| KAUP & SHULTZ Attorneys at Law, LC The Library |
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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 extraterrirotial
land use regulations. Call Jim for real examples of
how this is done in Kansas.
land use regulations. Call Jim for real examples of
how this is done in Kansas.
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AN OVERVIEW OF EXTRATERRITORIAL
REGULATION OF LAND USE
A. DEFINING THE PROBLEM FOR CITIES AND
COUNTIES
1. Recipe for Conflicts Between Cities and
Counties.
• city has given insufficient thought to when or
how the urban fringe should develop, made no
provision for urban fringe growth as part of its capital
improvement plan, and has not attempted to
influence county land use regulations within the
urban fringe; and
• Either county does not regulate of use of land (i.
e. no zoning or subdivision regulations or building
codes); or County does regulate land, but city and
county have conflicting land use policies and
objectives with respect to development in the urban
fringe area.
2. Some of the Problems Which Result From Lack of
City and County Cooperation.
Consequences for the city and the county, and the
public they serve:
• Long range planning for, and development of,
the fringe area, and possibly additional territory, is
compromised.
• Immediate conflicts can also arise from
incompatible land uses on nearby parcels of land – e.
g., one parcel inside the city's limits, the other outside.
• Developers and landowners will easily pick up
on signs of confusion or conflict between a city and
county with respect to land use regulation in the
urban fringe. They will respond either by seeing the
situation as an opportunity to exploit, or by moving on
to some other community where a more rational,
predictable (i.e. safer) environment exists in which to
invest their money.
3. Outcomes Resulting from Lack of City-County
Cooperation.
• Desired development does not occur because
developers are leery of what the land development
"rules" are, and are concerned about undesirable
uses locating near their property.
• Development occurs, but at an intensity not
efficient for urban-scale growth. City gets hemmed in
by sprawl development that makes extension of
municipal services and infrastructure inefficient or
impossible.
• Development occurs without proper thought as
to future extension of city's infrastructure. Streets,
sewers, water lines etc., do not line up or are
otherwise incompatible. Parks and open spaces are
not provided for, neither are schools or other public
uses.
• Development occurs, but too much, too fast.
May take the form of relocation of homes and
businesses from locations within the “more
regulated” city to the “less regulated” urban fringe
area.
• Development occurs, but is the wrong type of
development at the wrong location (cement plant,
salvage yard, landfills, shopping malls).
• Loss of natural resources, environmentally-
sensitive land, prime agricultural land, open space,
etc., consumed by unplanned, sprawl development.
4. Summary: Bad News and More Bad News.
• Growth that is wanted does not materialize, and
• Growth occurs, but it is of a character that
creates adverse consequences for the community.
B. STATUTORY, AND OTHER, TOOLS THAT MAY
PROVIDE SOLUTIONS
1. Political Process.
• Elections. Election of decision makers sensitive
to the significance of urban fringe development.
• Joint meetings of city and county governing
bodies and planning commissions to discuss common
issues and possible solutions.
2. Annexation—Bringing Land that is Urban in
Character into the City’s Corporate Boundaries.
a. What is the city’s attitude?
• Annexes only upon request of the property
owner.
• Annexes only when such is not controversial.
• Annexes as part of an overall growth/economic
development strategy, whether landowner wants to
be annexed or not.
b. What do zoning regulations provide for with
respect to classification of newly annexed land? See
Crumbaker, et al v. Hunt Midwest Mining, Inc., et al.,
275 Kan. 872, 69 P.3d 601 (Kan. 2003) (annexed
property retains its county zoning classification until
rezoned by annexing city).
c. Some cities still extend municipal services
beyond their city limits without getting a consent to
annexation for property receiving those services.
d. Pros and cons of annexing: Clearly the best
way for a city to achieve influence over an area, but
nonconsented-to annexations are difficult politically
(especially if need county commission approval per K.
S.A. 12-521) and can be expensive (service extension
plan, provision of services, etc.).
3. Kansas statutes providing extraterritorial land
use authority.
a. For planning - K.S.A. 12-744.
b. For zoning - K.S.A. 12-754(a).
c. For subdivision regulations -
K.S.A. 12-749(a); K.S.A. 12-750.
d. For building codes - K.S.A. 12-751 and 12-751a.
C. EXTRA-TERRITORIAL JURISDICTION.
1. Comprehensive Planning - A city planning
commission is authorized to make a comprehensive
plan for the development of such city and any
unincorporated territory lying outside of the city but
within the same county in which that city is located.
