text:
    STATE of Kansas, Appellee, v. Cameron James HARROD, Appellant.
    No. 120,674
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    MEMORANDUM OPINION
   Per Curiam:

Cameron James Harrod appeals his sentence following his conviction of felony theft. We granted Harrod's motion for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 47). The State has responded and suggests that we have no jurisdiction over this appeal.

On July 26, 2018, Harrod pled guilty to one count of theft, a severity level 9 nonperson felony. In exchange, the State agreed to recommend probation provided that Harrod complied with the terms of his bond and enrolled in inpatient treatment. But Harrod violated the terms of his bond and failed to appear for his initial sentencing hearing, relieving the State of its obligations under the plea agreement.

At the sentencing hearing on December 27, 2018, Harrod had a criminal history score of C, making his presumptive sentence 11-12-13 months. A special rule applied allowing the district court to impose imprisonment because Harrod committed his new crime while on felony probation in another case. The district court applied the special rule and sentenced Harrod to 11 months' imprisonment. Harrod timely appealed.

On appeal, Harrod claims the district court abused its discretion by failing to grant probation. But he concedes that this court lacks jurisdiction to review a presumptive sentence. The State also asks that we dismiss this appeal for lack of jurisdiction.

K.S.A. 2018 Supp. 21-6820(c)(1) provides that for any felony committed on or after July 1, 1993, the appellate court shall not review any sentence that is within the presumptive sentence for the crime. Harrod admits that his 11-month sentence is within the presumptive sentence for his crime. And K.S.A. 2018 Supp. 21-6604(f)(1) provides that when a new felony is committed while the offender is on felony probation in another case, the court "may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure." So Harrod received a presumptive sentence here, and Kansas statutes and caselaw do not grant us the authority to review the imposition of a presumptive sentence. See State v. Flores , 268 Kan. 657, 659, 999 P.2d 919 (2000).

Appeal dismissed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Jeffrey Alan TAYLOR, Appellant.
    No. 118,859
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    Jeffrey Alan Taylor, pro se appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Standridge, P.J., Gardner, J., and Walker, S.J.
    MEMORANDUM OPINION
   Per Curiam:

Jeffrey Alan Taylor was charged with two counts of rape, two counts of aggravated sexual battery, and one count of criminal restraint. As part of a plea agreement, Taylor entered Alford pleas to two counts of aggravated sexual battery in exchange for the State's dismissal of the remaining counts. An Alford plea allows a defendant to plead guilty without admitting the facts of the offense or while maintaining his or her innocence in order to obtain a favorable plea deal. See North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) ; State v. Case , 289 Kan. 457, 460, 213 P.3d 429 (2009).

The district court ultimately sentenced Taylor to 130 months in prison followed by lifetime postrelease supervision. On appeal, Taylor claims that the district court's decision to impose lifetime postrelease supervision is unconstitutional and that his sentence is illegal as a result of ineffective assistance of counsel.

A. Lifetime postrelease supervision

On appeal, Taylor argues the district court's decision to impose lifetime postrelease supervision constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The State contends that Taylor's case-specific Eighth Amendment challenge and his § 9 challenge have not been properly preserved for our review. An appellate court exercises unlimited review over questions of preservation. State v. Reed , 306 Kan. 899, 902, 399 P.3d 865 (2017).

When a defendant challenges his or her sentence as cruel and unusual, appellate courts use a bifurcated standard of review: "All of the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support the district court's factual findings, but the legal conclusions that the district court draws from those facts are reviewed de novo." State v. Ross , 295 Kan. 424, 425-26, 284 P.3d 309 (2012).

1. Section 9 of the Kansas Constitution Bill of Rights

Kansas courts consider three factors to determine whether a sentence is cruel or unusual in violation of § 9 of the Kansas Constitution Bill of Rights. See State v. Freeman , 223 Kan. 362, 367, 574 P.2d 950 (1978). The Freeman factors are as follows:

"(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;"
"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and"
"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense." 223 Kan. at 367.

No single factor is controlling. Appellate courts consider the factors collectively, but one factor may "weigh so heavily that it directs the final conclusion." State v. Ortega-Cadelan , 287 Kan. 157, 161, 194 P.3d 1195 (2008).

Analysis under the first Freeman factor requires the court to consider the nature of the offense and the character of the offender, with particular regard to the degree of danger presented to society. Ross , 295 Kan. at 426. The considerations under this factor are "inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant." Ortega-Cadelan , 287 Kan. at 161. In addition, "[t]his analysis may consider the offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history of the offender, and the offender's propensity for violence." Ross , 295 Kan. at 429.

With regard to this first Freeman factor, Taylor argues the following considerations presented to the district court at sentencing support a finding that lifetime postrelease supervision in his case is cruel or unusual in violation of § 9 of the Kansas Constitution Bill of Rights :

• he was innocent and only pleaded guilty because he recognized that he was facing up to 600 months in prison if convicted of the rape charges;
• there was no physical evidence to show the allegations in the probable cause affidavit were true;
• his friends and family have supported him and did not believe the accusations;
• his plea and waiver of the preliminary hearing prevented the victim from having to testify;
• most of his criminal history resulted from alcohol and run-ins with the police, and most of the violent offenses were remote in time;
• if he had a propensity for sexual battery, it would have shown up a long time ago;
• he had been a "model prisoner" since his arrest;
• he needed to be able to support his family in the future; and
• he had his own health problems and would need a liver transplant in the next five years, which would make him a liability to the state.

Here, the district court made no findings regarding these facts to aid this court in its review of the Freeman factors. The district court merely stated that "I think under the law that [lifetime postrelease supervision] is what is called for. I will go over your appeal rights with you in a little bit, [your attorney] will go over that in more detail, and you can certainly appeal the Court's imposition of the lifetime supervision." The court did not address the Freeman factors, any of the specifics of the incident, or any of the potentially mitigating arguments Taylor raised in his motion or at the hearing. Appellate courts do not make factual findings but are limited to reviewing those made by district courts. State v. Berriozabal , 291 Kan. 568, 591, 243 P.3d 352 (2010). In the absence of any factual findings, this court does not have the necessary factual basis upon which to analyze whether Taylor's sentence is unconstitutional under Freeman . See State v. Seward , 289 Kan. 715, 720-21, 217 P.3d 443 (2009), disapproved of on other grounds by State v. Jolly , 301 Kan. 313, 342 P.3d 935 (2015).

Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) requires the district court to make adequate findings of fact and conclusions of law on matters submitted to it without a jury. In Seward , our Supreme Court held that the responsibility for a lack of adequate findings and conclusions regarding the Freeman factors is shared between the district judge, the defendant, and the defense counsel. Seward , 289 Kan. at 720. While the claim that lifetime postrelease supervision constituted cruel or unusual punishment was relatively new at the time of Seward , the court stated:

"In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary." 289 Kan. at 721.

Appellate courts have followed the warning in Seward and declined to review constitutional challenges to sentencing statutes when the litigant failed to ensure the district court made adequate findings and conclusions on the Freeman factors to ensure a sufficient record for review. See, e.g., State v. Reed , 300 Kan. 494, 513, 332 P.3d 172 (2014) ("[T]his court has consistently declined to address a defendant's appellate argument regarding cruel and/or unusual punishment when the defendant has failed to develop the record below."); State v. Reed , 50 Kan. App. 2d 1133, 1138-39, 336 P.3d 912 (2014) (defendant's failure to ensure district court made adequate findings and conclusions on Freeman challenge foreclosed this court's review); State v. Beck , No. 109,657, 2014 WL 2871322, at *2-3 (Kan. App. 2014) (unpublished opinion) (where "the district court made no factual findings in relation to Beck's specific case," appellate court held "it is impossible for this court to review Beck's case-specific challenges to the constitutionality of lifetime postrelease supervision, and these claims on appeal must be dismissed").

Taylor did not object to the inadequacy of the district court's findings or attempt to preserve an adequate record for review. Under Seward , we decline to review Taylor's case-specific claims that his sentence of lifetime postrelease supervision is unconstitutional under § 9 of the Kansas Constitution Bill of Rights.

2. Eighth Amendment to the United States Constitution

Although somewhat difficult to discern from his brief, it appears Taylor also argues that imposition of lifetime postrelease supervision is unconstitutional as cruel and unusual punishment under the Eighth Amendment, as applied to the states through the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has found that "[t]he concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' " Graham v. Florida , 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

There are two types of proportionality challenges under the Eighth Amendment: (1) a case-specific challenge that the sentence is disproportionate "given all the circumstances in a particular case," Graham , 560 U.S. at 59 ; and (2) a categorical challenge "that an entire class of sentences is unconstitutionally disproportionate given the severity of the sentence, the gravity of the crime, and the type of offender." United States v. Williams , 636 F.3d 1229, 1233 (9th Cir. 2011). These challenges will be addressed in turn.

a. Case-specific challenge

In analyzing a case-specific Eighth Amendment challenge, the threshold inquiry requires the court to compare the gravity of the offense with the severity of the sentence to determine if there is a gross disproportionality. In this analysis, courts may consider the defendant's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the defendant's conduct, the defendant's prior criminal history, and the defendant's propensity for violence. Ross , 295 Kan. at 428-29. Kansas courts have noted that the case-specific analysis of the Freeman factors applies to this initial determination. See, e.g., State v. Mossman , 294 Kan. 901, 908, 281 P.3d 153 (2012).

