Archive for Monday, October 3, 2011

Town Talk: Neighbors win ruling in industrial zoning case near Lecompton interchange; airport sewer project creating concern; city to formalize agreement with SRS

October 3, 2011


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• For a long time now, I’ve been saying that the Farmers Turnpike area in northwest Douglas County has been far more about the turnpike than the farmers. Well, that balance appears to be shifting a bit. A group of residents (I really don’t know that many of them are farmers anymore) near the Lecompton interchange on the Kansas Turnpike has a won a key ruling from the Kansas Court of Appeals. The ruling throws into question whether that area is destined to become the county’s next location for industrial development. In a ruling released Friday, the court found that the Douglas County Commission did not properly consider whether the city of Lawrence’s annexation of 155 acres near the interchange would “hinder or prevent the proper growth and development of the area.” A Douglas County district judge previously had ruled that the County Commission did properly consider the issue.

But the group, represented by Lawrence attorney Ronald Schneider, contended that ruling was incorrect. A three-judge panel of the Kansas Court of Appeals agreed, and reversed the decision. What that means for the future of the 155 acres, which is just north of the interchange, isn’t entirely clear. But this much seems certain: Economic development leaders won’t be marketing the property to businesses anytime soon. County commissioners could choose to appeal this most recent ruling to the Kansas Supreme Court, or they could choose to deliberate again on the issue of whether the annexation would “hinder or prevent the proper growth and development of the area.”

If they do that, County Commissioners will want to have a much more thorough discussion of the topic. It appears from the ruling that the Kansas Court of Appeals was not at all impressed with how county commissioners in 2008 went about debating that issue. In the ruling, the court said the county erred by not having any substantive discussion about what the potential uses on the property might be. At the time, the property was owned by a group led by Lawrence businessmen Duane and Steve Schwada. The developer’s attorney told county commissioners that specific uses for the property hadn’t yet been determined. Instead, the development group basically wanted the ability to develop any industrial use allowed under the zoning designation. The court said the County Commission at that point should have had a discussion regarding whether any of those uses — some of which would have allowed the heaviest of industrial operations — would have hindered the proper development of the area. But the court noted several times that the commission did not have any such discussion. The court indicated that was particularly troubling given testimony from some rural water district officials that the water district was uncertain of whether it could meet the water needs of future industrial users.

“For the Board (of county commissioners) to approve the annexation by a mere conclusory finding without a more careful and deliberative consideration of the extent that any of the proposed uses might hinder proper development of the area under consideration is both unsupported by this record and inherently arbitrary and capricious,” the court wrote.

What happens next will be interesting. One, the property has changed hands since this lawsuit was filed. The Schwadas lost control of the property after a dispute with their partners in the project emerged. But I believe those new owners, Russell and Penny Tuckel, are still interested in seeing the property develop as a business park — although their timeline might be slower. But this ruling may have an impact on other properties in the area. The Schwadas have a smaller piece of property just east of the Lecompton interchange that was annexed using the same process, and there is another piece of property east of the interchange that is currently in the annexation process. Both pieces of property seek to have industrial development. This ruling didn’t directly impact either of those tracts, but just wait — the legal wheels haven’t stopped spinning in this area.

At stake for economic development leaders, who are charged with increasing the community’s tax base, is whether they will be able to use one of the city’s three turnpike interchanges as a selling point for future industrial development. Economic development leaders have long said the property near the interchange provides the type of easy access to the turnpike that businesses — particularly distribution centers — are looking for. They also contend that the area is woefully short of industrial property near the turnpike. The West Lawrence interchange already is largely developed with industrial uses, and industrial development near the interchange at North Lawrence will be hotly contested by neighbors who fear such development will increase flooding problems in the area. That had made the Lecompton interchange appear to be the path of least resistance. The Kansas Court of Appeals has changed that.

