Owners of residential property in the City of Roeland Park, which adjoined the property in the City of Fairway that was being rezoned from residential to retail business, were entitled to join a statutorily-authorized protest petition against Fairway because they had benefitted from Fairways past zoning ordinance, were entitled to the enjoyment of their property, and were now directly and harmfully affected by the rezoning ordinance.
How later courts described this case
- Owners of residential property in the City of Roeland Park, which adjoined the property in the City of Fairway that was being rezoned from residential to retail business, were entitled to join a statutorily-authorized protest petition against Fairway because they had benefitted from Fairways past zoning ordinance, were entitled to the enjoyment of their property, and were now directly and harmfully affected by the rezoning ordinance.
- "Zoning ordinances, being in derogation of the right of private property, should be liberally construed in the property owner's favor, and where exceptions appear they are liberally construed in favor of the property owner."
- owners residing outside city limits had right to protest rezoning
Written by the judges who cited it.
The opinion
Robb, J.
(dissenting): I am unable to agree with the theory of the majority opinion that residents, taxpayers, or those interested in property located in the city of Roeland Park, Kansas, in Johnson county, by reason of the provisions of G. S. 1949, 12-708; 12-712, receive any power or authority to become protesters in a zoning case involving property in the city of Fairway, or that such persons are thereby made such proper parties to the proceedings here involved that they can maintain the action they sought to maintain in the court below.
In my opinion the statutes are quite clear and must be considered in their entirety. They should not be divided into parts. Section 12-708 relates to boundaries, notice and hearings, and protests. As applied herein, Fairway is a municipality having a city planning' commission and, therefore, comes under the first portion of the statute with respect to tentative reports, public hearings, and times and places of hearings, upon giving of notice, and final reports, after which the governing body may fix the boundaries, which boundaries the governing body may from time to time change, amend, or supplement, “Provided, Such proposed change shall first be submitted to the city planning commission ... for recommendation and report: And provided further, That not less than thirty days’ notice of any such proposed change shall first be published in the official newspapers of such municipality and a hearing be granted to any person interested at a time and place specified in such notice.” (My emphasis.) Then follows the portion of 12-708 quoted heretofore in the majority opinion.
Section 12-712 is also set out in the majority opinion, and I wish to call particular attention to the words, “. . . and any taxpayer or any other person having an interest in property affected. . . .” (My emphasis.) Obviously, this is not a requirement for publication of notice outside the city involved, here the municipality of Fairway. However, under both 12-708 and 12-712 anyone interested *716 in any land in Fairway, whether it be by ownership, lease, or some form of sale contract, may appear and file a protest, but I do not believe that a municipality or the citizen of any municipality can exercise extra-territorial power over another municipality or the land contained therein. This is neither an injunction nor a nuisance action but is, in my opinion, an interference by the citizens of one municipality with a governmental function of another municipality, namely, its city planning. We cannot ignore the age-old rule that one city has no control over the government of another city which I think should be applicable not only to legislative functions but also to the executive and judicial functions of a city. By use of plain and unambiguous language directing where notice is to be published and the people who are to be reached, I think the legislature made clear its intention to include only one municipality and the citizens and the property thereof which, as applied in this instance, is the city of Fairway, Johnson county.
I would, therefore, reverse the judgment of the lower court in this case.