Taylor relies on his argument regarding the Freeman factors as his case-specific challenge under the Eighth Amendment. As was discussed above, the district court made no factual findings or conclusions of law regarding the Freeman factors and, therefore, this court cannot review the district court's findings or conclusions regarding gross disproportionality. Because Taylor does not meet the threshold inquiry, his case-specific challenge fails.

b. Categorical challenge

Unlike a case-specific challenge, a categorical analysis under the Eighth Amendment does not require a review of factual findings made by the district court. State v. Ruggles , 297 Kan. 675, 679, 304 P.3d 338 (2013). Rather, because only questions of law are implicated, an appellate court has unlimited review over the legal questions. Mossman , 294 Kan. at 925.

The United States Supreme Court has identified two subcategories of categorical constitutional challenges: (1) those considering the nature of the offense and (2) those considering the characteristics of the offender. Graham , 560 U.S. at 60-61. It appears from his brief that Taylor's argument relies on the first category: the class of offenders who commit a sexually violent offense.

The Supreme Court in Graham outlined a two-part test for courts to evaluate a categorical constitutional challenge:

"The Court first considers 'objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by 'the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,' the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citations omitted.]" 560 U.S. at 61.

Here, Taylor argues that there is a national consensus against lifetime postrelease supervision for sexually violent offenders. He argues that only Oklahoma, Colorado, and Kansas impose lifetime postrelease supervision without the possibility of release from supervision for sexually violent offenders. He contends that, under Graham , the fact that the practice is exceedingly rare indicates a national consensus against the practice. See 560 U.S. at 67. Taylor also argues that compared to other jurisdictions, Kansas' imposition of lifetime postrelease supervision is harsh.

In Mossman , our Supreme Court relied on Williams , which held that lifetime supervised release was not cruel and unusual punishment for the crime of child pornography. Mossman , 294 Kan. at 930. The Ninth Circuit in Williams held that " 'objective indicia' suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common." 636 F.3d at 1233. Moreover, the Mossman court noted that "several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes." 294 Kan. at 930 ; see State v. Cameron , 294 Kan. 884, 897, 281 P.3d 143 (2012) (same analysis).

In its analysis of the Freeman factors, the Mossman court surveyed state laws regarding lifetime postrelease supervision for sex offenses. It reported:

"[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas' requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as [aggravated indecent liberties with a child], and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment." 294 Kan. at 920.

The Kansas Supreme Court has consistently held that there is no consensus against lifetime postrelease supervision for violent sex offenses, and Taylor provides no reason for this court to hold otherwise now.

Under the second part of the Graham test, this court must exercise its independent judgment to determine whether lifetime postrelease supervision violates the Eighth Amendment. Graham , 560 U.S. at 61. This step requires consideration of the culpability of the offender in light of their crimes and characteristics, and the severity of the punishment in question. Included in this inquiry is an examination of "whether the challenged sentencing practice serves legitimate penological goals." 560 U.S. at 67-68. Legitimate penological goals include retribution, deterrence, incapacitation, and rehabilitation. 560 U.S. at 71.

Taylor argues that lifetime postrelease supervision for his crime does not serve any of the penological goals addressed by Graham . He claims that the goal of retribution is not served because lifetime postrelease supervision is not related to his personal level of culpability. Taylor also claims that the sentence does not meet the goal of deterrence because an offender's criminal history already serves to deter him or her from committing additional crimes. Taylor further claims that incapacitation does not justify lifetime postrelease supervision because by the time an offender is subject to postrelease supervision, he or she has already served the prison term, and because it applies too broadly to all sexual offenders without determining the risk that the offender will reoffend. Finally, Taylor claims that the sentence does not meet the goal of rehabilitation because postrelease supervision here continues for the offender's lifetime regardless of how much he or she ages or improves his or her moral character.

Kansas courts have previously considered whether lifetime postrelease supervision for sex offenders serves legitimate penological goals. In Mossman , 294 Kan. at 930, our Supreme Court again looked to Williams , which held that the goals of rehabilitation and incapacitation "are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again." 636 F.3d at 1234. The court also held that "[s]upervised release can further the end of rehabilitating sex offenders" and that "supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children." Williams , 636 F.3d at 1234.

This court must follow the guidance of our Supreme Court. Taylor's sentence is not categorically disproportionate and, therefore, is not cruel and unusual punishment in violation of the Eighth Amendment.

B. Illegal sentence arising from ineffective assistance of counsel

Taylor contends that ineffective assistance of counsel, particularly at sentencing, led the district court to incorrectly calculate his criminal history score, which resulted in imposition of an illegal sentence. The State claims we should not reach the merits of Taylor's claim of illegal sentence because he failed to properly brief it. And even if this court reaches the merits, the State claims the sentence imposed by the district court was not illegal.

To succeed on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In other words, the defendant must show there is a reasonable probability the result would have been different but for counsel's errors. State v. McDaniel , 306 Kan. 595, 607, 395 P.3d 429 (2017).

When a defendant raises an ineffective assistance of trial counsel argument for the first time on appeal, Kansas appellate courts can dispose of that claim in one of three ways:

"First, an appellate court may follow the general rule and decline to address the issue, leaving the defendant to pursue relief through a timely K.S.A. 60-1507 motion. See State v. Levy , 292 Kan. 379, 388-89, 253 P.3d 341 (2011). Second, the appellate court may remand to the district court for examination of the issue in further proceedings pursuant to State v. Van Cleave , 239 Kan. 117, 119-21, 716 P.2d 580 (1986). See State v. Dull , 298 Kan. 832, 839, 317 P.3d 104 (2014) ('The usual course of action is a request by appellate counsel for remand to district court for a hearing on the ineffective assistance claim.'). Finally, although rare, ' "there are circumstances when no evidentiary record need be established, when the merit or lack of merit of an ineffectiveness claim about trial counsel is obvious," and an ineffectiveness claim can therefore be resolved' by an appellate court. 298 Kan. at 839 (quoting Rowland v. State , 289 Kan. 1076, 1084-85, 219 P.3d 1212 [2009] ); see State v. Carter , 270 Kan. 426, 433, 14 P.3d 1138 (2000) (remand would serve no purpose where assessment by trial court unnecessary because record on appeal sufficiently complete for appellate court to decide issue)." State v. Reed , 302 Kan. 227, 233-34, 352 P.3d 530 (2015).

We find the record on appeal in this case to be sufficient for us to review Taylor's claim. Here, Taylor claims defense counsel was deficient in failing to argue that his two prior convictions in Texas for assault on a public servant (listed as prior conviction numbers 39 and 40 in the presentence investigation report) did not have comparable offenses in Kansas and, therefore, should not have been classified as felonies for purposes of criminal history. Notwithstanding his claim, Taylor readily acknowledges defense counsel lodged an objection to his criminal history score at the sentencing hearing. Taylor does not dispute that counsel adamantly advised him not to waive the challenge but that Taylor ignored that advice. Taylor also does not dispute that defense counsel requested a continuance but he opposed it and insisted on proceeding with sentencing that day. Based on these undisputed facts, we find no deficiency in counsel's performance and no merit to Taylor's claim of ineffective assistance of counsel.

Affirmed.


text:
    STATE of Kansas, Appellee, v. McClinton BASS, Appellant.
    No. 119,572
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019
    Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

McClinton Bass appeals his convictions and sentences for attempted aggravated indecent liberties with a child and possession of cocaine. On appeal, Bass' principal argument is that the district court violated his right to self-representation under the Sixth Amendment to the United States Constitution. He also contends that the district court erred by denying his presentence motion to withdraw his guilty pleas. Moreover, he contends that the district court erred in calculating his criminal history score. We consider only Bass' argument that the district court violated his Sixth Amendment right to self-representation. We conclude that the district court violated Bass' right to self-representation resulting in structural error. As a result, we reverse Bass' convictions, vacate his sentences, and remand the case to the district court for further proceedings.

On September 13, 2017, the State charged Bass with one count of aggravated indecent liberties with a child, a severity level 3 person felony in violation of K.S.A. 2017 Supp. 21-5506(b)(1), and one count of possession of cocaine, a severity level 5 nonperson felony in violation of K.S.A. 2017 Supp. 21-5706(a). Because Bass was indigent, the district court appointed counsel-Elizabeth Kluzak-to represent Bass.

