This appeal raises issues regarding the interpretation and application of K.S.A. 3-307e, a statute relating to the rezoning of property within 1 mile of the Johnson County Executive Airport (Airport). Under this unique statutory scheme, a proposed rezoning must have the approval of the city and the county in which the property is located. In this case, the City of Olathe (City) approved the proposed rezoning, but Johnson County (County) did not. On judicial review of the County’s decision to disapprove the proposed rezoning, the district court found the County’s authority was limited to conducting a quasi-judicial review of the City’s approval. Applying general principles related to quasi-judicial review of zoning decisions, the district court held the County had to approve the proposed rezoning unless the County could establish the City’s decision was unreasonable. Concluding the County did not satisfy its burden, the district court upheld the City’s decision to approve the rezoning.
The County appeals, arguing, among other things, that the district court erroneously interpreted K.S.A. 3-307e to mean that the County had to approve the proposed rezoning unless the County could show that the City’s decision was unreasonable. We agree with the County’s argument and conclude the district court’s ruling was erroneous because K.S.A. 3-307e allows the County to reach an independent determination that a court must presume to be reasonable. As a result of that presumption, to successfully challenge the County’s action under K.S.A. 3-307e, a landowner must prove by a preponderance of the evidence that the County’s action was unlawful or unreasonable. Because these rules were not applied by the district court in this case, we reverse and remand for further proceedings.
This action was filed by landowners who, during the litigation, filed a Motion to Substitute Party Plaintiff pursuant to K.S.A. 2010 Supp. 60-225(c). Through a series of assignments and purchases, the ownership of the subject property has changed hands a number of times. For simplicity, the plaintiffs in this action will be referred to as the “landowners.” These landowners own approximately 95 acres of land on the southeast comer of 143rd Street and Pflumm Road, located in the City and County. A portion of the property lies within the Airport’s “primaiy flight corridor subarea A,” which is a 500-foot-wide corridor centered along the extended centerline of the existing mnway. Most of the property is located adjacent to this corridor and is not on the direct path of landings or takeoffs.
For several decades, this property has been zoned agricultural. Seeking to change this zoning, tíre landowners filed an application with the City to classify the property as “RP-1” (planned single-family residential) and to approve a “preliminary plat for a subdivision with 230 lots and 16 tracts to be known as Amber Ridge.” The Amber Ridge development would have an overall density of approximately 2.4 dwellings per acre.
The Olathe City Planning Commission (City Planning Commission) conducted public hearings and fully reviewed the rezoning application. As part of this process, the Olathe City Planning Staff (City Planning Staff) received a letter in which the Johnson County Department of Planning, Development, and Codes (County Planning Department) objected to the proposed rezoning because the Amber Ridge development plan included “a density that is significantly more than supported by the recently adopted” Johnson County Executive Airport Comprehensive Compatibility Plan (Airport Compatibility Plan). The Airport Compatibility Plan, which had been adopted by the County but not the City, allowed a housing density of one dwelling unit per acre on the subject property.
Ultimately, the City Planning Staff recommended the City Planning Commission approve the proposed rezoning because it was consistent with the goals, objectives, and policies of the City’s comprehensive plan, which identified the future land use of the subject property as residential in nature, and it met the requirements of the City’s “Unified Development Ordinance.” The failure to comply with the Airport Compatibility Plan was not a detriment to the City’s approval, according to the City Planning Staff, because the City had not adopted the Airport Compatibility Plan and was not required to do so. The City Planning Staff s recommendation suggested several stipulations, however. These included requirements that the construction incorporate soundproofing materials and that there be plat and deed notations indicating that the property is adjacent to the Airport and “will be subject to high frequency of over flights by aircraft at low altitudes.” Upon receipt of this information, the City Planning Commission voted to deny the rezoning request.
The rezoning application was next considered by the Olathe City Council (City Council). The City Council heard a presentation from the Assistant City Planner and comments from nine concerned citizens (regarding safety, noise, aircraft and vehicle traffic, storm water run-off, and schools), the landowners’ engineer, and the landowners’ planning consultant. The City Council learned that the City Planning Staff was still in favor of the rezoning and that the development fit within the City’s comprehensive plan. The City Council then unanimously approved the rezoning (Ordinance No. 05-38), as well as the associated preliminary development plan and preliminary plat for Amber Ridge. The approved ordinance had several stipulations, including the soundproofing and plat notations suggested by the City Planning Staff.
A copy of the landowners’ rezoning application, the plat, and the record developed during the City’s consideration of the application were then forwarded to the County. With this step, the procedure deviated from the process that had been followed when previous landowners of the same property had attempted a similar rezoning, which the City approved. That earlier attempt, like this one, led to litigation.
