment, pro or con. It is our view that Martinez,
having had knowledge of the hearing, was properly notified and this constitutes
substantial compliance with the statute in question. The purpose of the statute has been
met and that is all that is required in this instance." 88 N.M. at 124.
As in Pishny, after the County discovered its mistake, it took corrective actions
and mailed the notice to Jeffery and Brooke Potucek. The County mailed the official
notice and another letter informing the Potuceks of the Board's meeting. Although the
County mailed these notices after the Planning Commission's hearing, it informed the
Potuceks of the public hearing before the Board—an additional hearing not required by
K.S.A. 2019 Supp. 12-757. The notices informed the Potuceks of their ability to voice
their opinions on the proposed zoning amendments before the governing body, who has
the authority to grant or deny the proposals. The County satisfied the spirit and intent of
the mailing requirements in K.S.A. 2019 Supp. 12-757(b).
Additionally, as the district court noted, Mr. Potucek received actual notice before
the Planning Commission's meeting and Plaintiffs sustained no prejudice because the
Planning Commission recommended denial of the proposals. Plaintiffs respond that
actual notice and lack of prejudice are not relevant considerations when determining
whether the County substantially complied with the notice provisions.
27
In the context of service, Kansas courts typically find that actual notice by a party
does not affect whether another substantially complied with statutory service
requirements. Myers v. Board of Jackson County Comm'rs, 280 Kan. 869, 874-77, 127
P.3d 319 (2006); Cook v. Cook, 32 Kan. App. 2d 214, 222, 83 P.3d 1243 (2003) ("The
fact that Michael had actual knowledge of the suit and did not suffer prejudice does not
mean there was substantial compliance under K.S.A. 60-204"); but see City of Hoisington
v. $2,044 in U.S. Currency, 27 Kan. App. 2d 825, Syl. ¶ 5, 8 P.3d 58 (2000) (noting that
since the City had actual notice of the claim, service by first class mail substantially
complied with K.S.A. 60-4111.) The underlying rationale in these cases is that substantial
compliance standards do not allow the courts to create new methods of serving process.
Fisher v. DeCarvalho, 298 Kan. 482, 491, 314 P.3d 214 (2013).
Turning to the relevance of prejudice, Kansas courts often treat substantial
compliance separately from prejudice. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677,
682, 840 P.2d 448 (1992). But see Stueckemann, 301 Kan. at 731-32 (noting an
inaccurate legal description did not affect landowners' opportunity or ability to oppose
annexation because landowners voiced opposition at a public hearing). And lack of
prejudice does not amount to substantial compliance. Cook, 32 Kan. App. 2d at 222. For
example, in Carson v. McDowell, 203 Kan. 40, 43, 452 P.2d 828 (1969), the appellees
argued that, without any prejudice, the landowner could not complain of defective notice
on a zoning change. The Kansas Supreme Court rejected this argument, holding the
statutory notice was mandatory and needed to be complied with to pass the ordinance.
203 Kan. at 43-44.
Even assuming these limits on considering actual notice and prejudice apply, the
County still substantially complied with the notice provisions in K.S.A. 2019 Supp. 12-
757(b).
28
The statutory provisions in K.S.A. 2019 Supp. 12-757(b) require mailed notice to
the surrounding landowners. While verbal notice is not an approved method of providing
notice, the fact that a fellow landowner told Mr. Potucek about the proposed wind project
and the Planning Commission's meeting showed that the local community was informed
of the project and the public hearing. At the Planning Commission's meeting, 13 citizens
opined on the proposed zoning amendments and provided various arguments for why the
proposal should be denied. And at the Board's public hearing, 29 citizens—including Mr.
Potucek—commented on whether the amendments would promote public welfare.
Although the County failed to strictly comply with the statute, it complied with the
essential matters necessary to ensure that every reasonable objective of the statute was
satisfied.
As a result, we hold the County substantially complied with the notice provisions
in K.S.A. 2019 Supp. 12-757(b) when it properly mailed certified letters to all persons
and entities owning property within 1,000 feet of the proposed wind farm, except for the
Potuceks. Accordingly, the conditional use permit and zoning change are valid despite
the County's failure to mail the Potuceks proper notice.
MISIDENTIFICATION OF WIND PROJECT NAME
Plaintiffs next cross-appeal the district court's finding that the misidentified project
name in the notice did not render Invenergy's conditional use permit invalid. Plaintiffs
suggest the conditional use permit is invalid because, by using the wrong project name,
the notice failed to describe the proposal in general terms as K.S.A. 2019 Supp. 12-757
and K.S.A. 12-756 required.
