LLC v. Leavenworth County, Board of Leavenworth County Commissioners, and Mike Stieben, Appellees. (2026)

MEMORANDUM OPINION

A simmering dispute between the principals of Whiskey Ridge, LLC, and the Leavenworth County government over a special use permit for what has been described as a wedding venue exploded into this litigation and claims against the County and one of its elected commissioners for more than half a million dollars in damages. The Leavenworth County District Court dismissed this action, finding that Whiskey Ridge failed both to exhaust available administrative remedies and to state claims for tortious interference with its business interests, violation of its equal protection and substantive due process rights, and an unlawful government taking of its purported property right in a special use permit the County granted in 2020 and later treated as void. Having examined the record, we reverse the dismissal of the equal protection claim. We otherwise generally affirm the district court's decision and remand with directions for further proceedings and amendment of the judgment.

Factual and Procedural History

We first identify the parties in the second amended petition—the pleading on which the district court based its ruling. The plaintiffs are Whiskey Ridge; Orison, LLC, an affiliated business entity; and George Daniel Lynch and Cynthia Lynch, a married couple and owners of Whiskey Ridge and Orison. The four plaintiffs are united in interest and have been jointly represented throughout this litigation, so we have no reason to differentiate among them and thus refer to them collectively as Whiskey Ridge or the plaintiffs. The defendants in the second amended petition are the Leavenworth County Board of Commissioners and Mike Stieben, an elected member of the Board. In conjunction with its ruling dismissing this case, the district court also denied a motion to add two other board members, Vicky Kaaz and Jeff Culbertson, as defendants. That ruling is a subsidiary issue on appeal.

Since the district court dismissed this case under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies and under K.S.A. 60-212(b)(6) because the second amended petition failed to state claims against the County and Stieben, we largely draw the factual statement from the representations in the 30-page petition. In April 2020, Whiskey Ridge sought and obtained a special use permit from the County to build a “wedding venue.” The permit did not require the proposed building, primarily constructed of steel and concrete with some wood, to have a sprinkler system as a fire suppression mechanism. With the onset of the COVID-19 pandemic, Whiskey Ridge did not move forward with construction for more than two years. In mid-2022, Whiskey Ridge sought a building permit to begin construction of the wedding venue. County representatives informed Whiskey Ridge that the special use permit issued in 2020 had lapsed and it needed to obtain a new one. Whiskey Ridge did not challenge the County's position under K.S.A. 12-760, requiring a party aggrieved by a zoning decision to contest the reasonableness of that decision in district court within 30 days.

In December 2020, the County adopted the 2006 International Building Code that requires buildings such as the wedding venue to have fire suppressing sprinkler systems. Whiskey Ridge requested a variance from the County Board of Building Codes Appeals (BBCA) relieving it of the sprinkler system requirement. The BBCA denied the request. Whiskey Ridge did not appeal that decision to the district court under K.S.A. 19-223, as provided in the County order creating the BBCA.

After Whiskey Ridge constructed the building, the County granted it temporary permits to operate the venue without a sprinkler system, so long as it had a firetruck and personnel present during events. The County Commission denied an application from Whiskey Ridge for a new special use permit that did not include a fire suppressing sprinkler system. Whiskey Ridge did not appeal that denial to the district court under either K.S.A. 12-760 or K.S.A. 19-223. Whiskey Ridge then installed a sprinkler system, and the County Commission approved a new special use permit.

In its second amended petition, Whiskey Ridge alleged it has incurred substantial expenses because the County refused to allow construction under the 2020 special use permit, denied the requested variance from the sprinkler system requirement, and approved a special use permit only after a sprinkler system had been installed. Whiskey Ridge requested “compensatory damages [of] ․ not less than $550,000.”

Stieben and the County filed motions and supporting memorandums to dismiss, arguing that the district court lacked subject matter jurisdiction because plaintiffs did not exhaust available administrative remedies and that they failed to state claims for relief. See K.S.A. 60-212(b)(1), (b)(6). Along with those filings, they submitted a raft of documents that, for the most part, were not authenticated. Whiskey Ridge duly responded, and the defendants filed replies. The district court issued an order dismissing all of the claims in the second amended petition. Plaintiffs have appealed.

