IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL DEPARTMENT

16CV01076 Div11 IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL DEPARTMENT QRIVIT, LLC, ) ) Plaintiff, ) ) Case No. 16CV01076 v. ) Chapter 60; Division 11 ) ) CITY OF SHAWNEE, KANSAS ) A Municipal Corporation ) ) Defendant. ) FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter was tried before the Court on May 24th and May 25th, 2017. The Court took the matter under advisement and requested that the parties submit proposed findings of fact and conclusions of law. On June 16, 2017, both parties submitted their proposals (Docs. 37, 38). After consideration of all the evidence, testimony, arguments, and proposals, the Court grants judgment on Count I of Plaintiff s Petition for Review and Damages in favor of defendant. FINDINGS OF FACT 1. Plaintiff Qrivit, LLC ( Qrivit ) is a Nebraska limited liability company authorized to do business in Kansas. 2. James L. Nissen and Greg L. Nissen are the two members of Qrivit. 3. Qrivit owns an undeveloped 28.66-acre tract of land located west of Pflumm Road and north of 62th Street in the City of Shawnee, Kansas. 4. The topography or elevation of the property is highest along Pflumm Road to the east and to the south and west of the property, where there are mature single family and duplex 1

residences. The topography is at its lowest to the northwest where a pond is located adjacent to public and commercial development. 5. Since 1987, the property has been designated in the City s Comprehensive Plan as appropriate for a combination of medium density residential ( MDR ) and office/commercial uses. 6. Under the MDR designation, density of 5.01 to 10 dwelling units per acre is recommended. 7. According to the City Director of Planning, the Comprehensive Plan... suggests that the number of units per acre is a density range and should not be construed to represent a maximum allowable density. 8. In 2014, per Qrivit s request, the property was rezoned from R-1 (single family residential) and DU (duplex) to a combination of PUDMR ( planned unit developed mixed residential ) and PUDMX ( planned unit development mixed use ) for the Cobblestone Planned Unit Development ( Cobblestone ). 9. Cobblestone involved: (1) multiple maintenance-provided, age-restricted, singlefamily villas; (2) independent living facilities; (3) a great house social center available to residents of the development; (4) a mixed-use commercial retail and/or office space for lease; (5) recreational walking trails throughout the development, a park area with play facilities and other amenities, and a lake; and (6) related infrastructures. 10. There was no protest petition filed in opposition of Qrivit s application for the Cobblestone project. 11. Planned Unit Developments require both approval of the rezoning application as well as the plan for the project. 2

12. The Planning Staff reviewed the application and recommended approval to the Planning Commission. 13. Rezoning applications must be heard by the Planning Commission and receive a recommendation of approval or denial before they may proceed to the City Council. 14. On August 18, 2014, the Planning Commission considered the Cobblestone rezoning application and the preliminary development plan and, by a unanimous 11-0 vote, recommended that the governing body approve the application subject to the conditions listed in the staff report. 15. The governing body voted to approve the rezoning application and the plan. 16. The Cobblestone project fell apart when Qrivit learned that its development partner lacked the financial strength to proceed under the 2014 rezoning. Qrivit was unable to proceed with the project. 17. After the Cobblestone project failed, Qrivit entered into a purchase agreement with America First Real Estate Group, LLC ( America First ) for the purchase of the subject property, conditioned upon approval of a rezoning application and site plan. 18. On September 30, 2015, Schlagel & Associations, P.A., on behalf of America First, filed an Application for Rezoning/Zoning with the City. The application requested a rezoning of the subject property from PUDMR and PUDMX to PUDMR and approval of a preliminary site development plan for Vantage at Shawnee Apartments ( Vantage ). 19. Vantage involved 312 apartment units in fourteen buildings, each three stories tall. The project also included a clubhouse and swimming pool, along with other amenities. 20. In preparation for a hearing before the Shawnee Planning Commission, the Shawnee Planning Staff issued its staff report recommending approval. 3