In the earlier litigation,
Board of Johnson County Comm’rs v. City of Olathe,
The district court, in the earlier litigation, focused on the arguments regarding whether the City’s decision was reasonable and did not address the issue of whether the ordinance was lawful. The district court found, in part, that “ ‘[d]ue to die proximity of the subject real property to the existing airport, and the dangers associated with potential aircraft crashes, the subject property is not suitable for high density residential development.’ ”
Board of Johnson County Comm’rs,
This court reiterated that a zoning authority, such as the City, is presumed to make reasonable zoning decisions and held: “A court may not substitute its judgment for diat of the administrative body and should not declare the action unreasonable unless clearly compelled to do so by the evidence.”
Board of Johnson County Comm’rs,
Although the progress of the case on remand is not clear, the record before us indicates that the rezoning was never finalized and the property remained zoned for agricultural use. Consequently, when plans were formulated to develop Amber Ridge, the landowners in the present case had to initiate a new application to rezone the property and, following the directives of K.S.A. 3-307e, seek the approval of the County once the City approved the rezoning and the plat.
This Case: Amber Ridge Rezoning
The effort to seek the County’s approval began upon the County’s receipt of the City’s record. In the first step of the County’s consideration, the County Commissioners conducted a public hearing. The County Commissioners then referred the application to the Johnson County Airport Commission (Airport Commission). The Airport Commission reviewed the proposed Amber Ridge development and considered presentations by representatives of the landowners, the County Planning Department, and the Aircraft Owners and Pilots Association Support Network. Based on this information, the Airport Commission unanimously voted to recommend the denial of the rezoning for two reasons: (1) “The proposed density is not compatible with the Airport Compatibility Plan,” and (2) “The proposed open space is not sufficient in amount or location.”
After receiving the Airport Commission’s recommendation, the County Commissioners denied the landowners’ rezoning application. In doing so, the County Commissioners echoed the Airport Commission’s concerns about insufficient open space and the “negative impact upon, and incompatibility with” the Airport Compatibility Plan. The County Commissioners felt the proposed population density of 2.4 dwellings per acre caused concerns about airport noise, public safety, emergency landings, and aiiport crashes. (Two crashes had occurred on the property within the last 15 years, according to testimony during the county approval process.)
Challenging the County’s denial of the rezoning application, the landowners filed a petition for judicial review in Johnson County
District Court. The district court held, in part, that the City was the zoning authority
In considering whether the County had met this burden, the district court recognized the County Commissioners’ “main objection was that airplanes can crash on take off and landing, and the plaintiffs’ land is within the boundaries of where planes tend to crash.” But the district court questioned the reasonableness of concluding that the proposed development caused a greater safety concern than other surrounding developments that had been approved by the County Commissioners. For example, a residential development to the west of the subject property, also within 1 mile of the Airport, had been approved even though it had a higher proposed population density than the proposed Amber Ridge development. The district court also found it significant that the Airport Compatibility Plan approved residential use of the subject property, albeit at the lower density level of one dwelling per acre, and, in light of that, questioned whether the difference in density between the Airport Compatibility Plan and the proposed development was significant, noting:
“The dispute between the parties comes [down] to the density of development on this real estate. Apparently, the Board of County Commissioners assumefs] that if there were 2.4 dwellings per acre, and if a plane crashed, it would hit both houses or 2.4 houses, whereas if it would crash under the [Airport Compatibility] Plan, it would only hit one house.
“There is no study in the record to establish the degree of risk of 2.4 houses per acre versus one house per acre. There is no showing that if 2.4 dwellings were constructed on the real estate in question that drere would be an increase[d] risk of loss of life or showing that the crash of the airplane would hit both houses.”
Further, the district court concluded that the County Commissioners’ objections to the rezoning were not based on a concern that the density of the Amber Ridge development would “obstruct” landings or take-offs because the subject property “is off to the side.” The County Commissioners’ concern that the presence of the Amber Ridge development would require pilots to take a steeper approach to the Airport was not a legitimate concern, according to the district court, because above-ground power lines currently cross the property and force a steep approach.
Based on these conclusions, the district court rejected the idea that the development would create an “aiiport hazard,” defined by K.S.A. 3-701(2), or an “aiiport hazard area,” defined by K.S.A. 3-701(3). Additionally, the district court rejected the landowners’ argument that the County had no authority to deny the rezoning if an airport hazard or airport hazard area was not created, stating:
“The Court finds that under Chapter 3, Article 3, the Board of County Commissioners would not be limited in its review authority to just airport hazards. The Court finds that in Chapter 3, Article 7, [adoption of aiiport zoning regulations] the County’s authority is limited to ‘airport hazards’ or ‘airport hazard areas,’ however in Chapter 3, Article 3, the County may consider reasonable factors in addition to an airport hazard, including density. However, in reviewing the actions of the County Commissioners, they have not made a finding of airport hazard or the existence of an airport hazard area. There has been no finding plaintiff s property constitutes an obstruction, an airport hazard or airport hazard area.” (Emphasis added.)
