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Kaup & Shultz,
Attorneys at Law, LC
901 Kentucky
Suite 305
Lawrence, KS 66044
785-838-4300 phone
785-838-4302 fax
A law firm dedicated to
serving the interests of
Kansas local governments
with offices located in
Lawrence and Johnson
County, Kansas. No matter
where you are located in the
State of Kansas, we can
work with you. If your
local government needs legal
assistance, you deserve
Kansas attorneys who know
and practice Kansas local
government law on a daily
basis.
Attorneys at Law, LC
901 Kentucky
Suite 305
Lawrence, KS 66044
785-838-4300 phone
785-838-4302 fax
A law firm dedicated to
serving the interests of
Kansas local governments
with offices located in
Lawrence and Johnson
County, Kansas. No matter
where you are located in the
State of Kansas, we can
work with you. If your
local government needs legal
assistance, you deserve
Kansas attorneys who know
and practice Kansas local
government law on a daily
basis.
On this page is an article about the Golden
factors that are used in Kansas zoning cases.
If you would like to download a copy, click on
the title for a .pdf file.
factors that are used in Kansas zoning cases.
If you would like to download a copy, click on
the title for a .pdf file.
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THE GOLDEN FACTORS IN ZONING CASES
In 1978, the Kansas Supreme Court established a list
of eight factors to assist the courts in determining
whether a local government’s decision to rezone
property was reasonable. The case of Golden v. City
of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978),
is probably the most frequently quoted case in Kansas
zoning jurisprudence. The so-called Golden factors
have not only been cited by numerous district and
appellate courts, they have sometimes been made a
part of local zoning regulations. In addition to
establishing the factors for reviewing the
reasonableness of a rezoning action, Golden also
established that rezoning is a quasi-judicial decision
rather than a legislative decision. As a result, due
process issues concerning notice, an opportunity to
be heard and fundamental fairness became a part of
Kansas zoning law.
The Golden factors are:
(1) The character of the neighborhood;
(2) the zoning and uses of properties nearby;
(3) the suitability of the subject property for the uses
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 gain to the public health, safety, and welfare by
the possible diminution in value of the developer's
property as compared to the hardship imposed on the
individual landowners;
(7) the recommendations of a permanent or
professional planning staff; and
(8) the conformance of the requested change to the
city's master or comprehensive plan.
The Golden factors have also been applied to the
analysis of the reasonableness of granting or denying
a special or conditional use permit, as well as to other
site-specific land use decisions.
However, the Golden factors are only a part of the
story about how a court is to determine the overall
legality of a government’s decision to rezone
property. Two years after Golden, the supreme court
set out the following rules for determining the legality
of local zoning decisions. In Combined Investment Co.
v. Board of Butler County Comm'rs, 227 Kan. 17, 605 P.
2d 533 (1980), the court explained the following now
well-known rules:
(1) The local zoning authority, and not the court, has
the right to prescribe, change or refuse to change,
zoning.
(2) The district court's power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
(3) There is a presumption that the zoning authority
acted reasonably.
(4) The landowner has the burden of proving
unreasonableness by a preponderance of the
evidence.
(5) A court may not substitute its judgment for that of
the administrative body, and should not declare the
action unreasonable unless clearly compelled to do so
by the evidence.
(6) Action is unreasonable when it is so arbitrary that
it can be said it was taken without regard to the
benefit or harm involved to the community at large,
including all interested parties, and was so wide of the
mark that its unreasonableness lies outside the realm
of fair debate.
(7) Whether action is reasonable or not is a question
of law, to be determined upon the basis of the facts
which were presented to the zoning authority.
(8) An appellate court must make the same review of
the zoning authority's action as did the district court.
Although these factors are written from the standpoint
of a landowner challenging a zoning decision, they
apply equally to others, such as neighbors,
challenging a zoning decision. Additionally, the courts
have applied a substantial evidence test when
reviewing a local zoning decision. Thus, the court
does not re-weigh the evidence presented to the
decision maker, it simply examines the record to
determine if there is sufficient evidence to allow a
reasonable decision maker to come to the conclusion
that was reached.
It might be a difficult task to find a recent Kansas
case concerning zoning that does not cite Golden or
Combined Investments. However, with each decision,
the Kansas courts have backed away from Golden as
the end-all and be-all for determining the
reasonableness of a zoning action. The supreme
court has always pointed out that the eight Golden
factors were intended to be examples of the factors
that could help to determine reasonableness, and that
the eight factors were not exclusive. Moreover, the
Kansas courts have emphasized that no one Golden
factor should prevail over others and that one or more
factors might not apply in a given case.
It is unfortunate that government lawyers have often
allowed themselves to be forced into the Golden
straight-jacket, using the factors like they were the
final word on determining the reasonableness of a
zoning decision. Still, lawyers are trained to find
analytical frameworks for answering legal issues.