21. On November 2, 2015, a public hearing was held before the Planning Commission on the rezoning application. After hearing evidence and testimony, the Commission voted 8-2 to recommend approval of the application to the City Council subject to certain conditions. The Planning Commission s recommendation on the Vantage application, unlike its recommendation for Cobblestone, was not unanimous. 22. The Planning Commission determined that the application yielded an overall density of 10.89 dwelling units per acre on both the residential and commercially designated lands, while there was a yield of 10.1 dwelling units per acre on the residential designated land. 23. The City Council, which consists of the Mayor and Council members, total nine persons. The Mayor may, but is not required to, vote on any motions. 24. Unlike Cobblestone, there was a valid protest petition that impacted the number of votes needed to approve the application. A super majority is required in these cases, in which seven of the nine members of the City Council must vote to approve the application. 25. On December 14, 2015, the City Council considered the application. The City Planning Staff presented its report and recommended approval of the application. After hearing all of the evidence and testimony, the City Council voted to remand the item back to the Planning Commission to look at traffic. 26. In preparation for the Planning Commission remand hearing, the Planning Staff issued its staff report again concluding that there were no traffic issues that should lead to the denial of the application, and again recommended approval of the remanded application. 27. There was no new traffic study performed by the Planning Staff, who instead relied upon national statistics on daily trip travels. 4

28. On January 4, 2016, the Planning Commission held their remand hearing on traffic issues and voted to resubmit the Planning Commission s original recommendation of approval to the City County. 29. On January 25, 2016, the City Council again considered the application, and members of the public spoke for and against the application, with the majority against. 30. Some members of the public claimed that the apartment buildings were too tall or too close relative to the established residences. Others complained of traffic issues because, unlike Cobblestone, the apartments would likely be rented by younger persons. 31. After hearing all of the evidence and testimony, a motion was made and seconded to approve the application. 32. The motion failed, with three votes for and five votes against, short of the seven votes required to approve the Application. 33. Council members Neighbor, Pflumm, Jenkins, Kemmling and Sandifer voted nay. 34. The Council members who voted against the application, some of whom live near the subject property, collectively expressed concerns in support of their vote to deny the application, including: a. The surrounding property is a mature neighborhood and a high density in-fill such as the subject project is not appropriate for this area; b. This project is without sufficient transition to the single-family residences to the south and west of the subject property; c. The density was slightly in excess of the City s standards and was in excess of the density for the Cobblestone project; 5

d. The height of the buildings, which are approximately four stories and 46 feet above grade, including the roof line, was inappropriate for this property as well as other aesthetic issues; e. The subject property had significantly higher elevations to the south and west adjacent to the existing residences as compared to the north, which was adjacent to commercial and City properties; f. Even though the City staff presented no concern about traffic patterns or volume, several Council members felt that the reliance by staff upon national standards was misplaced, particularly since several lived in or around the subject property. Several also expressed concern that the studies were conducted during the summer, which was off-peak. g. Several expressed concerns about the Planning Staff determination that a retirement-age community would generate more day trips than Millennials occupying 300+ apartments. They disagreed with that determination. 35. Council Member Mickey Sandifer voted against the application because he felt the majority of people that lived in the City were opposed to the Rezoning Application because of the density and the height of the buildings. 36. After the vote, the applicant sought to orally amend the application to reduce the density and move the location of some of the buildings, but city council members declined to consider the amendment because it had not been the subject of an official application, a review by the Planning Staff, or a vote of the Planning Commission. CONCLUSIONS OF LAW 6

37. K.S.A. 12-760(a) authorizes any person aggrieved by a final zoning decision of the city or county to maintain a district court action within 30 days of the City s decision to determine the reasonableness of such decision. 38. The vote of the City Council to deny the Vantage application was a final decision. 39. A city, in enacting a general zoning ordinance, or a planning commission, in exercising its primary and principle function in adopting and in annually reviewing a comprehensive plan for development of a city, is exercising strictly legislative functions. Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978). When, however, the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative. Id. Such a proceeding requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues. Id. 40. The power of the district court, in reviewing zoning determinations, is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. Id. at 595-96; see also Arkenberg v. City of Topeka, 197 Kan. 731, 735, 421 P.2d 213 (1966). The lawfulness of the action taken is not at issue. 41. A recent Kansas Court of Appeals decision authorizes a de novo review to the extent that the board s decision interpreted a zoning regulation or statute. Layle v. City of Mission Hills, 2017 WL 3568551, at *3 (Kan. Ct. App. Aug. 18, 2017). In such a review, the district court should independently determine the meaning of controlling terms in applicable zoning regulations and then determine whether a board s decision was reasonable in light of that statutory construction. Id. (finding that the court should have independently determined the meanings of 7