About two months later, Bass moved pro se to dismiss Kluzak as counsel. Bass concluded in his pro se motion the following:

"[He was] seeking to retain new counsel, however. 'The constitution does not force a lawyer upon a defendant.' Adams v. United States ex rel. McCann , 317 U.S. 269 (1942). Therefore, [he] should not have to be forced by th[e] court to be continually represented by [Kluzak,] who ha[d] failed [him] and violated his trust."

The district court held a hearing on Bass' motion. During the hearing, Bass told the district court that "[he] would like either another counsel ... or [he could] try to do it [himself]." Further, Kluzak provided her reasons why she believed that she could still represent Bass. When addressing Bass' complaints about access to discovery, Kluzak noted that she "did hesitate [turning over discovery] at first because [she] was concerned Mr. Bass might not be able to read and understand it. But [she] did ultimately turn it over to [Bass] to review." At the end of the hearing, the district court denied Bass' motion, ruling that Bass did not have a justifiable dissatisfaction with Kluzak's representation. But, after the district court denied Bass' motion, Bass asked the district court: "I can't represent myself?" To which the district court replied: "If you wish to represent yourself, sir, you'll need to file a separate motion. That's not what this motion asks for."

Following that hearing, Bass filed two more pro se motions. First, he moved to dismiss Kluzak as counsel again. Second, he moved to represent himself and appoint standby counsel.

The district court scheduled a combined hearing on Bass' pro se motions and Bass' preliminary hearing. Of note, a different district court judge presided over this hearing than his previous hearing where the judge told Bass to file a separate written motion on self-representation. At the outset of this hearing, however, Bass and the State announced that they had entered into a plea agreement. Under the plea agreement, Bass would plead guilty to one count of attempted aggravated indecent liberties with a child, as well as one count of possession of cocaine. Both parties agreed to recommend that the district court sentence Bass to the mitigated presumptive sentences for both felony counts based on Bass' criminal history and to also request that Bass' sentences run concurrently.

The district court then started to ask Bass questions about whether it was his desire to enter into the plea agreement with the State:

"THE COURT: Okay, you are 55 years old and have three years of school; is that right?
"THE DEFENDANT: Uh-huh.
....
"THE COURT: All right, first of all, you had filed some motions. I think we need to deal with those first. There [were] motions that were set actually technically for Friday, but I was intending to deal with them today before we had the preliminary hearing. One motion to replace counsel and then a motion to go ahead and represent yourself and you're familiar with those motions because you prepared them; right?
"THE DEFENDANT: Right.
"THE COURT: Okay, have you had a chance to discuss those issues with Ms. Kluzak?
"THE DEFENDANT: Yes.
"THE COURT: All right, and I'm taking it by the way things have proceeded here today that you're planning to go ahead and have her continue to represent you through the plea and through sentencing; is that right?
"THE DEFENDANT: Correct.
"THE COURT: All right, so you've had a chance to fully discuss those issues with her and is it your choice to go ahead and withdraw your motion to dismiss counsel and your motion to represent yourself?
"THE DEFENDANT: Correct.
"THE COURT: Okay, you understand constitutionally you have the right to represent yourself. I can't stop you. I would try, but I can't anyway. Ultimately, that's your decision. As to who represents you, it is more complicated than that and I think you had a previous hearing on that so you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Understanding all that, you wish to withdraw both those motions?
"THE DEFENDANT: Right.
"THE COURT: Okay, then I'll show both those motions withdrawn."

Next, the district court engaged in the plea colloquy. Ultimately, the district court accepted Bass' guilty pleas.

Before sentencing, Bass moved to withdraw his guilty pleas, arguing that he had been misled. The district court appointed Bass new counsel. The district court held a hearing on Bass' motion. At the hearing, both Bass and Kluzak testified. Both testified openly about Bass' illiteracy. Bass explained that he had other inmates write his pro se motions, which he would then sign. In the end, the district court denied Bass' motion, finding that "[t]here [was] no evidence to support a finding that Mr. Bass was misled, coerced, mistreated or taken advantage of before or at the time of his plea in the case." Then, based on Bass' criminal history score of A, the district court sentenced Bass to a controlling term of 122 months' imprisonment followed by lifetime postrelease supervision for his crimes of attempted aggravated indecent liberties with a child and possession of cocaine.

Bass timely appealed.

Did the District Court Violate Bass' Right to Self-Representation?

Our Supreme Court has observed: "The extent of the right to assistance of counsel and the related right to self-representation is a question of law over which this court exercises unlimited review." State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018).

The Sixth Amendment of the United States Constitution right to have the assistance of counsel in a criminal prosecution, like other constitutional rights, can be waived: "The United States Supreme Court has held 'that the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation.' " Bunyard , 307 Kan. at 470 (quoting State v. Vann , 280 Kan. 782, 793, 127 P.3d 307 [2006] ). A defendant's right to represent himself or herself exists implicitly within the Sixth Amendment. State v. Jones , 290 Kan. 373, 377, 228 P.3d 394 (2010). Further, a defendant's right to self-representation applies in all "critical stages" of the criminal process where the defendant also has a right to counsel. Jones , 290 Kan. at 379 (citing Iowa v. Tovar , 541 U.S. 77, 80, 124 S. Ct. 1379, 158 L.Ed. 2d 209 [2004] ).

As our Supreme Court has explained, defendants have a right to represent themselves when they have made an intelligent and understanding waiver: "A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel." Jones , 290 Kan. at 376. To be a knowing and intelligent waiver, the district court must tell the defendant of "the dangers and disadvantages of self-representation, so that the record will establish that 'he [or she] knows what he [or she] is doing and his [or her] choice is made with eyes open.' " Faretta v. California , 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975) (quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S. Ct. 236, 87 L.Ed. 268 [1942] ).

In determining if the defendant has made a knowing and intelligent waiver, "[a] trial court may not measure a defendant's competence to waive his or her right to counsel by evaluating the defendant's 'technical legal knowledge.' " Jones , 290 Kan. at 377 (quoting Godinez v. Moran , 509 U.S. 389, 399-400, 113 S. Ct. 2680, 125 L.Ed. 2d 321 [1993] ). Moreover, the district court should not consider if an attorney could better represent the defendant. Bunyard , 307 Kan. at 470-71.

"A district judge's denial of a criminal defendant's right to forego counsel and represent himself or herself is structural error requiring reversal of the defendant's convictions." Bunyard , 307 Kan. 463, Syl.

On appeal, Bass argues that the district court violated his Sixth Amendment right to self-representation when it declined to consider his request for self-representation. Bass asserts that once he asked the district court to represent himself following the denial of his request for new counsel, the law required the district court to tell him about the dangers and disadvantages of self-representation. Bass maintains that no written motion requirement exists for a defendant to assert the right to self-representation. Moreover, Bass argues that his later decision to withdraw his written pro se motion for self-representation does not render the district court's previous error harmless. In making his arguments, Bass relies primarily on our Supreme Court decisions in Bunyard and Jones , asserting those cases are comparable to his case.

The State argues that the district court did not violate Bass' Sixth Amendment right to self-representation because Bass never made an unequivocal request to represent himself. The State asserts that Bass merely suggested representing himself as an alternative to the dismissal of Kluzak. The State further asserts that Bass' question to the district court-"I can't represent myself?"-does not constitute an unequivocal request for self-representation. Then, the State argues that because Bass withdrew his written pro se motion for self-representation, the entire issue of whether the district court violated Bass' Sixth Amendment right to self-representation is moot.

Nevertheless, we cannot endorse the State's attempt to avoid the constraints placed on us by our Supreme Court precedents in Bunyard and Jones . Those two decisions establish that the district court violated Bass' Sixth Amendment right to self-representation. First, the district court violated Bass' right to self-representation the moment it did not advise Bass about the perils of proceeding pro se after Bass clearly and unequivocally told the district court he wanted to represent himself. Second, the district court's imposition of a written motion requirement on Bass constituted a further violation of Bass' Sixth Amendment right to self-representation.

Our Supreme Court Precedents

In Bunyard , the district court held a hearing on a Friday, three days before Bunyard's criminal trial. He told the district court, " 'I want it on the record I wish to represent myself unequivocally.' " 307 Kan. at 466. Bunyard made this request because he believed that his counsel was not advancing certain arguments. The district court responded that it would not consider an oral motion. Further, it told Bunyard that if he wanted it to consider his argument for self-representation, he must file a written motion. The district court required Bunyard to file a written motion even though Bunyard told the district court that the jail would not allow him to mail the written motion on the weekend. As a result, Bunyard was unable to file a written motion over the weekend before the start of his trial.

