Mathews v. City of Mission Hills

NOT DESIGNATED FOR PUBLICATION

No. 122,710

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GARY MATHEWS,
Appellant,

v.

CITY OF MISSION HILLS, KANSAS BOARD OF ZONING APPEALS,
Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed February 11,
2022. Affirmed.

Patrick B. Hughes, of Adams Jones Law Firm, P.A., of Wichita, for appellant.

George F. Verschelden and Anna M. Krstulic, of Stinson LLP, of Kansas City, Missouri, for
appellee.

Before WARNER, P.J., CLINE, J., and WALKER, S.J.

PER CURIAM: The Kansas City Country Club (KCCC), which operates a golf
course, submitted two applications to the Architectural Review Board (ARB) for the City
of Mission Hills, Kansas (City), seeking a building permit to install a permanent
electrical fan and supportive electrical equipment on hole 12 so the green could be
maintained more efficiently. The ARB held numerous hearings concerning the
installation of the fan. During those hearings it heard testimony for and against the
installation. Individuals who worked at the KCCC testified in favor of the installation,
while several residents who owned homes near the green on hole 12 argued against the

1
installation. KCCC withdrew its first application before the ARB ruled on it. When it
refiled its application at a later date, the same concerns and responses were reiterated and
discussed at length.

At issue during the hearings were provisions of the Code of Ordinances of the City
of Mission Hills (Code). The ARB eventually approved the KCCC's application, and the
City's Board of Zoning Appeals (BZA) later affirmed the ARB's decision. Gary Mathews,
one of the residents who had been outspoken against the installation of the fan, filed suit
against the City in district court and argued the BZA's decision should be reversed. After
a bench trial, the district court affirmed the decisions of the ARB and BZA.

Mathews appeals, arguing that the ARB failed to follow the proper procedure from
the City's Code when voting on KCCC's application. He also argues the evidence
presented controverted the ARB's conclusion that the installation of the fan would not
adversely affect the surrounding property values, and the district court erred in affirming
the ARB's decision. Additionally, he argues the district court erred when it affirmed the
ARB's imposition of conditions on the use of the fan.

After careful review, we find that the ARB complied with the applicable Code
provisions when it approved KCCC's application and hold that the district court's
decision affirming the ARB's conclusion that the fan would not impact the surrounding
property values was reasonable. Finally, we find that the district court did not err when it
affirmed the use conditions imposed by the ARB, because the Code allowed for such
conditions. As a result, we affirm the district court's judgment in its entirety.

FACTS

In April 2017, the ARB met and reviewed a building permit application from the
KCCC, which proposed to install two new fans and related electrical equipment for the

2
greens on holes 12 and 18 of the golf course. Loren Breedlove, the superintendent of the
KCCC, said the golf course already had permanent fans on 14 of the 18 greens. He
explained that fans are beneficial to greens because they increase air circulation, which is
important because it helps lower the temperature of the grass and soil during days of high
heat and humidity. Without the increased air circulation, the high temperature and
humidity harms the grass.

Breedlove also explained that the KCCC used temporary fans with generators on
greens 12 and 18 in the past because those fans did not require installation of permanent
electrical hookups, which would require ARB approval. However, the KCCC wanted to
install the permanent electrical fans because they are quieter than the temporary fans.
Specifically, the electrical fans emitted approximately 60 decibels at 50 feet, compared to
the sound of the portable fans, which emitted approximately 77 decibels at 50 feet.
Breedlove said the KCCC planned to run the fans from sunrise to sunset. Breedlove also
said the fans run on a timer.

An attorney then spoke in front of the ARB. He represented residents who lived
near the green on hole 12 and were concerned about the impact of the permanent fan on
that hole. Those residents opposed the installation of the electric fan because of the noise
it would produce, and argued the noise prevented them from using their decks and other
outside areas of the residences. Some of those residents also were present at the meeting
and made statements about the proposed fan to the ARB.

Mathews, who lived near hole 12, reiterated many of the concerns the attorney had
previously raised. He said the fan would interfere with the enjoyment of his home and
compared the noise of the fan to a dripping faucet or a fire alarm that constantly beeps
because it needs a new battery. Mathews had lived near hole 12 for approximately 27
years and never noticed any sort of problem with it, though he did say that he often
noticed workers removing moisture from the green. He also said the installation of the

3
fan would negatively affect the value of his home because he would have to disclose its
existence to any prospective buyer. Other residents who addressed the ARB echoed
Mathews' concerns.

Breedlove responded by saying the fans would only be used during days of high
heat and humidity, and the KCCC planned to only use the fans from sunrise to sunset. He
reiterated the importance of the health of the grass on the greens and explained that the
green on hole 12 did not get much air circulation due to its topography. He also explained
that, despite some of the residents' testimony about their opinions concerning the green
on hole 12, other KCCC members did not share their opinion that the green was in
pristine condition.

