Board of County Com'rs of Johnson County v. City of Olathe, 77638

• Decision Date: 23 January 1998
• Docket Number: No. 77638,77638
• Citation: 952 P.2d 1302,263 Kan. 667
• Parties: The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Appellee, v. The CITY OF OLATHE, Kansas, a Municipal Corporation, Appellant, and The Milton R. Brown, Maynard H. Brown, and Ruth H. Brown Trust, Intervenor-Appellant.
• Court: Kansas Supreme Court

Page 1302

952 P.2d 1302

263 Kan. 667

The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas, Appellee, v. The CITY OF OLATHE, Kansas, a Municipal Corporation, Appellant and The Milton R. Brown, Maynard H. Brown, and Ruth H. Brown Trust, Intervenor-Appellant.

No. 77638.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. 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.

2. There is a presumption that the zoning authority acted reasonably. The landowner has the burden of proving unreasonableness by a preponderance of the evidence. 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.

3. An administrative 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.

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

5. Formal findings and conclusions from a zoning authority are not mandatory.

6. A city's decision will not be found unreasonable merely because the Golden factors were not specifically enumerated or subjected to an issue-oriented analysis.

Thomas A. Glinstra, City Attorney, argued the cause, and Valerie G. Krueger, Assistant City Attorney, was with him on the brief, for appellant.

Michael P. Howe, of Lewis, Rice & Fingersh, L.C., Kansas City, MO, argued the cause, and Louis A. Cohn, of the same firm, was with him on the brief, for intervenor-appellant.

Richard J. Lind, Deputy County Counselor, argued the cause and was on the brief, for appellee.

ABBOTT, Justice:

This is a zoning appeal case. The trial court reversed the City of Olathe's decision to rezone the property in question from "AG" (agricultural) to "R-1" (single-family residential). This appeal followed.

The Milton R. Brown, Maynard H. Brown, and Ruth H. Brown Trust (Trust) owns approximately 94.31 acres of land on the southeast corner of 143rd Street and Pflumm Road located in the City of Olathe, Johnson County, Kansas. The land lies north of the Johnson County Executive Airport. If one pictures the half section of land a half mile east and west and 1 mile north and south, the trust property lies in the west half of the northwest quarter and in the northwest quarter of the southwest quarter. The land is adjacent to a strip 500 feet wide that runs to the north line of the northwest quarter. That 500-foot wide corridor is referred to as the critical flight corridor. The Johnson County Executive Airport owns or controls substantially all of the property described above which lies south of the Trust property. All of this property is zoned for agricultural use.

Andrew J. Schlagel, agent for the Trust, filed an application for rezoning with the City of Olathe (City). The application requested that zoning of the Trust property be changed from "AG" (agricultural) to "R-1" (single-family residential). A public hearing before the Olathe City Planning Commission (City Planning Commission) was set.

Prior to this hearing, the Trust submitted a concept plan to the City Planning Commission. The City planning staff sent a request for review of the proposed rezoning to the Johnson County planning staff, the Overland Park Department of Planning and Research, and the Johnson County Airport Commission (Airport Commission).

The Airport Commission responded in writing, detailing several objections concerning the Trust property's location in relation to the Johnson County Executive Airport. The Airport Commission listed the following concerns: (1) The property has a common boundary with airport property to the south; (2) the north threshold of the airport runway is 1,900 feet south of the southern boundary of the Trust property; (3) high-intensity strobe lights, i.e., airport approach lights, are positioned between the Trust property and the airport, starting at 1,100 feet from the southeast corner of the Trust property and running toward the centerline of the airport runway; (4) the Trust property lies under the aircraft traffic pattern for the airport, with the final direct approach for most aircraft being directly over the Trust property; (5) the Trust property lies within an area with a relatively high statistical probability of an aircraft accident, with the last major accident possibly occurring within the tree line along the eastern boundary of the Trust property; and (6) the southeastern portion of the Trust property lies within a relatively high noise area for the airport (60 Ldn), although below the FAA's "no residential" threshold (65 Ldn).

The Airport Commission summarized its concerns by indicating that the Executive Airport handles as many as 700 flights per day on a nice summer weekend and over 110,000 flights per year. The Airport Commission indicated that Johnson County had adopted special land use plans and regulations concerning development around the county's two airports, with these same plans and regulations proposed to be adopted by the City of Olathe. The Airport Commission urged denial of the rezoning request.

In a follow-up memorandum, written after the Airport Commission reviewed the City Planning staff's report, the Airport Commission indicated that while the apparent use of the property to the south of the Trust property is agricultural, the primary use of that airport-owned property is for the FAA-required runway protection zone, which is required to prevent uses of land that conflict with landings and take-offs at the airport. The Airport Commission also requested that if rezoning is approved, there should be plat and deed notations indicating that the developed property is adjacent to the Executive Airport, underlies the airport traffic pattern, and will be subject to a high frequency of low-flying aircraft.

The Johnson County Office of Planning (County Planning Office) also responded in writing. The County Planning Office noted that the area in question was within the Airport Interest Area of the Johnson County Executive Airport Comprehensive Compatibility Plan prepared by a study group that focused on land use and development compatibility considerations for areas near the county's two airports. The County Planning Office indicated that these plans and regulations had been proposed for adoption by each of the three cities nearest the airports, including the City of Olathe, and by the County. "The intention is joint adoption and administration of land use and development decisions in the airport area instead of unilateral planning and zoning control of a 1-mile wide area around the airports." Further, the County Planning Office indicated that

"[t]he City of Olathe has 'approved' the airport area plans but the approval action has not been published, so the adoption process is incomplete. It is our understanding that publication of the airport area plan approval is being withheld until the city has also approved the airport area zoning and subdivision regulations."

According to the County Planning Commission, the County-adopted plans proposed the following for the site on which the Trust property is located:

" Residential uses on lots not smaller than 2 acres.

" The east edge of the site (about 80 feet wide) would be in the Primary Flight Corridor for the north end of the Executive Airport runway and would be subject to the special land use controls for the flight corridor areas.

" A triangular-shaped area of about 8.5 acres at the southeast corner of this 91 acres is within the 60 Ldn sound level contour of the airport. It would be an area where special noise attenuation construction measures would be required to help reduce noise levels....

" Affidavits of Interest would need to be filed if the plan and regulations had been adopted by the City of Olathe."

The County Planning Commission urged consideration of the Johnson County Executive Airport Comprehensive Compatibility Plan during the review of the Trust's rezoning request.

Finally, the City of Overland Park responded with some suggestions concerning street and cul-de-sac locations and setbacks, indicating a need for a street connection between the proposed project and any residential development on the tract to the east, if there were to be such in the future.

The City Planning Staff report included discussions on the Trust property's physical characteristics, the surrounding land use/zoning, the character of the area, the City's "Comprehensive Plan," the Johnson County Executive Airport concerns, the Johnson County and City of Overland Park planning staff comments, the compatibility of the proposed rezoning with the Draft Comprehensive Compatibility Plan for the Executive Airport, sewer and water availability, streets and right-of-way needs and conditions, and the submitted sketch plan. The City Planning Staff recommended denial of the requested rezoning, citing the following:

"(1) The density allowed under the requested R-1 zoning would exceed the rural residential designation of the Comprehensive Plan.

"(2) The requested R-1 zoning would not be compatible with the developed and developing rural residential character of this section of land.

"(3) Although this property has been vacant for several years, there has not been any attempt to develop it with rural residential lots.

"(4) The low-density residential development (shown 3.0 units per acre--allowed 4.5 units per acre) is inconsistent...