Analysis

We take up our review by looking at the five counts for relief Whiskey Ridge has set out in the second amended petition.

Tortious Interference Claims

Counts I, II, and III of the second amended petition allege tortious interference with a contract or business expectancy. See Cohen v. Battaglia, 296 Kan. 542, 546, 293 P.3d 752 (2013) (recognizing related torts of interference with existing contract and with prospective business advantage and reciting elements of each). All three arise from the same factual scenario outlined in the petition. The first count names Stieben alone as the culpable defendant. The second names Stieben, Kaaz, and Culbertson (presumably in anticipation of the district court granting the motion to add Kaaz and Culbertson as defendants). And the third generically names “all defendants.”

Because we affirm the district court's dismissal on these counts for lack of subject matter jurisdiction, we do not recite the extended underlying factual discussion in the second amended petition. For context, the plaintiffs alleged a contractual agreement or expectancy based on representations two high-ranking county employees made to them that they would not need a fire suppression sprinkler system if they secured a variance or waiver from the state fire marshal. The plaintiffs alleged they did so, but Stieben (and others) then wrongfully induced the state fire marshal to withdraw the variance. As a result, the plaintiffs wound up installing the sprinkler system to obtain a special use permit and incurring additional expenses to comply with the temporary permits before then.

Under K.S.A. 12-760 or K.S.A. 19-223, Whiskey Ridge could have filed suit to challenge the reasonableness of the BBCA's denial of its request for a variance from the sprinkler requirement and the County Commission's denial of the request for a special use permit without the requirement. The second amended petition establishes Whiskey Ridge did not do so. As we explain, that inaction amounted to a failure to exhaust remedies available to rectify the adverse administrative determinations denying the variance and the special use permit. The district court, therefore, lacked subject matter jurisdiction to consider the tortious interference claims that effectively substituted money damages on tort theories for challenges to the underlying administrative decisions.

We pause to outline the proper standard of review for a dismissal for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1) because neither the district court nor the parties have done so. A district court has broad procedural options in resolving a request for dismissal under K.S.A. 60-212(b)(1). A district court “may rely on pleadings alone, consider affidavits, permit jurisdictional discovery, or hold an evidentiary hearing.” POM of Kansas v. Kobach, 319 Kan. 764, 771, 561 P.3d 506 (2024). If the district court relies on the pleadings, affidavits, and other written materials without an evidentiary hearing, then the factual issues must be resolved in the plaintiff's favor, and the plaintiff need make only a prima facie showing of jurisdiction to defeat the motion. An appellate court exercises unlimited review of the record and resulting ruling. 319 Kan. at 771. We are in that procedural posture here.

Under K.S.A. 12-760, a party “aggrieved” by the final decision of a city or county on a matter of zoning or land may file an action in the district court within 30 days “to determine the reasonableness” of the decision. See K.S.A. 12-755(a)(5) (county may adopt zoning regulations allowing special use permits); Manly v. City of Shawnee, 287 Kan. 63, 66, 75, 194 P.3d 1 (2008) (property owners sued under K.S.A. 12-760 to challenge city's issuance of special use permit for adjacent illuminated softball complex and stadium). Similarly, under K.S.A. 19-223, any “aggrieved” person has 30 days to file an action in the district court challenging “any decision of the board of [county] commissioners.” Whiskey Ridge concededly never pursued relief under either statute and, therefore, did not exhaust those remedies.

Whiskey Ridge contends the exhaustion requirement should be excused because the BBCA and the County Commission did not provide or properly serve individualized notice of their adverse rulings on it or its principals. The second amended petition includes an extended discussion of the lack of individualized notice. But Whiskey Ridge offers no authority—and we have found none—that a deliberative governmental body, such as the BBCA or the County Commission, reviewing land use proposals has an obligation to provide written notice directly to interested parties disadvantaged by its decisions made upon vote or consensus in a meeting announced and convened for that purpose.