The ARB subsequently continued the discussion about the fan installation so that
tests could be done concerning the noise the fans emitted and the distance of the proposed
fan from the nearby homes. However, since it was unopposed, the ARB approved the
installation of a fan on hole 18.

The ARB discussed the installation of the fan again in May 2017. The Mission
Hills City Administrator announced that the City had arranged for testing with Avant
Acoustics (Avant), which had been completed. Before testing, Avant's acoustical expert
spoke with the expert working with the attorney that testified at the April hearing, and the
attorney's expert did not have a problem with the testing procedures. Due to a lack of
electricity on hole 12, Avant could not complete testing for the electric fan on that hole.
However, Avant tested the noise from an electric fan on hole 10, which produced
comparable results.

The City Administrator said that City policy limited noise to 70 dBA at 30 feet.
The noise level from the portable fan powered by a generator on hole 12 emitted 75.3

4
dBA at 30 feet, while the testing on the electric fan at hole 10 revealed that the noise of
an electric fan was 7.4 dBA lower than the noise from a portable fan with a generator.

The attorney that testified at the April hearing said he had hired an acoustical
expert, Brian Kubicki, who was also present during the testing. Kubicki conducted his
own measurements in addition to those done by Avant, which he presented to the ARB.
He compared the topography of the green on hole 12 to an amphitheater, which meant
that sounds would rise to higher locations. He also read from the Code regarding
unnecessary noises. In Kubicki's opinion, the noise produced by the fans violated the
City's noise ordinance.

After the ARB heard the conclusions from both sound experts, various residents
that lived near hole 12 once again made comments. Like the hearing in April, the
residents who spoke expressed their disapproval of the permanent electric fan being
installed on hole 12. The ARB once again continued the discussion until a later hearing
so the City Attorney could be present. However, before the ARB could reconvene to
consider the matter, the KCCC withdrew its application to install the fan.

In August 2017, Mathews filed a lawsuit against the KCCC regarding the use of
the portable fan and generator on hole 12. As relief, he sought an injunction against the
KCCC regarding the use of the portable fan. He also sought damages from the KCCC
because of the nuisance created by the noise of the portable fan. Though not clear from
the record, apparently no further activity has occurred on Mathews' lawsuit, likely
because of the ARB's and BZA's ultimate decision allowing installation of a permanent
electric fan on the 12th green.

In February 2018, the KCCC resubmitted an application for a building permit so it
could install the permanent electric fan on hole 12. The ARB met and discussed the
application later that month. At the hearing, the ARB incorporated the record from the

5
2017 hearings, which included the ARB minutes, letters from residents, acoustic testing
reports, and other data submitted.

Nathan Stewart, the general manager of the KCCC, told the ARB that the
proposed equipment did not violate any City guidelines or Code provisions. John Daniels,
an agronomist for the United States Golf Association, Breedlove, and the representative
of Avant also made statements. Daniels and Breedlove both argued in favor of the fan
and explained why it needed to be installed. The representative of Avant recounted the
results from the previous tests on hole 12 and the sound emitted from the fans.

Mathews again spoke against the installation of the fan. He read from multiple
Code provisions he believed would be violated by the installation and operation of the
permanent fan. Bernie Shaner, a real estate appraiser, gave the ARB copies of an
appraisal he completed on Mathews' property. In his opinion, Mathews' property value
increased because it abutted the golf course. Shaner also indicated that installation of the
permanent fan, if approved, would decrease Mathews' property value by approximately
$135,000.

Kubicki also recounted his findings from the sound testing he previously
completed. Other residents also argued against the installation of the fan due to the noise
and how it could affect their property values. Nick Christians, a professor of horticulture
at Iowa State University, told the ARB that a fan did not need to be installed on hole 12
to maintain it in reasonably satisfactory condition. At the conclusion of the hearing, the
ARB again voted to continue the discussion so it could compare the noise from the
portable fan and an electric fan in person and review the information submitted at the
hearing.

In March 2018, the ARB reconvened and discussed the issue further. At the outset,
the ARB noted that the installation of the electrical fan and associated equipment would

6
not conflict with any of the City's Code or with any design guidelines. Stewart again
testified and referred to the comments he previously made to the ARB. Chris Shank
spoke against the installation of the fan and argued that it failed to meet the requisite
factors under the Code. He also referred to Shaner's previous comments about decreased
property values. Stewart subsequently responded that the KCCC contested the claim that
property values would be decreased because of the fan. During the hearing, a member of
the ARB made a motion to move the discussion into an executive session to allow the
ARB members to receive legal advice regarding the installation of the electric fan. The
ARB then approved the motion and went into closed executive session.