K.S.A. 12-747(a). The planning commission of any
city that plans, zones or administers subdivision
regulations extraterritorially must have at least two
members who reside outside the city limits and within
three miles of the city. K.S.A. 12-744(a).
2. Zoning Regulations. A city may apply its zoning
regulations to land located outside the city which is
not currently subject to county zoning regulations
and is within 3 miles of the city limits, and not more
than one-half the distance to the nearest city. To use
this power a city must have a planning commission
and its adopted comprehensive plan must "include"
the extraterritorial area. K.S.A. 12-715b; K.S.A. 12-754
(a). County zoning "displaces" city zoning -- the city's
regulations terminate upon county zoning regulations
taking effect in the extraterritorial area. K.S.A. 12-
715d. Extraterritorial zoning can also occur pursuant
to an interlocal agreement between a county and city.
3. Subdivision Regulations.
a. In situations where no county subdivision
regulations are in effect outside a city's limits, a city
may exercise its power under K.S.A. 12-749(a) to
regulate the subdivision of land within three miles of
its corporate limits. A city and county could also
provide for such extraterritorial regulation by the city
by means of interlocal agreement.
b. In situations where a county has subdivision
regulations in effect, a city may acquire subdivision
regulatory authority by one of two means, either (1)
by K.S.A. 12-750 or (2) by interlocal agreement with
the county. Such authority may extend up to 3 miles
outside the city, but not more than one-half the
distance to another city. (K.S.A. 12-750).
If a city decides to exercise subdivision regulation
control outside the city pursuant to K.S.A. 12-750, the
city must adopt a resolution stating its intent and the
area sought to be controlled and certify a copy to the
county board.
Within 60 days after the date of certification a joint
committee for subdivision regulation is to be
established by joint resolution of the city and the
county. This committee is composed of three
members of the county planning board, three
members of the city planning commission and one
member selected by those six.
The joint subdivision regulation committee is to
recommend a single set of subdivision regulations for
the area designated within six months after its
appointment. Any regulations previously adopted for
the area remain in effect for six months or until the
joint committee recommends regulations.
If the county does not have subdivision regulation
controls when the city first exercises its
extraterritorial authority, but decides later to
exercise subdivision control within that area, the
county must notify the city by resolution. A joint
committee for subdivision regulation as described
above is then established. Unlike the case with
zoning, the county cannot simply “displace” the city
once it exercises subdivision control.
4. Building Codes. While any county may adopt
and enforce building codes for the unincorporated
areas regardless of whether the county also engages
in planning, zoning or subdivision regulation, a city
may only enforce building codes outside its limits
under the authority of K.S.A. 12-751 or pursuant to an
interlocal agreement. K.S.A. 12-751 allows such
extraterritorial actions by cities "in conjunction with
subdivision or zoning regulations."
K.S.A. 12-751a adds a protest petition provision to the
law allowing cities to enforce building codes
extraterritorially. K.S.A. 12-751a establishes a
protest petition and election procedure to be
conducted in the area outside and within three miles
of the corporate limits of a city which adopts an
ordinance providing for the enforcement of building
codes in this unincorporated area. A sufficient
protest petition (20 percent of the qualified electors
residing within the extraterritorial area) must be filed
within 90 days of the effective date of the ordinance.
If a majority vote in favor of rejecting the building
code regulation, the city must modify its ordinance to
exclude the area and the city may not adopt any
ordinance extending building codes in this area for at
least four years.
D. INTERLOCAL AGREEMENTS
The Kansas Interlocal Cooperation Act (K.S.A. 12-
2901, et seq.) is a broad, liberal grant of authority that
cities and counties can use to craft regulatory
arrangements best-suited for local needs and
conditions. The Act has been used many times and in
many places to provide for more effective, efficient
regulation of development at the urban fringe. While
the Act is broad, and allows for creative
arrangements, there are a couple of parameters that
must be recognized. Among the most important of
these are:
1. Interlocal agreements cannot delegate
authority that an entity does not have. e.g., county
power to regulate land used for agricultural purposes
is limited by K.S.A. 12-758. This limits the power it
can pass to a city.
2. Interlocal agreements cannot delegate
authority which an entity is prohibited by state law
from exercising. e.g., city exercising zoning power
over land more than 3 miles beyond city limits, or city
imposing building codes without opportunity for a
protest petition and election.
3. Any procedures or requirements created by an
interlocal agreement must meet recognized legal
standards, most notably procedural and substantive
due process of law. e.g., a provision giving a BOCC
“veto” power over rezonings in a growth area raises
Due Process issues for property owners unless care
has been given to how, when and why the BOCC uses
its “veto”.
