The Law

Neighbors Fight Re-zoning by Ron Davis A challenge to plans for a commercial/shopping development in Overland Park, KS, has not met the legal criteria needed to halt the project. The challenge comes from neighbors of the planned project. They contend that it requires zoning changes that are “unreasonable.” They also allege that the city of Overland Park violated their constitutional rights by effectively amending the city’s master development plan without following the required legal procedures. Plans for the project call for a change in zoning from a “rural district” to one that allows mixed use. The city’s planning staff says that an acceptable land-use design would include a neighborhood shopping center, with “higher-density residential uses around the shopping center and lower-density residential use farther away.” The justification behind the rezoning decision is that “the essential nature of the area has changed substantially since it was zoned for rural purposes nearly 20 years ago.” Moreover, Overland Park officials note, “Cities are not required to follow their master plan so long as they give consideration to its provisions.” And, they added, they gave duly mandated consideration to provisions of that master plan. In reply, opponents of the development contend that the planners’ approval of the zoning changes amounts to a revision of the city’s master development plan. Such changes, the opponents add, simply do not follow protocol. A Kansas court determined that the city acted reasonably when it approved the rezoning. The court concluded that the areas around the proposed development had mixed and varied uses—not merely rural ones. The court also found that the proposed use would fit in with surrounding uses, that the land had been vacant for 14 years, and that nearby properties would not be detrimentally affected by the rezoning. In sum, the court ruled that if the rezoning were denied, the hardship to the owner of the property at issue “would be greater than any gain to the public welfare.” The neighbors of the planned project appealed that ruling. A Kansas appellate court agreed with the lower court, explaining, “In Kansas, a landowner does not have a vested right to the continuation of his or her own property’s existing zoning. Here, the challenge is not the zoning of their own property but that of a neighbor, which further undercuts any expectation that the zoning will remain the same.” Concluded the court, “In sum, the opponents of the project have not shown that the city’s grant of the rezoning request for unreasonable. Nor have they shown that they have a constitutionally protected property interest either in the continuation of the tracts prior zoning or in the continuation without change of the city’s master plan.” (Stebbins v. City of Overland Park, 2012 WL 1759401 [Kan.App.]) Decision: June 2012 Published: June 2012