Once again, this court reviews a district court's summary judgment order de novo.
Peters, 309 Kan. at 469. And this issue also involves statutory interpretation which
presents a question of law subject to unlimited review. Nauheim, 309 Kan. at 149.
29
Under K.S.A. 2019 Supp. 12-757(b), a planning commission must give notice of
proposed amendments in the manner provided in K.S.A. 12-756. This statute provides
that the published notice of a zoning proposal must "describe such proposal in general
terms." K.S.A. 12-756(b). In addition to the publication notice, written notice of the
proposed amendment must be mailed to surrounding landowners at least 20 days before
the planning commission's public hearing. K.S.A. 2019 Supp. 12-757(b).
In the published notice, the County described Invenergy's proposal as a request for
a "Conditional Use for the development, construction, operation and decommissioning of
Wild Plains Wind Project." While the published notice incorrectly used the name "Wild
Plains Wind Project" to describe Invenergy's request, the notice included a map correctly
labeled "Argyle Creek Wind Project." The words "Argyle Creek Wind Project" are
prominently displayed in much larger font than the misnomer in the body of the notice.
The first mailed notice to the surrounding landowners also incorrectly used the
name "Wild Plains Wind Project" when describing Invenergy's request for a conditional
use permit. But this notice also included the map labeled "Argyle Creek Wind Project."
The County discovered the error in the published notice and the certified letters before
the Planning Commission's meeting. Although the County did not publish a corrected
notice in the newspaper, the County mailed another certified letter to landowners with the
corrected project name before the Planning Commission's meeting.
Plaintiffs reprise their claim that substantial compliance is inapplicable to notice
provisions in Kansas zoning statutes. But for the reasons addressed in the previous issue,
we find the notice requirements at issue in K.S.A. 12-756(b) and K.S.A. 2019 Supp. 12-
757(b) are satisfied through substantial compliance. As a result, we consider whether the
County substantially complied with the statutory requirement to describe Invenergy's
proposal for a conditional use permit in general terms.
30
The Kansas Supreme Court in Stueckemann addressed a similar situation in the
context of annexation and determined the city substantially complied with notice
provisions. In Stueckemann, property owners disputed annexation arguing the resolution
proposing annexation contained an inadequate description of the land to be annexed
because the resolution incorrectly included a parcel not being annexed. The court held
that the notice substantially complied with the statute despite the error because the
included documents sufficiently informed the landowners of the land the city proposed to
annex and did not affect the landowners' ability to be heard. 301 Kan. at 728-32. In its
reasoning, the court found that the mistaken inclusion was an ordinary typographical
error and the public could determine the city's intent because the erroneously included
parcel could not be legally annexed. 301 Kan. at 730.
Like the error in Stueckemann, the misidentified project name did not affect the
community's opportunity to appear and be heard before the Planning Commission and the
Board. The name "Wild Plains Wind Project" still notified the citizens that Invenergy
proposed to build and operate a wind farm. Thus, the notice satisfied the purpose of
informing the public of the applicant's proposed use. And once the County discovered the
error, it sent corrected notices to those most likely to be affected by the proposed use—
the surrounding landowners.
Additionally, the public could determine the name of Invenergy's proposed project
from the published notice. The notice included an accurate legal description of the project
area and a map of the project's boundaries. The "Wild Plains Wind Project" was a
previously approved wind energy project and therefore could be easily recognized as a
mere typographical error. And the correct name of the project is the most conspicuous
language in the notice—in large font above the map. The County substantially complied
with the requirement to describe Invenergy's proposal for a conditional use permit in
general terms.
31
The conditional use permit is valid even though the notice misidentified the wind
project name when describing Invenergy's proposal. Accordingly, the district court did
not err by ruling that the zoning decisions were not invalid because the County provided
imperfect notice.
Having found that the zoning change and conditional use permit are valid despite
Plaintiffs' contentions and that the district court erred by striking these zoning decisions,
we reverse the district court's grant of summary judgment to Plaintiffs and order the
district court to grant summary judgment in favor of the Board.
Affirmed in part, reversed in part, and remanded with directions to grant summary
judgment for the Board and uphold the resolutions approving the zoning change and
Invenergy's conditional use permit.
32