Ultimately, the district court found that the County failed to meet its burden of proof in order to overcome the presumption of reasonableness that applied to the City’s decision. Consequently, the district court deemed the City’s decision to rezone the property lawful and ordered the publication of the City’s rezoning ordinance. Further,
The County now appeals, raising several issues. We have taken the liberty to reorganize the various arguments of the parties into tihe following issues: (1) Did the district court err in concluding that K.S.A. 3-307e does not authorize the County to make an independent, discretionary rezoning determination? (2) What stan dard should the district court have used to review the County’s decision to disapprove the rezoning? (3) Was the County’s decision to disapprove the proposed rezoning entitled to a presumption of reasonableness that the landowners were required to overcome by proving that the County’s action was unreasonable? (4) Was the County’s decision to disapprove the proposed rezoning lawful and reasonable? and (5) Did the district court err in denying the County’s motion to stay the district court’s rezoning ruling pending this appeal?
Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer from the Court of Appeals on this court’s own motion).
Analysis
Issue 1: Did the district court err in concluding that K.S. A. 3-307e does not authorize the County to make an independent, discretionary rezoning determination?
The first issue presents a question of statutory interpretation, which is a question of law that is subject to unlimited review.
Double M Constr. v. Kansas Corporation Comm’n,
“ “When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.’ [Citations omitted.]” Manly v. City of Shawnee,287 Kan. 63 , 68,194 P.3d 1 (2008).
In addition to these principles, the County argues we should apply the doctrine of operative construction and, because the County is the entity that must apply the provision, defer to its interpretation of the statute. This argument ignores recent case law, which reflects that the doctrine of operative construction has lost favor with this court. These recent decisions have held that “an agency’s or board’s statutory interpretation is not afforded any
significant deference on judicial review. . . . [A]n appellate court exercises unlimited review on the determinative question of statutory interpretation without deference to [the agency’s] view as to its own authority.”
Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs.,
We apply these general guidelines to our interpretation of K.S.A. 3-307e. Article 3 of chapter 3 of the Kansas Statutes Annotated applies only to Johnson County and the Airport. See K.S.A. 3-301;
Higgins v. Johnson County Comm’rs,
K.S.A. 3-307e states:
“The airport commission shall act as an airport zoning commission for the county and as such shall make recommendations and serve in the same capacity as an airport zoning commission provided for in subsection (2) of K.S.A. 3-705. Said commission shall make such recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property within one (1) mile thereof.The board of county commissioners shall act on such recommendations and may zone such public airports and the surrounding areas within one (1) mile except where such areas have already been zoned by city action. In such cases, city zoned areas shall keep such city zoning control except that any changes in existing city zoning must have the approval of the board of county commissioners. All airport zoning regulations adopted as provided for herein shall be administered by the airport commission, as directed by the board of county commissioners. The county commissioners shall exercise directly all the zoning authority granted by this act in the event an airport commission is not appointed or functioning.
“The provisions of article 7 of chapter 3 of the Kansas Statutes Annotated shall, insofar as the same can be made applicable, govern judicial review and enforcement and remedies for airport zoning regulations adopted pursuant hereto.” (Emphasis added.)
When this provision was adopted in 1967 (see L. 1967, ch. 10, sec. 11), the landowners’ property had been zoned by the City. Consequently, it was a “city zoned area” that kept “such city zoning control.” Nevertheless, because the landowners’ property fell within 1 mile of the Airport and the landowners were requesting a change in existing city zoning, there is no dispute that K.S.A. 3-307e requires that the rezoning “must have the approval of the county commission.” There are disputes, however, about what “approval” of the County means. We have organized the parties’ arguments into the following subissues: (a) Does K.S.A. 3-307e grant the County the authority to approve or disapprove a rezoning request? (b) Does the absence of procedural and substantive direction in K.S.A. 3-307e indicate that the County is to merely review the City’s decision? (c) Does the absence of direction in K.S.A. 3-307e render it unconstitutionally vague? and (d) Do principles relating to home rule, comprehensive plans, and preemption mean that the County cannot exercise discretion?
(a) Does K S.A. 3-307e grant the County the authority to approve or disapprove a rezoning request?
First, the City and the landowners suggest that the word “approval” in K.S.A. 3-307e means that the County has no discretion and must accept any reasonable rezoning decision made by the City. Countering this argument, the County contends it is authorized to conduct a review of the rezoning application and make an independent determination, exercise its full discretion, and approve or disapprove the proposed rezoning.
