Kansas Practical Guide to Zoning and Land Use Changes

By: David E. Waters

In this piece, David Waters offers practical guidance relating to Kansas land use matters.

§1 GENERAL INTRODUCTION AND SCOPE OF MATERIALS.

As municipalities develop, and populations grow (or, in some cases, shrink), opportunities for both cooperation and conflict arise. Most cities recognize a need to encourage growth, but they are often also under pressure to preserve those characteristics of a community that its residents and the business community already find most attractive. Accordingly, individual property owners often find themselves either preparing their property for development, working to minimize the growth proposed by their neighbors, or both.

The following materials focus on "change"—how does a land use attorney assist clients that either want to change the status quo or preserve it? To answer this, one must first be aware of the status quo itself (that is, the regulations or restrictions are currently in place). The following begins with brief overviews of the comprehensive plan, the zoning ordinance, subdivision regulations, and even homeowners' association restrictions. The following materials then address how land use change comes about through the rezoning process, the issuance of special use permits or conditional use permits, and the granting of variances. The materials contain practical examples and practice notes, and point out ethical situations of which practitioners should be aware.

§2 UNDERSTANDING THE ZONING AND OTHER CONTROLS IN PLACE.

§2.1 THE COMPREHENSIVE PLAN.

The comprehensive plan is a county's or city's broadest land use control document. Kansas statute provides: "Such plan or part thereof shall constitute the basis or guide for public action to insure a coordinated and harmonious development or redevelopment which will best promote the health, safety, morals, order, convenience, prosperity and general welfare as well as wise and efficient expenditure of public funds."1 Specifically, the comprehensive plan should address the following broad goals and objectives:

* ! The general location, extent and relationship of various land uses;

* population and building intensity standards;

* public or private transportation facilities;

* priority of public improvements;

* plans (including funding sources) for capital improvements;

* utilization and conservation of natural resources; and

* any other element deemed necessary.2

The comprehensive plan is not binding on municipalities.3 However, whether or not a particular use is compatible with the comprehensive plan is a factor in determining whether or not a zoning decision is reasonable.4

§2.2 THE ZONING ORDINANCE.

The zoning ordinance (sometimes referred to as the zoning regulations) may then be considered the method by which a comprehensive plan is implemented. Zoning ordinances typically divide areas into "districts," such as residential, commercial, and industrial. Particular uses are then designated as permissible only in certain districts, the idea being that incompatible uses should not generally be found adjacent to each other (e.g., an industrial factory and a residential subdivision). Such districting is often referred to as "Euclidean" zoning, after the United States Supreme Court case Village of Euclid, Ohio v. Ambler Realty Co.5, in which such land use controls were upheld. Though, attitudes on what uses might or might not be appropriate often evolve as areas become more urbanized (or remain vacant) and lifestyles change (for example, desires to live, work, and play in the same mixed areas).

In Kansas, a municipality's own power and authority to regulate the use of land through zoning is derived from the Legislature, through K.S.A. 12-741 et seq., which serves as enabling legislation for county and city zoning regulations. Specifically, K.S.A. 12-753(a) provides (in part):

The governing body of any city, by adoption of an ordinance, and the board of county commissioners of any county, by adoption of a resolution, may provide for the adoption or amendment of zoning regulations in the manner provided by this act. The governing body may divide the territory subject to its jurisdiction into districts of such number, shape, area and of such different classes, according to the use of land and buildings and the intensity of such use, as may be deemed suited to carry out the purposes of this act.

Zoning regulations may also regulate the height, number of stories and size of buildings, lot coverage percentages, the size of yards, the location, use and appearance of buildings and land for residential, commercial, industrial and other purposes, and the distance of any buildings and structures from a street or highway.6 Municipalities are required to maintain defined boundaries or zoning maps that describe or show the locations of any zoning districts.7

K.S.A. 12-715b (outside of the general enabling legislation, having been part of the prior enabling acts, former K.S.A. 12-701 et seq., most of which has now been appealed) also allows cities to adopt zoning regulations for land located within three (3) miles of the city limits if the county has not adopted its own similar regulations for the area or if the county has excluded the area. However, except for certain flood plain standards, regulations adopted by a city pursuant to K.S.A. 12-715b, or otherwise by a county, shall not apply to the use of land for agricultural purposes so long as such land is used for agricultural purposes.8

§2.3 SUBDIVISION REGULATIONS.

Subdivision regulations do not technically regulate the uses of real property, but their impact on the conveyance and development of property is substantial. With limited exceptions9, property cannot be subdivided into lots for sale or development unless it has first been "platted," a process that requires municipal approval of a map or survey (the plat) indicating the boundary lines of the lots, the locations of streets, easements, and open spaces, and in most cases dedicating right-of-way to the municipality. Under K.S.A. 12-749(b), subdivision regulations may include, among other things, provisions for the following:

* Efficient and orderly location of streets

* reduction of vehicular congestion;

* reservation or dedication of land for open spaces;

* off-site and on-site public improvements;

* recreational facilities (parkland);

* flood protection;

* building lines;

* compatibility of design; and

* storm water runoff.

Compliance with subdivision regulations may be required as a condition for receiving a building permit.10

K.S.A. 12-749(a) permits a city to apply subdivision regulations to land outside of, but within three (3) miles of, the city limits (provided that such distance does not extend more than half-way to another city). If the county already has regulations in place, or adopts regulations for a "joint" area after the city has done so, then the county and the city must establish a joint committee for subdivision regulation composed of three members of the city planning commission and three members from the county. The joint committee is then responsible for the adoption and administration of regulations within the joint area.11 Regulations previously in effect expire after six (6) months if the joint committee cannot adopt new regulations.

§2.4 SITE PLANS AND DEVELOPMENT PLANS.

In addition to platting, many cities will require the approval of development plans for certain types of developments within zoning districts, particularly commercial, industrial, and multi-family uses. The purposes of site plans are to ensure that the layout of the actual structures, buildings, uses, drives, and other features of a proposed development lay out well on a specific site, provide for appropriate traffic flow, allow for necessary drainage, and otherwise protect adjacent properties through proper lighting, landscaping, and other development features. Kansas case law suggests that judicial review of site plan decisions follows the same standards as for rezoning decisions. 12

§2.5 BUILDING CODES.

Municipalities may also adopt separate codes for structural improvements, including codes for electrical, plumbing, and mechanical work, and for fire prevention, sewer improvements, and the like. These codes provide minimum safeguards for homes, schools, and workplaces, and both states and municipalities often adopt "uniform" sets of codes prepared by organizations such as the International Code Council, so that all codes are comprehensive and consistent with each other.

§2.6 DEALING WITH HOMEOWNERS' ASSOCIATIONS.

Many homeowners also now live in subdivisions that contain fairly extensive restrictions on the use of property, the approval process for making improvements, what features homes must (or must not) have, and the like. Problems often arise when homeowners rely only on these restrictions while ignoring city or county regulations. For example, a homeowner may rely on the approval of an association's architectural control committee for a certain improvement, only to later find that the improvement is too close to a property line or that it violates municipal height, coverage, or design restrictions. Issues may also arise where a homeowners' association mistakenly views itself as a quasi-municipal entity, either not subject to the jurisdiction of the larger municipality, or with the enforcement (police) powers of a municipal corporation.

Practice Note

Most municipalities will not rely on homeowners' association restrictions when making judgments on rezoning matters, special use permits, building permits, or other approvals. Some even codify that they will not enforce HOA restrictions. Municipalities tend to view such restrictions as private agreements, or contractual relationships, in which municipalities ought not to interject themselves. Municipalities instead will most often instead enforce their own codes and regulations, and judge applications solely in light of the same.13

In all matters involving homeowners associations, practitioners should also review the possible application of the Uniform Common Interest Owners Bill of Rights Act, passed by the Kansas Legislature in 2010.14 This act established new rights and obligations for owners and managers in certain communities (for example, residential subdivisions with a homeowners association, condominium projects, townhomes) and addresses such issues as the budgeting process, enforcement of restrictive covenants, open meetings, the powers of directors, and requests for records.

§2.7 ZONING AND ANNEXATION.

When property located in an unincorporated part of a county is annexed to a city, the property retains its county zoning classification and any accompanying land use restrictions until the annexing city changes the zoning.15 The property is not "cleansed" of previous zoning classifications, such that the property is free from zoning restrictions until such time as the annexing city imposes new regulations.16 Land use may also not be changed through an annexation agreement or otherwise through the annexation statutes; rather, the planning and zoning powers of a city are "derived solely from the grant contained in K.S.A. 12-741 et seq."17

§3 THE REZONING PROCESS.

To "rezone" property simply means to change the property's general use designation (e.g., from agricultural to residential, residential to commercial, commercial to industrial, etc.), or to change a development-intensity level within a general use designation (e.g., single-family residential to multi-family residential).18 A rezoning is actually treated as an "amendment" to the original underlying city- or county-wide zoning ordinance.

§3.1 REZONING AUTHORITY AND KANSAS GOVERNING STATUTES.

In Kansas, "the governing body has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning."19 The rezoning process is governed statutorily by K.S.A. 12-757 through 12-760, although most municipalities also set forth the requirements and procedures for a rezoning in their municipal codes. Either the governing body or the planning commission may initiate proposals to amend the general zoning regulations (text amendments) and zone boundaries.20 Where an amendment is not merely a general revision, but affects specific property, such amendment may also be initiated by the landowner (and they most often are).21

Practice Note

Most municipalities will allow contract purchasers to file rezoning applications for specific properties as part of the purchasers' due diligence process. In such cases, the municipality may require that the owner of record provide a letter or other statement of authorization. A copy of the real estate contract may also sometimes be provided though, in most cases, parties to a contract would prefer not to reveal the business terms thereof.

§3.1.1 General Text Amendments and Specific Property Amendments.

Municipalities often review and recommend changes to their entire zoning ordinance, determining what provisions should apply to broad use categories, such as all properties zoned industrial, or all properties zoned commercial, or the maximum length of time for which all special use permits should be issued. Such general revisions of existing regulations are not intended to apply only to select individual parcels within any zoning use category, but instead are intended to apply across the board. Of course, there may be cases where zoning categories, when applied, only impact select or particular parcels of real property. However, so long as the proposed amendments are, on their face, general in application, they should not be construed as the rezoning of specific property.22

The classification of an amendment is relevant to determine the standard of a court's review. If an amendment is classified as general, then the zoning authority has performed a legislative function, and is therefore entitled to a "highly deferential" review by the court.23 If an amendment is classified as specific, then the zoning authority has performed a quasi-judicial function; and in theory, the court is not required to give as much deference as given to a legislative function.24 The legislative and quasi-judicial distinction is more thoroughly discussed below.

§3.1.2 Zoning within One Mile of Public Airports.

Zoning within one mile of public airports is governed by K.S.A. 3-307e. Under this statute, proposed zoning regulations must be approved by both the city and county where the land is located, and the city and the county are entitled to independently approve or disapprove a proposal without regard to the other's recommendation.25 However, the statute requires the county to act upon recommendations from the airport commission.26 Under review by a court, both the city's and county's decision is entitled to a presumption of reasonableness.27 To successfully challenge a decision made by the city or county, a landowner must establish by the preponderance of the evidence that a decision is not reasonable.28 The standards for such reasonableness challenges are discussed in detail further in these materials.

§3.1.3 Overlay Zones.

Municipalities may also establish "overlay" zones in order to protect or better control historic districts, environmentally-sensitive areas, or other areas of special concern within a municipality. Overlay zones are not independent zoning districts, but are supplemental restrictions to the underlying zoning; that is, they "apply on top of any other existing zoning regulations."29 Accordingly, overlay zones are not rezoning actions under K.S.A. 12-757 (being neither text amendments nor the rezoning of specific property). Rather, the authority to establish overlay zones is granted under K.S.A. 12-755(a)(6), and the procedure for establishing such zones falls under K.S.A. 12-756. Under K.S.A. 12-756, the regulation must go through the planning commission and the governing body, but there is no provision for a protest petition.30 Amendments to an existing overlay district—just like amendments to the underlying zoning—would likely require that the full rezoning process under K.S.A. 12-757 be followed.31

§3.2 APPLICATION TO OTHER GOVERNMENTAL ENTITIES.

In Kansas, certain other political subdivisions or federal/state agencies may be exempt from having to comply with a municipality's zoning regulations or building codes. In Brown v. Kansas Forestry, Fish and Game Commission32 , the Kansas Court of Appeals adopted a balancing test to determine whether a state agency was immune from zoning requirements, or whether a state agency must apply to the local government for zoning approvals or variances. The balancing test included the following factors: (1) the nature and scope of the instrumentality seeking immunity; (2) the kind of function or land use involved; (3) the extent of the public interest to be served thereby; (4) the effect local land use regulation would have upon the enterprise concerned; and (5) the impact upon legitimate local interests. In that case, the Court held that the state's Forestry, Fish and Game Commission (now the Department of Wildlife and Parks) was required to obtain zoning approval from the city for its plan to put a parking lot in the middle of a residential subdivision.

In Herrmann v. Board of County Com'rs of Butler County33 , the Kansas Supreme Court adopted the balancing test in a case involving the construction of a state prison. Here, the Court determined that the state interests outweighed the local concerns, and held that the state was immune from local zoning regulations.

In Schneider v. City of Kansas City34, the Kansas Supreme Court addressed the issue of whether a state agency is subject to local building code ordinances. In Schneider, the Kansas Board of Regents began construction on an addition to the University of Kansas Medical Center without obtaining building permits from the City of Kansas City. While the state raised the Brown balancing test as being the proper test to determine the issue, the Court did not decide the issue using this test. Rather, the Court held that where the state had adopted a comprehensive building code applicable to state construction projects, these regulations preempted local building ordinances.

At least part of the ruling in Schneider appears to now be codified in K.S.A. 75-3741c which, at subsection (a), states: "No state capital improvement project for the construction … of any building or facility for use by one or more state agencies, shall be subject to any building permit requirement or building code of any … city." However, this statute appears to be limited to state agencies (and not separate "political subdivisions," such as public school districts). Furthermore, while the statute provides protection against application of local building codes, it does not specifically address zoning ordinances except to provide that state agencies are exempt from the payment of fees related to such ordinances.

§3.3 THE PLANNING COMMISSION.

§3.3.1 Planning Commission Generally.

A rezoning application—whether initiated by a municipality or a property owner—must first be submitted to the municipality's planning commission under K.S.A. 12-757(b).

Practice Note

A municipality may also require that property owners or rezoning applicants first meet with the municipality's professional planning stuff. Planning staff members often serve as "gatekeepers" of the rezoning process. They filter out bad plans, ensure that applications meet all state and local requirements, and advise the planning commission and the governing body whether a plan fits within the comprehensive plan. Municipalities generally defer to the opinions of their staff members, and success (whether in support of or in opposition to a rezoning application) may turn on the extent to which the land use attorney can convince the planning staff that an application does or does not have merit.

§3.3.2 Notice and Public Hearing.

Each rezoning application requires a public hearing and prior notice. If only a general text amendment is to be considered, then notice must merely be published at least twenty (20) days before the hearing.35 If the proposed amendment affects specific property, then two types of notice are required: (a) notice (with a legal description of the property) must be published at least twenty (20) days before the hearing; and (b) written notice must be mailed at least twenty (20) days before the hearing to (i) all record owners of the property to be rezoned, and (ii) all record owners of property within 200 feet (city) or 1,000 feet (county) of the property to be rezoned.36 The distance requirement should be measured from "the area proposed to be altered," and not from the larger tract of property owned by the applicant within which the subject property is located.37

Questions may arise as to whether the 200 foot rule or the 1,000 foot rule applies where an application is filed within one city (City 1), but the property (not including right-of-way) either adjoins another city (City 2) or adjoins the unincorporated portion of a county. This can become important when considering the properties eligible to file a protest petition.38 K.S.A. 12-757(b) specifically provides:

If a city proposes a zoning amendment to property located adjacent to or outside the city's limits, the area of notification of the city's action shall be extended to at least 1,000 feet in the unincorporated area. Notice of a county's action shall extend 200 feet in those areas where the notification area extends within the corporate limits of a city.

