†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Randy E. Smith

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Planning Law

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Case Brief # 5

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† October 14, 2000



††††† Court of Appeals of Kansas

††††† Kenneth W. Brown, Don D. Pretzer, David Otto, David Soupene, James L. Rose, Larry Noble, Roy Carter, William E. Butler, Patrick Joseph, Fred Gibbs, John Merriman, Richard A. Nemecheck, Frank O. Nelson, Clark D. Rusco, Appellees, v. Kansas Forestry, Fish and Game Commission, Appellant

2 Kan. App. 2d 102; 576 P.2d 230

††††† March 3, 1978, Opinion Filed




        Eminent Domain



        Does a state agency have to conform its land use to local zoning regulations?



        In 1975, the Kansas State Forestry, Fish and Game Commission purchased two lots in the middle of a 23 lot subdivision near Manhattan, Kansas, which had been zoned for single family residences.

        The commission intended to use the land to construct a parking lot with toilets for those people using the fishing and recreation facility on the adjacent Big Blue River.

        The plaintiffs own and reside on 14 of the 21 other lots in the subdivision.

        The plaintiffs allege that making the lots into a parking lot violates both Riley County zoning regulations and certain restrictive covenants in the subdivision.

        Trial court temporarily enjoined the use.It would become permanent unless the commission appealed, or applied to have the lots rezoned.

        The commission appealed stating it was exempt from local zoning regulations for two reasons:†††

(1)    As an agency of the state performing a governmental function, it is immune from regulations by a mere political subdivision in the absence of a legislative direction.

(2)It relies on it possession of the power of eminent domain as indicating a legislative intent that its use of land not be subject to control by local authorities.



        The Court of Appeals concluded that by having the commission seek rezoning, the local land use decision would be placed in local hands, where in this case, it belongs.

        The district court ordered the commission to seek rezoning and the court of appeals agreed that this was the proper course of action for it to take.


If we look at the factors suggested as relevant by the Rutgers court we find: (1) The

instrumentality seeking immunity is a state agency, and its judgment is entitled to considerable

deference. (2) The general function being performed -- promoting recreation -- is one of

recognized public utility but hardly on a level of importance with public education. The specific

use, providing parking space near but not in a recreation area, is of a more marginal public

interest. (3) While there is public interest in the proposed use in that some people will find this

parking lot more convenient than other available lots, the segment of the population affected is

relatively small. (4) Regulation, if rezoning is refused, would have the effect of requiring the

parking lot to be located in some area other than a residential subdivision. Such a move might

make the lot less convenient, but would probably not substantially impair the usefulness of the

recreation area. (5) The proposed use would, prima facie at least, have a substantial adverse

impact on the surrounding householders and on the existing land use plan. As noted above, these

factors were not weighed on the basis of evidence either by a [**239] zoning body or by the

court below, and our [*114] observations are based on a skimpy record and our own general

knowledge. The commission simply asserted its immunity, without attempting to justify the

reasonableness of its decision, while the court looked no further than the admitted violation of

the zoning regulation. It seems to us that, on balance, the initial decision on reasonableness in

this case can be made more expeditiously and with greater discernment by the local zoning

authority -- here the county. That being so, we infer a legislative intent that the responsibility

should be imposed on that body.



        The Court of Appeals affirmed the district courtís decision.