In support of the County’s argument, it cites
State, ex rel., v. Brooks,
In considering whether a mandamus order was an appropriate remedy, the
Brooks
court discussed the meaning of the terms “consent” and “approval” and concluded that both terms grant discre
tion to accept or reject the annexation. “It is pretty hard to see,” stated the
Brooks
court, “why the lawmakers provided that the county superintendent had to consent if his action was purely ministerial. Such a construction renders the use of the word ‘consent’ meaningless.”
Brooks,
The County argues that the Brooks court’s conclusion also applies to K.S.A. 3-307e: The requirement of County approval of any City rezoning within 1 mile of the Airport would be meaningless if it were purely ministerial. Consequently, the County argues the County Commissioners had the discretion to refuse to approve the proposed rezoning just as the school board in Brooks had the discretion to disapprove the proposed annexation and the superintendent had the discretion to refuse consent.
We agree and conclude that the interpretation in
Brooks
and similar cases is consistent with the common understanding of the “must have the approval” phrase used in K.S.A. 3-307e. In common usage, if one must have approval as a condition precedent, one knows that disapproval is possible. Certainly, as the Oklahoma court indicated in
Melton,
Further, the requirement in K.S.A. 3-307e that “any changes in existing city zoning must have the approval of the board of county commissioners” is similar to language used in several Kansas statutes that are commonly understood to grant a zoning authority the discretion to approve or disapprove a zoning proposal. E.g., K.S.A. 12-749 (political subdivision may “approve” recommendation to amend subdivision regulations); K.S.A. 2010 Supp. 12-752 (procedures for “approval” of platting and replatting); K.S.A. 2010 Supp. 12-757(d) (procedures for amending zoning regulation; using term “approval”); K.S.A. 2010 Supp. 19-2960 (procedures relating to protest of rezoning; using phrase “approve or disapprove”). The word “approval” in K.S.A. 3-307e is used in the same sense and indicates the County serves in the same approval role as other zoning authorities, i.e., the County also has the right to disapprove a proposal.
Finally and importantly, K.S.A. 3-307e is 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.
(b) Does the absence of procedural and substantive direction in K.S.A. 3-307e indicate that the County is to merely review the City's decision?
On the other hand, the City and landowners suggest that the legislature did not provide any guidance regarding the procedure for the County’s approval process or indicate the substantive considerations. This lack of guidance, they argue, means the legislature cannot have intended the County to be a zoning authority. This argument ignores the first two sentences of K.S.A. 3-307e, which state:
“The airport commission shall act as an airport zoning commission for the county and as such shall make recommendations and serve in the same capacity ás an airport zoning commission provided for in subsection (2) of K.S.A. 3-705. Said commission shall make such recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property loithin one (1) mile thereof.” (Emphasis added.)
(i) Airport Zoning Commission under K.S.A. 3-705(2)
The first sentence of K.S.A. 3-307e grants an airport zoning commission (here, the Airport Commission) the power defined in K.S.A. 3-705(2). Article 7 of chapter 3 of the Kansas Statutes Annotated relates to airport hazards. Consequently, the landowners argue the County’s decision must be limited to a determination of whether the City’s rezoning of the property would create an “airport hazard,” as defined by K.S.A. 3-701(2) (“any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at any airport or is otherwise hazardous to such landing or taking-off of aircraft”), or “airport hazard area,” as defined by K.S.A. 3-701(3) (“any area of land or water upon which an airport hazard might be established if not prevented as provided in this act”). See K.S.A. 3-702 (airport hazards contrary to public interest).
As the district court interpreted the County Commissioner’s findings, the rezoning of the subject property did not create an airport hazard or an airport hazard area. Consequently, the district court concluded that K.S.A. 3-704(2), which states that “the more stringent limitation or requirement as to airport hazards shall govern and prevail,” did not apply. However, the district court also rejected the landowners’ argument that the County’s authority was limited to consideration of a rezoning proposal that would create a hazard.
Given that the district court ruled in the County’s favor on this question, the County did not appeal this finding. But neither did the landowners, even though, as appellees, they were required to
cross-appeal from the adverse ruling in order to obtain appellate review of the issue. See
Mid-Continent Specialists, Inc. v. Capital Homes,
(ii) Procedure for Rezoning of Property in 1-Mile Radius
As a result, we base our analysis, as did the district court, on the second sentence of K.S.A. 3-307e, which empowers the Airport Commission to make “recommendations concerning type and boundary of zones and regulations to be adopted for public airports and all property within one (1) mile thereof.” The district court interpreted this sentence to grant the County authority over property within the 1-mile radius of the Airport regardless of whether a rezoning proposal would create a hazard.