When the ARB resumed its open hearing, legal counsel for the ARB then read the
five factors listed in Mission Hills City Code § 5-146 required for approval of a building
permit, and stated that if any ARB member did not agree that any of the factors had not
been met, they must not vote to approve the KCCC project. The ARB members then
agreed the findings under the provision of the Code had been met and voted to approve
the building permit for the project with the following stipulations: (1) The fan could only
run from 8 a.m. to 5 p.m., (2) the fan could only operate from June 1 to September 30
each year, and (3) the fan could only operate on days where the forecast temperature
exceeded 85 degrees. Four of the five ARB members voted to approve the project and
one abstained from the vote. None of the ARB members voted against approval.

Following the ARB's approval of the building permit with the three restrictions,
both the KCCC and some of the residents appealed the ARB's decision to the BZA. The
BZA held a hearing in May 2018 to decide the matter. After one of the BZA members
read the applicable BZA bylaws and zoning regulations, Shank spoke on behalf of the
residents. Shank told the BZA that the residents believed the ARB made a mistake when
they approved the building permit for the fan. He argued the fan was too close to the
residents' homes and the fan would emit too much noise. He also noted Shaner's appraisal
and the projected diminution in property value the residents would suffer if the BZA

7
approved the fan. Shank then stated the ARB did not adequately consider the applicable
Code provisions the City had in place.

The KCCC had appealed to the BZA from the three restrictions the ARB had
placed upon the use of a permanent fan on the 12th green. Mike McCann addressed the
BZA on behalf of the KCCC. He reiterated the reasons the KCCC wished to install the
fan. His arguments essentially mirrored the arguments made before the ARB. He
acknowledged Shaner's previous statements that the golf course added value to the
residents' homes, but the noise of the fan decreased the property value. But since the
permanent electric fan would be quieter that the temporary one, he believed installation
of the permanent fan would raise the residents' property value back up.

After McCann spoke, the BZA opened the floor to other citizens who wished to
comment. Many residents spoke against the installation of the fan and used many of the
same arguments made to the ARB. Breedlove then spoke in favor of the KCCC's
application. The BZA then voted on the matter. By a vote of 3-0, it found that the ARB
acted reasonably when it approved the KCCC's fan application. By another 3-0 vote, the
BZA found the ARB acted reasonably when it applied use conditions on the operation of
the fan.

In May 2019, Mathews filed suit against the City in district court. He argued the
ARB acted unreasonably when it approved KCCC's application. He also complained that
the ARB failed to set forth evidence that supported their decision regarding the five
factors listed in the Code of Ordinances City of Mission Hills (Code) § 5-146. He
contended the BZA's decision affirming the decision of the ARB should be reversed.

The City's response to Mathews' suit countered that the ARB was not required to
make specific findings on each factor listed in Code § 5-146. The City also argued that
Mathews failed to carry his burden to demonstrate the City's decision was unreasonable.

8
Finally, the City argued the installation of the fan would not adversely affect the
residents' property values.

In October 2019, after a bench trial in the case, the district court issued its findings
of fact and conclusions of law. The district court found that the fan would not adversely
affect the property values of the surrounding properties, nor did it impact the health,
safety, or general welfare of the City residents. Ultimately, the district court found that
the ARB and BZA decisions were reasonable under the five factors listed in Code § 5-
146 and affirmed their decisions.

Mathews has timely appealed from the district court's rulings.

ANALYSIS

The ARB's decision to approve KCCC's building permit application

As his first issue on appeal, Mathews argues the ARB erroneously approved the
KCCC's application without making the required findings as stated in Code § 5-146.
Specifically, in his appellate brief, for the first time Mathews complains that a preceding
Code section, § 5-142(C), requires the ARB to approve a motion which explicitly sets
forth the required findings under Code § 5-146. In response, the City argues that
Mathews failed to preserve this argument for appeal. Alternatively, the City argues the
ARB made the appropriate findings.

Generally, issues not raised before the district court cannot be raised for the first
time on appeal. Gannon v. State, 303 Kan. 682, 733, 368 P.3d 1024 (2016).

Code § 5-146 states, in part:

9
 "No plans or specifications submitted in connection with applications for a
permit for exterior work filed pursuant to Section 5 1025 shall be approved by the ARB
unless it finds:
....
"B. That the proposed Structure will not adversely affect the values of surrounding
properties and will not adversely affect the health, safety, and general welfare of the
residents of the City."

The City contends that "Mathews did not argue to the District Court that the ARB
was required to make a determination by motion that the building permit application
would not adversely affect the value of surrounding properties." Instead, Mathews argued
before the district court that the KCCC's application should have been denied because the
ARB failed to specifically find that the application would not adversely affect the
property values of the residents' homes.

