The Kansas Supreme Court, overturning decisions by two lower courts, has ruled in favor of a developer who sued the city of Shawnee five years ago over the city council’s denial of a large apartment project.
The high court announced its ruling on Friday in favor of Austin Properties, a development company that wants to build the 29-acre Woodsonia West multi-family development off Kansas Highway 7.
The decision throws the project’s fate back to the city, though it’s unclear when Austin might bring the plan back before the city council.
The decision stems from a lawsuit Austin Properties filed in 2020, alleging the city acted unreasonably and unlawfully by denying the Woodsonia West plan.
The suit contended in part that at least one councilmember, who was not named in the lawsuit, “pre-judged” their decision by assisting neighbors with putting together a valid protest petition to object to the project and sharing statements on the project before the city council meeting took place.
The case was taken up by the Kansas Supreme Court after Austin Properties appealed two lower courts’ decisions, including one last year by the Kansas Court of Appeals, that sided with the city.
Melissa Sherman, an attorney for Spencer Fane representing Austin Properties, said the developer was happy with the state supreme court’s ruling.
“We’re very pleased with the decision,” she said. “We’re happy that the Court ruled in our favor.”
The city of Shawnee had no comment on the ruling, with a city spokesperson saying there were “still some procedural elements in this case.”
Below is a copy of the Kansas Supreme Court’s decision.
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Open in new tab The city council rejected Austin’s plan in 2019
In 2019, Austin Properties, also known as Austin Homes LLC, applied the Woodsonia West Multi-Family development.
The $50 million plan calls for 42 townhome units in 14 triplex buildings and 384 apartment units spread out over 16 multi-story buildings to be built on nearly 30 acres in the 5300 block of Woodsonia Drive, just east of K-7.
At city council meetings, neighboring residents who lived near the proposed project voiced their concerns, pushing for the plan to include fewer overall units and a lower level of planned density for the site.
In December 2019, opponents 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 by the city council — three-fourths of the governing body — to be approved. At a meeting that same month, the council failed to meet that threshold with 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, 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 for that site been approved by the city in the past, the developer argued that the Woodsonia West project complied with the city’s comprehensive plan, a document that guides development and stipulates types of uses for tracts of land across the city.
Austin Properties also took issue with what it saw as the city failing to comply with the city’s required procedures when — after it failed to approve the application with a 3/4 majority vote — it did not then vote on denying the project outright or returning Austin’s application to the planning commission.
Ultimately, a Johnson County District Court judge upheld the city’s decision, prompting Austin Homes to appeal to the Kansas Court of Appeals, which upheld the district court ruling.
In the Court of Appeals’ decision, it stated the city council did not act unreasonably when failing to approve the project and created a minimally sufficient record of reasons it failed to approve it.
It also stated it was reasonable under the guidance of the factors it considers for rezoning requests.
Austin appealed again and the Kansas Supreme Court took up the case last year, hearing arguments from both Austin and the city in December.
The property has been on hold for 5 years
While the lawsuit made its way through the court system, the property has remained in a “holding pattern,” Sherman said.
The state supreme court’s decision orders the city to proceed with its consideration of Austin’s application for the project, but it remains unclear when that process will be renewed or when the city council could see the item appear again on its agenda.
“I think there probably needs to be some discussion with the city, with which we have not had yet,” Sherman told the Post.
As one justice noted during the two parties’ final pleas in December, if the case is taken up by the Shawnee City Council again, then it will be an almost completely different governing body than the one that rejected the proposal a half-decade ago.
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 at the time.
Despite the lawsuit, Sherman said Austin Properties wants to work with the city in good faith.
“We’re hopeful that we can get this back to the city and then move things forward on a path that will be good for the city, the neighbors and our client,” she said.
Go deeper: Developer suing Shawnee over rejected apartment plan takes plea to Kansas Supreme Court
