A developer who sued the city of Shawnee over its denial of a large multi-family residential project five years ago recently made its final plea to the Kansas Supreme Court.
On Dec. 10, the Kansas Supreme Court heard oral arguments from attorneys representing Austin Properties, a development company wanting to build the 29-acre Woodsonia West multi-family development off Kansas Highway 7, and the city of Shawnee, on whether it should overturn rulings from two lower courts.
The arguments stem from a lawsuit filed by Austin Properties in 2020, alleging the city acted unreasonably and unlawfully by denying the project’s application. The suit contends that at least one councilmember, who is not named, “pre-judged” their decision by assisting neighbors with the protest petition and sharing statements on the project before the city council meeting took place.
Two lower courts, including the Kansas Court of Appeals earlier this year, have rejected Austin’s claims, siding with the city, but the developer has appealed.
Now, the Kansas Supreme Court will now determine a final ruling on the case. No deadline is given on when the state Supreme Court justices will announce their decision.
The city council rejected Austin’s plan in 2019
In 2019, Austin Properties, also known as Austin Homes LLC, 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.
Residents who lived near the development took issue with the plan, calling for a lower level of planned density for the site. In December 2019, they gathered enough signatures to file a valid protest petition with the city, seeking to have Shawnee 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.
Austin Homes sued the city in 2020
In response to the city council’s rejection of the plan, Austin Properties filed a lawsuit against the city in January 2020.
Because the subject property had been zoned for multi-family housing since 1996, and other housing projects had been approved by the city in the past, the developer argued that the Woodsonia West project was in compliance with the city’s comprehensive plan, a document that guides development and stipulates types of uses for tracts of land across the city.
Ultimately, a Johnson County District Court judge upheld the city’s decision, prompting Austin Homes to bring the case to the Kansas Court of Appeals, which also upheld it.
The Kansas Court of Appeals stated that the city did not violate state statutes when it came to rezoning and a protest petition.
The property remains in a ‘holding pattern’
Representing Austin Properties, Melissa Sherman, an attorney for Spencer Fane, argued in front of the Kansas Supreme Court that the justices should overrule the two lower court decisions.
Since the lawsuit was filed, no development has occurred on the property, she said.
“My client very much wants to proceed with development (and) has been unable to proceed,” she said to the Kansas Supreme Court. “The development that was proposed is the only one that my client has determined is economically feasible. Austin Properties has been, in a holding pattern while this issue is being litigated.”
Austin Properties also took issue with the Court of Appeals’ ruling, with Sherman saying it incorrectly interpreted state law and that the proposal should have another shot with the city council, Sherman said.
“If there are concerns that are expressed by the city councilmembers, they have the ability to state those concerns,” she said. “And then, it can be sent back to the planning commission and there can be a thorough, cogent discussion between the property owner, the city and the planning commission about addressing those concerns. That option was not provided.”
City’s attorney defends decision
Andrew Holder, an attorney at Fisher Patterson Sayler & Smith, representing the city of Shawnee, argued the justices should uphold the lower courts’ rulings.
“I think that the record amply supports the basis for the governing body’s decision,” he said.
The focus of both the city and the residents’ decision was based on the density of the proposed property, he added.
“The key focus was on the density of the project as compared to ones in the past,” he said. “I think, ultimately, the record shows this project was something like two times as high as the most recent one, which, as the Court of Appeals noted, spills over into the issues of potential traffic (and) aesthetics.”
Court Justices added their input
During the roughly 45-minutes hearing last Tuesday, the Kansas Supreme Court justices questioned both Sherman and Holder and also expressed their own opinions about the case.
While speaking with Holder, Justice Dan Biles stated his frustration with the Kansas Court of Appeals ruling.
“It just seems to me the court launched off into a policy-making role without touching all the bases it has to touch before it can do that,” he said.
When asked what would happen to the proposal if the Kansas Supreme Court remanded it, one justice noted that it would likely be taken up by a Shawnee City Council that’s different from the one that rejected the proposal in 2019.
The only voting members who remain on the body who also voted on the project in 2019 are Councilmember Mike Kemmling and Mayor Mickey Sandifer (who was a councilmember five years ago).
A spokesperson for the city of Shawnee could not be reached for comment for this story but did previously state the city’s support for the Kansas Court of Appeals’s decision.
Keep reading: Lawsuit over rejected Shawnee apartment plan could go to Kansas Supreme Court
