A lawsuit between the city of Shawnee and a Johnson County-based development company may find its way to the Kansas Supreme Court.
Attorneys for Austin Homes, a development company owned by Greg Prieb, are now appealing an April decision by the Kansas Court of Appeals that ruled in favor of the city after it denied developers’ application five years ago to build a multi-family project near Johnson Drive and K-7 Highway.
“We are asking the Supreme Court to provide clarity on how much latitude a city has in denying development plans that meet all requirements,” Melissa Sherman, an attorney for Spencer Fane LLP, which represents Austin Properties, LLC, told the Post in an emailed response to questions this week.
“Without that clarity, developers will hesitate to make the significant investment required to advance a proposed plan, and cities will lose potential developments,” she added.
Doug Donahoo, Shawnee’s communication director, said the city’s attorneys are preparing a response to Austin’s appeal that will be filed on Wednesday.
“The City of Shawnee is pleased with the Court of Appeals ruling and we hope the Kansas Supreme Court affirms the Court of Appeals decision that affirmed the District Court’s decision,” he wrote in an e-mail.
From there, the Kansas Supreme Court will make a decision of whether or not it will hear the case.
The city council rejected Austin’s plan in 2019
In 2019, Austin Homes submitted an application for the Woodsonia West Multi-Family development, a $50 million project that included 42 townhome units in 14 triplex buildings and 384 apartment units in 16 multi-story buildings on about 29 acres in the 5300 block of Woodsonia Drive.
Neighbors to the development took issue with the plan calling for a lower level of planned density for the site. In December 2019, residents gathered enough signatures to file a valid protest petition with the city, seeking to have the city reject the Woodsonia West plan in favor of a less dense project.
Because of the petition, plans for the property needed a super majority vote of the city council — three-fourths of the governing body — to be approved. It failed by a 4-4 vote.
Shortly after, the city council rejected the rezoning request and preliminary plan.
There has been no development on the property since, Sherman said.
“Given the issues our client faced with its application, development has not been feasible,” she wrote in an email.
Austin Homes sued the city in 2020
In response to the council’s rejection of the plan, Austin Homes filed a lawsuit against the city in January 2020.
It claimed the city had acted unreasonably and unlawfully by denying the application, and that at least one councilmember, who is not named, “pre-judged” her decision by assisting neighbors with the protest petition and sharing statements on the project before the city council meeting took place.
Because the subject property has been zoned for multi-family housing since 1996, and other housing projects had been approved by the city in the past, the developer claimed that the Woodsonia West project was in compliance with the city’s comprehensive plan.
Ultimately, the district court upheld the city’s decision, prompting Austin Homes to appeal to the Kansas Court of Appeals.
The Court of Appeals upheld the City’s ruling
In its ruling on April 26, 2024, the Kansas Court of Appeals also sided with the city.
“This court cannot say the City acted unreasonably when it denied Austin’s proposed development,” the court said. “While there is no doubt this court’s review, and likely the credibility and reliability of the City’s zoning decisions, would benefit from a more complete explanation of its rationale for denying Austin’s application, there is sufficient information in the record to demonstrate the reasonableness of the City’s decision.”
The Court of Appeals also found the city had not deprived Austin Homes of its due process rights and that the city has the authority to enact broad zoning ordinances and procedures.
It did not violate state statutes when it came to rezoning and protest petitions, the court also said.
The City Council also did not act unreasonably when failing to approve the project and created a minimally sufficient record of reasons it failed to approve it.
The council’s decision was not unreasonable under the guidance of its own “Golden factors” for approving rezoning requests, the decision concluded.
“Ultimately, this court’s review is limited to determining whether the zoning authority acted reasonably—which is presumed. The City provided a minimally sufficient record upon which this court could review its decision, and Austin failed to demonstrate the City’s decision was unreasonable,” Judge Jacy J. Hurst of the Kansas Court of Appeals wrote in the court’s decision.
Austin Homes is still appealing
Shortly after the Kansas Court of Appeals’s decision, attorney Caleb Phillips of Spencer Fane LLP, representing Austin, filed an appeal with the Kansas Supreme Court.
Austin Properties also takes issue with the protest petition in that it allowed neighboring property owners to protest the design of a development plan where there was no change to the zoning or approved use.
The Petition concludes that the Court of Appeals’ decision creates a massive problem for developers.
In its request for review by the Kansas Supreme Court, Austin Properties brings up issues with the action taken by the city, including claims that the city violated Kansas state statutes by not remanding the development application back to the planning commission after the city council failed to approve it.
The appeal also states issues with the protest petition, that neighboring property owners can protest the design of a development plan, even if there is no change to the zoning use.
The Court of Appeals’ decision also creates a massive burden for developers, the petition argues.
“The Court of Appeals has also created an insurmountable evidentiary burden for developers by sanctioning the practice of allowing city councilmembers to abdicate their quasi-judicial role, ignore the evidence, treat their ‘gut feelings’ as evidence, and base their decisions on the unsupported views of citizens gleaned from political campaigns and protests,” the appeal reads.
The appeal to the Kansas Supreme Court asks for the justices to review the case, reverse the Court of Appeals’ decision and remand it with instructions for the District Court to enter judgment for Austin directing the city to approve its property development application or return it to the planning commission.
There is no timeline for when the Kansas Supreme Court will announce its decision of whether or not it will take up the case.
Go deeper: Austin Homes sues Shawnee over denial of Woodsonia West Multi-Family development
