Archive for Thursday, September 23, 2004

Appeals court dismisses civil lawsuit against city

September 23, 2004

Basehor city attorney John Thompson said it's unlikely that a civil lawsuit filed 18 months ago against the city of Basehor has any more life left.

The Kansas Court of Appeals recently upheld a previous Leavenworth County District Court decision that exonerated the city from any wrongdoing.

On Sept. 17, the court of appeals sided with the city in a case that called into question a City Council decision to approve a rezoning request for the Pinehurst development in February 2003. The plaintiffs, Gary and Arlie Wells, residents of the nearby Cedar Lakes development, originally filed the lawsuit in March in county district court. After a district judge ruled in favor of the city, the Wellses took their case to appellate court.

Theoretically, the couple can appeal to the Kansas Supreme Court, Thompson said. However, the decision whether to hear the case is left to the discretion of the Supreme Court, and judging by the current case load facing the justices, it's unlikely the case would be heard, the city attorney added.

The Basehor City Council approved the Pinehurst rezoning by unanimous vote in 2003.

The Wells lawsuit alleged the city acted unreasonably in doing so. It also called into question whether City Council president Julian Espinoza, who was acting as interim mayor during the hearing in question, should have been allowed to vote on the issue.

Both the city and the Wellses' attorney, Pete Heaven of Overland Park, waived oral arguments; the decision by the appeals court was based on a review of the case, Thompson said.

The court ruled against the Wellses on both complaints. The court found that the city complied with guidelines set forth in a Supreme Court decision, Golden v. city of Overland Park, and "leads us to conclude that the City Council was reasonable in its decision to approve the rezoning," according to the opinion.

As to whether Espinoza retained voting rights while serving as interim mayor, the court ruled that voting limitations of the mayor -- reserved only for use during a tie between City Council members -- "does not extend to the council president who steps into the position of acting mayor during the mayor's absence," according to the opinion.

The court cited Kansas statute 15-310, which indicates "the president and acting president, when occupying the place of mayor, shall have the same privileges as other members of the council," in supporting its decision.

"Although the City Council president assumed mayoral duties in that position, the president was still an active City Council member and had all the accompanying privileges and responsibilities. Therefore, the president's vote on the rezoning ordinance was valid," according to the opinion.

The decision by the appellate court resembles a November 2003 decision by Leavenworth County District Court Judge David King, who also ruled in favor of the city on both complaints.

Pinehurst is a 97-acre, mixed use development located south of U.S. Highway 24/40, across from the Basehor Town Square. Developer plans to build a 248-unit apartment complex generated discord among residents of Cedar Lakes and Briarwood, both nearby subdivisions, during the February 2003 rezoning hearing. Opponents claimed the apartment complex would breed crime and negatively impact schools, property values and overall quality of life.

A report submitted to the City Council five months before the Pinehurst hearing countered those claims and indicated the development's addition to the city would provide money to help pay for new schools, infrastructure, a new sewer treatment plant and provide increased benefits for residents.

Pinehurst engineer Joe McAfee, who also serves as the city's engineer, indicated in a September 2002 report that, when completed, the development would bring approximately $12 million in property taxes during the next 20 years.

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