• Speaking of North Lawrence, city officials are finding out how difficult it is to get expanded sewer service to the Lawrence Municipal Airport. Folks traveling along U.S. Highway 24-40 in front of the airport may have noticed some digging in an open field by the airport. It may not look like much, but that digging has become a major headache, and now is becoming a concern for some neighbors. A Topeka-based contractor hired by the city is trying to install a sewage holding tank to provide greater sewage capacity for the airport property. But this being North Lawrence, digging a hole in the ground can be challenging because of how quickly you hit groundwater. My understanding is that the hole needs to be more than 25 feet deep. In North Lawrence, that’s called a deep swimming pool. Crews have not gotten that far down yet, but now have had to install seven temporary wells around the hole to try pump the hole dry. Those wells are causing concern among some neighbors that the pumping will start drawing groundwater that supplies their wells. Brian Pine told me that his family has serious concerns about the pumping, and believes the city did not thoroughly think this project through. City officials note that the pumping activities do have the proper permits from state water officials.

North Lawrence residents also are keeping an eye on the issue, now that they know what is going on. They are concerned about where all the water will go once it is pumped. Plans call for it to go down the Maple Grove tributary and into a North Lawrence pump station. But Ted Boyle, president of the North Lawrence Improvement Association, said that concerns him because that pump station already is near capacity during rain storms. At the moment, city engineers tell me that all the issues with this project aren’t costing the city extra dollars. The city contends that it provided the contractor with all the information it needed to know what to expect in terms of water at the site, and thus it must do the project for the bid amount. (I’m not sure what that is, but I’ll get it.) That sounds like an issue that could get debated in a court at some point.

The sewer project is designed only to provide service to the airport property, but all the difficulties may end up playing into a larger debate about industrial development surrounding the airport. Like the Farmers Turnpike area, economic development leaders have touted this area’s easy access to the turnpike. But neighbors have opposed it, in part, because they say the issue has serious stormwater issues. Whether fair or not, I expect this little episode will come up as an example of how difficult it would be to convert this area into an industrial park.

• City commissioners at their meeting on Tuesday are expected to formalize what they already have debated regarding making a payment to SRS to keep the agency’s Lawrence office open. On the consent agenda, the city will formally approve a written agreement with the state. It calls for:

  1. The city to provide $225,000 to the state. The city will be allowed to provide the funding in 10 payments of $22,500. It will begin making the payments in February 2012 and will conclude the payments in August 2013.
  2. The SRS secretary, in exchange for the payments from the city and also an equal amount from the county, agree to “not close the Lawrence office and to operate it at substantially the same level as current service through September 2013.”
  3. The city and county will be released from their payments early if “the Kansas Legislature acts in a way to alleviate the need for local funding to keep the Lawrence office open.”
  4. After September 2013, the SRS secretary agrees that “he prefers to keep the Lawrence office open and operating at substantially the same level as current service.” The agreement also states that “the secretary will make a good faith effort to obtain adequate appropriations for that purpose.”

As near as I can tell, the agreement doesn’t define the word “appropriations.” The common definition of the word probably makes it clear that appropriations come from the Kansas Legislature. If not, city and county commissioners can attest that the SRS secretary knows how to garner appropriations from local sources.


Catalano 6 years, 7 months ago

Chad...where can we see a copy of the ruling? Got a pdf to post?

Chad Lawhorn 6 years, 7 months ago

In the article, click on the phrase "the ruling" that shows up in blue. (Ninth line down.) It takes you to the PDF. Thanks, Chad

xyz 6 years, 7 months ago

The May 21, 2008 annexation agreement was passed by County Commissioners Jere McElhaney and Bob Johnson with Charles Jones dissenting.

jafs 6 years, 7 months ago

I would be much happier if we simply paid the rent on the space directly rather than to the state.

For some reason, I just don't trust them - go figure!

thepianoman 6 years, 7 months ago

Just FYI for you P-King fans...They have installed the "P-King" sign in the Lousianna Shopping center! ! It looks like they have lots of work to do on the inside. Nonetheless, they're coming back!!!