A review of the record reveals that the City's complaint is correct. In district court,
Mathews argued that the Code required the ARB to find that every factor listed in Code
§ 5-146 had been satisfied before it could approve the KCCC's application. As noted, he
specifically faults the ARB for not making particularized findings before granting its
approval. Mathews acknowledges that the ARB generically agreed the five requisite
factors, including no diminution of surrounding property values, had been met. But he
complains that the ARB's action failed to specifically address the requirement of Code §
5-146 that the installation of the electric fan would not adversely affect the property
values of the surrounding properties.

The City is also correct in noting that Mathews' theory on appeal differs
significantly in emphasis from the arguments he made in district court. Notably absent
from his argument before the district court judge is any allegation of a procedural
deficiency by the ARB which would violate Code § 5-142. That section requires that any
action of the ARB be taken based upon a motion by a member of the ARB to approve

10
such action. Instead, Mathews' arguments in district court largely concerned the factors
from Code § 5-146. While acknowledging this change in his angle of legal attack in his
reply brief, Mathews argues that we can address the issue under an exception to the
general rule regarding issues not raised in the district court.

As our Supreme Court has previously explained, the exceptions to the general rule
that an appeal cannot be taken from a matter not raised in district court include the
following: (1) the newly asserted theory involves only a question of law arising on
proved or admitted facts and is finally determinative of the case, (2) consideration of the
theory is necessary to serve the ends of justice or to prevent denial of fundamental rights,
and (3) the district court was right for the wrong reason. In re Estate of Broderick, 286
Kan. 1071, 1082, 191 P.3d 284 (2008).

Mathews argues that the first and second exceptions apply to the issue. He is
correct as to the first exception. The issue fits within it because the issue is a pure
question of law. As such, we will address his issue on the merits.

"Statutory construction is a question of law subject to de novo review, even when
a court reviews a decision of a zoning board." Layle v. City of Mission Hills, 54 Kan.
App. 2d 591, 595, 401 P.3d 1052 (2017) (citing Zimmerman v. Board of Wabaunsee
County Comm'rs, 289 Kan. 926, 939, 973, 218 P.3d 400 [2009]). Similarly, the
interpretation of a regulation is also subject to de novo review. Layle, 54 Kan. App. 2d at
595.

As we previously noted, Mathews now argues on appeal the ARB could only
approve the KCCC request upon motion by a member of the ARB which specifically
contained the required findings listed in Code § 5-146. To support his argument, he cites
Code § 5-142C., which states, in part, that "[a]ll matters requiring a decision of the ARB
shall be determined upon a motion by a member."

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 While at first glance the differences between Mathews' old and new complaints
about the ARB's decision may seem too nuanced to distinguish, in reality the differences
in his disparate approaches before the district court and our court are relatively simple to
grasp. Before the district court Mathew's case was built around the argument that the
ARB made a substantive error in its findings under Code § 5-146. Now, on appeal, he
contends that the real defect in the ARB's action was a procedural one, i.e., failure to
follow the specific method for approval of actions set out in Code § 5-142.

The record indicates that during the hearing in March 2018, before the ARB
originally approved KCCC's application, George Verschelden, legal counsel for the ARB,
told the ARB members they must agree that all five factors listed in Code § 5-146 had
been met to approve KCCC's application. He warned that if any ARB member did not
believe that any of the five factors had been met, they must not approve the application.
He then read all five factors listed in Code § 5-146 to the ARB members.

The minutes of the ARB hearing stated the following after Verschelden read the
five factors:

"The ARB agreed that the findings had been met. [ARB member Dorsey] Troutman
stated that the ARB has heard from residents from the cities of Mission Hills and
Fairway, both in favor of the fan and objecting to the fan. The ARB has also received
information and testimony from experts in their respective field. He said that the ARB
has approved golf course fans at several locations before and recognizes that the City
desires to have a world class golf course. Mr. Troutman moved to approve the electrical
equipment and the fan at the 12th green with the following stipulations: the electric fan
can only run from 8:00 a.m. to 5:00 p.m., it can only run from June 1 to September 30
each year, and can only run on days when the temperature is forecasted to exceed 85
degrees. [ARB member Tim] Woofter seconded. Approved 4-0-1. [ARB member Gail]
Cluen abstained."

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 Our court has previously stated:

"'Although strongly encouraged, a governing body is not required to make formal
findings of fact concerning its decisions regulating land use. It is more important that
there exists a record of what the governing body considered before making its decision so
that the reviewing court is not left in a quandary as to why the decision was made.'"
Evans v. City of Emporia, 44 Kan. App. 2d 1066, 1071, 243 P.3d 374 (2010) (quoting
Zimmerman, 289 Kan. at 926, Syl. ¶ 11).