As the City and the landowners note, neither this sentence nor the remainder of the provision provides guidance as to the procedure or substantive considerations that may apply. Nevertheless, other statutes define the procedures. Specifically, K.S.A. 2010 Supp. 19-2960, which addresses amendments to regulations and rezoning by a county commission, states in part:
“A proposal for an amendment, rezoning or conditional use permit may be initiated by the board of county commissioners, the planning commission, any zoning board or upon application of the owner of property affected.
“All such proposed amendments, rezonings or conditional use permits first shall be submitted to either the planning commission for recommendation regarding amendments or the appropriate zoning board for recommendation regarding rezonings or conditional use permits. All notice, hearing and voting procedures for consideration of proposed amendments, rezonings and conditional use permits shall be the same as that required for amendments, extensions or additions to the comprehensive plan as provided by K.S.A. 19-2958.” (Emphasis added.) K.S.A. 2010 Supp. 19-2960(d).
As to the criteria or substantive considerations for the County’s decision, this court has provided guidance to zoning authorities by suggesting that they utilize the nonexclusive factors estabhshed in
Golden v. City of Overland Park,
The Airport Compatibility Plan, which served as the County’s comprehensive plan for the area including the subject property, recognized the Golden factors and covered issues specific to airport development and safety. The factors listed in Golden were:
“ ‘Even though the validity of each zoning ordinance must be determined on its own facts and circumstances ... an examination of numerous cases discloses that among the facts which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property ... (2) the extent to which property values are diminished by the particular zoning restrictions ... (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public ... (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner ... (5) the suitability of the subject property for the zoned purposes ... (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. . . .
“ ‘No one factor is controlling.’ ” Golden,224 Kan. at 598-99 .
In light of the general guidance given to the County by operation of K.S.A. 2010 Supp. 19-2960 and this court’s decision in Golden and subsequent decisions, we reject the landowners’ argument that the County’s approval procedures and considerations are not defined by Kansas law.
(c) Does the absence of direction in K.S.A. 3-307e render it unconstitutionally vagueP
The landowners also place a different spin on the lack of procedural and substantive detail in K.S.A. 3-307e and argue for the first time on appeal that K.S.A. 3-307e is unconstitutional in that it (1) does not provide standards of conduct to govern the County’s authority to approve or disapprove the City’s rezoning efforts and (2) contains an unlawful delegation of legislative powers.
“Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal.”
Trotter v. State,
“(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason.” State v. OrtegaCadelan,287 Kan. 157 , 159,194 P.3d 1195 (2008).
See
Pierce v. Board of County Commissioners,
The landowners argue this case falls within the first and second exceptions because the issue involves solely a question of law and relates to a fundamental right. While the
(d) Do principles relating to home rule, comprehensive plans, and preemption mean that the County cannot exercise discretion?
The landowners and the City present several other arguments to support the contention that the legislature cannot have intended K.S.A. 3-307e to grant the County the discretion to disapprove the proposed rezoning. One objection stated by the City is that giving the County the power to “veto” the City’s rezoning ordinance is contrary to the City’s home rule authority. In making this argument, the City correctly points out that under laws regarding home rule authority, the County cannot impose its regulations on the City without the City’s consent. See K.S.A. 2010 Supp. 19-101a(4) (“[T]he home rule power conferred on cities to determine their local affairs and government shall not be superseded or impaired without the consent of the governing body of each city within a county which may be affected.”). Additionally, the City observes that nothing in K.S.A. 3-307e requires the City to adopt County regulations or the Airport Compatibility Plan, i.e., the County’s comprehensive plan regarding airport zoning. In fact, the record shows that the City had not adopted the Airport Compatibility Plan.
Even though these points are valid, they do not lead us to the conclusion that the County cannot reach a decision regarding the proposed rezoning that is independent of the City’s. A political subdivision’s planning and zoning power is derived from the grant contained in zoning statutes.
Crumbaker v. Hunt Midwest Mining, Inc.,
Making yet another similar argument, the City claims that the County’s action cannot preempt the City’s. To support the argument, the City cites
Zimmerman,
In sum, none of these arguments changes our view, based on a plain reading of the statute, that K.S.A. 3-307e does not relegate the County to the role of reviewing the City’s
Issue 2: What standard should the district court have used to review the County’s decision to disapprove the rezoning?
The district court reasoned that because the County’s role was to conduct a quasi-judicial review of the City’s decision, the district court’s review was similarly governed by quasi-judicial review standards. With our decision that the County’s role is not one of mere review, the premise of the district court’s analysis is undercut. Nev ertheless, all of the parties suggest that we can essentially step into the shoes of the district court and review the County’s decision to disapprove the proposed rezoning. To determine if we can fulfill that role, we must determine the standard that should have applied to the district court’s review and, in turn, the appropriate role of an appellate court.
