KEARNEY — Development group I-35 Holdings is suing the city of Kearney, claiming city leaders used an improper methodology to determine if protest petitions were valid. The suit also claims a related super majority vote was not needed for passage of the project.
This winter, city staff, citing city ordinance, said the city's receiving of written petitions from impacted residents meant aldermen needed to pass approval for I-35's large-scale development project that included a quarry operation by super majority — three of the city's four aldermen — instead of a typical simple majority.
The section of the city's development codes pertaining to protest petitions states petitions must be signed by 30% or more either of the area determined by lines drawn parallel to and 185 feet distant from the boundaries of the district proposed to be changed, and that the amendment will not be effective unless approved by a two-thirds vote of all members of the Board of Aldermen. City staff said the mayor is unable to cast a tie-breaking vote in these matters due to restrictions in the ordinance.
The project ultimately failed to receive approval in January when the vote stalemated 2-2 with Aldermen Dan Holt and Kathy Barger in favor and Aldermen Gerri Spencer and Marie Steiner against.
At issue is a conditional use permit and rezoning request from I-35 Holdings, helmed by Chris Shipley and Craig Porter, of about 128 acres at the southeast quadrant of Interstate 35 and 19th Street.
The pair sought rezoning of the land to a planned industrial district and sought the permit to allow quarry operations on the property for up to seven years. Reopening of the quarry on the property, which was in operation decades ago, was needed, the developers said, only to allow removal of rock and leveling of the land to prepare it for a future mixed-used development that could be worth more than $200 million and would include apartments as well as retail and restaurant spaces.
Before casting their votes on the matter in January, Kearney aldermen heard recommendations from the planning and zoning commission and city staff, with both recommending approval.
Aldermen also heard public outcry against the project via the petition letters and upwards of 80 residents who spoke against the project during planning and zoning and aldermanic meetings this winter. Residents cited possible air and noise pollution, devaluation of properties, increased traffic, disruption to nature and area property damage associated with blasting as reasons for their opposition.
In their filing in Clay County Circuit Court, developers through attorney John Roe of Kansas City said Kearney faltered in many aspects including applying criteria to the developer's applications in spite of the property having not been zoned to a city zoning classification after the property was annexed into the city in 2006, meaning the protest provisions do not apply.
In addition, the suit states the calculation used by the city to determine the number of protesters needed to trigger a super majority vote was inaccurate and some of the petitioners listed were not the current recorder owner of properties, therefore the correct number of needed petitioners was not reached.
“The city did not have any competent and substantial evidence to justify its decision that the protest was valid and that a two-thirds vote was required on (the) plaintiff's ordinance,” states the suit. “The city's action in declaring a valid protest and imposing a two-thirds vote requirement on the plaintiff's ordinance was arbitrary, unreasonable, capricious and is not fairly debatable.”
Shipley said Monday, May 11, he could not comment on specifics of the litigation, but that his attorney “pretty well laid it out” as to the reasons for the lawsuit.
City attorney Brian Hall said he also could not provide comments on suit specifics, but that city leaders are being briefed on the matter and the city's insurance company has been contacted. City Administrator Jim Eldridge declined to comment.