repair and replacement ). The court would owe no deference to an agency s interpretation of its own regulations. Id. However, statutory or regulatory interpretation is not at issue. 42. In determining reasonableness, the court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. Golden, 224 Kan. at 596. 43. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof by a preponderance of the evidence. Id. 44. The mark of unreasonable action by zoning authorities is when the action is so arbitrary it can be said it was taken without regard to the benefit or harm involved to the community at large... and was so wide of the mark its unreasonableness lies outside the realm of fair debate. Id. (quoting Gaslight Villa, Inc. v. Lansing, 213 Kan. 862, Syl. 3, 518 P.2d 410 (1974)). 45. In fulfilling this quasi-judicial function, the governing body, here the City Council, is to apply the Golden factors. These factors are as follows: (1) The character of the neighborhood; (2) The zoning and uses of the properties nearby; (3) The suitability of the subject property for the use as to which it has been restricted; (4) The extent to which removal of the restrictions will detrimentally affect nearby property; (5) The length of time the subject property has remained vacant as zoned; (6) The relative gain to the public health, safety, and welfare by the destruction of the value of plaintiff s property as compared to the hardship imposed upon the individual landowner; (7) Recommendation of permanent or professional staff; and 8

(8) Conformance of the request change to the adopted or recognized master plan being utilized by the city. Id. at 598. 46. However, [T]he... Golden factors are suggestions and other factors may be equally or more important factors depending on the circumstances of the particular case. McPherson Land Fill, Inc. v. Bd. Cty. Comm rs of Shawnee Cty., 274 Kan. 303, 306, 49 P.3d 522 (2002) (limiting its review to determining whether the given facts could reasonably have been found by the Board to justify its decision). 47. In a given case, it might well be a reasonable decision either to grant or to deny the request of zoning, and the decision would depend upon the elected body s preference for its City s development. Stebbins v. City of Overland Park, 276 P.3d 837, 2012 WL 1759401, at *2 (Kan. Ct. App. May 11, 2012). 48. The local zoning authority, and not the court, has the right to prescribe, change, or refuse to change zoning. R.H. Gump Revocable Trust v. City of Wichita, 35 Kan. App. 2d 501, 508, 131 P.3d 1268 (2006) (quoting Board of Johnson County Com rs v. City of Olathe, 263 Kan. 667, Syl. 1, 952 P.3d 598 (1998)). 49. Whether an action is reasonable or not is a question of law, to be determined upon the basis of the facts which are presented to the zoning authority. Combined Inv. Co. v. Board of County Com rs of Butler County, 227 Kan. 17, 28, 605 P.2d 533 (1980). The trial court may take additional evidence that is relevant to the limited issues of reasonableness and legality of the order appealed from. Landau v. City of Overland Park, 244 Kan. 257, 271, 767 P.2d 1290 (1989) 50. In Landau, the court addressed the second prong reasonableness of the standard of review by stating: 9

244 Kan. at 274. Our standard of review is reasonableness. In our view cities and counties in Kansas are entitled to determine how they are to be zoned or rezoned. Elected officials are closer to the electorate than the courts, and, consequently, are more reflective of the community s perception of its image. No court should substitute its judgment for the judgment of the elected governing body merely on the basis of a differing opinion as to what is a better policy in a specific zoning situation. 51. Where the required majority exists without a vote of any disqualified member of a quasi-judicial body here the City Council that person s presence and vote will not invalidate the result. Tri-County Concerned Citizens, Inc. v. Board of County Com rs of Harper County, 32 Kan. App. 2d 1168, 1180, 95 P.3d 1012 (2004). 52. K.S.A. 12-104 defines the Governing Body to include the Mayor and the Council. The Mayor may, but is not required to, vote on any motion or item. 53. Because a protest petition was filed with regard to the Vantage project, a vote of 7 out of 9 city council members was required to approve the rezoning application. 54. The governing body is to make a record regarding the basis for a denial or a grant of an application. In Golden, the Kansas Supreme Court stated: A mere yes or no vote upon a motion to grant or deny leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action. A board, council or commission, in denying or granting a specific zoning change, should enter a written order, summarizing the evidence before it and stating factors it considers in arriving at its determination. Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978) 55. The City Council is not per se arbitrary in rejecting the recommendation of the Planning Commission or Planning Staff. R.H. Gump, 35 Kan. App. 2d at 508. Finding the Council to be arbitrary merely because it rejected the planning commission s recommendation 10