Because the City and the landowners primarily ask us to limit the County’s role to one of quasi-judicial review, they do not discuss an alternative standard of review in detail. In the City’s limited discussion of the question, it agrees, at least in broad terms, with the County’s suggestion that a limited de novo standard of review should have applied to the district court’s review and similarly limits our review. Even though there is apparent agreement that a limited de novo standard applied, the City and the County do not agree as to the source or the parameters of that limited review.
The City notes that the landowners’ action was filed in district court pursuant to K.S.A. 3-709. The City does not suggest what the scope of review should be for either the district court or an appellate court under that provision, other than to argue that the provision “does not alter the ultimate burden of proof.” The City then suggests the district court appropriately placed that burden of production on the County.
The County cites K.S.A. 60-2101(d), a general statute allowing appeals to the district court from certain administrative decisions and defining the scope of review of a district court and an appellate court. Under that provision, the County asserts that we should utilize the appellate standard of review customarily applied when reviewing the action of a political subdivision exercising quasi-judicial functions. In such circumstances, a district court is limited to determining if the political subdivision’s decision fell within the scope of its authority; was supported by substantial competent evidence; or was fraudulent, arbitrary, or capricious. Then, on appeal from the district court, an appellate court reviews the political subdivision’s decision as though the initial appeal had been made directly to the appellate court, thus applying the same limited standard.
Brown v. U.S.D. No. 333,
The County also offers an “alternate” standard of review, one that is unique to zoning cases and examines the reasonableness and lawfulness of a zoning action. This standard was stated in
Golden,
“(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.
“(6) 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.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” Combined Investment Co.,227 Kan. at 28 .
The County does not explain why we would ignore these rules and apply K.S.A. 60-2101(d) and merely presents the two standards of review as alternatives.
The parties presented these same standard of review options to the district court, and the district court decided to apply a combination of the principles set out in K.S.A. 3-709, K.S.A. 60-2101(d), and
Golden/Combined Investment Co.
To determine if this was appropriate, we begin our analysis with K.S.A. 3-307e because it includes a sentence that addresses judicial review, stating, in part, that “[t]he provisions of article 7 of chapter 3 of the Kansas Statutes Annotated shall, insofar as the same can be made applicable,
govern judicial review
and enforcement and remedies for
airport zoning regulations
adopted pursuant hereto.” (Emphasis added.) The term “airport zoning regulations” is not defined in the statutes relating to airport zoning. However, the term “zoning regulations” is defined in the general zoning statutes that apply to cities and counties to “mean the lawfully adopted zoning ordinances of a city and the lawfully adopted zoning resolutions of a county.” K.S.A. 12-742(11). In prior cases, this court applied the term “zoning regulations” to include actions regarding rezoning, concluding that an “ ‘action’ by the governing body, denying a request for rezoning, is a ‘regulation’ as contemplated by the statute, from which an appeal to the district court may be taken by petition.”
Olson v. City of WaKeeney,
The specific provision of chapter 3 that relates to judicial review is K.S.A. 3-709, which provides:
“(1) Any person aggrieved, or taxpayer affected by any decision made under the provisions of this act may file within thirty days from the rendition of such decision in the office of the clerk of the district court of the proper county a verified petition setting forth and specifying the grounds for review upon which the petitioner relies and designating the decision sought to be reviewed. The clerk shall forthwith cause written notice of such appeal to be served upon the political subdivision or subdivisions.
“(2) Upon presentation of such petition the court shall set it down for hearing and the same shall be tried de novo as in a civil case, and enforcement of said regulations shall be stayed until said petition is finally determined by the court. Appeals may be taken to the supreme court from any order, ruling or decision as in other civil cases.” (Emphasis added.)
This conclusion was based on the district court’s attempt to reconcile the wording of K.S.A. 3-709 that refers to a “review” of the political subdivision’s decision with the statute’s wording that the matter is to be “tried de novo as in a civil case.” There is some incongruity in this wording because usually a “review” of an agency action is thought of as an “appeal,” and an appeal is usually thought of as a review based on the evidence and issues submitted to the agency. In contrast, a trial de novo is thought of as a trial anew. Nevertheless, such wording, while unclear, is not unique.
In
Frick v. City of Salina,
In this regard, no one has suggested that the County’s decision was purely judicial. Hence, we can conclude the district court correctly determined that it should not conduct a full trial or make independent findings of fact.
Cf. Frick,
Indeed, rather than being a judicial function, it is generally recognized that a zoning determination is classified as either a legislative or a quasi-judicial function.
Zimmerman,
“include[s] the rule that clearly exemplifies one of the chief characteristics of a legislative action’s highly deferential review:
“Rule (6): ‘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.’ (Emphasis added.) Combined Investment Co.,227 Kan. at 28 .” Zimmerman,289 Kan. at 948 .
