Kansas Supreme Court Clarifies Land Use Permit Jurisdiction, Settles Finney County Dispute • Kansas Reflector

TOPEKA — The Kansas Supreme Court issued a ruling Friday holding that the Finney County Commission has the authority to delegate land use permit decisions to a zoning appeals board as long as the local actions do not conflict with state law.

The opinion by Judge Dan Biles is based on a dispute that arose in 2021 when Huber Sand filed an application with 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 signed petitions protesting the development on a 177-acre site southeast of Pierceville.

The zoning board voted 2-1 to approve a permit for a quarry on land zoned as farmland. 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 appeals court overturned the district court by a 2-1 vote.

The Supreme Court unanimously found the majority of the Court of Appeals to be mistaken and affirmed District Judge Wendell Wurst’s original motion.

Biles’ opinion for the Supreme Court said that the county’s zoning authority 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 explicit declaration of preemption for conditional use permits.”

“The majority of the (Court of Appeals) panel critically failed to provide a simple, textual interpretation of the statute and the regulations,” Biles said.

Instead, the judge wrote that the Court of Appeals had considered two earlier cases from 2003 and 2008 that should not have been considered applicable and “erroneously extended their rulings to the present controversy.”

The Supreme Court’s decision held that the Legislature gave cities and counties the authority to establish zoning regulations without state interference, as long as those local decisions did not conflict with the Planning, Zoning and Subdivision Regulations in Cities and Counties Act.

Finney County exercised that authority and established its own local regulations, and delegated the issuance of conditional use permits to the Finney County Board of Zoning Appeals.