Tell it to the Judge Appealing a Zoning Decision
| Publication year | 1998 |
| Pages | 33 |
67 J. Kan. Bar Assn. September, 33 (1998). TELL IT TO THE JUDGE APPEALING A ZONING DECISION
September, 1998
Copyright (c) 1998 by the Kansas Bar Association; Roger W. Badeker
Shortly after you arrive at your office, a prospective client calls to discuss an adverse decision rendered by the local zoning authority. She is feeling ill-used and has decided it is time to talk to a lawyer. After some uncomplimentary comments about the zoning authority, she informs you that if she could just tell her story in court, things would work out her way. Obviously, you need more details. Let's see how the law might help this aggrieved woman and whether she has a case.
*34 The scope of review
As in any action, the court is limited in what it can do. The most recent and comprehensive discussion of zoning law appears in the 1994 Kansas Supreme Court case Johnson County Water District No. 1 v. City of Kansas City. The city granted a special use permit to the water district but included nine conditions. The water district objected to the conditions and appealed to the district court, which sided with the city. In finding for the city, the Kansas Supreme Court reaffirmed its previous holdings in zoning cases, stating:
1. The local zoning authority, and not the court, has the right to prescribe, change or refuse to change zoning. 2. The district court's power is limited to determining: a. The lawfulness of the action taken; and
b. The reasonableness of such action.
3. There is a presumption that the zoning authority acted reasonably. 4. The landowner has the burden of proving unreasonableness by a preponderance of the evidence. 5. A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. [FN1] When faced with a zoning question, this case is a good place to start. It provides an excellent summary of Kansas law on the subject.
Is the action legislative or quasi-judicial?
Determining the character of the zoning authority's action is an important first step. If the action is legislative, the redress must be sought in the political process, not the courts. Comprehensive revision of zoning regulations for a city or county is considered a legislative function. Relief from the operation of the regulations in the form of a variance or rezoning is usually quasi-judicial. Any action before a board of zoning appeals will be quasi-judicial. The test is as follows:
When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. While policy is involved, such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues. [FN2]
The standard and burden of proof
Weighing heavily on the zoning authority's side of the scale is the presumption it has acted reasonably. In addition, the burden is on the challenger to prove by a preponderance of the evidence that the authority acted unreasonably. [FN3] Reasonableness is a question of law, "to be determined upon the basis of the facts which were presented to the zoning authority." [FN4] The test, articulated in an earlier opinion, and affirmed by the Kansas Supreme Court in Johnson County Water District No. 1, is that:
Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. [FN5] In this controversy the city prevailed because the conditions it imposed were based on a thorough analysis of the needs of the applicant and the duty to protect the residents from the applicant's sludge lagoons. It was a successful balancing of interests by the zoning authority.
The lawfulness of the action taken
Zoning is a creature of statute. As a result, a search for a violation of the law offers considerable promise. A zoning authority may either be acting outside its authority or failing to meet statutory requirements. One of the most fruitful areas of inquiry can be a zoning authority's own regulations. Did the body follow its own rules and procedures? Have these been consistently applied? The statutes governing planning commissions and boards of zoning appeals begin at K.S.A. 12-741 and apply to both cities and counties. Even though a planning commission functions only in an advisory capacity to the governing body, it is required to keep a record of all proceedings. [FN6] A similar duty is imposed on boards of zoning appeals, although this statutory requirement is more explicit. [FN7] Knowing that these bodies have been held to be quasi-judicial in their operation, a high standard of attention to the details and documentation of decision making is expected. [FN8]
Governing bodies may also limit the power of the zoning authority, reducing the latitude given them by statute. Other limitations may result from conflicts with state statutes on given subjects. In Johnson County Water District No. 1, for example, the water district argued, although unsuccessfully, that the state had pre-empted the regulation of the water treatment process.
Before proceeding it should be noted that agricultural uses are exempt from zoning regulations. [FN9] The cases defining "agricultural use" have some surprising results. For example, a tract of 2.26 acres of fescue grass located within the corporate
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limits of a city and adjoining a residential area was held to be "land devoted to agricultural use." [FN10] The Kansas "right to farm" law becomes relevant in areas zoned agricultural, because it essentially bars nuisance actions. It does so by declaring the primacy of agriculture and creating presumptions that favor agricultural activities. [FN11]
The anatomy of an unreasonable decision
What is an unreasonable decision and how does it get that way? Two cases...
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