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SENATE BILL No. 418
AN ACT concerning housing; relating to new housing development; enacting the by-right
housing development act providing a streamlined permit approval process for by-
right housing developments; allowing for third-party review of new residential
construction development documents and inspection of improvements; requiring
political subdivisions to allow certain building provisions for certain single-family
residences of a certain size; excluding owner initiated rezoning to a single-family
residential district from protest petition provisions; providing for all land within the
corporate limits of a city that is zoned for any type of residential use to be considered
zoned for single-family residential use; amending K.S.A. 12-757 and 12-758 and
repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) (1) This section shall be known and may be
cited as the by-right housing development act.
(2) The purpose of this section is to promote the development of
housing by streamlining the approval process for by-right housing
development, including single-family homes, townhouses and
accessory dwelling units (ADUs). By facilitating the construction of
additional housing units, this section aims to address statewide housing
shortages and promote affordability.
(b) For the purposes of this section:
(1) "Accessory dwelling unit" or "ADU" means a secondary
housing unit that is subordinate to the primary dwelling unit on the
same lot and may include a separate kitchen, bathroom and entrance.
(2) "By-right housing development" refers to the approval of
proposed housing projects as a matter of right without the need for
discretionary review or approval if such projects comply with
established land use regulations and:
(A) Do not require federal or state discharge permits or
stormwater drainage studies;
(B) have a maximum of 12 attached units as part of any
townhouse project;
(C) comply with the condition that the construction of public
infrastructure extensions or improvements:
(i) Is not required for the development;
(ii) has been completed; or
(iii) is a condition of the regulatory authority's approval of the
application for a by-right housing development that has been agreed to
by the applicant;
(D) would not increase impervious surface in a manner that
adversely affects drainage into a special flood hazard area as defined by
any adopted floodplain management ordinance, as designated by the
Kansas department of agriculture's division of water resources or other
office designated by the governor or by law; and
(E) are not located within a district listed on the national register
of historic places or otherwise subject to historic preservation review
under applicable state, federal or local law.
(3) "Single-family home" means a detached or semi-detached
dwelling arranged, intended or designed to be occupied by a single
family. A semi-detached dwelling is also known as a duplex.
(4) "Townhouse" means a single-family dwelling unit constructed
in a group of three or more attached units in which each unit extends
from foundation to roof with a yard or public way on not less than two
sides.
(c) By-right housing development. (1) All proposed housing
developments, including single-family homes, townhouses and
accessory dwelling units (ADUs), that meet the definition of a by-right
housing development pursuant to subsection (b)(2) and the criteria
outlined in the zoning code and land use regulations shall be approved
by-right, without the need for discretionary review or approval by
planning commissions, zoning boards or other regulatory bodies.
SENATE BILL No. 418—page 2
(2) A complete application for a by-right housing development
that demonstrates that such development meets the criteria outlined in
the zoning code and land use regulations shall be deemed approved
unless the application is denied within 30 days of receipt by the
permitting or regulatory authority, or within 60 days for an application
that requires approval of a subdivision plat pursuant to K.S.A. 12-752,
and amendments thereto, or within 90 days for an application that
requires approval of a subdivision plat of more than 40 single-family
homes pursuant to K.S.A. 12-752, and amendments thereto.
Notwithstanding the foregoing, a subdivision plat shall not be deemed
approved unless such plat complies with all applicable subdivision
statutes and regulations adopted pursuant to K.S.A. 12-752, and
amendments thereto.
(d) Monitoring and compliance. (1) Regulatory authorities shall
monitor compliance with approved by-right housing developments to
ensure adherence to applicable regulations and standards.
(2) Noncompliance with by-right approvals may result in
enforcement actions, such as fines, penalties or project modifications to
bring the development into compliance.
(e) Restrictive covenants or condominium association or
homeowners association regulations. Nothing in this section shall be
construed to invalidate or limit the legality, enforceability or effect of
restrictive covenants or condominium association or homeowners
association regulations. Courts shall recognize and enforce such
covenants and regulations in accordance with applicable laws.
