Maize v. City of Leawood

NOT DESIGNATED FOR PUBLICATION
No. 124,474
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MARK MAIZE and SHANNON MAIZE,
Appellants,
v.
CITY OF LEAWOOD, KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed January 13, 2023.
Affirmed.
Barbara B. Liu and Douglas J. Patterson, of Property Law Firm, LLC, of Leawood, and Michelle
W. Burns, of Burns Law, LLC, of Olathe, for appellants.
Marcia L. Knight, assistant city attorney, for appellee.
Before CLINE, P.J., ATCHESON and COBLE, JJ.
PER CURIAM: Dismayed by a developer's plan to rezone a vacant 13.5-acre tract
adjacent to their neighborhood, Mark and Shannon Maize and Robert and Suzanne
McQuain unsuccessfully fought the Leawood municipal government to derail the
proposal. They then carried their fight to the Johnson County District Court. The district
court entered summary judgment for the City of Leawood, finding the decision to rezone
to be beyond legal reproach. The Maizes have appealed. Especially given the exceptional
judicial deference due a municipality's action in rezoning a particular piece of land, we
find no error in the district court's ruling and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
The Maizes and the McQuains are among 16 homeowners in what's known as the
Mission Heights subdivision at the very south end of Leawood. The subdivision was laid
out under zoning regulations for Johnson County—before the City annexed the property.
As a result, the individual lots in Mission Heights are unusually large compared to other
residential areas in the immediate vicinity and have spacious setback and frontage buffers
for the homes. Other nearby residential subdivisions are—in a nontechnical phrase—
more compact; they have more houses built on smaller lots.
Amidst the growth in south Leawood, an irregularly shaped 13.5-acre tract that
includes an easement for high-voltage powerlines remained undeveloped. Various
reasons for the lack of development float through the record and are essentially irrelevant
to the legal dispute. The tract lies next to the Mission Heights subdivision. After various
fits and starts that are also largely beside the point, a developer presented a plan to the
City to develop the tract with 24 lots for single-family homes, described as one or one-
and-a-half story "villa" dwellings, and dedicated common areas. The plan required
rezoning the parcel from R-1, a classification confined to single-family residential
development, to RP-2, also permitting only single-family housing units but on smaller
lots. The developer's proposal skipped over RP-1 zoning, an intermediate residential
classification between R-1 and RP-2.
The developer represented to City officials that with R-1 zoning, the tract would
be limited to about 15 lots, likely rendering any plan financially unworkable. If the homes
were built and priced to cover the development and constructions costs, they probably
would not sell because of the tract's irregularity and the utility easement. Less expensive
homes that should be marketable on 15 lots would not generate enough revenue to cover
the costs of roads, drainage systems, and the common areas. So putting nine more homes
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on the site—with the required rezoning—entailed an essential component of the proposed
plan.
The Maizes, the McQuains, and some other residents of Mission Heights opposed
the development plan at various steps in the municipal review and approval process,
including before the City Planning Commission and the City Council. They expressed
trepidation about increased vehicular traffic, possible noise and visual pollution, and
water runoff with the proposed plan. And they pointed out the RP-2 zoning would permit
denser housing than the plan called for, allowing the developer to switch to a proposal
with even more lots. At no point, however, did the Maizes, the McQuains, or other
opponents offer any expert opinion that the development plan would have a negative
effect on property values in Mission Heights.
The developer sought to mitigate the stated concerns in several ways. First, of
course, the plan called for only nine more lots and homes. The plan required installation
of a storm sewer system, thereby alleviating excessive runoff, and called for several
somewhat larger lots on the border with Mission Heights to curtail any perceived
imbalance in appearance. The developer also agreed that if it did not pursue the proposed
plan, it would request the tract be restored to R-1 zoning. That agreement was
incorporated into the ordinance approving the rezoning.
As we have indicated, the housing density in the developer's plan was comparable
to that in existing residential areas around Mission Heights. The City planning staff,
however, opposed the rezoning request because RP-2 zoning was designed for and
customarily used as a buffer classification for tracts between less dense residential areas
and commercial developments. The RP-2 zoning would not serve that purpose in the
developer's plan and, therefore, should be avoided, according to the planning staff. The
planning staff also noted the overall difference in lot sizes between the proposal and the
Mission Heights subdivision.
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The planning commission approved the plan and the rezoning on a 7-1 vote in late
May 2020. The City Council considered the matter about three weeks later and followed
suit on a unanimous vote. In July, the Maizes and the McQuains filed a petition for
judicial review of the City Council's action, as provided in K.S.A. 12-760. See Evans v.
City of Emporia, 44 Kan. App. 2d 1066, 1069, 243 P.3d 374 (2010) (statute covers city
commission decision granting conditional use permit); Rodrock Enterprises, L.P. v. City
of Olathe, 28 Kan. App. 2d 860, 862, 21 P.3d 528 (2001) (planning commission
decision). In the district court, the homeowners and the City relied on the record
compiled during the municipal proceedings and offered no additional evidence. The
district court granted the City's motion for summary judgment in a lengthy order entered
in August 2021. The Maizes have appealed the district court's ruling.
LEGAL ANALYSIS
A municipality's decision to rezone a particular tract of land entails a quasi-judicial
function rather than a purely legislative one, such as adopting generally applicable zoning
or land use plans. Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130(1978); Lambert v. City of Leawood, No. 121,649, 2020 WL 5491377, at *3 (Kan. App.
