76 J. Kan. Bar Assn. 1, 28 (2007). What Can They Do? Limitations on the Power of Local Zoning Authorities.

• Author: Patrick M. Hughes

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 1, 28 (2007).

What Can They Do? Limitations on the Power of Local Zoning Authorities

Kansas Bar JournalVolume 76, January 200776 J. Kan. Bar Ass'n 1, 28 (2007)What Can They Do? Limitations on the Power of Local Zoning AuthoritiesPatrick M. HughesI. Introduction

If there had been any doubt, the recent Kansas Court of Appeals opinion in R.H. Gump Revocable Trust v. City of Wichita1 removes it: spiritual and aesthetic considerations are enough to justify zoning restrictions.2 In R.H. Gump Revocable Trust, a zoning applicant sought a conditional use to erect a flagpole along U.S. Highway 54, Wichita's major east-west thoroughfare. The flagpole would have been located in a commercial area near a Veterans Administration hospital, car dealerships, a shopping mall, and one of the busiest intersections in the city. At up to 165 feet tall, the Stars and Stripes flown would have to be large. Old Glory, however, was not welcomed to this neighborhood. The city council denied the zoning request that would have permitted such a public display of civic pride, finding it would be inconsistent with beautification efforts along the freeway and would have a negative visual impact. The district court and the Court of Appeals agreed and found that the decision was a proper use of zoning power to protect the "public welfare." It found that the public welfare included the "spiritual" and "aesthetic" concerns that had caused the city to reject the flagpole.

There is, as the gut of any lawyer discloses at this point, more to the story. The pole was near not only U.S. Highway 54, commercial development, and a busy intersection but it was also near the city of Eastborough, a city fully enclosed by the city of Wichita, known for its stately homes and tree-lined drives. The pole was not the idea of a patriotic landowner motivated to honor the nation that made such property ownership possible. Instead, its purpose was to house a cellular telephone antenna, and it was the third attempt to place such an antenna on the site. The flagpole was presented as a way to disguise the tall structure jutting up above the trees. It was a literal case of "wrapping yourself in the flag."

If, as the Court of Appeals confirms, local government authorities can make zoning decisions on such an inherently subjective basis as the visual impact of the American flag flying over a U.S. highway, that raises a question. What limitations are there on local land use regulation? This article addresses that question by examining how the Constitution of the United States, federal statutes, state statutes, and zoning review procedures impact and restrict the power of local zoning authorities to regulate land use.

2. What power can local authorities exercise through zoning?

   While some specific types of land uses are regulated by other laws, zoning regulation is the most comprehensive land use control device. In Kansas, state statutes empower cities and counties to adopt zoning regulations.3 Those regulations can both control the uses allowed for a particular property and impose substantive limitations, or development controls, on the uses that are allowed, including controls of the height and size of buildings, the size of yards and open spaces, and the appearance of buildings.4 Zoning accomplishes its use restrictions and development controls by establishing base zoning districts and permitting case-by-case deviations through conditional or special uses, community unit and planned unit development plans, and variances.

3. How far can zoning regulations go?

   While land use can be regulated, the power of governmental regulation is not boundless. All governmental land-use regulation is subject to constitutional limitations. State and local land use controls are further restricted by certain specific federal statutes, and local land use controls are restricted by state statutes.

   1. What limits does the Constitution impose?

      Zoning regulations are constitutionally permissible as a legitimate exercise of police power by the states.5 Nevertheless, they are restricted as are other exercises of police power by constitutional takings limitations and by due process, equal protection, and freedom of expression guarantees.

      1. Constitutional limitations on taking property without compensation, nonconforming uses, and vested rights

         Most regulations restricting the use of land or impairing its value do not require compensation under the Fifth and 14th amendments. Therefore, even though prohibiting a particular type of development, like a landfill, may reduce the value of land, it is not usually a taking if other economically viable uses remain available.6 However, zoning restrictions constitute a "taking" for which compensation is required when the regulations deny "all economically beneficial or productive use of the land."7

         In extraordinary circumstances, even when not all economically viable property uses are prohibited, a land owner might successfully argue that the impact of a zoning restriction on his or her investment-backed expectations, when compared to the government's interests being pursued by the regulation, is a taking.8 However, the U.S. Supreme Court has refused to adopt a standard that would require the impact of a zoning restriction to be even roughly proportional to the benefit regulation provides.9 The Court has also refused to embrace a test that would require regulatory action to "substantially advance" a legitimate governmental goal to avoid being a taking for which compensation is required.10

         Despite these rather slight limitations on zoning regulations under the Takings Clause, state cases find a constitutional protection against land use regulation with more routine operation when new zoning regulations would require immediate cessation of an existing land use.11 The Kansas Court of Appeals has said:

         "In order to avoid violation of constitutional provisions preventing the taking of private property without compensation, zoning ordinances must permit continuation of nonconforming uses in existence at the time of their enactment."12

         Whether this protection truly has a constitutional basis or not is relatively unimportant, because Kansas statutes protect the right to continue a nonconforming use;13 these statutes provide that zoning regulations do not apply to the "existing" lawful uses of land.14

         As a matter of public policy, courts strictly construe the right to a nonconforming use.15 In Kansas, the strong public interest in eliminating nonconforming uses allows zoning authorities to require such uses to be gradually phased out rather than requiring nonconforming uses to be permanently grandfathered.16 Where the right to a nonconforming use exists and there is no mandatory phase-out of the use, the use may continue until it is abandoned, after which it cannot be reclaimed.17 While the use cannot undergo a fundamental change in quality and remain a nonconforming use, an increase in the volume and intensity of the use, as for example by processing a greater volume of scrap at a wrecking yard, is not per se impermissible, or is the landowner necessarily prohibited from employing more modern instrumentalities to replace older methods of operation with modern means in conducting the nonconforming land use.18 For mining and quarrying, under the "diminishing asset doctrine" the Kansas Supreme Court has permitted the expansion of mining and quarrying activities of a nonconforming mine or quarry over the entire land that is an integral part of the operation.19

         However, the protections offered to nonconforming uses can easily be lost. Zoning authorities can, under penalty of forfeiture, require that nonconforming uses be registered by the landowner. A forfeiture is not a taking by the government because it deprives a landowner of nothing unless the landowner fails to register the use.20

         Kansas statutes provide for a broader "vesting" of development rights, in limited circumstances, that gives the landowner the right to implement a plan for the land that existed before a zoning change that would prohibit it even though the planned use is not implemented far enough at the time the zoning restriction is imposed to be a nonconforming use. By statute, the recording of a plat allows a five-year window in which to commence construction of a single-family residential development, despite intervening changes in zoning regulations.21 For other land uses the same statute allows a vesting of development rights when all permits required for the use have been issued, construction has started, and a substantial amount of work has been completed under a validly issued permit.22

      2. Procedural due process

         It is well established in Kansas state courts that procedural due process protections attach to rezoning and conditional use decisions.23 Thus, those people and entities involved, both landowners and opponents to a zoning change, have procedural rights, including the right to notice, a fair and open hearing, and an impartial decision-maker.24 A zoning decision that does not comport with due process has been said to be void,25 but this is probably an overstatement, and a failure to provide due process protections probably would be found to invalidate a zoning decision only if there is a timely challenge.26

         Under the rubric of due process, the fairness, openness, and impartiality of the rezoning or conditional use process used in a particular case all may be...