Yet, when Bunyard's trial began on Monday, the district court noted that over the course of his case, Bunyard had filed several pro se motions where he " 'purport[ed] to represent [himself].' " 307 Kan. at 468. Bunyard's counsel explained to the district court that after discussing the matter with Bunyard, Bunyard wished to withdraw all of his pro se motions. The district court asked Bunyard if this was correct, and Bunyard agreed it was correct. As a result, the district court considered Bunyard's pro se motions withdrawn, and Bunyard proceeded to trial with counsel. The jury found Bunyard guilty on all counts.

On appeal to our Supreme Court, Bunyard argued that his convictions should be reversed because the district court violated his Sixth Amendment right to self-representation. In agreeing that the district court had violated Bunyard's right to self-representation, our Supreme Court explained what a court should not do when considering a defendant's right to self-representation:

"Bunyard filed multiple pro se motions during the pendency of his prosecution. Then-admittedly at the eleventh hour and only when prompted by what may have been intended as a rhetorical question by an all-but-fully-exasperated trial judge-Bunyard made more than one clear statement that he wished to proceed pro se. Despite this expressly 'unequivocal' invocation of his right to self-representation, the district judge did not counsel Bunyard with a view toward ascertaining Bunyard's informed wishes. Rather, the judge put off addressing Bunyard's request, saying that he would not address it at all unless Bunyard filed a written motion. Bunyard had no practical way to file a written motion over the weekend , and the judge's demand for such a motion appeared to leave Bunyard ... without recourse on the issue. In this context, Bunyard's silence on Monday when other pro se motions were heard was understandable. He had been left with a firm impression that he would not be permitted to represent himself. His failure to reassert his right to do so in such circumstances and his allowance of counsel's representation during the trial did not amount to an implicit decision not to pursue self-representation.
"Bunyard's pretrial requests to represent himself were not, as the State argues, 'simply based on his desire to ensure that certain arguments were advanced on his behalf.' The record certainly demonstrates that he believed he had information and argument not being explained on Friday by his counsel, and that prompted his interruption of the proceedings. But, at that point, the judge presented Bunyard with a choice: Either allow counsel to proceed without interference or represent yourself. Bunyard chose the latter . And his choice did not change after his consultation with counsel. Instead, he 'unequivocally' repeated his choice on the record. At that point the law required that he be advised about the perils of proceeding pro se and then permitted to do so if he made a knowing and intelligent waiver of his right to counsel. Instead, the judge told Bunyard that the subject of self-representation would not be addressed on Friday and erected a writing requirement barrier that was virtually guaranteed to thwart Bunyard's express intention . The judge then ruled on the very motion on which Bunyard had tried to be heard, and he never took up the subject of self-representation again. Using the words of the Court of Appeals panel but reaching the opposite conclusion, we hold that regardless of whether there was a 'deliberate undermining' of Bunyard's right to represent himself, there was certainly a 'functional' undermining of that right. See 2016 WL 1719607, at *4." ( Emphases added.) 307 Kan. at 477-78.

In Jones , at Jones' preliminary hearing, Jones' attorney told the court that his client wanted to represent himself at the hearing. The district court denied that motion because Jones was not trained in the law. That district court then proceeded with Jones' preliminary hearing. A different district court judge presided over a renewed hearing on Jones' motion to represent himself at the start of Jones' jury trial. After a lengthy discussion about whether Jones still wanted to represent himself, Jones decided to proceed with appointed counsel. The jury convicted Jones on all counts.

On appeal to this court, this court held that the district court judge at the preliminary hearing violated Bass' right to self-representation, but the error was harmless because the events of the preliminary hearing had little likelihood of changing the outcome of Jones' trial. State v. Jones , 40 Kan. App. 2d 1146, 1155, 201 P.3d 710 (2009), rev'd 290 Kan. 373. Our Supreme Court reversed this court because the harmless error analysis does not apply in cases where a district court violated a defendant's right to self-representation. 290 Kan. at 382.

First, our Supreme Court held that the district court erred when it denied Jones' motion because of Jones' lack of a college education and legal training. Our Supreme Court explained that the only inquiry that mattered was whether Jones made a knowing and intelligent waiver. 290 Kan. at 378. Second, our Supreme Court considered whether Jones had a right to self-representation at his preliminary hearing. The Jones court held: "The reasoning by the Supreme Court in Faretta supports the conclusion that the right to self-representation extends to all phases of the criminal proceeding." 290 Kan. at 379. This meant that a preliminary hearing necessarily constituted a critical stage of a defendant's criminal proceedings where the defendant had a right to self-representation. Jones , 290 Kan. at 379.

The Jones court concluded by explaining that harmless error analysis does not apply when a district court denies a defendant's right to self-representation during a critical stage of the defendant's criminal proceeding:

" 'Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to "harmless error" analysis. The right is either respected or denied; its deprivation cannot be harmless.' McKaskle v. Wiggins , 465 U.S. 168, 177 n.8, 79 L.Ed. 2d 122, 104 S. Ct. 944 (1984). If a defendant's right to represent himself or herself is violated, the defendant is entitled to a new trial regardless of whether he or she can demonstrate prejudice. See, e.g. , Flanagan v. United States , 465 U.S. 259, 268, 79 L.Ed. 2d 288, 104 S. Ct. 1051 (1984) (violating Sixth Amendment right to represent oneself does not require showing of prejudice to defense in order to obtain reversal)." 290 Kan. at 382.

Thus, the Jones court reversed Jones' convictions because the district court committed structural error. 290 Kan. at 382-83.

Violation of Bass' Right to Self-Representation

Turning our focus back to Bass' case, we must first consider the State's argument that Bass did not make an unequivocal request to represent himself. The State argues that Bass could not have made a clear and unequivocal statement to represent himself because he made comments about representing himself as an alternative should the district court deny his motion to dismiss Kluzak and appoint new counsel. In other words, the State argues that a motion on his dissatisfaction with Kluzak's representation could not constitute a clear and unequivocal statement that Bass wanted to represent himself. The State also argues that Bass' question about representing himself at the close of the hearing cannot be considered a clear and unequivocal statement.

Although " 'a defendant's request to be relieved of counsel in the form of a general statement of dissatisfaction with his attorney's work does not amount to an invocation of the Faretta right to represent oneself,' " State v. Hollins , 9 Kan. App. 2d 487, 489, 681 P.2d 687 (1984) (quoting Moreno v. Estelle , 717 F.2d 171, 176 [5th Cir. 1983] ), Bass made more than a general statement about his dissatisfaction with Kluzak. To begin with, the State ignores that in his pro se motion to dismiss Kluzak as counsel, Bass also asserted that if the district court denied his motion, he would then represent himself. Indeed, this is a fact that the district court also ignored because it told Bass he must file a written motion.

In his pro se motion to dismiss Kluzak as counsel, Bass quoted the United States Supreme Court case of Adams v. United States ex rel. McCann for the proposition that "the Constitution does not force a lawyer upon a defendant." 317 U.S. at 279. In Faretta -the case where the United States Supreme Court held that a defendant's Sixth Amendment's right to self-representation is made applicable to the states through the Fourteenth Amendment-the Court relied on Adams as precedent for the rule that the Constitution does not force lawyers upon defendants. 422 U.S. at 814-15.

Accordingly, despite the State's argument to the contrary, Bass' pro se motion to dismiss Kluzak as counsel included more than a general statement of dissatisfaction with Kluzak's representation. Instead, within his pro se motion, Bass told the district court that his relationship with Kluzak was irrevocably broken, that he wanted appointment of new counsel, but if the district court denied those requests, that he would represent himself. Indeed, Bass repeated his intention to represent himself at the hearing on his motion. Again, Bass spoke twice on this issue at the hearing: First, when explaining his motion, Bass told the district court, "[he] would like either another counsel ... or [he could] try to do it [himself]." Second, after the district court denied his request for new counsel, Bass asked the district court whether he could represent himself since he did not want to be represented by Kluzak.

Bass' comment and question significantly differ from other cases where courts have found that the defendants were simply complaining about their current attorney instead of definitively requesting to represent themselves. For example, in Hollins , this court noted that Hollins had made no comments about self-representation and had not requested new counsel. Instead, Hollins simply complained about his attorney. 9 Kan. App. 2d at 489. Furthermore, in United States v. Burton , 698 Fed. Appx. 959, 960 (10th Cir. 2017) (unpublished opinion), the Tenth Circuit Court of Appeals held that Burton did not clearly and unequivocally invoke her right to self-representation by stating that counsel had no right to speak for her because she had fired him; the court explained that Burton's statement could be interpreted as simply wanting a new attorney.

But in this case, both through his pro se motion and comment at the hearing, Bass told the district court that he intended to represent himself if the district court did not appoint him new counsel. Then, after the district court denied Bass' request for new counsel, Bass followed up with his question about representing himself. Although Bass posed a question to the district court, his question explicitly told the district court that because it denied his motion, he now wanted to represent himself. Moreover, the district court implicitly acknowledged that Bass wanted to represent himself by telling Bass that if he wanted to represent himself, he must file a written motion. Indeed, by placing this written impediment to Bass' self-representation, the district court was acknowledging that Bass was requesting to represent himself. Thus, the district court's response establishes that it understood Bass' rhetorical question to be an unequivocal request to represent himself.