GSR1855 6 years, 7 months ago

I don't understand why Lawrence is pursuing heavy industrial when all the facts point that the future is in the service industry. Warehousing is way down and staying down. The service industry provides more jobs, higher pay and is easier on the environment than any potential uses the developer or the City have discussed. Besides there is an unbelievable expense in bringing city level utilities to the Lecompton exchange. I'm not sure the city or county can afford this any time in the near future or that the proposed/new business taxes could justify that level of expenses. There are other development options for this area that the neighbors would be okay with. But the City and the current landowners have been very closed minded to considering any thing other than heavy industrial. The City should look for opportunities in an area that is growing (Service) rather than solely focused on an area (heavy industry) that is dying.

Julie Jacob 6 years, 7 months ago

The "service industry" only grows when people have jobs, it nobody has jobs, who will people service?

Bud Stagg 6 years, 7 months ago

I hope heavy industry is not dying, that is the core of america. It is what puts people to work. You can't have a service industry if there is nothing to service. The USA was the king of cars and refrigerators. Many jobs like this are now overseas because of cheap labor. This is what will bring our economy back. CEO's and executives need to take a pay cut and give it to workers at home and provide some jobs.

Jimo 6 years, 7 months ago

In short, the Court of Appeals, after reciting that it does not have the authority under Kansas law to substitute its judgment for that of the Commissioners promptly goes and does that anyway.

The hook is the Court's observation that the Commissioners did not go through an elaborate process of reviewing how the annexation "will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county," which is the statutory requirement for non-adjacent annexations. Apparently, there is an unstated number of words the Commissioners must write to summarize their thinking to escape the Court's second-guessing.

While superficially, all the Court says it is doing is demanding that the Commissioners 'show their work,' the Court also wastes considerable verbiage openly wondering how this statutory requirement could possibly be met. Since this bloviating is wholly unnecessary to the ruling, the conclusion is clear: the Court doesn't like how the Commissioners do their job. They seem to all but say that the "proper growth and development " of the area is residential and cannot possibly be made into industrial. (Perhaps the judges could resign from the Court and run for Commissioner instead?)

Of course, such an attitude--you can only develop an industrial area where no other human uses pre-exist--would prevent the development of any new industrial areas anywhere in Kansas. Perhaps that is why the Legislature decided to leave this decisionmaking in the hands of elected political officials and not unelected judges?

Commissioners: hire a wordsmith. Write a 100,000 word essay on how industrial development is critical to the community's "proper growth and development" and explain that the few residential spots constructed by the power plant, down the road from existing industrial sites, and along the interstate highway should have foreseen that the area was always slated for non-residential development. Then dare the Court of Appeals to openly second-guess your judgment.

GSR1855 6 years, 7 months ago

So all those farms across Kansas that were interrupted by an interstate highway are to believe that their industry and way of life are no longer important? There are already many acres of land set aside for industry along I-70. Look at Topeka and all their empty warehouses and heavy industry areas along I-70? Is that what you want for Lawrence? Why can't Topeka keep the heavy industry and Lawrence take another focus? Otherwise we are competing against Topeka who already has rail and all city services available in their empty industrial parks.

Jimo 6 years, 7 months ago

I'm not interested in your NIMBYism debate.

denali 6 years, 7 months ago

Which is why you posted in an open forum... to avoid debate?

Eh... yeah... how's that working out for you?

just_another_bozo_on_this_bus 6 years, 7 months ago

No, what the court said was that the county commissioners have an obligation to be more than a rubber stamp for whatever developers place in front of them.

Jimo 6 years, 7 months ago

Either you didn't bother to read the opinion or you're being deliberately obtuse. Of course, both could be true.

William McCauley 6 years, 7 months ago

Gee Chad, just wait till the City Commissioners & AAB members find out the FAA will not grant them the 13.5 million in grant funding their getting ready to ask for, because they are not in compliance with the current contract for 11.5 million and they hung their hats on the lies of turds like Richard Haig & Bryant. It will be funny as hell to see the look on their faces, they won't sitting around smirking like they were on May 6th 2009 and they'll be stuck with the bill for the new master plan.... so much for that 95/5 % grants.


Woodstein 6 years, 7 months ago

Maybe you ought to mark your calendar to appear before the City Commission when they accept the newly created Master Plan for the Airport, and FAA has paid the bill. Now get your facts straight as the new price tag for improvements is approximately $30 million over the next 20 years. You're a dolt! Move on.

