Background
A vineyard in Riley County, Kansas sought approval for an amended planned unit development (Amended PUD) to expand its operations. Neighboring landowners opposed the expansion by filing a zoning protest petition under K.S.A. 12-757(f)(1), which requires signatures from owners of record of 20% or more of the total real property within the statutorily defined notification area to trigger a supermajority vote requirement. One neighboring parcel was co-owned as tenants in common by Michael and Rebecca Mosier and another party; only the Mosiers signed the petition.
The Board of Riley County Commissioners (the Commission) calculated the Mosiers’ contribution to the petition by counting only half of their parcel’s acreage, reflecting their proportionate ownership share. Under that calculation, the petition fell just short of the 20% threshold. Had the entire Mosier parcel been included, the threshold would have been met. Prairiewood Holdings, LLC — itself a petitioner — appealed, and the Commission cross-appealed on the threshold question of whether the Amended PUD process was subject to the protest petition procedure at all.
The Court of Appeals affirmed in part and reversed in part, holding that the protest petition procedure did apply via incorporation through Riley County Land Development Regulation 4.19.F, and that the proportionality approach (counting only a cotenant’s fractional share) was correct. The Kansas Supreme Court granted review on both issues.
The Court’s Holding
The Supreme Court first addressed whether the protest petition process applied to an Amended PUD at all. The Commission argued that LDR 4.19.F incorporated only the “public hearing” components of K.S.A. 12-757, not the protest petition mechanism. The court rejected that reading, holding that the statute’s process functions as a coherent whole and that the LDR’s directive to follow the “same process as the original rezoning” necessarily encompasses the protest petition procedure. The Court of Appeals was affirmed on this point.
On the tenants-in-common question, the court identified three plausible interpretations of K.S.A. 12-757(f)(1): (1) all cotenants must sign for the parcel to count; (2) any one cotenant may commit the entire parcel; or (3) a cotenant may sign for only a proportionate share. The court found the statute ambiguous and turned to tools of statutory construction. Surveying approaches from Nebraska, California, and Connecticut, the court adopted Connecticut’s rule: all owners of record of a jointly held parcel must sign the protest petition for that parcel’s acreage to count toward the 20% threshold.
The court reasoned that permitting a unit of real property to count toward the threshold without signatures from all its owners of record is contrary to the statute’s intent. It also rejected the proportionality approach, agreeing with the Court of Appeals dissent that the Legislature’s use of proportionality language in the analogous K.S.A. 13-1376 — governing parking benefit district petitions — signals that the Legislature knows how to write such a rule and deliberately omitted it from K.S.A. 12-757. Applying the canon that zoning restrictions must be narrowly construed in favor of free property use, the court resolved the ambiguity against the petition. Because the Mosier parcel should have been excluded entirely — not merely halved — the protest petition failed to reach the 20% threshold.
Key Takeaways
- Under K.S.A. 12-757(f)(1), a parcel held by tenants in common may only be counted toward a zoning protest petition’s 20% threshold if all cotenants sign the petition; a single cotenant’s signature cannot commit even a fractional share of the property.
- A local land development regulation requiring an Amended PUD to follow the “same public hearing process as the original rezoning” incorporates the entirety of K.S.A. 12-757, including the protest petition procedure — the Commission cannot bifurcate the statute to exclude that mechanism.
- Where a zoning statute is ambiguous, Kansas courts will apply the canon favoring the free use of property and construe the ambiguity against the restriction.
- The existence of a proportionality rule in a different, unrelated Kansas statute (K.S.A. 13-1376) suggests the Legislature knows how to enact such a rule — its absence from K.S.A. 12-757 is intentional, not inadvertent.
Why It Matters
This decision establishes a clear, bright-line rule for zoning protest petitions in Kansas: organizers must secure signatures from every owner of record of any co-owned parcel they wish to count toward the threshold. For property owners opposing a rezoning or PUD amendment, this means due diligence in identifying all cotenants before the 14-day filing window closes. For applicants and local governments, it provides a defined basis to challenge protest petitions that rely on only partial signatures from jointly owned tracts.
The ruling also reinforces the principle that local governments cannot selectively incorporate state zoning procedures. By holding that LDR 4.19.F’s reference to the “same process” sweeps in the protest petition mechanism, the court signals that piecemeal incorporation of K.S.A. 12-757 will not survive judicial scrutiny — a significant constraint on how counties and municipalities draft PUD regulations.