The
Zimmerman
decision also noted that rules 1, 3, and 5 of the
Golden/Combined Investment Co.
standard of review are “appropriate for reviewing legislative actions.”
Zimmerman,
“ ‘[Ljater decisions have made clear that the Golden decision has little procedural or substantive impact beyond direct judicial review and the requirement that governing bodies should henceforth supply written findings in support of their decision to grant or deny a rezoning. The standard for validity is still one of reasonableness.’ 3 Rathkopf, Rezonings: Validity and Review § 40.20, pp. 40-42 to 40-43 n.ll (citing [Landau v. City Council of City of Overland Park,244 Kan. 257 , 271,767 P.2d 1290 (1989)]).” Zimmerman,289 Kan. at 949 .
Incorporation of the concept of reasonableness distinguishes the standard of review applied in rezoning decisions from the general standard stated in K.S.A. 60-2101(d). The appropriateness of testing a decision for reasonableness is reinforced by Kansas statutes that incorporate reasonableness as the guiding factor in either a court’s review of a zoning decision or in the zoning body’s consideration of zoning issues. See, e.g., K.S.A. 12-760 (“Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision” regarding zoning.); K.S.A. 19-2964 (“Any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners.”). Importantly, reasonableness is incorporated into the statutes regarding airport zoning. K.S.A. 3-706(1) provides that “[a]ll airport zoning regulations adopted under this act shall be reasonable and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this act.” (Emphasis added.)
Even though the airport zoning statutes incorporate reasonableness as the guiding standard, there remains the distinction that the airport zoning judicial review provision — K.S.A. 3-709 — differs from the judicial review provisions of general zoning statutes applied in
Golden,
“even if a statute provides for de novo review, this court ‘has almost universally applied this doctrine of separation of powers to various appeal statutes providing for appeals from purely administrative tribunals, ruling that the court may not substitute its judgment on questions of fact for that of an administrative tribunal.’ [Citation omitted.]” Frick,289 Kan. at 14 .
Consequendy, we conclude that the difference in wording in K.S.A. 3-709 does not require a different test than is applied in other rezoning cases. Rather, despite the de novo language in K.S.A. 3-709, the separation of powers doctrine requires Kansas courts to apply a highly deferential standard of review to the County’s decision to disapprove the proposed rezoning. As noted, the standard of review as summarized in
Golden
and
Combined Investment Co.
is consistent with this highly deferential scope of review. In summary, we hold that the
Issue 3: Was the County’s decision to disapprove the proposed rezoning entitled to a presumption of reasonableness that the landowners were required to overcome by proving that the County’s action was unreasonable?
The critical question for a court applying the
Golden/Combined Investment Co.
standard of review is whether the zoning decision is reasonable and, under rules 3 and 4, “[t]here is a presumption that the zoning authority acted reasonably” and “[t]he landowner has the burden of proving unreasonableness by a preponderance of the evidence.”
Combined Investment Co.,
Nevertheless, as we have discussed, a political subdivision’s planning and zoning power is derived from the grant contained in zoning statutes, and the legislature created an exception in K.S.A. 3-307e to the City’s authority by requiring the County’s approval. Because this exception applies in this case, the County claims to be the final zoning authority, which it claims makes it the zoning authority.
The landowners and the City argue that applying the presumption to the City’s decision to approve the proposed rezoning is consistent with the prior litigation involving the subject property in which this court applied the presumption to the City’s decision.
Board of Johnson County Comm’rs v. City of Olathe,
Relying on
Combined Investment Co.,
Indeed, the parties do not cite to nor have we have found a case discussing a situation similar to that created by K.S.A. 3-307e, where a zoning statute requires the approval of two political subdivisions but does not address what happens if there is a conflict in their decisions. Compare K.S.A. 3-307e (not addressing potential of conflicting decisions) with K.S.A. 3-704(2) (if multiple political subdivisions adopt airport zoning regulations “the more stringent hmitation or requirement as to airport hazards shall govern and
In large part, we reach this conclusion because the plain language of the relevant statutes creates dual responsibilities and recognizes that the interests of the County are different from those of the City, even though both political subdivisions are making a zoning decision. On the one hand, the County has authority over
issues related to the development and zoning of property impacting the Airport. As recognized in
Higgins v. Johnson County Comm’rs,
On the other hand, the City is not charged with any responsibility regarding planning for the continued development of the Airport or for airport safety. Rather, as reflected in the City Commissioners’ consideration of the rezoning application, the City’s focus is on the orderly development of property within its jurisdiction. See K.S.A. 12-755 (governing body may adopt zoning regulations providing for such things as planned unit developments, transfer of development rights, preservation of structures and districts, and control of aesthetics of redevelopment or new development).
