R.H. Gump Revocable Trust v. City of Wichita

R.H. Gump Revocable Trust (Gump) (plaintiff) wanted to allow Nordyke Ventures, LLC (Nordyke) (plaintiff) to build a 135-foot-tall stealth flagpole wireless-communication tower on Gump’s property in Wichita, Kansas. The structure was characterized as a stealth flagpole tower because a large American flag was to be flown from it to conceal its true purpose. Because of the tower’s height, Gump and Nordyke were required to acquire a conditional-use permit before erecting it. The Metropolitan Area Planning Department determined that the proposed tower conformed to the requirements of both the applicable wireless-communication master plan and the applicable zoning ordinance and recommended that the City of Wichita (the city) (defendant) grant the conditional-use permit. The city denied the permit, citing both aesthetic concerns and overwhelming opposition to the tower. Gump and Nordyke appealed to the district court, which remanded the matter to the city for clarification of the factual support for its denial of the permit. The city adopted additional findings of fact, including (1) the visual impact of the tower, (2) the impact of lighting the flag at night, and (3) fear that Gump would fail to properly care for the large flag. The city also found that Gump and Nordyke would suffer minimal hardship if the permit were denied, and it balanced the potential hardship to Gump and Nordyke against the significant detriment to the health, safety, and welfare of the community if the permit were granted. The district court considered the amended city findings and affirmed the city’s decision, reasoning that the denial of the permit was based on substantial evidence and therefore was not unreasonable. Gump and Nordyke appealed to Kansas Court of Appeals, arguing that the city’s decision was unreasonably subjective because it was based on aesthetics.