## Facts

- Wabaunsee County landowners entered contracts with wind-energy developers to construct and operate commercial wind-energy conversion systems (CWECS) on their properties.
- Under the zoning code then in effect, commercial wind farms were not permitted as of right and could proceed only if the Board issued a conditional-use permit (CUP) in its discretion.
- After learning of planned large-scale wind development, the Board studied perceived impacts and amended the zoning regulations to prohibit commercial wind-energy projects in the county.
- Landowners and intervenors claiming separate “wind rights” sued, challenging the zoning amendment on constitutional and statutory grounds; the district court upheld the ban and rejected the takings claims.
- In an earlier appeal, the Kansas Supreme Court affirmed on non-takings issues but remanded for consideration of whether the amendment effected a compensable taking.
- On remand, plaintiffs argued the ban took (1) contractual rights to develop CWECS and (2) wind-related property interests; the Board argued no protected property interest existed because any development remained contingent on discretionary CUP approval.

## Issues

1. Whether plaintiffs held a constitutionally protected, vested property interest in developing commercial wind farms based on contracts and asserted “wind rights,” such that the zoning ban effected a compensable taking under the federal and Kansas Constitutions.
2. Whether a land use dependent on discretionary issuance of a conditional-use permit can constitute a vested property right for takings purposes.

## Decision

- The Kansas Supreme Court affirmed the judgment rejecting the takings claims.
- The court held plaintiffs lacked a vested property right to construct and operate commercial wind farms because the use was contingent on discretionary CUP approval.
- The court rejected the contention that private contracts or asserted “wind rights” created an unconditional entitlement to the prohibited use.
- The court reaffirmed that the county’s zoning action was within its police power and that frustrated development expectations, without a vested right, do not establish a taking.

## Legal Principles

- A takings claimant must first establish a constitutionally cognizable, vested property interest in the asserted property or use.
- A vested right is fixed and not dependent on any future act, contingency, or discretionary decision.
- No vested right exists in a land use that may occur only if a governmental body grants a discretionary conditional-use permit.
- The validity of a regulation as an exercise of police power (reasonableness) is distinct from whether it effects a compensable taking; takings analysis turns on the existence and invasion of a protected property interest.
- Private contracts and contingent development plans do not freeze zoning law or convert conditional expectations into vested property rights.

## Conclusion

Because commercial wind-farm development in the county required discretionary conditional-use permits, the plaintiffs had no vested property right to that use; therefore, the county’s later prohibition of commercial wind projects did not effect a compensable taking despite existing contracts and asserted wind-related interests.


Zimmerman v. Bd. of Cnty. Comm’rs of Wabaunsee Cnty., 293 Kan. 332, 264 P.3d 989 (Kan. 2011)