MCPHERSON LANDFILL, INC.,      )
                               )
                Plaintiff,     )
                               )
        vs.                    )Case No. 00 C 1215
                               )
BOARD OF COUNTY COMMISSIONERS  )
OF SHAWNEE COUNTY,             )
                               )
                Defendant.     )
_______________________________)

This matter comes before the Court on Defendant’s Motion for Summary Judgment. After careful consideration of the arguments, briefs and pleadings, the Court finds the Defendant’s action reasonable pursuant to K.S.A. § 12-760 and thus grants Defendant’s Motion for Summary Judgment.

1. Prior to 1999, Martin Marietta, Inc. ("Martin Marietta") owned a 678-acre parcel of land southeast of Topeka located near 29^th Street and S.E. Ratner Road.
2. Martin Marietta operated a rock quarrying operation on part of this property from the 1950s until the expiration of the last special use permit in 1993 (the terms "special use permit" and "conditional use permit" are used interchangeably).
3. Martin Marietta’s use of the property as a rock quarry was a nonconforming use that predated the enactment of the zoning ordinances. Nonconforming uses are described in the comprehensive zoning regulations Sec. 48-28.00 et seq. Sec. 48-28.01 states that:

The legal nonconforming use of any land and/or structure that existed at the time of adoption of this zoning ordinance, may be continued, although such use does not conform with the provision hereof . . .

4. After the special use permit expired in 1993, Martin Marietta was able to sell and remove rock from this site because the stockpile was grandfathered. Martin Marietta removed small amounts of rock from this site until 1998.
5. The Plaintiff, McPherson Landfill, Inc. ("MLI") is a subsidiary of McPherson Wrecking, Inc. ("McPherson Wrecking").
6. MLI has operated a construction and demolition ("C&D") landfill in Shawnee County since 1996.
7. Former Shawnee County Refuse Director Joe Voth ("Voth") encouraged MLI to establish another C&D landfill. Voth suggested the Martin-Marietta property as a potential site. Voth set up a meeting between MLI and Martin-Marietta, who wanted to sell the property.
8. Prior to McPherson Wrecking’s purchase of the 678-acre tract from Martin Marietta, Voth introduced representatives of MLI to the Metro Planning Staff to discuss proposed plans and gauge the level of support.
9. In April 1999, McPherson Wrecking purchased the 678-acre parcel of land from Martin Marietta.
10. Prior to McPherson Wrecking’s purchase of the 678-acre tract from Martin Marietta, the McPhersons initiated 2-4 conversations with then Shawnee County Commissioner Mike Meier ("Commissioner Meier") regarding their plans. At that time, Commissioner Meier expressed support of Plaintiff’s plans.
11. Sometime in early 2000, Voth arranged a meeting between Virgil McPherson (President of MLI), Scott McPherson (Vice President of MLI) ("McPhersons") and Shawnee County Commissioner Ted Ensley ("Commissioner Ensley") to introduce the McPhersons to Commissioner Ensley and clarify their plans. Commissioner Ensley informed the McPhersons that, at this time, he would not support the proposed plan.
12. Sometime in early 2000, the McPhersons met with Shawnee County Commissioner Marice Kane ("Commissioner Kane") at the proposed landfill site. Commissioner Kane expressed support of Plaintiff’s plans.
13. For $10,000, MLI purchased an approximately 44.6-acre tract out of the 678-acre parcel of the land located at the southeast corner of 29^th Street and Ratner Road from McPherson Wrecking.
14. MLI intended to use the 44.6-acre tract for a C&D landfill. The 44.6-acre tract is the subject property of this case.
15. In March 2000, MLI applied for a conditional use permit ("CUP") to operate a C&D landfill on the subject property.
16. Whether MLI would be able to get a CUP to operate a C&D landfill was a factor in determining the price it was willing to pay Martin Marietta for the property.
17. At no time did any members of the County Commission or the Zoning and Platting Committee promise MLI that the CUP would be granted or represent to others it would be denied.
18. On July 19, 2000, the Zoning and Platting Committee of the Topeka-Shawnee County Metropolitan Planning Commission held a public hearing to consider MLI’s application for a CUP to operate a C&D landfill at the 29^th and Ratner Road site.
19. The Zoning and Platting Committee unanimously recommended denial of the requested permit by a vote of 7-0.
20. In support of its recommendation of denial, Metro Planning staff provided the County Commissioners with a written Conditional Use Permit Report.
21. Before the August 14, 2000 County Commission meeting, County Commissioners received unsolicited letters and phone calls from persons opposed to MLI’s application.
22. On August 14, 2000, the Shawnee County Board of County Commissioners ("Board") met for a public hearing on MLI’s application for CUP to operate a C&D landfill at the 29^th and Ratner Road site.
23. At the hearing, the Board heard evidence both opposing MLI’s application and in favor of the application. This consisted of a variety of detailed, lengthy, and bitterly contested evidence being presented at the public hearing.
24. Both the subject property and all bordering property is zoned "RR-1" Residential Reserve District.
25. Topeka and Shawnee County’s zoning regulations provide separate subsections for use of a property as a quarry (48-3.02(c)(5)) and use of property as a C&D landfill (48-3.02(c)(16)).
26. MLI’s position to the Board is that re-grading and reclamation of the land for residential use would be cost prohibitive.
27. During the Board’s public hearing on August 14, 2000, alternative uses for the property were suggested.
28. At the conclusion of the public discussion, the Board voted to deny the request for a CUP by a vote of 2-1.
29. The County Commission’s decision to deny MLI’s application for a CUP was based on the following facts and conclusions:

