Johnson County Judge Thomas Sutherland on Wednesday said his ruling in the case brought against the city of Prairie Village by a group of homeowners claiming they were disenfranchised by the city council’s approval of the Mission Chateau development in January would boil down to the exact language the state legislature used in the statute allowing for protest petitions, and cautioned the homeowners that he was not in a position to render a decision based on what he thought the city council should have done in the matter.
“It seems to me that the issues in this case are going to be decided by the language that the legislature used,” Sutherland said in front of the dozen or so homeowners who attended the hearing during which Sutherland heard arguments on both sides of competing motions for summary judgment. “It is not my prerogative to sit here and think, if I were on the city council, how would I have voted?”
Over the course of the proceedings, Sutherland pressed John Duggan, the attorney representing the homeowners, on why the city should have allowed additional property owners to participate in the protest petition when the state statute dictates that the city is only required to open petition rights to property owners within “at least 200 feet of the area proposed to be altered.”
The city’s protest petition ordinance stipulates that should 20 percent of the owners of the property within 200 feet of the land subject to a Special Use Permit application sign onto a petition, the application requires a supermajority of the city council for approval. The protest petition for the second Mission Chateau submission fell just short at 18.31 percent.
Duggan argued that additional property owners should have been eligible to participate in the protest petition because a 58-foot right of way just to the south of the proposed SUP area provided a number of infrastructure services without which the Mission Chateau skilled nursing facility would not be able to operate. Duggan said the services provided via that right-of-way — a road, electricity, stormwater drainage and a sewer line — were part of a “unified plan,” and as such, the right-of-way should have been considered part of the SUP application area.
“Had the right-of-way been included for the notification area, we would have been well over the 20 percent threshold,” Duggan said.
But Jennifer Hannah, the Lathrop & Gage LLP attorney defending the city in the matter, dismissed Duggan’s argument as “wordplay,” and argued that the city had strictly followed the procedure laid out in its own ordinance as governed by the state statute. She pointed out that, because the Mission Valley site is currently zoned R1-A, all of the uses planned for the right-of-way area in question were permissible without any approval from the city council. Timothy Sear, the Polsinelli attorney representing property owner Joe Tutera in the case, seconded that argument in his remarks.
“There is no evil conspiracy,” he said. “It’s the statute. The statute says you give notice to the people within 200 feet of the special use permit area. If the legislature had meant something different, they would have used different language.”
Sutherland appeared to be sympathetic to that argument, at one point addressing the homeowners in the gallery directly.
“At issue is whether the city properly followed its own procedure,” Sutherland said. “It would be a gross violation of the separation of powers for me to second guess the city’s actions.”
Duggan also argued that the common areas of a condominium development to the west of Mission Valley should have been included in calculating the square footage for the protest petition. He noted that should the city or the court have conceded any of the three arguments the homeowners had made — that additional square footage condominiums should be included in the protest petition calculation, that homeowners to the south should have been allowed to participate in the protest petition because of the right-of-way, and that certain homeowners’ moves to take their names off the protest petition came too late — the protest petition would have met the 20 percent threshold.
“I keep saying that it really takes the perfect shot to defeat our argument,” Duggan said. “So far, they’ve had the perfect shot.”
Sutherland told the parties he hoped to issue a decision in the matter in a week to 10 days.
The legal proceedings have already substantially delayed the start of construction on Mission Chateau. Tutera said after the council approved the proposal in January that he hoped to break ground on the site in six months.