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
Fatzer, J.,
dissenting: In view of the court’s disposition of this case I must respectfully dissent. We are here concerned only with the process of enacting an ordinance by and for the city of Fairway — the exercise of a purely legislative power. The sole question presented is this and no more: May non-residents of the city who own no property therein, pay no taxes for its support, have no right to vote in its elections and are in no wise subject to its jurisdiction, participate in and control the process of enacting local legislation? In my opinion, they may not. It is conceded that by not considering the protest petitions of the residents of Roeland Park, the ordinance in question was legally adopted by a majority vote of the governing body of the city of Fairway. However, the court holds that it was proper under G. S. 1949, 12-708, to consider the protest petitions of the non-resident objecting petitioners (residents of Roeland Park), and because the ordinance was not adopted by at least a four-fifths vote of the governing body of the city of Fairway, the ordinance was not lawfully adopted, and the objecting plaintiffs could attack its validity under G. S. 1949,12-712, as being unreasonable. The holding is unwarranted. The statutory right to attack the ordinance as being unreasonable does not carry the right to attack the mode or manner of its adoption. The two are wholly different.
*717 At the outset, I wish to emphasize that in my opinion it is not necessary to now determine whether the objecting plaintiffs have such an interest as would entitle them to seek judicial relief against unreasonable or arbitrary action by the governing body of the city of Fairway, or judicially to challenge action by the city which might result in the creation of a nuisance. That is not the question the court decides. Hence, decisions which permit non-resident individuals and municipal corporations to challenge the reasonableness of zoning ordinances are not germane to the controversy before us. Nor does this case present the broad aspects of community or regional planning. Consequently, the views on that subject expressed in Duffcon Concrete Products v. Borough of Cresskill, 1 N. J. 509, 64 A. 2d 347 , 9 A. L. R. 2d 678, and cases of that character have no relevance to this controversy.
That an enactment or amendment of a zoning ordinance by a city is the exercise of a legislative power is settled beyond cavil. In my opinion, that right belongs exclusively to the governing body of the city of Fairway. The corollary is that only those who are legally a part of the city may participate in that process. The parties cite no cases, and I know of none, where a court has sanctioned an effort to confer upon non-residents, legally disinterested individuals, the right to participate in the legislative process of a city in enacting a local law.
This brings me to G. S. 1949, 12-708, by which certain owners of frontage affected by a proposed amendment are authorized to materially alter the normal legislative process of a city. To that extent such owners are authorized to participate in the legislative process of amending a zoning ordinance. The question then is: Upon which owners of frontage is that power conferred? The only reasonable and feasible interpretation, in my opinion, is that effective protests may be made only by those owners of frontage affected, or frontage opposite or to the rear of the affected lands, where the frontage owned by the protesting party is located within the city whose ordinance is proposed to be amended. Any other result is contrary to settled concepts of government and law of this state.
I would reverse the judgment.