Agenda - Planning Commission - 02/03/2011

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Zoning Bulletin December 25, 2010 I Volume 41 No. 24 would require an amendment of the CUP. The city commission ad- opted the planning commission's recommendation and granted We- star's CUP with the two suggested restrictions. Thereafter, neighboring property owners, Jeffrey and Joanne Ev- ans (the "Evans ") appealed to court the city's grant of the CUP to Westar. The Evans argued that the city's approval of Westar's CUP was "unreasonable." The Evans maintained that it was "unreason- able for the [c]ity to grant Westar's CUP without mandating addi- tional restrictions or modifications for noise abatement, aesthetic concerns, stray voltage, and [electronic magnetic fields] EMFs." The court found the city had "balanced the interest of Westar with the interest of the surrounding owners and the interest of the com- munity." The court found the Evans "failed to prove the unreason- ableness of the [c]ity's decision." The Evans appealed. The Court's Decision: Judgment of district court affirmed. The Court of Appeals of Kansas held that the city's decision to grant the CUP to Westar to upgrade the electrical substation was reasonable. The court explained that in hearing an appeal of a zoning deci- sion, the court looks to whether the decision was "reasonable." In determining whether a zoning authority's final decision is reason- able, the court explained that it could look to several "suggested" factors, including: (1) [t]he character of the neighborhood; (2) the zoning and uses of properties nearby; (3) the suitability of the subject property for the uses to which it has been restricted; (4) the extent to which removal of the restrictions will detri- mentally affect nearby property; (5) the length of time the subject property has remained vacant as zoned; (6) the gain to the public health, safety, and welfare by the pos- sible diminution in value of the developer's property as compared to the hardship imposed on the individual land- owners; (7) [t]he recommendations of a permanent or pro- fessional planning staff; and (8) the conformance of the re- quested change to the city's master or comprehensive plan. Additional factors may also be important to review in an individu- al case. Here, with regard to the Evans' concerns (i.e., noise abatement, aesthetic concerns, stray voltage, and EMFs), the court found the city took many of those reasonableness- test - factors into consideration. Factors 1 and 2 were met as the city was aware of the character of © 2010 Thomson Reuters 9