(f) Appeal of denied permit application. (1) An appeal of a denied
by-right housing development permit application pursuant to this
section shall adhere to the provisions of K.S.A. 12-760, and
amendments thereto, except that if the regulatory authority has
established an administrative appeal process to consider such appeals,
such administrative appeal process may be completed first.
Notwithstanding any provisions of law to the contrary, the court
reviewing a denied permit application for a by-right housing
development shall review the decision of the permitting authority de
novo. The inquiry in such a case shall extend to the questions of
whether the permitting authority proceeded without, or in excess of,
jurisdiction, whether there was a fair process and whether there was
any abuse of discretion.
(2) For the purpose of this section, abuse of discretion is
established if the court determines that the permitting authority's
findings are not supported by clear and convincing evidence in light of
the record as a whole.
(3) If the court overturns the denial, the court may remand the
matter to the permitting authority or direct the permitting authority to
grant the permit.
(4) The court retains the authority to exercise equitable authority
where appropriate and may, upon a finding that the permitting authority
acted in bad faith, award reasonable attorney fees and costs to a
prevailing applicant. In no circumstances shall attorney fees or costs be
awarded to the government or a third party challenging a permit.
New Sec. 2. (a) For the purposes of this section:
(1) "Development document" means a document, including an
application for a plat, plan or development permit, related to the
development of or improvement to land for new residential
construction that is required by law, ordinance, rule or other measure to
be approved by a regulatory authority in order for a person to initiate,
engage in or complete the development or improvement.
(2) "Development inspection" means the inspection of an
improvement to land for new residential construction required by a
SENATE BILL No. 418—page 3
regulatory authority as part of a project to develop the land for
residential construction or construct or improve an improvement to the
land for new residential construction.
(3) "Development permit" means a permit required by a regulatory
authority to develop land for new residential construction or construct
or improve an improvement to land for new residential construction.
(4) "Regulatory authority" means the governing body of a political
subdivision or a department, board, commission or other entity of the
political subdivision responsible for processing or approving a
development document or conducting a development inspection that
has elected to be subject to this section.
(b) Third-party review of development documents or inspection of
improvements in consenting political subdivisions. The governing body
of a political subdivision may elect to be subject to this section by the
adoption of an appropriate ordinance or resolution by a majority vote of
the governing body.
(1) If a regulatory authority does not approve, conditionally
approve or deny a development document within 30 days of receipt,
any required review of the document may be performed by a person:
(A) Other than:
(i) The applicant; or
(ii) a person whose work is the subject of the application; and
(B) who is:
(i) Employed by the regulatory authority to review development
documents;
(ii) employed by another political subdivision to review
development documents, if the regulatory authority has approved the
person to review development documents; or
(iii) a licensed professional engineer as defined in K.S.A. 74-7003,
and amendments thereto.
(2) If a regulatory authority does not conduct a required
development inspection within 30 days after receipt of a request for an
inspection, the inspection may be conducted by a person:
(A) Other than:
(i) The owner of the land or improvement to the land that is the
subject of the inspection; or
(ii) a person whose work is the subject of the inspection; and
(B) who is:
(i) Certified to inspect buildings by the international code council;
(ii) employed by the regulatory authority as a building inspector;
(iii) employed by another political subdivision as a building
inspector, if the regulatory authority has approved the person to
perform inspections; or
(iv) a licensed professional engineer as defined in K.S.A. 74-7003,
and amendments thereto.
(c) Additional fee prohibited. A regulatory authority may not
impose an additional fee related to the review of a development
document or the inspection of an improvement conducted under
subsection (b).
(d) Third-party requirements. (1) A person who reviews a
development document or conducts a development inspection under
subsection (b) shall:
(A) Review the document, conduct the inspection and take all
other related actions in accordance with all applicable provisions of
law; and
(B) not later than 15 days after the date that the person completes
the review or inspection, provide notice to the regulatory authority of
the results of the review or inspection.