This should be read as if City 1 proposes a zoning amendment to property located adjacent to or outside of City 1's limits, the area of notification of City 1's action shall be extended to at least 1,000 feet into City 2 or the county, as the case may be. Meaning, the term "unincorporated area" in the statute does not simply mean areas "unincorporated" by anybody (e.g., in the county), but it means areas not incorporated by City 1, including areas incorporated by City 2. Interpreting a previous statute (K.S.A. 12-708), the Kansas Supreme Court has held that a city does have an obligation to hear residents from adjoining cities whose properties are located within a protest petition area.39

Zoning regulations may also provide additional notice by providing for the posting of signs on land which is the subject of a proposed rezoning.40 These provisions are mandatory, and must be complied with in order to give the planning commission jurisdiction to recommend, and the governing body jurisdiction to enact, any change in zoning.41 Notice to the state historic preservation office may also be required for zoning projects that impact historic properties.42

There are exceptions to the general notice requirements. If a rezoning was initiated by five (5) or more property owners owning ten (10) or more lots, tracts, or parcels of the same zoning classification, and such rezoning application was for a change from a less restrictive use to a more restrictive use, then the rezoning does not require written notice.43 If a municipality, on the other hand, initiates a rezoning of ten (10) or more lots, tracts, or parcels having five (5) or more property owners, and the rezoning is from a less restrictive use to a more restrictive use, then written notice of the public hearing need only be mailed to those owners.44

Practice Note

Many registers of deeds offices will provide names and addresses of record owners. For a fee, most title companies will also conduct a search. Some municipalities require that an applicant provide a county– or title company–"certified" list of landowners. While most municipalities require that the applicants send the written notices, others will conduct ownership searches and send the notices. Land use attorneys must familiarize themselves with each municipality's requirements. It is also a good practice to send a notice to the landowner filing the application.

§3.3.3 Consideration by the Planning Commission.

In rezoning matters, the planning commission's primary responsibility is to hold the public hearing and make recommendations to the governing body on the rezoning application. The planning commission is not a decisionmaking body.45 The hearing before the planning commission hearing is the only public hearing required to be held under Kansas law.46 The applicant, architects, engineers, attorneys, and other landowners are all generally permitted to speak in favor of or in opposition to a rezoning application at the hearing.

A majority of the members of the planning commission present and voting at the hearing is required to recommend approval or denial of the rezoning amendment to the governing body (the term "recommendation" includes both recommendations of approval and recommendations of denial).47 If the planning commission fails to make a recommendation, then such failure is deemed to be a recommendation of disapproval.48 The planning commission may make a recommendation as to only a portion of the property described in the required notices.49 The planning commission may not recommend a greater zoning change (a more intense use) than that requested or initiated without re-notification, and the planning commission also may not recommend a lesser zoning change (a less intense use) unless it has previously established a table of permitted lesser changes.50

§3.3.4 The Public Hearing and the First Amendment.

The public hearing can oftentimes be contentious, with supporters or opponents of certain applications organizing protests, showing up with signs or buttons, interrupting proceedings from the gallery, or "filibustering" the meeting. Municipalities may reasonably regulate the conduct of its public hearings. Kansas does prohibit (criminally) "interference with the conduct of public business in public buildings."51 However, where conduct does not rise to a criminal level, rights of free speech and assembly under the First Amendment to the United States Constitution must be considered. Commission and council chambers—where most public hearings are held—are most likely "designated" public forums or "limited" ones (publicly owned facilities dedicated to use for speech at certain times, but not indiscriminate assembly or speech). Under this standard, a municipality can generally regulate speech as long as the regulation is reasonable and not an effort to suppress speech merely because of the speakers' views.

Practice Note

A planning commission or the planning staff may oftentimes condition its recommendation on the applicant's agreement to certain stipulations regarding the placement of streets, the providing of certain studies (drainage, traffic, etc.), parking, dedicating open space or trails, and the like. An applicant's willingness to accept such stipulations may determine whether a rezoning is ultimately approved. However, high levels of exactions may rise to the level of an unconstitutional "taking" without compensation under the Fifth Amendment.52

§3.4 CONSIDERATION BY THE GOVERNING BODY.

§3.4.1 Governing Body's Options as to a Rezoning Application.

The governing body must then act upon the planning commission's recommendation. In order to allow a protest petition to be filed53, the governing body cannot consider a rezoning application earlier than fourteen (14) days after the planning commission's public hearing. The governing body is not required to hold its own public hearing54 , although many municipalities do allow for additional public comment. In some municipalities, if a rezoning application receives a unanimous recommendation of approval from the planning commission, the matter is set on the governing body's consent agenda. In most such cases, local procedures allow a member of the governing body or a member of the public to remove the application from the consent agenda and place it on the regular agenda for discussion.

Pursuant to K.S.A. 12-757(d), upon the recommendation of the planning commission, the governing body may: (1) adopt such recommendation by ordinance in a city or by resolution in a county (subject to a protest petition); (2) override the planning commission's recommendation by a two-thirds (2/3) majority vote of the membership of the governing body (subject to a protest petition); or (3) return such recommendation to the planning commission with a statement specifying the basis for the governing body's failure to approve or disapprove.

Practice Note

Certain municipalities may provide for alternative rezoning procedures. For example, in unincorporated Johnson County, Kansas, the Board of County Commissioners may not override a zoning board's or planning commission's on first consideration, and must instead remand the application back to the zoning board first. Practitioners must always research local rules, ordinances, and procedures.

§3.4.1.1 Calculating the Required Votes for Approval.

Option (1) under K.S.A. 12-757(d) provides that the planning commission's recommendation (presumably, whether for approval or disapproval) may be adopted "by ordinance" (in a city) or "by resolution" in a county. Except where a protest petition has been filed, as discussed below55, passing a city ordinance requires the favorable vote by a "majority of all the members-elect of the council of council cities or mayor and other commissioners of commission cities."56 Therefore, the vote by a "majority of a quorum" of the members present at the public meeting may not be sufficient to act on the planning commission's recommendation, and absences and abstentions may essentially count as "no" votes.

The mayor of a city should not generally be included in this calculation, except that under general Kansas municipal law, in council cities where the number of favorable votes is one less than required for passage, the mayor has the power to cast the deciding vote. 57 Some cities may, in their local ordinances, grant the mayor an "original" vote in zoning matters (which may ultimately operate similarly in practical effect, breaking a tie). However, and absent local rules to the contrary, the mayor also has the statutory authority to veto ordinances, which vetoes may only be overridden by a vote of three-fourths (3/4) of the "whole number of councilmen elected."58 In that situation, the veto of an ordinance and a failure to override that veto, would likely result in a de facto override of the planning commission.59

§3.4.1.2 Calculating the Required Votes for Override.

To override the planning commission [option (2) under K.S.A. 12-757(d)] requires a 2/3 vote of the "governing body" (but, again, subject to protest petition, as discussed below). Furthermore, if, after its first consideration of the planning commission's recommendation, the governing body desires to reject or add stipulations, but otherwise adopt the recommendation, it must nevertheless obtain a 2/3 vote as to such stipulations (subject to a protest petition). Such alterations, rejections, or additions may be deemed an "override" of the original recommendation, at least as to those points.60

Practice Note

As K.S.A. 12-757(d)(2) makes no mention of an ordinance or resolution, it is unclear whether the governing body must adopt one when overriding the planning commission under option (2), even if the result of the override is to approve the rezoning. It is also unclear whether the mayor of a city may veto such an action if, indeed, no ordinance is required.

The definition of the term "governing body" is quite important in determining the number of votes needed to override the planning commission. In Kansas, the term "governing body" is defined by statute as follows:

In commission and commission-manager cities, the mayor shall be considered part of the city governing body in all matters. In mayor-council, modified mayor-council and mayor-councilmanager cities, the mayor shall be considered part of the city governing body for the purpose of voting on the passage of a charter ordinance. Whether the mayor is considered part of the governing body for purposes of voting on any other matter shall otherwise be established by ordinance of the city passed by a 2/3 majority of the council. All existing ordinances and charter ordinances relating to the mayor being considered part of the city governing body shall remain in effect until amended or repealed by such city.61

Accordingly, one must often look to a municipality's local rules to determine whether they position of mayor should be included in the denominator of the required override vote calculation as, under K.S.A. 12-104, the statutory term "governing body" does not include the mayor unless a local rule provides that it does.62

Practice Note

Many municipal codes contain their own definitions of the term "governing body," which should be consulted, especially in light of K.S.A. 12-104. As an example, where a governing body is made up of less than four (4) members, local regulations may require unanimous approval. Even if a member of the governing body—the mayor, for example—is counted for the purpose of determining the number of votes required, that member may nevertheless not be entitled to vote at all except in the event of a tie or in the event an application is one (1) vote short of approval.

§3.4.1.3 Mining Operations.

Notwithstanding the foregoing, Kansas statute provides that, regardless of a protest petition or the failure to recommend by the planning commission, an ordinance or resolution adopting a zoning amendment for mining operations shall only require a majority vote of all members of the governing body.63 Furthermore, no city or county may establish procedures for special use permits or conditional use permits for mining operations which require the approval of more than a majority of all members of the governing body.64

§3.4.1.4 Calculating the Required Votes for Remand.

The governing body may also return or remand the matter back to the planning commission under option (3) under K.S.A. 12-757(d). It is not clear whether including a "statement specifying the basis for the governing body's failure to approve or disapprove," as stated in K.S.A. 12-757(d)(3), is mandatory or directory. In Paul v. City of Manhattan65, it was held:

[W]here strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.66

The Paul Court focused on two primary items when distinguishing between mandatory and directory provisions. "Factors which would indicate that a statute or ordinance is mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance."67

The remand to the planning commission itself does not require an ordinance, and the action by a majority of a quorum should be sufficient. If the governing body returns the planning commission's recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reasons therefore, or submit a new or amended recommendation. Then, the governing body "by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereon."68 The Kansas Supreme Court held in the case of Manly v. City of Shawnee69 that this includes the power—by simple majority vote (subject to a protest petition)—to override, reject, or overrule the planning commission's recommendation, or portions thereof.70

Practice Note

By remanding the matter back to the planning commission, the governing body may convert the 2/3 vote override requirement into a simple majority requirement. For example, assume that the planning commission recommends disapproval of a zoning change, and that at least a simple majority of the governing body wants to approve the zoning change, but that the 2/3 vote necessary to override the planning commission cannot initially be obtained. That simple majority would have the votes necessary to remand the matter back to the planning commission, and if the application returns to the governing body with another recommendation for denial, the same simple majority would be able to override the recommendation, subject to a protest petition.71

Like option (1), but unlike option (2), the statutory language of K.S.A. 12-757(d)(3) provides that taking action on the planning commission's recommendation—whether upholding it or overriding it—requires either an ordinance (in a city) or a resolution (in a county). Again, passing a city ordinance requires the favorable vote by a majority of all the members-elect of the council or commission, and while the mayor of a "council" city may generally only vote where the number of favorable votes is one less than required for passage (absent a local rule), the mayor also has the statutory authority to veto ordinances, subject to a council override.

§3.4.1.4 Other Voting Concerns; Tie Votes.

Practitioners and municipalities may also face situations where not all members of a governing body are present at a meeting, or members must recuse themselves from the proceedings. In such cases, the 2/3 vote requirement for overriding the planning commission (and the 3/4 requirement in the case of a protest petition, as discussed below) should remain unchanged, with the absence or vacancy counting as a vote against the measure. For example, in Rural Water Dist. #2 v. Miami Cty. Bd. of Cty. Comm'rs72, at a meeting of the board of county commissioners to consider a conditional use permit (CUP) that was the subject of a protest petition, one of the five commissioners recused himself because of a conflict of interest. The remaining four commissioners then voted three to one to approve the CUP. Because the CUP did not receive the required 3/4 vote of all members (only 3/5), even with a 3-1 vote, the CUP was denied. The Kansas Court of Appeals rejected the argument of the water district that a recusal or disqualification should be treated as a vacancy on the commission.73

However, with regard to the effect of an abstention in a non-conflict of interest situation, the common law and Kansas rule is that an abstainer is counted as voting with the majority.74 This rule, of course, would not aid in breaking stalemates.75 Furthermore, this rule would also not permit an abstention to count as being in favor of an ordinance (e.g., under option (1) above or following a remand under option (3) above), with K.S.A. 12-3002 providing that, the vote on any ordinance "shall be by yeas and nays" and that no ordinance shall be valid unless a majority of all the members-elect of the council of council cities or mayor and other commissioners of commission cities vote in favor thereof."

There may also be situations where the result of a vote is that no action appears to have been taken, one way or another. For example, in Olson v. City of Wakeeney76, the Kansas Supreme Court determined that a tie vote was not an affirmative action that established a final decision for purposes of giving the courts appellate jurisdiction.77 The Kansas Court of Appeals distinguished the facts of Olson in Geelen v. Dickinson Cty. Bd. of Zoning Appeals78 , determining that, in Geelen, the facts made it clear that that the board of zoning appeals (in that situation) was not going to take up the matter again, and essentially that its decision of "no decision" was final for purposes of an appeal.

§3.4.2 Protest Petitions.

§3.4.2.1 Applicability and Entitled Owners.

Notwithstanding the foregoing, and regardless whether or not the planning commission approves or disapproves a zoning amendment, impacted parties may force a three-fourths (3/4) super-majority vote for approval by the governing body by filing a valid protest petition.79 The use of protest petitions is only authorized statutorily for the rezoning of specific property, and they may not be used to challenge general text amendments.80 Certain local ordinances may allow protest petitions for special use permits or conditional use permits81, though the Kansas Supreme Court has indicated that SUPs are subject protest petitions, perhaps regardless of whether the municipality itself has made provisions therefor.82 Protest petitions are not effective, however, as to applications for mining operations, including zoning amendments, special use permits, and conditional use permits for such operations.83

A protest petition must be signed by the owners of record of twenty percent (20%) or more of the property to be rezoned or by the owners of record of twenty percent (20%) or more of the real property located within 200 feet (city) or 1,000 feet (county) of the property to be rezoned.84 If the rezoning was requested by the owner of specific property subject to the rezoning, or that owner does not oppose the rezoning in writing, then such property is excluded from the 20% calculation.85

If rezoning was initiated by five (5) or more property owners owning ten (10) or more tracts of the same zoning classification, and such rezoning application was for a "down-zoning" (going from a less restrictive use to a more restrictive use, e.g., multi-family residential to single family residential), then the rezoning is not subject to a protest petition.86 If a municipality, on the other hand, initiated the rezoning of ten (10) or more lots, tracts, or parcels having five (5) or more property owners, and the rezoning was from a less restrictive use to a more restrictive use (again, down-zoning), then only those owners are eligible to initiate a protest petition.87

§3.4.2.2 Form and Sufficiency.

There is no statutory form of protest petition, though the Kansas attorney general has stated:

[W]e have no hesitation in confirming that, in order to identify the owner and property involved, a rezoning protest petition should contain, on its face, the proper name in which the property is held, the address of the property, and the name of any person signing on behalf of a corporation, partnership, or other organization. Additionally, we agree that the petition should contain, on its face, some indication of the capacity or authority of a person signing on behalf of a corporation, partnership, or other organization.88

The Kansas attorney general has also offered the following opinion:

The signature of one co-tenant or joint owner is not sufficient to bring the property on the side of the protest unless the petition itself shows that the co-tenant was authorized to sign for the other cotenants. If two signature (e.g., "John and Mary Smith") were affixed by the same person (e.g., John), or if the handwriting of both signatures is sufficiently identical to indicate that they were affixed by the same person, the signature of the other (Mary) is invalid, and the property should not be considered in support of the protest.89

Practice Note

When preparing or attacking protest petitions, it is a good practice to have a title company pull deeds or other ownership records to determine if properties are held individually, in trusts, by business entities, or the like. If property is held in trust, but the protest petition is signed in an individual capacity, that signature may not be sufficient to bring the property on the side of the protest. Different cities may have different policies (such as recognizing signatures of individuals where the property is held in a revocable grantor trust). To protect (or attack) the validity of a protest petition signature, a land use attorney should also have signatures properly notarized (or challenge such signatures if they are not). Missteps in the signature process often occur when signatures are collected door to door.