As we have indicated, seeking judicial relief from the adverse decisions of the BBCA and the County Commission reflected the last step in the administrative review process and was necessary to exhaust the available administrative remedies. See Johnson County Memorial Gardens, Inc. v. City of Overland Park, 239 Kan. 221, 226-27, 718 P.2d 1302 (1986) (affirming summary judgment for defendant in action challenging zoning change because cemetery did not seek special use permit and thus pursue administrative remedies before suing). Having failed to do so, Whiskey Ridge cannot bring an action for money damages it purportedly sustained because of those administrative decisions. State ex rel. Smith v. Miller, 239 Kan. 187, 190, 718 P.2d 1298 (1986) (“A party aggrieved by an administrative ruling is not free to pick and choose a procedure in an action in the district court in order to avoid the necessity of pursuing his remedy through administrative channels.”). And the failure to exhaust administrative remedies deprived the district court of subject matter jurisdiction over Whiskey Ridge's tortious interference claims since they sought alternative relief for the denials of the variance and a new special use permit. See Nichols v. Kansas Political Action Committee, 270 Kan. 37, 40-41, 11 P.3d 1134 (2000) (recognizing failure to exhaust available administrative remedies deprives district court of subject matter jurisdiction); Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 85, 88, 991 P.2d 883 (1999).

In short, Whiskey Ridge has failed to make a prima facie showing that it exhausted the available administrative remedies. To the contrary, it admits the failure and offers a legally empty excuse for its noncompliance. The district court, therefore, properly dismissed Counts I, II, and III in the second amended complaint grounded in tortious interference theories for lack of subject matter jurisdiction.

A district court without subject matter jurisdiction typically has no authority to decide any other issue. See Sandlin, 268 Kan. at 88 (dismissal without prejudice for lack of jurisdiction); Danzman v. Herington Municipal Hosp. Bd. of Trustees, No. 124,675, 2022 WL 4115577, at *3 (Kan. App. 2022) (unpublished opinion) (lack of subject matter jurisdiction deprives district court of authority to act beyond dismissing without prejudice). This appears to be a typical case. The district court, therefore, had no authority to alternatively dismiss the tortious interference counts for failing to state a claim under K.S.A. 60-212(b)(6). The dismissal of those counts should have been made without prejudice. See K.S.A. 60-241(b) (involuntary dismissal for lack of jurisdiction not “adjudication on the merits”); FV-I, Inc. v. Kallevig, 306 Kan. 204, 211, 228, 392 P.3d 1248 (2017) (standing entails component of subject matter jurisdiction; dismissal for lack of standing should be without prejudice); Kansas Fire and Safety Equipment v. City of Topeka, 62 Kan. App. 2d 341, 352-53, 514 P.3d 387 (2022) (lack of subject matter jurisdiction requires dismissal without prejudice).

We, therefore, affirm the district court's decision to dismiss Counts I, II, and III of the second amended complaint for tortious interference but remand with directions to show the dismissal of them to be without prejudice. In turn, we find no error in the district court's denial of Whiskey Ridge's motion to add Kaaz and Culbertson as defendants in the tortious interference claims. The request to add them would have been legally futile for the same reason the claims against Stieben fail under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction.

Equal Protection and Substantive Due Process Claims

In Count IV of the second amended petition, Whiskey Ridge alleges equal protection and substantive due process claims against the County. Those are constitutional torts actionable against States and local governments, such as Leavenworth County, through 42 U.S.C. § 1983.

Plaintiffs have no duty to exhaust administrative remedies before filing a § 1983 action. Patsy v. Florida Board of Regents, 457 U.S. 496, 516, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982). Although Patsy involved constitutional claims litigated in federal court, the United States Supreme Court extended the no-exhaustion rule to § 1983 claims brought in state court. Felder v. Casey, 487 U.S. 131, 134, 146-50, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988); see Williams v. Reed, 604 U.S. 168, 173-74 & n.2, 145 S. Ct. 645, 221 L. Ed. 2d 44 (2025) (applying no-exhaustion rule to constitutional claim brought in state court without reexamining broad rule of Patsy). The Kansas Supreme Court has recognized that plaintiffs do not have to exhaust administrative remedies before pursuing constitutional torts under § 1983. See Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 16, 20 P.3d 39 (2001).

The district court, therefore, erred in relying on the failure to exhaust and the absence of subject matter jurisdiction under K.S.A. 60-212(b)(1) as a basis for dismissing Count IV of the second amended petition. The district court, however, also ruled that Whiskey Ridge failed to state actionable equal protection and due process claims and dismissed under K.S.A. 60-212(b)(6). We turn to that ground.

