Zimmerman v. Board of County Commissioners
264 P.3d 989, 293 Kan. 332 (2011)
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Rule of Law:
A landowner does not have a vested property right in a potential land use if that use is contingent upon obtaining a discretionary government permit. Consequently, a zoning regulation change that prohibits such a use does not constitute a compensable taking under the Fifth Amendment.
Facts:
- Plaintiffs, landowners in Wabaunsee County, and Intervenors, owners of purported 'wind rights', entered into contracts for the development of Commercial Wind Energy Conversion Systems (CWECS).
- At the time, the county's agricultural zoning regulations did not specifically address wind farms, but the construction of such tall structures required a conditional use permit (CUP).
- The county's zoning regulations explicitly stated that the approval of a CUP was a 'purely discretionary act' and that there was 'no implied right' for any landowner to obtain one.
- In November 2002, the Wabaunsee County Board of Commissioners (Board) enacted a temporary moratorium on accepting CUP applications for wind farms to study their potential impact.
- The Board extended the moratorium several times while it developed and, in April 2004, adopted a new Comprehensive Plan emphasizing the preservation of the county's rural and scenic character.
- On July 12, 2004, the Board passed Resolution No. 04-18, formally amending its zoning regulations to permit small, on-site wind systems (SWECS) but to absolutely prohibit all CWECS in the county.
Procedural Posture:
- Plaintiffs (landowners) sued the Board of County Commissioners of Wabaunsee County in Kansas district court (trial court).
- The district court granted the Board's motion to dismiss on several claims, including a Commerce Clause violation.
- Intervenors (wind rights holders) were permitted to join the suit, adding a claim for inverse condemnation.
- The district court ultimately granted summary judgment in favor of the Board on all remaining claims, including the Takings Clause claim.
- Plaintiffs and Intervenors, as appellants, appealed to the Kansas Court of Appeals.
- The Kansas Supreme Court transferred the case from the Court of Appeals on its own motion.
- In a prior decision (Zimmerman I), the Supreme Court affirmed some of the lower court's rulings but ordered supplemental briefing on the Takings and Commerce Clause issues.
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Issue:
Does a county's zoning amendment that prohibits commercial wind farms constitute a compensable taking of property under the Fifth Amendment when the development of such farms was previously contingent on the issuance of a purely discretionary conditional use permit?
Opinions:
Majority - Nuss, J.
No. The county's zoning amendment does not constitute a compensable taking because the plaintiffs never possessed a vested property right to develop commercial wind farms. To establish a takings claim, a claimant must first demonstrate a constitutionally cognizable property interest. A vested right is a fixed right not dependent on any future contingency, whereas a mere expectancy of a future benefit is not. In this case, the ability to construct a commercial wind farm was always contingent upon receiving a conditional use permit (CUP) from the Board. The county's zoning regulations unambiguously stated that the issuance of a CUP was a 'purely discretionary act' and that no landowner had a right to obtain one. Because the potential use was subject to the Board's discretion, the plaintiffs and intervenors never had a vested right to develop CWECS. Therefore, the Board's decision to amend the zoning regulations did not take an existing right but merely refused to grant a new one, and no compensable taking occurred.
Analysis:
This decision reinforces the high bar for establishing a regulatory taking by clarifying the 'vested rights' doctrine. It establishes that if a desired land use requires discretionary government approval, a landowner's interest in that use is merely an expectancy, not a vested property right. This gives local governments significant latitude to amend zoning laws to pursue public policy goals, such as environmental or aesthetic preservation, without incurring takings liability for projects that have not yet secured all necessary discretionary permits. The ruling significantly impacts developers and landowners, cautioning them against making substantial investments based on the mere possibility of obtaining discretionary approvals.
