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January 19, 1990.

BOARD OF COUNTY COMMISSIONERS OF BUTLER COUNTY, KANSAS, Appellees, and STATE OF KANSAS, ex rel. Robert T. Stephan, Intervenor-Appellee.

The opinion of the court was delivered by

This is an action by two area landowners challenging the issuance by the Butler County Board of County Commissioners (Board) of a special use permit allowing construction of a state-owned prison facility. The State of Kansas intervened in the action. The State filed a motion for summary judgment, contending it was immune from county zoning regulations. The district court granted partial summary judgment to the State. Specifically, the court held that the State had immunity from zoning regulations, but that its immunity was not absolute. The burden was placed on the landowners to show the conduct of the State was arbitrary. Thereupon, the landowners stated they did not intend to litigate the reasonableness of the State's decision to build the prison on the land involved herein and filed their notice of appeal.

For their first issue, the appellant landowners contend it was improper to permit the State to raise the immunity question based upon compelling state interest. They contend the State is precluded from raising this defense in the district court by virtue of not having raised the issue before the controversy reached the district court.

  In early 1989, the owners of the real estate on which the State plans to build the prison filed an application for the issuance of a special use permit to authorize such usage. The property was zoned "A-2", agricultural transition.

  On March 9, 1989, the Butler County Planning Board met in special session to conduct a public hearing on the application.

[246 Kan. 154]

      Following a hearing in which citizens spoke in favor of and against the special use application, the planning board voted 4-3 in favor of the application.

  On March 27, 1989, the Butler County Board of County Commissioners unanimously adopted Resolution No. 89-833, which granted the special use permit for the construction of the prison facility.

  On April 26, 1989, plaintiffs filed this action against the Board, alleging: (1) that the Board's decision was unreasonable, arbitrary, and capricious; (2) that the use permitted (construction of a prison) was not an eligible use for a special use permit under an "A-2" zoning classification; and (3) that before the public hearing on the application, the Board predetermined it would issue the permit.

  The Board answered that the Butler County zoning regulations authorized a special use permit within an A-2 zoning district for "public buildings erected [on] land used by any agency of a city or the county or state government." The Board further contended that the proposed use of the land rendered the property exempt from local zoning regulations.

  Prior to suit being filed the matters in controversy had been the pros and cons of issuing the special use permit and the Board's authority to issue such a permit.

  On May 18, 1989, House Bill 2548 (L. 1989, ch. 31, § 1-11) was signed by the governor. Said bill provided funding for the new prison and stated, in pertinent part:
"Sec. 4. The legislature finds and hereby declares that the prompt and expeditious initiation and completion of the capital improvement projects for a new correctional facility and a mental health facility or facilities is a matter of compelling public interest and is necessary to protect the public safety of the residents of Kansas because of the large and increasing inmate population in the custody of the secretary of corrections and because of the actions mandated by the orders of the United States District Court of Kansas in Arney, et al. v. Hayden, et al., Case No. 77-3045."
  Four days later, on May 22, 1989, the State's motion to intervene was filed. The motion stated as its grounds for intervention that there was a compelling public and state interest in the construction of the prison, and that such interests could not be adequately represented by defendant Board.

[246 Kan. 155]


  Intervention of right is controlled by K.S.A. 60-224(a)(2), which provides:
"(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
K.S.A. 60-224(a) should be liberally construed in favor of intervention. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984); Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶ 1, 502 P.2d 773 (1972). The right to intervene in an action is dependent on the occurrence of three factors: (1) timely application; (2) substantial interest in the subject matter; and (3) inadequate representation of the applicant-intervenor's interest. In re Petition of City of Shawnee for ...

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