University of Vermont AAHS

Bice v. City of Rexford

Court of Appeals of Kansas.

2007 WL 2915611
UNPUBLISHED OPINIION

October 5, 2007

Summary of Opinion

Tony and Lisa Bice had been keeping horses for resale purposes within the limits of the city of Rexford when the city passed an ordinance prohibiting the keeping of farm animals within the city limits. The ordinance was passed not as zoning but under the police-power authority. This court would have upheld the authority of the city to bar farm animals and apparently would have allowed the city to require the removal of the Bices horses. However, the Bices apparently moved from the city. Their attorney cancelled oral argument and the case was dismissed as moot.

Text of Opinion

Times change. The issue in this case is whether all residents of a small rural community must change with them.

The city of Rexford (2000 population: 157) in rural Thomas County enacted an ordinance prohibiting farm animals in the city beginning April 1, 2005. Tony and Lisa Bice were keeping horses in the city for resale purposes before the ordinance was passed; they seek to continue to do so. The Bices claim the protection of a 1982 statute protecting farmland from nuisance lawsuits arising from urban encroachment; they also claim that they may treat the city's ordinance as a zoning regulation and claim protection of another statute protecting pre-existing uses from zoning changes. The district court found that the 1982 statute provided no protection to the Bices and that the Rexford ordinance was not zoning but a typical ordinance under the city's general police-power authority. We agree.

The facts are undisputed. The Bices were keeping horses in Rexford before the city passed its ordinance prohibiting livestock, including horses. The Bices sold horses, so their use may be fairly characterized as agricultural. After the effective date of the ordinance, Rexford served a formal notice on the Bices that the horses must be removed from the city within 10 days or a complaint would be filed against the Bices for violating the ordinance. Ordinance violators can be fined $100 or imprisoned for 30 days or both. In addition, the city can remove the nuisance, including taking the horses to an animal shelter. Faced with these potential consequences, the Bices filed suit to enjoin enforcement of the ordinance.

On undisputed facts, we have unlimited review of the interpretation of the applicable statutes. Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270, 130 P.3d 555 (2006).

The Bices contend that two statutes protect their right to continue raising horses within Rexford. First, they contend that K.S .A. 2-3202, a provision of the Kansas right-to-farm law, prevents Rexford's interference by ordinance from their use of property within the city to raise horses for sale, an agricultural use. Second, they contend that the Rexford ordinance banning all livestock from the city constitutes a zoning ordinance. Based on that premise, they contend that a provision of Kansas' zoning statutes, K.S.A. 12-758, provides protection to them because their use of the property to raise horses for sale predated the ordinance.

May the Bices Rely on a Kansas Law Protecting Farmland from Nuisance Lawsuits to Continue Raising Horses within the City of Rexford?

Consideration of the Bices' first claim requires a review of the Kansas right-to-farm law. Kansas adopted it in 1982. See Finlay v. Finlay, 18 Kan.App.2d 479, 482-85, 856 P.2d 183,rev. denied253 Kan. 857 (1993). But a review of the statute, found at K.S.A. 2-3201 to 2-3203, shows that it has no application here.

The statute consists of three sections: a purpose section, K.S.A. 2-3201; a substantive section, K.S.A. 2-3202; and a definitions section, K.S.A. 2-3203. The purpose section tells us that the statute is aimed at protecting “agricultural activities conducted on farmland ...from nuisance lawsuits,” which may “force the premature removal” of lands from agricultural use. (Emphasis added.) K.S.A. 2-3201. The substantive section then provides, with limited exceptions not at issue here, that “[a]gricultural activities conducted on farmland, if ... established prior to surrounding nonagricultural activities, are presumed to be reasonable and do not constitute a nuisance, public or private.”(Emphasis added.) K.S.A. 2-3202. Consistent with the statutory purpose, the substantive provision in K.S.A. 2-3202 keeps pre-existing agricultural activities from being subject to lawsuit for nuisance when nonagricultural activities take over the area. The legislature has thus codified a rule for agricultural activities in these circumstances where one who comes to the nuisance may not sue to abate it. See also K.S.A. 47-1505 (codifying the coming-to-the-nuisance rule for feedlots operated according to applicable regulations).