The sixth rule from Combined Investments is the best
starting point for determining the legality of a zoning
decision: A zoning action is unreasonable when it is so
arbitrary that it can be said it was taken without
regard to the benefit or harm involved to the
community at large, including all interested parties,
and was so wide of the mark that its
unreasonableness lies outside the realm of fair
debate. As long as there is substantial evidence in
the record to support the conclusion that the decision
maker rendered a decision based upon the benefit or
harm to the community, the government’s decision
should be upheld notwithstanding what an analysis of
the Golden factors might reveal.
In 1978, the Kansas Supreme Court established a list
of eight factors to assist the courts in determining
whether a local government’s decision to rezone
property was reasonable. The case of Golden v. City
of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978),
is probably the most frequently quoted case in Kansas
zoning jurisprudence. The so-called Golden factors
have not only been cited by numerous district and
appellate courts, they have sometimes been made a
part of local zoning regulations. In addition to
establishing the factors for reviewing the
reasonableness of a rezoning action, Golden also
established that rezoning is a quasi-judicial decision
rather than a legislative decision. As a result, due
process issues concerning notice, an opportunity to
be heard and fundamental fairness became a part of
Kansas zoning law.
The Golden factors are:
(1) The character of the neighborhood;
(2) the zoning and uses of properties nearby;
(3) the suitability of the subject property for the uses
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 gain to the public health, safety, and welfare by
the possible diminution in value of the developer's
property as compared to the hardship imposed on the
individual landowners;
(7) the recommendations of a permanent or
professional planning staff; and
(8) the conformance of the requested change to the
city's master or comprehensive plan.
The Golden factors have also been applied to the
analysis of the reasonableness of granting or denying
a special or conditional use permit, as well as to other
site-specific land use decisions.
However, the Golden factors are only a part of the
story about how a court is to determine the overall
legality of a government’s decision to rezone
property. Two years after Golden, the supreme court
set out the following rules for determining the legality
of local zoning decisions. In Combined Investment Co.
v. Board of Butler County Comm'rs, 227 Kan. 17, 605 P.
2d 533 (1980), the court explained the following now
well-known rules:
(1) The local zoning authority, and not the court, has
the right to prescribe, change or refuse to change,
zoning.
(2) The district court's power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
(3) There is a presumption that the zoning authority
acted reasonably.
(4) The landowner has the burden of proving
unreasonableness by a preponderance of the
evidence.
(5) A court may not substitute its judgment for that of
the administrative body, and should not declare the
action unreasonable unless clearly compelled to do so
by the evidence.
(6) Action is unreasonable when it is so arbitrary that
it can be said it was taken without regard to the
benefit or harm involved to the community at large,
including all interested parties, and was so wide of the
mark that its unreasonableness lies outside the realm
of fair debate.
(7) Whether action is reasonable or not is a question
of law, to be determined upon the basis of the facts
which were presented to the zoning authority.
(8) An appellate court must make the same review of
the zoning authority's action as did the district court.
Although these factors are written from the standpoint
of a landowner challenging a zoning decision, they
apply equally to others, such as neighbors,
challenging a zoning decision. Additionally, the courts
have applied a substantial evidence test when
reviewing a local zoning decision. Thus, the court
does not re-weigh the evidence presented to the
decision maker, it simply examines the record to
determine if there is sufficient evidence to allow a
reasonable decision maker to come to the conclusion
that was reached.
It might be a difficult task to find a recent Kansas
case concerning zoning that does not cite Golden or
Combined Investments. However, with each decision,
the Kansas courts have backed away from Golden as
the end-all and be-all for determining the
reasonableness of a zoning action. The supreme
court has always pointed out that the eight Golden
factors were intended to be examples of the factors
that could help to determine reasonableness, and that
the eight factors were not exclusive. Moreover, the
Kansas courts have emphasized that no one Golden
factor should prevail over others and that one or more
factors might not apply in a given case.
It is unfortunate that government lawyers have often
allowed themselves to be forced into the Golden
straight-jacket, using the factors like they were the
final word on determining the reasonableness of a
zoning decision. Still, lawyers are trained to find
analytical frameworks for answering legal issues.
The sixth rule from Combined Investments is the best
starting point for determining the legality of a zoning
decision: A zoning action is unreasonable when it is so
arbitrary that it can be said it was taken without
regard to the benefit or harm involved to the
community at large, including all interested parties,
and was so wide of the mark that its
unreasonableness lies outside the realm of fair
debate. As long as there is substantial evidence in
the record to support the conclusion that the decision
maker rendered a decision based upon the benefit or
harm to the community, the government’s decision
should be upheld notwithstanding what an analysis of
the Golden factors might reveal.
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