Protect Rural JoCo LLC v. City of Edgerton

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Protect Rural JoCo LLC, et al., Appellants, v. City of Edgerton, Kansas, Appellee.

No. 125,568

Court of Appeals of Kansas

August 25, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; JAMES F. VANO, judge.

Michelle W. Burns, of Burns Law, LLC, of Olathe, for appellants.

Todd A. Luckman and Lee Hendricks, of Stumbo Hanson, L.L.P., of Topeka, appellee.

Before COBLE, P.J., GARDNER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM:

Protect Rural JoCo LLC (Protect), Frank and Karen Bannister, Daniel and Kelly Morgan, and Shawn and Lora Winslow (Appellants) appeal the district court's dismissal of their petition challenging two annexation ordinances passed by the City of Edgerton (City). The individual appellants own properties around but not within the annexed area. They allege that the City violated K.S.A. 12-520(g), which precludes cities from annexing a narrow corridor of land to enhance future annexations of land. But the City successfully moved to dismiss Appellants' claim for lack of statutory standing. Finding no error, we affirm.

Factual and Procedural Background

In December 2020, the City of Edgerton (City) passed Ordinance 2057 to annex two tracts of land totaling around 47 acres (Property I) into the City's limits. The City passed Ordinance 2058 a week later, which authorized the annexation of another 600-acre parcel (Property II). The owners of all annexed properties consented to these annexations.

In May 2021, Appellants petitioned in the district court challenging the City's annexations. Protect is an association of property owners and residents in Johnson County. According to their petition, the Bannisters live in Johnson County and own property within 1,000 feet of the annexed properties. The Morgans and Winslows also live in Johnson County and own properties adjacent to the annexed properties.

The petition alleged that the City had illegally annexed Property I by violating K.S.A. 12-520(g). This statute bars a city from annexing any "narrow corridor of land to gain access to noncontiguous tracts of land" and requires that such corridors "have a tangible value and purpose other than for enhancing future annexations of land by the city." K.S.A. 12-520(g). Appellants described the land annexed by Ordinances 2057 and 2058:

• "The configuration of a portion of [Property I] on the west side of Gardner Road is such that there exists a narrow corridor of land ('Corridor') to access non-continuous tracts of land, i.e., the remainder of [Property I] on the east side of Gardner Road as well as all of [Property II]."

• "The Corridor within [Property I] touching the west side of Gardner Road is a connector to that part of [Property I] on the east side of Gardner Road."

• "The Corridor has no tangible value of purpose other than to serve as a prohibited flag connector to that part of [Property I] east of Gardner Road as well as the future annexations of land by the City, to wit: [Property II]."

Appellants thus claimed that the City had passed Ordinance 2057 illegally, rendering its annexation of Property I void. They then alleged that Ordinance 2058 and the annexation of Property II depended on the validity of Ordinance 2057, so 2058 was also void. Appellants also alleged that before 2058 was passed, the owners of Property II applied to rezone that land from rural residential under agricultural uses to a logistics park under the industrial LP Logistics Park zoning designation. Appellants thus alleged that the City improperly annexed the properties to allow future rezoning and to expand the nearby Intermodal Logistics Park.

The City moved to dismiss Appellants' petition for lack of standing. It argued that only individuals expressly authorized to challenge a city's annexation had standing that the annexation statute governing standing did not authorize any challenges to consent annexations, and that all owners of the annexed land had consented.

The district court held a hearing. Based on its review of K.S.A 12-520 and K.S.A. 12-538 and relevant caselaw, the district court found Appellants had to show statutory standing, yet they failed to do so. The district court also suggested that only the State could challenge consent annexations under K.S.A. 12-520(a)(7). Because standing is jurisdictional, the district court concluded that it lacked subject matter jurisdiction and dismissed Appellants' petition. See In re Care &Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017).

Appellants timely appeal.

