Posted by: Patricia Salkin | September 6, 2011

KS Supreme Court Finds both County and City Possess Authority to Review Zoning Application for Proposed Project in Vicinity of Airport

A Kansas statute that requires approval by both the city and county governments when a landowner seeks to rezone property within one mile of certain airports was subject of a recent Supreme Court opinion holding that the statute grants both jurisdictions independent review authority.  The opinion reversed a District Court ruling that limited the county’s authority to merely determining whether the city’s zoning decision was reasonable.

The issue arose after the City of Olathe approved an application to rezone 95 acres of agricultural land near the Johnson County Executive Airport, to allow Amber Ridge, a 230-lot subdivision of single family homes.  A landowner sued because Johnson County subsequently rejected the proposal, due to concerns about airport noise, public safety, emergency landings and two airplane crashes had occurred on the property in the prior 15 years.

The main issue was whether the county was entitled to make its own determination based on the merits of the project, or relegated to a secondary role of determining whether the city’s approval or disapproval was reasonable.  The District Court held that the county had limited authority, and had to approve the city’s decision unless it could establish that the city’s action was unreasonable.  The District Court upheld the city’s decision to rezone the property, stating that the county had not met its burden of proof.  The appellate court reversed, holding that a plain reading of the statute indicates that the county is a “vital authority” and “entitled to make its own independent, discretionary determination to approve or disapprove any proposed rezoning.”

According to the Supreme Court, K.S.A. 3-307e gives the county authority over zoning issues that impact the airport or public safety, and the city authority over development within its borders.  As a result, both the city and the county are entitled to a presumption of reasonableness, and the burden to establish that a decision was unreasonable falls to the landowner challenging that decision.  The Supreme Court remanded the case for further proceedings, to determine if the landowner could establish that the county’s rejection of the rezoning application was unreasonable.

143rd St. Investors, LLC v. Bd. of County Commissioners of Johnson County, 2011 WL 3366451 (Kan. 8/5/2011)

The opinion can be accessed at: http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2011/20110805/102350.pdf

Read More About the case from the Midwest Planning BLUZ blog here: http://blogs.extension.iastate.edu/planningBLUZ/category/airport-zoning/


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