Archive for Wednesday, December 31, 2003

Appeal filed in city lawsuit

December 31, 2003

Despite a favorable ruling in November, a civil lawsuit naming Basehor as defendant could again see the inside of a courtroom.

Plaintiffs Gary and Arlie Wells, residents of Cedar Lakes, allege the Basehor City Council acted unreasonably in approving a rezoning request for the Pinehurst development in February 2003.

Also called into question by the couple is whether City Council president Julian Espinoza, who performed as interim mayor during the meeting in question, should have retained his voting rights while serving temporarily as mayor.

In November, Leavenworth County District Judge David King ruled in favor of Basehor on both issues.

The Wellses, however, have filed an appeal to the Kansas Court of Appeals. The couple and their attorney, Pete Heaven, have 30 days to file a docketing statement.

"They have an absolute right to appeal and they have decided to invoke that right," Basehor city attorney John Thompson said.

The city of Basehor has not filed a response to the appeal and will not do so until after the docketing statement is filed, Thompson said. A schedule for further briefs and pre-trial conferences will also be set after the docketing statement is completed.

City Council member John Bonee said the city acted appropriately in making its decision to rezone the Pinehurst property and would most likely continue defending itself against accusations to the contrary.

"My feeling is we followed all the rules and did everything by the book," Bonee said. "There is a process put in place and that process was followed to the tee.

"It's unfortunate the taxpayers money has to be spent fighting frivolous lawsuits," he added.

The city has no way to recoup legal fees spent on defending itself in a lawsuit.

Pinehurst is a 98-acre commercial, retail and residential development located south of U.S. Highway 24/40, across from the Basehor Town Square.

During the February rezoning hearing, residents of Cedar Lakes and Briarwood, both nearby subdivisions, voiced objection to Pinehurst plans of building a 248-unit apartment complex. Pinehurst opponents claimed the apartment complex would breed crime and negatively impact their property values and quality of life.

In his November ruling, King said the City Council acted reasonably when approving the rezoning for Pinehurst and that Espinoza does retain voting rights when standing in for the mayor.

Thompson said the Wellses may have a difficult task ahead of them in winning an appeal.

"They face a significant burden to have a decision overturned on appeal because the appellate court uses the same standards as district court," Thompson said.

As of press time, the Wellses have not asked the court to halt construction at Pinehurst until the appeal is decided.

Construction at Pinehurst continues as developers are working on building a second lake and grading for streets inside the development. The majority of the development's gravity sewer lines are already in place.

As of yet, there is no date for when the appeal will be heard in court.

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