John Hamm 6 years, 7 months ago

County commissioners don't know what they're doing. City commissioners don't know what they're doing. And the State's off the hook by the wording of the agreement, "substantially" and "good faith." Ah, Douglas County and Lawrence ya gotta love 'em.

walkthehawk 6 years, 7 months ago

and good job homeowners--no one thought they had much of a chance when they decided to fight this.

Richard Heckler 6 years, 7 months ago

Case Against Sprawl

Small town America started learning a "big lesson" also--one that took years to sink in: saturated retail markets bring deterioration and decay. With retail sprawl development comes a series of economic and social problems for host communities. Sprawl is often mistaken for economic development, and the people it affects the most are least likely to understand it.

The 10 sins of retail sprawl It destroys the economic and environmental value of land It encourages an inefficient land-use pattern that is very expensive to serve. It fosters redundant competition between local governments, an economic war of tax incentives. It forces costly infrastructure development at the edge of towns. It causes disinvestment from established core commercial areas. It requires the use of public tax support for revitalizing rundown core areas. It degrades the visual, aesthetic character of local communities. It lowers the value of other commercial and residential property, reducing public revenues. It weakens the sense of place and community cohesiveness. It masquerades as a form of economic development.

Richard Heckler 6 years, 7 months ago

Is annexation expanding our tax base or our tax bills?

There is one consequence that usually goes unmentioned - annexation is draining our pocketbooks and raising our taxes.

Annexation is the result of over five decades of subsidies paid for by the American taxpayer. These range from the obvious to the obscure and include big projects-like the billions we spend on new roads as well as smaller ones-like the tax-breaks that encourage businesses to move to the edge of town. We've subsidized annexation at such a basic level for so long, that many people believe the status quo is actually fair and neutral. This is false-what we think of as a level playing field is tilted steeply in favor of developers and the local real estate industry.

How we subsidize annexation:

  • building new and wider roads
  • building schools on the fringe
  • extending sewer and water lines to new developments
  • extending emergency services to the fringe *direct pay-outs to developers

Is it the taxpayers responsibility to guarantee the real estate industry and developers a nice tidy profit on their speculation and/or risky investments? absolutely not!

Flap Doodle 6 years, 7 months ago

You've posted this text 16 times now, merrill. Are you aiming for triple digits before the end of the year?

pace 6 years, 7 months ago

merrill posts content, Snap just personal attacks. Snap is going for the most boring in Lawrence. small minded Good for insomonia, nothing else.

bevy 6 years, 7 months ago

Chad - perhaps you need to broaden your defintion of "farming." The land in question has been used for generations, both for livestock grazing and production of feed crops (hay.) Last time I checked these were still considered farming.

Beyond that - Whoo Hoo a victory for the home folks! Lawrence, keep your sprawl to yourselves.

If you think Lecompton is the "path of least resistance" to anything, you obviously haven't studied your Kansas history. I recommend a trip to one of our museums.

Chad Lawhorn 6 years, 7 months ago

I didn't say the land in question wasn't farmland. I just meant that I didn't know whether the people who filed the lawsuit were farmers. The people who own the land in question certainly didn't file the lawsuit. Thanks, Chad

hipper_than_hip 6 years, 7 months ago

I know three of the people who filed suit: one puts up hay and has row crops, one puts up hay and has horses, and the other puts up hay and has cattle. They're farmers.

crackers 6 years, 7 months ago

arbitrary- Based on random choice or personal whim, rather than any reason or system. capricious-Characterized by or subject to whim;impulsive and unpredictible.

When you look these two words up in the dictionary there is a photo of Jere and Bob.

bearded_gnome 6 years, 7 months ago

Does it even make sense for SRS to lease that building?

  1. wouldn't it be cheaper in the long run to own it outright?
  2. build a building exclusively for SRS, own it outright.
  3. other public buildings in lawrence are on long term leases, maybe including the downtown post office I hear. why shouldn't the government simply own the buildings outright, cut out the payments. normally I support profit for private industry. however, if you have a building for a devoted governmental use, like city hall, seems senseless to pay leasing.

oldbaldguy 6 years, 7 months ago


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