Kansas Practical Guide to Zoning and Land Use Changes By: David E. Waters In this piece, David Waters offers practical guidance relating to Kansas land use matters. §1
GENERAL INTRODUCTION AND SCOPE OF MATERIALS. As municipalities develop, and populations grow (or, in some cases, shrink), opportunities for both cooperation and conflict arise. Most cities recognize a need to encourage growth, but they are often also under pressure to preserve those characteristics of a community that its residents and the business community already find most attractive. Accordingly, individual property owners often find themselves either preparing their property for development, working to minimize the growth proposed by their neighbors, or both. The following materials focus on "change"—how does a land use attorney assist clients that either want to change the status quo or preserve it? To answer this, one must first be aware of the status quo itself (that is, the regulations or restrictions are currently in place). The following begins with brief overviews of the comprehensive plan, the zoning ordinance, subdivision regulations, and even homeowners' association restrictions. The following materials then address how land use change comes about through the rezoning process, the issuance of special use permits or conditional use permits, and the granting of variances. The materials contain practical examples and practice notes, and point out ethical situations of which practitioners should be aware.
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UNDERSTANDING THE ZONING AND OTHER CONTROLS IN PLACE. §2.1
THE COMPREHENSIVE PLAN.
The comprehensive plan is a county's or city's broadest land use control document. Kansas statute provides: "Such plan or part thereof shall constitute the basis or guide for public action to insure a coordinated and harmonious development or redevelopment which will best promote the health, safety, morals, order, convenience, prosperity and general welfare as well as wise and efficient expenditure of public funds."1 Specifically, the comprehensive plan should address the following broad goals and objectives: ! ! ! ! ! ! !
The general location, extent and relationship of various land uses; population and building intensity standards; public or private transportation facilities; priority of public improvements; plans (including funding sources) for capital improvements; utilization and conservation of natural resources; and any other element deemed necessary.2
The comprehensive plan is not binding on municipalities.3 However, whether or not a particular use is compatible with the comprehensive plan is a factor in determining whether or not a zoning decision is reasonable.4 §2.2
THE ZONING ORDINANCE.
The zoning ordinance (sometimes referred to as the zoning regulations) may then be considered the method by which a comprehensive plan is implemented. Zoning ordinances typically divide areas into "districts," such as residential, commercial, and industrial. Particular uses are then designated as permissible only in certain districts, the idea being that incompatible uses should not generally be found adjacent to each other (e.g., an industrial factory and a residential subdivision). Such districting is often referred to as "Euclidean" zoning, after the United States Supreme Court case Village of Euclid, Ohio v. Ambler Realty Co.5, in which such land use controls were upheld. Though, attitudes on what uses might or might not be appropriate often evolve as areas become more urbanized (or remain vacant) and lifestyles change (for example, desires to live, work, and play in the same mixed areas). In Kansas, a municipality's own power and authority to regulate the use of land through zoning is derived from the Legislature, through K.S.A. 12-741 et seq., which serves as enabling legislation for county and city zoning regulations. Specifically, K.S.A. 12-753(a) provides (in part): The governing body of any city, by adoption of an ordinance, and the board of county commissioners of any county, by adoption of a resolution, may provide for the adoption or amendment of zoning regulations in the manner provided by this act. The governing body may
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