Mathews acknowledges the rule from Evans, but he argues that Code § 5-142
reverses that rule. However, he fails to elaborate on that conclusion. Reading Code §§ 5-
142, 5-146, and Evans in tandem, we find there is no conflict. The question the ARB
decided was whether to approve KCCC's permit. The language of Code § 5-146 makes
clear that the ARB can only approve a permit if all five findings are made. The minutes
from the hearing reflect that the ARB agreed the findings had been made before it made
the decision to approve KCCC's permit application.

If a municipal ordinance is plain and unambiguous, we must give effect to its
express language. Moreover, we do not "speculate on legislative intent and will not read
the ordinance to add something not readily found in it. If the language of the ordinance is
clear, we have no need to resort to canons of statutory construction." Layle, 54 Kan. App.
2d at 596 (citing Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291
Kan. 266, 272-73, 241 P.3d 15 [2010]).

Mathews' argument before us attempts to add a requirement not readily found in
Code §§ 5-142 and 5-146. The language of Code § 5-142 does not require that an ARB
member move to make explicit findings under Code § 5-146. It simply requires that any
actions it takes must originate as a motion from a member of the body. Based upon the
record before us, we find that the ARB followed the proper procedure set out in Code
§ 5-142 when it approved KCCC's permit application.

13
 Mathews goes on to argue that ARB member Troutman's statements prior to
reading the five factors were ambiguous. Similarly, Mathews argues that Troutman's
statements in support of the motion were inconsistent with his conclusion that the fan
would not adversely affect property values, as required by Code § 5-146. However, his
claims are belied by the record. Troutman clearly noted that there was a division of
sentiment and evidence concerning the impact of the permanent fan on the 12th green.
His motion to approve KCCC's application indicates that he found the views of those
favoring the permanent fan to be more persuasive.

To reiterate, during the hearing attorney Verschelden read the five findings which
the ARB was required to make in order to approve KCCC's building permit. When doing
so, he stated that "[i]f any ARB member does not agree that one of the findings has been
met, that member must not vote to approve the project." Verschelden's statement
accurately reflected what Code § 5-146 states. As such, the statement is not ambiguous.

After Verschelden read the five findings, Troutman stated that the ARB agreed the
findings had been met. As previously stated, the ARB is not required to make formal
factual findings. See Evans, 44 Kan. App. 2d at 1071. Thus, Troutman's statements
before moving to approve KCCC's application have no bearing on that issue. After
making his statements, he complied with Code § 5-142 and moved for the ARB to
approve the application, which it later voted to do.

Finally, Mathews, relying on Dragon v. Vanguard Industries, Inc., 282 Kan. 349,
356, 144 P.3d 1279 (2006), argues the lack of specific findings made by the ARB
precludes meaningful appellate review and he urges us to remand the case for the district
court to make additional findings. But again, his argument is unpersuasive in light of the
rule from Evans. The record accurately reflects what the ARB considered before making
its decision to approve KCCC's application. Accordingly, we are not "'left in a quandary

14
as to why the decision was made,'" and we reject Mathews' argument. Evans, 44 Kan.
App. 2d at 1071.

The ARB's decision that the permanent fan would not adversely affect the values of
surrounding properties

In his second point on appeal, Mathews contends that the record did not support a
finding that the fan would not adversely affect the values of the surrounding properties.
To the contrary, he claims that the undisputed evidence before the ARB demonstrated
that the values of surrounding properties would, in fact, be adversely affected.

Mathews contends the KCCC presented no evidence that electric fans on golf
courses near residences "(a) are not noisy, (b) do not irritate homeowners, (c) do not limit
homeowners' use of their outdoor living spaces, (d) do not make their homes less
attractive to potential buyers, or (e) do not negatively affect the values of their
properties."

When an administrative board of a municipality, such as the ARB or BZA, acts on
a request such as KCCC's application for a building permit, it exercises quasi-judicial
authority. "'The term "quasi-judicial" is applied to administrative boards or officers
empowered to investigate facts, weigh evidence, draw conclusions as a basis for official
actions, and exercise discretion of a judicial nature.'" Friends of Bethany Place v. City of
Topeka, 297 Kan. 1112, 1131, 307 P.3d 1255 (2013). Logically, a municipal board which
weighs evidence must necessarily make credibility determinations about witnesses and
their testimony in reaching its decision. In our case, this means that the ARB and BZA
were entitled to determine the weight and credit to be given to the testimony of all
witnesses, including homeowners and expert witnesses, in deciding whether property
valuations would be adversely affected by the KCCC's application.