1. The applicant is requesting a Conditional Use Permit to establish a construction and demolition landfill on property located on Southeast 29^th Street east of Ratner Road (Parcel I.D. No. 124-18-0-20-01-001-00-0), in unincorporated Shawnee County, Kansas.
2. The proposed site is approximately 44.6 acres out of a quarter section of land located at the southeast corner of 29^th Street and Ratner Road, and is currently zoned "RR-1" Residential Reserve District. The property was developed in the early 1950’s as a rock quarry and its use predated any applicable County zoning regulations or Kansas Department of Health and Environment oversight. Quarrying operations discontinued in 1993. The applicant purchased the property in early 1999 and closed on the sale in April 1999.
3. The site lies in a growing residential area with substantial residential development just to the west of the proposed location.
4. The projected life span of the proposed landfill is 25 years.
5. Southeast 29^th Street is a primary route for students traveling to and from Shawnee Heights High School, Shawnee Heights Middle School, and Tecumseh Elementary School during early morning and mid-afternoon hours. The applicant projected the busiest hours of operation of the construction and demolition landfill site would be between 7:00 a.m. and 8:00 a.m. and again in the afternoon between 4:00 p.m. and 5:00 p.m. These projected hours coincide with those times that students are traveling to school in the morning, and in many cases, leave school after extra-curricular activities in the afternoon.
6. The subject property lies approximately ½ mile east of the current urban services boundary as reflected on the 2010 Future Land Use Plan, and approximately ¼ mile east of the proposed Growth Management Plan currently being drafted by the Metropolitan Planning Staff.
7. As residential development continues to grow, likely eastward, the significance of Southeast 29^th Street as an arterial street will increase significantly.
8. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly affect the timeframe governing the reconstruction of Southeast 29^th Street to meet arterial street standards. Based on the classification of Southeast 29^th Street as a minor arterial road, the current condition of this road appears to be substandard to meet the current and projected traffic demand east of Croco Road.
9. Southeast 29^th Street is characterized as being hilly in this area and currently has minimal shoulder areas in the event of traffic problems or accidents. While this is likely adequate for normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic at this location could substantially increase the risk of serious accidents occurring. Coupled with the projected increases in traffic as this area develops, this presents a grave concern.
10. Environmental concerns have been presented in regards to potential water pollution. A large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the proposed site for the construction and demolition landfill. Studies and borings completed were reportedly done to the north of 29^th Street and not in the specific area where the proposed landfill is to be located. The applicant could not completely address the possibility of hazardous substances being dumped in the landfill and the attendant possibility of such contaminants entering the groundwater system.
11. Other uses for the property have been identified including pasture or agricultural use, a recreational complex utilizing the lake on the property or potential future residential development. While these alternative uses may not be as profitable as the proposed use, they are legitimate alternative uses.
12. Other locations in the County exist to potentially locate future construction and demolition landfills. Such locations would fall outside of the growing urban residential areas of the County.
13. The attached photocopy of an aerial photograph of the relevant area is hereby included in these findings of fact by reference and is intended to assist in spatially locating those items and issues discussed herein.
14. The Topeka-Shawnee County Metropolitan Planning Department Staff recommended DISAPPROVAL of the proposal in its report to the Metropolitan Planning Commission.
15. At a public hearing on July 19, 2000, the Zoning and Platting Committee of the Topeka-Shawnee County Metropolitan Planning Commission considered the proposal and at the conclusion of the hearing recommended unanimously to the Board of Shawnee County Commissioners that the request be DISAPPROVED by a vote of 0-7-0-0.

