Zimmerman v. Board of County Commissioners of Wabaunsee County

Roger Zimmerman and other landowners (collectively, the landowners) (plaintiffs) entered into contracts to build commercial wind-energy conversion systems (CWECS), also known as commercial wind farms, on their properties in Wabaunsee County, Kansas. Under the county zoning code in effect at the time of the contracts, establishing a commercial wind farm would have required obtaining a conditional-use permit, which the Board of County Commissioners of Wabaunsee County (the board) (defendant) could issue at the board’s discretion. When the board learned of the wind-farm plans, it amended the county’s zoning code to prohibit commercial wind farms. The landowners sued in state district court to invalidate the ban, and several owners of wind rights (the wind-rights owners) within the county intervened. The district judge dismissed the suit. The district judge found, among other things, that the board had properly considered the dramatic negative impact that commercial wind farms would have on the county’s stated goals of maintaining the rural, scenic aesthetic of the county and developing tourism. The district judge also found that the amended zoning ordinance had not constituted an unconstitutional taking of the landowners’ or wind-rights owners’ rights. The landowners and the wind-rights owners appealed to the Kansas Supreme Court, which affirmed the district court’s decision on several of the issues but ordered the parties to submit supplemental briefing on whether the amended zoning regulations constituted a compensable taking. In the supplemental briefing, the landowners asserted that there had been a taking of their contractual rights to develop CWECS on their properties and a taking of wind resources from the landowners’ properties. The wind-rights owners claimed that there had been a taking of their rights to construct and operate CWECS and utilize their wind rights for commercial wind development. The board asserted that the landowners and wind-rights owners had no vested property rights that could form the basis for a takings claim because any interests in developing, operating, or utilizing CWECS were conditional on whether the board decided to issue a permit. The court considered the parties’ supplemental arguments.