Hacker v. Sedgwick County
286 P.3d 222
| Kan. Ct. App. | 2012Background
- Heins operated a lawn care business from a rural home on a 75-acre tract zoned RR Rural Residential.
- In 1990 the Board granted two variances (distance to residence and number of employees) for the business.
- In 2010 the Heins sought three new variances (more employees on-site, use of existing outbuildings, and outdoor storage near the street).
- Neighbors Hacker, Gronniger, and Kansas Paving challenged the petition at the Board and later in district court.
- The district court remanded to address whether self-created hardship applied; the Board found hardship was not self-created.
- The district court vacated all three variances; Board appealed, raising standing and substantial-evidence/interpretation issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal under 12-759(f) | Plaintiffs have standing as “aggrieved” under 12-759(f) and as participants under Tri-County. | Board contends plaintiffs lack standing; only original party status or a restricted “dissatisfied with” scope should apply. | Plaintiffs have standing under 12-759(f) to appeal. |
| Interpretation of “dissatisfied with” vs. “aggrieved by” | “Dissatisfied with” should align with the broader “aggrieved by” standard. | “Dissatisfied with” is broader but should be interpreted to protect pecuniary interests. | The court construes 12-759(f) to mean the same standing as 12-760's aggrieved standard. |
| Self-created hardship as basis for variance | Self-created growth cannot justify unnecessary hardship for an area variance. | Self-created growth may be considered for hardship, depending on context. | Self-created business growth is not an exception to the rule; variances not supported by substantial evidence. |
| Substantial evidence supporting hardship finding | Board erred in not finding lack of substantial evidence for hardship. | Board’s findings, including non-self-created hardship, were supported by substantial evidence. | District court correctly vacated variances due to lack of substantial evidence. |
| Jurisdiction and scope of review | District court had proper jurisdiction under 12-759/f and 12-760; Board’s authority limited by statute. | Standing and scope arguments should be resolved in favor of the Board if supported by law and evidence. | Board’s appeal affirmed in part; district court’s vacatur of variances upheld. |
Key Cases Cited
- Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm'rs, 32 Kan. App. 2d 1168 (2004) (standing test for aggrieved persons to appeal)
- City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218 (1985) (unnecessary hardship and variance standards; use of area variance)
- City of Merriam v. Board of Zoning Appeals, 242 Kan. 532 (1988) (unnecessary hardship and self-created hardship principles for variances)
- Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744 (1975) (definition and limits of unnecessary hardship; self-created hardship not allowed)
- Bowman v. City of York, 240 Neb. 201 (1992) (expansion to maximize profitability not basis for hardship (foreign authority))