Unless otherwise provided in a condominium declaration, the approval of all of the owners within a condominium project may be required in order to place the project in favor of a protest petition. A protest petition must be signed by the owners of the "real property," and under the Kansas Apartment Ownership Act, K.S.A. 58-3101 et seq., each apartment, together with its undivided interest in the common areas, constitutes real property.90 But, a "unit owner" does not have exclusive ownership or possession of any land. Instead, "[t]he land on which the building is located" and "yards, gardens, [and] parking areas" are considered "common areas and facilities,"91 with all unit owners having an undivided interest in the same as tenants in common.92 However, most declarations do allow condominium associations to take appropriate action upon the vote of a specified majority of the unit owners, even if not unanimous.93

Relying on K.S.A. 25-3602, the Kansas attorney general has also opined that the signature of the petition circulator must be verified upon oath or affirmation, but there is no requirement that other signatures contained on the petition be notarized.94 The application of K.S.A. 25-3601 et seq. by the attorney general and the Kansas Court of Appeals95 would appear to be based on K.S.A. 25-3602(a), which states that "if a petition is required or authorized as a part of the procedure applicable to the state as a whole or any legislative election district or to any county, city, school district or other municipality, or part thereof," then the provisions of K.S.A. 25-3601 et seq., shall apply.

Any inconsistency between this act and K.S.A. 12-757(f) should be resolved in favor of the specific protest petition statute. "When any other statute imposes specific requirements which are different from the requirements imposed by K.S.A. 25-3601 et seq. and amendments thereto, the provisions of the specific statute shall control."96 However, the general petition statutes contain provisions that may be deemed in addition to K.S.A. 12-757(f), and not in conflict. For example, K.S.A. 25-3602(c) allows any person who has signed a petition to withdraw his or her name by giving notice by not later than the third day after the date the petition is filed. No published Kansas appellate decision has discussed the relationship between K.S.A. 12-757(f) and K.S.A. 25-3601 et seq.

§3.4.2.3 Protest Petition Filing Deadlines.

The protest petition must be submitted to the city or county clerk, as the case may be, within fourteen (14) days after the date of the "conclusion of the public hearing pursuant to the publication notice …."97 The Kansas attorney general considered this issue in February, 2005, stating:

While it is possible for a rezoning amendment to be returned to a planning commission and then resubmitted to the governing body, K.S.A. 12-757(f)(1) provides for only one opportunity to file a protest petition which must be exercised within 14 days after the conclusion of the public hearing. The only public hearing required by law in a rezoning matter is the hearing before the planning commission for which notice is given pursuant to K.S.A. 12-756(b) and which may be adjourned "from time to time." The 14 day period commences upon the conclusion of that hearing regardless whether the planning commission has approved or disapproved the zoning amendment.98

The fact that the governing body may open the floor for public comment, or that the planning commission may hold another hearing after remand from the governing body, does not toll or extend this time limit. The Kansas Supreme Court has held that "the public hearing does not remain open after the planning commission votes on its recommendation" and that "there is no statutory provision for another public hearing when the governing body remands the matter back to the planning commission for reconsideration."99 If the planning commission "continues" or carries-over the public hearing into an additional meeting, then the protest petition filing period should begin upon the "conclusion" of that continued hearing.

§3.4.2.4 Determining the Number of Required Votes.

If a valid protest petition is submitted, then the "ordinance or resolution adopting such amendment" shall not be passed except by at least a three-fourths (3/4) vote of all members of the governing body.100 The definition of the term "governing body" is quite important in determining the number of votes needed to pass or defeat a rezoning application. The same concerns discussed above101 regarding calculating the required number of votes and dealing with possible tie-breakers and ordinance vetoes apply equally where a protest petition has been filed.

§3.4.2.5 Use of Buffer Areas to Avoid Protest Petitions.

Owners of large parcels of land may attempt to avoid triggering the protest petition process by seeking to rezone only property not within 200 feet of adjoining landowners (for example, an island or doughnut-hole in the middle of the larger tract, at least 200 feet in from the outside boundaries). National case law on this matter appears to be split, the criticism of this practice being that be rezoning the only the "middle" of a tract, one has effectively "locked in" the future use of the remainder, thereby denying adjacent property owners an effective voice.102 However, the majority rule is that this practice is acceptable.103 The appellate courts of Kansas have yet to consider the legality of so-called "buffer" zones.

However, the Kansas attorney general has stated that the notification area under K.S.A. 12-757(b) (upon which the protest petition area is then based) should be calculated only from the property that is the subject of the owner-initiated rezoning application, and not from any larger tract of property owned by the applicant within which the subject property is located. 104 Addressing possible objections from impacted landowners, the attorney general offered, "We understand that interpreting the statute this way may dilute the surrounding property owners' rights to protest a rezoning change in instances where a developer owns a large tract of property and applies to rezone a smaller lot in the middle of the tract …," but stated that if the legislature viewed this as a problem, the legislature could fix it.105

§3.4.3 Collateral Attack: Injunctions, Initiative and Referendum, and Historic Preservation.

Opponents of a rezoning or conditional/special use permit may attempt to take preemptive action, such as filing a lawsuit and requesting a restraining order so as to prevent a municipality from even considering an application. While such efforts may have an impact politically (persuading a member of the governing body to see the rezoning application in a new light, or attracting attention to a concern of the community), they often fail as legal maneuvers.106

In attempting to obtain a restraining order (perhaps to prevent a governing body from considering an application), an opponent of a proposal may cite a lack of notice or a lack of jurisdiction by the planning commission, or claim that the subject application otherwise violates the municipality's zoning regulations. With few exceptions, however, a court cannot enjoin a municipality from exercising its legislative functions under the doctrine of "noninterference."107 Moreover, the passage of a zoning ordinance should not be deemed to be "beyond the power of redress by subsequent judicial proceedings," as aggrieved parties have a statutory right under K.S.A. 12-760 to appeal both the lawfulness and the reasonableness of a zoning action taken by a municipality's governing body.108

Persons opposed to certain rezoning efforts may also attempt collateral attacks on an application by forcing the City to adopt new, and separate, laws or ordinances that would have the practical effect of prohibiting approval of an application. Such measures are sometimes brought under K.S.A. 12-3013, which permits a certain percentage of the electorate to submit a proposed ordinance by petition. If the petition is in proper form, for a proper purpose, and signed by the requisite number of persons, than the governing body may pass the ordinance or call for a special election and put the proposed ordinance to a public vote. However, this process may not be used for what the statute refers to as "administrative ordinances,"109 and Kansas courts have generally ruled that petitions requiring a municipality to act or not to act in a certain way in regard to zoning decisions are administrative in nature, and not permissible under K.S.A. 12-3013.

For example, in McAlister v. City of Fairway110, certain landowners proposed an ordinance that would have prohibited the city from allowing rezoning, eminent domain use, and condemnation of the city's residential, neighborhood business or state historic properties, and identified specific parcels that could not be considered for commercial, business, apartment, condominium, or mixed use sites. The city, considering the proposal to be administrative in nature, took no action at all, and suit was then filed. Citing previous Kansas case law, the Kansas Supreme Court eventually held, in part:

"[W]here a comprehensive zoning ordinance has been passed and the power to change certain zoning or grant exemptions has been committed to the mayor or city council, the zoning of particular property is an administrative matter. [Citation omitted.] Conversely, the passing of the general comprehensive zoning plan is typically legislative. [Citations omitted.]"111

After considering other factors, the Court held that the ordinance at issue in Fairway was "principally executive or administrative in nature,"112 and therefore prohibited under K.S.A. 12-3013.

Persons might also petition for an area to be declared "historic" under K.S.A. 75-2715 et seq. so as to limit new development. Under former K.S.A. 75-2724(a), a municipality could not "undertake any project" (which is defined broadly to include activities involving the issuance of a permit or "other entitlement" for use113) if the project involved historic or property or was "located within 500 feet of the boundaries of" historic property, without first notifying the state historic preservation office and allowing such office to comment. The 500-foot buffer was eliminated by the Kansas Legislature in 2013 (2013 House Bill 2249),but if the subject property itself is located within (or petitioned to become part of) a historic district, development is made more difficult, both in terms of the additional approvals needed and the manner in which a project can be constructed (if it can be at all) in order to satisfy the state's historic preservation goals.

Furthermore, the Kansas attorney general has opined that changes in zoning would constitute a "project" under Kansas' historic preservation laws, requiring that cities give the state historic preservation officer notice and an opportunity to comment upon any proposed project which affects recognized historical properties.114 Kansas administrative regulations provide for the same.115 The Kansas historic preservation act itself, K.S.A. 75-2715 et seq., provides other avenues for collateral attack, including the ability to seek review of a governing body action through K.S.A. 60-2101 and a suit for equitable and declaratory relief to enforce the provisions of the act.116

§3.4.4 Effectiveness of Rezoning; Limitations on Re-application.

A proposed rezoning becomes effective upon publication of the ordinance or resolution.117 On the other hand, should a governing body reject a rezoning application, the decision of the governing body should be deemed the final action on the matter.118

Practice Note

Pursuant to K.S.A. 12-760, any person "aggrieved" by a zoning decision—such as a neighboring landowner—may appeal the decision to the district court within thirty (30) days of the final decision of the city or county.119 Accordingly, purchasers of real property, the rezoning of which is a contingency for closing, and lenders financing the purchase of such property, may stipulate that closing not occur until after the 30-day appeal period has elapsed, to ensure that the zoning is securely in place and cannot be challenged further.

In the event an application is denied, many municipalities prohibit an applicant for submitting an identical application for a certain period of time following such denial.120 Applicants may avoid such a restriction by making minor changes to the application, e.g., decreasing or enlarging the size of the property sought to be rezoned, or requesting a slightly different classification within a broad zoning category (there are often multiple zoning classifications under broad residential, commercial, or industrial zoning categories). If a client's rezoning application fails as a result of a protest petition, resubmitting an application with "buffer" zones may also help avoid bringing certain neighboring properties within a notice area or protest petition.

§3.4.5 Factors to Consider When Rezoning Property.

The leading case in Kansas is Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), which described eight factors the Kansas Supreme Court felt should be considered:

* The character of the neighborhood;

* The zoning and uses of nearby property;

* The suitability of the subject property for the uses to which it has been restricted (that is, whether the property can be developed as zoned);

* The extent to which removal of the restrictions will detrimentally affect nearby property;

* The length of time the subject property has remained vacant as zoned (often considered in determining whether the current zoning is prohibiting development);

* The relative gain to the public health, safety, and welfare by the destruction of the value of a complaining party's property as compared to the hardship imposed upon the individual landowner (applicant) if the rezoning is not approved;

* The recommendations of permanent or professional staff; and

* Conformance of the requested change to the adopted or recognized master plan.

These Golden factors are not necessarily an exclusive list of relevant considerations.121 For example, see R.H. Gump Revocable Trust v. City of Wichita122 (holding that a municipality may consider aesthetic and cultural matters and, in zoning determinations, "public welfare" includes spiritual, physical, and aesthetic factors). K.S.A. 12-755(a)(4) further specifically authorizes a city to adopt zoning regulations which "control the aesthetics of redevelopment or new development".

Practice Note

Reliance on "soft" standards, such as aesthetic conditions, may face greater scrutiny on appeal. See Rural Water Dist. #2 v. Miami Cty. Bd. of Cty. Comm'rs123: "But acceptable aesthetic considerations include articulable, objective justifications tied to the particular changes or uses. … Accordingly, they 'must be carefully reviewed' to prevent their use as camouflage for 'arbitrary and capricious decisions.' … Aesthetics has been played as a trump card … The card is without identifiable suit or rank, yet it has prevailed."

Although the concerns of immediate neighbors should be considered, and the sentiments of local citizens may be considered124, a decision based on a "plebiscite" of the neighbors is improper. In determining whether a rezoning benefits the public or not, the "public" is the community as a whole, not just the immediate neighborhood.125

Practice Note

K.S.A. 12-757(a) establishes that "[t]he governing body shall establish in its zoning regulations the matters to be considered when approving or disapproving a rezoning request." Indeed, many municipalities have codified the Golden factors into their ordinances, perhaps weakening the argument that not all factors need be considered. Local codes should always be reviewed. However, Kansas courts have not yet seemed willing to strictly bind municipalities to a consideration of all such factors, notwithstanding their apparent codification.

§3.4.6 Conduct of Zoning Hearings—Procedural Due Process.

Whereas a general zoning text amendment is a legislative action, the consideration of a rezoning application for a specific tract of land is a quasi-judicial action.126 Accordingly, certain procedural due process requirements attach to zoning proceedings. In such quasi-judicial proceedings, "it is incumbent upon the authority to comply with the requirements of due process. Thus, the proceedings must be fair, open, and impartial. A denial of due process renders the resulting decision void."127

Due process does not require, however, that planning commission meetings or council commission meetings be run like courtrooms. For example, cities do not need to provide for the introduction of certain types of "evidence," nor allow for cross-examination of planning staff members or other interested parties. See, e.g., In re Petition of City of Overland Park for Annexation of Land128 (holding that "[t]he full rights of a due process present in a court of law do not automatically attach to a quasi-judicial hearing," that "[t]he basic elements of due process of law are notice and an opportunity to be heard at a meaningful time and in a meaningful manner," that allowing cross-examination of witnesses would result in increased time, expense, and delay, and that otherwise "proceedings could degenerate into utter chaos"129); Paul v. City of Manhattan130 (stating that "the enactment and amendment of zoning regulations are primarily legislative rather than judicial in character" (internal citation omitted) and that, while reference to a "burden of proof" may be appropriate at the municipal level, a court reviewing the resulting legislation is not concerned with the "quantum of evidence" heard by legislators).

Practice Note

Courts recognize that planning commissions, city councils, and county commissions are made up of laypersons, most often volunteers, who are not judges and who are not otherwise versed in law and civil procedure. Accordingly, in zoning proceedings there are no rules of evidence, parties do not have to share exhibits or witness lists, there is no discovery (at least, at this stage), and there is no cross-examination. Procedural due process also does not require that parties be given the right to make certain presentations or rebut evidence at every meeting. Per Kansas Attorney General Opinion No. 2005-6, the only required public hearing is at the planning commission level, and even at that, all that is required is that an interested party be provided notice and an opportunity to be heard.

Practitioners should use caution with ex parte contacts with members of the planning commission and governing body. While ex parte communications are not necessarily fatal, courts will be more receptive to challenges based on bias where ex parte contacts are present.131 Similarly, prejudgment statements by a decision-maker are not fatal to the validity of a zoning determination so long as the statements do not preclude a finding that the decisionmaker maintained an open mind and continued to listen to all of the evidence presented before making the final decision.132 An illustrative case is Tri-County Concerned Citizens, Inc., v. Board of County Commr's of Harper County133 , in which the Kansas Court of Appeals stated:

[M]ere evidence that a zoning official has a particular political view or general opinion about a given issue will generally not suffice to show bias. Courts recognize that public officials have opinions like everyone else and inevitably hold particular political views related to their public office. In fact, zoning officials are typically chosen to serve in their official capacity because they are expected to represent certain views about local land use planning and development.134

§3.4.7 Conduct of Zoning Hearings—Deliberations in Executive Session.

Notwithstanding the direction from Kansas courts that zoning hearings be "fair, open, and impartial," planning commissions, governing bodies and boards of zoning appeals may actually conduct the deliberative portions of their proceedings in private. Under K.S.A. 75-4318(g)(1), the provisions of the Kansas open meetings act135 do not apply "to any administrative body that is authorized by law to exercise quasi-judicial functions which such body is deliberating matters relating to a decision involving such quasi-judicial functions[.]" The Kansas attorney general has stated that this open meetings exception extends to planning commissions and boards of zoning appeals, which exercise powers in the administration of zoning ordinances136, and the same rationale should apply to governing bodies of municipalities, when acting in a quasi-judicial capacity.

