Opinion
No. 105,521.
2012-05-11
Donald STEBBINS, Ray Merrick, John Morse, and Roxanne Morse, Appellants, v. The CITY OF OVERLAND PARK, Kansas, Appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge. Donald Stebbins, Ray Merrick, John Morse, and Roxanne Morse, appellants pro se. Neil R. Shortlidge, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, and Michael R. Santos, city attorney, for appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge.
Donald Stebbins, Ray Merrick, John Morse, and Roxanne Morse, appellants pro se. Neil R. Shortlidge, of Stinson Morrison Hecker LLP, of Kansas City, Missouri, and Michael R. Santos, city attorney, for appellee.
Before LEBEN, P.J., MALONE and BRUNS, JJ.
MEMORANDUM OPINION
LEBEN, J.
Shortly after Overland Park annexed some new land into the city, the City Council approved a rezoning application for a mixed-use, commercial and residential development project. Several nearby properly owners challenged the rezoning in court, claiming that the rezoning was unreasonable.
But the reasonableness determination in zoning cases is made by elected officials, not by the courts. We review the officials' discretionary judgment only to make sure that it is within the range of reasonable actions that may be taken by an elected body, and we agree with the district court in finding that Overland Park's decision here is within that range.
The nearby property owners also allege that the city had violated their constitutional due-process rights by effectively amending the city's master development plan without following the required statutory procedures. But a constitutional due-process challenge may be brought in a case like this only where the party has a constitutionally protected property interest, and these nearby property owners did not have a protected property interest in the zoning category that the city applied to someone else's property.
Factual Background
The property at issue is an 80–acre tract at the corner of 159th Street and Metcalf Avenue, an area annexed into Overland Park in 2007. About 2 months after the land's annexation, the law firm of Polsinelli, Shelton, Flannigan, & Suelthaus applied to rezone the tract from RUR–J (rural district) to other designations that would allow a mixed-use, commercial and residential development project. Under the rezoning application, different parts of the tract would be zoned for office buildings, garden apartments, apartments, and general business.
The City Planning Commission initially recommended denial of the application, but the City Council sent the matter back for further consideration based on changes made by the Polsinelli firm to the application. At the second hearing, the City Planning Commission recommended approval, and the City Council then approved the rezoning.
Several nearby property owners—Donald Stebbins, Ray Merrick, John Morse, and Roxanne Morse—filed a lawsuit to challenge the rezoning. The plaintiffs' petition challenged the rezoning under K.S.A. 12–760, which enables an aggrieved party to bring a lawsuit “to determine the reasonableness” of a zoning decision. In filings with the district court, the plaintiffs also mentioned K.S.A. 12–747, a statute that provides procedures a city is to follow in making or revising its comprehensive zoning plan, which Overland Park refers to as its “master plan.”
Overland Park updates its master plan annually, but the annexation of this tract occurred too late in the master-plan revision process for Overland Park to have considered how this tract should be zoned. At the time of the annexation, Johnson County's master plan designated this tract as a transition area, which could include low-density residential uses once sewer lines became available. The Polsinelli firm's proposed use was not the sort of low-density use provided for in the county's master plan at the time of annexation.
Although the annexed tract was not part of Overland Park's annual update to its master plan, the city's professional planning staff provided input about appropriate uses for the 80 acres. The planning staff concluded that low-density residential use wasn't a viable option. Instead, the planning staff said that an acceptable land-use plan would include a neighborhood shopping center, with higher-density residential uses around the shopping center and lower-density residential use farther away. Those uses are generally consistent with the rezoning that was approved by the city.
The district court found that the city acted reasonably when it approved the rezoning. The court concluded that the area around the 80–acre tract had mixed and varied uses—not merely rural ones, as the plaintiffs had contended. The court also concluded that the proposed use would fit in with surrounding uses, that the land had been vacant for 14 years, that nearby properties would not be detrimentally affected by the rezoning, and that if the rezoning were denied, the hardship to the owner of the 80–acre tract would be greater than any gain to the public welfare. The district court also found that it was appropriate for the City Council to consider the city staff's recommendations, even though they were not yet reflected in the city's master plan.