REGULATION OF LAND USE
A. DEFINING THE PROBLEM FOR CITIES AND
COUNTIES
1. Recipe for Conflicts Between Cities and
Counties.
• city has given insufficient thought to when or
how the urban fringe should develop, made no
provision for urban fringe growth as part of its capital
improvement plan, and has not attempted to
influence county land use regulations within the
urban fringe; and
• Either county does not regulate of use of land (i.
e. no zoning or subdivision regulations or building
codes); or County does regulate land, but city and
county have conflicting land use policies and
objectives with respect to development in the urban
fringe area.
2. Some of the Problems Which Result From Lack of
City and County Cooperation.
Consequences for the city and the county, and the
public they serve:
• Long range planning for, and development of,
the fringe area, and possibly additional territory, is
compromised.
• Immediate conflicts can also arise from
incompatible land uses on nearby parcels of land – e.
g., one parcel inside the city's limits, the other outside.
• Developers and landowners will easily pick up
on signs of confusion or conflict between a city and
county with respect to land use regulation in the
urban fringe. They will respond either by seeing the
situation as an opportunity to exploit, or by moving on
to some other community where a more rational,
predictable (i.e. safer) environment exists in which to
invest their money.
3. Outcomes Resulting from Lack of City-County
Cooperation.
• Desired development does not occur because
developers are leery of what the land development
"rules" are, and are concerned about undesirable
uses locating near their property.
• Development occurs, but at an intensity not
efficient for urban-scale growth. City gets hemmed in
by sprawl development that makes extension of
municipal services and infrastructure inefficient or
impossible.
• Development occurs without proper thought as
to future extension of city's infrastructure. Streets,
sewers, water lines etc., do not line up or are
otherwise incompatible. Parks and open spaces are
not provided for, neither are schools or other public
uses.
• Development occurs, but too much, too fast.
May take the form of relocation of homes and
businesses from locations within the “more
regulated” city to the “less regulated” urban fringe
area.
• Development occurs, but is the wrong type of
development at the wrong location (cement plant,
salvage yard, landfills, shopping malls).
• Loss of natural resources, environmentally-
sensitive land, prime agricultural land, open space,
etc., consumed by unplanned, sprawl development.
4. Summary: Bad News and More Bad News.
• Growth that is wanted does not materialize, and
• Growth occurs, but it is of a character that
creates adverse consequences for the community.
B. STATUTORY, AND OTHER, TOOLS THAT MAY
PROVIDE SOLUTIONS
1. Political Process.
• Elections. Election of decision makers sensitive
to the significance of urban fringe development.
• Joint meetings of city and county governing
bodies and planning commissions to discuss common
issues and possible solutions.
2. Annexation—Bringing Land that is Urban in
Character into the City’s Corporate Boundaries.
a. What is the city’s attitude?
• Annexes only upon request of the property
owner.
• Annexes only when such is not controversial.
• Annexes as part of an overall growth/economic
development strategy, whether landowner wants to
be annexed or not.
b. What do zoning regulations provide for with
respect to classification of newly annexed land? See
Crumbaker, et al v. Hunt Midwest Mining, Inc., et al.,
275 Kan. 872, 69 P.3d 601 (Kan. 2003) (annexed
property retains its county zoning classification until
rezoned by annexing city).
c. Some cities still extend municipal services
beyond their city limits without getting a consent to
annexation for property receiving those services.
d. Pros and cons of annexing: Clearly the best
way for a city to achieve influence over an area, but
nonconsented-to annexations are difficult politically
(especially if need county commission approval per K.
S.A. 12-521) and can be expensive (service extension
plan, provision of services, etc.).
3. Kansas statutes providing extraterritorial land
use authority.
a. For planning - K.S.A. 12-744.
b. For zoning - K.S.A. 12-754(a).
c. For subdivision regulations -
K.S.A. 12-749(a); K.S.A. 12-750.
d. For building codes - K.S.A. 12-751 and 12-751a.
C. EXTRA-TERRITORIAL JURISDICTION.
1. Comprehensive Planning - A city planning
commission is authorized to make a comprehensive
plan for the development of such city and any
unincorporated territory lying outside of the city but
within the same county in which that city is located.
K.S.A. 12-747(a). The planning commission of any
city that plans, zones or administers subdivision
regulations extraterritorially must have at least two
members who reside outside the city limits and within
three miles of the city. K.S.A. 12-744(a).
