March 4, 2024

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Kansas Justice Institute demands Westwood stop violating free speech rights over park sale

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The Kansas Justice Institute is demanding the City of Westwood retract a letter threatening opponents of a development project with a lawsuit. Like the Sentinel, KJI is owned by the Kansas Policy Institute.

The City of Westwood has been planning to sell the Joe D. Dennis Park to a real estate development company, to develop the park into a mixed-use office and retail development. 

When opponents objected and said state law gave residents the right to petition to put approval of the sale on a ballot for public vote, the city proceeded to send threatening letters.

A “cease-and-desist” letter, dated Nov. 8, 2023, from Westwood City Attorney Ryan B. Denk to Todd Hauser threatened legal action if Hauser refused to withdraw his objections, accusing him and other opponents of “tortious interference” and “slander of title.”

“This correspondence responds to your correspondence dated October 12 and 19, 2023 asserting an objection to the sale of City property located at 5000 Rainbow due to alleged non-compliance with K.S.A. 12-1301,” the letter reads. “Simply stated, your objection is without merit, and the City is prepared to take such legal action against you and/or your clients as may be necessary to protect its title and its contractual relationships.”

And further demanding Hauser and his clients “immediately and formally withdraw any claims or demands related to K.S.A. §12-1301, and furthermore cease in publishing your and their continued slandering of the City’s title (whether through web sites, Facebook posts, door-to-door, or electioneering, as occurred in front of City Hall yesterday, during voting hours), and cease in further tortiously interfering with the City’s contractual relationships. The City expects to receive such a response from you by no later than Wednesday, November 15, 2023.”

Kansas Justice Institute Director of Litigation Sam MacRoberts sent a letter in response on Dec. 7, 2023, demanding that the city withdraw its letter.

“In our view, the City of Westwood’s letter is heavy-handed, unacceptable, and antithetical to the First Amendment. Accordingly, as to those portions of the letter that implicate the First Amendment, they should be immediately — and publicly — withdrawn,” MacRoberts wrote. “Further, to the extent this approach is Westwood’s policy and practice, it should likewise end immediately.”

MacRoberts said Denk’s threats are a violation of the First Amendment.

“Under well-established First Amendment principles, the City of Westwood cannot credibly argue it has a valid claim for tortious interference or slander of title against those who object to the proposed development of the park,” he wrote. “To begin with, those individuals who object to the sale of the park are speaking on matters of public concern. After all, the speech involves a matter of ‘political, social, or other concern to the community,’ and it is ‘a subject of legitimate news interest.'”

He noted that speaking on matters of public concern is, of course, “at the heart of the First Amendment’s protection” and “entitled to special protection.”

Moreover, at the heart of the city’s argument is that opponents’ reading of the statute is wrong, but as MacRoberts points out, that hardly matters; it’s not the interpretation of the law at issue but their right to speak freely about the law and about the project.

“It doesn’t matter much at all who has the correct reading of the statute — what matters is the City of Westwood may not threaten to sue for disagreeing with its statutory analysis,” MacRoberts wrote and added in a statement in a press release “It doesn’t matter what side of the debate you’re on, what matters is that you’re able to debate it without being threatened with a lawsuit by the government.”

Westwood was already struggling with transparency issues over the project

The fight is over the only city park in Westwood, which the city wishes to sell to Karbank Real Estate, Co. to develop into a four-building project.

According to the plan, Karbank would have to pay off the remaining roughly $275,000 debt the city owns on a former church the city purchased in 2013 and demolished in 2020. Additionally, Karbank would “donate” $2.65 million to the city to purchase a closed school building from the Shawnee Mission School District, demolish it, and grade the land for a new 3.8-acre park.

The city is proposing, with Karbank’s help, to create a Public Benefit Tax Increment Financing district to pay for the new park.

A TIF is a type of financing in which a portion of increased property and sales tax revenues are used to pay for bonds (loans) as part of the development.

Karbank, in this case, has stated that it would not require TIF incentives for its development but let the city keep the proceeds.

However, as the Sentinel previously reported, city documents claim they expect to realize some $6.7 million in revenue over the 20-year life of the district — considerably more than the $2 million they estimate as the cost of the new park.

However, it is difficult to determine if any of the projections are accurate because the city has declined to provide — or does not have — standard financial forecast data to support its contention.

On Oct. 23, 2023, the Sentinel sent the City of Westwood an Open Records request for “all documents pertaining to the financial analysis of the Karbank project, including a cash flow forecast for any debt to be issued.”

Rather than provide the requested records, the city directed the Sentinel to the city website and said any detailed analysis was exempt.

But there is nothing confidential about a multi-year cash flow analysis that projects revenue, expenses, and debt payments.  The Sentinel asked for that specific type of analysis, to which Westwood City Administrator Leslie Herring responded that the city had “provided such records as are kept or maintained by the City which are responsive to your request and which are not otherwise exempt from disclosure under the Kansas Open Records Act.”

So Westwood officials either did not perform a standard cash flow analysis to support their contention that the project is viable, or they are withholding it in apparent violation of the Kansas Open Records Act.


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