Proposing or Fighting a Controversial Land Use

by Pat Hughes


When you have invested in real estate, or are thinking about doing so, there are two concerns that become dear to you. First, you want to be able to use the land for the purpose for which you sought it. Second, you want to be sure your neighbors don’t use their land in a way that makes your property less valuable or interferes with you. These are, of course, inconsistent desires at some level. You want the unfettered use of your own property and the restricted use of your neighbors’.

Know The Zoning Codes

These competing interests are typically resolved through city or county zoning codes. Zoning codes divide property into districts and define what property uses are allowed in each district. If you or your neighbor want to change the use allowed on a particular piece of land, that is typically done by applying for a zoning change or a conditional use. A conditional use allows a landowner to use property for a purpose that requires special permission in the zoning district in which the land lies. However, only certain uses are allowed as conditional uses in a particular zoning district. Other uses are prohibited outright. When a desired use is not allowed as even a conditional use, the zoning classification must be changed to allow for the use.

First Step, Planning

Whether a landowner applies for a conditional use or a zoning change, the processes by which the applications are evaluated are similar. The landowner files an application with the planning department, and the planning department’s staff reviews the proposal and makes a recommendation. Because the planning staff’s recommendation will carry some weight with the ultimate decision makers, it is important to let the planning staff have the full benefit of the reasons to support or deny the application. The factors that the planning staff, and later the planning commission and governing body, will look at to evaluate whether or not the change should be allowed are set out in the zoning code. As a result, the reasons in favor or against the proposed zoning change should be required in terms of those factors.

In Sedgwick County, outside incorporated cities but within the defined “area of influence” of small cities, the small city’s planning commission has the first opportunity to review a proposed conditional use or rezoning application. A negative recommendation of that body has significant implications. It creates a requirement of unanimity on the County Commission to permit the change. Therefore, for both the applicant and the opponent, the small-city planning commission hearing is important.

In Sedgwick County or Wichita, the Metropolitan Area Planning Commission hearing is the next step in the process. That Commission holds an evidentiary hearing, after notice, on each application. At the hearing all interested parties have the opportunity to present evidence and to speak, briefly. The planning commission hearing is the opportunity to present evidence. Material not introduced there will most likely not be considered by either the governing body or the court.

Next Step, Governing Body

The local governing body (County Commission or City Council) ultimately decides rezoning applications and applications for conditional use permits. The governing body is not required to hear either the applicant or the opponents speak, although it can choose to do so. It makes its decision based on the recommendations of the Planning Commission and the evidence presented at that hearing.

If the governing body wants to adopt the Planning Commission’s recommendation, or wants to send the case back to the Planning Commission for more work, it can do so by a simple majority vote unless a sufficient neighborhood protest has been filed to invoke a super-majority voting standard, or unless a small-city planning commission recommendation imposed a unanimity requirement. In order to override a Planning Commission recommendation, the governing body must either have a 2/3 majority or must first send the matter back to the Planning Commission.

Appeal

After the governing body makes its decision, the landowner or the neighbor, as the case may be, can challenge the decision in court. To be reversed, the decision must either be so unreasonable that its reasonableness lies outside the realm of fair debate, or it must be unlawful. An unlawful decision can be one that results from a procedure that fails to substantially comply with the law, or one that results from impermissible bias or prejudgment by the decision-maker. As a practical matter it is rare that a zoning decision is reversed on appeal, although it does happen. 

Be Early, Be Prepared

Because the initial steps in the rezoning or conditional use process can drive the ultimate result, whether supporting or opposing zoning change, it is important to be actively involved in the process and to make your views known (and the reasons for those views) as early as possible. As with most things, advanced preparation pays off.

(Article appeared in Adams Jones March 2004 Newsletter)