Kansas requires what's called “notice” pleading. A petition must contain a short plain statement of the factual basis for the claims against the defendant and a requested form of relief, thereby giving notice. K.S.A. 60-208(a); Rogers v. Wells Fargo Bank, N.A., 64 Kan. App. 2d 290, 295, 551 P.3d 142 (2024).

A district court cannot dismiss a petition for failing to state a claim so long as the factual assertions in the petition state a viable claim under any legal theory—not just the ones the plaintiff has identified. In considering a motion to dismiss, the district court must credit as true both the well-pleaded factual allegations in a plaintiff's petition and any reasonable inferences drawn from those representations. The district court should not dismiss if the allegations and inferences present any viable legal claim. Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc., 305 Kan. 761, 767-68, 388 P.3d 84 (2017); Cohen, 296 Kan. at 545-46.

The standard is a distinctly forgiving one, allowing plaintiffs to go forward on loosely pleaded facts that fit within any recognized cause of action. Whether the claims will hold up after discovery, either on summary judgment or at trial, is a different question. Dismissal under K.S.A. 60-212(b)(6) presents a legal determination we review without deference to the district court. Rogers, 64 Kan. App. 2d at 296.

Here, the district court applied the federal procedural test for dismissing a pleading for failing to state a claim—a relatively new reformulation that replaced the traditional notice pleading standard with a more demanding requirement that a plaintiff demonstrate their assertions go beyond mere notice and “ ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 [2007]); see Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 784, 450 P.3d 330 (2019) (federal plausibility standard “more difficult for plaintiffs to meet than the traditional Kansas standard”). The decisions in Iqbal and Twombly call for a critical judicial review of opening pleadings examining whether plaintiffs have set forth fact-based representations outlining “ ‘plausible’ ” claims rather than merely “ ‘conceivable’ ” ones. Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).

The district court erred. When a plaintiff brings a federal claim in state court, the state court must apply substantive federal law but should apply its own procedural rules. Howlett v. Rose, 496 U.S. 356, 372, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990); Brumbaugh v. Bendorf, 306 Neb. 250, 255, 945 N.W.2d 116 (2020); Harris County v. Coats, 607 S.W.3d 359, 372 (Tex. App. 2020). And we have explicitly declined to abandon notice pleading in favor of the Iqbal-Twombly standard. Rogers, 64 Kan. App. 2d at 301.

Whiskey Ridge has suggested we should remand to the district court so that it may apply the correct standard. But the standard applicable in both the district court and on appeal evaluates the legal sufficiency of the representations in a petition without resolving any conflicting evidence—something we can do just as well as the district court. A remand for that purpose would simply build in an unnecessary assessment, potentially another appeal, and needless delay.

We turn to the substantive requirements for the constitutional claims Whiskey Ridge asserted in the second amended petition. A plaintiff states a prototypical claim under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution if they allege facts showing that they belong to a group that a governmental entity has treated less favorably than a similarly situated group and has done so without any rational basis. See Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 601, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008) (“Our equal protection jurisprudence has typically been concerned with governmental classifications that ‘affect some groups of citizens differently than others.’ ”) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393 [1961]). The United States Supreme Court has recognized that a rational classification differentiating between groups for an economic benefit satisfies the Equal Protection Clause. Fitzgerald v. Racing Assn. of Central Iowa, 539 U.S. 103, 107, 123 S. Ct. 2156, 156 L. Ed. 2d 97 (2003) (A government classification survives rational basis review if “ ‘a plausible policy reason’ ” supports the scheme and it is not so removed from that reason as to result in an “ ‘arbitrary or irrational’ ” distinction.) (quoting Nordlinger v. Hahn, 505 U.S. 1, 11-12, 112 S. Ct. 2326, 120 L. Ed. 2d 1 [1992]). Government classifications that effectively differentiate between groups based on race, sex, or other protected characteristics are subject to much more rigorous review. Fisher v. University of Tex. at Austin, 570 U.S. 297, 309-10, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013) (strict scrutiny of racial classifications); Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988) (strict scrutiny of racial classifications and “intermediate” scrutiny of sex-based classifications). Whiskey Ridge has not pleaded any basis for applying heightened equal protection review.

