Koppel v. City of Fairway

• Decision Date: 05 May 1962
• Docket Number: No. 42758,42758
• Citation: 189 Kan. 710,371 P.2d 113
• Parties: David KOPPEL, T. R. Heath and Eugene F. Engel, Appellees, v. CITY OF FAIRWAY, Johnson County, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 113

371 P.2d 113

189 Kan. 710

David KOPPEL, T. R. Heath and Eugene F. Engel, Appellees, v. CITY OF FAIRWAY, Johnson County, Kansas, Appellant.

No. 42758.

Supreme Court of Kansas.

May 5, 1962.

Rehearing Denied June 13, 1962.

Syllabus by the Court

1. Where an area embracing two cities was built up to such extent that dividing line between them was not noticeable, the city which sought to change a tract that bordered on the other city from residential zone to retail business district classification under the provisions of G.S.1949, 12-708, owed a duty to hear any resident of the adjoining city whose property fronted on such tract and who might be adversely affected by the proposed zoning change, and to give as much consideration to their rights as it would give to those of its own residents.

2. Under the provisions of G.S.1949, 12-712, owners of property fronting on a tract sought to be changed by amendment to zoning ordinance from residential zone to retail business district classification had sufficient interest to bring action challenging such amendment.

Paul E. Wilson, Lawrence, argued the cause, and John R. Keach, Mission, was with him on the brief, for appellant.

H. Thomas Payne, Olathe, argued the cause, and Howard E. Payne, W. C. Jones and Robert P. Anderson, Olathe, were with him on the brief, for appellees.

WERTZ, Justice.

This action was brought by David Koppel, a resident and property owner of the city of Fairway, and T. R. Heath and Eugene F. Engel, property owners and residents of the adjoining city of Roeland Park, to determine the validity of an ordinance passed by the City of Fairway under which a tract of land was rezoned from residential to retail business district classification.

The allegations of the petition and the agreed facts pertaining thereto are substantially as follows:

The J. C. Nichols Company is the owner of a triangular, twenty-three-acre tract lying in the northwest corner of the city of Fairway. The tract is bounded on the north by Fifty-fifth street, which is likewise the boundary between the cities of Fairway and Roeland Park, on the southeast by U. S. Highway 50 and on the west by the city of Roeland Park. This tract is presently zoned for residential purposes. The area surrounding the tract is all residential property and zoned for that purpose. Proceedings were initiated to amend the zoning ordinance to permit the use of the tract, excepting a strip 100 feet in width on the southeast boundary, for commercial purposes. Notice was published under G.S.1949, 12-708. Protests were filed by more than twenty percent of the owners of frontage across the street north of the tract and the owners of the abutting lots on the west, all in Roeland Park. The protests on the southeast, filed by residents of Fairway, were less than twenty percent of the owners of the frontage.

Pursuant to the published notice a hearing was had on the proposed change. Protesters appeared and were heard. The governing body of the city of Fairway ignored the protests of the property owners located on the north and west in the city of Roeland Park, and the ordinance rezoning the tract for commercial purposes was enacted by the council by a five to three vote, which was less than a four-fifths vote. Plaintiffs then filed this action to determine the reasonableness of the ordinance under the provisions of G.S.1949, 12-712. From an order overruling defendant city's demurrer to the plaintiffs' petition, the city appeals.

The determinative question is the effectiveness of the protests filed by the owners of property located outside the city of Fairway. If the protests were effective, then the amendment was not legally enacted and the other questions are premature. Conversely, if the protests should be ignored because of the location of the protesters' property, then the ordinance, having been passed by a clear majority of the governing body in the exercise of the power specifically conferred, is entitled to the benefit of the presumption of validity. In substance, the city's contention is that inasmuch as the protesters of more than twenty percent of the property fronting across the street to the north and west of the tract proposed to be rezoned are outside the city of Fairway the limitations of section 12-708 do not apply and that the majority vote of the council is sufficient to enact the amending ordinance.

To answer the question presented requires a review of our statutes. The power and authority to enact and amend zoning ordinances is conferred on cities by G.S.1949, Ch. 12, Art. 7. Section 12-707 provides in part that the governing body of any city is authorized by ordinance to divide such city into zones or districts and to regulate and restrict the location of trades and industries. Section 12-708 imposes certain limitations on the conferred power and sets out the conditions to be observed in the enactment and amendment process. The section, in pertinent part, provides:

'If, however, a protest against such amendment, supplement, or change be presented, duly signed and acknowledged by the owners of twenty percent or more of any frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately in the rear thereof, or by the owners of twenty percent of the frontage directly opposite a frontage proposed to be altered, such amendment shall not be passed except by at least four-fifths vote of the council or board of commissioners.'

Municipalities are politically subordinate subdivisions of the state government and legislatures in conferring powers on them may impose limitations on these powers. (2 McQuillin, Municipal Corporations, 3 Ed., § 4.04.) Provision is generally made for protests to zoning changes by affected property owners or a certain percentage of them. This provision has been described as a limitation on the general powers of the municipal legislative body and required to be strictly enforced. (8 McQuillin, Municipal Corporations, 3 Ed.Rev., § 25.248.) Zoning ordinances, being in derogation of the right of private property, should be liberally construed in the property owner's favor, and where exceptions appear they are liberally construed in favor of the property owner. (8 McQuillin, Municipal Corporations, 3 Ed.Rev., § 25.72.) It may be requisite to an amendment of a zoning ordinance, particularly where a certain percentage of affected property owners protest, to require a unanimous vote of the zoning commission or the municipal legislative body approving the amendment. A requirement of this character has been ruled not an unlawful delegation of legislative power to property owners. (8 McQuillin, Municipal Corporations, 3 Ed.Rev., § 25.244.) A common provision, following that of the standard zoning act, is that if an ordinance constitutes an attempt to amend or change the regulations and district established by a previous ordinance, a protest may be filed by specified owners or a prescribed percentage of them, and, in this event, a unanimous, three-fourths or other required vote of the city council is necessary for the passage of the ordinance. A provision of this character is not invalid as an unlawful delegation of legislative authority to property owners.

A statute may provide a standard for measuring the percentage of protests against a zoning change, and if a statute provides a single standard for such a purpose, courts cannot create varying standards of measurements even to meet conditions not foreseen by the legislature. (8 McQuillin, Municipal Corporations, 3 Ed.Rev., § 25.248.)

Plaintiffs do not question the city's right to amend a zoning ordinance but contend that if such is done the city must strictly conform to the restrictions and limitations placed upon it by the enabling statute, and that in view of the protests filed by the plaintiffs the city is required under the statute to pass the ordinance by a four-fifths majority. The general rule is that the enactment of a zoning ordinance must strictly pursue the procedure provided by the statute enabling the city to zone. (8 McQuillin, Municipal Corporations, 3 Ed.Rev., § 25.58.)

The defendant city contends that under section 12-708 only those persons within the city of Fairway may protest the change in the zoning ordinance without regard to the effect of its zoning ordinances on adjoining frontage outside the municipality. Such is not the wording of our statute. Section 12-708 makes no requirement of residency or location of property other than that it be frontage property to that property proposed to be altered or changed. It clearly...