(2) A regulatory authority may prescribe a reasonable format for
SENATE BILL No. 418—page 4
the notice required under paragraph (1).
(e) Waiver prohibited. A regulatory authority may not request or
require an applicant to waive a deadline or other procedure under this
section.
(f) Appeal. (1) Notwithstanding any provision of law to the
contrary, an aggrieved person may appeal to the governing body of a
political subdivision or to an appeal board established by such
governing body:
(A) A decision to conditionally approve or deny a development
document made by the regulatory authority for the political subdivision
or a person authorized by subsection (b)(1) to perform the review of the
document; or
(B) a decision regarding a development inspection conducted by
the regulatory authority or a person authorized by subsection (b)(2) to
perform the inspection.
(2) An aggrieved person shall file the appeal under this subsection
not later than 15 days after the date that the decision being appealed is
made.
(3) Notwithstanding any provision of law to the contrary, if the
governing body or designated appeal board hearing the appeal does not
affirm or modify the decision being appealed by a majority vote within
60 days after the date that the appeal is filed, then:
(A) The development document that is the subject of the appeal
shall be deemed approved; or
(B) the development inspection that is the subject of the appeal
shall be considered to be waived by the governing body or designated
appeal board.
New Sec. 3. (a) Notwithstanding any provision of law to the
contrary, for new construction of single-family residences that are less
than 2,500 square feet of total livable floor area, or gross floor area
minus garages and basements, in size, and are constructed on each such
residence's own separate lot or parcel with its own individual legal
description, all political subdivisions shall allow the following:
(1) Use of any of the following, at the discretion of the political
subdivision:
(A) The 2018 edition of the international residential code (IRC);
(B) the version of the 2018 edition of the IRC previously adopted
by the political subdivision; or
(C) the version of the 2018 edition of the IRC adopted by another
political subdivision;
(2) construction of single-car garages;
(3) only one side of architectural finish; and
(4) a minimum residential lot size of 3,000 square feet subject to
any reasonable setback requirements that avoid unwarranted hardship
yet protect the public welfare and safety.
(b) Any part of any building code, ordinance, resolution,
regulation or rule of any political subdivision that violates this section
shall be null and void as applied to such property.
(c) For purposes of this section, "political subdivision" means any
county, city, unified government or any other political or taxing
subdivision of the state of Kansas, or an administrative unit thereof,
with authority to regulate the new construction of single-family
residences.
Sec. 4. K.S.A. 12-757 is hereby amended to read as follows: 12-
757. (a) The governing body, from time to time, may supplement,
change or generally revise the boundaries or regulations contained in
zoning regulations by amendment. A proposal for such amendment may
be initiated by the governing body or the planning commission. If such
proposed amendment is not a general revision of the existing
SENATE BILL No. 418—page 5
regulations and affects specific property, the amendment may be
initiated by application of the owner of property affected. Any such
amendment, if in accordance with the land use plan or the land use
element of a comprehensive plan, shall be presumed to be reasonable.
The governing body shall establish in its such governing body's zoning
regulations the matters to be considered when approving or
disapproving a rezoning request. The governing body may establish
reasonable fees to be paid in advance by the owner of any property at
the time of making application for a zoning amendment.
(b) All such proposed amendments first shall be submitted to the
planning commission for recommendation. The planning commission
shall hold a public hearing thereon, shall cause an accurate written
summary to be made of the proceedings, and shall give notice in like
manner as that required for recommendations on the original proposed
zoning regulations provided in K.S.A. 12-756, and amendments
thereto. Such notice shall fix the time and place for such hearing and
contain a statement regarding the proposed changes in regulations or
restrictions or in the boundary or classification of any zone or district.
