143rd St. Investors v. the Bd. of County Commissioners of Johnson County, 102,350.

• Decision Date: 05 August 2011
• Docket Number: No. 102,350.,102,350.
• Citation: 292 Kan. 690,259 P.3d 644
• Parties: 143RD STREET INVESTORS, L.L.C., et al., Appellees,v.The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Appellant,andThe City of Olathe, Kansas, A Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

292 Kan. 690

259 P.3d 644

143RD STREET INVESTORS, L.L.C., et al., Appellees,

v.The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Appellant,andThe City of Olathe, Kansas, A Municipal Corporation, Appellee.

No. 102,350.

Supreme Court of Kansas.

Aug. 5, 2011.

Syllabus by the Court

1. K.S.A. 3–307e, which provides that any changes in existing city zoning that are

approved by a city must also have the approval of the county if the property is located within 1 mile of certain airports, does not relegate the county to the role of reviewing the city's action. Rather, K.S.A. 3–307e clearly indicates that the county is a vital authority in the rezoning decision-making process and is entitled to make its own independent, discretionary determination to approve or disapprove any proposed rezoning.

2. K.S.A. 3–307e and K.S.A. 2010 Supp. 19–2960 define the procedure to be followed when a county considers a rezoning application related to city-zoned property located within 1 mile of certain airports.

3. Zoning authorities should consider the nonexclusive factors established in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), other relevant factors, and the zoning authority's own comprehensive plan when acting on an application for rezoning.

4. When a court reviews a legislative or quasi-judicial decision of a zoning authority, the term “trial de novo” must be interpreted and applied in light of the doctrine of separation of powers. The standard of review summarized in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), is consistent with this doctrine and governs a district court's and an appellate court's review under K.S.A. 3–709.

5. Under K.S.A. 3–307e, both the decision of a city and the decision of a county regarding a request to rezone property located within 1 mile of certain airports are entitled to a presumption of reasonableness. A landowner challenging a rezoning decision bears the burden to establish by a preponderance of the evidence that a challenged decision is not reasonable.

Richard J. Lind, deputy county counselor, argued the cause and was on the briefs for appellant Board of County Commissioners of Johnson County.Thomas A. Glinstra, city attorney, argued the cause, and Michael J. Price, assistant city attorney, was with him on the brief for appellee City of Olathe.Rod L. Richardson, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and James L. (Jay) MowBray, of the same firm, was with him on the brief for appellee 143rd Street Investors, L.L.C., now Pflumm 143, Inc.

The opinion of the court was delivered by LUCKERT, J.:

This appeal raises issues regarding the interpretation and application of K.S.A. 3–307e, a statute relating to the rezoning of property within 1 mile of the Johnson County Executive Airport (Airport). Under this unique statutory scheme, a proposed rezoning must have the approval of the city and the county in which the property is located. In this case, the City of Olathe (City) approved the proposed rezoning, but Johnson County (County) did not. On judicial review of the County's decision to disapprove the proposed rezoning, the district court found the County's authority was limited to conducting a quasi-judicial review of the City's approval. Applying general principles related to quasi-judicial review of zoning decisions, the district court held the County had to approve the proposed rezoning unless the County could establish the City's decision was unreasonable. Concluding the County did not satisfy its burden, the district court upheld the City's decision to approve the rezoning.

The County appeals, arguing, among other things, that the district court erroneously interpreted K.S.A. 3–307e to mean that the County had to approve the proposed rezoning unless the County could show that the City's decision was unreasonable. We agree with the County's argument and conclude the district court's ruling was erroneous because K.S.A. 3–307e allows the County to reach an independent determination that a court must presume to be reasonable. As a result of that presumption, to successfully challenge the County's action under K.S.A. 3–307e, a landowner must prove by a preponderance of the evidence that the County's action was unlawful or unreasonable. Because these rules were not applied by the district court in this case, we reverse and remand for further proceedings.