The difference in focus raised by these responsibilities could lead the City to deny a rezoning application for reasons totally unrelated to the impact on the development and safe operation of the Airport. If that happened, a landowner could bring a judicial review action and, in that action, the City’s determination would be entitled to a presumption of reasonableness. The County would not play a role in that scenario. Conversely, again without consideration of the impact on the development or safe operation of the Airport, the City might approve a proposed rezoning. But, under K.S.A. 3-307e, that approval would not be final until approved by the County, and the County might reject the proposed rezoning based on the considerations with which it is charged. Hence, fulfilling the differing roles, the City and the County could reach different decisions about whether to allow a rezoning and both decisions could be reasonable and consistent with each political subdivision’s respective responsibilities. Yet, both decisions
Seeking a different conclusion, the City argues that the County is not entitled to a presumption of reasonableness and must overcome the City’s presumption of reasonableness because the County owns the Airport, i.e., the City seeks to put the County in the role of the landowner that bears the burden of production. However, the County’s ownership of land has no impact on this case. Rather, the County’s only involvement is as a zoning authority. The fact that the County owns the Airport does not change our analysis.
Instead, where a political subdivision is considering an amendment to a zoning or land use control resolution or ordinance, the political subdivision is not a challenger but the governing body charged with approving the change. Here, it is the landowners who have challenged the County’s decision and, as such, the landowners should carry the burden of production in overcoming the presumption.
In summary, we hold that under K.S.A. 3-307e both the decision of the City and the decision of the County regarding a rezoning application are entitled to a presumption of reasonableness, and the landowners challenging the rezoning decision bear the burden to establish by a preponderance of the evidence that the challenged decision is not reasonable. See
Combined Investment Co. v. Board of Butler County Comm’rs,
Issue 4: Was the County’s decision to disapprove the proposed rezoning lawful and reasonableP
Having determined the appropriate standard of review and the application of the presumption of reasonableness, the parties urge us to apply the standard. The City and the landowners contend that the County’s decision to disapprove the proposed rezoning was unlawful and unreasonable. The County also urges us to review its decision, although it suggests we find the County’s decision to disapprove the zoning change was lawful, reasonable, and supported by substantial competent evidence.
The landowners contend we can easily affirm the district court’s decision by applying a “negative finding” standard of review. Generally, this court’s standard of review following a negative finding is that the party challenging the finding must prove the factfinder arbitrarily disregarded undisputed evidence or was affected by some extrinsic consideration such as bias, passion, or prejudice.
Nance v. Harvey County,
Instead, as previously discussed, our role should be to review the district court’s application of the Golden/Combined Invest- merits Co. standard of review to the County’s decision. However, the closest the district court came to examining the County’s decision in light of the Golden/Combined Investments Co. principles was in stating:
“[T]he resolution of the County and the County resolution is in conclusory language. The Court finds [the proposed county resolution] does not meet the requirement of Golden, and its following case law in the sense that case law somewhat softens the effect of Golden and permits the Court to refer to the record to provide details to support a governing body’s resolution or ordinance approving or denying zoning.”
The district court did not conclude that the record was inadequate or that review of the factors could not occur, however. Rather, the district court’s focus was on whether the County had overcome the presumption that
Because we depart from the district court’s analysis at this point, we essentially begin anew. In doing so, we not only apply a different standard of review but, in contrast to the district court’s imposition of the burden of production on the County, we impose the burden of production on the landowners.
Despite this change in standard and burden, the parties argue we can resolve the issue of reasonableness because, in zoning cases, that question is one of law. Combined Investment Co., 221 Kan. at 28. We do not quarrel with this general principle and recognize that there may be some judicial efficiency involved if we were to merely resolve the issue of reasonableness, especially since that question has been briefed as an alternative argument. Yet, we decline to do so because, as stated, our rulings in this case mean that we would impose a different burden of proof, apply a different test, and employ a different scope of judicial review than did the district court. In other words, we would be conducting a trial de novo, a task that is statutorily assigned to the district court. If we were to assume that role, we would not only alter the statutory scheme, but we would also preempt any right to meaningful appellate review of a resulting judgment. Consequently, we conclude that this matter must be remanded to the district court for findings regarding the reasonableness of the County’s decision, including a finding of whether the landowners satisfied the burden of overcoming the County’s presumption of reasonableness.
Issue 5: Did the district court err in denying the County’s motion to stay the district cowt’s rezoning ruling pending this appeal?
Finally, the County argues that the district court erred in denying its motion to stay the court’s March 16, 2009, journal entry of judgment, which incorporated the court’s order to publish the city rezoning ordinance, pending this appeal. Our decision to reverse the district court means that the proposed rezoning has not been approved by the County and, therefore, the City’s ordinance is not valid. Consequently, the district court erred in ordering the publication of the City’s ordinance, and the remaining issues regarding the validity of the ordinance are moot.
Reversed and remanded.