Plaintiff seeks an order of mandamus, injunctive relief, costs, attorney fees, and/or compensatory compensation as a result of a denial of procedural and substantive due process and equal protection rights of the Fourteenth Amendment. Plaintiff is essentially appealing Defendant’s decision denying Plaintiff’s application for a conditional use permit (CUP) to operate a construction and demolition landfill at a site located on Southeast 29^th east of Ratner Road in Shawnee County. Although Plaintiff asserts the aforementioned claims, this matter is actually a zoning appeal pursuant to K.S.A. § 12-760 from the adverse decision of Defendant Board.

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." K.S.A. § 60-256. See also Glenn v. Fleming, 247 Kan. 296, 304, 799 P.2d 79 (1990). The moving party must prove that no genuine issue of material fact exists. See Glenn, 247 Kan. at 304. A court should review the record to determine if factual issues do exist but should never decide the factual issues for a summary judgment. See Willard v. City of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067 (1984). It is improper to grant a summary judgment when the facts in dispute are material to the deciding issues of the case. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). If the facts are subject to conflicting interpretations or reasonable persons might differ as to their significance, summary judgment is improper. See Williams v. Community Drive-in Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974). However, "where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination." Sterba v. Jay, 249 Kan. 270, 278, 816 P.2d 379 (1991) (citation omitted).

When deciding a motion for summary judgment, the Court must give the party opposing the judgment the benefit of all inferences that are drawn from the facts of the case. Timi v. Prescott State Bank, 220 Kan. 377, 553 P.2d 315 (1976). The party opposing the summary judgment must provide "evidence to establish a dispute as to a material fact." Kerns, 255 Kan. at 268. The burden, however, is on the party seeking the summary judgment, and the Court should apply a strict burden. See Hurlburt v. Conoco, Inc., 253 Kan. 515, 520, 856 P.2d 1313 (1993).

In Combined Investment Co. v. Board of Butler Co. Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), the Kansas Supreme Court set forth the following standards to be applied by courts in reviewing zoning decisions:

1. The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
2. The district court’s power is limited to determining

1. the lawfulness of the action taken, and
2. the reasonableness of such action.

3. There is a presumption that the zoning authority acted reasonably.
4. The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
5. A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
6. Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide off the mark that its unreasonableness lies outside the realm of fair debate.
7. Whether action is reasonable or not is a question of law, to be determined on the basis of the facts which were presented to the zoning authority.

In addition to the standards listed above, the factors in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), can aid the Court in determining the reasonableness and validity of zoning decisions. See Johnson Co. Water Dist. No. 1 v. Kansas City, 255 Kan. 183, 184, 871 P.2d 1256 (1994). In Golden, the court held that a zoning body should bear in mind these factors when hearing requests for change:

1. The character of the neighborhood;
2. the zoning and uses of properties nearby;
3. the suitability of the subject property for the uses to which it has been restricted;
4. the extent to which removal of the restrictions will detrimentally affect nearby property;
5. the length of time the subject property has remained vacant as zoned;
6. the relative gain to the public health, safety, and welfare by the destruction of the value of the developer’s property as compared to the hardship imposed on the individual landowner;
7. the recommendations of a permanent or professional planning staff; and
8. the conformance of the requested change to the adopted or recognized master plan being utilized by the city.

See Golden, 224 Kan at 598. "[I]n reviewing the grant or denial of a special use permit, the same test of ‘reasonableness’ applies as in rezoning cases." K-S Center Co. v. City of Kansas City, 238 Kan. 482, 495, 712 P.2d 1186 (1986).

Plaintiffs argue that Defendants’ action was arbitrary, capricious, and unreasonable and the Board failed to consider the Golden factors set forth above. Defendant responds that the Board’s decision was based upon reasonable consideration of the Golden factors, and, therefore, summary judgment should be granted in favor of Defendants. This Court finds that the Board’s decision was not unreasonable and the Golden factors were sufficiently considered.

The Board made a finding that "[t]he site lies in a growing residential area with substantial residential development just to the west of the proposed location." The Board based this finding on evidence presented at the public hearing on August 14, 2000. Plaintiff asks this Court to consider the area one mile around the subject tract as the neighborhood. Plaintiff argues that this area is sparsely populated and the proposed use is consistent with the existing industrial use of quarrying and rock hauling.

There is a presumption that the Board acted reasonably, and this Court may not substitute its judgment for that of the Board. The Board clearly considered the character of the neighborhood, and Plaintiff has not presented compelling evidence that the Board’s finding was unreasonable.

There is no dispute that all properties surrounding the subject property are zoned RR-1. Plaintiff argues, however, that the proposed use is within the same zoning classification as the non-conforming industrial activities that have been conducted in the area for more than 50 years. Section 48-28.01 of the comprehensive zoning regulations state that:

Nonetheless, the applicable zoning regulations distinguish between use of a property as a quarry (Topeka and Shawnee County’s Zoning regulation § 48-3.02(c)(5)) and use of property as a C&D landfill (Topeka and Shawnee County’s Zoning regulation § 48-3.02(c)(16)). The record indicates that the Board considered the zoning of the subject property and surrounding properties, and Plaintiff has presented no evidence that convinces this Court that the Board’s finding failed to consider this factor.

Without reclamation or re-grading, the property is not ready for residential use. Plaintiff argues that, under its current classification, there is no economically viable use for the property; re-grading and reclamation of the land for residential use would be cost prohibitive. Nonetheless, the Board made the following finding:

Plaintiffs maintain that the County’s refusal to issue the permit provides a basis for the "taking claim" under the 5^th Amendment. In support of this position, Plaintiff points out that in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S. Ct. 2886, 2895 (1992), the Court stated:

The present case is distinguishable from Lucas in that the County’s action was merely to deny the expansion of rights rather than to take away a right to the use of property that already existed. Although the alternative uses are not as desirable for Plaintiff, the evidence suggests that Plaintiff made a calculated business decision with knowledge of the restrictions on the property. Plaintiff has failed to present compelling evidence to this Court that would suggest that the Board did not reasonably consider the suitability of the property for the uses to which it is restricted.

The Extent To Which the Change Will Detrimentally Affect Nearby Property

In its petition, MLI contends that the Board improperly based its decision to deny the requested permit upon a "plebiscite of the neighbors." In Arkenberg v. City of Topeka, 197 Kan. 731, 738 (1966), the court announced the rule that "[z]oning is not to be based upon a plebiscite of the neighbors. Their wishes are to be considered but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large." Nothing in the record suggests that the Board, in making its decision, gave the neighbors’ concerns undue weight.

Plaintiff also argues that the proposed use of the property as a C&D landfill would cause less traffic than the activity that has been carried on for over 50 years. The Board considered traffic issues, as well as pollution, in light of the impact to the community’s general health and safety. The Board’s consideration of this factor is sufficient, and Plaintiff has not demonstrated that the Board acted unreasonably in considering neighborhood concerns.

The property has been vacant as zoned since 1993, and due to more than 50 years of quarrying, the land would require a tremendous amount of reclamation efforts to be used for the Board’s suggested alternative uses. Plaintiff insists that the property will remain vacant unless used as a C&D landfill. Defendant argues that the vacancy is attributable to the action and inaction of the land’s previous and current owners rather than poor zoning and planning by the County. The record indicates that the Board did consider this factor. This Court’s review is limited to determining whether the Board’s finding was "so wide off the mark that its unreasonableness lies outside the realm of fair debate." Plaintiff has not shown that the Board did not give reasonable consideration of this factor in making their determination.

The Board heard evidence that public health, safety, and welfare would be promoted by denial of the application as well as evidence that a new C&D landfill was needed and that it was not economically feasible for MLI to use the property for anything else. The Board made the following findings:

5. Southeast 29^th Street is a primary route for students traveling to and from Shawnee Heights High School, Shawnee Heights Middle School, and Tecumseh Elementary School during early morning and mid-afternoon hours. The applicant projected that the busiest hours of operation of the construction and demolition landfill site would be between 7:00 a.m. and 8:00 a.m. and again in the afternoon between 4:00 p.m. and 5:00 p.m. These projected hours coincide with those times that students are traveling to school in the morning, and in many cases, leave school after extra-curricular activities in the afternoon.