The Kansas right-to-farm law has no application here: neither Rexford nor its residents have sued the Bices to abate a nuisance. Rexford has simply adopted an ordinance prohibiting anyone from maintaining livestock in the city.

May the Bices Rely on a Kansas Statute Allowing Pre-existing Uses to Continue Raising Horses in the City After the Enactment of New Zoning Regulations?

The Bices' second argument also tries to apply a statute well outside its scope of application. K.S.A. 12-758 provides that zoning regulations generally “shall not apply to the existing use of any building or land.”Under this provision, nonconforming uses may generally continue, though any expansion or enlargement of the pre-existing use is subject to the new zoning regulation. See Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 69 P.3d 601 (2003).

The Bices' argument that zoning statutes are applicable here is syllogistic, but it contains a flawed premise. They argue: Zoning ordinances are enacted to promote the health, safety, and welfare of the community. This ordinance was enacted to promote the health, safety, and welfare of the community. Therefore, this ordinance is a zoning ordinance.

The argument is flawed because zoning ordinances are not the only mechanism available for a city to promote the health, safety, and welfare of the community. Zoning ordinances are premised on the police power. See Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99 (1923) (holding statutorily authorized zoning ordinances were proper under police power); Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L.Ed. 303, 47 S.Ct. 114 (1926) (same). But the essence of zoning is to create zones or districts within which certain activities may or may not take place. The existence of zoning authority does not negate a city's police power to enact other citywide ordinances promoting the public health, safety, and welfare. Such ordinances are commonplace. Cities may prohibit fireworks altogether or certain types of fireworks throughout the city. Cities may prohibit the use of dynamite within the city.

Rexford has the same police-power authority to enact an ordinance limiting the keeping of animals within its city boundaries. We are long past the time when private property rights were held in such sanctity over the public interest that the Kansas Supreme Court held that a city ordinance limiting the number of cats to no more than five per residence was held to be unconstitutional. See Smith v. Steinrauf, 140 Kan. 407, 36 P.2d 995 (1934). By 1958, the Kansas Supreme Court recognized that “ordinances have been passed by cities to prevent the maintenance of poultry and livestock within the city limits.”Dill v. Excel Packing Co., 183 Kan. 513, 524, 331 P.2d 539 (1958). Indeed, such ordinances have no doubt become commonplace in cities other than Rexford over the past several decades. And several Kansas cases have upheld the regulation of animals under a city's police power. See Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758 (1989) (upholding ban on pit bulls within city); State v. Risjord, 249 Kan. 497, 819 P.2d 638 (1991) (upholding limits on horseback riding within city parks); Dorssom v. City of Atchison, 155 Kan. 225, 124 P.2d 475 (1942) (upholding city authority to require tuberculosis testing of cows within city).

On appeal, the Bices also raise a new claim of protection for their pre-existing use. In the final sentence of their brief addressing this issue, they assert that their pre-existing use also must be allowed under “the common law as set forth in”Board of Seward County Comm'rs v. Navarro, 35 Kan.App.2d 744, 133 P.3d 1283 (2006). But the Navarro case is not a common-law case-it interprets zoning statutes applicable to the controversy then before the court. And we find no suggestion there or elsewhere that there is a common-law rule under which some citizens may keep doing things prohibited by lawful ordinance just because they had done them before passage of the ordinance.

Conclusion

Acting through its elected city council, Rexford has adopted an ordinance prohibiting residents from keeping farm animals in the city. The Bices' attempt to claim a statutory exemption from the reach of this ordinance fails because neither statute has any application here. The Bices are subject to the Rexford ordinance.

Some additional horse owners, Michael Peterson and Mark and Melissa Bird, joined in the Bices' suit against Rexford. While the suit and appeal have been pending, however, these parties either moved from Rexford or stopped keeping horses within the city. Their attorney appropriately conceded at oral argument that because of these changes, their claims are now moot.

The judgment of the district court is affirmed with respect to the Bices. The appeals of Peterson and the Birds are dismissed as moot.

Return to Top of This Page
Return to Land Use Disputes Page