Kansas statute requires county approval of city development in airport area

By Gary Taylor

143rd Street Investors, LLC v. Johnson County (KS) Commissioners and the City of Olathe
(Kansas Supreme Court, August 5, 2011)

143rd Street Investors, LLC (Landowners) own approximately 95 acres of land on the southeast corner of 143rd Street and Pflumm Road, located in the City of Olathe and Johnson County. A portion of the property lies within the Johnson County Executive Airport’s “primary flight corridor subarea A,” which is a 500- foot-wide corridor centered along the extended centerline of the existing runway. 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 was zoned agricultural. Seeking to change this zoning, the 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 conducted public hearings and fully reviewed the rezoning application. As part of this process, the City Planning Staff received a letter in which the Johnson 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, which called for 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. According to the City Planning Staff the failure to comply with the Airport Compatibility Plan was not a detriment to the City’s approval 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, including the incorporation of soundproofing materials into structures in the development, 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 instead to recommend denial of the request.

The rezoning application was next considered by the City Council. After hearing comments from City Planning Staff and 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 unanimously approved the rezoning request.

A copy of the landowners’ application, the plat, and the record developed during the City’s consideration of the application were then forwarded to the Count, as required by K.S.A. 3-307e. After referring the application to the Johnson County Airport Commission (which recommended denial of the project) the County Commissioners denied the landowners’ rezoning application, citing concerns about insufficient open space and the “negative impact upon, and incompatibility with” the Airport Compatibility Plan.

The landowners filed suit in Johnson County District Court.  The district court held that the City was the zoning authority and the County must take a quasi-judicial role in reviewing the City’s rezoning decision. This meant that the County must overcome the presumption that the City’s decision was reasonable if the County was going to deny the rezoning. The district court 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. In light of that, the district court concluded that the difference in density approved vs. the density found in the plan was not sufficient to make the City’s approval unreasonable.

The County appealed the district court ruling, 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. The Kansas Supreme Court sided with the County and reversed the district court. The Supreme Court interpreted K.S.A. 3-307e to allow the County to reach an independent determination; in other words, the County was a reviewer with the same status as the City, and a denial by the county was a denial of the project.

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