Archive for Wednesday, April 9, 2003

City denies lawsuit allegations

City officials to ask court to dismiss Wells lawsuit

April 9, 2003

The city of Basehor filed a response last week to a civil lawsuit, which names the city as defendant. The response essentially denies all allegations and city officials said the court will be asked to dismiss all charges.

The plaintiffs, Cedar Lakes residents Gary and Artie Wells, filed the lawsuit in Leavenworth County District Court in March.

It alleges the Basehor City Council acted "unreasonable, arbitrary and capricious," when approving rezoning for the Pinehurst development in February.

The Wells lawsuit is asking the court to enter judgment that the rezoning was illegal and overturn the City Council's decision.

The couple also wants to recoup legal fees accrued from filing the lawsuit.

However, Basehor City Attorney John Thompson said the city would ask the court for a summary judgment -- a judge deciding a case through a question of law when no facts are in dispute.

"We did act in a reasonable fashion, and did follow (the law)," Thompson said.

The request for a summary judgment will be filed within the next 30 days, Thompson said.

The Wells lawsuit was filed in response to the city's rezoning decision in February for Pinehurst, a 98-acre area slated for commercial, retail and residential use located south of Kansas Highway 24/40 across from the Basehor Town Square.

The development was granted rezoning -- rural residential to commercial and planned residential -- during the meeting despite opposition from residents of Cedar Lakes and Briarwood, nearby residential areas.

The problem between nearby residents and Pinehurst stems from Pinehurst plans to build a 248-unit apartment complex.

Opponents claim the apartment complex would adversely affect their property values and quality of life. The apartments would also breed crime and be a detriment to local schools, opponents said.

A valid protest petition was in place for the meeting.

However, despite the opposition and protest petition, the City Council approved the rezoning, 4-1.

The Wells lawsuit takes issue with how the City Council voted on the rezoning, claiming procedural mistakes in voting on the decision.

Basehor Mayor Joseph Scherer was not at the meeting and City Council president Julian Espinoza acted as interim mayor for the hearing.

Under law, three-fourths of the governing body must vote to decide an issue when a protest petition is in place.

The Wells lawsuit claims there was no three-quarters vote because, as acting mayor, Espinoza should not have been allowed to vote.

In Basehor city government, the mayor votes only in case of a tie.The city's response to the lawsuit denies Espinoza would lose his right to vote while filling in as mayor.

"Julian retained the right to vote," Thompson said. "That's clearly the law."

But Espinoza voting isn't the only point of contention in the Wells lawsuit. The lawsuit also alleges the city didn't follow the Golden Rule, a Kansas court decision listing eight factors governing bodies must abide by when making a rezoning decision.

The city's response denies this allegation.

"We followed the Golden Rule," Thompson said. "The staff report complied with the Golden Rule and it was incorporated in the decision."

A hearing date has not been scheduled to resolve the lawsuit.

Commenting has been disabled for this item.