Agenda - Planning Commission - 11/03/2011

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September 25, 2011 I Volume 5 I No. 18 Zoning Bulletin In so concluding, the court said that the statutory requirement of county approval of any city rezoning within one mile of a public airport would be meaningless if it were purely ministerial. "In common usage, if one must have approval as a condition precedent, one knows that disap- proval is possible," noted the court. Most importantly, found the court, K.S.A. 3-307e was not worded as a review provision. "Not only does the statute use the term `approval' rather than `review' or a similar term, it does not provide any criteria for a review. Rather, under the statute, the County exercises its full discretion to approve or disapprove the rezoning application," said the court. The court further held that, under K.S.A. 3-307e, both the decision of a city and the decision of a county regarding a request to rezone proper- ty located within one mile of a public airport were entitled to a presump- tion of reasonableness. Both the city and the county should be recog- nized as a zoning authority with the discretion to independently evaluate an application for rezoning, said the court. The burden is on the land- owner in challenging a rezoning decision to establish by a preponderance of the evidence that the challenged decision is not reasonable. Here, the court remanded the matter to the district court for findings regarding the reasonableness of the County's decision. See also: State ex rel. Tice v. Brooks, 160 Kan. 526, 163 P.2d 414 (1945). See also: Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). See also: Combined Inv. Co. v. Board of County Com'rs of Butler Coun- ty, 227 Kan. 17, 605 P.2d 533 (1980). Case Note: The City and Landowners had suggested that the lack of guidance regarding the procedure for the County's approval process meant that the legislature could not have intended the County to be a zoning authority. The Supreme Court disagreed, finding: other statutes defined the procedures (see K.S.A. 2010 Supp. 19-2960); and the court had previously provided guidance as to nonexclusive factors to be considered (see Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978)). Case Note: The City had also argued that "giving the County the power to `veto' the City's rezoning ordinance [was] contrary to the City's home rule authority." The Supreme Court also rejected this argument. The court found, by enacting K.S.A. 3-307e, the legisla- ture created an exception to the city's authority. 4 © 2011 Thomson Reuters