Pertinent here, the United States Supreme Court has recognized a subcategory of equal protection claims—known as a “class of one”—where the plaintiff asserts impermissible disparate treatment without membership in a disfavored group. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (recognizing class-of-one theory). In Olech, the Court held that Grace Olech could proceed with her equal protection claim based on the Village requiring a substantially greater easement to connect her to the municipal water supply than it had required of other similarly situated property owners, even though she did not belong to an identifiable group that had been treated unfavorably. The United States Court of Appeals for the Tenth Circuit has characterized a class-of-one claim this way: “In the paradigmatic class-of-one case, a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive.” Jicarilla Apache v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir. 2006) (citing Lauth v. McCollum, 424 F.3d 631, 633 [7th Cir. 2005]); see Navratil v. City of Racine, 101 F.4th 511, 523 (7th Cir. 2024) (“To prevail on a ‘class-of-one’ equal protection claim, a plaintiff must show that it was ‘treated differently from others similarly situated, without a rational basis for the differential treatment.’ ”) (quoting Williamson v. Curran, 714 F.3d 432, 441 [7th Cir. 2013]).

Because a class-of-one claim does not rest on disparate government treatment of a broad group but a single individual or entity, the courts require a plaintiff to demonstrate they are directly comparable in all material respects with more favorably treated comparators. Navratil, 101 F.4th at 523; Sanimax USA, LLC v. City of South St. Paul, 95 F.4th 551, 564 (8th Cir. 2024); Jicarilla Apache, 440 F.3d at 1212-13. That imposes “exacting burdens” on a plaintiff resisting summary judgment. 440 F.3d at 1212-13 (citing cases). But we are not reviewing a grant of summary judgment on a factually developed record. We are reviewing the dismissal of a petition under K.S.A. 60-212(b)(6).

In the second amended petition, Whiskey Ridge identifies and describes in detail an auto repair business and another wedding venue as comparators supporting their equal protection claim. According to the allegations, the County required neither business to install a fire suppression sprinkler system to obtain a special use permit. We don't see the auto repair business as being sufficiently like Whiskey Ridge to support a class-of-one claim. The other wedding venue, however, operates out of a refurbished building primarily made of wood. While the composition is different from Whiskey Ridge's building, we cannot say that is disqualifying under the relaxed pleading requirements for resisting a motion to dismiss under K.S.A. 60-212(b)(6). A reasonable inference suggests a wood structure would be at least as likely to require a fire suppressing sprinkler system as a steel and concrete structure used for the same purpose.

At this procedural stage, Whiskey Ridge has pleaded an equal protection claim against the County. The district court should have allowed Whiskey Ridge to go forward with that constitutional tort. We, therefore, reverse the district court's dismissal of the equal protection claim and remand with directions to reinstate that claim. We, of course, do not intend to convey an opinion on how much further the claim can or should go.

The second amended petition also purports to assert a substantive due process claim. This court has offered a snapshot of the law applicable to substantive due process:

“That aspect of due process protects a narrow range of fundamental liberty interests against government encroachment. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997); Katz v. Kansas Dept. of Revenue, 45 Kan. App. 2d 877, 896, 256 P.3d 876 (2011). Those liberty interests must be ‘deeply rooted’ in the nation's history and experience. Glucksburg, 521 U.S. at 720-21. Justice Benjamin Cardozo described substantive due process rights as part of ‘the very essence of a scheme of ordered liberty’ and inseparably entwined with “ ‘a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937). Among recognized substantive due process liberty interests are the right to bear and raise children, the right to marry, and various other rights closely allied with those explicitly guaranteed in the Bill of Rights. See County of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998); Glucksberg, 521 U.S. at 720. In addition, especially egregious or arbitrary actions of government officials may violate substantive due process protections of the Fourteenth Amendment if they further no legitimate governmental interest or their character ‘shocks the conscience.’ Lewis, 523 U.S. at 845-47; Katz, 45 Kan. App. 2d at 896.” Taylor v. Kansas Dept. of Health & Environment, 49 Kan. App. 2d 233, 244, 305 P.3d 729 (2013).