The plaintiffs have appealed to this court.
Analysis
We begin with consideration of the reasonableness of the rezoning and the court's role in this determination. We live in a democracy in which many of the important decisions to be made that affect our lives are rightly made by our elected officials. The consideration by a city council of a rezoning request is deemed a quasi-judicial proceeding, in which the initial decision is to be made by elected officials, not judges. And the elected officials have a great deal of discretion in making this initial decision. In a given case, it might well be a reasonable decision either to grant or to deny the requested rezoning, and the decision would depend upon the elected body's preferences for its city's development. Thus, “[n]o court should substitute its judgment for the judgment of the elected governing body merely on the basis of a differing opinion as to what is a better policy in a specific zoning situation.” Landau v. City Council of Overland Park, 244 Kan. 257, 274, 767 P.2d 1290 (1989).
On appeal, we review the reasonableness of the rezoning independently, without any required deference to the district court. We presume that the city acted reasonably; the party challenging the rezoning has the burden to prove unreasonableness. Because we must defer to the city's judgment of reasonableness, we may not overturn its judgment unless clearly required to do so. See Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 944–45, 218 P.3d 400 (2009) ( Zimmerman I ).
Our Supreme Court has said that an action is unreasonable when it is so arbitrary that it appears to have been taken without regard to the benefit or harm involved to the community, including all interested parties, and is so wide of the mark that whether it is unreasonable cannot be fairly debated. We make this determination based upon the facts that were presented to the City Council. See 289 Kan. at 945.
It is also helpful to look at the factors that the City Council, as a zoning authority, is required to consider when rezoning is requested. Our Supreme Court has said that a city, county, or other zoning authority should consider what have become known in Kansas as the Golden factors, named after the case in which they were initially established, Golden v. City of Overland Park, 224 Kan. 591, 595–96, 584 P.2d 130 (1978). Those factors are: (1) the neighborhood's character, (2) the zoning and use for nearby properties; (3) the suitability of the property for the uses for which it is currently zoned; (4) the extent to which rezoning will detrimentally affect nearby properties; (5) the length of time the property has remained vacant under its present zoning; (6) the relative gain to public health, safety, and welfare from maintaining the present zoning, as compared to the hardship that would cause to the landowner; (7) the recommendations of the zoning authority's professional planning staff; and (8) whether the rezoning conforms to the zoning authority's master or comprehensive plan. Zimmerman I, 289. Kan. at 945–46. Here, the Overland Park City Council addressed those factors, as well as others specified in the city's zoning ordinance, in its written statement of findings.
The plaintiffs' primary reasonableness challenge is their claim that the city should not have relied upon its staff's opinion about reasonable uses for this property since the staff's suggestions weren't reflected in the formally adopted master plan. But a look at the last two Golden factors quickly tells us that the city should consider both its master plan and the recommendations of its professional planning staff. If the city is to consider both, it follows that if these two factors suggest different results, as is true here, the city is free to rely more heavily on either factor in a given case. That's where the city exercises its discretion in making the call.
Here, the city determined that the essential nature of the area that includes this 80–acre tract had changed substantially since it was zoned for rural purposes in 1994. That conclusion is certainly supported in the record, and the city's reliance upon the analysis its professional planning staff provided of the changed conditions cannot be considered unreasonable: Cities are not required to follow their master plan, so long as they give consideration to its provisions. See Board of Johnson County Comm'rs v. City of Olathe, 263 Kan. 667, 683, 952 P.2d 1302 (1998); Coughlin v. City of Topeka, 206 Kan. 552, 557, 480 P.2d 91 (1971). And, as we have noted, they are also required to consider their professional staff's recommendations.