In short, Bass' statements and question were distinct from any dissatisfaction he had with Kluzak. Bass plainly told the district court through his statements and question that he wanted to represent himself. Thus, despite the State's argument to the contrary, Bass made a clear and unequivocal request to represent himself.

Yet, the district court did not directly answer Bass' question about self-representation. Instead, it told Bass he must file a motion in which he requested to represent himself. When we compare the preceding facts of Bass' case to the facts in Bunyard , there are striking similarities.

First, before the hearings where Bass and Bunyard made their unequivocal requests for self-representation, both Bass and Bunyard had filed pro se motions where they requested to represent themselves. Second, in this case and in Bunyard , the district courts imposed a written motion requirement on the defendants. Third, in this case and in Bunyard , the district courts imposed the writing requirement when the defendants had no guarantee of complying with the writing requirement. For Bunyard, he had no guarantee of filing a pro se motion because the jail did not send out mail on weekends. For Bass, he had no guarantee of filing a pro se motion because he was illiterate.

At this juncture, we must note that Bass was filing written pro se motions before the district court imposed the written motion requirement. Nevertheless, it is undisputed that Bass is illiterate. At his hearing to withdraw pleas, Bass explained that he would seek the help of other inmates when filing pro se motions; thus, absent receiving help from another inmate, Bass could not comply with the district court's written motion requirement. Additionally, the district court judge who denied Bass' request to appoint new counsel and imposed the written motion requirement on Bass should have known that Bass could have significant difficulties complying with such a requirement. While defending herself against Bass' motion to dismiss her as counsel, Kluzak stated that she had concerns turning over discovery because Bass "might not be able to read " the discovery.

Although illiteracy is not an impediment to self-representation, "[t]he inability to read and write will handicap the individual deprived of a basic education each and every day of his life." Plyler v. Doe , 457 U.S. 202, 222, 102 S. Ct. 2382, 72 L.Ed. 2d 786 (1982). Here, by imposing a written motion requirement on Bass, the district court limited Bass' access to his constitutional right. Absent another inmate helping him file another pro se motion in which he requested to represent himself, Bass would have been unable to comply with the district court's written motion requirement because of his illiteracy. Consequently, the district court's written motion requirement was inconsistent with Bass' Sixth Amendment right to self-representation based on Bass' illiteracy.

Moreover, it was also inconsistent with Bass' Sixth Amendment right to self-representation simply because the Sixth Amendment imposes no written motion requirement. Again, in Bunyard , our Supreme Court explicitly held that no written motion requirement for self-representation exists: " '[A] district court cannot effectively filibuster a criminal defendant's spontaneous request for self-representation by refusing to rule on the request or by imposing requirements that the defendant reassert that request in a detailed written form or in successive hearings to secure a ruling.' " 307 Kan. at 469 (quoting State v. Bunyard , No. 112,645, 2016 WL 1719607, at *4 (Kan. App. 2017) (unpublished opinion), (rev'd on other grounds ). 307 Kan. at 463. Moreover, in Jones , our Supreme Court never mentioned a written motion requirement, explaining that "[a] defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel." 290 Kan. at 376.

As discussed in Bunyard , the creation of the written motion requirement can undermine a defendant's confidence that he or she will be allowed to invoke the right to self-representation. Here, especially because Bass had already filed a written motion where he requested to represent himself should the district court deny his request for new counsel, the district court's creation of the written motion requirement likely undermined Bass' belief that he would ever be allowed to represent himself.

Simply put, the district court's imposition of a written motion requirement on Bass directly contradicts our Supreme Court precedent. When Bass questioned whether he could represent himself, instead of telling Bass to file a written motion, "the law required that [Bass] be advised about the perils of proceeding pro se and then permitted to do so if he made a knowing and intelligent waiver of his right to counsel." See Bunyard , 307 Kan. at 477. Most importantly, the district court's failure to advise Bass of the perils of proceeding pro se when he questioned the court about representing himself resulted in structural error.

But the State contends that because Bass withdrew his pro se motion to represent himself at the hearing where he ultimately pled guilty, any of Bass' complaints about the district court violating his constitutional right to self-representation are moot. The State's argument, however, is contrary to our Supreme Court precedent in Bunyard and Jones . Both our Supreme Court's decisions in Bunyard and Jones support that once the district court violates a defendant's right to self-representation, that error cannot be deemed harmless. Once more, the Bunyard court held: "A district judge's denial of a criminal defendant's right to forego counsel and represent himself or herself is structural error requiring reversal of the defendant's convictions." 307 Kan. 463, Syl. Additionally, the Jones court held:

"Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless. If a defendant's right to represent himself or herself is violated, the defendant is entitled to a new trial regardless of whether he or she can demonstrate prejudice." 290 Kan. 373, Syl. ¶ 6.

Our Supreme Court's holdings in Bunyard and Jones support that the moment the district court violates a defendant's right to self-representation, the district court commits structural error that is not amenable to harmless error analysis.

Notwithstanding the preceding analysis, Bass' case mirrors the Jones case in respect to Jones' decision to withdraw his request to represent himself. That is, both Bass and Jones had self-representation requests before the district court, the district court wrongly refused to consider those requests, but at a later hearing both Bass and Jones withdrew their self-representation requests after some discussion with an entirely different district court judge. In Jones , our Supreme Court determined that Jones' withdrawal of his request to represent himself at his trial did not render the district court's previous error at the preliminary hearing harmless (1) because Jones had a constitutional right to represent himself at the preliminary hearing and (2) because structural error cannot be harmless. 290 Kan. at 379-83.

Similarly, Bass had a constitutional right to represent himself upon his request to the district court. As Bass points out in his brief, he was in the middle of plea negotiations when he requested to represent himself. It is well established that plea negotiations constitute a critical stage of a defendant's criminal proceedings. See Lafler v. Cooper , 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L.Ed. 2d 398 (2012) (holding that "[d]efendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process"). Moreover, as previously noted, the Jones court interpreted Faretta to mean that "the right to self-representation extend[ed] to all phases of the criminal proceeding." Jones , 290 Kan. at 379. Thus, Bass had a right to represent himself during plea negotiations.

Nevertheless, Kluzak engaged in plea negotiations during the time between the district court's violation of Bass' right to self-representation and the hearing on Bass' written motion for self-representation. Without Kluzak's representation, it is highly questionable whether Bass would have been able to obtain a plea agreement with the State. Regardless, because Bass was not allowed to represent himself during plea negotiations, this resulted in structural error.

Because we reverse Bass's convictions, and vacate Bass' sentences, consideration of Bass' remaining arguments are moot. See Jones , 290 Kan. at 383.

Convictions reversed, sentences vacated, and case remanded for further proceedings.


author: Buser, J.:

text:
    Jerry L. VICKERS, et al., Appellants, v. FRANKLIN COUNTY BOARD OF COMMISSIONERS, Mid-States Materials, LLC, and Robert B. Killough, Appellees.
    No. 118,649
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019.
    R. Scott Ryburn, of Anderson & Byrd, LLP, of Ottawa, for appellants.
    Blaine Finch, of Finch, Covington & Boyd, Chartered, of Ottawa, Bradley R. Finkeldei, of Stevens & Brand, LLP, of Lawrence, and Derek L. Brown, county counselor, for appellees.
    Before Bruns, P.J., Buser and Schroeder, JJ.
    MEMORANDUM OPINION
   Buser, J.:

Jerry L. Vickers, et al. (collectively Plaintiffs) are landowners who own real estate near a rock quarry in Franklin County, Kansas. The rock quarry is owned by Robert B. Killough and leased to Mid-States Materials, LLC (Mid-States). Plaintiffs filed a lawsuit against the Franklin County Board of County Commissioners (Board), Mid-States, and Killough (collectively Defendants), seeking to set aside a special use permit granted in 1998 and to enjoin Mid-States from operating the rock quarry. The district court granted the Defendants' motion for summary judgment and upheld the validity of the special use permit. The Plaintiffs' motion for summary judgment was denied.

Plaintiffs appeal the district court's order granting summary judgment to the Defendants. On appeal, the Plaintiffs raise several arguments challenging the validity of the special use permit which allows for quarry operations. Plaintiffs contend: (1) Franklin County failed to follow the required procedures when issuing the 1998 special use permit; (2) the rock quarry was not operating as a legal nonconforming use when the special use permit was issued or thereafter; (3) Franklin County failed to address the factors identified in Golden v. City of Overland Park , 224 Kan. 591, 584 P.2d 130 (1978), when granting the special use permit; and (4) the special use permit lapsed because rock sales did not occur every 365 days.