Substantive due process does not encompass “economic liberties” or rights. See Stop the Beach Renourishment, Inc. v. Florida Dept. Environmental Protection, 560 U.S. 702, 721, 130 S. Ct. 2592, 177 L. Ed. 2d 184 (2010); Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 334, 291 P.3d 1056 (2013).

We have carefully examined Whiskey Ridge's second amended petition and fail to see allegations describing or identifying an unenumerated constitutional right or conduct that would violate such a right. Whiskey Ridge's claims are bound up in economic loss tied to a land use decision. The second amended petition likewise fails to describe especially egregious governmental conduct that could be described as “conscience shocking.” County of Sacramento v. Lewis, 523 U.S. 833, 848-49, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (Although defying easy categorization, conscience-shocking action partakes of deliberate “conduct intended to injure in some way unjustifiable by any government interest.”); Smith v. Albany County School District No. 1 Board, 174 F.4th 1235, 1252 (10th Cir. 2026) (Conscience-shocking behavior entails “ ‘deliberate government action that is arbitrary and unrestrained by the established principles of private right and distributive justice’ ” and entails “ ‘only the most egregious official conduct.’ ”). We need not weigh in on whether the conscience-shocking strand of substantive due process applies only to executive rather than legislative governmental action or on how to characterize the actions Whiskey Ridge has challenged. Smith, 174 F.4th at 1251 (scope of conscience-shocking doctrine); McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, Syl. ¶ 5, 49 P.3d 522 (2002) (characterizing zoning variances and special use permits as quasi-judicial decisions). The district court properly dismissed the purported substantive due process claim under K.S.A. 60-212(b)(6).

Unconstitutional Taking of Property

For its final claim in Count V, Whiskey Ridge contends the County impermissibly deprived it of a protected property interest in the 2020 special use permit that did not require the wedding venue to have a fire suppressing sprinkler system. The second amended petition frames the loss as a government taking without compensation violating the Kansas Constitution art. 12, § 4. See Creegan v. State, 305 Kan. 1156, 1160, 391 P.3d 36 (2017) (Kansas Constitution requires payment for private property taken for public use). The claim presents an inverse condemnation or taking since the County did nothing affirmatively to adversely affect the original special use permit. The elements of an inverse condemnation action are: (1) a private property interest; (2) a taking of that interest; and (3) a resulting public use of that interest. 305 Kan. at 1161.

The key issue here is whether Whiskey Ridge had a cognizable property interest in the original special use permit when it sought building permits to construct the wedding venue in mid-2022. Whiskey Ridge was then informed that the structure would require a fire suppressing sprinkler system under the 2006 International Building Code the County adopted in late 2020. As outlined in the second amended petition, Whiskey Ridge obtained the original special use permit in April 2020.

Under the Leavenworth County Zoning and Subdivision Regulations, a special use permit is considered abandoned if the permitted activity has ceased “for a continuous period of twelve (12) months.” Regulations, Art. 22, Sec. 8. The district court properly took judicial notice of the regulations. K.S.A. 60-409(b) (permitting judicial notice of published regulations of governmental subdivision of state). Here, Whiskey Ridge did nothing with the original special use permit for about two years. The County properly considered it abandoned.

Until Whiskey Ridge acted in conformity with the special use permit, it had only a contingent property right or interest. There was no government taking of a fixed property right because the permit lapsed for nonuse and any contingent rights similarly vanished. Whiskey Ridge either had a protected property right derived from the special use permit or it did not. After the permit lapsed for nonuse, Whiskey Ridge did not. No government taking occurred because of that lapse or abandonment. Any loss flowed from Whiskey Ridge's inaction. The district court properly dismissed the takings claim.

Conclusion

The district court erred in dismissing the plaintiffs’ equal protection claim and in dismissing their tortious interference claims with prejudice. The district court properly dismissed the substantive due process claim and the takings claim with prejudice. We, therefore, affirm in part, reverse in part, and remand with directions to reinstate the equal protection claim for further proceedings and to enter an amended judgment dismissing the tortious interference claims without prejudice.

Affirmed in part, reversed in part, and remanded with directions.

Per Curiam: