## Facts

- A trust owned property along Kellogg Avenue in Wichita; Nordyke Ventures sought to develop and lease a wireless communications facility on the site.
- Wichita and Sedgwick County adopted a Wireless Communication Master Plan incorporated into the Unified Zoning Code, allowing some disguised towers administratively and taller disguised towers by conditional use permit.
- The applicants sought a conditional use permit for a “stealth flagpole” tower: 135 feet initially, extendable to 165 feet, designed to appear as a flagpole flying a large U.S. flag.
- Planning staff found the proposal conformed to applicable guidelines and recommended approval with conditions.
- The planning commission held a public hearing and recommended approval with conditions, citing mixed nearby land uses, limited commercial zoning, reduced visual impact from stealth design, conformance with the plan, and FAA approval.
- A district advisory board also recommended approval, suggesting the flag be flown only in daylight to avoid nighttime lighting.
- The city council remanded the application to reconsider: (1) use of existing structures or multiple shorter towers, (2) flag-display conditions, and (3) protections if the facility could not be maintained.
- On remand, staff responded to the council’s questions; citizens opposed the tower; the planning commission reaffirmed its approval recommendation.
- After further proceedings, the city council denied the permit.
- The applicants sought judicial review, alleging the denial was unreasonable under Kansas zoning law, violated the Telecommunications Act of 1996 (TCA) substantial-evidence requirement, and was tainted by the council’s executive-session discussion of the district court’s remand; the district court affirmed, and the applicants appealed.

## Issues

1. Whether the city council acted unreasonably under Kansas zoning law in denying the conditional use permit.
2. Whether the denial was “in writing and supported by substantial evidence contained in a written record” under 47 U.S.C. § 332(c)(7)(B)(iii).
3. Whether the city council’s executive-session discussion with counsel regarding the remand rendered the decision unlawful or unreasonable under open-meetings principles.

## Decision

- The Kansas Court of Appeals affirmed the district court and upheld the city’s denial of the conditional use permit.
- The court held the denial was not unreasonable because the decision was at least fairly debatable on traditional zoning considerations, including aesthetics and neighborhood compatibility.
- The court held the denial satisfied the TCA because the written record contained substantial evidence supporting the city’s conclusions, including citizen testimony and documented concerns about visual impact and surrounding area effects.
- The court held the city’s executive session for attorney–client consultation about the remand was permissible and did not taint the subsequent public vote.

## Legal Principles

- Municipal zoning decisions are presumed reasonable; the challenger bears the burden to prove unreasonableness.
- If the reasonableness of a zoning decision is fairly debatable, a reviewing court may not substitute its judgment for the governing body’s.
- Under 47 U.S.C. § 332(c)(7)(B)(iii), a denial of a wireless-facility request must be in writing and supported by “substantial evidence” in a written record, meaning relevant evidence a reasonable mind could accept as adequate.
- A local government is not required to follow staff recommendations if substantial evidence in the record supports a different outcome.
- Citizen testimony and documented concerns about aesthetics, neighborhood character, and potential property impacts may constitute substantial evidence under the TCA when tied to legitimate zoning objectives.
- Attorney–client consultation in executive session concerning litigation or a court remand is permissible when the final deliberation and vote occur in open session and the decision is otherwise supported by the record.

## Conclusion

The court upheld Wichita’s denial of a conditional use permit for a disguised flagpole wireless tower because the zoning judgment was fairly debatable, the denial was supported by substantial evidence in a written record under the TCA, and the council’s executive-session consultation with counsel regarding the remand did not invalidate the later public decision.


R.H. Gump Revocable Trust v. City of Wichita, 35 Kan. App. 2d 501, 131 P.3d 1268 (Kan. Ct. App. 2006)