Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge.
SYLLABUS BY THE COURT 1. Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. 2. Whether standing exists is a question of law subject to unlimited review. 3. Appeals from a board of zoning appeals to the district court are governed solely by K.S.A. 12-759(f). 4. Under K.S.A. 12-759(f), any person "dissatisfied with" a decision of a board of zoning appeals may appeal to the district court within 30 days of the final decision of the board. The test for determining whether a person is "dissatisfied with" a decision of a board of zoning appeals and thus able to appeal to district court is the same as the test for determining whether a person is "aggrieved by" any final planning or zoning decision made by a city or county under K.S.A. 12-760. 5. "Any person aggrieved" as contained in K.S.A. 12-760, means a person who suffers a substantial grievance, a denial of some personal or property right, or the imposition of some burden or obligation. It does not refer to persons who may happen to entertain desires on the subject but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected. 6. Under K.S.A. 12-759(e)(1) a board of zoning appeals is authorized to grant an area variance only if all five criteria set forth in the statute are met, including the requirement that strict application of the zoning regulations will constitute an unnecessary hardship on the property owner requesting the variance. 7. Mere economic advantage or disadvantage to the landowner applying for a zoning variance does not in itself constitute unnecessary hardship. Unnecessary hardship may be found where strict application of the zoning regulations would result in the complete loss of an existing business at the location in question but not where strict application would merely prevent increased profitable use of that land. 8. As a matter of law, self-created business growth is not an exception to the general rule that the unnecessary hardship required for a property owner to obtain a zoning variance may not be self-created.
The opinion of the court was delivered by: Malone, J.:
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
The Sedgwick County, Kansas, Board of Zoning Appeals (Board) appeals the district court's decision vacating the Board's grant of three zoning variances to Norman and Leatha Hein related to their lawn care business operated from their rural home. The Board argues that Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving Company, who are the owners and lessees of real property adjacent to the Heins' property, lacked standing to appeal the Board's grant of the zoning variances to the district court, and that therefore the district court lacked jurisdiction to rule on the matter. The Board also argues that the district court erroneously determined that strict application of the zoning regulations would not constitute an unnecessary hardship, as required under K.S.A. 12-759(e)(1)(C), because the hardship was imposed by the Heins' self-created business growth. We conclude that under the facts of this case, the neighboring landowners had standing under K.S.A. 12-759(f) to appeal the Board's grant of the zoning variances. We also conclude as a matter of law that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created. Accordingly, we affirm the district court's judgment vacating the zoning variances.
The Heins have operated a lawn care business from their rural home for over 30 years. The business is located on a portion of their 75-acre tract of land on West 73rd Street North in Sedgwick County, Kansas. The property is zoned RR Rural Residential. In 1990, the Heins petitioned for and were granted two zoning variances by the Board: (1) to allow the business to operate within 220 feet of a nearby residence; and (2) to allow up to four employees on the property at any given time. In granting the second variance, the Board noted that the business was primarily conducted off site and that the employees would only be at the property for a limited amount of time in order to maintain and transport the lawn care equipment, which was stored at the property. The Heins later explained that although they employed 19 people at that time, most employees reported directly to the job sites and did not need to go to the property.
In 2010, the Heins filed a petition with the Board for three variances: (1) to allow up to 20 employees with no more than 15 on site in excess of 1 hour per day; (2) to allow the use for business purposes of existing outbuildings with a combined floor area exceeding 3,000 square feet; and (3) to allow outdoor storage closer to the street than the buildings used for the business and closer than 200 feet from property lines. In their petition, the Heins alleged that new variances were necessary because they had "obtained additional customers and changed the way their employees work." Specifically, the Heins stated that more equipment was stored at the property and employees now met at the property and rode together to job sites. The Heins further stated that, as part of their commitment to keeping their full-time employees at work even during inclement weather, the new variances were necessary to permit employees to perform occasional yard work and equipment maintenance at the property.
Board staff prepared a report on the Heins' petition. Staff considered each of the five criteria under K.S.A. 12-759(e)(1) that must be met before the Board may grant a variance. Staff recommended that the Board deny the first variance, finding that the increased number of employees would violate four of the five criteria. In particular, staff found that strict application of the zoning regulations would not constitute an unnecessary hardship under K.S.A. 12-759(e)(1)(C) because the hardship was imposed by the Heins' self-created business growth. Staff recommended that the other two variances be granted subject to certain conditions.
On October 12, 2010, the Board held a meeting at which the Heins' petition was considered. After receiving staff's report, the Board heard comments on the matter. Norman Hein explained that the reason for requesting the first variance, to increase the number of employees allowed on the property, was that the business now needed six drivers to transport the lawn care equipment as opposed to the four drivers needed in 1990. Furthermore, the variance would allow employees to gather at the property and catch rides to the job sites and would account for the occasional situation in which employees performed yard work and equipment maintenance at the property. Several of Heins' neighbors and customers spoke in support of the petition for variances.
But Richard Gronniger, who owns the property just south of the Heins across West 73rd Street North, and Terry Hacker, who operates Kansas Paving, a sand pit on Gronniger's property, spoke in opposition to the Heins' petition. They argued that the requested variances were tantamount to rezoning and that since Gronniger and Kansas Paving were paying for road maintenance in relation to the conditional use permit to operate the sand pit, the Heins should also be required to seek a conditional use permit and contribute to road maintenance costs. Hacker stated that Kansas Paving spends about $15,000 per year on road maintenance costs. He believed that because the Heins' business constituted about one-third of the traffic on West 73rd Street North, the Heins should contribute about $5,000 per year for road maintenance costs.
The Board found that all five criteria under K.S.A. 12-759(e)(1) had been met for each variance and granted all three requested variances subject to certain conditions. On November 10, 2010, Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving (plaintiffs) filed a petition in the district court under K.S.A. 12-759(f) and K.S.A. 12-760 challenging the reasonableness of the Board's decision. They argued that the decision was not supported by substantial evidence and requested either that the variances be vacated as unreasonable or that the matter be remanded to the Board for further findings.
On April 14, 2011, the district court held a bench trial based on stipulated facts. Based on the evidence presented, the district court rejected the plaintiffs' argument that the Heins were required to seek a conditional use permit rather than zoning variances. The district court further found that the requested variances were properly classified as area variances (as opposed to use variances) and as such, the Board had the authority to grant those variances if all five criteria under K.S.A. 12-759(e)(1) were supported by substantial evidence. Although the district court was satisfied that four of the five criteria were supported by substantial evidence, the court found that the Board had failed to adequately address whether strict application of the zoning regulations constituted an unnecessary hardship as required by K.S.A. 12-759(e)(1)(C). The district court remanded the case to the Board to specifically address whether the hardship was self-created.
On remand, the Board found that the hardship was not self-created. The Board reasoned that the Heins had a vested property right in their business and that reasonable growth of an existing business was not a self-created hardship under Kansas caselaw.
In light of the Board's findings, the parties submitted supplemental briefs to the district court. On October 28, 2011, the district court concluded the bench trial. The district court found that all three requested variances were the result of the Heins' business growth and that the business growth was the result of the Heins' conscious effort to increase their customer base. Furthermore, the district court found that the Heins grew their business with full knowledge of the zoning regulations under which they were operating. The district court rejected the Board's interpretation of Kansas caselaw and found that self-created business growth was not a reasonable basis for granting an area variance under K.S.A. 12-759(e)(1). The district court reasoned that it would be poor precedent to allow an area variance due to self-created business growth because there would be virtually no limitations on the granting of such variances. The district court determined that the Board's ...