After reviewing the record on appeal and the parties' briefs, we find the Plaintiffs' argument-that the special use permit is invalid-has merit because Franklin County failed to comply with Kansas statutory requirements when issuing it. Accordingly, we reverse the district court's grant of summary judgment for Defendants which upheld the validity of the Quarry's special use permit. The case is remanded to the district court with directions to grant summary judgment for Plaintiffs on their claim that the Quarry's special use permit is invalid and to vacate the permit. On the other hand, on remand the district court is directed to grant summary judgment for Defendants on their claim that the Quarry was in operation prior to and at the time of the adoption of the zoning regulations and the Quarry's lawful nonconforming use has not been discontinued or abandoned since that time.

FACTUAL AND PROCEDURAL BACKGROUND

Mid-States operates a rock quarry in the Peoria Township of Franklin County, Kansas, on three adjoining tracts of land owned by Killough. The three tracts of land are collectively known as the Hickory Hills Quarry (the Quarry). Before Killough leased the Quarry to Mid-States in 2013, there were other operators.

The Quarry began operation in 1994 and was originally comprised of two tracts of land. By January 1995, the Quarry had a large pit and rock stockpile. On June 1, 1995, Killough leased the Quarry to Killough Quarries, Inc.-a corporation he owned and operated. About three months later, Killough Quarries, Inc. assigned the quarry lease to Hunt Midwest Mining, Inc. (Hunt Midwest). In 1996, Killough purchased the third tract of land which now included the Quarry. Killough and Hunt Midwest amended the assigned quarry lease in July 1997 to include the third tract of land. As of July 22, 1997, all three tracts of land that comprised the Quarry were leased to Hunt Midwest in a single lease.

On January 8, 1998, the Board included the Peoria Township within Franklin County's zoning regulations by adopting Resolution 98-01. Under this resolution, all the unincorporated area of the Peoria Township was zoned as an Agricultural District (A-3).

To address existing businesses operating on previously unzoned property in Franklin County, the Board proposed Resolution 98-13. Resolution 98-13 passed on March 9, 1998, and added Section 116 to Article 4 of Franklin County's zoning regulations. Under Section 4-116, property owners had 180 days from the effective date of the amendment to apply for a special use permit at no charge. The procedure to obtain a special use permit under Section 4-116 is described later in this opinion.

In June 1998, Killough and Hunt Midwest applied for a special use permit for rock quarrying and mining, rock crushing, rock stockpiling, and rock sales on the Quarry. Franklin County did not provide the Quarry's surrounding neighbors with notice of the special use permit application. A special use permit was approved for the Quarry on July 10, 1998.

Killough leased the Quarry to Mid-States in 2013. About three years later, in June 2016, Mid-States began blasting rock at the Quarry. This was the first time since 1994 that rock was blasted or mined from the Quarry. On September 26, 2016, Plaintiffs filed this action and petitioned the district court for an order declaring the Quarry's special use permit invalid and also seeking to enjoin the Defendants from all quarry operations.

Both parties moved for summary judgment. Defendants argued that summary judgment should be granted in their favor because: (1) the Quarry's special use permit was valid, and (2) even if the special use permit was invalid, the Quarry was operating as a legal nonconforming use. Plaintiffs responded that summary judgment should be granted in their favor because the Quarry's special use permit was not valid. Plaintiffs also claimed the Quarry may not operate as a nonconforming use because no quarry operations occurred for more than six months before Franklin County issued the special use permit or thereafter.

The district court granted Defendants' motion for summary judgment based on its determination that the Quarry's special use permit was validly issued by Franklin County.

Plaintiffs appeal.

THE VALIDITY OF THE QUARRY'S SPECIAL USE PERMIT

On appeal, the Plaintiffs contend the Quarry's special use permit is invalid because Franklin County violated the procedural requirements of K.S.A. 12-757 and Franklin County's 1998 zoning regulations (1998 Zoning Regulations) when approving the special use permit. Plaintiffs also assert: (1) the special use permit was invalid because Franklin County failed to consider the so-called Golden factors, Golden , 224 Kan. at 598-99 ; (2) Defendants failed to prove the Quarry's special use permit had not lapsed; and (3) the Quarry was not operating as a legal nonconforming use.

We begin the analysis with our standard of review. Our court's standard for reviewing a district court's summary judgment ruling is well established:

" ' "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." ' [Citation omitted.]" Patterson v. Cowley County, Kansas , 307 Kan. 616, 621, 413 P.3d 432 (2018).

As discussed throughout this opinion, the district court made numerous findings of fact that were set forth in separately numbered paragraphs in its journal entry filed on November 22, 2017. The parties do not argue that there is any genuine issue as to any material fact found by the district court. Rather, as they did in the district court, the parties strongly dispute the district court's legal conclusions based on those material facts.

Without any factual dispute, our review of a summary judgment order is de novo. Martin v. Naik , 297 Kan. 241, 246, 300 P.3d 625 (2013). The interpretation of statutes and ordinances also presents questions of law subject to de novo review. State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, 659, 367 P.3d 282 (2016).

Our court applies the same rules in interpreting a municipal ordinance as it does in interpreting a statute. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees , 291 Kan. 266, 272, 241 P.3d 15 (2010). The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt , 303 Kan. at 659. An appellate court must first attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. Ullery v. Othick , 304 Kan. 405, 409, 372 P.3d 1135 (2016). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. 304 Kan. at 409.

Article 11 of the 1998 Zoning Regulations addressed general procedures for amending the zoning regulations. To obtain a special use permit under Article 11, a property owner was required to submit a proposed special use permit to the planning agency. For its part, the planning agency was required to hold a public hearing and provide notice of the hearing to surrounding landowners. After a public hearing, the special use permit could then be approved by a vote of the Board.

Separate and apart from Article 11, however, a few months later the Board adopted Section 4-116 into the 1998 Zoning Regulations by enacting Resolution 98-13. The intent of Section 4-116 was to "protect all property owners that are operating legal existing businesses located within previously unzoned townships." Section 4-116 applied to townships unzoned before May 7, 1997, but that were later included in the Franklin County zoning regulations. Because the Peoria Township was unzoned prior to May 1997 but was included in the Franklin County zoning regulations on January 8, 1998, Section 4-116 clearly applied to the Quarry.

Section 4-116 allowed the Franklin County Planning Department to issue special use permits to legal existing businesses located in previously unzoned townships. Businesses were allowed to expand the legal bounds of the property, but expansion into additional property acquired after the special use permit was issued required compliance with the application and review process provided in Article 11. Of note, special use permits issued under Section 4-116 were continuous "unless the use is abandoned or vacated for longer than 365 days at which time the Special Use Permit will become null and void."

Peoria Township property owners had 180 days from March 9, 1998, to apply for a special use permit authorized by Section 4-116. To apply for a special use permit under Section 4-116, a property owner was required to file certain documents with the Franklin County Planning Department. The planning department was empowered to review the special use permit application and issue a special use permit to valid existing businesses in the previously unzoned townships. Importantly, unlike Article 11 procedures, Section 4-116 did not require notice to surrounding landowners, hearings, or a vote of the Board.

In compliance with Section 4-116, Hunt Midwest applied for a special use permit within 180 days of March 9, 1998. Upon review, the Planning Director approved a special use permit for operations involving the Quarry on July 10, 1998. Prior to granting the special use permit, there was no notice to surrounding landowners, no public hearings, no recommendations by the planning agency, and no vote by the Board. As mentioned earlier, no such procedural requirements were required under Section 4-116.

Although Section 4-116 did not require the county to comply with procedural safeguards, a fundamental question was raised by Plaintiffs in the district court and is reprised on appeal: Did procedural failures or omissions render the Quarry's special use permit invalid under Kansas statutes, in particular, K.S.A. 12-757 ?

A municipality has no inherent power to enact zoning laws. Instead, a municipality's zoning power is derived solely from the authority granted to the municipality by Kansas zoning statutes. Crumbaker v. Hunt Midwest Mining, Inc. , 275 Kan. 872, 884, 69 P.3d 601 (2003). In addition to the zoning statutes in K.S.A. 12-741 et seq., municipalities may enact and enforce additional zoning regulations which do not conflict with those statutes. K.S.A. 12-741(a). Our Supreme Court has "long held that the power of a city government to change the zoning of property-which includes issuing special use permits-can only be exercised in conformity with the statute which authorizes the zoning." 275 Kan. at 886.

Under K.S.A. 12-755(a), a county's governing body may adopt zoning regulations that provide for issuing special use permits. But K.S.A. 12-757 demands certain notice and hearing requirements for amending zoning regulations. Importantly, although K.S.A. 12-757 does not explicitly mention special use permits, our Supreme Court has consistently found the procedures in K.S.A. 12-757 apply to special use permits. Manly v. City of Shawnee , 287 Kan. 63, 67, 194 P.3d 1 (2008) ; Crumbaker , 275 Kan. at 886.

