Hacker initiated this action to challenge three area variances granted by the Sedgwick County Zoning Board of Appeals. The district court overturned the variances, and remanded the case back to the Zoning Board of Appeals (hereinafter “ZBA”), which again granted the variances, finding the expansion of a business does not constitute a self-created hardship. Hacker challenged this determination as well, and the district court vacated the grant of the variances, finding that the expansion of a business is a self created hardship. The Court of Appeals of Kansas affirmed.
On appeal, Sedgwick County raised two grounds in support of reversal. First, Sedgwick asserted the plaintiffs lacked standing to challenge the variance determination. Kansas law provides two specific avenues for the appeal of local land use decisions. Sedgwick argues that the “dissatisfied by” standard should be utilized, and also that it be narrowly defined to only include the original parties to the action, denying standing to Hacker. Sedgwick also avers that Hacker would not meet the second avenue for standing, the “aggrieved by” standard. Hacker disagrees that the “dissatisfied by” standard should narrowly construed, and asserts that it would meet both standards.
The court determined that the “dissatisfied by” standard should be applied where a party is seeking review of a zoning board of appeals decision. The court arrived at this decision because the “dissatisfied by” standard is specific to zoning boards of appeal decisions, where as the “aggrieved by” standard provides general standing to land use decisions. However, in looking at the two standards, the court determined they provided standing in an identical manner – the court could not find any legislative history or judicial precedent indicating that the standards provide standing to different classes of plaintiffs. The court provided that to have standing under the “aggrieved by” standard, the party would need to show a “substantial grievance, a denial of some personal or property right, or the imposition of some burden or obligation.” The party would have to “have rights which may be enforced at law and whose pecuniary interest may be affected.” Under this standard, the court found the plaintiffs had standing. The plaintiffs were dissatisfied because they where neighbors to the subject parcel and had a pecuniary interest in the decision, as the variances would lead to increased traffic on roads that the plaintiffs were financially responsible for maintaining.
Next the court moved to whether the variances were properly granted. Kansas law provides that an area variance can be granted where five criteria are met. This appeal turns on the criterion requiring that, without the variance, the land owner would experience an unnecessary hardship. The court provided that unnecessary hardship will not be found where the party’s pecuniary interest is merely disadvantaged, but rather will be found where the pecuniary interests or profits would be eliminated. Further, the court provided that knowledge of the restrictive zoning regulations when obtaining the property will render a hardship self-created, even if the land owner acted in good faith. A self created hardship cannot be found to be an unnecessary hardship. The court stated “as a matter of law that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created.”
In apply the rules to the facts of the case, the court found that in denying the variance, the applicant would lose profits and perhaps existing customers, but the business would continue – all pecuniary interests would not be eliminated. Thus, there was no unnecessary hardship. In addition, any hardship experienced by the applicant was self created as they sought to expand the business and its profitability, all the while in conflict with known zoning regulations. Given all these factors, the court found the ZBA’s grant of the area variances was without the support of substantial evidence, resulting in the variances being invalid. Thus, the Court of Appeals of Kansas affirmed the district court’s order vacating the ZBA’s grant of the three area variances.
Hacker v. Sedgwick County, 2012 WL 4039373 (Ct. Ap. Kan., Sept. 14, 2012).
This opinion can be accessed here.