7. As residential development continues to grow, likely eastward, the significance of Southeast 29^th Street as an arterial street will increase significantly.
1. The introduction of regular, heavy truck traffic along this stretch of road will undoubtedly affect the timeframe governing the reconstruction of Southeast 29^th Street to meet arterial street standards. Based on the classification of Southeast 29^th Street as a minor arterial road, the current condition of this road appears to be substandard to meet the current and projected traffic demand east of Croco Road.
2. Southeast 29^th Street is characterized as being hilly in this area and currently has minimal shoulder areas in the event of traffic problems or accidents. While this is likely adequate for normal vehicle traffic, additional heavy truck traffic and, more specifically, turning truck traffic at this location could substantially increase the risk of serious accidents occurring. Coupled with the projected increases in traffic as this area develops, this presents a grave concern.
3. Environmental concerns have been presented in regards to potential water pollution. A large pond/lake is located on the relevant quarter section and crosses the southwest quarter of the proposed site for the construction and demolition landfill. Studies and borings completed were reportedly done to the north of 29^th Street and not in the specific area where the proposed landfill is to be located. The applicant could not completely address the possibility of hazardous substances being dumped in the landfill and the attendant possibility of such contaminants entering the groundwater system.

12. Other locations in the County exist to potentially locate future construction and demolition landfills. Such locations would fall outside of the growing urban residential areas of the County.

Evidence that public health, safety, and welfare would be promoted by denial of Plaintiff’s application focused on two main areas, traffic safety and environmental concerns. Plaintiff argues that the predicted average of 25-30 trucks that would be coming to the site each day would not create any more risk to the area children. Additionally, Plaintiffs have noted that the Director of Shawnee County Public Works, Mike Sease, had certified the road as acceptable for heavy truck traffic. Although the roads may be sufficient to support the weight of heavy trucks, the Board concluded that based on the types of vehicles, the nature of the roads they would travel, the maneuvers they would make, and the hours of increased traffic supported denying the application.

Environmental concerns have also been raised as justification for denial of Plaintiff’s application. The County Health Agency conducted a study in July 2000 that showed that there was no groundwater on the landfill site that was at risk; however, a report prepared by Dow Geological Services, Inc. expressed concern that the 23 borings performed by MLI to determine potential for groundwater contamination may have been useless because they apparently came from a different tract of land than the proposed C&D landfill site. Moreover, the Dow Report contradicted Plaintiff’s claim that groundwater had not been encountered during quarrying. MLI conducted additional borings and studies and presented evidence that the allegations were not justified.

Hardship to the Plaintiff can be measured by the loss of its investment in the land as well as loss of potential revenue. Plaintiff did not present evidence to the Board regarding how much money had been invested or how much MLI claimed that it would lose. This Court is limited to consideration of the facts that were presented to the Board; therefore, those numbers will not be considered. However, the Board did understand that denial of Plaintiff’s application would create a financial hardship on the applicant. Plaintiff fails to present compelling evidence that Defendant failed to reasonably consider that hardship in making its determination.

As evidenced by its findings, the Board also considered the potential benefit to the public by granting Plaintiff’s application. Plaintiff argues that in order to have economic growth and construction in Topeka, there must be a new C&D landfill. The Board recognized such a need, but determined that other locations exist outside of growing suburban residential areas within the County to potentially locate future C&D landfills.

The Recommendations of a Permanent or Professional Planning Staff

On July 19, 2000, the Topeka-Shawnee County Metropolitan Planning Zoning and Platting Committee held a public hearing and heard arguments both in favor of and against MLI’s proposal. The Committee, by a unanimous 7-0 vote, recommended that the request for a CUP be denied. In a seven-page report, the Committee stated that the proposal was evaluated in accordance with the guidelines set forth in § 48-25.02 of the City of Topeka, Unincorporated Shawnee County, Kansas Comprehensive Zoning Regulations. At a public hearing before the Board, planner Tim Paris reported to the Board that introducing heavy truck traffic in the area could be a problem now and in the future since significant residential growth had been forecast for the area. Plaintiff characterizes the Committee’s report as an "incompetent opinion"; however, Plaintiff presents no compelling evidence to support such a contention. This Court agrees with Plaintiff’s own admission that "this factor definitely works in favor of the County."