K.S.A. 1998 Supp. 12-757(b) provides that the planning commission must hold a public hearing on proposed zoning amendments. If the proposed amendment affects specific property, "written notice of such proposed amendment shall be mailed at least 20 days before the hearing ... to all owners of record of real property located within at least 1,000 feet of the area proposed to be altered." K.S.A. 1998 Supp. 12-757(b). After receiving the planning commission's recommendation, the county's governing body may adopt that recommendation by resolution, override the planning commission's recommendation by a two-thirds majority vote, or return the recommendation to the planning commission. K.S.A. 1998 Supp. 12-757(d). But if the adjoining landowners who were required to be notified file a protest petition, the governing body must approve the amendment by a three-fourths vote. K.S.A. 1998 Supp. 12-757(f).

Upon the adoption of Resolution 98-01, the Quarry was zoned as an Agricultural District (A-3). Any zoning change or special use permit issued after this initial zoning of the Quarry required Franklin County to follow the procedures in K.S.A. 12-757. Yet, it is undisputed that the Quarry's special use permit was granted without a public hearing, notice to the surrounding landowners, or a vote by the Board. As a result, the special use permit application process in Section 4-116 of the 1998 Zoning Regulations did not comply with the mandatory statutory procedures set forth in K.S.A. 12-757.

The procedural defects here resemble those in Crumbaker . In Crumbaker , the defendant operated a quarry under Johnson County zoning designations with a 10-year conditional use permit. Before the conditional use permit expired, the defendant and the City of DeSoto entered into an annexation agreement. Under this agreement, the City allowed the defendant to continue and expand quarry operations without following the procedures for rezoning and obtaining a special use permit under K.S.A. 12-757. Our Supreme Court held that this procedural failure rendered the City's action invalid. 275 Kan. at 887.

In the case on appeal, Defendants argue that the statutory procedures provided in K.S.A. 12-757 are not applicable to the Quarry's special use permit because the quarry was a nonconforming use. In support of their argument, Defendants rely on M.S.W., Inc. v. Marion County Bd. of Zoning Appeals , 29 Kan. App. 2d 139, 24 P.3d 175 (2001).

Kansas law recognizes the nonconforming use doctrine. Zimmerman v. Board of Wabaunsee County Comm'rs , 293 Kan. 332, 347, 264 P.3d 989 (2011). A nonconforming use is "a lawful use of land or buildings which existed prior to the enactment of a zoning ordinance and which is allowed to continue despite the fact it does not comply with the newly enacted use restrictions." Johnson County Memorial Gardens, Inc. v. City of Overland Park , 239 Kan. 221, 224, 718 P.2d 1302 (1986). Kansas courts have recognized that the nonconforming use doctrine has a policy of restriction and eventual elimination of the nonconforming use. Board of Seward County Comm'rs v. Navarro , 35 Kan. App. 2d 744, 752, 133 P.3d 1283 (2006). "If a nonconforming use is established, however, the party has a vested right which is protected by due process." Crumbaker , 275 Kan. at 882.

The nonconforming use doctrine is codified at K.S.A. 12-758(a), which states that "regulations adopted under authority of this act shall not apply to the existing use of any building or land." Contrary to Defendants' argument, however, the Quarry was not exempt from the requirements of Kansas statutes based on this statutory language. While the regulations zoning the area as agricultural land did not apply to the Quarry, Defendants still needed to follow the statutory procedures provided in K.S.A. 12-757 to obtain a special use permit for the Quarry property.

Defendants' reliance on M.S.W. is not persuasive. In M.S.W. , Marion County passed a 1992 resolution that zoned previously unzoned areas of the county and simultaneously granted 116 conditional use permits for existing uses. As part of this resolution, the property at issue was zoned agricultural with a conditional use permit allowing for use as a solid waste landfill. The landfill closed in 1996 and, more than a year later, the plaintiff purchased the property. The Plaintiff's applications for landfill permits, however, were rejected. The Board of Zoning Appeals found that no nonconforming use ever existed and the conditional use permit lapsed because the landfill had been closed for over six months.

The M.S.W. court held that the county was not required to follow the procedures in the zoning ordinances for issuing a conditional use permit when the conditional use permit was issued simultaneously with the initial zoning. 29 Kan. App. 2d at 147-55. The court agreed that the conditional use permit had the same effect for the landowner as a landfill zoning classification. 29 Kan. App. 2d at 150. The M.S.W . court also noted the "granting of [conditional use permits] simultaneously with the initial zoning regulations in order to avoid the creation of nonconforming uses is consistent with the disfavored status of nonconforming uses." ( Emphasis added.) 29 Kan. App. 2d at 154.

While in the case on appeal, Section 4-116 similarly sought to eliminate nonconforming uses, the circumstances in M.S.W. are different from this case. In M.S.W. , the county granted the conditional use permit at the time of the initial zoning. Here, the Quarry was operating as a nonconforming use after the property was zoned agricultural in January 1998. Section 4-116 then provided Killough and Hunt Midwest the opportunity to exchange its nonconforming use status for a special use permit.

By issuing the special use permit, the County granted Killough and Hunt Midwest additional protections and rights they would not have enjoyed as a nonconforming use. For example, the special use permit allowed the current use to expand without restriction, allowed for any structure to be rebuilt, and extended the time the use could be abandoned and then resumed. These additional rights granted through the special use permit required Defendants to abide by the statutory procedures found in K.S.A. 12-757.

Moreover, the parties and court in M.S.W. did not consider whether the county's unilateral grant of conditional use permits concurrently with the initial zoning regulations violated K.S.A. 12-757. Instead, the legal arguments in M.S.W. focused on whether the simultaneous grant of conditional use permits with the initial zoning regulations violated the nonconforming use doctrine. In M.S.W. , the plaintiff's main contention was that the county "converted its vested right of a nonconforming use landfill into a nonvested right of a conditional use of property as a landfill without any due process." 29 Kan. App. 2d at 152. While the plaintiff's argument in M.S.W. failed to show that the conditional use permit was void, Plaintiffs' arguments here successfully show that the Quarry's special use permit is invalid.

Although the Quarry's special use permit was issued in compliance with the process outlined in Section 4-116, Defendants may not circumvent Kansas' zoning statutes. The failure to follow the notice and procedure requirements of K.S.A. 12-757 when issuing the special use permit renders the county's action invalid. See Crumbaker , 275 Kan. at 887. As a result, the Quarry's special use permit must be invalidated.

Because the Quarry's special use permit is invalid, we reverse the district court's grant of summary judgment for Defendants which upheld the validity of the Quarry's special use permit. The case is remanded to the district court with directions to grant summary judgment for Plaintiffs on their claim that the Quarry's special use permit is invalid and to vacate the permit. Given our holding based on the Board's noncompliance with the notice and procedure requirements of K.S.A. 12-757, we decline to consider Plaintiffs' other grounds also challenging the validity of the special use permit.

In addition to raising the issue of the invalidity of the special use permit, however, the Plaintiffs also appealed the district court's finding that the Quarry was in operation prior to and at the time of the adoption of the zoning regulations and the Quarry's legal nonconforming use has not been discontinued or abandoned since that time.

THE QUARRY'S STATUS AS A NONCONFORMING USE

As part of their motion for summary judgment, Plaintiffs contended that the Quarry was not a legal nonconforming use prior to or after the issuance of the special use permit. Plaintiffs acknowledged that under K.S.A. 12-758, land use which existed prior to the enactment of a zoning ordinance may continue despite the fact it does not comply with newly enacted zoning restrictions. As Plaintiffs described it: "The non-conforming use is thereby allowed to continue, or 'grandfathered in ' and the landowner is allowed to continue the use even if it is a violation of the zoning modification." But Plaintiffs cited Article 8 of the 1998 Zoning Regulations, which provided that any nonconforming use that is "voluntarily discontinued" for a period of six consecutive calendar months shall not thereafter be resumed.

On appeal, Plaintiffs contend that Defendants

"cannot now claim a non-conforming use for a quarry when the evidence is uncontroverted that the non-conforming use has been discontinued and lapsed since no rock sales, rock crushing, mining or blasting had occurred for six (6) months after Peoria Township was zoned, and prior to the issuance of [the special use permit] on July 10, 1998."

A nonconforming use is a use which lawfully existed before the enactment of a zoning ordinance. A nonconforming use is allowed to be maintained after the effective date of the ordinance even though it does not comply with newly enacted use restrictions. The party claiming the nonconforming use has the burden to prove such use exists. Crumbaker , 275 Kan. at 881 ; but see Kuhl v. Zoning Hearing Bd. of Greene Tp. , 52 Pa. Commw. 249, 251, 415 A.2d 954 (1980) ("Abandonment is a question of fact which depends upon all the factors present in a case, and the burden of proving an abandonment of a non-conforming use is on those who assert the abandonment.").