Facts and Procedural Background

This action was filed by landowners who, during the litigation, filed a Motion to Substitute Party Plaintiff pursuant to K.S.A. 2010 Supp. 60–225(c). Through a series of assignments and purchases, the ownership of the subject property has changed hands a number of times. For simplicity, the plaintiffs in this action will be referred to as the “landowners.” These landowners own approximately 95 acres of land on the southeast corner of 143rd Street and Pflumm Road, located in the City and County. A portion of the property lies within the Airport's “primary flight corridor subarea A,” which is a 500–foot–wide corridor centered along the extended centerline of the existing runway. Most of the property is located adjacent to this corridor and is not on the direct path of landings or takeoffs.

For several decades, this property has been zoned agricultural. Seeking to change this zoning, the landowners filed an application with the City to classify the property as “RP–1” (planned single-family residential) and to approve a “preliminary plat for a subdivision with 230 lots and 16 tracts to be known as Amber Ridge.” The Amber Ridge development would have an overall density of approximately 2.4 dwellings per acre.

The Olathe City Planning Commission (City Planning Commission) conducted public hearings and fully reviewed the rezoning application. As part of this process, the Olathe City Planning Staff (City Planning Staff) received a letter in which the Johnson County Department of Planning, Development, and Codes (County Planning Department) objected to the proposed rezoning because the Amber Ridge development plan included “a density that is significantly more than supported by the recently adopted” Johnson County Executive Airport Comprehensive Compatibility Plan (Airport Compatibility Plan). The Airport Compatibility Plan, which had been adopted by the County but not the City, allowed a housing density of one dwelling unit per acre on the subject property.

Ultimately, the City Planning Staff recommended the City Planning Commission approve the proposed rezoning because it was consistent with the goals, objectives, and policies of the City's comprehensive plan, which identified the future land use of the subject property as residential in nature, and it met the requirements of the City's “Unified Development Ordinance.” The failure to comply with the Airport Compatibility Plan was not a detriment to the City's approval, according to the City Planning Staff, because the City had not adopted the Airport Compatibility Plan and was not required to do so. The City Planning Staff's recommendation suggested several stipulations, however. These included requirements that the construction incorporate soundproofing materials and that there be plat and deed notations indicating that the property is adjacent to the Airport and “will be subject to high frequency of over flights by aircraft at low altitudes.” Upon receipt of this information, the City Planning Commission voted to deny the rezoning request.

The rezoning application was next considered by the Olathe City Council (City Council). The City Council heard a presentation from the Assistant City Planner and comments from nine concerned citizens (regarding safety, noise, aircraft and vehicle traffic, storm water run-off, and schools), the landowners' engineer, and the landowners' planning consultant. The City Council learned that the City Planning Staff was still in favor of the rezoning and that the development fit within the City's comprehensive plan. The City Council then unanimously approved the rezoning (Ordinance No. 05–38), as well as the associated preliminary development plan and preliminary plat for Amber Ridge. The approved ordinance had several stipulations, including the soundproofing and plat notations suggested by the City Planning Staff.

A copy of the landowners' rezoning application, the plat, and the record developed during the City's consideration of the application were then forwarded to the County. With this step, the procedure deviated from the process that had been followed when previous landowners of the same property had attempted a similar rezoning, which the City approved. That earlier attempt, like this one, led to litigation.

Earlier Litigation

In the earlier litigation, Board of Johnson County Comm'rs v. City of Olathe, 263 Kan. 667, 952 P.2d 1302 (1998), the Johnson County Board of Commissioners (County Commissioners) filed suit, alleging, among other things, that the rezoning was unlawful because the County had not been asked to approve the proposed rezoning and, therefore, the requirements of K.S.A. 3–307e had not been met. In addition, the County argued the City's decision to approve the rezoning was arbitrary, capricious, and unreasonable because rezoning to allow the planned development of three dwellings per acre would permit a population density that was incompatible with the neighboring airport. Board of Johnson County Comm'rs, 263 Kan. at 672–74, 952 P.2d 1302.

The district court, in the earlier litigation, focused on the arguments regarding whether the City's decision was reasonable and did not address the issue of whether the ordinance was lawful. The district court found, in part, that “ ‘[d]ue to the proximity of the subject real property to the existing airport, and the dangers associated with potential aircraft crashes, the subject property is not suitable for high density...