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Syllabus by the Court
1. An appellate court's standard of review of a constitutional challenge to an ordinance is de novo. The party asserting unconstitutionality, however, has a weighty burden. This is because an appellate court has a duty to preserve the validity of an ordinance and to search for ways to uphold its constitutionality. The court must presume that the ordinance is constitutional, resolve all doubts in favor of validity, and uphold the ordinance if there is any reasonable way to construe it as constitutional; before striking the ordinance, the court must conclude that it clearly appears to be unconstitutional.
2. Although an appellate court reviews de novo a constitutional challenge to an ordinance, attacks based upon vagueness require additional considerations. First, the ordinance must convey sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. Second, the ordinance must also adequately guard against arbitrary and discriminatory enforcement.
3. As written, Lincoln Center's noise ordinance is unconstitutionally vague as applied to the defendants, Farmway Co-Op, Inc. and Farmway Storage # 1, LLC, because it lacks sufficiently objective standards to prevent its arbitrary enforcement.
4. Lincoln Center's nuisance ordinance is not unconstitutionally vague as applied to the defendants, Farmway Co-Op, Inc. and Farmway Storage # 1, LLC. The ordinance conveyed definite warning and fair notice to the defendants as to the prohibited conduct and sufficiently protected them against arbitrary and discriminatory enforcement.
Daniel D. Metz, city attorney, argued the cause and was on the briefs for appellant.
David M. Traster, of Foulston Siefkin LLP, of Wichita, argued the cause and was on the briefs for appellees.
Sandra Jacquot, of Topeka, was on the brief for amicus curiae League of Kansas Municipalities.
Brent E. Haden, of Columbia, Missouri, was on the brief for amicus curiae Kansas Cooperative Council.
Robin K. Carlson, and Daniel D. Crabtree, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, was on the brief for amicus curiae Kansas Grain & Feed Association.
[298 Kan. 541] The City of Lincoln Center (City) cited Farmway Co-Op, Inc., and Farmway Storage # 1, LLC (together " Farmway" ) for violating municipal noise and nuisance ordinances. The violations arose out of Farmway's operation of a grain elevator facility inside the city limits. After the municipal court convicted Farmway under both ordinances, the district court reversed the convictions, holding the ordinances are unconstitutionally vague. The Court of Appeals affirmed the district court. We granted the City's petition for review and have jurisdiction under K.S.A. 60-2101(b).
We agree with the district court and Court of Appeals that the City's noise ordinance is unconstitutionally vague. As applied to Farmway, it fails to protect against arbitrary enforcement. But as for the nuisance ordinance, we hold it is constitutional as applied to Farmway. So we affirm in part, reverse in part, and remand to the district court for further proceedings.
Farmway's expansion and residents' complaints
The material facts are essentially undisputed. Farmway owns and operates a grain elevator facility inside the city limits of Lincoln Center. The area immediately surrounding the facility is residential.
In December 2008, Farmway applied for a building permit to expand the facility through constructing a new grain bin plus four grain aeration fans needed for proper storing and drying of the grain. The new bin was to be 124 feet tall and 74 feet in diameter.
[298 Kan. 542] Later that month Farmway sent a letter to the City supporting its permit application which stated it hoped the project would " help control some dust and noise concerns for the neighborhood." While the City granted Farmway's building permit, the approval of building permits outside of flood hazard areas has been described as " essentially automatic."
Farmway did not conduct any formal studies to determine how the expansion would affect the surrounding areas. But it did have " discussions" with nearby residents before the project was completed. The record on appeal does not contain details about the discussions, but they apparently pertained to noise and dust that the new facility would create.
Farmway began operating its expanded facility in July 2009. According to later municipal court testimony by nearby residents, the expansion significantly increased the noise and dust levels around the facility. The residents further testified the aeration fans made noises that prevented them from sleeping, conversing, watching television, and enjoying the outdoors. One resident testified that his family was forced to leave home one night to get some sleep in a motel. According to further testimony, the expanded facility caused large clouds of grain dust that reduced visibility and aggravated respiratory problems for some residents. Residents also complained to City officials and Farmway regarding the increased noise and dust.
Farmway's remedial measures and regulatory compliance
In response to the residents' complaints, Farmway took several steps to reduce the levels of noise and dust. The month after operations began at the expanded facility, Farmway contacted the aeration fans' manufacturer, Airlanco, about the noise. Airlanco's engineering manager repaired cracking on the fans and stiffened the fans' supports. But the repairs did not reduce the noise. The following November Airlanco replaced the noisiest fan wheel. But still the facility generated noise that residents found bothersome. Later that month Farmway switched the aeration fans from automatic to manual control to prevent ...