After the plaintiffs filed suit to determine the reasonableness of the city's zoning decision, the district court carefully reviewed the city's findings under the 15 criteria that Overland Park's municipal code suggests for consideration—factors that overlap with the Golden criteria. On appeal, the plaintiffs do not provide any point-by-point discussion of either the criteria considered by Overland Park or those listed in Golden, and accordingly we find it unnecessary to do so here. Had reasonableness under the Golden factors been the primary thrust of plaintiffs' appeal, we could have affirmed the city's rezoning on the basis of the district court's opinion, which carefully reviewed the facts in the record regarding each factor. See Supreme Court Rule 7.042(e) (2011 Kan. Ct. R. Annot. 60).
To summarize, by the time Overland Park rezoned this tract, the character of the neighborhood had changed from a predominantly rural area to one that had mixed uses—single-family homes on large lots, commercial and industrial uses, and undeveloped land zoned for commercial use. The property in question had been vacant as zoned for 14 years. The proposed development would certainly cause some negative effects for those who, like the plaintiffs, prefer a quiet area free of large commercial development. But the city required changes to the proposed development plan to lessen negative impacts, as detailed in the findings of the district court. Keeping in mind that we must be deferential in our review of reasonableness in zoning matters, we cannot say that the rezoning here is so far outside the realm of fair debate that it's unreasonable and therefore not allowable.
The majority of the plaintiffs' brief is devoted to a different argument—that Overland Park violated the plaintiffs' procedural due-process rights. The plaintiffs contend that the recommendations of the city's professional planning staff about potential uses for the tract amounted to a revision of the city's master development plan. Plantiffs contend that this may not be done outside the procedures set out in K.S.A. 12–747 and that amending the city's master plan without following those procedures violated the plaintiffs' procedural due-process rights.
But procedural due-process claims require not only a showing that some procedure that was due wasn't given; a valid claim also depends upon establishing a protected property or liberty interest. Chelf v. State, 46 Kan.App.2d 522, 538, 263 P.3d 852 (2011). Here, plaintiffs claim a property interest, but that interest is either in the continuation of the existing rural zoning for this tract or in the continuation of the city's master development plan's designation of the area as a transition area, including low-density residential housing.
Whether a landowner has a protected interest in a particular zoning decision depends upon the amount of discretion local zoning officials have in the decision. As long as the zoning officials have discretion to choose among available options—even if guided by a set of criteria—a landowner does not have a sufficient expectation of any particular zoning to establish a constitutionally protected property interest that would support a due-process challenge. See Zimmerman v. Board of Wabaunsee County Comm'rs, 293 Kan. 332, 353, 264 P.3d 989 (2011) ( Zimmerman II ); accord Jordan–Arapahoe, LLP v. Board of County Comm'rs, 633 F.3d 1022, 1026 (10th Cir.2011); Shanks v. Dressel, 540 F.3d 1082, 1090–92 (9th Cir.2008); Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996); Jacobs, Visconsi & Jacobs v. City of Lawrence, 927 F.2d 1111, 1115–18 (10th Cir.1991).
In Kansas, a landowner does not even have a vested right to the continuation of his or her own property's existing zoning. Zimmerman II, 293 Kan. at 347;Houston v. Board of City Commissioners, 218 Kan. 323, Syl. ¶ 5, 543 P.2d 1010 (1975). Here, plaintiffs challenge not the zoning of their own property but that of a neighbor, which further undercuts any expectation that the zoning will remain the same.
Nor is a city's ability to make changes to its master plan substantively limited by K.S.A. 12–747 such that a property owner could have a legitimate expectation that the plan would not be changed. Accordingly, the plaintiffs' due-process challenge cannot succeed. To hold otherwise would turn almost every statute or regulation into the equivalent of a constitutional mandate. See Shanks, 540 F.3d at 1092. Instead, only those rules that support legitimate claims of entitlement give rise to protected property interests. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Shanks, 540 F.3d at 1091.
In sum, the plaintiffs have not shown that the city's grant of the rezoning request was unreasonable. Nor have they shown that they have a constitutionally protected property interest either in the continuation of the tracts prior zoning or in the continuation without change of the city's master plan. We therefore affirm the district court's judgment.