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.
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
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.
Intervention of right is controlled by K.S.A. 60-224(a)(2),
"(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 ...