2. Zoning Regulations. A city may apply its zoning
regulations to land located outside the city which is
not currently subject to county zoning regulations
and is within 3 miles of the city limits, and not more
than one-half the distance to the nearest city. To use
this power a city must have a planning commission
and its adopted comprehensive plan must "include"
the extraterritorial area. K.S.A. 12-715b; K.S.A. 12-754
(a). County zoning "displaces" city zoning -- the city's
regulations terminate upon county zoning regulations
taking effect in the extraterritorial area. K.S.A. 12-
715d. Extraterritorial zoning can also occur pursuant
to an interlocal agreement between a county and city.
3. Subdivision Regulations.
a. In situations where no county subdivision
regulations are in effect outside a city's limits, a city
may exercise its power under K.S.A. 12-749(a) to
regulate the subdivision of land within three miles of
its corporate limits. A city and county could also
provide for such extraterritorial regulation by the city
by means of interlocal agreement.
b. In situations where a county has subdivision
regulations in effect, a city may acquire subdivision
regulatory authority by one of two means, either (1)
by K.S.A. 12-750 or (2) by interlocal agreement with
the county. Such authority may extend up to 3 miles
outside the city, but not more than one-half the
distance to another city. (K.S.A. 12-750).
If a city decides to exercise subdivision regulation
control outside the city pursuant to K.S.A. 12-750, the
city must adopt a resolution stating its intent and the
area sought to be controlled and certify a copy to the
county board.
Within 60 days after the date of certification a joint
committee for subdivision regulation is to be
established by joint resolution of the city and the
county. This committee is composed of three
members of the county planning board, three
members of the city planning commission and one
member selected by those six.
The joint subdivision regulation committee is to
recommend a single set of subdivision regulations for
the area designated within six months after its
appointment. Any regulations previously adopted for
the area remain in effect for six months or until the
joint committee recommends regulations.
If the county does not have subdivision regulation
controls when the city first exercises its
extraterritorial authority, but decides later to
exercise subdivision control within that area, the
county must notify the city by resolution. A joint
committee for subdivision regulation as described
above is then established. Unlike the case with
zoning, the county cannot simply “displace” the city
once it exercises subdivision control.
4. Building Codes. While any county may adopt
and enforce building codes for the unincorporated
areas regardless of whether the county also engages
in planning, zoning or subdivision regulation, a city
may only enforce building codes outside its limits
under the authority of K.S.A. 12-751 or pursuant to an
interlocal agreement. K.S.A. 12-751 allows such
extraterritorial actions by cities "in conjunction with
subdivision or zoning regulations."
K.S.A. 12-751a adds a protest petition provision to the
law allowing cities to enforce building codes
extraterritorially. K.S.A. 12-751a establishes a
protest petition and election procedure to be
conducted in the area outside and within three miles
of the corporate limits of a city which adopts an
ordinance providing for the enforcement of building
codes in this unincorporated area. A sufficient
protest petition (20 percent of the qualified electors
residing within the extraterritorial area) must be filed
within 90 days of the effective date of the ordinance.
If a majority vote in favor of rejecting the building
code regulation, the city must modify its ordinance to
exclude the area and the city may not adopt any
ordinance extending building codes in this area for at
least four years.
D. INTERLOCAL AGREEMENTS
The Kansas Interlocal Cooperation Act (K.S.A. 12-
2901, et seq.) is a broad, liberal grant of authority that
cities and counties can use to craft regulatory
arrangements best-suited for local needs and
conditions. The Act has been used many times and in
many places to provide for more effective, efficient
regulation of development at the urban fringe. While
the Act is broad, and allows for creative
arrangements, there are a couple of parameters that
must be recognized. Among the most important of
these are:
1. Interlocal agreements cannot delegate
authority that an entity does not have. e.g., county
power to regulate land used for agricultural purposes
is limited by K.S.A. 12-758. This limits the power it
can pass to a city.
2. Interlocal agreements cannot delegate
authority which an entity is prohibited by state law
from exercising. e.g., city exercising zoning power
over land more than 3 miles beyond city limits, or city
imposing building codes without opportunity for a
protest petition and election.
3. Any procedures or requirements created by an
interlocal agreement must meet recognized legal
standards, most notably procedural and substantive
due process of law. e.g., a provision giving a BOCC
“veto” power over rezonings in a growth area raises
Due Process issues for property owners unless care
has been given to how, when and why the BOCC uses
its “veto”.
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