misconceives the respective roles of the two bodies. Id. (affirming the City of Wichita s denial of a conditional use permit, contrary to the planning commission s recommendation). 56. The function of the Planning Commission is advisory only, its authority being limited to a study of the facts and submission of its recommendations to the governing body wherein the authority to take final action lies. Houston v. Board of City Com rs, 218 Kan. 323, 330, 543 P.2d 1010 (1975) (finding that the city commission was certainly entitled to conform to previously adopted policy and reject the planning commission s recommendation). 57. A denial based upon the visual impact and aesthetics of the proposed development is not unreasonable. See R.H. Gump, 35 Kan. App. 2d 501. 58. While aesthetic considerations may not be as precise as more technical measures and must be carefully reviewed to assure that they are not just a vague justification for arbitrary and capricious decisions, they may be considered as a basis for zoning rulings. Id. at Syl. 6. 59. Neighbor disapproval of a rezoning application cannot be the sole basis for a final ruling. As the Kansas Supreme Court stated: It may be said that about the only substantial evidence submitted by [Neighboring Homeowners] was to the effect that as neighbors they objected to the rezoning for apartments and were fearful that their property would be decreased in value. In Arkenberg v. City of Topeka... we stated... Basically the controversy resolves itself to this: Certain residents owning their homes in the area object to the building of the proposed apartment; they have stated their reasons, these reasons have been taken into account by the zoning authorities, and, in the interest of the entire city, deemed insufficient to prevent the proposed rezoning. Zoning is not to be based upon a plebiscite of the neighbors. Their wishes are to be considered but the final ruling is to be governed by the basic consideration of the benefit or harm involved to the community at large. Waterstradt v. Board of Comm rs of City of Leavenworth, 203 Kan. 317, 320, 454 P.2d 445 (1969) (quoting Arkenberg v. City of Topeka, 197 Kan. 731, 738, 421 P.2d 213 (1966)). 11

60. The fact that the Council approved Cobblestone but not Vantage has no bearing on this Court s decision. These were significantly different projects with significantly different impacts on the surrounding neighborhood. 61. The City has demonstrated that it considered factors beyond the plebiscite of the neighbors. The surrounding property is a mature neighborhood, and a high density in-fill (with a density higher than the recommended range) is not appropriate for the area. The buildings proposed heights, in conjunction with significantly higher elevations, among other aesthetic issues, were properly considered. While the Planning Commission believed any increased traffic would not be a problem, its opinion is merely advisory, and the City Council rationally set forth its issues with the traffic study conducted, namely that it was conducted during an off-peak season. 62. The neighbors concerns may have reflected these considerations, but the source of the concerns does not undermine their legitimacy. The City Council still was governed by the basic consideration of the benefit or harm to the community at large and properly weighed the Golden factors. Coupled with the deference afforded by the standard of review, the City did not act arbitrarily or capriciously in denying the application. The denial was reasonable. CONCLUSION The City did not act in an unreasonable, arbitrary or capricious manner in denying the Vantage application. Defendant is entitled to judgment on Count I. IT IS SO ORDERED. 9/1/17 /s/_paul C. Gurney Date District Court Judge, Div. 11 12

NOTICE OF ELECTRONIC SERVICE Pursuant to KSA 60-258, as amended, copies of the above and foregoing ruling of the court have been delivered by the Justice Information Management System (JIMS) automatic notification electronically generated upon filing of the same by the Clerk of the District Court to the e-mail addresses provided by counsel of record in this case. Counsel for the parties so served shall determine whether all parties have received appropriate notice, complete service on all parties who have not yet been served, and file a certificate of service for any additional service made. /s/ PCG 13