Austin Properties v. City of Shawnee

547 P.3d 531

AUSTIN PROPERTIES, LLC, Appellant,

v.CITY OF SHAWNEE, Kansas, Appellee.

No. 125,734

Court of Appeals of Kansas.

Oral Argument Held August 15, 2023

Opinion Filed April 26, 2024

Syllabus by the Court

1. Cities and counties may enact broad zoning ordinances and procedures so long as they do not violate state zoning statutes.

2. State zoning statutes do not prohibit zoning authorities from treating applications for multi-family residential planned unit developments as zoning amendments governed by K.S.A. 12-757.

3. Zoning authorities are not prohibited from applying the protest provisions of

K.S.A. 12-757(f)(1) to multi-family residential planned unit development applications.

4. When neighbors file a valid protest petition against a zoning amendment pursuant to K.S.A. 12-757(f), the zoning authority can only approve the amendment by a 3/4 majority vote.

5. If a zoning authority fails to approve a protested zoning amendment by 3/4 majority vote, the protested zoning amendment is denied, and the processes for resubmission of failed zoning amendments in K.S.A. 12-757(d) are inapplicable.

6. Zoning authorities are strongly encouraged, although not required, to consider and document the factors enumerated in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), when evaluating zoning amendments. Zoning authorities may consider some Golden factors more important than others and are not limited to the factors enumerated in Golden for their zoning decisions.

7. Zoning authorities cannot rely on unsupported generalities or a plebiscite of neighbors when making zoning decisions.

Appeal from Johnson District Court; James F. Vano, judge.

Melissa Hoag Sherman and Lewis A. Heaven, Jr., of Spencer Fane LLP, of Overland Park, for appellant.

Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, LLP, of Overland Park, for appellee.

Before Warner, P.J., Gardner and Hurst, JJ.

Hurst, J.:

Austin Properties, LLC (Austin) submitted an application to the City of Shawnee (the City) to develop a "high-end" multi-family residential planned unit development on approximately 29 acres near Highway K-7 and Woodsonia Drive. Unfortunately for Austin, an overwhelming number of neighbors filed a protest petition opposing Austin’s application, thus requiring the City to achieve a three-fourths (3/4) majority vote for approval of Austin’s application. After failing to achieve the requisite super majority vote for approval, Austin’s proposal failed to pass. Austin sought judicial review and the district court upheld the City’s decision. Austin now appeals, claiming the district court erred.

Along with determining the reasonableness of the City’s decision to not approve Austin’s development, this case presents novel questions about the City’s application of state zoning statutes to its application process for mixed residential planned unit developments. Ultimately, the broad authority and discretion of zoning authorities supports the City’s decisions on each issue. The City may enact zoning ordinances—that are not inconsistent with state zoning statutes—to its application process for planned unit developments for mixed residential use. Although not how most people characterize rezoning, the City is permitted to treat applications for planned unit developments as requests for rezoning and apply statutes and ordinances accordingly. Additionally, this court cannot say the City acted unreasonably when it denied Austin’s proposed development. While there is no doubt this court’s review, and likely the credibility and reliability of the City’s zoning decisions, would benefit from a more complete explanation of its rationale for denying Austin’s application, there is sufficient information in the record to demonstrate the reasonableness of the City’s decision.

The district court’s decision is affirmed.

Factual and Procedural Background

Austin owns 29.2 acres of undeveloped land (the Subject Property) in the 5100 to 5300 blocks of Woodsonia Drive in the City of Shawnee in Johnson County. Most of the Subject Property is bounded by 51st Street to the north, Woodsonia Drive to the east, 53rd Street to the south, and Highway K-7 to the west. A small parcel of the Subject Property is located just south of 53rd Street. The elevation of the Subject Property declines as it neats Highway K-7.

The City’s 1996 Approved Use for the Subject Property

J.C. Nichols Company previously owned property that included the Subject Property, and the City granted its rezoning request from agricultural use to planned mixed residential use in 1996. That 1996 rezoning included approval for construction of a multi-family and townhome development of 330 garden level multi-family units in 33 buildings and .68 townhome units in a combination of two-, three-, and four-plex buildings on 44.6 acres. The overall density of the 1996 approved plan was approximately 8.9 dwelling units per acre (du/acre). However, the approved 1996 plan was never developed, and the Subject Property was later acquired by Rodrock Homes (Rodrock).

