Zimmerman v. Board of County Commissioners
264 P.3d 989
| Kan. | 2011Background
- Wabaunsee County amended zoning regulations to allow SWECS but prohibit CWECS, creating a regulatory framework for wind energy in the county.
- A moratorium on CUP applications for wind energy systems was enacted in 2002 and extended, delaying CWECS development while studies proceeded.
- In 2004, the Board adopted Comprehensive Plan 2004 and then amended regulations to permit SWECS as conditional uses but bar CWECS entirely; CWECS were expressly prohibited.
- Plaintiffs are landowners seeking to develop CWECS; Intervenors own purported wind rights and seek to develop CWECS through contracts with developers.
- The district court dismissed multiple claims; this court previously affirmed some rulings and remanded on Takings and Commerce Clause questions.
- The Kansas Supreme Court held that there was no takings violation because no vested property rights in CWECS existed and the CUP process was discretionary, not automatic.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Takings Clause disposition proper | Zimmerman argues there was a taking of lease or wind-right interests. | Board contends no taking because rights were not vested and action was reasonable. | No taking; no vesting; summary judgment proper |
| Commerce Clause dormant discrimination | Intervenors contend facial discrimination against interstate commerce by restricting CWECS while allowing SWECS use. | Board argues no facial discrimination and applicable balancing is unnecessary or limited. | No facial discrimination; remand for Pike balancing with discovery on incidental burdens |
Key Cases Cited
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (regulatory takings framework; takings require justification by public use and compensation)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (ad hoc, factual takings inquiry; no set formula)
- Jack v. City of Olathe, 245 Kan. 458 (1989) (reasonableness standard in takings interplay with administrative action)
- McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303 (2002) (distinguishes between denial of expansion of rights and existing vested rights)
- Kansas Racing Mgmt., Inc. v. Kansas Racing Comm'n, 244 Kan. 343 (1989) (discretionary licenses/cups defeat entitlement, no vested rights)
- Jordan-Arapahoe, LLP v. Board of County Com'rs, 633 F.3d 1022 (2011) (discretion in zoning decisions defeats vested rights in development plans)
- United Haulers Ass'n., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007) (Pike balancing framework for nondiscriminatory burdens on interstate commerce)
- Davis, Department of Revenue of Ky. v., 553 U.S. 328 (2008) (Pike balancing applied to incidental burdens not just discrimination)
- Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982) (defines preemption extent and limits on state authorization of powers)
- New England Power Co. v. New Hampshire, 455 U.S. 331 (1982) (federal preemption limits and state authority over energy regulation)
- Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980) (Congressional intent to define preemption extent, not grant new state powers)