§3.5 PROCEEDINGS AFTER GOVERNING BODY ACTION.

§3.5.1 Airport Commission Approval.

Where a zoning matter is located within one (1) mile of a public airport, and where a city makes any change in existing city zoning (often including special use permits or conditional use permits), such change must be approved by the board of county commissioners so as to ensure the change will not adversely interfere with airport operations.137 Such airport regulations are administered by the local airport commission, which serves as a planning commission on airport matters, making recommendations to the county.

§4 JUDICIAL REVIEW OF ZONING DECISIONS.

§4.1 TIMING OF APPEAL AND STANDING.

K.S.A. 12-760 provides: "Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision." If a governing body adopts an ordinance or resolution approving a change in zoning, then the thirty (30)day time period for commencing an appeal should begin on the date of publication of the ordinance of resolution.138 However, some municipalities have adopted ordinances establishing that the governing body's action on the application constitutes the "final decision," and these do not appear to have been challenged.139 This would be important in establishing the starting date for commencing an appeal, because if a governing body rejects a zoning application, then there may be no publication of any "final decision" ordinance or resolution.

In such cases, the rejection of a governing body itself of an application at a meeting should constitute the final decision for purposes of K.S.A. 12-760. As discussed above140, there may be situations where it is difficult to determine whether any "final decision" was actually reached. For example, in Olson v. City of Wakeeney141, the Kansas Supreme Court determined that a tie vote was not an affirmative action that established a final decision for purposes of giving the courts appellate jurisdiction. However, in the case of Sechrest, LLC v. City of Andover142 , where there had been two tie votes, the Kansas Court of Appeals determined that "[i]t was clear that the vote was final and it was not to be returned to the [planning commission]" and that the Court had jurisdiction to review the council's tie vote under those circumstances. "we conclude we have jurisdiction to review the Council's tie vote under these circumstances as a final action by the Council."143

As to standing, Kansas courts have held that the term "any person aggrieved," as contained in K.S.A. 12-760, means a person who suffers a substantial grievance, a denial of some personal or property right, or the imposition of some burden or obligation, and the term applies only to person who have rights that may be enforced at law and whose pecuniary interest may be affected.144 The larger a project is, the more sensitive it likely is to the community at large, thus expanding the universe of potentially aggrieved persons.145

There is authority that K.S.A. 12-760 (or its predecessor statute) is intended to provide the exclusive state avenue to challenge a zoning regulation, and a court should not have appellate jurisdiction to hear collateral attacks under other appellate or declaratory judgment proceedings.146 However, appeals of zoning decisions may also be brought in Federal court, in some cases, not as a K.S.A. 12-760 action but where violations of due process, equal protection, or other federal claims are alleged. Where a challenge to a zoning matter is brought in both state court and Federal court, the matter may be subject to the "Colorado River Doctrine", where the simultaneous litigation of claims would be duplicative, and the federal action should be stayed pending parallel court proceedings.147

§4.2 STANDARD OF REVIEW.

There are eight (8) well-settled rules for judicial review of zoning decisions that are cited throughout Kansas case law.148 These are:

* The local zoning authority, and not the court, has the right to prescribe, change or refuse to change zoning.

* The district court's power is limited to determining the lawfulness of the action taken, and the reasonableness of such action (that is, whether proper procedures were followed, or whether the governing body had the authority to take the challenged action).

* There is a presumption that the zoning authority acted reasonably.149

* The challenger has the burden of proving unreasonableness by a preponderance of the evidence.

* A court may not substitute its judgment for that of the zoning authority, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.

* An action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.

* Whether an action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.

* An appellate court must make the same review of the zoning authority's action as did the district court.

Generally, a court will not presume to know what land use is best for a community, and Kansas courts are instructed to defer to the decisions of a municipality's elected officials, who were elected precisely to make appropriate zoning decisions:

Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonably or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them."150

See also Spurgeon v. Board of Comm'rs of Shawnee County151, holding that "the court may not substitute its judicial judgment for the legislative judgment of the city, rather the court is obliged to find facts which demonstrated that the city's conduct departed from the realm of the reasonable and passed over into the realm of the arbitrary and capricious

That is to say, an appeal under K.S.A. 12-760 should not allow for a de novo review of the entire application. However, there is authority for the notion that, in some cases (especially where the record on appeal is thin or nonexistent), a court may determine, de novo, whether a municipality's actions met the standard for reasonableness.152 Moreover, there is some authority in Kansas allowing a trial court to take additional evidence relevant to the issue of reasonableness153 (although courts generally do not want to hear a litany of "testimony" in the form of neighborhood complaints). That being said, if the record of proceeding proves to be insufficient, the court may—and perhaps should, where possible—remand the matter back to the governing body for further findings and conclusions.154 This does not, however, allow the parties the opportunity to re-argue the merits of an application, or to try new arguments that were not given to the zoning authority.

However, in Layle v. City of Mission Hills155 —a case involving a board of zoning appeals (under a different statute, K.S.A. 12-759(f))—the Kansas Court of Appeals stated that a district court's review is de novo to the extent that a zoning board's decision interpreted a regulation or statute. The district court should "independently determine the meaning of controlling terms in applicable zoning regulations and then determine whether a board's decision was reasonable in light of that statutory construction."156 The Kansas Court of Appeals further held that the interpretation of a statute (or, presumably, ordinance) by an administrative agency is not binding upon a court, and that courts owe no deference to an agency's interpretation of its own regulations. 157

§4.3 LEGISLATIVE AND QUASI-JUDICIAL FUNCTIONS.

When the function of a governing body is classified as "purely judicial," the reviewing court will conduct a "de novo" review.158 However, Kansas courts generally interpret zoning functions performed by a governing body as legislative or quasi-judicial and not "purely judicial."159 When reviewing a legislative function, the separation of powers doctrine restricts a court's review despite the statutory authority allowing it to be "de novo. "160 The court's restricted review is described as "highly deferential" and incorporates the standard of "Golden/Combined Investment Company. "161 Under this review, a court is not to "conduct a full trial or make independent findings of fact."162 When reviewing a quasi-judicial function, the court's review is the same as when reviewing a legislative function.163

In Zimmerman v. Board of County Comm'rs, the Supreme Court held that the distinction between legislative and quasi-judicial functions is unnecessary with respect to the review applied by courts and noted that Kansas courts generally review both functions with the same "highly deferential" standard.164 The "highly deferential" standard, which incorporates the "Golden/Combined Investment Co. standard, " also satisfies the separation of powers doctrine and the statutory authority of a "de novo" review as provided for in K.S.A. 3-709 (a statute establishing a seemingly separate judicial review standard for airport zoning regulations). 165

Practice Note

Given the standard of review, the presumption of reasonableness, and the high burden of proof placed upon a plaintiff, it is difficult to successfully challenge the reasonableness of a municipality's zoning decision (it is perhaps easier to challenge the procedural lawfulness of the decision). Practitioners representing plaintiffs/appellants must keep this in mind when advising clients considering an appeal. This is especially true given the limited remedies that may be available, as discussed in Section 4.7 below.

§4.4 CONSIDERATION OF THE GOLDEN FACTORS.

In determining reasonableness, a court will look to the governing body's consideration of the Golden factors, although the factors set forth in Golden are nonexclusive when determining the reasonableness of a zoning decision.166

A governing body's decision "will not be found unreasonable merely because the Golden factors were not specifically enumerated or subjected to an issue-oriented analysis."167 In fact, a city need not provide any formal reasons at all for its land use decisions because "written orders from zoning bodies are not mandatory as long as the record is adequate for a determination of reasonableness. "168 Although strongly encouraged, a governing body is not required to make formal findings of fact concerning its decisions regulating land use, and "it is more important that there exists a record of what the governing body considered before making its decision so that the reviewing court is not left in a quandary as to why the decision was made."169 Accordingly, aggrieved persons must show by a preponderance of evidence that the local government did not reasonably consider the factors at all.170 As a result, it may be argued that the applicability of the Golden case is actually quite limited, or that it has at least been watereddown.

Of course, if the municipality undertook its deliberations in executive session, as permitted under K.S.A. 754318(g)(1)171, there would presumably be no record of proceedings upon which an appellate court could base its review. In that case, and unless the public record (outside of the deliberations) contained a sufficient showing of the evidence presented and the positions considered, it may be that the court would have no choice but to either side with the appellant or remand the matter back to the governing body for further public proceedings. This issue has not yet been addressed in a published Kansas court opinion.

Practice Note

Examples of other factors often listed in municipal zoning regulations include trends of development in the general area, access to fire and police protection, transportation requirements and facilities, safety and convenience of persons apt to gather in the area of the proposed use, and environmental impacts such as storm water runoff, excessive lighting, or other types of pollution. The federal Centers for Disease Control and Prevention even has materials on using zoning powers to encourage healthy eating (e.g., limiting fast food options) and physical activity (green spaces, trails, and the like). www.cdc.gov.

§4.5 SPOT ZONING.

"Spot zoning", generally, refers to any zoning ordinance that is designed to specifically benefit a particular parcel of land, and spot zoning has also been described as "the use of the zoning power to benefit particular private interests."172 Spot zoning can be claimed where such special benefits are detrimental to the other interests of the area and other owners therein. In such a case the zoning may be declared unreasonable and invalid.173 However, the mere issuance of a special use permit or conditional use permit174 for the benefit of a particular piece of property should not trigger a spot zoning claim where there has been no actual amendment, modification, revision, or change of any provision in the applicable zoning ordinance:

A special permit to use property within a city for a specified purpose allows a use which is authorized by the zoning ordinance, subject to issuance of such a permit; and the granting of a special permit does not constitute an amendment of an ordinance, nor is it comparable to a variance, or invalid spot zoning.175

A risk of spot zoning may also appear where, as part of approving a specific rezoning application, a city imposes conditions or stipulations that might not otherwise apply to other properties in the same zoning category.

§4.6 VESTED RIGHTS AND SUBSTANTIVE DUE PROCESS; EQUAL PROTECTION.

§4.6.1 Due Process, Takings, and Vested Rights Generally.

A person "aggrieved" by a zoning decision may also attempt to base an appeal on substantive due process grounds, essentially arguing that the decision has unfairly or arbitrarily denied the appellant of certain property rights, in violation of the Kansas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. As to zoning regulations generally, constitutionality was established by the 1926 United States Supreme Court Euclid case. 176 There is also a question as to whether courts have jurisdiction to consider separate due process claims, as K.S.A. 12-760 is intended to provide the exclusive remedy for a person to challenge either the validity or the reasonableness of a zoning decision.177

Appeals on substantive due process grounds are also difficult in that only "vested rights" or "legitimate claims of entitlement" are protected by due process.178 Mere plans or so-called "development dreams" are not generally sufficient. "Landowners generally have no property right in an anticipated use of land since they have no vested property right in the continuation of the land's existing zoning status."179 The Kansas Supreme Court also held in Houston v. Board of County Comm'rs of City of Wichita that "[a] property owner has no vested right in the existing zoning of his property, but holds it subject to the right of the governing body to rezone it by a reasonable enactment adopted in the valid exercise of the police power."180

Kansas courts have also rejected the argument that property may not be rezoned if an landowner has incurred significant expenses in purchasing property and preparing development plans, effectively changing their position in reliance on the existing zoning. In Kansas, "a landowner does not acquire a vested right to develop property in accordance with an existing zoning classification where he has neither performed substantial work nor incurred substantial liabilities pursuant to a valid building permit."181 This is true even if a building permit has been procured. Where a building permit has been issued, but actual construction has not commenced, then the adoption of a zoning regulation which prohibits the construction of that building may not constitutionally impinge upon any vested property rights.182 Accordingly, in some cases, zoning regulations may be applied retroactively to invalidate development plans and building permits.

Subsequent statutory enactments have both confirmed and limited these court decisions, particularly for residential developments. For development rights vested prior to July 1, 2009, K.S.A. 12-764(a) provides that: (1) as to single-family residential developments, development rights vest upon recording of a plat of such land, but if construction is not commenced within five (5) years of recording the plat, the development rights expire; and (2) for all purposes other than single-family developments, development rights do not vest until all required permits have been validly issued, and construction has begun and substantial amounts of work have been completed under such permits.183

For residential development rights vested on and after July 1, 2009 (both single-family and multi-family), development rights again vest upon the recording of the plat, but developers instead have ten (10) years thereafter within which to commence construction, or risk having those development rights expire.184 For all purposes other than residential developments, the right to use land for a particular purpose vests upon the issuance of all required permits and construction has to have begun, and substantial amounts of work have to have been completed, within ten (10) years of the issuance of such permits.185

For development rights both prior to and after 2009, the governing body may provide in zoning regulations for earlier vesting of development rights. However, the regulations must allow for vesting to occur in the same manner for all uses of land within a particular land-use classification.186

§4.6.2 Tolling of Time Limitations in Zoning Approvals.

With vested rights perhaps being subject to time limitations, and with special use permits, conditional use permits, and other approvals187 often subject to limits on duration, time may be of the essence for a landowner or developer to apply for and obtain permits and commence. However, if a zoning appeal is filed pursuant to K.S.A. 12760 (or K.S.A. 12-759(f), as to board of zoning appeals matters188), final resolution of that appeal can take months, if not years, and landowners (and their lenders) are unlikely to undertake significant development if the zoning approval first received is at risk of being taken away at the appellate level. On the other side, aggrieved persons filing an appeal may seek to prohibit development while the appeal is pending, even if the landowner or developer is willing to take the risk that the appeal is granted.

There are no Kansas statutes which impose an automatic stay when zoning matters are appealed, by either automatically staying the right of the successful applicant to build, or automatically staying any time period within which the successful applicant is required to build or within which the applicant may operate under a special or conditional use permit. Furthermore, there are no reported Kansas cases which have considered whether equity requires that such time periods be tolled or stayed if opponents appeal zoning matters to the district court. Case law from other jurisdictions is somewhat split, but most courts seem to have held that time periods should be tolled or stayed, where appropriate.189

§4.6.3 Reliance and Estoppel.

Notwithstanding the foregoing, Kansas courts have also held that, under proper circumstances, the principle of estoppel may be applied against a municipality so as to preclude a municipality from denying the validity of its zoning actions and to enjoin a municipality from attempting to rezone land. For example, in Benson v. City of DeSoto190, the Kansas Supreme Court stated:

From a practical standpoint a citizen should be able to rely on a city's governing body, its ordinances, its properly-designated officials and the requirements established by such officials under the proper exercise of their authority so when such citizen strictly complies with the law, ordinances, and the requirements of such officials he is not acting at his peril.

However, the impact of cases such as Benson may be quite limited. For example, courts later rejected claims that developers are always entitled to rely on comprehensive plans ("[t]he adoption of such a plan raises no implication or representation that the plan may not be subsequently modified in the light of future developments")191, or that developers may rely on the erroneous interpretations of ordinances provided by staff members ("[a] landowner is charged with knowledge of the zoning ordinances" and "[a]pproval by city officials of a use which is prohibited by the ordinances, without the issuance of a special permit, is without effect").192 Landowners may also be precluded from relying on statements of planning staff members and planning commission members because they merely serve in advisory roles, and are not the final decision makers.193

§4.6.4 Moratorium Ordinances.

Communities may also, at times, adopt temporary "moratoria" on development (prohibiting certain development or putting on hold the consideration of new or pending zoning and building permits) until new or more restrictive zoning regulations can be enacted. In these cases, municipalities and applicants may often be required to consider vested rights and estoppel issues. While no Kansas court has yet ruled directly on the ability of municipalities to control development in this way, the Kansas attorney general has opined that a municipality may enact such a temporary moratorium "as long as it is enacted in good faith, without discrimination, and the moratorium bears a reasonable relationship to the public's health, safety and general welfare."194 The rationales of the Ware, Houston, and Colonial Investment cases cited above would seem to also support a municipality's use of a moratorium to adopt new regulations which could then be applied to applicants, even retroactively.