15
 In making its decision to approve KCCC's request, the ARB clearly found that
installation of the wiring necessary to operate the electric fan on hole 12 would have no
adverse effect on property values. On appeal, Mathews contends that the ARB's finding
was not supported by the evidence at the hearing, given the noisiness of the fans KCCC
proposed to install, the homeowners' diminished enjoyment of their outdoor spaces, and
the appraiser's opinion that nearby property values would suffer. Thus, before us
Mathews questions the sufficiency of the evidence which the ARB and BZA relied upon
in approving KCCC's application.

In circumstances where, as here, the law requires that certain facts be found in
order to reach a particular result, our task consists of reviewing the record to determine
whether the requisite findings are supported by substantial competent evidence. Neeley v.
Board of Trustees, Policemen's & Firemen's Retirement System, 212 Kan. 137, 144, 510
P.2d 160 (1973). "Substantial competent evidence is such legal and relevant evidence as a
reasonable person might regard as sufficient to support a conclusion." Hodges v. Johnson,
288 Kan. 56, 65, 199 P.3d 1251 (2009). If required findings are not supported by
substantial competent evidence, the decision is "unreasonable because there is no basis in
the record to support it." Neeley, 212 Kan. at 144.

In addressing Mathews' arguments that the evidence was insufficient to support
the decisions of the ARB and BZA, we first note that it is something of a misnomer to
label the request of KCCC as seeking to install permanent fans at hole 12. The
application was for installation of permanent power supply to permit use of an electric
fan or fans, rather than using fans powered by gas generators. But in addressing Mathews'
specific arguments, it is undisputed that any fan, including a portable fan powered by a
generator and one powered solely by a permanent electrical source, produces a certain
amount of noise. Acoustical experts Avant and Kubicki both presented their findings and
discussed them at the ARB hearings. Both Avant and Kubicki agreed the electric fan
from a permanent electrical outlet is quieter than the portable fan powered by a generator.

16
And since there are no restrictions on KCCC's current use of the noisier portable fans, it
logically follows that having quieter fans which are subject to the time, calendar, and
temperature restrictions imposed by the ARB would not lessen property values any more
than the status quo.

Code § 4-115 (previously codified at § 4-114) is the noise disturbance section of
the City's Code. Code § 4-115(c)(1) states that something is a noise disturbance if it
exceeds 60 dBA between the hours of 9 a.m. to 11 p.m. However, Code § 4-
115(c)(5)(B)1. states that "machinery used to mow, fertilize or aerate golf course grass or
rake sand traps may be operated between sunrise and sunset on any day and during such
time shall not be subject to the dB(A) limits set forth in Section 9.16[4-115](c)(1)."

The district court cited this provision of the Code when it found the ARB's
decision reasonable. It also stated that the use conditions placed on the fan alleviated
many of the residents' concerns about the use of their property during nonbusiness hours.
Whether the ARB erred when placing the conditions on the use of the fan will be
addressed following this discussion. However, the district court's conclusion regarding
the noise is pertinent to Mathews' second issue.

In Brougham Estates Ltd. Partnership II v. Bd. of Trustees of Kansas City Kansas
Community College, No. 94,311, 2006 WL 2595238, at *1 (Kan. App. 2006)
(unpublished opinion), the Board of Trustees of Kansas City Kansas Community College
appealed the district court's decision ruling the noise from a motorcycle safety class was a
nuisance and granting an injunction preventing the college from holding the classes in a
campus parking lot adjacent to the apartment complex owned by Brougham Estates. The
facts of the case demonstrated that the noise produced by the motorcycles could be
annoying. But the Brougham Estates Ltd. Partnership II panel noted that "the central
issue is not whether the noise from the classes was annoying. The issue is whether any

17
annoyance was both substantial and unreasonable." 2006 WL 2595238, at *1 (citing
Finlay v. Finlay, 18 Kan. App. 2d 479, 485, 856 P.2d 183 [1993]).

In deciding the issue, our court recognized that the city ordinances regarding noise
from motorcycles did not control because there was no evidence the noise from the
motorcycles violated the ordinances, and the college was exempt from the ordinances.
2006 WL 2595238, at *1. Ultimately, the panel concluded the evidence did not "support a
conclusion that the noises from the motorcycle classes constituted a substantial and
unreasonable interference, especially in light of the fact the noises do not occur during an
unreasonable time of day." 2006 WL 2595238, at *2.

Here, the facts are similar. By stating the fans are noisy, Mathews' argument is
analogous to a nuisance claim. Since Code § 4-115 exempts golf course machinery used
to aerate golf course grass from the noise ordinance, and the ARB imposed conditions
pertaining to when the KCCC could operate the fan, we have no basis to reverse the
district court's decision based on the noise emitted from the fan.