The City’s 2002 and 2004 Approved Use for the Subject Property

In 2002, the City approved Rodrock’s development plan for the Subject Property which contained 224 townhome units in 57 buildings and 137 single-family cottage units on 43.7 acres. The overall density of Rodrock’s plan was approximately 8.3 du/acre. But a subsequent land acquisition and development plan by the State affected the Subject Property and made Rodrock’s 2002 plan no longer feasible. In 2004, Rodrock obtained the City’s approval for yet another development plan for the Subject Property which contained 314 townhome units in 111 buildings on 43.7 acres, yielding an overall density of approximately 7.2 du/acre. However, later State action also rendered this development plan infeasible. Austin eventually acquired the Subject Property before any development occurred.

The Current Property Development Dispute

The Subject Property is currently zoned planned unit development mixed residential use (PUDMR). The land to the north and east of the Subject Property is zoned single-family residential use and contains single-family homes located in the Woodsonia subdivision. Land to the south of the Subject Property is zoned commercial highway use (CH) and PUDMR. The southern land zoned CH is developed with office and retail uses in the Woodsonia West Center, and a newly constructed fire station and under-construction daycare facility are located on part of the southern land zoned PUDMR. The remaining portion of the southern land zoned PUDMR is undeveloped but approved for townhomes.

The City’s Future Land Use Map within its Comprehensive Plan (the Comprehensive Plan) designates the Subject Property for development with a mix of high- and medium-density residential uses. The Comprehensive Plan contemplates that the highest density be on the western side of the Subject Property adjacent to Highway K-7 and medium density be on the eastern side next to Woodsonia Drive. The City’s Comprehensive Plan defines high-density residential uses as between 10 and 15 du/acre and medium-density residential uses as between 5.01 and 10 du/acre.

In 2019, Austin applied for approval of a new preliminary development plan—the "Woodsonia West Multi-Family Development" (the Woodsonia West Development)—and the necessary "rezoning" of the Subject Property from PUDMR to PUDMR. As explained below, the City defines applications for PUDMR as requests for rezoning or zoning amendments. Austin’s Woodsonia West Development spanned 29.2 acres and contained 42 townhome units in 14 triplex buildings and 384 multi-family units in 16 multi-story apartment buildings, yielding 426 units with an overall density of approximately 14.6 du/acre.

The City Planning Commission’s Report on Austin’s Woodsonia West Development

The City Planning Commission prepared a staff report (the Report) in which it summarized the impact of Austin’s proposed development and found it "should have little, if any, detrimental effect upon the surrounding properties." The Report summarized feedback from the USD 232 School District, which provided there was ample student capacity without changing any boundaries and that "[t]he School District has planned for this type of growth and has indicated it will not negatively affect their services." The City staff relied on Austin’s traffic impact study prepared by traffic engineers to conclude that "the street network adjacent to the proposed development is currently well under capacity and the extra traffic generated by the development will have little to no impact on roadway level of service as a result." The City’s Transportation Manager reviewed Austin’s traffic study and testified at a City Council meeting that he agreed with its conclusions and the routes in and around the neighborhood were "built to handle additional traffic."

The Report ultimately recommended approval of Austin’s Woodsonia West Development. The Report explained:

"Denial of the request would not appear to benefit the health and welfare of the community. The property has been zoned PUDMR for multi-family uses since 1996. Staff believes the proposed development conforms to the Future Land Use Guide of the Comprehensive plan by providing a desirable residential transition/buffer from existing single-family homes to townhomes to multi-family buildings along K-7 Highway. The use of the Planned Unit Development allows for a mixture of differing residential types while governing building materials and site layout to provide a more cohesive, quality development. The development is a high quality plan that provides a variety and mixture of housing stock as a unified, cohesive community. The multi-family uses add to an increase in population needed to help attract and sustain desired restaurants and retail uses.

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"Staff is supportive of the project and the efforts the developer has made in creating a quality multi-family plan that provides a variety

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