In the case of certain wireless facilities, the Kansas New Wireless Deployment Act195 provides that the City may not issue any moratoria on the filing, consideration, or approval of any application, permitting, or construction of new wireless support structures, substantial modifications, or collocations.

Moratoria may be challenged as "takings" of property (depriving property owners of the use of their property without just compensation), especially if the moratoria are perpetual or for an unreasonable amount of time. However, in 2002 the United States Supreme Court held that municipalities could institute temporary moratoria without there being a taking and determined, at least in that case, that a 32-month moratorium was not a per se taking.196 In 2011, the Kansas Supreme Court also determined that an applicant has no vested rights in a conditional use permit when its issuance depends upon the discretionary approval of a governmental authority, even where regulation changes eliminated the possibility of a conditional use permit due to a moratorium on such permits.197

§4.6.5 Exactions and Takings.

As a condition to approving a rezoning, special use permit, or conditional permit, or granting another type of land-use approval, municipalities may "exact" land rights from an applicant, such as right-of-way, easements for trails, or conservation easements, or impose other development conditions and restrictions. Generally, a municipality (or other unit of government) may condition approval of a land-use permit on the owner's relinquishment of a portion of its property so long as there is a "nexus" and "rough proportionality" between the exaction and the effects of the proposed land use.198 The United States Supreme Court recently commented that this framework "enable[s] permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in 'out-and-out … extortion' that would thwart the Fifth Amendment right to just compensation."199 Monetary exactions—not merely the giving up of property interests—are subject to the same scrutiny.200

§4.6.6 Equal Protection.

Persons denied a rezoning or similar application may also argue that, if a similar applicant or project received approval, that such denial violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment prohibits a state (or subdivision thereof) from denying "to any person within its jurisdiction the equal protection of the laws."201 A violation of equal protection occurs when the government treats someone differently than another who is similarly situated.202 In Village of Willowbrook v. Olech203 , the United States Supreme Court recognized a viable equal protection claim in a zoning dispute brought by a single plaintiff "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."204 This "class of one" theory in zoning cases would not appear to allow an applicant to use his or her own previously-approved application to support an equal protection claim as to a subsequently-denied separate application.205 It is unclear if that result would hold if an applicant/owner filed zoning applications for different properties under separate business entities.

§4.7 JUDICIAL REMEDIES.

If a court determines that a municipality acted unreasonably in disapproving a zoning application, then the proper remedy would be for the court to either grant the rezoning or order the municipality to do so. If the court decides that a municipality's approval of a zoning application was unreasonable, then the rezoning would be invalidated. However, such a judgment would carry only a limited res judicata effect. An applicant could submit a slightly modified version of the application and go through the rezoning process again (subject to "identical application" restrictions), or an applicant could even re-submit the same application at a later date, for what is unreasonable in land use one year may be completely reasonable the next, as neighborhoods change and community needs and standards change.

If the decision of a governing body is overturned on procedural (lawfulness) grounds, the matter will most likely be remanded back to the municipality so that proper procedures can be followed. The governing body may even be permitted to conduct a re-vote on the matter (which could work for or against the parties to the appeal, depending on the politics of the governing body).206

Practice Note

Even the successful plaintiff/appellant may find his or her remedies to be somewhat hollow. Most procedural irregularities may be cured, and an appellant will often be faced with the more difficult reasonableness challenge (with ever-changing standards of what is or is not reasonable). As a result, "victory" in zoning matters may most often be found in the political arena, in the council chambers rather than in the courthouse.

§5 FEDERAL CLAIMS, WIRELESS FACILITIES, FAIR HOUSING, AND RELATED REGULATIONS.

Notwithstanding the general State rule limiting collateral attacks on appeal under K.S.A. 12-760207, there are certainly instances where superior Federal law may provide the bases for challenging local zoning decisions. Of course, Article VI, Clause 2, of the United States Constitution, commonly known as the Supremacy Clause, provides, in relevant part:

This Constitution and the Laws of the United States which shall be made in Pursuance thereof … shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The following sections briefly describes other common Federal claims raised on appeal or as separate causes of action, and includes other state-law provisions that derive from or may be related to such Federal issues.208

§5.1 THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT.

Certain religious landowners or applicants may also seek relief from an adverse zoning decision under the Religious Land Use and Institutionalized Person Act, 42 U.S.C. § 2000cc-1 et seq. (the "RLUIPA"). In the land-use context, the RLUIPA provides for the following:

* A municipality cannot implement a land use regulation that imposes a "substantial burden" on religious exercise unless the government demonstrates a compelling governmental interest, and the regulation is the least restrictive means of furthering that interest;209

* A municipality is forbidden from "impos[ing] or implement[ing] a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution;"210

* No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination;211 and

* A municipality is forbidden from "impos[ing] or implement[ing] a land use regulation that-(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction."212

The RLUIPA creates a private right of action against a municipality, and while there is no Kansas case on the issue yet, it does not appear that a RLUIPA claim would have to be raised together with or at the same time as an appeal of reasonableness under K.S.A. 12-760. It is not clear what impact a state-court decision under K.S.A. 12-760 would have if a separate court were asked to consider an RLUIPA claim on the same underlying zoning decision. It has been noted elsewhere that the RLUIPA contains no requirement that the claiming party exhaust its remedies prior to judicial review213, and the RLUIPA itself provides, "Adjudication of a claim of a violation of section 2000cc of this title in a non-Federal forum shall not be entitled to full faith and credit in a Federal court unless the claimant had a full and fair adjudication of that claim in the non-Federal forum."

The RLUIPA itself merely provides that a person may obtain "appropriate relief" against a government214 , and that has been held to include both injunctive relief and monetary damages.215 Attorneys' fees may also be awarded pursuant to 42 U.S.C. § 1988(b), which was amended by the RLUIPA for that purpose.

Examples of RLUIPA claims in Kansas (whether litigated or not) have included churches seeking zoning to allow for homeless services, establishment of a Buddhist temple, and the use of a single-family home for a Catholic church meeting house. In the last example, a Federal district court addressed certain factors that come into play when considering RLUIPA cases, including the following:216

* A government places a "substantial burden" on a religious institution when it denies that institution a reasonable opportunity to engage in religious activity, and mere inconvenience is not enough.

* If reasonable alternatives exist for a religious institution, those alternatives signify an insubstantial burden. A local government can show that reasonable alternatives exist by establishing that the religious institution could reorganize its existing space, or comply with conditions attached to the project's approval and still meet its needs.

* Evidence that a government's conditions are economically infeasible or disingenuous favors a finding that the government has imposed a substantial burden. Alternatives that would create delay, uncertainty, or expense may also manifest a substantial burden.

If a plaintiff can establish a "substantial burden", then the burden of proof shifts to the defendant municipality, and the municipality must show that its zoning decision served a compelling governmental interest and that it represented the least restrictive means to achieve that interest (i.e., strict scrutiny).217

§5.2 WIRELESS AND TELECOMMUNICATIONS REGULATIONS.

§5.2.1 The Federal Telecommunications Act and Subsequent Rulings and Orders.

Section 704 of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332(c) (the "FTA"), governs federal, state and local government regulation of the placement, construction, and modification of "personal wireless service" facilities and other telecommunications facilities, such as cellular phone towers. Specifically, the FTA imposes the following limitations on local zoning authorities:218

* The regulation of the placement, construction, and modification of personal wireless service facilities shall not unreasonably discriminate among providers, and "shall not prohibit or have the effect of prohibiting the provision of personal wireless services."

* Governing authorities shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is filed.

* Any decision to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

* No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.

The FTA then provides that any person adversely affected by a state or local government's act, or failure to act, that is inconsistent with the foregoing, may seek expedited review in any court of competent jurisdiction, including the Federal courts. 219 Such an action must be brought within thirty (30) days after the final decision.220 Claimants may also petition the Federal Communications Commission (FCC) for relief.221

Since the adoption of the FTA, the FCC has issued other rulings and orders that impact consideration of wireless applications. As an example, in 2009 the FCC issued a declaratory ruling in which it established "shotclocks" within which a municipality must act on certain types of wireless applications.222 Thereafter, additional changes and clarifications have been issued through, by way of example only, the 2012 "Spectrum Act" and regulations that followed223, a 2014 FCC rule regarding "Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies"224, and a 2018 FCC order for "Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment; Declaratory Ruling and Third Report and Order."225 Under these rulings and orders, the failure of a city to act within the specified time periods amounts to a "presumptive prohibition on the provision of personal wireless services" within the meaning of the FTA. These rulings and orders also regulate the application fees which municipalities may charge.

Practice Note

Wireless regulations are consistently being updated, changing, and also challenged, oftentimes by municipalities. Practitioners will regularly need to review the status of these regulations. As a result of these constant changes, municipal ordinances regarding these topics may themselves often be outdated and unenforceable.

§5.2.2 Kansas New Wireless Deployment Act.

Notwithstanding the FTA and subsequent orders and rulings, in 2016 the State of Kansas also adopted the Kansas New Wireless Deployment Act, codified at K.S.A. 66-2019 (the "KNWDA"). This enactment expanded the rights of wireless service providers and wireless infrastructure providers to use City right-of-way for the installation of their facilities. These rights are not unlimited. For example, the KNWDA provides that a city "may continue to exercise zoning, land use, planning and permitting authority within the [city's] territorial boundaries with regard to the siting of new or the modification of wireless support structures, wireless facilities, small cell facilities or utility poles," except as to systems located in an "interior structure" or "upon the site of any campus, stadium or athletic facility."226 However, the KNWDA specifically says that these powers are "[s]ubject to the provisions of … applicable federal law," a clear reference to the FTA and subsequent orders and rulings.227

The KNWDA further limited the types of considerations on which cities may base wireless decisions, the information required of applicants, the amounts of fees which may be levied, and the times within which decisions must be made.

§5.2.3 Wireless Facilities and Aesthetics.

Of primary concern to a city may be whether the city may deny wireless facilities over aesthetics. Kansas courts have generally allowed aesthetics to be considered in zoning matters.228 For example, in R.H. Gump Revocable Trust v. City of Wichita229, the City of Wichita had denied a request for a conditional use permit to build a 135-foot communications tower. The applicant argued that the denial was unreasonable, and the Court of Appeals upheld the denial, essentially holding that aesthetics alone was a reasonable basis for the city's action. However, under the newer KNWDA, a city may not "impose any unreasonable requirements or regulations regarding the presentation, appearance or function of the wireless facilities and equipment including, but not limited to, those relating to any kinds of materials used and those relating to arranging, screening or landscaping of facilities."230 Furthermore, if aesthetic judgments are applied in such a way that all or nearly all wireless facilities were prohibited, they would likely run afoul of the FTA and the various FCC orders and rulings discussed above.

Indeed, the above-mentioned 2018 FCC order for "Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment; Declaratory Ruling and Third Report and Order states that there are types of local land-use or zoning requirements that may restrict small wireless facility deployments to such a degree that they do amount to effective prohibitions of service. The FCC looked specifically at aesthetic and undergrounding requirements and concluded that aesthetic requirements are not preempted by applicable federal law if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance.231

§5.3 THE CONTRACT CLAUSE.

Aggrieved parties may also attempt to challenge zoning laws and regulations under the Contract Clause of the United States Constitution.232 However, the standards for a successful claimmay be insurmountable. A landowner must prove that: (1) the state law has, in fact, operated as a substantial impairment of a contractual relationship; (2) there is not a significant and legitimate public purpose behind the legislation; and (3) the adjustment of the contracting parties' rights and responsibilities is not based upon reasonable conditions and is not of a character appropriate to the public purpose justifying the legislation's adoption.233 The "threshold issue" is whether the subject matter of the contract (the industry) of which the parties are complaining has been regulated in the past.234 In zoning cases, the "industry" is land use and it is heavily regulated in Kansas.235 Therefore, the "impairment" caused by zoning regulations is not substantial because of the foreseeability to the contracting parties that state regulation may interfere.236 Even if the there is a substantial impairment, the landowner will not prevail if the regulation is based on a significant and legitimate public purpose.237 Aesthetics and conformance with the comprehensive plan are two significant public purposes.238 For the third element, the courts defer to the legislature for reasonableness and necessity and "will not second-guess" a governing body's method to achieve a particular goal.239

§5.4 THE FAIR HOUSING ACT; DISABILITY AND GROUP HOMES.

The Federal Fair Housing Act(FHA)240 may also impact zoning decisions, in that the FHA prohibits a number of practices that might discriminate against individuals based on race, color, national origin, sexy, disability, family status, and religion. Of course, federal laws such as the FHA take precedence over conflicting state and local laws, per the Supremacy Clause of the United States Constitution. Therefore, the FHA prohibits state and local land use and zoning laws, policies, and practices that discriminate based on any of these characteristics. Examples of such laws or practices include the following:241

* Prohibiting or restricting the development of housing based on the belief that the residents will be members of a particular protected class by, for example, placing a moratorium on the development of multifamily housing because of concerns that the residents will include members of a particular protected class.

* Imposing restrictions or additional conditions on group housing for persons with disabilities that are not imposed on families or other groups of unrelated individuals, by, for example, requiring an occupancy permit for persons with disabilities to live in a single-family home while not requiring a permit for other residents of single-family homes.

* Imposing restrictions on housing because of alleged public safety concerns that are based on stereotypes about the residents' or anticipated residents' membership in a protected class, by, for example, requiring a proposed development to provide additional security measures based on a belief that persons of a particular protected class are more likely to engage in criminal activity.

* Enforcing otherwise neutral laws or policies differently because of the residents' protected characteristics, by, for example, citing individuals who are members of a particular protected class for violating code requirements for property upkeep while not citing other residents for similar violations.

* Refusing to provide reasonable accommodations to land use or zoning policies when such accommodations may be necessary to allow persons with disabilities to have an equal opportunity to use and enjoy the housing, by, for example, denying a request to modify a setback requirement so an accessible sidewalk or ramp can be provided for one or more persons with mobility disabilities

In terms of disability, Kansas has a separate statute, K.S.A. 12-736, declaring it the policy of the state of Kansas that "persons with a disability shall not be excluded from the benefits of single family residential surroundings by any municipal zoning ordinance, resolution or regulation."242 That statute continues:

No municipality shall prohibit the location of a group home in any zone or area where single family dwellings are permitted. Any zoning ordinance, resolution or regulation that prohibits the location of a group home in such zone or area or that subjects group homes to regulations not applicable to other single family dwellings in the same zone or area is invalid. Notwithstanding the provisions of this act, group homes shall be subject to all other regulations applicable to other property and buildings located in the zone or area that are imposed by any municipality through zoning ordinance, resolution or regulation, its building regulatory codes, subdivision regulations or other nondiscriminatory regulations.243

The term "group home" is defined as "any dwelling occupied by not more than 10 persons, including eight or fewer persons with a disability …and not to exceed two staff residents …, which dwelling is licensed by a regulatory agency of this state".244 The term "disability" is defined as a "physical or mental impairment that substantially limits one or more of such person's major life activities", a record of such person having such an impairment, or "being regarded as having such an impairment", but the term does not include "current, illegal use of or addiction to a controlled substance," as defined by Federal law.245

Even if a municipality's zoning regulations may comply with the requirements of K.S.A. 12-736, denial of permits beyond those specified by statute may still be subject to challenge under the Fair Housing Act. Federal and state law claims were both addressed in Keys Youth Services, Inc. v. City of Olathe, Kansas. 246 In that case, an operator of youth group homes sued the city alleging that the denial of a special use permit (to house ten youths, instead of the eight permitted by code) violated both the FHA and K.S.A. 12-736, and that a city's claim of having legitimate safety concerns was merely a pretext for disability discrimination. The United States Court of Appeals, Tenth Circuit, concluded that the requested accommodation was not "reasonable" in light of the city's legitimate public safety concerns:

Common sense dictates that when a defendant possesses a legitimate nondiscriminatory reason for a housing decision, a plaintiff's requested accommodation must substantially negate the defendant's concern in order to be considered reasonable. [Citation omitted.] For example, if the evidence in the instant case showed that housing ten juveniles instead of eight actually resolved the safety problem, then Keys' request would be reasonable. However, we see nothing in the record so indicating.247

As to K.S.A. 12-736, the Court concluded that—notwithstanding some ambiguity in the statute—the occupation of the home by ten juveniles plus staff would not qualify it as a group home, and that the plaintiff had no basis upon which to assert a claim under K.S.A. 12-736.248

Practice Note

Residents and cities also cannot "contract" so as to avoid group home applications. K.S.A. 12-736(f) further provides: "No person or entity shall contract or enter into a contract, restrictive covenant, equitable servitude or such similar restriction that would restrict group homes or their location in a manner inconsistent with the provisions of subsection (e)."