This court's decision in Brougham Estates Ltd. Partnership II is also persuasive on
Mathews' second and third arguments, i.e., that the fan would irritate homeowners and
limit the use of their outdoor living spaces. The ARB only allowed the fan to operate
from 8 a.m. to 5 p.m. from June 1 to September 30 each year, and it could only be used
when the forecast temperature exceeded 85 degrees. Thus, the noises emitted from the
fan would not occur during an unreasonable time of day. See 2006 WL 2595238, at *2.

For his fourth and fifth arguments, that the installation of the fan would make the
homes less attractive to potential buyers and would negatively affect the values of the
surrounding homes, Mathews primarily relies on Shaner's appraisal and the testimony of
the other residents who lived near the green on hole 12. As we have previously noted,
many of the residents who spoke at the ARB hearings, including Mathews, stated their

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belief that the installation of the fan would decrease the value of their property. Similarly,
Shaner told the ARB that the installation of the fan, if approved, would decrease
Mathews' property value by approximately $135,000.

As support, Mathews cites our Supreme Court's statement that "'[i]t is well settled
a landowner is a competent witness to testify as to the value of his [or her] property.'"
Manhattan Ice and Cold Storage, Inc. v. City of Manhattan, 294 Kan. 60, 75, 274 P.3d
609 (2012). However, our Supreme Court cautioned that the rule does not mean a
landowner is "equivalent to an appraisal expert or that he or she may parrot the opinions
of experts as support for his or her fair market value." 294 Kan. at 76.

But Mathews does not contend he is an expert. He contends Shaner is the expert
whose testimony matters. Additionally, Mathews contends that "the key aspect of
[Shaner's] report was not the specific dollar impact of a golf-course fan or how it was
computed . . . but that increases in noise levels negatively impact the values of residential
properties."

In response, the City contends that Mathews is "actually asking this Court to hold
that a landowner's testimony about the value of his or her property must be taken as true
by the ARB." The City, relying on In re Adoption of Irons, 235 Kan. 540, 684 P.2d 332
(1984), also contends that the ARB is not required to accept Shaner's opinions. There, our
Supreme Court stated that "[t]he opinion testimony of an expert is to be considered as any
other testimony and should receive such weight and credit as the factfinder decides to
give it." 235 Kan. at 546. The holding in In re Adoption of Irons buttresses our earlier
observations about the role of the ARB as a quasi-judicial body able to make value
judgments on the evidence it receives.

Unquestionably, this specific issue alleging that KCCC's proposal would lower
property values is Mathews' most compelling argument. However, the record does not

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demonstrate that the ARB made its decision arbitrarily. Nor does the record demonstrate
that the ARB approved KCCC's application without considering Shaner's opinion
regarding Mathews' property value.

Instead, the ARB held numerous hearings concerning KCCC's application. It
allowed for the residents to voice their concerns with the installation of the fan, allowed
others to voice their opinions supporting the installation of the fan, observed the
operation of the different types of fans in person, and retained Avant to do sound testing.
The ARB noted that no limitations, for noise or any other reason, prohibit the KCCC's
use of gas generator-powered fans anywhere on the golf course, including operating at
the 12th hole. And there is no disagreement that these temporary fans and their generators
are louder than electric fans alone. It obviously follows that the use of quieter, stand-
alone electric fans, as KCCC's application would allow, would not adversely affect
property values near hole 12. The ARB weighed the aesthetic value of well-drained
greens, apparently concluding the installation of wiring to permit use of an electric fan to
help maintain a high quality golf course did not reduce nearby property values.

The bottom line here is that Mathews wishes us to reweigh the evidence before the
ARB and come to the opposite conclusion. But we cannot do this. "Appellate courts do
not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in evidence
and instead give great deference to the factual findings of the district court, including
when a district court draws reasonable factual inferences from the evidence." In re J.O.,
308 Kan. 603, Syl. ¶ 5, 422 P.3d 1158 (2018). Although In re J.O. refers specifically to
findings by a district court, we can discern no reason why the same legal principles would
not apply to the ARB, a municipal body exercising quasi-judicial authority.

In Leffel v. City of Mission Hills, 47 Kan. App. 2d 8, 13, 270 P.3d 1 (2011), our
court stated:

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 "Judicial review of a zoning board decision is limited to determining if the
zoning board acted unlawfully or unreasonably. A court does not substitute its judgment
for that of the administrative body and may declare an action unreasonable only when the
evidence clearly demonstrates that the action was arbitrarily taken without regard to the
benefit or harm to the community at large, including all interested parties. The property
owner appealing the zoning board's decision bears the burden of overcoming, by a
preponderance of the evidence, a presumption that the board acted reasonably."

In addition, "Kansas case law establishes a legal presumption that public officials
act properly and administer acts within their authority regularly and lawfully." 47 Kan.
App. 2d at 13.

