Kansas Supreme Court clarifies land-use permit authority, settles Finney County dispute
Kansas Supreme Court Justice Dan Biles authored the court's unanimous opinion affirming that state law didn't preempt a county's ability to issue conditional use permits as long as the permit wasn't in conflict with Kansas law. The issue emerged from a dispute in Finney County about development of a sand and gravel quarry. (Sherman Smith/Kansas Reflector)
TOPEKA — The Kansas Supreme Court issued an opinion Friday that determined the Finney County Commission had authority to delegate decisions about land-use permits to a zoning appeals board as long the local actions didn’t conflict with state law.
The opinion written by Justice Dan Biles was inspired by a dispute that emerged in 2021 when Huber Sand applied to the Finney County Board of Zoning Appeals for a conditional use permit to operate a sand and gravel quarry under regulations adopted by the county commission.
More than 100 people submitted protest petitions in opposition to the development on 177 acres southeast of Pierceville.
The zoning board approved on a 2-1 vote the permit for a quarry on land that was zoned agricultural. Finney County landowner Brian Price and American Warrior, a company with an oil and gas lease near the proposed quarry, filed a lawsuit.
Finney County District Court sided with Huber Sand and the county commission, but American Warrior appealed to the Kansas Court of Appeals. That appellate court, on a 2-1 vote, reversed the district court.
The Supreme Court unanimously decided the majority on the Court of Appeals got it wrong, and affirmed the original action by District Court Judge Wendell Wurst.
Biles’ opinion for the Supreme Court said county zoning power could be limited by state law through the concept of preemption, which occurred when the Kansas Legislature reserved exclusive jurisdiction for the state. However, he wrote, Kansas law contained “no such express statement of preemption for conditional use permits.”
“The (Court of Appeals) panel majority critically failed to engage in a straightforward, textual interpretation of the act and regulations,” Biles said.
Instead, the justice wrote the Court of Appeals considered two previous cases from 2003 and 2008, which shouldn’t have been viewed as applicable, and “improperly extended their holdings to the present controversy.”
The decision of the Supreme Court established the Legislature granted cities and counties the authority to enact zoning regulations without state interference as long as those local decisions didn’t conflict with the Planning, Zoning and Subdivision Regulations in Cities and Counties Act.
Exercising that authority, Finney County adopted its own local rules and delegated the issuance of conditional use permits to the Finney County Board of Zoning Appeals.