§6 NONCONFORMING USES; SPECIAL AND CONDITIONAL USE PERMITS.

§6.1 NONCONFORMING USES.

Notwithstanding that zoning regulations may change as to an entire zoning district or merely a particular piece of property, in order to avoid violation of constitutional provisions preventing the taking of private property without compensation, zoning regulations must permit continuation of uses of land which existed at the time the regulation was adopted. Such uses, which continue after the effective date of a new zoning regulation, even though they no longer comply with the new regulations, are referred to as legal or valid "nonconforming uses."

With certain limitations, nonconforming uses are protected by statute at K.S.A. 12-758:

(a) Except as otherwise provided by this section and K.S.A. 12-770 and 12-771, and amendments thereto, regulations adopted under authority of this act shall not apply to the existing use of any building or land, but shall apply to any alteration of a building to provide for a change in use or a change in the use of any building or land after the effective date of any regulations adopted under this act. If a building is damaged by more than 50% of its fair market value such building shall not be restored if the use of such building is not in conformance with the regulations adopted under this act.

(b) Except for flood plain regulations in areas designated as a flood plain, regulations adopted by a city pursuant to K.S.A. 12-715b, and amendments thereto, or a county pursuant to this act shall not apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings are used for agricultural purposes and not otherwise.

§6.2 ABATEMENT OR ELIMINATION OF NONCONFORMING USES.

However, the protections offered to nonconforming uses are not absolute, and nonconforming uses may be considered as non-favored under the law. Kansas courts have long held that municipalities may provide by reasonable regulation for the gradual elimination of nonconforming uses.249 K.S.A. 12-771 now provides that "nothing" in the statutory act authorizing zoning regulation "is intended to prevent cities or counties from enforcing local laws, enacted under other legal authority, for the gradual elimination of nonconforming uses."

Given the language of K.S.A. 12-758(a) that, with limited exceptions, regulations adopted under authority of the act shall not apply to the existing "use" of any building or land, a use cannot likely be deemed "nonconforming" through a mere change in ownership.

As reflected in K.S.A. 12-758(a), no enlargements, increases, or extensions to the nonconforming use may generally be had, and if any of those occur, or if the use itself is abandoned or operating thereof is suspended, the validity of the nonconforming use may be forfeited.

An exception to this rule is the "diminishing asset doctrine," which most often applies to mining or quarry operations. Even if there is no current excavation in any particular area of subject property, if there is evidence of intent to expand excavation to such other areas at the time the zoning restriction was enacted, such expansion will be permitted as a lawful nonconforming use.250 As for counties, and except for certain flood plain regulations, under K.S.A. 19-2921, nonconforming agricultural uses of land and buildings are permitted for so long as they are used for agricultural purposes.

Practice Note

Some cities may require that a certificate of legal nonconforming use be obtained, and renewed on a periodic basis so they can ensure that the uses are continuing. Municipalities may also seek to eliminate longstanding nonconforming uses through general nuisance law, rather than through the adoption of zoning regulations.

In every case, attempts by a municipality to eliminate non-favored nonconforming uses are fraught with difficulty, and subject to appeals that the adopted time frames or other requirements are unreasonable or confiscatory. The term "amortize" is often used when discussing the gradual elimination of nonconforming uses, and reasonable amortization periods should generally take into account the amount of investment that went into the use and allow a property owner to realize the remaining value of the use.251 The relative importance of the gain to the public through the elimination of the non-conforming use relative to the private loss to the property owner from loss of the use should also be considered.252 Numerous other factors may be important, such as the ability to relocate the use and the costs of doing so.

§6.2.1 Sexually Oriented Businesses.

Kansas also has a separate statute, K.S.A. 12-770(b), which authorizes municipalities to adopt "reasonable regulations for the gradual elimination of sexually oriented businesses which constitute nonconforming uses." However, the ability of municipalities to regulate sexually oriented businesses through zoning may be limited by the First Amendment to the United States Constitution, in that the activities of such sexually oriented businesses (the showing of movies, dancing, etc.) may be deemed speech under the First Amendment. Generally speaking, local ordinances may regulate the time, place and manner in which such businesses are operated, and laws specific to sexually oriented businesses are valid as long as they are intended to minimize the negative effects of these businesses (such as lowered property values, crime, or drug use) and are not motivated by the adult content itself. 253 This is known as the "secondary effects" doctrine, where regulations are not primarily intended to quell speech that may be deemed offensive, but instead to prevent the deterioration of neighborhoods (the "secondary effect" of such speech).254

§6.3 SPECIAL USE PERMITS AND CONDITIONAL USE PERMITS.

Special use permits (SUPs) or conditional use permits (CUPs) are a zoning authority's authorizations to use property in a way that is specifically identified as permitted special uses or permitted conditional uses in a zoning ordinance. Special use permits and conditional use permits differ from variances and exceptions255 in that they are authorized permitted uses under certain circumstances (or, the property is considered restricted for such uses only under certain circumstances), whereas variances and exceptions operate more as authorized violations of the requirements of the zoning ordinance (setbacks, frontage, required parking spaces, and the like). As such, SUPs and CUPs often carry with them additional operating standards or requirements that would not otherwise apply to uses permitted by right in specific zoning classifications, such as limitations on the hours of operation or requirements for regular permit reviews and renewal applications.

The procedures for granting special use permits and conditional use permits are not set forth in detail by Kansas statute. Rather, K.S.A. 12-755(a)(5) authorizes a governing body to adopt zoning regulations that provide for the issuance of special use permits or conditional use permits. Most municipalities process SUPs and CUPs in the same manner as rezonings of property, and courts in Kansas tend to treat rezonings, SUPs, and CUPs as functional equivalents. For example, the Kansas Supreme Court has indicated that SUPs are subject to the formal protest petition process under K.S.A. 12-757(f), perhaps regardless of whether the municipality itself has made provisions therefor.256

Being zoning regulations authorized and adopted under K.S.A. 12-755, appeals from decisions on SUPs and CUPs should be taken pursuant to K.S.A. 12-760. In fact, the Kansas Supreme Court has found the Golden factors257 to be equally applicable to special use permits and conditional use permits, where relevant, in determining the reasonableness of decisions thereon.258

§6.3.1 Mining Operations.

Kansas statute, K.S.A. 12-757a, provides that no city or county may establish procedures for special use permits or conditional use permits for mining operations which require the approval of more than a majority of all members of the governing body.

Practice Note

Certain uses may be permitted by right in certain zones, but only permitted as special use or conditional use in other zones. Meaning, a use may be obtained with either a rezoning of property, or by applying for an SUP or a CUP. Practitioners should remain aware that there may be different paths (or pitfalls) to the same goal, and one path may prove to be more politically expedient or feasible than another.

§7 THE BOARD OF ZONING APPEALS.

§7.1 APPEALING THE DECISIONS OF ZONING ADMINISTRATORS.

Not all land use or zoning decisions are made by planning commissions or governing bodies acting in a quasijudicial capacity. Municipalities must still enforce their zoning regulations and, on a day-to-day basis, that means ensuring that certain activities are not taking place in areas not zoned for them, confirming that setback requirements are met, and otherwise making sure that property owners comply with adopted standards for building height, required parking, construction materials, and the like. However, administration of the zoning ordinance, and enforcement of violations, is generally not handled by the planning commission or governing body through the rezoning process, nor through judicial review of the Golden factors.

Kansas law provides a mechanism by which certain decisions or determinations of a municipal officer administering the zoning ordinances may be appealed, known as the board of zoning appeals (sometimes referred to as the "BZA"). K.S.A. 12-759(a) requires the establishment of a BZA, although it is not uncommon for a planning commission to also serve as the municipality's BZA, as authorized by K.S.A. 12-759(g). The authority of the BZA is set forth in K.S.A. 12-759(d), which provides:

Appeals to the board of zoning appeals may be taken by any person aggrieved, or by any officer of the city, county or any governmental agency or body affected by any decision of the officer administering the provisions of the zoning ordinance or resolution. … The board shall have power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of the zoning ordinance or resolution. In exercising the foregoing powers, the board, in conformity with the provisions of this act, may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal is taken, may attach appropriate conditions, and may issue or direct the issuance of a permit.

K.S.A. 12-759(d) further states that appeals "shall be taken within a reasonable time as provided by the rules of the board, by filing a notice of appeal specifying the grounds thereof." Practitioners should, of course, always consult with such local rules to ensure appeals are timely filed. Kansas courts have found that even informal letters from a municipality may constitute final decisions from which an appeal must be taken within the prescribed period. 259

However, Kansas law is not entirely clear as to whether the authority of the BZA extends to actually enforcing violations of the zoning ordinance, or whether it is limited to considering decisions made in "administering"the zoning ordinance (e.g., deciding if the zoning ordinance was correctly applied).

Practice Note

There may be a distinction between administering the zoning ordinance and enforcing violations. For example, if a zoning administrator denied a building permit because the work would violate setback requirements, that would likely be a decision made in "administering" the zoning ordinance. If the owner completed the work without the permit, and the zoning administrator then cited the owner for violating the setbacks, then that would be an enforcement action.

On the one hand, K.S.A. 12-759(d) purports to vest in the BZA the power to consider error in "any" order made in administering or enforcing the zoning ordinance. On the other hand, the BZA is not empowered to convict violators, levy fines, or compel imprisonment, suggesting that enforcement of actual zoning violations should be processed through the municipal court under K.S.A. 12-761:

(a) Any violation of any regulation adopted under the authority of this act shall be a misdemeanor and shall be punishable by a fine of not to exceed $500 or by imprisonment for not more than six months for each offense or by both such fine and imprisonment. Each day's violation shall constitute a separate offense.

(b) Any city or county, and any person the value or use of whose property is or may be affected by such violation, shall have the authority to maintain suits or actions in any court of competent jurisdiction to enforce the adopted zoning regulations and to abate nuisances maintained in violation thereof.

Some authorities suggest that the power of a BZA to rule on the application of an ordinance to specific land may be exercised even though the BZA is without power to enforce its decision.260 And recently, Kansas courts have suggested that jurisdiction may lie in both places.

In City of El Dorado v. Hicks261, the city sent a salvage yard owner a letter notifying him of alleged zoning violations. Local rules allowed the owner sixty (60) days to appeal a determination to the BZA. The landowner never did but, in any event, within those 60 days, the city also issued a formal citation. The landowner was convicted in municipal court, and the district court (by jury trial) found him guilty of violating the zoning ordinance. The landowner then challenged his conviction on the theory that the citation was improper in that he could have appealed the matter to the BZA. The Kansas Court of Appeals rejected this, holding:

After receipt of the June 12 [violation notification] letter, Hicks had until the middle of August to file his appeal. Although the zoning administrator issued the [citation] within the 60-day time frame Hicks had to file his appeal, there is nothing in the regulations that prevents the City from issuing a citation prior to the 60-day expiration. Hicks still could have filed his appeal to the BZA which would have stayed the proceedings in municipal court. …262

Of course, the Court's direction in Hicks suggests that enforcement through the municipal court process may continue after the BZA proceedings have been completed, including all appeals from the BZA decision itself.263 The res judicata effect of a BZA determination on municipal court proceedings is not clear, and there is a risk that multiple and inconsistent decisions could result from these quasi-parallel proceedings.

Practice Note

Under the Hicks decision (albeit unpublished), a municipality would not have to process zoning violations itself through the board of zoning appeals, but the issuance of a notice letter or a citation may be a "final determination" appealable by a landowner to the BZA. If an appeal is timely filed, other enforcement actions may be considered stayed.

§7.2 VARIANCES.

Another remedy potentially available to landowners facing challenges complying with respect to setbacks, building height, lot coverage ratio, or other zoning or municipal development standards is to seek a "variance" from the BZA under K.S.A. 12-759(e). There are two types of variances, "use variances" (also called "exceptions") and "area variances". Use variances or exceptions permit a use of land other than that prescribed by the zoning regulations, and in most cases where the use might be inconsistent with uses in the surrounding area264, and are authorized in limited circumstances under K.S.A. 12-759(e)(2) to situations where the exceptions are specifically listed in the zoning regulations, and where the BZA has been specifically authorized to grant such exceptions. An exception differs from a variance in that an exception may be claimed by a property owner as a matter of right, so long as the conditions for the exception have been fulfilled.265

Area variances, on the other hand, have no relation to any change of use, but instead allow for modifications of area, frontage, building height, floor space, density, setbacks, and other similar restrictions or requirements.266 Some municipal codes also allow for specifically-enumerated "deviations" from applicable regulations, with approval of either planning staff or the planning commission, and, as such, are not truly variances. The authority to grant area variances is found in K.S.A. 12-759(e)(1):

When deemed necessary by the board of zoning appeals, the board may grant variances and exceptions from the zoning regulations on the basis and in the manner hereinafter provided: (1) To authorize in specific cases a variance from the specific terms of the regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of the regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of the regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the zoning regulations in such district. …

A request for a variance may be granted only upon a finding by the BZA that all of the following conditions have been met:

§7.2.1 Uniqueness.

The variance request must arise from such conditions which are unique to the property in question and which are not ordinarily found in the same zone or district; and such conditions must not have been created by an action or actions of the property owners or applicant.267 In determining a requirement of uniqueness, the primary consideration must be the particular topography of the land, not the unique or unusual circumstances or needs of the applicant.268

§7.2.2 Rights of Adjacent Property Owners.

The BZA must specifically find and determine that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.269

§7.2.3 Unnecessary Hardship.

The strict application of the provision of the zoning regulations of which the variance is requested must constitute unnecessary hardship upon the property ownerrepresented in the application.270 The Kansas Supreme Court has held that "[a]n unnecessary hardship exists when all the relevant factors taken together show that the plight of the location concerned is unique in that it cannot be put to a conforming use because of the limitations imposed upon the property by reason of its classification in a specific zone."271 The "unnecessary hardship" criteria should be evaluated as follows:

The criteria of unnecessary hardship is that the use restriction, viewing the property in the setting of its environment, is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property; or that there is convincing proof that it is impossible to use the property for a conforming purpose; or that there are factors sufficient to constitute such a hardship that would in effect deprive the owner of his property without compensation.272

Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.273 Mere increased costs of compliance or other economic factors should not constitute unnecessary hardship forpurposes of variance approval. As with the "uniqueness" factor, a variance may not be granted to relieve a self-created hardship.274 Self-created business growth (leading to an inability to expand without a variance, for example) is not an exception to this rule.275

§7.2.4 Public Health and Safety.

The BZA must also find that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. 276

§7.2.5 Spirit and Intent of Zoning Regulations.

Finally, the BZA must conclude that granting the variance desired will not be opposed to the general spirit and intent of the zoning regulations. 277

Practice Note

Under current Kansas law, variances should be granted sparingly, and it may be argued whether the statutory test can ever be fully satisfied. Given the high standards, variances should probably be viewed as mere formalities, where there is no question as to the qualification. Cities should avoid using variances as a standard planning option; if multiple and similar variance requests are made, that may reveal a problem with the zoning regulations themselves, which should be considered by the governing body and changed, if appropriate.

Being a regulation on the use of real property, variances should not be deemed personal to any particular owner, but should instead run with the land and be available to any subsequent owner.278

§7.3 JUDICIAL REVIEW OF BZA DECISIONS.

§7.3.1 TIMING OF APPEAL AND STANDING.