Based on the standard of review, we find that the ARB's decision was supported
by substantial competent evidence. We therefore conclude that the ARB acted reasonably
when it approved KCCC's application. Consequently, the BZA and district court did not
err when they affirmed the ARB's approval. Thus, we affirm the district court's judgment
on this issue.

The ARB's use conditions

For his final point on appeal, Mathews argues the district court erred when it
approved the use conditions imposed by the ARB.

As previously stated, the interpretation of a regulation is subject to de novo
review. Similarly, statutory construction is a question of law which we review de novo.
Layle, 54 Kan. App. 2d at 595; see also Denning v. Johnson County Sheriff's Civil
Service Bd., 299 Kan. 1070, 1077, 329 P.3d 440 (2014) (applying de novo standard of
review when determining whether agency exceeded its scope of authority).

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 When ARB member Troutman moved to approve the electrical equipment and fan
on hole 12, his motion included the following conditions: "the electric fan can only run
from 8:00 a.m. to 5:00 p.m., it can only run from June 1 to September 30 each year, and
can only run on days when the temperature is forecasted to exceed 85 degrees." Mathews
argues the ARB did not have the power to impose requirements or conditions on the use
of the fan.

Code § 5-149 lists the powers the ARB has when approving a permit application.
It states:

"The ARB may within its power approve or deny a building permit application
and in approving an application may attach such requirements and conditions as it deems
appropriate under the circumstances, including but not limited to:
"A. A redesign of the proposed structure;
"B. Changes in the building materials for exterior facade of the proposed structure;
"C. A reduction or increase in the height of the proposed structure;
"D. A relocation of the proposed structure within required setbacks;
"E. An increase in the required setback requirements for the lot in question;
"F. A reduction or increase in the overall size of the structure;
"G. Landscaping requirements which may include requiring new trees, shrubs or
other landscaping, or replacing existing trees, shrubs or other landscaping; and
"H. Requirements and conditions that the ARB is authorized to impose under other
provisions of the Zoning Regulations;
"In addition to the foregoing powers, the ARB shall also have such other powers
as have been delegated to the ARB under these Zoning Regulations and shall have such
additional powers as are necessary to ensure that the ARB's responsibilities are fulfilled."
Code § 5-149.

Mathews acknowledges the provisions included in Code § 5-149, but he argues
that the ARB's powers are limited to the design or construction of the proposed structure
and not its use. Specifically, he asserts that "[a]lthough the list of allowable conditions is

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preceded by 'including but not limited to,' under the maxim of expressio unius est
exclusio alterius, the types of allowed conditions should be limited to the types included
in the list."

The maxim means "'the inclusion of one thing implies the exclusion of another.'"
Phillips v. St. Paul Fire & Marine Ins. Co., 39 Kan. App. 2d 758, 763, 184 P.3d 280
(2008) (quoting In re Tax Appeal of Lietz Constr. Co., 273 Kan. 890, 911, 47 P.3d 1275
[2002]). There, Phillips filed suit against his insurance company after he got injured in an
automobile accident. The district court granted summary judgment in favor of the
insurance company, and Phillips appealed. This court concluded that the outcome of the
case depended on the interpretation of K.S.A. 40-284(c) and K.S.A. 40-256. 39 Kan.
App. 2d at 758.

Though neither statute applies to this case, in Phillips this court considered the
maxim's application to K.S.A. 40-284(c). In doing so, this court stated that the maxim "is
not properly applied here because the statute, although listing various policy transactions,
specifically states the list is not exclusive by using the words 'but not limited to.'" 39 Kan.
App. 2d at 763. In this case, Code § 5-149 includes this same phrase in its introductory
paragraph.

Notably, Mathews fails to cite any authority to support his contention that the
maxim applies here. As our court stated in Phillips: "'the maxim should not be employed
to override or defeat a clearly contrary legislative intention.'" 39 Kan. App. 2d at 763
(quoting Lietz, 273 Kan. at 911). Code § 5-149 gives the ARB the power to attach
"requirements and conditions as it deems appropriate under the circumstances." Because
the list is not exhaustive, as evidenced by the "including but not limited to" language, we
find that the maxim is inapplicable here.

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 Mathews' analogy between area and use variances and the conditions the ARB
imposed here is also unavailing. As the City points out, K.S.A. 12-759(e) states the
procedure a BZA must follow when it grants a variance. That statute also lists the
conditions that must be met before a BZA can approve any variance and specifically
limits the BZA's authority with respect to variances. But Mathews does not point to any
statute that specifically limits the ARB's authority in the same way as the BZA is limited.
And since the ARB's imposition of conditions does not conflict with Code § 5-149, we
reject Mathews' line of reasoning on this point. Once again, we affirm the district court's
judgment that the ARB was within its authority in imposing conditions on KCCC's use of
the permanent fan on the 12th green.

Affirmed.

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