2020) (unpublished opinion). Nonetheless, the courts accord exceptional deference to
those determinations and will not disturb them as long as they are reasonable. Golden,
224 Kan. at 595-96; Rodrock Enterprises, 28 Kan. App. 2d at 863; Ternes v. Board of
Sumner County Comm'rs, No. 119,073, 2020 WL 3116814, at *9 (Kan. App. 2020)
(unpublished opinion). In this context, reasonableness entails a broad range of decision-
making, so a municipality acts unreasonably only if the outcome "'lies outside the realm
of fair debate'" as to what may be reasonable. Golden, 224, Kan. at 596 (quoting Gaslight
Villa, Inc. v. City of Lansing, 213 Kan. 862, Syl. ¶ 3, 518 P.2d 410 [1974]). The district
court and any reviewing appellate court may not substitute their own views of what may
or may not be appropriate—that is, how those judges would vote were they elected
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members of the municipal body making the decision. 143rd Street Investors v. Board of
Johnson County Comm'rs, 292 Kan. 690, 710, 259 P.3d 644 (2011).
A presumption of reasonableness attaches to rezoning decisions. In sum, we
should not find a rezoning decision to be "'unreasonable unless clearly compelled to do so
by the evidence.'"143rd Street Investors, 292 Kan. at 710 (quoting Combined Investment
Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 [1980]). As the
party challenging the rezoning, the Maizes bore the burden of proving unreasonableness
in the district court by a preponderance of the evidence. See 143rd Street Investors, 292
Kan. at 710; Golden, 224 Kan. at 595.
To guide the courts in channeling the reasonableness standard, the Kansas
Supreme Court has recognized a series of nonexclusive factors that may be considered:
• The character of the neighborhood; and how nearby properties are zoned and
used;
• The suitability of the rezoned property for the uses to which it will be restricted;
• Whether the rezoning will diminish the value of or otherwise detrimentally affect
nearby property, including the hardship on individual landowners, as compared to any
benefit in public health, safety, or welfare;
• The length of time the subject property has remained vacant as zoned;
• The recommendations of permanent or professional staff; and
• Whether the rezoning conforms to the municipality's master land use plan.
Golden, 224 Kan. at 598; see 143rd Street Investors, 292 Kan. at 705 (encouraging use of
Golden factors); Ternes, 2020 WL 3116814, at *10 (recognizing Golden factors);
Sechrest, LLC v. City of Andover, No. 118,052, 2018 WL 4655611, at *4 (Kan. App.
2018) (unpublished opinion) (recognizing Golden factors).
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When considering a motion for summary judgment, the district court must
construe the evidence in the best light for the nonmoving party, here the Maizes, and give
that party the benefit of any reasonable inferences. Trear v. Chamberlain, 308 Kan. 932,
935-36, 425 P.3d 297 (2018); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan.
891, 900, 220 P.3d 333 (2009). The party seeking summary judgment, here the City, has
to show that even taking the evidence in that light, there are no genuine disputes over any
material facts and it is entitled to judgment as a matter of law. Trear, 308 Kan. at 935;
Shamberg, 289 Kan. at 900. An appellate court applies the same standards in reviewing a
challenge to the district court's entry of summary judgment. We, therefore, owe no
particular deference to the district court's ruling, since it effectively applies the
controlling legal principles to a set of undisputed facts. See Adams v. Board of Sedgwick
County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009).
As we have said, the parties have agreed the universe of relevant evidence resides
in the record compiled in the City's consideration of the developer's plan and rezoning
request. The Maizes suggest that because there were differing views expressed to the
planning commission and the City Council, the district court faced disputed facts
precluding summary judgment. But that misapprehends the nature of the evidentiary
record and the scope of judicial review.
The only evidence before both the district court and us is the record from the
municipal proceedings, and the content of that record is undisputed. The judicial question
is whether that evidence, taken as a whole, negates the presumption of reasonableness
and shows the rezoning to be unreasonable beyond any fair debate. Any disparate views
contained in the record of the municipal proceedings inform the summary judgment
determination but do not prelude summary judgment. The district court and a reviewing
appellate court are "limited to determining whether facts could reasonably have been
found by the [governing] body to justify its decision." Golden, 224 Kan. at 596. As
Golden went on to explain, the courts do not weigh the evidence presented to the
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municipality and will not alter the outcome if it reflects a result that could be fairly
debated. 224 Kan. at 595. In other words, a municipality's decision must be upheld so
long as the determination rests on a plausible basis and cannot be characterized as
arbitrary or wholly eccentric.
We readily conclude the City Council's decision to rezone the 13.5-acre tract came
well within the realm of fair debate, given the evidentiary record. Without rehashing all
of the facts, we find the Maizes and other homeowners in the Mission Heights
subdivision offered either speculative objections to the rezoning or ones the developer
effectively defused. For example, the developer agreed to seek a reversion to the original
R-1 zoning if it didn't go forward with its proposed plan. And the City Council included
that as a condition in the rezoning ordinance. The type of housing—single family
residences—and the density of the units conformed to other developments in the vicinity,
so the plan didn't substantially change the overall character of the area. The Mission
Heights residents didn't substantiate their fears of visual or noise pollution.
The City planning staff opposed the rezoning because it was an atypical use of the
RP-2 classification. The opposition seemed to be based predominately, if not exclusively,
on a general bureaucratic objection rather than any specific harm the change would pose
to the livability or ambience of Mission Heights or the surrounding neighborhoods.
Likewise, the opponents of the rezoning offered no evidence the developer's plan for the
tract, implemented with the RP-2 classification, would decrease property values in
Mission Heights.
Under the circumstances, the City's decision to approve rezoning the tract to the
RP-2 residential classification not only looks to be fairly debatable but appears to reflect
the more compelling side of the debate. We find no error in the district court's decision to
enter summary judgment for the City.
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Affirmed.
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