If such proposed amendment is not a general revision of the existing
regulations and affects specific property, the property shall be
designated by legal description or a general description sufficient to
identify the property under consideration. In addition to such
publication notice, written notice of such proposed amendment shall be
mailed at least 20 days before the hearing to all owners of record of real
property within the area to be altered and to all owners of record of real
property located within at least 200 feet of the area proposed to be
altered for regulations of a city and to all owners of record of real
property located within at least 1,000 feet of the area proposed to be
altered for regulations of a county. If a city proposes a zoning
amendment to property located adjacent to or outside the city's limits,
the area of notification of the city's action shall be extended to at least
1,000 feet in the unincorporated area. Notice of a county's action shall
extend 200 feet in those areas where the notification area extends
within the corporate limits of a city. All notices shall include a
statement that a complete legal description is available for public
inspection and shall indicate where such information is available. When
the notice has been properly addressed and deposited in the mail,
failure of a party to receive such notice shall not invalidate any
subsequent action taken by the planning commission or the governing
body. Such notice is sufficient to permit the planning commission to
recommend amendments to zoning regulations which that affect only a
portion of the land described in the notice or which that give all or any
part of the land described a zoning classification of lesser change than
that set forth in the notice. A recommendation of a zoning classification
of lesser change than that set forth in the notice shall not be valid
without republication and, where necessary, remailing, unless the
planning commission has previously established a table or publication
available to the public which that designates what zoning
classifications are lesser changes authorized within the published
zoning classifications. At any public hearing held to consider a
proposed rezoning, an opportunity shall be granted to interested parties
to be heard.
(c) (1) Whenever five or more property owners of record owning
10 or more contiguous or noncontiguous lots, tracts or parcels of the
same zoning classification initiate a rezoning of their such owners'
property from a less restrictive to a more restrictive zoning
classification, such amendment shall require notice by publication and
hearing in like manner as required in subsection (b) of this section .
Such zoning amendment shall not require written notice and shall not
SENATE BILL No. 418—page 6
be subject to the protest petition provision of subsection (f) of this
section.
(2) Whenever a property owner that is not a city or county
initiates a rezoning of such owner's property to a single-family
residential district, such amendment shall require notice by publication
and hearing in like manner as required in subsection (b). Such zoning
amendment shall not require written notice and shall not be subject to
the protest petition provisions of subsection (f).
(3) Whenever a city or county initiates a rezoning from a less
restrictive to a more restrictive zoning classification of 10 or more
contiguous or noncontiguous lots, tracts or parcels of the same zoning
classification having five or more owners of record, such amendment
shall require notice by publication and hearing in like manner as that
required by subsection (b) of this section . In addition, written notice
shall be required to be mailed to only owners of record of the properties
to be rezoned and only such owners shall be eligible to initiate a protest
petition under subsection (f) of this section.
(d) Except as provided in subsection (g) and unless otherwise
provided by this act, the procedure for the consideration and adoption
of any such proposed amendment shall be in the same manner as that
required for the consideration and adoption of the original zoning
regulations. A majority of the members of the planning commission
present and voting at the hearing shall be required to recommend
approval or denial of the amendment to the governing body. If the
planning commission fails to make a recommendation on a rezoning
request, the planning commission shall be deemed to have made a
recommendation of disapproval. When the planning commission
submits a recommendation of approval or disapproval of such
amendment and the reasons therefor, the governing body may: (1)
Adopt such recommendation by ordinance in a city or by resolution in a
county; (2) override the planning commission's recommendation by a 2/3 majority vote of the membership of the governing body; or (3) return
such recommendation to the planning commission with a statement
specifying the basis for the governing body's failure to approve or
disapprove. If the governing body returns the planning commission's
recommendation, the planning commission, after considering the same,
may resubmit its the planning commission's original recommendation
giving the reasons therefor or submit new and amended
recommendation. Upon the receipt of such recommendation, the
governing body, by a simple majority thereof, may adopt or may revise
or amend and adopt such recommendation by the respective ordinance
or resolution, or it the governing body need take no further action
thereon. If the planning commission fails to deliver its the planning
commission's recommendation to the governing body following the
planning commission's next regular meeting after receipt of the
governing body's report, the governing body shall consider such course
of inaction on the part of the planning commission as a resubmission of
the original recommendation and proceed accordingly. The proposed
rezoning shall become effective upon publication of the respective
adopting ordinance or resolution.