Analysis

I. Acquiescence

We first address the City's argument that Appellants acquiesced to the district court's ruling. The City claims that after the district court dismissed their petition, Appellants contacted the Attorney General and asked the State to intervene or file a new petition to challenge the City's annexations, thus complying with the judgment.

The City attaches several documents to its appellate brief to support these allegations. But Kansas Supreme Court Rules require an appendix to consist "of limited extracts from the record on appeal." Supreme Court Rule 6.02(b) (2023 Kan. S.Ct. R. at 36). We note that the events documented in the City's appendix did not occur until after the district court ruled. Still, those documents cannot be added to the record on appeal. See Supreme Court Rule 3.02(d) (2023 Kan. S.Ct. R. at 21). Because these exhibits are not part of the record on appeal, we cannot consider them in deciding this issue. See In re Marriage of Brotherton, 30 Kan.App.2d 1298, 1300, 59 P.3d 1025 (2002) (finding appendix to appellate brief is not substitute for the record on appeal).

The doctrine of acquiescence prevents a party from taking the inconsistent positions of challenging a judgment through an appeal and accepting the burdens or benefits of that judgment. Whether a party has acquiesced involves a question of this court's jurisdiction and is a question of law subject to unlimited review. Uhlmann v. Richardson, 48 Kan.App.2d 1, 6, 13, 287 P.3d 287 (2012).

"'The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment.'" Varner v. Gulf Ins. Co., 254 Kan. 492, 494, 866 P.2d 1044 (1994) (quoting Younger v. Mitchell, 245 Kan. 204, Syl. ¶ 1, 777 P.2d 789 [1989]).

The record includes no action by Appellants that conveys their intent to waive this appeal. We thus find no acquiescence.

II. Standing

Standard of Review and Basic Legal Principles

We next address the Appellants' claim that the district court erred by finding they lacked standing to challenge the City's annexation. This issue presents a question of law over which our scope of review is unlimited. Emerson, 306 Kan. at 34.

"Standing is a party's right to make a legal claim or seek judicial enforcement of a duty or right." Board of Sumner County Comm'rs v. City of Mulvane, 43 Kan.App.2d 500, 506, 227 P.3d 997 (2010) (citing Black's Law Dictionary 1536 [9th ed. 2009]). Parties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, section 1 of the Kansas Constitution. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 895-96, 179 P.3d 366 (2008).

As the party asserting standing, Appellants have the burden to prove it exists. See Gannon v. State, 298 Kan. 1107, 1123 319 P.3d 1196 (2014). The nature of this burden "depends on the stage of the proceedings because the elements of standing are not merely pleading requirements. Each element must be proved in the same way as any other matter and with the degree of evidence required at the successive stages of the litigation." 298 Kan. at 1123 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 [1992]).

This case was dismissed at the pleading stage. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan, 504 U.S. at 561.

Appellants assert that to challenge a K.S.A. 12-520(a)(7) consent annexation, such as this one, they need only meet traditional standing requirements, meaning they must show only that they "suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct." Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 761, 189 P.3d 494 (2008). "To establish a cognizable injury, a party must establish a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct. [Citation omitted.]" Sierra Club v. Moser, 298 Kan. 22, 33, 310 P.3d 360 (2013).

Yet standing is sometimes controlled by statute. Mulvane, 43 Kan.App.2d at 50607. "When standing is controlled by a specific statute, courts must first determine whether the party meets the statutory standing requirements and, if so, then determine whether the party meets the traditional tests for standing. [Citation omitted.]" 43 Kan.App.2d at 507. The City contends that standing is controlled by statute-K.S.A. 12-538-so Appellants need to meet both statutory and traditional standing requirements. It asks us to adopt the analysis of Mulvane, 43 Kan.App.2d at 506-08. Under that analysis, parties lack standing to challenge a city's annexation unless their standing is expressly authorized by the annexation statute. The City contends that because K.S.A 12-538 does not grant Appellants standing or authorize challenges to consent annexations (those under K.S.A. 12-520[a][7]), the district court correctly found that Appellants lack standing and it lacked subject matter...