Appeals to the district court from the BZA are allowed under K.S.A. 12-759(f), which providesthe appellant's exclusive right of appeal:

Any person, official or governmental agency dissatisfied with any order or determination of the board may bring an action in the district court of the county to determine the reasonableness of any such order or determination. Such appeal shall be filed within 30 days of the final decision of the board.279

The test for determining whether a person is "dissatisfied with" a decision of a BZA, for purposes of standing, is the same as the test for determining whether a person is "aggrieved by" any final planning or zoning decision made by a municipality under K.S.A. 12-760.280

By also granting standing to any "official or governmental agency" dissatisfied with a BZA's decision, K.S.A. 12-759(f) also supports the position that a BZA is a separate legal entity from the municipality which created it, and that a BZA and a municipality may be adverse to each other.281 Meaning, a municipality may sue its own BZA if the municipality does not agree with the BZA's conclusions. Conversely, naming a municipality alone in a lawsuit—or providing just the municipality with service or notice—does not serve to also bring in the independent BZA.282 On that point, the Kansas Court of Appeals also stated in City of Olathe v. Board of Zoning Appeals283 (construing K.S.A. 12-715, the predecessor statute to K.S.A. 12-759):

K.S.A. 12-715 expressly provides that parties dissatisfied with a Board decision "may bring an action in the district court of the county in which such city is located to determine the reasonableness of any such order or determination." The only logical defendant in an action to determine the reasonableness of a Board decision is the Board. K.S.A. 12-715 expressly authorizes actions against a Board of Zoning Appeals.

The court also held that this Kansas statute "gives board of zoning appeals the capacity to be sued in actions to determine the reasonableness of board decisions."284

§7.3.2 STANDARD OF REVIEW.

The Kansas Court of Appeals set forth the standard of review of appeals from boards of zoning appeals in the case of M.S.W., Inc. v. Board of Zoning Appeals of Marion County285:

An appellate court's standard of review for factual findings in zoning appeals is to determine whether the zoning board acted fraudulently, arbitrarily, or capriciously; whether the board's administrative order is supported by substantial evidence; and whether the board's action was within its scope of authority.

The court in M.S.W. also listed the following rules which govern the scope of judicial review for appeals from a board of zoning appeals, which mirror the standards for judicial review of zoning decisions under K.S.A. 12-760:

(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.

(2) The district court's power is limited to determining (a) the lawfulness of the action taken, and (b) the reasonableness of such action.

(3) There is a presumption that the zoning authority acted reasonably.

(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.

(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.

(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.

(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.

(8) An appellate court must make the same review of the zoning authority's action as did the district court.286

The court in M.S.W. also rejected the landowner's claim that it was entitled to a de novo review, citing the holding in Golden v. City of Overland Park that a district court is not free to make findings or factual determinations independent of those found by the governing body but is limited to determining whether facts could reasonably have been found by the zoning body to justify its decision. 287

However, in Layle v. City of Mission Hills288, the Kansas Court of Appeals clarified that, notwithstanding the language in K.S.A. 12-759(f) regarding "reasonableness", that does not mean that a court reviews questions of law only as to reasonableness.289 Rather, a district court's review is de novo to the extent that a zoning board's decision interpreted a regulation or statute. The district court should "independently determine the meaning of controlling terms in applicable zoning regulations and then determine whether a board's decision was reasonable in light of that statutory construction."290 The Kansas Court of Appeals further held that the interpretation of a statute (or, presumably, ordinance) by an administrative agency is not binding upon a court, and that courts owe no deference to an agency's interpretation of its own regulations. 291

David E. Waters is a partner with the Spencer Fane LLP law firm in Overland Park, Kansas, and Kansas City, Missouri, specializing in municipal law, real estate, planning and zoning, commercial development, architecture and construction, business, health care, and education law, and the hospitality industry. You can reach him by phone at (913) 345-8100, or you can follow him @davidewaters on Twitter, where he regularly provides content on legal and development matters.

1 K.S.A. 12-747(c).

2 K.S.A. 12-747(b).

3 See 143rd St. Investors, L.L.C. v Bd. Of County Comm'rs of Johnson County, 292 Kan. 690, 707 (2011).

4 See §3.4.5, infra; Zimmerman v. Bd. of County Comm'rs of Wabaunsee County, 289 Kan. 926, 950, 954 218 P.3d 400, 416, 419 (2009).

5 272 U.S. 365, 47 S.Ct. 114 (1926).

6 K.S.A. 12-753(a).

7 Id.

8 K.S.A. 12-758(b); K.S.A. 19-2908; K.S.A. 19-2921.

9 See, e.g., K.S.A. 12-752(f), which provides that subdivision regulations shall allow building permits to be issued on platted lots divided into not more than two tracts without requiring replatting of the lot.

10 K.S.A. 12-751.

11 K.S.A. 12-750.

12 See §4, infra; Shephard v. City of Lawrence, No. 96,735,166 P.3d 1087, 2007 WL 2695831 (Kan.App. Sept. 14, 2007); Dowling Realty v. City of Shawnee, 32 Kan.App.2d 536 (Kan.App. 2004).

13 See McDonald v. Emporia-Lyon Cty. Joint Bd. Of Zoning Appeals, 10 Kan.App.2d 235, 697 P.2d 69 (1985).

14 K.S.A. 58-4601 et seq.

15 Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, Syl. ¶ 1, 69 P.3d 601 (2003).

16 Id. at 878-79 (citing Colonial Investment Co. v. City of Leawood, 7 Kan.App.2d 660, 646 P.2d 1149 (1982).

17 Id. at 884.

18 See 143rd St. Investors, L.L.C., 292 Kan. 690, 692, 259 P.3d 644, 647 (2011).

19 Golden v. City of Overland Park, 224 Kan. 591, 595, 584 P.2d 130 (1978) (citing Arkenberg v. City of Topeka, 197 Kan. 731, 73435, 421 P.2d 213)).

20 143rd St. Investors, L.L.C., 292 Kan. 690, 704, 259 P.3d 644, 653 (2011) (citing K.S.A. 2010 Supp. 19-2960).

21 K.S.A. 12-757(a).

22 See Zimmerman v. Bd. of County Comm'rs of Wabaunsee County, 289 Kan. 926, 946, 950 218 P.3d 400, 414, 416 (2009).

23 Id.

24 Id.

25 143rd St. Investors, L.L.C., 292 Kan. 690, 708, 259 P.3d 644, 656 (2011).

26 K.S.A. 3-307e.

27 143rd St. Investors, L.L.C., 292 Kan. 690, Syl. ¶ 5,708, 259 P.3d 644, 656 (2011)

28 Id.

29 Harris v. City of Wichita, Sedgwick County, Kansas, 862 F.Supp. 287, 290 (D. Kan. 1994).

30 See §3.4.2, infra.

31 Municipalities may attempt to avoid that process—and the risk of protest petition—by instead establishing another overlay district on top of an earlier one. The law in Kansas is not clear as to whether such a process is permissible.

32 2 Kan. App. 2d 102, 107 (1978).

33 246 Kan. 152 (1990).

34 228 Kan. 25 (1980).

35 K.S.A. 12-757(b).

36 Id.

37 Kan. Atty. Gen. Op. No. 2007-16.

38 See §3.4.2, infra.

39 Koppel v. City of Fairway, 189 Kan. 710, 371 P.3d 113 (1962).

40 K.S.A. 12-757(h).

41 Carson v. McDowell, 203 Kan. 40, 452 P.2d 828 (1969).

42 See §3.4.3, infra.

43 K.S.A. 12-757(c)(1).

44 K.S.A. 12-757(c)(2).

45 Houston v. Board of City Comm'rs City of Wichita, 218 Kan. 323, Syl. ¶ 3, 543 P.2d 1010 (1975).

46 Manhattan v. Ridgeview Building Company., 215 Kan. 606, 614, 527 P.2d 1009 (1974). See also Kansas Attorney General Opinion No. 2005-6 ("The only public hearing required by law in a rezoning matter is the hearing before the planning commission for which notice is given pursuant to K.S.A. 12-756(b) and which may be adjourned 'from time to time'").

47 Zimmerman v. Bd. of County Comm'rs of Wabaunsee County, 289 Kan. 926, 939, 218 P.3d 400, 410 (2009).

48 K.S.A. 12-757(d).

49 K.S.A. 12-757(b). 50 Id.

51 K.S.A. 21-3838. 52 See §4.6.5, infra.

53 See §3.4.2, infra.

54 Manly v. City of Shawnee, 287 Kan. 63, 78, 194 P.3d 1 (2008).

55 See §3.4.2, infra.

56 K.S.A. 12-3002. Though there is no general law prescribing the requirements for regular county resolutions.

57 Id.

58 K.S.A. 12-3003.

59 An interesting problem is presented under option (1) if the planning commission recommends disapproval, the governing body passes an ordinance upholding the recommendation, the mayor vetoes the ordinance, and the governing body fails to override the veto. The zoning application could not be considered approved, but would instead seem to be in a state of Limbo, perhaps rejected de facto.

60 Manhattan v. Ridgeview Building Company, 215 Kan. 606, 527 P.2d 1009 (1974).

61 K.S.A. 12-104.

62 See also K.S.A. 12-10a02 as to a "modified mayor-council" form of government, and Kan. Atty. Gen. Op. No. 92-41, opining that such a mayor is not a member of the governing body, citing the last sentence of that statute that "[t]he mayor may submit proposals for the consideration of the council, but may not vote on any matter before the council" .

63 K.S.A. 12-757(g).

64 K.S.A. 12-757a. See also §6.3.1, infra.

65 212 Kan. 381, 511 P.2d 244 (1973).

66 Id. at Syl. ¶ 1.

67 Id. at Syl. ¶ 2.

68 K.S.A. 12-757(d).

69 287 Kan. 63, 194 P.3d 1 (2008).

70 See also Kan. Atty. Gen. Op. No. 77-221 ("Upon receipt of a planning commission's second recommendation, 'the governing body may adopt or may revise or amend and adopt such recommendations…'. The revisory power which the governing body may exercise at this point appears to be unlimited, i.e., the revision may convert an adverse recommendation into one of approval for adoption by the city commission"); Kan. Atty. Gen. Op. No. 87-60.

71 See §3.4.2, infra.

72 No. 105,632, 268 P.3d 12, 2012 WL 309165 (Kan.App. Jan. 27, 2012).

73 Id. at *13.

74 Kan. Atty. Gen. Op. No. 80-142 (citing Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan.App.2d 276, 281 (1977); Smith v. State, 64 Kan. 730, 733 (1902); 63 A.L.R. 3d 1072).

75 Id. (citing Kan. Atty. Gen. Op. No. 78-143).

76 218 Kan. 447, 448-49, 543 P.2d 932 (1975).

77 See §4.1, infra.

78 No.100,794, 215 P.3d 648, 2009 WL 3018085 (Kan.App. Sept. 18, 2009).; Sechrest, LLC v. City of Andover, No. 118,052, 426 P.3d 537, 2018 WL 4655611 (Kan.App. Sept. 28, 2018).

79 K.S.A. 12-757(f). Certain municipalities may provide for other standards (e.g., unincorporated Johnson County, Kansas, where a valid protest petition forces a four-fifths (4/5) vote of the Board of County Commissioners).

80 Id. (referencing only "real property proposed to be rezoned," "specific property," and "specific property subject to the rezoning").

81 K.S.A. 12-755(a).

82 Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 887, 69 P.3d 601 (2003).

83 K.S.A. 12-757(g); K.S.A. 12-757a.

84 Id.

85 Id.

86 K.S.A. 12-757(c)(1).

87 K.S.A. 12-757(c)(2).

88 Kan. Atty. Gen. Op. No. 81-101.

89 Kan. Atty. Gen. Op. No. 78-184.

90 K.S.A. 58-3104.

91 K.S.A. 58-3102(g).

92 K.S.A. 58-3106(a).

93 See also K.S.A. 58-3127 ("Without limiting the rights of any apartment owner, actions may be brought by the manager or board of directors, in either case in the discretion of the board of directors, on behalf of two or more of the apartment owners, as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities of more than one apartment").

94 Kan. Atty. Gen. Op. No. 2003-18.

95 See Deffenbaugh Disposal Servs., Inc. v. City Kansas City, Kansas, 776 P.2d 835 (table) (Kan.App. 1989).

96 K.S.A. 25-3601(d).

97 K.S.A. 12-757(f)(1).

98 Kansas Attorney General Opinion No. 2005-6 (emphasis in original).

99 Manly v. City of Shawnee, 287 Kan. 63, 78, 194 P.3d 1 (2008).

100 K.S.A. 12-757(f). Certain municipalities may provide for other standards (e.g., unincorporated Johnson County, Kansas, where a valid protest petition forces a four-fifths (4/5) vote of the Board of County Commissioners).

101 Supra, §3.4.1.1 through §3.4.1.4.

102 See, e.g., Herrington v. County of Peoria, 11, Ill.App.3d 7, 295 N.E.2d 729 (1973).

103 See 3 Rathkopf's The Law of Zoning and Planning § 43:20 (4th ed.); Schwarz v. City of Glendale, 190 Ariz. 508, 511, 950 P.2d 167 (1997) ("The majority of state courts that have considered similar factual situations have concluded that self-created buffer zones prevent the application of supermajority voting statutes").

104 Kan. Atty. Gen. Op. No. 2007-16.

105 Id.

106 But see §4.1, supra.

107 See, e.g., Duggan v. City of Emporia, 84 Kan. 429, 114 P. 235 (1911); Shepherd v. City of Kansas City, 81 Kan. 369, 105 P. 531 (1909).

108 See §4.1, infra.

109 K.S.A. 12-3013(e)(1).

110 289 Kan. 391, 212 P.3d 184 (2009).

111 Id. at 417 (citing City of Wichita v. Fitzgerald, 22 Kan.App.2d 428, 434, 916 P.2d 1031 (1996)).

112 Id. at 418.

113 K.S.A. 75-2716(e)(3).

114 Kan. Atty. Gen. Op. No. 87-114.

115 K.A.R. 118-3-3.

116 K.S.A. 75-2724(b); K.S.A. 75-2725.

117 K.S.A. 12-757(d).

118 See Arkenberg v. City of Topeka, 197 Kan. 731, 735, 421 P.2d 213 (1966) (concurring in a trial court's view that "the intermediate return of the application for reconsideration of the new design did not constitute denial of the application but it remained in the process of consideration, and until the city commission either accepted or denied the application, there was no final action ….").

119 See §4.1, infra.

120 See 83 Am.Jur.2d, Zoning and Planning § 747 (2003).

121 McPherson Landfill, Inc. v. Board of County Comm'rs of Shawnee County, 274 Kan. 303, 306-07, 49 P.3d 522 (2002).

122 35 Kan. App. 2d 501, Syl. ¶¶ 3-4, 131 P.3d 1268 (2006).

123 No. 105,632, 268 P.3d 12, 2012 WL 309165 (Kan.App. Jan. 27, 2012) (dissenting opinion).

124 Id. See also §3.4.5, supra.

125 Taco Bell v. City of Mission, 234 Kan. 879, 678 P.2d 133 (1984).

126 McPherson Landfill, Inc. v. Board of County Comm'rs of Shawnee County, 274 Kan. 303, 49 P.3d 522 (2002).

127 Id. at Syl. ¶ 2.

128 241 Kan. 365, 370, 736 P.2d 923 (1987).

129 See also Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 723-24 (10th Cir. 1989) (holding that in land use proceedings, "parties are simply not entitled to 'anything like a judicial hearing' with all of its adversarial trappings" (internal citations omitted)).

130 212 Kan. 381, 389, 511 P.2d 244 (1973).

131 McPherson Landfill, Inc. v. Board of County Comm'rs of Shawnee County, 274 Kan. 303, 49 P.3d 522 (2002).

132 Id. See also Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111 (10th Cir. 1991); Shephard v. City of Lawrence, No. 96,375, 166 P.3d 1087, 2007 WL 2695831 (Kan.App. Sept. 14, 2007).

133 32 Kan.App.2d 1168, 95 P.3d 1012 (2004).

