Archive for Wednesday, March 19, 2003

City named in second lawsuit

March 19, 2003

In the city's budget, there is no line item marked legal defense fund.

Maybe there should be.

For the second time in recent months, the city of Basehor has been named as defendant in a civil lawsuit.

The new lawsuit was filed March 14 in Leavenworth County District Court.

The plantiffs, Cedar Lakes residents Gary and Artie Wells, claim the city was "unreasonable, arbitrary and capricious," in approving rezoning for the Pinehurst development in February.

The Wells lawsuit is asking the court to enter a judgement that the rezoning was illegal and to overturn the rezoning decision. The couple also wants to recoup legal fees accrued from filing the lawsuit.

The city has 20 days to respond.

Basehor city attorney John Thompson said he would file an answer denying the charges and a motion to dismiss.

"We totally disagree with their reasons for litigation," Thompson said.

The Pinehurst development is a 98-acre area slated for commercial, residential and retail use, south of Kansas Highway 24/40 across from the Basehor Town Square.

During a February meeting, the City Council voted to approve the Pinehurst rezoning from rural residential to commercial and planned residential.

Nearby residents -- the majority of which live in Cedar Lakes and Briarwood -- opposed the development at the meeting because 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.

Despite the opposition, the City Council approved the rezoning, 4-1. City Council member Chris Garcia voted against the rezoning.

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

Under law, three-fourths of a 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, Espinoza, as acting mayor, should not have been allowed to vote.

In Basehor city government, the mayor votes only in case of a tie.

However, city attorney John Thompson said Espinoza would not lose voting rights while filling in as mayor.

"There is substantial authority that the president does not lose his vote due to the absence of the mayor," Thompson said.

Thompson points to a Kansas statute that reads "when presiding at governing body meetings, the president shall have the same privileges as other members of the council (e.g., the right to vote)."

The lawsuit also claims the city acted in defiance of the Golden Rule, a Kansas court decision listing eight factors governing bodies must abide by when making a decision for rezoning.

City officials said a staff report given to City Council members during the meeting in question, is in compliance with the Golden Rule.

A second civil lawsuit was filed against Basehor in November by the development company Commercial Group of Topeka.

The group proposed a low-income, senior housing development at 155th Street and Crestwood Drive and sought rezoning for the four-acre tract of land, from commercial to residential use.

The Commercial Group lawsuit claimed the city acted "unreasonably" and "unfairly" when making its decision.

Thompson said a deal is still being discussed to resolve the Commercial Group lawsuit.

Under the proposal, Commercial Group will drop its lawsuit and receive reconsideration of its plans for rezoning.

Thompson said negotiations to resolve the lawsuit out of court have been continued until May.

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