Article 8 of the 1998 Zoning Regulations addressed nonconforming uses. Under Section 8-130(I), when a nonconforming use of land is discontinued or abandoned for six consecutive months, the nonconforming use may not be reestablished or resumed, and any subsequent use must conform to the zoning regulations. In granting summary judgment to Defendants, the district court determined that (1) the Quarry operated as a nonconforming use when Peoria Township was zoned, and (2) the nonconforming use was never discontinued or abandoned.

In this case the uncontroverted facts showed no mining, crushing, or blasting of rock occurred at the Quarry from 1994 until 2016. There were no rock sales from October 1997 until November 1998. As a result, no rock sales from the Quarry occurred during the six months after the Peoria Township was zoned. However, the Quarry was leased by Killough each year since 1997 and the district court specifically found that "rock was sold from the Quarry every year since 1997."

The district court specifically applied the law from Union Quarries, Inc. v. Board of County Commissioners , 206 Kan. 268, 275, 478 P.2d 181 (1970), which, in the words of the district court, meant that "the legal, non-conforming use existed, continued, and was not abandoned as long as rock from the quarry was sold each year and the quarry use was not otherwise abandoned." In this regard, the district court made two key findings. First,

"[r]ock sales occurred in October 1997 from the Quarry, which was within a year before the zoning resolution was passed on January 8, 1998, and thus the Quarry was in operation prior to the adoption of the zoning regulations, and was a non-conforming use at the time of the adoption of the zoning regulations."

Second, "the Quarry use has not been discontinued or abandoned since January 8, 1998."

Was the use of the Quarry discontinued or abandoned prior to or after enactment of the 1998 Zoning Regulations? The word discontinuance, as used in a zoning ordinance, is equivalent to abandonment. Union Quarries , 206 Kan. at 275. "Abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use." 206 Kan. 268, Syl. ¶ 3. Importantly: "Mere cessation of use does not of itself amount to abandonment although the duration of nonuse may be a factor in determining whether the nonconforming use has been abandoned." 206 Kan. 268, Syl. ¶ 4.

While abandoning a nonconforming use typically requires an intent to abandon the use, the 1998 Zoning Regulations eliminate the intent requirement. Section 8-130(I) provides that when a nonconforming use is discontinued or abandoned for six consecutive months "(regardless [of] any reservation of an intent not to abandon or to resume such use), such use shall not thereafter be re-established or resumed."

Our Supreme Court has addressed whether a nonconforming quarry use was abandoned in Union Quarries . The quarry operator in Union Quarries had removed its quarrying and crushing equipment from the land. Then, for a period of two years, there was no rock drilling, blasting, or crushing on the quarry land. And, similar to the present case, the regulations at issue in Union Quarries provided that a nonconforming use that has been abandoned for six months may not be resumed.

Our Supreme Court in Union Quarries held that the evidence supported a finding that the nonconforming quarry use was not abandoned. 206 Kan. at 276. The court found that the quarry operator's actions of using portable quarrying equipment as needed to maintain rock stockpiles was in line with common quarrying practices. The court then noted that, during the two years of no blasting, the quarry operator made royalty payments, small quantities of rock were sold, and a salesperson quoted rock prices to construction companies. The court concluded: "The property was initially purchased for a rock quarry. There was little in the evidence to suggest abandonment-to the contrary, it indicated the property has continually been held for the same purpose." 206 Kan. at 276.

A review of law from other jurisdictions also supports the view that a nonconforming quarry use is not abandoned simply because there is no rock mining, crushing, or blasting. See Bither v. Baker Rock Crushing Co. , 249 Or. 640, 649, 438 P.2d 988, modified 440 P.2d 368 (1968). Indeed, courts typically find that a nonconforming quarry use is not abandoned when there is storage and sale of rock. River Springs, Ltd. Liability Co. v. Board of Teton County Comm'rs , 899 P.2d 1329, 1335 (Wyo. 1995) (holding that a nonconforming quarry was not abandoned, even though the quarry was substantially dormant for six years, when small quantities of previously quarried limestone were removed). See Hinkle v. Board of Zoning Adjustment and Appeals of Shelby County. , 415 S.W.2d 97, 100 (Ky. 1967) (noting that "although the only activities at the quarry were the storage and sale of stone, the quarry was never abandoned").

Two Oregon cases provide additional guidance on whether a nonconforming quarry use has been abandoned. In Polk County. v. Martin , 292 Or. 69, 78, 636 P.2d 952 (1981), the court held that a nonconforming quarry use had not been abandoned even though the use was intermittent and fluctuated. In the four years before the quarry in Martin was zoned, only 6,000 cubic yards of rock were removed with less than $1,000 of sales. However, this low production and sales were consistent with the quarry's previous 30 years.

The Martin court determined that there was no interruption in use either before or after the zoning ordinance became effective. Although the sporadic and intermittent use was relevant to the scope of the permitted nonconforming use, it did not negate the existence of an ongoing quarry business. 292 Or. at 76. The Martin court found:

"The land had been used in the same manner for over 30 years. There was continuous use in the sense that stockpiling existed and the owner had committed the property to that use. Even though the sales were not substantial, rock was available for sale and sales were periodically made. The same is true of the quarrying. There was no interruption of the use ...." 292 Or. at 78.

In the other Oregon case, Tigard Sand and Gravel, Inc. v. Clackamas County , 149 Or. App. 417, 423-24, 943 P.2d 1106 (1997), the court distinguished Martin and found that a nonconforming quarry use had been abandoned for more than 12 consecutive months. After the quarry in Tigard Sand was zoned, there was no crushing or quarrying activity from 1984 until 1991. Although there was a rock stockpile on the property, the site did not remain open for sales during the seven-year period. And, from 1989 to 1991, the property was converted into a firewood processing and wood sorting business while the quarry site was not utilized.

In holding that the nonconforming quarry use was abandoned, the Tigard Sand court found:

"In this case ... petitioner's quarry use was not simply fluctuating, intermittent or sporadic. For a period of seven years, it virtually had stopped, and, for the last two of those seven years, the site on which it had been conducted was used principally, if not exclusively, for a business activity that was totally unrelated to quarry operations. Under the findings, the nonconforming quarry use was both interrupted and abandoned as a matter of law, and the resumption of the use was f oreclosed ...." 149 Or. App. at 424.

Returning to the present case, both before and after enactment of the 1998 Zoning Regulations, the land was continually under lease to quarry operators, rock was continuously stockpiled at the Quarry, and there were yearly rock sales. The Quarry was created by blasting and quarrying about 30,000 tons of rock. This rock was stockpiled and periodically sold over the next 20 years. The evidence shows that, from at least 1996 to 2000, Hunt Midwest sold rock from the Quarry each year. During this time-both before and after the Peoria Township was zoned-rock sales occurred several months apart and the amount sold per year varied from 3,283 tons in 1996, 662 tons in 1997, 112 tons in 1998, 2,246 tons in 1999, and 1912 tons in 2000. No other use-other than operating and maintaining the Quarry-occurred on the land from the date the Quarry was established until this litigation.

As in Martin , the Quarry land had been in use as a quarry for many years. There was continuous use in the sense that stockpiling occurred and the owner had committed to this particular use and no other. Rock was available for sale and sales were periodically transacted at least once per year. There was no interruption in this use of the Quarry. The intermittent sales that occurred after the quarry was zoned resembled its previous use. Even though there were no rock sales in the six months after the Peoria Township was zoned, the quarry was not abandoned.

We decline to adopt Plaintiffs' suggestion that a nonconforming quarry use is invariably abandoned between rock sales. A quarry is a unique business. Although intent to abandon is not relevant to the 1998 Zoning Regulations, courts widely recognize that quarry operations are inherently sporadic and abandonment may not be inferred from the mere fact that blasting or crushing stopped or rock sales fluctuated. As the court in Tigard Sand observed: "[Q]uarry uses are generally more likely than some other types of uses to be characterized by variations in activity levels and, when that is so, that their 'continuity' should be gauged accordingly." 149 Or. App. at 423-24.

The Quarry was continuously used as a rock quarry prior to and at the time of the adoption of the zoning regulations. The Quarry was leased by Hunt Midwest and there is no evidence that the land was used for another purpose. Although rock sales were sporadic, rock was stockpiled, available for sale, and sales were periodically made at least once a year. The district court did not err in its legal conclusion that the Quarry has been operating continually and without abandonment as a lawful, nonconforming use since prior to and at the time of the adoption of the zoning regulations.

Although the district court made sufficient findings of fact and legal conclusions favoring Defendants' nonconforming use claim, it did not specifically order summary judgment for Defendants on that basis, undoubtedly because it granted summary judgment for Defendants based on the special use permit claim. Accordingly, on remand, the district court is directed to grant summary judgment for Defendants on the claim that the Quarry was in operation prior to and at the time of the adoption of the zoning regulations and the Quarry's lawful nonconforming use has not been discontinued or abandoned since that time.

Reversed and remanded with directions.