134 Id at 1179.

135 K.S.A. 75-4317 et seq.

136 Kan. Atty. Gen. Op. No. 78-13; Kan. Atty. Gen. Op. No. 84-50.

137 K.S.A. 3-307e.

138 Davis v. City of Leavenworth, 243 Kan. 522, 759 P.2d 113 (1988).

139 The Davis case, 243 Kan. 522, 759 P.2d 113 (1988), considered the since-repealed K.S.A. 12-712, which required that an appeal be commenced "within thirty days after the making of a decision on a zoning ordinance[,]" instead of after a "final decision," as K.S.A. 12-760 now states. Accordingly, the court in Davis focused on the requirements of ordinances themselves, including publication.

140 See §3.4.1.4, supra.

141 218 Kan. 447, 448-49, 543 P.2d 932 (1975).

142 No. 118,052, 426 P.3d 537, 2018 WL 4655611 (Kan.App. Sept. 28, 2018).

143 Id. at *6. See also Geelen v. Dickinson Cty. Bd. of Zoning Appeals, No.100,794, 215 P.3d 648, 2009 WL 3018085 (Kan.App. Sept. 18, 2009).

144 Tri-County Concerned Citizens, Inc. v. Board of County Commissioners of Harper County, 32 Kan.App.2d 1168, 95 P.3d 1012 (2004) (citing Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P.2d 35 (1962)).

145 Id. at 1174.

146 See, e.g., K.S.A.60-2101(d); St. John v. City of Salina, 9 Kan.App.2d 636, 684 P.2d 464 (Kan.App. 1984). But see §3.4.3, supra; §5, infra.

147 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Health Care & Ret. Corp. of Am. Heartland Home Care, Inc., 324 F.Supp.2d 1202 (D.Kan. 2004).

148 See, e.g., Rodrock Enterprises, L.P. v. City of Olathe, 28 Kan. App. 2d 860, 21 P.3d 598 (2001); Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980); Golden v. City of Overland Park, 224 Kan. 591, 596 (1978).

149 See K.S.A. 12-757(a): "Any such [zoning] amendment, if in accordance with the land use plan or the land use element of a comprehensive plan, shall be presumed to be reasonable."

150 City of Douglass, Butler County v. Tri-Co Fertilizer, Inc., 214 Kan. 154, 519 P.2d 724 (1974) (citing Grigsby v. Mitchum, 191 Kan. 293, 302, 380 P.2d 363)).

151 181 Kan. 1008, 1014, 317 P.2d 798 (1957).

152 Sechrest, LLC v. City of Andover, 118,052, 426 P.3d 537, 2018 WL 4655611 (Kan.App. Sept. 28, 2018).

153 Landau v. City of Overland Park, 244 Kan. 257, 271, 767 P.2d 1290 (1989).

154 Id. at 274; Sechrest, LLC v. City of Andover, No. 118,052, 426 P.3d 537, 2018 WL 4655611 at *5 (Kan.App. Sept. 28, 2018).

155 54 Kan.App.2d 591, 401 P.3d 1052 (2017).

156 Id. at Syl. ¶ 3.

157 Id. at Syl. ¶ 4.

158 143rd St. Investors, L.L.C., 292 Kan. 690, 713, 259 P.3d 644, 658 (2011).

159 Zimmerman, 289 Kan. 926, 946, 218 P.3d 400, 414 (2009) (citing Union Quarries, Inc. v. Board of County Commissioners, 106 Kan. 268, 273 478 P.2d 181 (1970).

160 Zimmerman, 289 Kan. 926, 946-950, 218 P.3d 400, 414-416 (2009).

161 143rd St. Investors, L.L.C., 292 Kan. 690, 715, 259 P.3d 644, 659 (2011).

162 Id.

163 143rd St. Investors, L.L.C., 292 Kan. 690, 713, 259 P.3d 644, 658 (2011).

164 Zimmerman, 289 Kan. 926, 948, 218 P.3d 400, 415 (2009); 143rd St. Investors, L.L.C., 292 Kan. 690, 713, 259 P.3d 644, 658 (2011).

165 143rd St. Investors, L.L.C., 292 Kan. 690, 715, 259 P.3d 644, 650 (2011).

166 Zimmerman, 289 Kan. 926, 951, 218 P.3d 400, 417 (2009).

167 Board of County Comm'rs of Johnson County v. City of Olathe, 263 Kan. Syl. ¶ 6, 952 P.2d 1302 (1998) (citing Davis v. City of Leavenworth, 247 Kan. 486, 802 P.2d 494 (1990)).

168 Id.

169 Evans v. City of Emporia, 44 Kan.App.2d 1066, Syl. ¶ 6, 243 P.3d 374 (2010). But see Sechrest, LLC v. City of Andover, No. 118,052, 426 P.3d 537, 2018 WL 4655611 at *12 (Kan.App. Sept. 28, 2018). ("Because courts must review these quasi-judicial actions for reasonableness, when denying or granting a specific zoning change a council or commission 'should enter a written order, summarizing the evidence before it and stating the factors which it considered in arriving at its determination'") (internal citations omitted).

170 K-S Center Co. v. Kansas City, 238 Kan. 482, 497, 712 P.2d 1186 (1986).

171 See §3.4.7, supra.

172 83 Am.Jur.2d, Zoning and Planning § 110.

173 Coughlin v. City of Topeka, 206 Kan. 552,, 557, 480 P.2d 91 (1971).

174 See §6.3, infra.

175 Weeks v. City of Bonner Springs, 213 Kan. 622, Syl. ¶ 3, 518 P.2d 427 (1974).

176 272 U.S. 365, 47 S.Ct. 114 (1926). See also Spurgeon v. Board of Comm'rs of Shawnee County, 181 Kan. 1008, 1015, 317 P.2d 798 (1957).

177 St. John v. City of Salina, 9 Kan.App.2d 636, 684 P.2d 464 (1984) (interpreting K.S.A. 12-712, the predecessor to K.S.A. 12-760).

178 M.S.W., Inc. v. Board of Zoning Appeals of Marion County, 29 Kan.App.2d 139, 24 P.3d 175 (2001). See also Goodwin v. City of Kansas City, 244 Kan. 28, 766 P.2d 177 (1988). It has been held that "a property interest protected by the due process clause results from a legitimate claim of entitlement created and defined 'by existing rules or understandings that stem from an independent source such as state law.'" Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991).

179 83 Am.Jur.2d, Zoning and Planning § 572.

180 218 Kan. 323, Syl. ¶ 5, 543 P.2d 1010 (1975).

181 Colonial Investment Co., Inc. v. City of Leawood, 7 Kan.App.2d 660, Syl. ¶ 2, 646 P.2d 1149 (1982).

182 Id. at 667 (citing Ware v. City of Wichita, 113 Kan. 153, 214 P. 99 (1923)).

183 K.S.A. 12-764(a).

184 K.S.A. 12-764(b)(1).

185 K.S.A. 12-764(b)(2).

186 K.S.A. 12-764(a)(3); K.S.A. 12-764(b)(3).

187 See §6, infra.

188 See §7.3, infra.

189 See, e.g., Belfer v. Building Commissioner of Boston, 294 N.E.2nd 857, 363 Mass. 439 (1973); National Waste Managers, Inc. v. Anne Arundel County, 763 A.2d 264 (Ct. Special Appeals Md. 2000); Fromer v. Two Hundred Post Associates, 631 A.2d 347 (Conn.App. 1993). But see Cobbossee Development Group v. Town of Winthrop, 585 A.2d 190 (Me. 1991).

190 212 Kan. 415, 424, 510 P.2d 1281 (1973) (citing Skaggs v. City of Pratt, 183 Kan. 424, 429, 327 P.2d 1083).

191 Colonial Investment Co., Inc. v. City of Leawood, 7 Kan.App.2d 660, 663, 646 P.2d 1149 (1982).

192 Goodwin v. City of Kansas City, 244 Kan. 28. 33-34, 766 P.2d 177 (1988).

193 See, e.g., Colonial Investment Co., Inc. v. City of Leawood, 7 Kan.App.2d 660, 664, 646 P.2d 1149 (1982).

194 Kan. Atty. Gen. Op. No. 91-61.

195 K.S.A. 60-2019(i); see §5.2.2, infra.

196 Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency, 55 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).

197 Zimmerman v. Bd. Of County Commr's of Wabaunsee County, 293 Kan. 332 (2011).

198 Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).

199 Koontz v. St. Johns River Water Management District, 570 U.S. 595, 133 S.Ct. 2586, 2595 (2013) (internal citations omitted).

200 Id.

201 U.S. Const. amend. XIV, §1.

202 Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111, 1118 (10th Cir. 1991).

203 528 U.S. 562 (2000).

204 Id at 564.

205 See Mojo Built, LLC v. City of Prairie Village, Kansas, 2022 WL 288139 (10th Cir. 2022) (Not Reported in Fed. Rptr.).

206 See, e.g., K.S. Center Co. v. City of Kansas City, 238 Kan. 482, 712 P.2d 1186 (1986). But see Manly v. City of Shawnee, 287 Kan. 63, 74-75, 194 P.3d 1 (2008) (declining to consider the lawfulness or efficacy of a revote on grounds of mootness).

207 See, e.g., K.S.A.60-2101(d); St. John v. City of Salina, 9 Kan.App.2d 636, 684 P.2d 464 (Kan.App. 1984).

208 See also §4.6.3, supra, regarding moratorium ordinances being challenged as "takings" of private property.

209 42 U.S.C. § 2000cc(a)(1).

210 Rocky Mountain Christian Church v. Board of County Comm'rs of Boulder County, Colorado, 613 F.3d 1229, 1236 (10th Cir. 2010) (citing 42 U.S.C. § 2000cc(b)(1)).

211 42 U.S.C. § 2000cc(b)(2).

212 Rocky Mountain Christian Church, 613 F.3d at 1238 (citing 42 U.S.C. § 2000cc(b)(3)).

213 Murphy v. Zoning Comm'n of Town of New Milford 148 F.Supp.2d 173, 181 A.L.R. Fed 791 (D. Conn. 2001).

214 42 U.S.C. § 2000cc-2(a).

215 Smith v. Allen, C.A.11 (Ala.) 2007, 502 F.3d 1255, rehearing and rehearing en banc denied 277 Fed.Appx. 979, 2008 WL 2000446.

216 See Roman Catholic Archdiocese of Kansas City in Kansas v. City of Mission Woods, 337 F.Supp.3d 1122 (D. Kan. 2018).

217 Id. at 1136-37.

218 47 U.S.C. § 332(c)(7).

219 47 U.S.C. § 332(c)(7)(B)(v).

220 Id.

221 Id.

222 In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001. See also City of Arlington v. FCC, 569 U.S. 290, 133 S.Ct. 1863 (2013).

223 47 U.S.C. § 1455(a); 47 C.F.R. § 1.40001.

224 47 C.F.R. Parts 1 and 17. See final rule, Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 80 FR 28203 (May 18, 2015), https://www.federalregister.gov/documents/2015/05/18/2015-11810/acceleration-of-broadband-deployment-by-improvingwireless-facilities-siting-policies.

225 Fed. Commc'n Comm., In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (released Sept. 27, 2018), https://docs.fcc.gov/public/attachments/FCC-18-133A1.pdf.

226 K.S.A. 66-2019(j).

227 Id.

228 See §3.4.5, supra; Zimmerman v. Bd. of County Comm'rs, 289 Kan. 926 (2009); R.H. Gump Revocable Trust v. City of Wichita, 35 Kan.App.2d 501 (2006).

229 35 Kan.App.2d 501 (2006).

230 K.S.A. 66-2019(f)(10)

231 Fed. Commc'n Comm., In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (released Sept. 27, 2018), https://docs.fcc.gov/public/attachments/FCC-18-133A1.pdf.

232 Zimmerman, 289 Kan. 926, 966, 218 P.3d 400, 425 (2009).

233 Id.

234 Id. at 967.

235 Id. at 968 (citing K.S.A. 12-701 et seq.).

236 Id. at 969.

237 Id. at 970.

238 Id.

239 Id.

240 42 U.S.C. §§ 3601-19.

241 Joint Statement of the Dept. of Housing and Urban Dev. & the Dept, of Justice, State and Local Land Use Laws and Practices and the Application of the Fair Housing Act (November 10, 2016), https://www.justice.gov/opa/file/912366/download.

242 K.S.A. 12-736(a).

243 K.S.A. 12-736(e).

244 K.S.A. 12-736(b)(1).

245 K.S.A. 12-736(b)(3).

246 248 F.3d 1267 (2001). 247 Id. at 1276. 248 Id. at 1277. 249 Spurgeon v. Board of Comm'rs of Shawnee County, 181 Kan. 1008, Syl. ¶ 2, 317 P.2d 798 (1957).

250 See Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 882, 69 P.3d (2003).

251 See, e.g., Validity of provisions for amortization of nonconforming uses, 8 A.L.R.5th 391 (originally published in 1992).

252 Id.

253 See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986).

254 Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440 (1976); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728 (2002).

255 See §7.2, infra.

256 Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 887, 69 P.3d 601 (2003).

257 See §3.4.5, supra.

258 McPherson Landfill, Inc. v. Board of County Comm'rs of Shawnee County, 274 Kan. 303, 323, 49 P.3d 522 (2002).

259 City of El Dorado v. Hicks, No. 91,936, 122 P.3d 420, 2005 WL 3030276 (Kan.App. Nov. 10, 2005).

260 4 Am. Law. Zoning § 40:5 (5th ed.).

261 122 P.3d 420, 2005 WL 3030276 (Kan.App. Nov. 10, 2005).

262 Id. at 2005 WL 3030276 *3.

263 See §7.3, infra.

264 Hacker v. Sedgwick County, 48 Kan.App.2d 164, 174, 286 P.3d 222 (2012).

265 Terence E. Leibold and Matthew S. Gough, Land Use, Kansas Real Estate Practice and Procedure Handbook (Lewis A. Heaven, Jr. and Mark A. Andersen, eds., Kansas Bar Association 2009).

266 Hacker v. Sedgwick County, 48 Kan.App.2d 164, 174, 286 P.3d 222 (2012).

267 K.S.A. 12-759(e)(1)(A).

268 City of Merriam v. Board of Zoning Appeals of City of Merriam, 242 Kan. 532, 539, 748 P.2d 883 (1988).

269 K.S.A. 12-759(e)(1)(B).

270 K.S.A. 12-759(e)(1)(C).

271 City of Merriam v. Board of Zoning Appeals of City of Merriam, 242 Kan. 532, 540, 748 P.2d 883 (1988) (emphasis in original).

272 Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 751, 534 P.2d 1267 (1975).

273 Id. at 750-51.

274 Hacker v. Sedgwick County, 48 Kan.App.2d 164, 177, 286 P.3d 222 (2012).

275 Id. at Syl. ¶ 8.

276 K.S.A. 12-759(e)(1)(D).

277 K.S.A. 12-759(e)(1)(E).

278 3 Rathkopf's The Law of Zoning and Planning § 58:23 (4th ed.)

279 See §4.1, supra, regarding determination of a final decision.

280 Hacker v. Sedgwick County, 48 Kan.App.2d 164, Syl. ¶ 4, 286 P.3d 222 (2012). See §4.1, supra.

281 See also K.S.A. 12-759(d), permitting "any officer of the city, county or any governmental agency or body affected by any decision of the officer administering the provisions of the zoning ordinance or resolution" to make an appeal to the BZA.

282 See, e.g., City of Merriam v. Board of Zoning Appeals of the City of Merriam, 242 Kan. 532, 748 P.2d 883 (1988).

283 10 Kan.App.2d 218, 220-21, 696 P.2d 409 (1985).

284 Id. at Syl. ¶ 2.

285 29 Kan.App.2d 139, Syl. ¶ 12, 24 P.3d 175 (2001). See also Layle v. City of Mission Hills, 54 Kan.App.2d 591, 401 P.3d 1052 (2017).

286 Id. at 143-44 citing Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980).

287 Id. at 145. See also §3.4.7, supra.

288 54 Kan.App.2d 591, 401 P.3d 1052 (2017).

289 Id. at Syl. ¶ 2.

290 Id. at Syl. ¶ 3.

291 Id. at Syl. ¶ 4.

SUMMER 2022 eReport