The comprehensive plan in place at the time of the application, known as the 2010 Future Land Use Plan, states in part that "Industrial development and expansion shall be allowed in rural areas only when it is agriculturally oriented, or when it is dependent on a unique natural resource." Additionally, the comprehensive plan forecasted significant growth in the area in support of the Board’s previously discussed findings. The Board concluded:

6. The subject property lies approximately ½ mile east of the current urban services boundary as reflected on the 2010 Future Land Use Plan, and approximately ¼ mile east of the proposed Growth Management Plan being drafted by the Metropolitan Planning Staff.

The record indicates that the Board took into consideration both the current comprehensive plan as well as the updated draft plan being drafted.

4. MLI Was Afforded Procedural Due Process

Plaintiff contends that Shawnee County Commissioners Meier and Ensley had inappropriate ex parte contacts, prejudged the issue, and did not provide Plaintiff a fair and impartial hearing.

Plaintiff describes the climate created by the active campaign against the proposal as a circus where it would have been "political suicide" to grant Plaintiff’s CUP application. Each Shawnee County Commissioner received at least 132 form letters each, on two separate occasions, opposing the proposed landfill. In addition, there were numerous phone calls opposing the proposal, a letter from the superintendent of the schools who feared for the safety of area children, and vocal opposition from State Representative Dixie Toelkes. Plaintiff characterizes these unsolicited contacts as inappropriate ex parte contacts. However, Plaintiff apparently ignores that they engaged in the very conduct they complain of. MLI contacted each of the Commissioners prior to the hearing attempting to gain support for the CUP application.

As elected representatives, Shawnee County Commissioners are likely to receive unsolicited contacts on proposals before them from constituents, including commercial land developers. MLI was not only aware of this process, but initiated contacts prior to their CUP application. In fact, at one point prior to the hearing, the McPhersons initiated a meeting with Commissioner Ensley to dispel rumors that the site was to be used as a nuclear waste dump. In Petition of City of Overland Park, 241 Kan. 365 (1987), the court determined that ex parte communications between a board of county commissioners considering a city’s annexation petition and city officials did not violate the due process rights of landowners opposed to annexation as long as the landowners had adequate time to respond to the ex parte communication. Plaintiff had adequate time to respond to issues raised by those opposing the granting of MLI’s CUP application.

Plaintiff also argues that the Board’s decision was improper because Commissioners Meier and Ensley prejudged the issue. In Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 605 P.2d 533 (1980), the Kansas Supreme Court upheld a district court’s finding that a board’s denial of a request for a zoning change was unreasonable. The present case is distinguishable from Combined Investment, however. In Combined Investment, unlike here, the board failed to consider many of the Golden factors, and one of the three County Commissioners did not even attend the hearing. In the present case, the Board of Shawnee County Commissioners did hear substantial evidence from both sides at the August 14, 2000 hearing, and all three Commissioners were present. Plaintiff has failed demonstrate to this Court that the Commissioners did not consider the evidence presented at the August 14, 2000 hearing. Sufficient evidence was presented at the hearing to support the Board’s denial of Plaintiff’s CUP application, and this Court may not substitute its judgment for that of the Board unless clearly compelled to do so by the evidence.

This Court cannot reweigh the evidence or substitute its judgment for that of the board. This Court is limited to determining if the evidence supports the Board’s findings. Plaintiff has failed to meet the burden of rebutting the presumption of reasonableness with compelling evidence. The Board reasonably considered the pertinent factors in denying Plaintiff’s request for a CUP.

Moreover, MLI was afforded procedural due process in this case. Plaintiff’s contention that Board members had inappropriate ex parte contacts is not substantiated. Prior to the public hearing, Board members received unsolicited letters and telephone calls from persons opposed to the proposed C&D landfill; however, as elected Board members, that does not seem unusual. Plaintiff also had contacts with the Board members. The evidence does not suggest that Board members prejudged the case. Sufficient evidence was presented, and heard by Board members, to support denial of MLI’s application.

For the reasons set forth above, the Court finds Defendant’s action in denying the Plaintiff’s CUP application reasonable pursuant to K.S.A. § 12-760 and grants Defendant’s Motion for Summary Judgment. The foregoing Memorandum Decision and Order shall serve as the Court’s final entry of judgment in this matter, no further journal entry being required.

 
Dated this ________ day of _______________________ 2001.

 
_________________________________
Eric S. Rosen
Judge of the District Court