(e) If such amendment affects the boundaries of any zone or
district, the respective ordinance or resolution shall describe the
boundaries as amended, or if provision is made for the fixing of the
same upon an official map which that has been incorporated by
reference, the amending ordinance or resolution shall define the change
or the boundary as amended, shall order the official map to be changed
to reflect such amendment, shall amend the section of the ordinance or
resolution incorporating the same and shall reincorporate such map as
amended.
SENATE BILL No. 418—page 7
(f) (1) Except as provided in subsection (g), whether or not the
planning commission approves or disapproves a zoning amendment, if
a protest petition against such amendment is filed in the office of the
city clerk or the county clerk within 14 days after the date of the
conclusion of the public hearing pursuant to the publication notice,
signed by the owners of record of 20% or more of any real property
proposed to be rezoned or by the owners of record of 20% or more of
the total real property within the area required to be notified by this act
of the proposed rezoning of a specific property, excluding streets and
public ways and property excluded pursuant to paragraph (2) of this
subsection, the ordinance or resolution adopting such amendment shall
not be passed except by at least a 3/4 vote of all of the members of the
governing body.
(2) For the purpose of determining the sufficiency of a protest
petition, if the proposed rezoning was requested by the owner of the
specific property subject to the rezoning or the owner of the specific
property subject to the rezoning does not oppose in writing such
rezoning, such property also shall be excluded when calculating the
"total real property within the area required to be notified" as that
phrase is used in paragraph (1) of this subsection.
(g) An ordinance or resolution adopting a zoning amendment for
mining operations subject to K.S.A. 49-601 et seq., and amendments
thereto, regardless of a protest petition or failure to recommend by the
planning commission shall only require a majority vote of all members
of the governing body.
(h) Zoning regulations may provide additional notice by providing
for the posting of signs on land which that is the subject of a proposed
rezoning, for the purpose of providing notice of such proposed
rezoning.
Sec. 5. K.S.A. 12-758 is hereby amended to read as follows: 12-
758. (a) Except as otherwise provided by this section and K.S.A. 12-
770 and 12-771, and amendments thereto, regulations adopted under
authority of this act shall not apply to the existing use of any building
or land, but shall apply to any alteration of a building to provide for a
change in use or a change in the use of any building or land after the
effective date of any regulations adopted under this act. If a building is
damaged by more than 50% of its fair market value, such building shall
not be restored if the use of such building is not in conformance with
the regulations adopted under this act.
(b) Except for flood plain regulations in areas designated as a
flood plain, regulations adopted by a city pursuant to K.S.A. 12-715b,
and amendments thereto, or a county pursuant to this act shall not apply
to the use of land for agricultural purposes, nor for the erection or
maintenance of buildings thereon for such purposes so long as such
land and buildings are used for agricultural purposes and not otherwise.
(c) Notwithstanding any provision of law to the contrary, all land
within the corporate limits of a city that is zoned for any type of
residential use shall be considered zoned for single-family residential
use in addition to any other zoning adopted by the city for such land.
This provision shall not limit a city's ability to impose reasonable
regulations related to setbacks, the provision of development and
performance standards, utility and subdivision standards, future
provisions for street and utility connections, grading plans and platting
the property that are related to single-family residential developments
of land not zoned for single-family residential use.
SENATE BILL No. 418—page 8
Sec. 6. K.S.A. 12-757 and 12-758 are hereby repealed.
Sec. 7. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
SENATE, and passed that body
__________________________
SENATE adopted
Conference Committee Report ________________
_________________________
President of the Senate.
_________________________
Secretary of the Senate.
Passed the HOUSE
as amended _________________________
HOUSE adopted
Conference Committee Report ________________
_________________________
Speaker of the House.
_________________________
Chief Clerk of the House.
APPROVED _____________________________
_________________________
Governor.