Court: Supreme Court of Kansas; July 8, 1988; Kansas; State Supreme Court
The court, led by Justice Miller, addressed an appeal by plaintiffs Clifford F. Davis and Iva L. Davis regarding the involuntary dismissal of their action by the Leavenworth District Court. The defendants are Greenamyre Rentals, Inc., the property owners, and the City of Leavenworth. Greenamyre applied for a planned unit development (PUD) and rezoning, which the City approved on September 9, 1986, formalized by Ordinance No. 6482, changing the property from single-family residential to PUD. Following a subsequent application for final approval, the City granted it on January 13, 1987. The plaintiffs, whose property is within 200 feet of the Greenamyre tract, filed a petition for review of the rezoning on February 12, 1987, within 30 days after the ordinance was published. The trial court dismissed the case, citing a lack of jurisdiction since the plaintiffs did not file their action within 30 days of the zoning decision. However, the Court of Appeals found the appeal timely, stating that the judgment was not effective until a formal judgment form was filed on August 20, 1987, which complied with K.S.A. 60-258. The court concluded that the notice of appeal filed by the plaintiffs was timely and noted that relevant statutes governing planning and zoning in Kansas authorize cities to regulate land use through zoning ordinances.
K.S.A. 12-708 outlines the process for developing zoning plans, including public hearing notifications by the planning commission, recommendations for zoning ordinances, and the city’s adoption of such ordinances. It specifies that property owners may petition for zoning changes, which require published notice, mailed notifications to adjacent landowners, a public hearing, and ultimately, approval via city ordinance. K.S.A. 12-712 allows taxpayers or interested parties to challenge the reasonableness of any zoning ordinance or amendment in district court within thirty days of a decision. K.S.A. 12-725 through -733 empower cities and counties to zone for "planned unit development" (PUD), defined in K.S.A. 12-726(e) as a land area developed as a single entity with various uses that do not conform to standard zoning regulations. K.S.A. 12-728 establishes standards for PUDs, while K.S.A. 12-729 states that applications for PUD approval follow the same notice and procedural requirements as conventional zoning. Before any permits can be issued, landowners must submit a preliminary development plan for approval, record it with the register of deeds, and apply for final approval, including necessary documentation and compliance with zoning regulations.
A final approval plan is considered in substantial compliance with a previously tentatively approved plan if modifications by the landowner do not significantly change certain parameters: 1) residential density or intensity can only vary by up to 5%, with no reduction in common open space area; 2) nonresidential floor area can increase by no more than 10%; 3) total ground area covered by buildings can increase by no more than 5%, without substantial changes to building heights. Modifications related to street location and design or public facilities do not require a public hearing, but the landowner must demonstrate good cause for any substantial variations from the tentatively approved plan. If no public hearing is required, the approving authority must grant final approval within 45 days of submission unless variations from the tentative plan are not in the public interest. The landowner can either treat this as a denial and resubmit or appeal within 45 days, initiating a public hearing. After the hearing, if the landowner disagrees with the decision, they may request a governing body review within 30 days. Reasons for disapproval must be fully stated. Final approval is certified and filed with the register of deeds once all conditions are met. If the landowner abandons the plan or fails to commence development within 18 months of final approval, that approval becomes null and void unless an extension is granted by the approving authority.
K.S.A. 12-730 mandates public hearings before a preliminary development plan can be approved, requiring notice similar to that for zoning ordinance amendments. A final approval hearing is not necessary if the plan significantly complies with a previously tentatively approved plan. K.S.A. 12-3007 outlines the publication requirements for city ordinances, mandating that ordinances (except appropriation ones) be published in the official city newspaper post-passage, taking effect upon publication unless specified otherwise. Appropriation ordinances take effect immediately upon passage. The city clerk must maintain an 'ordinance book' containing copies of all ordinances and certification of publication details. K.S.A. 1987 Supp. 60-2101(d) allows appeals from judgments of political or taxing subdivisions, stating that an aggrieved party must file a notice of appeal within 30 days and submit copies of relevant proceedings to the district court. The issue at hand involves determining whether K.S.A. 12-712 or K.S.A. 1987 Supp. 60-2101(d) governs the appeal rights of plaintiff landowners, amid conflicting case law. In Sabatini v. Jayhawk Construction Co., the court concluded that K.S.A. 12-712 pertains only to zoning matters and is not applicable to appeals related to platting and annexation, which were the focus of the dispute in that case.
Section 712 of the relevant statutes is limited to appeals in zoning matters, as established in previous case law, specifically Sprint Print, Inc. v. City of Overland Park, which affirmed that K.S.A. 12-712 provides judicial review for all city zoning actions, including special use permits. The current case involves a developer's request to rezone land for a Planned Unit Development (PUD), governed by K.S.A. 12-725 et seq., which allows for more flexible zoning compared to conventional methods. The City approved the necessary application and ordinance for rezoning, qualifying as a zoning action subject to K.S.A. 12-712.
The critical issue is determining when the 30-day appeal period begins. The City contends that the period started when the ordinance was enacted on September 9, 1986. However, the ordinance was not effective until published on January 16, 1987. Since the publication was delayed beyond the requirement of K.S.A. 12-3007, the City’s action remained unfinalized until publication. Thus, the appeal period commenced on January 16, 1987, making the subsequent challenge filed on February 12, 1987, timely. The judgment is reversed, and the case is remanded for further proceedings.
