Agenda - Planning Commission - 02/02/2012

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November 25, 201 1 1 Voiume 5 I No. 22 Zoning Bulletin DECISION: Judgment of district court affirmed in part, reversed in part, and remanded. The Supreme Court of Kansas held that the Board's decision to amend the zoning regulations did not constitute a compensable taking under the Fifth Amendment to the United States Constitution because interests in de- veloping wind farms were not vested rights, necessary to support a tak- ings claim. The court also held that, although the zoning amendment was not facially discriminatory, remand was required for determination as to whether the amendment violated the dormant Commerce Clause. The court explained that to prevail on a takings claim, the Landowners would have to first establish that the "property" in question (i.e., the inter- est in developing wind far-ms was one in which a vested interest existed. The Board had argued that whatever interests the Landowners purport- edly possessed before the moratorium, those interests were conditioned upon the Board's discretionary issuance of a CUP. Accordingly, argued the Board, interests such as developing, constructing, or operating CWECSs were not vested rights. The court agreed, reiterating that an applicant would have no vested rights in a CUP when its issuance depended upon the discretionary approval of the Board. The court noted that in this case, at all material times, the county zoning regulations granted absolute dis- cretion to the Board for issuing CUPS. Accordingly, the court concluded that no vested property right of any type had been taken from the Land- owners by the Board. As to the dormant Commerce Clause claim, the court explained that it asks two questions to determine if a zoning regulation violates the dor- mant Commerce Clause. First, it asks whether the challenged law discrimi- nates (i.e., treats in -state and out -of -state economic interests differently by benefiting the former and burdening the latter) on its face against inter- state commerce. If so, it is invalid unless it "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives." If not, then the court engages in a balancing test (known as the Pike test) to determine if the burden imposed on interstate commerce is "clearly excessive in relation to the putative local benefits." Here, the court found that there was no facial discrimination as there was no "differential treatment of in -state and out -of -state economic inter- ests that benefited the former and burdened the latter." The court found that the county's amended zoning regulations prohibited all CWECSs in the county, regardless of whether the producer wished to sell the wind - generated electricity in other states, in other Kansas counties, or within Wabaunsee County itself. The court said that absent discrimination, the balancing test need be applied next to see whether the burden imposed on interstate commerce would be clearly excessive in relation to the putative local benefits (if so the amendments would be invalid; if not they would be upheld). court remanded the matter to the district court to conduct this balancing test. See also: Kansas Racing Management, Inc. v. Kansas Racing Com'n, 244 Kan. 343, 770 P.2d 423 (1989). 6 © 2011 Thomson Reuters