For five and a half years, rural residents along Gardner Road near Edgerton in southwestern Johnson County have fought a 2020 annexation that could bring millions of square feet of warehouses to their country neighborhood. Now that a three-day trial has ended, those residents are awaiting a judge’s decision about a boot-shaped piece of land at the center of it all.
Is the boot — whose elongated toe reaches out to connect Edgerton city limits to a stack of potential warehouse lots — really the “narrow corridor” outlawed by state statute? Or is it more like a partially collapsed triangle whose corner touch would be a perfectly legal way to annex land under Kansas law?
There are other issues as well, focusing on whether the city officials were forthcoming with the city council when the city annexed the warehouse sites, and whether the narrowing piece of land had tangible value, as required by state law.
But District Court Judge David Hauber made it clear in the closing moments that the geometric shape of the connecting land is the thing he is most interested in. As the trial concluded, he asked lawyers for the state attorney general’s office and the city of Edgerton to provide additional written arguments focusing on that topic.
The battle begins in 2020
Many residents near Gardner Road south of 199th Street were angered over a series of land deals and a city process that welcomed the warehouse plan by Kansas City-based NorthPoint Development. They’ve been fighting it ever since. No warehouses have been built on the properties yet.
Although plenty of warehouses had already been built in the area to serve the BNSF intermodal freight facility nearby, property owners along that stretch of road said they were caught unawares because NorthPoint bought the land through affiliated cattle- and farm-titled businesses that they were unfamiliar with.
The annexation and rezoning process also inspired heated protests during city meetings, at least one of which stretched into the wee hours.
NorthPoint used “consent annexation” as the method outlined in state law to get its new properties eventually rezoned for warehouse use with a minimum of red tape.
In consent annexation, the land is adjacent to the city boundary and the landowner asks to bring it into the city limits. That type of annexation can happen without the public hearings and notifications typical of other types of annexation, according to state law. It is the city of Edgerton’s preferred method to annex land, according to testimony by City Administrator Beth Linn and Mayor Don Roberts, though neither of them specified as to why.
When NorthPoint found a way to annex nine parcels comprising over 600 acres by consent, it was through the boot-shaped piece of land and the exact point at its southwest corner where it touches the northeast corner of Edgerton city limits.
The neighbors formed a Facebook group and tried to sue, but found they needed another entity like the attorney general’s office to file a valid suit on their behalf against the city. That trial started Wednesday.
The boot
It was described during the trial as a little finger or elongated toe. Judge Hauber even likened it to Michaelangelo’s “The Creation of Adam”, although the fingers of God and Adam don’t actually touch in that Sistine Chapel fresco.
The key to getting the planned warehouses under city zoning was in property owned by Gail Wilson that touched the City of Edgerton at its southwest corner.
Wilson had originally planned to offer her land as a rectangular tract, but divided it because she hoped for commercial development on the northeast corner, according to testimony at the trial. Wilson was not called to the stand.
So instead the land for sale kept the western rectangle and added a wedge that tapered parallel to a stream bed to a 13.2-foot connection with the nearest NorthPoint land to the east.
Once that connection was established, the rest of the NorthPoint dominoes could fall.
Expert witness William Kirkham of Eudora said the tract appeared to be a narrow corridor that would have little value to a developer because of the streamway and possible wetlands. The slopes along it were steep enough to make development difficult, he said.
“I don’t see a good use for the toe of it. In fact I see it as a liability for the developer,” he said.
But Edgerton City Attorney Todd Luckman argued that the piece may have had value to developers because of the potential for running sewer and utility beneath Gardner Road, where the two parcels met.
In the eyes of the beholder
Luckman, Hauber and Assistant Attorney General Spencer Taylor spent some time discussing the boot’s geometry and the role of common sense in determining whether the boot is a verboten narrow corridor or an allowable triangle.
Hauber often broke in to Taylor’s closing to argue on behalf of the triangle. “Isn’t that what we have here, a triangle attached to a square? It looks like a triangle to me,” he said, explaining that in his view, a corridor would be like a longer hallway. Tapering to a corner could be viewed as the cheapest way for the developer to get the connection, he said. Nothing in the law defines what the corridor should be, in shape, size or otherwise.
But Taylor said that if the land is not deemed a narrow corridor, then every developer will start using strips of worthless land as a way of getting around annexation requirements.
Luckman said the city followed the law, and that the connection point had tangible value through the possibility of buried utilities.
City process under question
The city’s transparency — or, according to neighbors, the lack of it — during the annexation votes has been a major sore point among neighbors.
The first two annexations, which touched the Edgerton city limits, were not on the agenda at the city council meeting Dec. 10, 2020, but were added and approved that same night. Roberts testified that, due to an error, a special meeting had to be called Dec. 17, when the seven remaining parcels were annexed.
Roberts and Linn both testified that they were aware of certain aspects of NorthPoint’s plans, but neither of them felt it was necessary to disclose the details to councilmembers until the meeting was in progress.
Roberts said he had regular meetings with NorthPoint Vice President of Development Patrick Robinson and was aware of the company’s interest in obtaining land connected to the city boundary. But he did not consider the talk solid enough to mention to city councilmembers.
“It’s not real until it’s real,” he said in a deposition before the trial. “A concept’s a concept. It could change at any time.” The company filed to annex on Dec. 4, but Roberts said he didn’t know until closer to the Dec. 10 meeting.
He also said he didn’t see a danger in the alleged narrow corridor.
“I’m not an attorney,” Roberts testified. “Yes, I had knowledge of it, but I’m not an expert to interpret that. That’s why I pay an attorney.”
According to Linn’s testimony, the former city attorney advised that the city council not be informed about the connectivity issue, and councilmembers didn’t ask.
Linn said she was aware that the shape of the tract could prompt talk about the narrow corridor issue. But in her view, the shape would not cause a problem. “I don’t see it as narrow,” she told the court.
The actions of the officials angered and disappointed neighbor Shane Brown, who testified he’d had his eye on a part of the property as a possible hunting ground for his sons.
Packets for rezoning went out to neighbors two days before Christmas, yet the rezoning had been applied for on Dec. 11, Brown said. “In my mind, that meant that they all knew and nobody told anyone at that meeting… It led me to believe that NorthPoint was steering the process at these meetings.”
Cloudy language
Hauber shut down some of the state’s planned testimony about the actions of the city and NorthPoint, saying it is irrelevant and that there’s no proof that the city officials were trying to slip things past the city council. Instead, he pointed the lawyers toward the question of whether the boot actually is a narrow corridor.
The problem, he said, is that the law doesn’t offer much to go on.
Legislators didn’t write a specific definition of “narrow corridor,” nor did they require any public notifications or hearings on consent annexations. Yet city councils might be expected to know if they are running afoul of the law.
“What we’re all struggling with is a bad statutory provision,” he said.
Luckman argued that lawmakers were familiar enough with the concept of open hearings, but chose not to include them in the law. Taylor said the law was designed to prevent hopscotch development and protect rural areas, and that ignoring it would be “troubling.”
In the end, it will fall to the court to sort things out, Hauber said. He ultimately asked lawyers from both sides to dig into the question of defining a narrow corridor and submit their works in the next two weeks so that he can review it before making a ruling.
